State v. Bult

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED
JUNE 1998 SESSION
September 18, 1998

Cecil W. Crowson
STATE OF TENNESSEE, ) Appellate Court Clerk
)
Appellee, ) No. 01C01-9711-CC-00534
)
) Lincoln County
v. )
) Honorable Charles Lee, Judge
)
JAMES ALBERT BULT, ) (Vandalism)
)
Appellant. )

For the Appellant: For the Appellee:

Robert S. Peters John Knox Walkup
100 First Avenue, S.W. Attorney General of Tennessee
Winchester, TN 37398 and
Lisa A. Naylor
Assistant Attorney General of Tennessee
425 Fifth Avenue North
Nashville, TN 37243-0493

William Michael McCowan
District Attorney General
and
James B. Cox
Assistant District Attorney General
215 E. College Street
P.O. Box 878
Fayetteville, TN 37334-0878

OPINION FILED:____________________

AFFIRMED

Joseph M. Tipton
Judge
 OPINION

The defendant, James Albert Bult, was convicted by a jury in the Lincoln

County Circuit Court of the offense of vandalism, a Class A misdemeanor. He was

sentenced to sixty days in jail, all but ten consecutive days or five consecutive

weekends to be suspended, and placed on probation for eleven months and twenty-

nine days. He was ordered to perform one hundred hours of community service. In

this appeal as of right, the defendant contends that (1) he was entitled to jury

instructions regarding self-defense, defense of another, and necessity and (2) his

confinement for five consecutive weekends is excessive. We affirm the trial court.

Initially, we note that the state claims that the defendant’s notice of appeal

was untimely filed. It asserts that the defendant’s motion for a new trial was denied on

April 8, 1997, and that the notice of appeal was filed on June 16, 1997. However, in our

view, the record reflects that only a motion to continue was denied on April 8, 1997, and

that the motion for a new trial was denied on May 23, 1997. Thus, the notice of appeal

was timely filed, and the appeal before us is proper.

The defendant was charged with assault and vandalism but was found not

guilty of assault. The events relate to the defendant going to his ex-in-laws’ house to

pick up his young daughter pursuant to his visitation rights. The Statement of Evidence

provides, in pertinent part, the following:

The witnesses for the state were Nancy Bult, Eugene
Urban and Barbara Urban. The witness Nancy Bult was the
ex-wife of the defendant. The witnesses Eugene Urban and
Barbara Urban were the ex-father-in-law and the ex-mother-in-
law of the defendant. The witnesses for the state stated that
the defendant came to the home of the Urbans approximately
8:45 p.m. the evening of June 21, 1996. The Urbans live on
Gray Lane in Lincoln County. The defendant had come to the
residence for the purpose of exercising his visitation rights with
his young daughter. The grandparents were keeping the child
at their Lincoln County Home. The defendant was exercising
the visitation rights that had been decreed by a divorce court

2
 of proper jurisdiction. The Urbans testified that they would
restrict visitation for the defendant because they felt the
defendant had consumed some beer. The young child wanted
to go with her father. An altercation developed, and Mr. Urban
testified that he was assaulted. The Urbans testified that the
defendant kicked a bedroom door as he attempted to enter to
obtain custody of his child. The witness Nancy Bult testified as
to conversations that she had with the defendant and she
stated she thought the defendant had consumed beer and
should not be allowed to leave with the child. The State
rested, and the defendant moved for a judgment of acquittal.
This motion was denied.

The defense presented its case by calling to the stand
the defendant himself. He testified that he was not intoxicated
on June 21, 1996 and that he did come to the residence of the
Urbans at about 8:45 p.m. that evening. He states that he
came for the purpose of picking up his young daughter for his
authorized visitation. He stated that the child was taken
forcibly from the kitchen and taken to a bedroom. He stated
that the child was crying and was emotionally upset. He stated
that he acted to protect the welfare and safety of his child and
that he acted in her regard and consideration. He
acknowledged that he did kick the door attempting to gain
entry into the bedroom but he said he did so for the purpose of
obtaining custody of his child. He stated his intervention was
necessary for the protection of the minor child. The defendant
acknowledged an altercation with Mr. Urban but stated that he
did so under provocation and necessity and with regard for his
safety and defense. The defense rested, and the defendant
renewed his motion for a judgment of acquittal. This motion
was overruled.

The case was then argued to the jury, and the court
instructed the jury. This instruction has been made a part of
the record, and it contains fifteen pages. It also contains a
verdict page containing two pages. The court instructed the
jury that, as to the crime of assault, the defendant was entitled
to the defense of self defense, and of the defense of third
persons, and the defense of necessity. The court did not
instruct the jury that these defenses would apply to the charge
of vandalism.

