State of Tennessee v. Mark Lipton

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs June 24, 2014

STATE OF TENNESSEE v. MARK LIPTON

Appeal from the Circuit Court for Sevier County

No. 15118-II Richard R. Vance, Judge

No. E2012-02197-CCA-R3-CD - Filed September 4, 2014

The Defendant, Mark Lipton, was convicted by a Sevier County jury of aggravated assault

and received a five-year sentence. On appeal, the Defendant raises the following issues for

our review: (1) whether the evidence was sufficient to support his conviction, citing to the

inconsistencies in witnesses’ testimony and to the “physical facts rule”; (2) whether the trial

court erred in the admission of improper character evidence, alleging both procedural and

substantive errors in that ruling; and (3) whether the trial court properly denied his petition

for error coram nobis relief by concluding that the new witness’s testimony was not credible.1

After reviewing the record and applicable authorities, we affirm the judgment of the trial

court.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which R OBERT W.

W EDEMEYER, J., joined. J OSEPH M. T IPTON, P.J., not participating.

James R. Hickman, Jr., Sevierville, Tennessee (on coram nobis petition and on appeal); and

David S. Wigler, Knoxville, Tennessee (at trial), for the appellant, Mark Lipton.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel;

James B. (“Jimmy”) Dunn, District Attorney General; and George C. Ioannides and Ashley

McDermott, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND

1

For the sake of brevity, we have combined several of the issues presented by the Defendant in his appellate

brief.

This case concerns the November 16, 2009 assault of Henry Sutton (“the victim”) by

the victim’s neighbor, the Defendant, who allegedly, following a verbal altercation with the

victim’s grandson, pointed a gun at the victim threatening to kill him and also hit him in the

face with the pistol. Thereafter, the Defendant was charged with aggravated assault for

intentionally or knowingly causing the victim to reasonably fear imminent bodily by using

or displaying a deadly weapon. See Tenn. Code Ann. §§ 39-13-101, -102. Prior to trial, the

State moved for admission, under Tennessee Rule of Evidence 404(b), of two other acts

committed by the Defendant during the November 16, 2009 episode: one, threats made by

the Defendant against the victim’s grandson, A.S., prior to the incident in question; and two,

an assault on the victim’s wife, Audry Sutton, immediately following the Defendant’s assault

on the victim.2 The Defendant objected to admission of this evidence as improper character

evidence, but following a hearing, the trial court allowed its admission. The Defendant

proceeded to trial in March 2012.

The evidence presented at trial revealed the following facts. Officer Robert

Ellingwood of the White County Sheriff’s Department, who worked on this case as a police

officer for the Sevier County Sheriff’s Department, testified that, at approximately 4:52 p.m.

on November 16, 2009, dispatch received a “fight call” off Bryan View Road and that he

proceeded to that location. While en route, dispatch informed Officer Ellingwood that the

altercation involved an ex-deputy and that someone had been struck by a four-wheeler. Two

911 tapes were admitted into evidence—one call from Natasha Arwood, the victim’s step-

daughter, and the other from the Defendant’s then girlfriend, Anita Owenby.3 These

recordings portrayed two very different scenarios.

Officer Ellingwood, who had only been an officer for approximately six weeks at that

time, was the first to arrive on the scene. Upon Officer Ellingwood’s arrival shortly after

5:00 p.m., he observed the Defendant lying under an all-terrain vehicle or “four-wheeler.”

Officer Ellingwood approached the Defendant and asked him some questions in an attempt

to assess the Defendant’s physical state. The Defendant provided his name and stated that

he had “some pain in his back.” However, the Defendant told Officer Ellingwood that he

was not in need of an ambulance. Officer Ellingwood testified that he did not see any visible

injuries on the Defendant at that time.

Officer Ellingwood asked the Defendant what had happened. According to Officer

Ellingwood, the Defendant provided the following version of events:

2

It is the policy of this court to refer to minor witnesses by their initials; therefore, we will refer to the minor

witness as A.S. throughout this opinion.

3

She had married the Defendant by the time of trial.

-2-

He heard the four-wheeler outside. He went outside and approached, said that

some kids were on a four-wheeler. He approached them. He said that they

was [sic] riding at a high rate of speed without a helmet on the road. He stated

that it was a county road and that they weren’t supposed to be on the road with

a four-wheeler and asked them to put it up, and he went back inside.

....

He said the he went back inside. A few moments, I’m not sure exactly

how much later, but heard it again. He came outside this time, he stated that

an older gentleman, [the victim], was on the four-wheeler at this time, the

second time.

