State of Tennessee v. Michael Stewart

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs October 6, 2009

STATE OF TENNESSEE v. MICHAEL STEWART

Direct Appeal from the Criminal Court for Shelby County

No. 08-02042 Chris Craft, Judge

No. W2008-02680-CCA-R3-CD - Filed February 26, 2010

The Defendant-Appellant, Michael Stewart, was convicted of destruction or interference with

utility lines, a Class E felony, following a bench trial in the Criminal Court of Shelby

County. He was sentenced as a multiple offender to three years and three months in the

county workhouse. On appeal, Stewart claims the evidence was insufficient to support his

conviction because the State did not rebut his defenses of duress and necessity beyond a

reasonable doubt. Upon review, we affirm the judgment of the trial court.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which A LAN E. G LENN and

D. K ELLY T HOMAS, J R., JJ., joined.

Robert W. Jones, District Public Defender; Barry W. Kuhn, Assistant Public Defender,

Memphis, Tennessee, for the Defendant-Appellant, Michael Stewart.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel

General; William L. Gibbons, District Attorney General; and Bryan Davis, Assistant District

Attorney General, for the Appellee, State of Tennessee.

OPINION

Facts. Stewart was indicted by the Shelby County Grand Jury for destruction or

interference with utility lines in violation of Tennessee Code Annotated section 39-14-

411(a). He waived his right to a jury trial. At the start of the bench trial, Stewart asserted

the defenses of duress and necessity. The following testimony was presented during the

bench trial:

Officer Donald Wicks of the Memphis Police Department testified that he was driving

in his patrol car when he saw Stewart “chopping at a utility pole with an instrument in his

hand.” This sighting occurred around 2:30 p.m. on December 2, 2007. Officer Wicks said

he “observed [Stewart] for a few seconds and he was continuously chopping at the pole.”

Officer Wicks testified that Stewart used a tool which looked like “a jack-handle type

instrument.” Officer Wicks approached Stewart and asked what he was doing. Stewart

responded that a baby was locked in a car, and he needed wire to unlock the door. Officer

Wicks testified that no one was in the immediate area, so he did not investigate Stewart’s

claim about the baby. Officer Wicks did notice that a “line leading from the pole had been

cut.” He did not recall, however, whether the wire was still attached to the pole. Stewart was

placed in the patrol car, and several other officers were called to the scene.

Scott Locke, an agent for the Memphis Light, Gas and Water division, testified that

he responded to a call regarding the damaged utility pole. Locke inspected the pole and

determined the pole’s grounding wire was damaged and no longer functional. The wire was

still attached to the pole, but it was flattened and pulled. Locke said the wire was made of

copper, and valued at $4.00 per pound. Steward attempted to cut a two-foot section of the

wire that was probably worth about $6.00. Locke testified that he spoke with Stewart, who

was detained in a patrol car. Stewart said he needed the wire to help a woman break into her

car. Later, Locke testified that Stewart “didn’t say anything about a baby, or a woman, he

just needed a stiff piece of wire to break into a car.”

Rena Davis testified that on the afternoon of Stewart’s arrest, she was driving in her

car with her two-year old grandson. Her grandson was secured in a car-seat in the back seat

of her car. Her tires needed air, so she stopped at a laundry mat that had an air dispenser.

She turned off the engine, but accidently left the keys in the ignition. Davis stepped out of

her car and closed the door. She then realized that she had locked herself out of the car.

Davis tried to get her grandson to unlock the car, but she was unsuccessful. She did not have

access to a phone. Davis estimated that she stood outside of her car for about twenty minutes

before another car pulled up to use the air dispenser. Davis said Stewart stepped out of the

car. She explained her situation to him, and he offered to help. Stewart went into the

laundry mat, and he returned with a hanger which he used to try to unlock the door. Stewart

was not able to open the door, so he went back into the laundry mat. He returned with a

thicker hanger, but he still was unable to unlock the car. Davis estimated that Stewart spent

twenty to twenty-five minutes trying to open the door. Stewart then walked away from the

laundry mat without saying where he was going or whether he was coming back. Davis

assumed he would return because his car was still parked near the air dispenser; however,

Stewart did not return. Davis eventually found someone with a phone, and she contacted her

daughter. Her daughter had a spare key, and she was able to unlock the car.