I

The defendant contends that the evidence warranted the jury being

instructed on the vandalism charge regarding self-defense, third-party defense and

necessity. He asserts that the evidence fairly raised these issues when, “in the mind of

the defendant,” he had to protect his daughter by kicking the bedroom door. However,

we believe that the defendant misapprehends the requirements for the defenses in that

he applies only a subjective, not an objective test.

3
 Pursuant to T.C.A. § 39-11-611(a), a person is justified to act in self-

defense under the following circumstances:

A person is justified in threatening or using force against
another person when and to the degree the person reasonably
believes the force is immediately necessary to protect against
the other’s use or attempted use of unlawful force. The person
must have a reasonable belief that there is an imminent
danger of death or serious bodily injury. The danger creating
the belief of imminent death or serious bodily injury must be
real, or honestly believed to be real at the time, and must be
founded upon reasonable grounds.

(Emphasis added). Pursuant to T.C.A. § 39-11-612, a person is justified to act in

defense of another when:

(1) Under the circumstances as the person reasonably
believes them to be, the person would be justified under § 39-
11-611 in threatening or using force to protect against the use
or attempted use of unlawful force reasonably believed to be
threatening the third person sought to be protected; and

(2) The person reasonably believes that the intervention
is immediately necessary to protect the third person.

(Emphasis added). Pursuant to T.C.A. § 39-11-609, a person is justified to act through

necessity under the following circumstances:

(1) The person reasonably believes the conduct is
immediately necessary to avoid imminent harm
; and

(2) The desirability and urgency of avoiding harm clearly
outweigh, according to ordinary standards of reasonableness,
the harm sought to be prevented by the law proscribing the
conduct.

(Emphasis added).

As the Sentencing Commission Comments to these sections provide, the

defenses not only entail what a defendant actually believes, but include, as well, what is

a reasonable belief under the circumstances. This means that the defendant’s conduct

and mental state must meet an objective standard of reasonableness for the conduct to

be justified under these statutory defenses. Thus, the mere fact that the defendant

believes that his conduct is justified would not suffice to justify his conduct.

4
 With the foregoing in mind, we consider whether the defendant was

entitled to the jury being instructed about self-defense, defense of another, and the

defense of necessity. A defendant is entitled to the issue of the existence of a defense

being submitted to the jury when it is fairly raised by the proof. See T.C.A. § 39-11-203

(c) and (d). To determine if it is fairly raised by the proof, “a court must, in effect,

consider the evidence in the light most favorable to the defendant, including drawing all

reasonable inferences flowing from that evidence.” State v. Shropshire, 874 S.W.2d

634, 639 (Tenn. Crim. App. 1993). This is because it would be improper for a court to

withhold a defense from the jury’s consideration because of judicial questioning of any

witness credibility. Id. In the present case, the defendant’s claims are based wholly

upon the following evidence:

[The defendant] states that he came for the purpose of picking
up his young daughter for his authorized visitation. He stated
that the child was taken forcibly from the kitchen and taken to
a bedroom. He stated that the child was crying and was
emotionally upset. He stated that he acted to protect the
welfare and safety of his child and that he acted in her regard
and consideration. He acknowledged that he did kick the door
attempting to gain entry into the bedroom but he said he did so
for the purpose of obtaining custody of his child. He stated his
intervention was necessary for the protection of the minor
child.

First, we note that there is no evidence to indicate that even the defendant

believed that he kicked the door for self-defense purposes. An instruction as to it was

unnecessary.

As for the defendant’s claim of defense of his daughter, the main question

is whether the evidence fairly raises the issue of a reasonable belief that “force is

immediately necessary to protect against the other’s use or attempted use of unlawful

force” and that there was an “imminent danger of death or serious bodily injury” to the

defendant’s daughter. T.C.A. § 39-11-611(a). See also T.C.A. § 39-11-612(1) and (2).

We hold that such issue is not fairly raised by the evidence as it is presented to us.

5
 In fact, we seriously question whether the limited statement that the

defendant acted “to protect the welfare and safety of his child and that he acted in her

regard and consideration” and for her protection fairly raises the issue of the defense of

another relative to the defendant’s subjective beliefs. However, what is certain is that

the facts upon which the defendant’s conduct is based, i.e., that the daughter’s mother

or grandmother took her “forcibly from the kitchen . . . to a bedroom” and she “was

crying and emotionally upset,” do not fairly raise an issue regarding there being a

reasonable belief that the daughter was subjected to unlawful force and was in

imminent danger of death or serious bodily injury. In other words, we believe that no

rational juror could have a reasonable doubt based upon the claim of defense of

another.

