State of Tennessee v. John Nolan Sunde

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs August 14, 2013

STATE OF TENNESSEE v. JOHN NOLAN SUNDE

Appeal from the Criminal Court for Williamson County
No. I-CR055635 Robbie Beal, Judge

No. M2012-02395-CCA-R3-CD - Filed February 6, 2014

Appellant, John Nolan Sunde, was indicted by the Williamson County Grand Jury for
aggravated assault and domestic assault. After a jury trial, Appellant was convicted of both
charges. The trial court merged the convictions into a single conviction for aggravated
assault and sentenced Appellant to three years in incarceration. The trial court suspended the
sentence “on time served” and ordered Appellant to attend an anger management class and
ordered him to have no contact with the victim. Appellant’s motion for new trial was denied,
and he initiated this appeal. On appeal, he argues: (1) that the evidence was insufficient to
support his conviction because the State failed to prove serious bodily injury; (2) the trial
court erred in admitting multiple photographs of the victim; and (3) the trial court erred in
sentencing Appellant to anger management class. After a review of the record, we conclude
that the evidence is sufficient to support the jury’s finding that the victim suffered serious
bodily injury to sustain the conviction for aggravated assault; the trial court did not abuse its
discretion in admitting photographs of the victim’s injuries at trial; and the trial court
properly ordered anger management classes as a condition of probation. Accordingly, the
judgment of the trial court is affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court is Affirmed.

J ERRY L. S MITH, J., delivered the opinion of the court, in which J AMES C URWOOD W ITT,
J R., and R OBERT W. W EDEMEYER, JJ., joined.

Vanessa P. Bryan, District Public Defender and Susan V. Logan, Assistant Public
Defender for the appellant, John Nolan Sunde.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant
Attorney General; Kim R. Helper, District Attorney General, and Tammy J. Rettig,
Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

Williamson County Sheriff’s Officer Corporal Troy Gifford received a radio dispatch
for a domestic violence call on East Moran Road around 11:00 p.m. on April 10, 2011. The
home was shared by the victim, Doris Erickson, and Appellant. They lived together in the
residence as a couple, and had been together for approximately ten years.

Corporal Gifford quickly responded to the call. As he arrived, he knocked on the
front door of the residence. The victim came out on the front stoop. She was acting
“extremely excited” as she tried to explain what happened in an “extremely nasally” voice.
Corporal Gifford had a hard time understanding the victim at that time.

When the victim let the police into the residence, they were able to see “very visible
marks to her face.” Corporal Gifford described the victim’s injuries as a “bruised and
extremely swollen [bottom] as well as the top of the lip.” The victim’s nose was “flattened
and extremely swollen.” On the bridge of the victim’s nose there was a “very dark purple
bruise that went from eye socket to eye socket.” Corporal Gifford stated that there was
“hemorrhaging in the left eye” around the outside of the iris and bruising on her forehead.

The victim informed officers on the scene that Appellant beat her up. At that time,
she informed officers that she thought Appellant was upstairs in the residence. Appellant
was found upstairs lying on a bed and reading a book. Officers described Appellant as
“matter of fact” and “nonchalant.”

The victim refused to be transported for medical treatment but received medical
treatment on the scene from Emergency Medical Personnel.

As a result of the events that night, Appellant was indicted by the Williamson County
Grand Jury with aggravated assault and domestic abuse.

At trial, the victim testified that she and Appellant had lived together for ten years.
Leading up to the attack, the victim described their relationship as “tense” due to a “low
performance review” Appellant received at work. The victim explained:

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 [Appellant] lost control. . . . I went over and asked him to go to bed because
he would not come to bed, he was always writing emails [about his job], and
then he lost his temper. He - it went so fast. You know he grabbed me, bent
me over the pool table backwards, and then I found myself on the floor and the
punches were so rapid that I think I lost consciousness for awhile, and then I -
he let up - up off for a little bit. I don’t know how long it went on, and I ran
downstairs and called 911.

The victim stated that during the attack, Appellant held her arms down with one hand and
punched her repeatedly with the other hand. The victim testified that she had bruises
everywhere - on her back, face, arms, and knees. The victim admitted that she did not go to
the hospital on the night of the attack because she was “so traumatized and in so much pain.”
The victim described her pain as a “ten plus.” on a scale of one to ten. She just wanted to
“lie down somewhere in the dark . . . like a wounded animal that tries to find a corner to hide
in.”

The next morning, the victim had a friend take her to a family doctor. From there, she
was referred to an ear, nose, and throat specialist, Dr. Gregory Allen Mowery. The specialist
informed the victim that her nose was broken and she needed surgery. The doctor could not
perform the surgery until the swelling in the victim’s nose subsided. That night, the victim
went to a “safe house.” She stayed at the safe house for three days. The days immediately
following the attack were described by the victim as a “blur.”