Davis said she felt her grandson was in danger. Her car was parked on a small slope

and her emergency brake was not on. Davis said she worried that her grandson would get

out of his car-seat and set the car in motion. Nonetheless, Davis testified that she did not

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believe her grandson was in “physical danger.” She did not recall acting frantic or upset

during the incident or telling Stewart that she was afraid of what might happen. Davis said

her windows were rolled up, but the inside of her car “wasn’t too hot, or too cold.” She

chose not to break a car window because she worried her grandson might be harmed by the

glass.

Stewart testified that he stopped at the air dispenser because one of his tires was low.

He immediately noticed a woman standing next to the air dispenser talking to a baby inside

of her car. The woman had locked herself out, and she was trying to get the baby to open the

door. Stewart offered to help the woman, and he went into the laundry mat to find a hanger.

The first hanger he found was too thin, so he returned to the laundry mat and found a thicker

hanger. Stewart was still unable to unlock the car. Stewart said he told the woman that he

was going to a nearby filling station to find help; however, in looking down the street, he

noticed a wire hanging off a utility pole. Stewart believed he could unlock the car with the

wire, so he went to his car and got his jack-iron. Stewart began striking the wire with the

jack-iron when he was spotted by the police. Stewart said he told the officer that he needed

the wire to rescue a baby who was trapped in a nearby car. The officer did not, however,

investigate his claim.

Stewart was asked whether he thought the child was in danger. He responded:

Well, I’ve got several grandkids, myself and I didn’t know it was her

grand-baby, I thought it was her baby, so I just went into the Superman mode

and went to try to help, that’s all I did. That’s all I did, I just started trying to

help her off the top of my head. I wasn’t thinking of nothing.

No, I didn’t think the baby was in any danger, I just wanted to get the

child out, you know. I was just helping, you know.

Stewart denied that he was trying to steal copper. He stated, “I was just thinking about

getting the kid. The thought of doing something wrong was not in my mind at that time.”

Stewart did, however, say that during the incident, he thought the baby “was in a dangerous

situation.” Stewart admitted that he damaged the utility pole by striking it with his jack-iron.

Following the proof at trial, the trial court found Stewart guilty of destruction or

interference with utility lines. With regards to the defenses of duress and necessity, the trial

court stated:

Now, the question is going to be, whether or not duress, or necessity

was disproved by the state beyond a reasonable doubt.

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Looking at duress and I am putting this on the record for any review,

there are four elements for duress. The first is, that a third person is threatened

with harm, which is present, imminent, impending and of such a nature as to

induce a well grounded apprehension of death, or serious bodily injury. This

is death, or serious bodily injury, if the act is not done.

There is no proof in the record, at all that this third person was

threatened with death or serious bodily injury. There’s really no proof that it

was present, imminent, impending, because we have no idea how much time

passed from the time that the defendant, if his testimony is to be believed, tried

to open this car with a car coat hanger and then left and then later on, at some

point was banging on this wire, not a horseshoe, but on the wire, flattening it.

...

So there’s no proof that this child was at any time in imminent

impending danger of death, or serious bodily injury.

His grandmother says that it was not a particularly hot day, hot or cold.

The only reason her voice was raised at all was that she was trying to get her

child to pull the button open to her closed window.

The second element that’s present in duress is that the threatened harm

is continuous throughout the time the act is being committed.

Well, we don’t know what was happening to that child, whether or not

the child was in or out of the car when this defendant was destroying utility

property.

The third element, the harm is one from which the third person can’t

withdraw in safety. Obviously, the child could not withdraw.

But four, the desirability and urgency of avoiding the harm clearly

outweighed, according to ordinary standards of reasonableness, the harm

sought to be prevented by the law prescribing the conduct.

I mean, if this man had this wrench, all he had to do is break the

window out in the car. He could have just taken the wrench and smashed the

window out and gotten that baby out in just a second. Rather than go blocks

away and start destroying property, which could have killed someone, had

their [sic] been a lightning strike and it was not properly grounded.

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So duress - and even the defendant testified that he was not concerned

that the baby was in immediate danger. So this duress defense, I find, the state

has disproved beyond a reasonable doubt.

As far as necessity there are two elements to necessity. The first one

is that the defendant reasonably believed the conduct was immediately

necessary to avoid imminent harm.

There is no proof that the defendant believed it was immediately

necessary. And his testimony and also in the grandmother’s testimony, he

tried a couple of times with a coat hanger. It’s very unclear to me how he

could get this thick utility wire through the window, if it was three-quarters of

an inch thick. But, he at no time testified that it was necessary to avoid

imminent harm. And also, he left not even telling her that he was going to

come back and we don’t know how much time passed.

