State of Tennessee v. Tamabe Trinise Leke

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

July 13, 2010 Session

STATE OF TENNESSEE v. TAMABE TRINISE LEKE

Direct Appeal from the Circuit Court for Madison County

No. 09-352 Donald H. Allen, Judge

No. W2009-02583-CCA-R3-CD - Filed October 15, 2010

The Defendant-Appellant, Tamabe Trinise Leke, was convicted by a Madison County jury

of disorderly conduct, a Class C misdemeanor, and resisting arrest, a Class B misdemeanor.

She was sentenced to thirty days for disorderly conduct and to six months for resisting arrest.

The trial court ordered these sentences to be served concurrently. On appeal, Leke

challenges the sufficiency of the evidence for both convictions. Upon review, we affirm the

judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which T HOMAS T.

W OODALL and J OHN E VERETT W ILLIAMS, JJ., joined.

George M. Googe, District Public Defender; Gregory D. Gookin, Assistant Public Defender,

for the Defendant-Appellant, Tamabe Leke.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant

Attorney General; James G. (Jerry) Woodall, District Attorney General; and Brian Gilliam,

Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

Background. On December 12, 2008, Leke, along with her two-month-old daughter,

attended a birthday party for two children of a friend, ages three and six. There were several

young children and adults at the birthday party. Officers with the Jackson Police Department

came to the party, spoke with the hostess, and gained consent to enter the apartment. The

officers were looking for the brother of the hostess, who was alleged to have been involved

in a robbery that occurred earlier that day. The hostess advised the officers that her brother

was in a back room of the apartment. The officers proceeded to the back room, which was

the same room where the children were located, to talk to the robbery suspect. One of the

officers eventually used mace on the robbery suspect. A struggle ensued. The other people

at the party were ordered outside of the apartments and a large crowd gathered. Multiple

police units were called to the scene to disperse the crowd and Leke was one, among others,

who was arrested for disorderly conduct and resisting arrest. The following detailed

testimony was adduced at trial.

Trial. Officer Kevin Mooney of the Jackson Police Department testified that he

responded to a call for assistance at the apartment complex on the day of the offense. Officer

Mooney said all available units were directed to that location. When he arrived at the

apartment complex, he said there were “[s]everal police cars and a lot of people.” Officer

Mooney stated that people were “yelling and screaming” and that “everything was chaotic.”

He estimated that between thirty and fifty people were standing around the parking lot and

along the apartments. Officer Mooney was directed by Sergeant Mike Landreth to help break

up the crowd. He stated:

When I first got there, it was apparent something was going on. It was

a lot of people. A lot of yelling. We kind of identified two people that were

the main instigators so to speak. They were marching back and forth,

stomping, throwing their hands up, yelling and it appeared from a distance that

they were trying to entice the crowd to act up even more.

Officer Mooney identified Leke as one of the main instigators. He approached Leke

and told her that she needed to leave the parking lot. She responded, “‘We don’t have to do

anything you Mother F-ckers [sic] say.’” Officer Mooney repeated his order to disperse.

Leke responded that she could not leave because the police vehicles blocked the exit. Officer

Mooney instructed her to sit in her vehicle until the police left. Leke again protested that she

did not have to follow the orders of the police. At that point, Officer Mooney told Leke that

she was under arrest. He testified that the basis for the arrest was disorderly conduct.

Officer Mooney explained that the scene at the apartment complex was extremely volatile

and that Leke added to the hysteria by trying to incite the crowd. He stated, “ I would ask

her a question or make a statement that she needed to move or needed to go and she would

just keep repeating, “‘We don’t have to do what these mother f-ckers [sic] say.’”

Officer Mooney testified that Leke resisted his efforts to handcuff her. He stated:

I reached out for her hand and obviously I’m a lot larger than she is and

she pulls back away from my hand three good times with all her might. At that

point another individual that I’ve yet to identify jumped across both of us and

then other officers came on and we had to separate the group and . . . I believe

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Officer [Marvin] Rodish was the one that ended up handcuffing her and taking

her into custody.

Officer Mooney testified that Leke was forced to the ground before being handcuffed. He

said Leke “was violently resisting the entire time.” Officer Mooney estimated that it took

between fifteen and twenty seconds to handcuff Leke. He stated that more than twenty

officers ultimately reported to the apartment complex. Officer Mooney said none of the

people in the parking lot tried to physically confront him.

Sergeant Mike Landreth of the Jackson Police Department was the shift supervisor

that evening. He responded to the call for assistance at the apartment complex. He described

the situation upon his arrival:

It was just mass confusion. I didn’t know what had gone on at that time. I saw

a lot of patrol cars over there. I couldn’t tell you exactly how many officers.