Detective Melissa Colvin interviewed the victim at the safe house and described the
severity of her injuries, stating that it looked as though the victim had been drawn on with
a black permanent marker on her face. The bruising was “very bad.” She took several
pictures of the victim’s injuries. They were admitted at trial. Three days later, Detective
Colvin described the color of the bruises as “greenish.”

Dr. Mowery described the victim as “extremely bruised.” He immediately placed her
on antibiotics. Dr. Mowery explained that the victim had a “hematoma of her nasal septum
where blood had accumulated under the tissue inside her nose” that required surgery. The
left side of the nose was “completely occluded” and there was “an obvious fracture of [the
victim’s] external nasal bones that was visible as far as deformity.” To correct the injuries,
Dr. Mowery made incisions on the inside of the victim’s nose to drain the blood and reduce
swelling, sewed back the incisions, placed nasal splints inside the nose, manipulated the
structure of the nose and septum inside the nose, and placed an external nasal splint. Dr.
Mowery described the victim’s injuries as “much more severe” than those he typically sees
in sports-related injuries. In his opinion, it could take up to six months for the victim to heal
from the surgery. He did not think that the victim’s refusal to go to the emergency room

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would have altered her treatment plan. Dr. Mowery did not think that the victim would have
any long-term effects from the injuries that would affect her “function or significantly affect
her appearance.”

The victim testified that the healing process took a long time even after surgery to
correct her broken nose. She still had “dark circle” bruises under her eyes nearly three
months after the attack. The victim also testified that her nose was not quite as straight as
it was before the surgery and her nostrils were shaped differently. Additionally, she
continued to have panic attacks and nose bleeds and had scars on her knees.

Appellant testified at trial. He stated that the victim had a condition that affected her
mood if she was fatigued. Appellant explained that she would “go berserk” when she was
“up late at night.” Appellant noticed the mood swings the first year of their relationship.
Appellant stated that the victim would go on “rants” complaining about his son and ex-wife.

On the day of the incident, Appellant explained that he worked in the yard, had dinner
with the victim, watched two movies with the victim, and then went to the bonus room to
work on his computer around 8:00 p.m. This was normally when the victim went to bed.
Appellant testified that, at least an hour later, the victim came from the bedroom in a “rant.”
Appellant was surprised to see her and tried to stand up from the recliner. He “lowered the
footrest, swivelled to the left to get out, and as [he stood], she pushed [him] in the chest.”
In order to keep the victim from pushing him, Appellant grabbed her wrist. The couple fell.
Appellant stated that he fell forward and the victim fell backward. Appellant’s forehead hit
the victim in the face the hardest. However, the rest of his body collided with the victim’s
body as well. Appellant stated that the victim was still “swinging and struggling,” so he
grabbed her wrists. The two struggled back and forth on the carpet, causing carpet burns.
Appellant noticed blood on the victim’s face, probably from her nose. Appellant eventually
asked the victim if she had “done enough” and if she was “through.” The victim told
Appellant that she never wanted to see him again.

Appellant specifically denied striking the victim with his fist.

Appellant called his own medical expert, Dr. Suzanne Elaine Benson. She explained
that at the time of the incident the victim was taking Mobic, a non-steroidal anti-
inflammatory drug, that could increase bleeding tendency. In fact, one blow to a person’s
face could cause them to bruise. The victim was also taking Flonase and Allegra for
allergies. Dr. Benson did not see anything in the medical records that would reflect that the
victim was in “extreme pain.” There was a notation for breathing issues due to allergies
which was a problem that existed prior to the broken nose. There was no prescription for
pain medication.

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 Appellant’s son saw the victim in October after the accident and did not notice any
differences in the victim’s appearance.

At the conclusion of the proof, the jury convicted Appellant of both offenses as
charged in the indictment. At the sentencing hearing, the trial court merged the convictions
into a single conviction for aggravated assault. He sentenced Appellant as a Range I,
standard offender to three years in incarceration, noting that Appellant had served from April
10, 2011, to July 16, 2012, in incarceration. The trial court ordered the sentence suspended
for time served and placed Appellant on probation. The trial court also ordered Appellant
to “attend and complete anger management class” and have “no contact whatsoever” with
the victim.

Appellant appeals.

Analysis
Introduction of Prejudicial Photographs of the Victim

Appellant first complains that the trial court improperly admitted prejudicial
photographs of the victim. Specifically, Appellant insists that the trial court “admitted into
evidence a large number of photographs of Ms. Erickson that were taken by Detective
Melissa Colvin over the objection of the defense.” The State argues that Appellant waived
the issue for failure object to the introduction of photographs at trial.