And number two, the desirability and urgency of avoiding the harm

clearly outweighed, according to ordinary standard of reasonableness the harm

sought to be prevented by the law prescribing the conduct.

I cannot find in the proof that’s been proved that whenever you have a

car that you can’t get into and there’s a child in the car, who’s not in any

imminent danger of serious bodily injury, that you could destroy other

people’s property to attempt to open the door.

Clearly, he could have just smashed the window out with his lug

wrench. So I find that necessity, also, has not [been] shown by the defense

beyond a reasonable doubt.1

I do not have a reasonable doubt of his guilt of the elements of the

offense and I do not have a reasonable doubt as to whether or not he acted out

of duress or necessity.

1

We note the trial court misstated that the defendant had the burden of proving the defense of

necessity beyond a reasonable doubt. We do not believe, however, that this misstatement affected the trial

court’s conclusion about either defense. This is evident by the trial court’s statement, “I do not have a

reasonable doubt as to whether or not he acted out of duress or necessity.” Also, the trial court correctly

stated the burden of proof for the defense of necessity at the start of its findings.

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Stewart subsequently filed a motion to dismiss, arguing the trial court should have

found that he acted under duress and out of necessity. This motion was denied. Stewart filed

a timely notice of appeal.

ANALYSIS

Stewart claims the evidence was insufficient to support his conviction because the

State failed to negate his defenses of duress and necessity beyond a reasonable doubt. The

State argues that the evidence is legally sufficient to support Stewart’s conviction for

destruction or interference with a utility line.

Standard of Review. 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).

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.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997) (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).

Stewart was charged with destruction or interference with utility lines. This offense

is defined under Tennessee Code Annotated section 39-14-411(a) as follows:

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(a) It is unlawful for a person to knowingly tap, cut, burn, break down, injure,

destroy, or otherwise interrupt or interfere with the current, lines, cables, poles,

towers, fixtures or appliances utilized to furnish service to the general public

by any telephone or telegraph company, or electric light or power company

engaged in furnishing communication, light, heat or power by electricity; or

in any way to injure, remove, destroy or interfere with any gas fixtures or

appliances.

Duress and necessity are both defenses under the Tennessee Code, and not affirmative

defenses. See T.C.A. §§ 39-11-203, -504, -601, -609 (2007); see also State v. Green, 995

S.W.2d 591, 605 (Tenn. Crim. App. 1998); State v. Culp, 900 S.W.2d 707, 710 (Tenn. Crim.

App. 1994). Consequently, the defendant is not required to prove either defense by a

preponderance of the evidence. Culp, 900 S.W.2d at 710. Rather, if the defendant

introduces admissible evidence supporting a defense, the State is required to negate the

defense beyond a reasonable doubt. See T.C.A. § 39-11-201(a)(3) (2007). Here, the trial

court stated at the start of its findings, “Now, the question is going to be, whether or not

duress, or necessity was disproved by the state beyond a reasonable doubt.” It appears,

therefore, that the trial court found that Stewart introduced admissible evidence supporting

the defenses of duress and necessity. As a result, the issues on appeal are whether sufficient

evidence was presented that the State negated these defenses beyond a reasonable doubt.

I. Duress. Stewart claims the State did not rebut his defense of duress beyond a

reasonable doubt. He argues that his efforts to remove the wire were justified because

“[h]arm was being threatened to the grandchild of Mrs. Davis” who was in a locked car. In

response, the State asserts “the present case is simply not the type of situation this defense

addresses, as [is] clear from the sentencing commission comments to this statutory defense.”

The State contends the grandchild was not threatened by anyone with harm and that other

legal methods were available to free the grandchild.

The defense of duress is codified at Tennessee Code Annotated section 39-11-504,

which states:

(a) Duress is a defense to prosecution where the person or a third person is

threatened with harm that is present, imminent, impending and of such a nature

to induce a well-grounded apprehension of death or serious bodily injury if the

act is not done. The threatened harm must be continuous throughout the time

the act is being committed, and must be one from which the person cannot

withdraw in safety. Further, the desirability and urgency of avoiding the harm

must clearly outweigh the harm sought to be prevented by the law proscribing

the conduct, according to ordinary standards of reasonableness.