I’m going to guess 15 to 20, maybe extra cars were over there at the time. I

got out of the car. It was confusion. People were everywhere. It was a lot of

screaming and yelling. I told the officers to move in and start breaking up the

crowd and to tell everybody to move on and break it up. I didn’t know if our

people had actually even got out of the apartment yet with the suspects. I just

knew it was a bad situation at that point.

Sergeant Landreth testified that several scuffles broke out amongst the crowd and that

multiple arrests were made. Sergeant Landreth did not see Leke involved in a scuffle.

Officer Marvin Rodish of the Jackson Police Department also responded to the request

for assistance at the apartment complex. Upon arrival, he was directed by Sergeant Landreth

to break up the crowd. Officer Rodish stated that he told the people in the crowd to leave the

area. Officer Rodish testified that the majority of the crowd did not heed the order to

disperse.

Officer Rodish said he observed Officer Mooney attempting to arrest Leke. He stated

that Officer Mooney “was having some difficulty due to the fact that [Leke] was fighting

him.” Leke’s “hands were flailing around the air and [she] was basically not following his

commands.” Officer Rodish went to assist Officer Mooney with the arrest. Officer Rodish

stated:

I attempted to gain control of Ms. Leke. At that time me and Officer Mooney

went to the ground with her. When we went to the ground, she was still

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fighting. She had her arms under her stomach which was on the ground and

would not give us her arms to place her under arrest.

Officer Rodish said Leke was eventually placed in handcuffs after a minute of fighting.

On cross-examination, Officer Rodish acknowledged that he used some force in

handcuffing Leke. Officer Rodish used a “minimum amount of force” in grabbing her arms

and pulling them behind her back.

The defense called Ashley Douglas as its first witness. She testified that she was at

the apartment complex for the birthday party. She temporarily left the apartment that hosted

the party. When she returned, several police officers were in the apartment. Douglas saw

“a lot of fighting” in the apartment. She said Leke was not fighting. Douglas testified that

two individuals from the apartment were taken to a police vehicle. A crowd developed in

the parking lot, and it began yelling “bad stuff” at the officers. The officers told the crowd

to leave.

Douglas testified that she witnessed Leke’s arrest. Leke was instructed by the officers

to be quiet. Leke’s brother tried to get Leke to leave the parking lot; however, several

officers “rushed” Leke before her brother could grab her. Douglas said the police struck

Leke’s brother in the head. On cross-examination, Douglas testified that three or four

officers assisted with Leke’s arrest. Douglas did not believe that the officers had trouble

arresting Leke because several officers rushed her at once.

Leke testified that she also attended the birthday party at the apartment complex. She

confirmed that the officers came to the party. She further stated that one of the officers

maced one of the suspects before placing him in handcuffs. Leke said a fight broke out in

the hallway causing the officers to call for backup.

Leke testified that people began to gather outside when the robbery suspect was taken

to the police vehicle. She said, “Everybody was screaming.” Leke was angry because the

officer sprayed mace near her child. She asked the police, “‘Why do ya’ll have to mace him

while my baby was in the room?”’ The police instructed Leke to leave the parking lot. She

explained that the exit to the parking lot was blocked by police vehicles. Leke said the police

ordered her to go inside or sit in her vehicle. She told an officer that she was going to get her

children. When Leke then turned her back, an officer grabbed her arm and pushed her into

a brick wall. Leke said she was forced to the ground. She struggled with the officer and

started cussing. Leke said only one of her arms was handcuffed. She swung her other arm

in an effort to get the officer off of her. Leke was asked what her name was and she cursed

at the officer in response. Leke said she struggled with the police for a minute before she

was handcuffed. She denied that she was trying to instigate the crowd.

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On cross-examination, Leke denied that she was yelling at the police. She stated, “I

was yelling at my sister. I said, ‘We don’t have to be treated like this.’ I said, ‘They didn’t

have to do it like that.’ We were talking to the people in the crowd.” Leke claimed she did

not struggle with the police until after she was handcuffed. She stated that after an officer

forced her to the ground, he put his knee in her back. At that point, Leke said she started

cussing at the officer. She denied telling the people in the crowd that they did not have to

follow the orders of the police. Leke believed the police tried to mace her child.

Following the testimony at trial, the jury convicted Leke of disorderly conduct and

resisting arrest. She filed a motion for new trial that was denied. Leke filed a timely notice

of appeal.