Prior to trial, counsel for Appellant filed a motion in limine seeking to exclude the
photographs of the face of the victim as more prejudicial than probative. The trial court ruled
on the motion in limine. Counsel for Appellant argued that there were too many photographs
of the victim’s facial injuries and that they would only serve to “inflame the jury and excite
their passions and sympathy” for the victim. After hearing argument from counsel, the trial
court reviewed approximately fifteen photographs of the victim’s injuries. The trial court
made extensive findings, determining in part:

These pictures do demonstrate that the injury could be considered by the jury
as significant. They could certainly be used by the jury to show disfigurement.
They could be used by the . . . - - jury with the help of an expert to show that
there was a loss of a bodily function. I’m assuming the nasal passages.

[T]here’s no way that verbal testimony can replace the value, the evidentiary
value, of a photograph. Are some - again, are the pictures prejudicial to the
defense? Yes. However, do they have significant relevant value that goes
directly to an element of the offense? Yes. And to - - and to keep the State

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 from being able to put forward those pictures would unnecessarily and
inappropriately bind their hands in this case and take away a fairly essential
part of the case.

The Court’s going to allow most of the pictures to come in. The Court
has one, two - - has taken out four pictures simply because I believe they are
redundant.

At trial, Detective Colvin testified as to the extent of the victim’s injuries and
explained that she took photographs of those injuries. As the photographs were moved into
evidence, the trial court stated that “[a]ny objections are noted for the record and reserved.”
The trial court then went on to admit the photographs. The record does not contain a formal
objection to the introduction of the photographs from Appellant during trial.

The State insists that Appellant failed to object to the introduction of the photographs
at trial and, as a result, waives any issue with regard to the admissibility of the photographs
on appeal. Ordinarily, a defendant’s failure to make a contemporaneous objection during
trial constitutes a waiver of an issue. Tenn. R. Evid. 103(a)(1); Tenn. R.App. P. 36(a) (stating
that “Nothing in this rule shall be construed as requiring relief be granted to a party
responsible for an error or who failed to take whatever action was reasonably available to
prevent or nullify the harmful effect of an error.”); State v. Cravens, 764 S.W.2d 754, 757
(Tenn.1989). However, although the State correctly observes that Appellant should make
a contemporaneous objection to the photographs during trial, Appellant objected to the
photographs prior to trial in a motion in limine. For the purpose of preserving the record for
appeal, we consider an objection to be contemporaneous if trial counsel objects in the form
of a motion in limine and obtains a ruling on the issue from the trial court. State v. Alder, 71
S.W.3d 299, 302 (Tenn. Crim. App. 2001). Thus, this issue was preserved for appellate
review.

The admissibility of relevant photographs of victims and the crime scene is within the
sound discretion of the trial court, and the court’s ruling on admissibility will not be
disturbed on appeal absent a showing of an abuse of that discretion. State v. Carruthers, 35
S.W.3d 516, 576-77 (Tenn. 2000); State v. Van Tran, 864 S.W.2d 465, 477 (Tenn. 1993);
State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978). As our supreme court stated in
Carruthers, the modern trend is to vest more discretion in the trial court’s rulings on
admissibility. Carruthers, 35 S.W.3d at 577 (citing Banks, 564 S.W.2d at 949).

Evidence is relevant if it has “any tendency to make the existence of any fact that is
of consequence to the determination of the action more probable or less probable than it
would be without the evidence.” Tenn. R. Evid. 401. Relevant evidence “may be excluded

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if its probative value is substantially outweighed by the danger of unfair prejudice, confusion
of the issues, or misleading the jury.” Tenn. R. Evid. 403. Prejudicial evidence is not
excluded as a matter of law. Carruthers, 35 S.W.3d at 577. The court must still determine
the relevance of the visual evidence and weigh its probative value against any undue
prejudice. Id. The term “undue prejudice” has been defined “an undue tendency to suggest
decision on an improper basis, commonly, though not necessarily, an emotional one.” Banks,
564 S.W.2d at 950-51. (quoting Fed. R. Evid. 403, Advisory Comm. Notes). Photographs
of the nature and extent of the victim’s injuries were relevant to the issue of bodily injury.
The photographs assisted the expert testimony regarding the injuries. Although the
photographs are unpleasant to view, we conclude that the probative value of the photographs
is not substantially outweighed by their prejudicial effect and that the trial court did not abuse
its discretion in allowing their admission. Appellant is not entitled to relief.