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(b) This defense is unavailable to a person who intentionally, knowingly, or

recklessly becomes involved in a situation in which it was probable that the

person would be subjected to compulsion.

Based on the Comments of the Tennessee Sentencing Commission for section 504,

the defense of duress was not intended to apply to the circumstances of this case. The

Comments state, “This rare defense is present when a defendant commits an offense because

another person threatens death or serious injury if the offense is not committed.” See also

State v. Bledsoe, 226 S.W.3d 349, 356 (Tenn. 2007). Here, no one threatened that Davis’

grandchild would be harmed if Stewart did not commit an illegal act. Stewart was not

compelled by anyone to damage the utility wire; rather, he testified that he went into

“Superman mode” in trying to help the child. The Comments also state that for the defense

to be applicable, “there must be no reasonable opportunity to escape the compulsion without

committing an offense.” See also State v. Robinson, 622 S.W.2d 62 (Tenn. Crim. App.

1980). In this case, legal means were available to protect the grandchild, yet Stewart chose

to commit an illegal act by his own volition. The trial court properly found that the State

disproved the defense of duress beyond a reasonable doubt. Accordingly, Stewart is not

entitled to relief on this issue.

II. Necessity. Stewart argues that the State failed to negate the defense of necessity

beyond a reasonable doubt. He claims “the child was in imminent danger, and the

desirability and urgency of avoiding harm to the child clearly outweighed the harm to the

utility wire.” The State asserts that no evidence was presented that the destruction of the

utility wire was necessary, or that the possible harm to Davis’ grandchild was imminent.

Upon review, we agree with the State.

The defense of necessity is defined under Tennessee Code Annotated section

39-11-609, which states:

Except as provided in §§ 39-11-611--39-11-616, 39-11-620 and 39-11-621,

conduct is justified, if:

(1) The person reasonably believes the conduct is immediately

necessary to avoid imminent harm; and

(2) The desirability and urgency of avoiding the harm clearly

outweigh the harm sought to be prevented by the law

proscribing the conduct, according to ordinary standards of

reasonableness.

In distinguishing the defense of necessity from duress, this court has stated:

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While the defense of duress covered the situation where the coercion had its

source in the actions of other human beings, the defense of necessity, or choice

of evils, traditionally covered the situation where physical forces beyond the

actor’s control rendered illegal conduct the lesser of two evils. Thus, where

A destroyed a dike because B threatened to kill him if he did not, A would

argue that he acted under duress, whereas if A destroyed the dike in order to

protect more valuable property from flooding, A could claim a defense of

necessity.

State v. Green, 995 S.W.2d 591, 606 (Tenn. Crim. App. 1998) (quoting United States v.

Bailey, 444 U.S. 394, 409-10, 100 S. Ct. 624 (1980)).

Stewart contends the damage caused to the utility wire was needed to avert possible

harm to Davis’ grandson. His basic argument is that his conduct was the lesser of two evils.

As stated above in Green, this claim is properly raised as one of necessity, rather than duress.

Stewart’s claim of necessity, however, was not supported by the proof at trial. Stewart failed

to show that he believed his actions were necessary to prevent possible harm to the child.

Stewart was asked, “[C]ould you have done anything else, other than what you did to try to

help [Davis]?” Stewart responded, “Yes, I could have.” Steward did testify that he believed

the child “was in dangerous situation;” however, no evidence was presented that Stewart

could not have pursued other, legal options to help. The proof further showed that the

possible harm to Davis’ grandson was not imminent. Davis testified that she did not believe

her grandson was in “physical danger,” and she did not recall acting frantic or upset during

the incident. Stewart similarly stated, “I didn’t think the baby was in any danger.” Finally,

the “desirability and urgency of avoiding the harm” to the child did not outweigh the damage

to the utility pole, “according to ordinary standards of reasonableness.” See T.C. A. §

39-11-609(2). As discussed above, the proof showed that harm to the child was not

imminent and the actions taken by Stewart were not necessary; thus, the desirability and

urgency of avoiding any potential harm was minimal. In contrast, an agent for the Memphis

Light, Gas and Water division testified that the pole’s grounding wire was damaged to the

point that it was no longer functional. The trial court properly found that the State disproved

the defense of necessity beyond a reasonable doubt. Accordingly, Stewart is not entitled to

relief on this issue.

CONCLUSION

Based on the foregoing, the judgment of the trial court is affirmed.

___________________________________

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CAMILLE R. McMULLEN, JUDGE

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