....

He stated that he approached the four-wheeler and [the victim]. He

stated that when he approached [the victim], [the victim] was cussing him.

Stated that [the victim] then knocked him on the ground and ran him over with

a four-wheeler.

....

He stated that after [the victim] ran him over [the victim] walked

around the four-wheeler and picked up a large rock.

....

He stated [the victim] went and picked up a rock and was going to --

standing over top of him and was going to bash his head in on the ground. He

said at this time a young lady, the daughter, a daughter of [the victim] came out

and stopped him at this time.

Officer Ellingwood advised the Defendant to lie still until the ambulance arrived, and the

Defendant again stated that he did not need medical assistance. The Defendant’s demeanor

during this time, as described by Officer Ellingwood, was “[v]ery calm” although the

Defendant did appear “to be in pain from his back.” Officer Ellingwood saw that the

Defendant’s jeans had mud and dirt on them, but they did not, according to Officer

Ellingwood, exhibit any tire marks.

Officer Ellingwood then went across the street to speak with the victim and several

members of the Sutton family. According to Officer Ellingwood, the victim provided the

following recount when asked what had happened:

[The victim] stated that the kids were riding the four-wheeler, that it

had ran [sic] out of gas and they4 were bringing it back to the house. He stated

4

Initially, the victim told Officer Ellingwood that he, A.S., and Ms. Arwood were pushing the four-wheeler

(continued...)

-3-

that [the Defendant] approached them, grabbed the front of the four-wheeler.

. . . [The Defendant] grabbed the grill and stopped them. [The victim] stated

that the [D]efendant was yelling and cussing at them. [The victim] had stated

that the [D]efendant punched him in the face where he showed me on the left

side of his face a mark. It was red like he had been struck in the face. [The

victim] then stated that once [the Defendant] hit him it knocked him off the

four-wheeler and he hit his leg on the front peg. [The victim] then pulled his

pants leg up . . . and showed where he had a cut, a mark on his leg.

....

[The victim] then stated that after he fell on the ground, the [D]efendant

stood over top of him and pulled a pistol out and pointed at him over top of

him.

Officer Ellingwood testified that this was “the first [he] had heard of a pistol[,]” so he

returned to the Defendant and inquired about a handgun. According to Officer Ellingwood,

the Defendant did not mention the weapon during their prior conversation. The Defendant

confirmed at that time that he did have a handgun in the right front pocket of his pants.

Officer Ellingwood retrieved the pistol and placed it in his patrol car.

Officer Ellingwood then returned to the victim and asked him to continue with “the

rest of the story[.]” The victim provided the following details:

[The victim] stated that while the [D]efendant was pointing the gun at him his

grandson, I believe [A.S.], was running up the road. And he stated he pointed

the gun at [A.S.] And then after he pointed the gun at [A.S.] he put the gun

back in his pocket and laid underneath the four-wheeler. He crawled

underneath the four-wheeler.

When asked to describe the victim’s demeanor, Officer Ellingwood said that the victim

“seemed to stutter a lot, [was] very shook up” and “his hands were shaking[.]” Due to the

victim’s strained state, Officer Ellingwood had trouble extracting information from him.

Officer Ellingwood confirmed that there was a “red like” mark on the left side of the

victim’s face and that there was a cut on the victim’s leg. Officer Ellingwood also saw a

rock on the scene “in the ditch line” approximately fifteen to twenty feet from where the

Defendant was lying underneath the four-wheeler.

4

(...continued)

back to their house when the Defendant emerged from his residence.

-4-

When the ambulance arrived on the scene, the Defendant declined medical treatment.

The Defendant told the emergency medical technician that he did not have any injuries,

although he claimed that “they [had] pushed the four-wheeler over him.” According to

Officer Ellingwood, the Defendant remained underneath the four-wheeler even after

emergency medical personnel had left the scene. At some point, Detective Jeff Manis of the

Sevier County Sheriff’s Department helped the Defendant from underneath the four-wheeler.

Det. Manis likewise did not observe any injuries on the Defendant and only saw dirt on the

Defendant’s jeans.

Officer Ellingwood took written statements from the victim, A.S., Ms. Arwood, Ms.

Owenby, and Dana Randolph, a neighbor living on the Defendant’s property. He handed

each individual a piece of paper and asked them to explain what had happened. They wrote

out their own statements while Officer Ellingwood performed other tasks on the scene. The

statements were admitted as exhibits. Officer Ellingwood acknowledged that there were

“inconsistencies between the different groups and what their statements were[.]” No arrest

was made that day.