ANALYSIS

Leke claims the evidence was insufficient to support her convictions for disorderly

conduct and resisting arrest. First, she argues that her conviction for disorderly conduct was

improper because she did not yell at the police until after she was arrested. She also claims

she was frustrated by the police officers’ use of mace near her child. Second, Leke contends

that her conviction for resisting arrest was improper because her actions did not rise to the

level of a criminal offense. In response, the State claims the evidence supports both

convictions. It asserts that Leke committed disorderly conduct because she engaged in

threatening behavior that caused a hazardous situation. The State also argues that Leke

resisted arrest by obstructing the police officers’ efforts to handcuff her. Upon review, we

agree with the State.

The State, on appeal, is entitled to the strongest legitimate view of the evidence and

all reasonable inferences which may be drawn from that evidence. State v. Bland, 958

S.W.2d 651, 659 (Tenn. 1997). When a defendant challenges the sufficiency of the evidence,

this court must consider “whether, after reviewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,

2789 (1979). Similarly, Rule 13(e) of the Tennessee Rules of Appellate Procedure states,

“Findings of guilt in criminal actions whether by the trial court or jury shall be set aside if

the evidence is insufficient to support a finding by the trier of fact of guilt beyond a

reasonable doubt.” The requirement that guilt be found beyond a reasonable doubt is

applicable in a case where there is direct evidence, circumstantial evidence, or a combination

of the two. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990) (citing State

v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977) and Farmer v. State, 343 S.W.2d 895, 897

(Tenn. 1961)). The trier of fact must evaluate the credibility of the witnesses, determine the

weight given to witnesses’ testimony, and must reconcile all conflicts in the evidence. State

v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996).

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When reviewing issues regarding the sufficiency of the evidence, this court shall not

“reweigh or reevaluate the evidence.” State v. Philpott, 882 S.W.2d 394, 398 (Tenn. Crim.

App. 1994) (citing State v. Cabbage, 571 S.W.2d 832, 836 (Tenn. 1978), superseded by

statute on other grounds as stated in State v. Barone, 852 S.W.2d 216, 218 (Tenn. 1993)).

This court has often stated that “[a] guilty verdict by the jury, 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 State.” Bland, 958 S.W.2d at 659 (citation omitted). A guilty verdict also

“removes the presumption of innocence and replaces it with a presumption of guilt, and the

defendant has the burden of illustrating why the evidence is insufficient to support the jury’s

verdict.” Id. (citation omitted).

Leke was convicted of disorderly conduct under Tennessee Code Annotated section

39-17-305. This section states:

(a) A person commits an offense who, in a public place and with intent to

cause public annoyance or alarm:

(1) Engages in fighting or in violent or threatening behavior;

(2) Refuses to obey an official order to disperse issued to maintain public

safety in dangerous proximity to a fire, hazard or other emergency; or

(3) Creates a hazardous or physically offensive condition by any act that serves

no legitimate purpose.

(b) A person also violates this section who makes unreasonable noise that

prevents others from carrying on lawful activities.

T.C.A. § 39-17-305 (2008).

Here, the evidence supports the conviction for disorderly conduct under section

39-17-305(a)(3). Several officers described the scene at the apartment complex as volatile

and chaotic. Officer Mooney testified that an arrest had recently been made and a crowd of

thirty to fifty people had accumulated in the parking lot. Officer Mooney said the people in

the crowd were “yelling and screaming.” The police ordered the crowd to disperse; however,

according to Officer Rodish, “the majority of the crowd was staying put where they were.”

Douglas testified that the crowd was yelling “bad stuff” at the officers. Sergeant Landreth

said several scuffles broke out and multiple arrests were made. Officer Mooney testified that

Leke exacerbated the situation by trying to incite the crowd. He said Leke was “flailing

about, marching, stomping back and forth, yelling and screaming.” Officer Mooeny testified

that Leke repeatedly yelled to the crowd, “‘We don’t have to do anything these mother f-

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ckers [sic] say.’” Officer Mooeny said she continued to make these exclamations even after

the police ordered the crowd to disperse. The foregoing testimony shows that Leke tried to

incite an already volatile crowd, thereby creating a hazardous condition that served no

legitimate purpose. By telling the crowd that it did not have to follow the police officers’

orders, Leke clearly acted with the intent to cause public annoyance or alarm.