Sufficiency of the Evidence

Appellant challenges the sufficiency of the evidence to support his conviction for
aggravated assault. Specifically, he argues that serious bodily injury was not proven by the
State. The State disagrees.

When a defendant challenges the sufficiency of the evidence, this Court is obliged to
review that claim according to certain well-settled principles. A verdict of guilty, rendered
by a jury and “approved by the trial judge, accredits the testimony of the” State’s witnesses
and resolves all conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W.2d
253, 259 (Tenn. 1994) (citing State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992)). Thus,
although the accused is originally cloaked with a presumption of innocence, the jury verdict
of guilty removes this presumption “and replaces it with one of guilt.” State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with the
defendant to demonstrate the insufficiency of the convicting evidence. Id. The relevant
question the reviewing court must answer is whether any rational trier of fact could have
found the accused guilty of every element of the offense beyond a reasonable doubt. See
Tenn. R. App. P. 13(e); Harris, 839 S.W.2d at 75. In making this decision, we are to accord
the State “the strongest legitimate view of the evidence as well as all reasonable and
legitimate inferences that may be drawn therefrom.” See Tuggle, 639 S.W.2d at 914. As
such, this Court is precluded from re-weighing or reconsidering the evidence when
evaluating the convicting proof. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App.
1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Moreover, we may
not substitute our own “inferences for those drawn by the trier of fact from circumstantial
evidence.” Matthews, 805 S.W.2d at 779. Further, questions concerning the credibility of
the witnesses and the weight and value to be given to evidence, as well as all factual issues
raised by such evidence, are resolved by the trier of fact and not the appellate courts. State

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v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). “The standard of review ‘is the same whether
the conviction is based upon direct or circumstantial evidence.’” State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

A. Aggravated Assault

To convict Appellant of aggravated assault in this case, the jury must have found that
Appellant intentionally or knowingly caused the victim to fear imminent bodily injury and
caused serious bodily injury. See T.C.A. §§ 39-13-101, 102.1 “‘Serious bodily injury’
means bodily injury that involves: (A) A substantial risk of death; (B) Protracted
unconsciousness; (C) Extreme physical pain; protracted or obvious disfigurement; (E)
protracted loss or substantial impairment of a function of a bodily member, organ or mental
faculty; or (F) A broken bone of a child who is eight (8) years of age or less . . . .” T.C.A.
§ 39-11-106(a)(34).

One acts “knowingly” when, with respect to a result of the person’s conduct, the
person “is aware of the conduct or is practically certain that the conduct will cause the result,
irrespective of his or her desire that the conduct or result will occur.” T.C.A. § 39-11-302(b),
Sentencing Comm’n Cmts.

Appellant’s main argument with regard to the sufficiency of the evidence to support
the conviction for aggravated assault challenges the degree to which the victim suffered
serious bodily injury. He cites State v. Sims, 909 S.W.2d 46 (Tenn. Crim. App. 1995), as an
analogous case. In Sims, the victim suffered a broken nose, facial laceration, and bruised
cheekbone as the result of a robbery. Id. at 48. The victim was not given any pain medication
and did not require surgery. The victim eventually had two teeth pulled several days later.
Id. at 48-50. This Court, in determining whether the victim’s injuries constituted “serious
bodily injury,” applied the doctrine of ejusdem generis to the statute defining “serious bodily
injury,” stating:

According to the Sixth Edition of Black’s Law Dictionary, ejusdem generis
means when words follow an enumeration of classes of things the words
should be construed to apply to things of the same general class as those
enumerated. Therefore, the enumerated portions of the definition of serious

1
Tennessee Code Annotated section 39-13-102 was modified in 2013 to require that a defendant
intentionally or knowingly commits an assault that “results” in either serious bodily injury to another, the
death of another, or involved the use or display of a deadly weapon or “[w]as intended to cause bodily injury
to another by strangulation or bodily injury by strangulation was attempted.” 2013 Tenn. Pub. Act Ch. 461.
This amendment took effect on July 1, 2013, after Appellant’s trial.

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 bodily injury should be read as coming from the same class of injuries. We do
not believe that the pain commonly associated with a broken nose is extreme
enough to be in the same class as an injury which involves a substantial risk
of death, protracted unconsciousness, protracted or permanent disfigurement
or the loss or impairment of the use of a bodily member, organ or mental
faculty.

Id. at 49 (footnotes omitted). The Sims court noted that pain is difficult to quantify or
measure. Id. However, as this Court has stated, “the subjective nature of pain is a question
of fact to be determined by the trier of fact, in this case the jury.” State v. Eric A. Dedmon,
No. M2005-00762-CCA-R3-CD, 2006 WL 448653, at *5 (Tenn. Crim. App., at Nashville,
Feb. 23, 2006).