Det. Manis photographed the scene. He photographed “some dirt and some debris”

on the back of the victim’s shirt and on the back of the victim’s neck. He also photographed

the victim’s face and leg. According to Det. Manis, there was a “red mark” on the victim’s

face, which “appeared to be where someone [had] hit him.” Det. Manis agreed that it was

difficult to see the extent of the mark in the photograph and stated that “it would have

probably been more apparent to the naked eye than it would be in the photo.” The

photographs were admitted into evidence.

Criminal investigator David Hutchinson with the Sevier County District Attorney

General’s office testified that he visited the Suttons’ residence on several occasions prior to

trial. On February 15, 2012, he conducted formal interviews with A.S. and the victim. A.S.

provided Inv. Hutchinson with the following details:

[A.S.] was telling me that he had seen the gun . . . . [The Defendant] had

threatened him, had stopped the boy or had his hand on him. [The Defendant]

didn’t pull the gun on him but he saw the gun. [The Defendant] made it clear

that he had one, put it that way, is what [A.S.] indicated to me. He had a small

child on there with him, a cousin or something like that, and it scared both of

them and they went straight home. As he was pulling in the yard part, his

papaw was coming in in the truck, and he got out and told him that [the

Defendant] threatened him.

....

-5-

. . . Papaw got on the four-wheeler and drove off through the back,

through the yard part that goes over to their property.

Inv. Hutchinson also spoke with the victim. According to Inv. Hutchinson, the victim

said that A.S. appeared “upset and nervous” and that A.S. told the victim that he had been

threatened by the Defendant. The victim confirmed to Inv. Hutchinson that he had received

this information from A.S. before he returned to the Defendant’s residence on the four-

wheeler.

The State also presented Audry Sutton, A.S., and the victim as witnesses. They gave

various accounts of the events in their respective testimony. A.S. claimed that the Defendant

stopped him and his four-year-old cousin when they approached the Defendant’s house on

the four-wheeler. A.S. further testified that the Defendant grabbed him by the shoulder and

that, as the Defendant placed his hand near his pocket, A.S. observed the butt of a gun.

According to A.S., the Defendant threatened him, stating that the next time A.S. came past

the Defendant’s residence, he would kill A.S. A.S. said that, when he returned to his house,

he was stuttering and crying and tried to inform the victim, who was “[j]ust getting out of

[his] truck[,]” about the Defendant’s threat. According to A.S., the victim “was sort of not

understanding” him,5 so the victim got on the four-wheeler and drove to the Defendant’s

house. A.S. saw that the four-wheeler’s motor had died and that, as the victim bent over to

fix it, the Defendant struck the victim in the head with the butt of a gun. According to A.S.,

the victim fell off the four-wheeler and on to the ground from the force of the hit, and once

on the ground, the Defendant placed his knee in the victim’s side and threatened to kill the

victim. A.S. went inside and told his grandmother and aunts about the events. They

proceeded to the scene and tried to move the four-wheeler back to the house. According to

A.S., the Defendant got in front of the females and said, “No, this f’ing four-wheeler ain’t

going nowhere.” A.S. said that he then saw the Defendant hit his grandmother in the chest.

A.S. testified that the Defendant pulled the four-wheeler on top of himself and said, “Oops,

you ran over me.”

The victim testified that A.S. never informed him of the Defendant’s threats.

According to the victim, he rode the four-wheeler that day to check on whether a “perk test”

for a sewage disposal system had been performed on a different part of his property. As he

was returning from that portion of the property, the four-wheeler suddenly stopped running.

The victim testified that, as he was attempting to start the four-wheeler, the Defendant hit

him in the head “hard” with a pistol and knocked him to the ground. The victim said that the

Defendant then placed a knee in his back, put the pistol to his head, and threatened to kill

5

A.S. testified somewhat differently at the Rule 404(b) motion hearing, stating that he told the victim about

the Defendant’s behavior and that the victim then went to find out what had happened.

-6-

him. The victim testified that he was in fear of his life. When the victim was able to stand,

he staggered around a bit and was “stunned” and “dazed” due to the force of the hit. The

victim also claimed that the hit was so hard that his dentures “flew out[.]” The victim

observed his wife attempt to move the four-wheeler from the road, and the Defendant

responded by hitting her in the chest and then crawled underneath the four-wheeler,

according to the victim. The victim denied that he ever touched the Defendant or struck him

with his four-wheeler.