We are unpersuaded by the two arguments set forth in Leke’s brief. First, she argues

that her conduct was excusable because she did not yell at the police until after she was

arrested. This claim is not supported by the record as Officer Mooney testified that Leke’s

disorderly conduct occurred before he initiated the arrest. Leke’s second argument is that her

conduct was justified because she was frustrated with the police officer’s use of mace near

her child. The record shows that Leke’s two month old daughter was in the same room when

an officer maced a robbery suspect. It does not show, however, that the child was harmed

in any way by the officers’ conduct. Although we sympathize with Leke’s concern over her

two-month old daughter, Leke’s “frustration” is not an excuse to disregard a lawful command

from a police officer. We conclude that a rational jury could have found Leke guilty of

disorderly conduct. Accordingly, she is not entitled to relief on this issue.

Leke was also convicted of resisting arrest under Tennessee Code Annotated section

39-16-602(a). This section states:

It is an offense for a person to intentionally prevent or obstruct anyone known

to the person to be a law enforcement officer, or anyone acting in a law

enforcement officer’s presence and at the officer’s direction, from effecting a

stop, frisk, halt, arrest or search of any person, including the defendant, by

using force against the law enforcement officer or another.

T.C.A. § 39-16-602(a) (2008).

The evidence shows that Leke intentionally obstructed the police officers’ efforts to

conduct her arrest. Officer Mooney testified that when he attempted to handcuff Leke, she

pulled away from him “three good times with all her might.” Leke was eventually forced to

the ground. Officer Mooney testified that she “was violently resisting the entire time.”

Officer Rodish observed Officer Mooney attempting to arrest Leke. He said Officer Mooney

“was having some difficulty due to the fact that [Leke] was fighting him.” Officer Rodish

testified that Leke’s “hands were flailing around the air and [she] was basically not following

[Officer Mooney’s] commands.” Officer Rodish went to assist Officer Mooney with the

arrest. Officer Rodish stated:

I attempted to gain control of Ms. Leke. At the time me and Officer Mooney

went to the ground with her. When we went to the ground, she was still

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fighting. She had her arms under her stomach which was on the ground and

would not give us her arms to place her under arrest.

Leke acknowledged that she struggled with the officer for a minute after she was forced to

the ground. She stated that after one of her arms was handcuffed, she started swinging her

other arm in an effort to get the officer off of her back. In considering this evidence in the

light most favorable to the State, Leke intentionally obstructed the police’s efforts to arrest

her.

The only remaining question under section 39-16-602(a) is whether Leke used force

against the police while obstructing the arrest. The term “force” is defined as “compulsion

by the use of physical power or violence and shall be broadly construed to accomplish the

purposes of this title.” T.C.A. § 39-11-106(a)(12) (2008). The State claims the

circumstances of this case are similar to those in State v. Mary Margaret Boyd. No.

M2004-00580-CCA-R3-CD, 2005 WL 885091 (Tenn. Crim. App., at Nashville, Apr. 15,

2005). There, the police responded to a roadside accident. Id. at *1. An officer asked the

defendant, who was visibly intoxicated, what her name was. Id. The defense provided her

name before cursing at the officer. Id. This court described the events that followed:

When Officer Roberts attempted to arrest and handcuff the defendant she

became belligerent and the defendant and the officer “wallowed around all

over the ground.” The defendant tried to strike the officer with her fist, but

was unsuccessful. The defendant “actively resisted the arrest by twisting,

turning and pulling away.”

Id. This court held that the defendant used sufficient force against the officer. Id. at *3. In

reaching its decision, it stated:

When this Court has previously addressed this issue, we have held that

struggling with officers and flailing one’s arms while officers are attempting

to handcuff an arrestee is sufficient use of force by the arrestee to sustain a

conviction for resisting arrest under Tennessee Code Annotated section

39-16-602. State v. Daniel M. Tidwell, No. 01C01-9807-CC-00288, 1999 WL

436840, at *3 (Tenn. Crim. App., at Nashville, June 30, 1999).

Id.

In considering State v. Mary Margaret Boyd, we agree with the State that Leke used

an adequate degree of force against the police. We recognize that unlike the defendant in

State v. Mary Margaret Boyd, there was no testimony that Leke attempted to hit an officer.

Nonetheless, Officer Mooney testified that Leke “violently” resisted his efforts to handcuff

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her. Officer Mooney stated that when he initially tried to apply the handcuffs, Leke pulled

away “three good times with all her might.” Officer Rodish said Leke was forced to the

ground, but continued to fight with the officers. Leke admitted that she started swinging her

free arm in an effort to get an officer off of her back. In light of this testimony, we hold that

sufficient evidence was presented that Leke used force against the police. She is not entitled

to relief on this issue.

CONCLUSION

Based on the foregoing, the judgments of the trial court are affirmed.

______________________________

CAMILLE R. McMULLEN, JUDGE

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