IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
APRIL 1998 SESSION
September 10, 1998
Cecil W. Crowson
STATE OF TENNESSEE, * C.C.A. # 01C01-9707-CR-00236 Clerk
Appellate Court
Appellee, * DAVIDSON COUNTY
VS. * Hon. Thomas H. Shriver, Judge
WILLIAM JETT, JR., * (Stalking)
Appellant. *
For Appellant: For Appellee:
Terry J. Canady, Attorney John Knox Walkup
211 Printers Alley Building Attorney General and Reporter
Suite 400
Nashville, TN 37201-1414 Marvin E. Clements, Jr.
Assistant Attorney General
Criminal Justice Division
Cordell Hull Building, Second Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
S. Carran Daughtrey
and
Kymberly Haas
Assistant District Attorneys General
222 Second Avenue North
Suite 500
Nashville, TN 37201
OPINION FILED:__________________________
AFFIRMED
GARY R. WADE, JUDGE
OPINION
The defendant, William Jett, Jr., was convicted of Class C felony
stalking. The trial court imposed a Range II, seven-year sentence which is to be
served consecutively to a prior sentence he is serving as the result of a probation
violation. In this appeal of right, the defendant challenges the sufficiency of the
evidence, complains that the trial court erred by refusing to instruct the jury on the
crime of harassment and argues that the jury was improperly informed of his prior
conviction for stalking. We find no error and affirm the judgment of the trial court.
The defendant and the victim, Jamie Carter, initiated a relationship in
March of 1994 and began to live together at the victim's residence in March 1995.
On July 22, 1995, the defendant had an argument with the eleven-year-old daughter
of the victim. In consequence, the victim then directed the defendant to leave and
asked him not to call, write, or otherwise communicate with her. The defendant left
but remarked that "it wasn't over yet...."
On August 30, 1995, the victim received three telephone calls. She
did not answer and no message was left on the voice mail system. On the following
day, there was another call. Again, no message was left. Shortly thereafter, the
defendant left a recorded message for the victim, acknowledging that he should not
have called. He expressed his love for her and asked her "not to get him in trouble
for calling." The victim continued to receive calls later that evening; three messages
were left from a Nashville pay phone by a disguised voice. In these recordings, the
caller left word that he was "coming for her," out to "get her," and going to "blow her
up."
It was the victim's opinion that the defendant had left the messages.
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Her conclusion was based upon the caller's utilization of phrases commonly used by
the defendant and his obvious knowledge of information personal to the victim. The
recordings included threats to rape, kill, and "rip the insides out" of the victim. The
caller stated that he enjoyed watching the victim and would enjoy hurting her. The
victim estimated at twelve the number of hang-up telephone calls she received
during the course of that particular day. There were other calls involving either
hangups or messages by a disguised voice. The calls continued through
September 8. In a call from a pay phone, a disguised voice left the following
message:
Listen to what I say. You and Bill better get back
together or people will get hurt. Work it out or pay the
price.
The victim had not received any threatening or harassing calls before
August 30 and did not receive any after September 8. During this period, the victim
changed her telephone number four times; on the last change, she told no one of
her new number, including her daughter. When the calls persisted, the victim and
her daughter moved to the residence of a friend, Mickey W alker, for a period of six
to eight weeks in September and October.
During this time, the victim was employed by the Baptist Hospital in
Nashville. Timothy Harrington, a security officer at the hospital, had been briefed
about a possible situation involving the victim on September 8. He observed the
defendant at the victim's place of work the next day, only a short time after a
telephone call had been received by a hospital receptionist. The telephone
equipment indicated that the call had been made from inside the hospital. The
caller asked for the victim. After learning of the call, Harrington saw the defendant,
who had parked his car on a public street, walk three of the levels inside the hospital
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employee parking garage. The garage required an access card. When confronted
by Harrington, the defendant claimed that he was there to see an orthopedist about
his knee. The orthopedic group he referred to no longer had an office near the
garage. After this incident, the victim swore out a warrant against the defendant for
stalking.