Ms. Sutton testified that, when her grandson returned home from a four-wheeler ride,

he told her that the Defendant had stopped him and threatened him. She told him not to go

near the Defendant’s residence again. According to her, the victim came home

approximately an hour later and went to check on “the back lot” where they were thinking

of adding a mobile home. She thought that A.S. may have tried to speak with the victim

before he left, but she believed that he was not able to do so. While he was gone, A.S. came

inside yelling “he’s hurting Papaw, he’s hurting Papaw.” When she and her daughter, Ms.

Arwood, arrived on the scene, the victim was “staggering around” and holding his head, and

the Defendant was lying in the ditch and kept saying “he hit me[] with the four-wheeler[.]”

According to Ms. Sutton, the victim was dazed but was able to tell her that the Defendant hit

him with a gun. She likewise claimed that the Defendant hit her in the chest as they were

trying to move the four-wheeler and that he then crawled underneath it. She described that

the bruise on the victim’s face changed from blue to black in the following days and said that

the victim still had an “imprint” on the side of his face.

The Defendant himself testified to his version of the events and presented several

witnesses in an effort to corroborate his story, including his wife and his step-daughter. The

Defendant and his wife claimed that it was the victim who instigated the altercation by hitting

and shoving the Defendant and that the four-wheeler was pushed on top of the Defendant by

the Suttons. The Defendant denied ever threatening A.S. or hitting Ms. Sutton. The

Defendant further claimed that, immediately upon Officer Ellingwood’s arrival, he advised

him that he was carrying a weapon, despite Officer Ellingwood’s testimony to the contrary.

The Defendant also said that he later sought medical treatment for his injuries, receiving two

shots for “soreness” in his lower back and his leg.

Based upon the foregoing, the jury found the Defendant guilty as charged. The trial

court sentenced the Defendant as a Range I, standard offender to five years’ incarceration,

which was suspended to supervised probation.

The Defendant filed a petition for writ of error coram nobis on January 23, 2013,

claiming “a newly found witness as to new information which was not and could not have

been available at the trial of said cause.” Attached to the petition was the affidavit of Gary

-7-

Withey, a tenant of the Defendant In the affidavit, Mr. Whitey averred that his mobile home

was located near the Suttons’ residence. He claimed that they were “loud neighbors,” whom

he could hear “talking all of the time.” Mr. Whitey conveyed that he overheard the following

two incidents:

(1) That on the night of 10-19-12 at around 10:30 p.m., I went outside to

smoke. While outside I noticed a group of kids drinking next to a campfire.

The kids were talking loudly and I overheard [A.S.] stand up and brag about

how he and his papaw lied and caused [the Defendant] to lose his job.; and

(2) That on the night of 10-24-12 at around 11:00 p.m., I overheard a

telephone conversation where [the victim] told [A.S.] to keep his mouth shut

about the situation.

The trial court held a hearing on the petition, and Mr. Withey testified that he lived

in a “twelve-foot camper” approximately 100 to 200 yards from the Defendant’s residence

and that the Suttons’ “property line [was] about fifteen to twenty-five feet probably,” so he

was “[n]ot far” from the Suttons’ home. He also provided a similar account of the two

occurrences as that provided in his affidavit. According to Mr. Withey, he wrote down the

substance of what he heard following these two incidents. A handwritten document dated

October 27, 2012, was admitted as an exhibit.

On cross-examination, Mr. Withey said that, several weeks after he moved in to the

Defendant’s camper, the Defendant told him about the case6 against the Suttons and warned

him “to be aware of them [sic] people[.]” According to Mr. Withey, the Defendant also

showed him pictures of the Suttons, warning him not to “mess with the neighbors” and to

“stay away from them[.]” The Defendant did not inform Mr. Withey that he had been

convicted of assaulting the victim with a firearm. When asked if he was aware of any

reward, Mr. Withey stated that he had no knowledge of such at the time he came forward

with this information, only learning of a possible reward “the other day” from the Defendant.

Mr. Withey claimed that he had not seen the reward posters that had been posted around

town. A copy of the reward poster was admitted as an exhibit.