Similarly, we conclude that the defense of necessity was not fairly raised.

The defendant’s testimony does not lend itself to a belief that “imminent harm” to his

daughter was threatened. More importantly, though, the facts presented in the

Statement of Evidence do not raise any issue about or indication of there being

imminent harm threatened that would justify a rational juror having a reasonable doubt

based upon the defense of necessity. Thus, the defendant was not entitled to

instructions for the vandalism charge regarding the defenses he raises.

6
 II

The defendant complains that his sentence of ten days in confinement is

excessive. Particularly, he argues that the trial court arbitrarily required confinement

because it failed to make a record of any findings of fact that would justify such a

sentence. We believe that the record before us supports the imposition of a period of

confinement.

In misdemeanor sentencing, a separate sentencing hearing is not

mandatory, but the trial court is required to allow the parties a reasonable opportunity to

be heard on the question of the length and the manner of service of a sentence. See

T.C.A. § 40-35-302(a). The sentence must be specific and consistent with the

purposes and principles of the 1989 Sentencing Reform Act. T.C.A. § 40-35-302(b).

Also, in determining the percentage of the sentence to be served in actual confinement,

the trial court must consider enhancement and mitigating factors as well. T.C.A. § 40-

35-302(d).

The defendant’s Statement of Evidence recites the following regarding

sentencing:

A sentencing hearing was held in this case on March 7,
1997. The defendant was sentenced to a term of 60 days for
the vandalism charge. After the service of five consecutive
weekends, the balance of the sentence would be suspended,
after which the defendant would be placed on probation. No
formal presentence report was filed, but the State chose to
introduce an out-of-state record of past criminal involvement.
This record, to the extent applicable to sentencing, was
submitted to the Clerk for placement in the record. The court
incorporated the evidence at the trial in the sentencing
proceedings. The defendant had been gainfully employed. He
had performed in a variety of responsible positions, and he
held a security clearance. The problems that had arisen in
Lincoln County arose out of his domestic[] relations difficulties.

The record contains a certified document from a circuit court in Florida reflecting that in

1987, the defendant entered nolo contendere pleas to three counts of aggravated

7
assault and one count of attempt to elude a police officer. He was placed on three

years probation in a procedure similar to Tennessee’s judicial diversion.

Unquestionably, the Statement of Evidence filed by the defendant shows

little that complies with the sentencing process required by our sentencing laws.

However, we are mindful of the fact that the Statement of Evidence does not purport to

be a verbatim account of what occurred at the sentencing hearing. 1 Moreover, the

dearth of information in the record relevant to sentencing is detrimental to the

defendant’s cause, not the state’s.

On appeal, our review of sentencing is de novo on the record with the

presumption that the trial court’s determinations are correct. T.C.A. § 40-35-401(d). As

the Sentencing Commission Comments to this section note, the burden is now on the

defendant to show that the sentence to confinement is improper. With almost no

information in the record about the defendant’s social history, mental and medical

history, and work and family history, we have little information upon which to rely in

assessing an appropriate sentence, by review or otherwise.

However, we believe that the record before us can support the trial court’s

decision to impose ten days confinement. This is because of the defendant’s criminal

history of assaultive conduct and the violent nature of the vandalism. The defendant

states that the problems “arose out of his domestic relations difficulties,” but we believe

that this circumstance makes the offense more serious. The defendant kicked and

broke a door to a room containing his young daughter in her grandparents’ and

1
We question whether the defendant’s Statement of Evidence sufficiently notifies the
state and the trial judge that an issue to be raised related to the trial court’s claimed failure to make
findings of facts and place upon the record the sentencing considerations that apply. The defendant was
obligated to serve on the state and file with the trial court clerk a “short and plain declaration of the issues”
that he inten ded to pr esent o n appe al. See T.R .A.P. 24(c ). Th e def end ant’s state me nt pro vides , in
essence, the issue of whether the trial court properly applied the sentencing considerations in T.C.A. § 40-
35-102 and whether the trial court abused its discretion in sentencing. We do not view such a statement
to give clea r notice to the state that the defend ant sou ght to attac k the trial co urt’s sente ncing pro cedure s.

8
mother’s house. Although the passions of the moment may be understood, the violent

actions cannot be condoned. In this respect, the sentence to confinement is particularly

suited to deter the defendant and others similarly situated from such conduct in the

future. See T.C.A. § 40-35-103(1)(B).

In consideration of the foregoing, the judgment of conviction is affirmed.

_____________________________
Joseph M. Tipton, Judge

CONCUR:

__________________________
John H. Peay, Judge

__________________________
David G. Hayes, Judge

9