At trial, Mickey Walker testified that when she learned of the
threatening calls, she gave permission to the victim and her daughter to stay with
her and her husband at night. Ms. Walker recalled that the defendant made several
calls to her residence, professing love for the victim and expressing his desire to get
her back. She remembered that the defendant left word for the victim to page or
telephone either him or his mother. She estimated that the defendant called
between two and three times a day from August 31 to September 8. Ms. Walker
testified that the defendant became angry when the victim was not there and
demanded to know her whereabouts. She informed the defendant, who had
threatened to destroy the victim's flowers, that the victim was staying with her at
night. Ms. Walker testified that the defendant continued to call her residence even
though he had been asked not to do so.
Bobby Comfort testified that on September 1, he had seen the
defendant walking out of a video store in the Fairview area where the victim resided.
A clerk in the store, Amy White, testified that on that date, a male had rented some
items and charged them to the victim's account. The time of the transaction was
8:56 P.M.
Joyce LaTrina Johnson, a receptionist and clerical worker at the food
court at Baptist Hospital, answered several telephone calls during that period. She
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was familiar with a male voice who had made previous calls to the victim at the
hospital. When she received a call on September 8, Ms. Johnson contacted
security and the defendant was eventually arrested. On cross-examination, Ms.
Johnson admitted that she did not know whether the defendant was the person who
had made the telephone calls. She did say, however, that only one male voice had
ever telephoned the victim at the hospital. Ms. Johnson explained that she chose
not to inform the victim of the September 8 call because "we didn't want to alarm
her."
The defendant did not testify. He did not offer any witnesses in his
defense.
I
Initially, the defendant contends that no rational trier of fact could have
found the essential elements of stalking beyond a reasonable doubt. He maintains
that the victim never knew the defendant was following her.
On appeal, the state is entitled to the strongest legitimate view of the
evidence and all reasonable inferences which might be drawn therefrom. State v.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses, the
weight to be given their testimony, and the reconciliation of conflicts in the evidence
are matters entrusted exclusively to the jury as the trier of fact. Byrge v. State, 575
S.W.2d 292, 295 (Tenn. Crim. App. 1978). A conviction may only be set aside when
the reviewing court finds that the "evidence is insufficient to support the finding by
the trier of fact of guilt beyond a reasonable doubt." Tenn. R. App. P. 13 (e). A jury
verdict, approved by the trial judge, accredits the testimony of the witnesses for the
state and resolves all conflicts in favor of the theory of the prosecution. State v.
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Hatchett, 560 S.W.2d 627, 630 (Tenn. 1978).
The statute prohibiting stalking provides as follows:
Stalking.--(a)(1) A person commits the offense of
stalking who intentionally and repeatedly follows or
harasses another person in such a manner as would
cause that person to be in reasonable fear of being
assaulted, suffering bodily injury or death.
As used in this subsection:
(A) "Follows" means maintaining a visual or physical
proximity over a period of time to a specific person in
such a manner as would cause a reasonable person to
have a fear of an assault, bodily injury or death;
(B) "Harasses" means a course of conduct directed at
a specific person which would cause a reasonable
person to fear an assault, bodily injury, or death,
including, but not limited to, verbal threats, written
threats, vandalism, or unconsented-to physical contact;
and
(C) "Repeatedly" means on two (2) or more separate
occasions.
(b)(1) Stalking is a Class A misdemeanor.
(2) A second or subsequent violation of subsection (a)
occurring within seven (7) years of the prior conviction is
a Class E felony. A second or subsequent violation of
subsection (a) involving the same victim and occurring
within seven (7) years of the prior conviction is a Class C
felony.
(c) The provisions of this section shall not be construed
to prohibit following another person during the course of
a lawful business activity.
Tenn. Code Ann. § 39-17-315 (emphasis added).
While conceding that stalking may be established by "following or
harassing," the defendant asserts that the indictment charged "repeatedly followed
and harassed" and thus placed the burden on the state to prove that the defendant
both followed and harassed the victim. The defendant also contends that the state
proved neither following nor harassing. Because, he asserts, the victim did not
know that she was being followed at the hospital, she could not have been in fear of
an assault at that time.