A.S., Ms. Sutton, and the victim testified at the coram nobis hearing, denying all of

Mr. Withey’s claims. Ms. Sutton testified that she only recalled one campfire on her property

during the relevant time period and that A.S. was not present at that event. A.S. testified,

affirming that he told the truth at trial, and denying that he said he lied to get the Defendant

in trouble. A.S. also denied being present for a campfire at his grandparents’ property in

October 2012. The victim also affirmed that he told the truth at trial and denied ever having

6

Both parties had instigated civil litigation against one another.

-8-

any such phone call conversation. According to both the victim and his wife, they did not

have a “landline” in the house, and the victim went to bed around 9:30 p.m., making it

impossible for the victim to have been on the phone at the time Mr. Withey alleged. The

Suttons’ cellular telephone records for October 24, 2012, were entered as an exhibit and

showed the last recorded phone call at 2:53 p.m.

At the conclusion of the hearing, the trial court denied coram nobis relief. This appeal

followed.

ANALYSIS

On appeal, the Defendant challenges (1) the sufficiency of the evidence supporting

his conviction; (2) the admission of Rule 404(b) character evidence; and (3) the denial of his

petition for writ of error coram nobis. We will address each in turn.

I. Sufficiency of the Evidence

The Defendant argues that the evidence presented at trial was insufficient to support

his conviction for aggravated assault. Specifically, the Defendant cites to “a multitude of

internal contradictions” in the State’s witnesses’ testimony, noting as particularly

troublesome the testimony of the A.S. and the victim. The Defendant also contends that the

victim described “an extremely violent blow to the side of his face/head[,]” which description

was “inconsistent with the lack of injury to his face/head,” in violation of the “physical facts

rule.” The State responds that sufficient evidence was presented for the jury to find beyond

a reasonable doubt that the Defendant was guilty of the offense and that the “physical facts

rule” is inapplicable under the facts of this case.

An appellate court’s standard of review when a defendant questions the sufficiency

of the evidence on appeal is “whether, after viewing 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 (1979). This

court does not reweigh the evidence; rather, it presumes that the jury has resolved all

conflicts in the testimony and drawn all reasonable inferences from the evidence in favor of

the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571

S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness credibility, conflicts in

testimony, and the weight and value to be given to evidence were resolved by the jury. See

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

A guilty verdict “removes the presumption of innocence and replaces it with a

presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the

evidence is insufficient to support the jury’s verdict.” Id.; State v. Tuggle, 639 S.W.2d 913,

-9-

914 (Tenn. 1982). “This [standard] applies to findings of guilt based upon direct evidence,

circumstantial evidence, or a combination of [both] direct and circumstantial evidence.”

State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). The standard of

proof is the same, whether the evidence is direct or circumstantial. State v. Dorantes, 331

S.W.3d 370, 379 (Tenn. 2011). Likewise, appellate review of the convicting evidence “‘is

the same whether the conviction is based upon direct or circumstantial evidence.’” Id.

(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). The duty of this court “on

appeal of a conviction is not to contemplate all plausible inferences in the [d]efendant’s

favor, but to draw all reasonable inferences from the evidence in favor of the State.” State

v. Sisk, 343 S.W.3d 60, 67 (Tenn. 2011).

As applicable here, aggravated assault occurs when a person intentionally or

knowingly causes another to reasonably fear imminent bodily injury by using or displaying

a deadly weapon. See Tenn. Code Ann. §§ 39-13-101, -102. A person acts intentionally

when his conscious objective or desire is to engage in the conduct or cause the result. Tenn.

Code Ann. § 39-11-106(a)(18). A person acts knowingly when he is aware of the nature of

his conduct or that the circumstances exist or that he is aware that his conduct is reasonably

certain to cause the result. Tenn. Code Ann. § 39-11-106(a)(20). A deadly weapon is

anything made, designed, or used for the purpose of inflicting death or serious bodily injury.

Tenn. Code Ann. § 39-11-106(a)(5).

The evidence, taken in a light most favorable to the State, shows that the Defendant

confronted the victim following an incident between the Defendant and the victim’s

grandson, that the Defendant hit the victim in the head with a pistol, and that the Defendant

then placed that pistol to the victim’s head, threatening to kill him. The victim stated that he

feared for his life. While the Defendant is correct that there are multiple conflicts in the

State’s witnesses’ testimony, this is a classic case of credibility which falls to the province

of the jury. The jury credited the State’s witnesses and chose not to believe the Defendant’s

version of events. The evidence is sufficient to allow a rational trier of fact to conclude that

the Defendant used or displayed a deadly weapon causing the victim to reasonably fear

imminent bodily injury.