We disagree with Appellant’s argument. While the evidence of serious bodily injury
was not as overwhelming as it could have been where the victim was shot or maimed, we
conclude that the evidence, in a light most favorable to the State, proved that the victim
certainly suffered extreme physical pain, which constitutes serious bodily injury. See T.C.A.
§ 39-11-106(a)(34). Appellant pushed the victim and hit her repeatedly, causing a broken
nose, severe bruising over several parts of her body, and scars to her knees. Unlike the
victim in Sims, the evidence at trial proved that the victim required surgery on her nose and
endured a long healing process to the bruises on her face as a result of Appellant’s actions.
She described her pain as a “ten-plus.” The task of determining the severity of pain suffered
is within the province of the jury as a question of fact. State v. Barnes, 954 S.W.2d 760, 765-
66 (Tenn. Crim. App. 1997). This issue is without merit. Appellant is not entitled to relief.

Sentencing

Appellant insists that the trial court erred by ordering Appellant to attend an anger
management course as a condition of his probation because it was the trial court’s “policy”
to order anger management in domestic abuse cases. The State counters that the trial court
did not abuse its discretion.

Appellate review of sentencing is for abuse of discretion. We must apply “a
presumption of reasonableness to within-range sentencing decisions that reflect a proper
application of the purposes and principles of our Sentencing Act.” State v. Bise, 380 S.W.3d
682, 707 (Tenn. 2012).

In making its sentencing determination, the trial court, at the conclusion of the
sentencing hearing, first determines the range of sentence and then determines the specific
sentence and the appropriate combination of sentencing alternatives by considering: (1) the

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evidence, if any, received at the trial and the sentencing hearing; (2) the presentence report;
(3) the principles of sentencing and arguments as to sentencing alternatives; (4) the nature
and characteristics of the criminal conduct involved; (5) evidence and information offered
by the parties on the enhancement and mitigating factors; (6) any statistical information
provided by the administrative office of the courts regarding sentences for similar offenses;
(7) any statements the defendant wishes to make in the defendant’s behalf about sentencing;
and (8) the potential for rehabilitation or treatment. T.C.A. §§ 40-35-210(a), (b), -103(5);
State v. Williams, 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995).

The trial court is still required to place on the record its reasons for imposing the
specific sentence, including the identification of the mitigating and enhancement factors
found, the specific facts supporting each enhancement factor found, and the method by which
the mitigating and enhancement factors have been evaluated and balanced in determining the
sentence. See Bise, 380 S.W.3d at 706, n.41; State v. Samuels, 44 S.W.3d 489, 492 (Tenn.
2001). Thus, under Bise, a “sentence should be upheld so long as it is within the appropriate
range and the record demonstrates that the sentence is otherwise in compliance with the
purposes and principles listed by statute.” Bise, 380 S.W.3d at 710.

Further, a trial court is granted broad discretion in its imposition of conditions of
probation. See T.C.A. § 40-35-303(d); Stiller v. State, 516 S.W.2d 617 (Tenn. 1974). “The
Sentencing Act provides that ‘the trial court has great latitude in formulating punishment,
including the imposition of conditions of probation.’” State v. Jones, 328 S.W.3d 520,
523–24 (Tenn. Crim. App. 2010) (quoting State v. Burdin, 924 S.W.2d 82, 85 (Tenn. 1996)).
However, the primary purpose of a sentence of probation “is rehabilitation of the defendant,”
Burdin, 924 S.W.2d at 86, and the conditions of probation must be suited to this purpose.
“Once the trial judge determines that probation is justified under the circumstances, the
conditions imposed must be reasonable and realistic and must not be so stringent as to be
harsh, oppressive or palpably unjust.” Stiller, 516 S.W.2d at 620. Specifically, the trial court
can require a defendant to comply with such things as family responsibilities, vocational
training, restitution, medical or psychiatric treatment, among others. See T.C.A. § 40-35-
303(d).

In the case herein, the trial court considered Appellant’s age, experience, and
circumstances while noting the severity of the injuries sustained by the victim and the verdict
of the jury. The trial court noted that the attack on the victim appeared to have been the
result of an angry outburst, deeming a course in anger management appropriate as a condition
of probation. The trial court commented that it could not “think of a time I did not, order an
anger management class as a result of a domestic violence assault, especially one of this
magnitude.” The trial court did not abuse its discretion. Appellant is not entitled to relief
on this issue.

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 Conclusion

For the foregoing reasons, the judgement of the trial court is affirmed.

_________________________________
JERRY L. SMITH, JUDGE

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