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The tapes of the telephone messages were played for the jury. They
contained the threats made against the victim and the suggestion that she was
being followed. Because she was familiar with certain phrases unique to the
defendant and some of the subject matter was of a personal nature, the victim was
able to express an opinion that the defendant was the caller. Later, a security
worker found the defendant in the secured employee parking garage at the Baptist
Hospital, where the victim worked, shortly after a receptionist received a call for the
victim. The call was made on a hospital telephone. The receptionist recognized the
male voice as one that had previously contacted the victim regularly. There was
proof that the defendant was near the victim's residence on September 1 and proof,
of course, that he was at the hospital on September 8. The nature of the telephone
calls during that period warranted a fearful reaction by the victim. In our view, the
proof, circumstantial and otherwise, is sufficient for the jury to have concluded that
the victim had been both followed and harassed, within their statutory definitions, on
a repeated basis.
II
Next, the defendant contends that the trial court should have charged
the lesser offense of harassment:
Harassment.--(a) A person commits an offense who
intentionally:
(1) Threatens, by telephone or in writing, to take action
known to be unlawful against any person, and by this
action knowingly annoys or alarms the recipient;
(2) Places one (1) or more telephone calls
anonymously, or at an inconvenient hour, or in an
offensively repetitious manner, or without a legitimate
purpose of communication, and by this action knowingly
annoys or alarms the recipient; or
(3) Communicates by telephone to another that a
relative or other person has been injured, killed or is ill
when such communication is known to be false.
(b) A violation of this section is a Class A
misdemeanor.
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Tenn. Code Ann. § 39-17-308. While the state concedes that the trial court had
announced that the crime of harassment would not be instructed to the jury, it takes
the position that the failure to include all of the instructions in the record results in a
waiver of the issue. Tenn. R. App. P. 13(c); Tenn. Ct. Crim. App. 10(b). The state
had argued previously that harassment is not a lesser offense because of the
differing elements.
The trial court made the following comment while denying a motion by
the defendant for acquittal:
I think you've got a whole lot better case with telephone
harassment than you do with stalking. But you don't
want that charged. And I--really in reviewing it, I suppose
it's not, strictly speaking, a lesser included offense,
although I think that's what you've proved....
The trial judge has a duty to give a complete charge of the law
applicable to the facts of the case. State v. Harbison, 704 S.W.2d 314, 319 (Tenn.
1986). It is settled law that when "there are any facts that are susceptible of
inferring guilt of any lesser included offense or offenses, then there is a mandatory
duty upon the trial judge to charge on such offense or offenses. Failure to do so
denies a defendant his constitutional right of trial by a jury." State v. Wright, 618
S.W.2d 310, 315 (Tenn. Crim. App. 1981) (citations omitted); Tenn. Code Ann. §
40-18-110(a).
In State v. Trusty, 919 S.W.2d 305, 310 (Tenn. 1996), our supreme
court set forth guidance on how to determine whether one offense is a lesser
offense of another:
Tennessee law recognizes two types of lesser offenses
that may be included in the offense charged in the
indictment: offenses necessarily included in the
indictment and offenses that are lesser grades of the
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charged offense. An offense is necessarily included in
the indictment ... only if the elements of the included
offense are a subset of the elements of the charged
offense and only if the greater offense cannot be
committed without also committing the lesser offense.
Id. In that case, our supreme court also provided guidance on how to determine
whether an offense is a lesser grade or class of the offense charged: "[o]ne need
only look to the statutes to determine whether a given offense is a lesser grade or
class of the crime charged." Id. at 310. The court observed that the legislature has
divided criminal homicide "into the grades of first-degree murder, second-degree
murder, voluntary manslaughter, criminally negligent homicide, and vehicular
homicide." Id.
This court has previously held that harassment is not a lesser included
offense of stalking. See State v. Gregory Jay Hoxie, No. 03C01-9506-CR-00183,
slip op. at 12-13 (Tenn. Crim. App., at Knoxville, Nov. 7, 1996), aff'd, 963 S.W.2d
737 (Tenn. 1998). In Trusty, it was held that an offense is "necessarily included in
the indictment ... only if the elements of the included offense are a subset of the
elements of the charged offense and only if the greater offense cannot be
committed without also committing the lesser offense." Trusty, 919 S.W.2d at 310
(emphasis added). Because one may commit stalking without committing
harassment, harassment is not a lesser included offense of stalking.
Harassment requires (1) communication which threatens unlawful
action against another, (2) repetitive or inconvenient phone calls, or (3) false
communication that a relative or other person has been injured, killed or is ill. Tenn.
Code Ann. § 39-17-308. Stalking requires intentionally and repeatedly following or
harassing another in such a manner as would cause that person to be in reasonable
fear of being assaulted, suffering bodily injury or death. Tenn. Code Ann. § 39-17-
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315. While the stalking statute mentions the word "harass," the term has been
defined differently in the stalking statute than in the harassment statute. For
harassment to constitute stalking, it must be a "course of conduct directed at a
specific person which would cause a reasonable person to fear an assault, bodily
injury or death, including, but not limited to verbal threats, written threats, vandalism,
or unconsented-to physical contact." Tenn. Code Ann. § 39-17-315(a)(1)(B).
One can commit stalking, as defined in Tenn. Code Ann. § 39-17-315,
without committing harassment, as defined in Tenn. Code Ann. § 39-17-308. For
example, one could commit stalking by vandalizing the victim's property. Such
conduct would not also amount to harassment under Tenn. Code Ann. § 39-17-308.
Because stalking can be committed without committing the offense of harassment,
harassment is not a lesser included offense. Trusty, 919 S.W.2d at 309.
No determination was made in Hoxie as to whether harassment could
be a lesser grade offense of stalking. We must conclude that it is not. See Trusty,
919 S.W.2d at 310. Both stalking and harassment are Class A misdemeanors. In
consequence, neither is a lesser grade than the other. Enhancement to felony
status only occurs where one has been previously convicted of stalking within seven
years. While both offenses are codified in Title 39, Chapter 17, Part 3, it is doubtful
that Trusty's "lesser grade" analysis would be applicable to this part of the Code.
The offenses of obstructing highway or other passageway, disrupting meeting or
procession, riot, disorderly conduct, civil rights intimidation, public intoxication, etc.,
are also codified in that chapter. See Tenn. Code Ann. 39-17-301 et seq. All of
these offense are loosely characterized under Title 39 as "offenses against public
health, safety, welfare" and under Part 3 as "disorderly conduct and riots." In our
view, Trusty's "lesser grade" analysis does not readily apply to this chapter of the
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Code.
In consequence, the trial court had no obligation to charge
harassment. While the two offenses at issue are similar, they are separate and
distinct crimes and one is neither included in nor lesser than the other.
III
Finally, the defendant contends that the original indictment had also
charged the defendant with having been found guilty of stalking the victim within
seven years of this offense. When that portion of the indictment referring to the
prior conviction was stricken, the remainder of the indictment was accurately read to
the jury. The defendant complains that the full document, including information
about the prior conviction, was sent to the jury for consideration during its
deliberations. See State v. Morgan, 541 S.W.2d 385 (Tenn. 1976).
Nothing in the record supports the claim that the jury was aware of the
prior offense. No objection was made by the defendant before or during
deliberations and none was made upon the return of the verdict. While the issue
was raised on motion for new trial, the transcript of the hearing has not been
included in the appellate record. It is the obligation of the appellant, of course, to
provide this court with an adequate record in regard to any claim. The failure to do
so results in a waiver of the issue as a possible ground for relief. Tenn. R. App. P.
13(c); Tenn. Ct. Crim. App. 10(b). Pleadings in the form of a motion for new trial do
not qualify as proof.
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Accordingly, the judgment is affirmed.
________________________________
Gary R. Wade, Judge
CONCUR:
_____________________________
Thomas T. W oodall, Judge
_____________________________
L.T. Lafferty, Special Judge
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