Additionally, the Defendant, citing the “physical facts rule, ” argues that the described

blow to the victim’s face was inconsistent with the injury observed in the photograph

admitted at trial and that, therefore, the victim’s testimony was “fatally flawed” and should

be disregarded. The physical facts rule is “‘the accepted proposition that in cases where the

testimony of a witness is entirely irreconcilable with the physical evidence, the testimony can

be disregarded.’” State v. Allen, 259 S.W.3d 671, 679 (Tenn. 2008) (quoting State v.

Hornsby, 858 S.W.2d 892, 894 (Tenn. 1993)). When a witness’s testimony “cannot possibly

be true, is inherently unbelievable, or is opposed to natural laws, courts can declare the

-10-

testimony incredible as a matter of law and decline to consider it.” Id. (quotation omitted).

For the physical facts rule to apply, the testimony “must be unbelievable on its face, i.e.,

testimony as to facts or events that the witness physically could not have possibly observed

or events that could not have occurred under the laws of nature.” Id. at 680. For example,

testimony that a witness “saw the sun set in the east” could be disregarded. Id.

The physical facts rule, however, is a power “that should be used sparingly.”

Hornsby, 858 S.W.2d at 895. When the testimony “is capable of different interpretations,

the matter should be left for the jury to decide as the sole arbiter of credibility.” Id. The

determination of whether there are inconsistencies in testimony, the reconciliation of

conflicts in testimony, and the determination of how this might affect a witness’s credibility,

are within the province of the jury. Id. “[T]he improbability of the truth of the testimony,

which justifies rejection under the physical facts rule, cannot rest upon any theory involving

the consideration of the comparative credibility of the witnesses.” Id. at 896 (quotations

omitted). The physical facts rule may not be invoked “where its application depends upon

assumptions or calculations based upon estimates as to speed, distance, time, and other such

uncertain matters in the movement of objects.” Allen, 259 S.W.3d at 680 (quotations

omitted).

The Defendant claims that the victim’s testimony about the nature of the blow was

incredible; however, as previously noted, determining questions of the credibility of the

witnesses and inconsistencies in testimony are within the province of the jury. The victim’s

testimony on its face was not unbelievable, and both Officer Ellingwood and Det. Manis

testified that they observed an injury to the victim’s face consistent with a hit. We conclude

that the physical facts rule is inapplicable here. The Defendant is not entitled to relief on this

issue.

II. Character Evidence

The Defendant raises several challenges to the trial court’s ruling on the State’s

motion to introduce character evidence under Rule 404(b) for “other purposes.” Specifically,

he contends (1) that the trial court “erred by holding a hearing and issuing a ruling on a

motion which was not in the record”; (2) that the trial court “failed to sufficiently state on the

record the material issue, the ruling and the reasons for admitting testimony” as to the alleged

assaults on A.S. and Audry Sutton; (3) that the probative value of the evidence was not

outweighed by its danger of unfair prejudice to the Defendant; and (4) that the trial court

erred in giving a Rule 404(b) instruction to the jury. The State responds that the trial court

properly admitted the evidence and instructed the jury accordingly.

Tennessee Rule of Evidence 404(b) provides as follows:

-11-

Evidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show action in conformity with the character

trait. It may, however, be admissible for other purposes. The conditions

which must be satisfied before allowing such evidence are:

(1) The court upon request must hold a hearing outside the jury’s

presence;

(2) The court must determine that a material issue exists other than

conduct conforming with a character trait and must upon request state on the

record the material issue, the ruling, and the reasons for admitting the

evidence;

(3) The court must find proof of the other crime, wrong, or act to be

clear and convincing; and

(4) The court must exclude the evidence if its probative value is

outweighed by the danger of unfair prejudice.

See also State v. Thacker, 164 S.W.3d 208, 240 (Tenn. 2005); State v. Parton, 694 S.W.2d

299, 302 (Tenn. 1985). The term “other purposes” in the aforementioned rule, permitting

evidence of a defendant’s prior crimes, wrongs, or acts to be admitted, has been defined to

include motive, intent, guilty knowledge, identity of the defendant, absence of mistake or

accident, a common scheme or plan, completion of the story, opportunity, and preparation.

State v. Berry, 141 S.W.3d 549, 582 (Tenn. 2004) (citing State v. Robert Wayne Herron, No.

M2002-00951-CCA-R3-CD, 2003 WL 151201, at *2 (Tenn. Crim. App. Jan. 22, 2003)).

If a trial court substantially complies with the procedural requirements of Rule 404(b),

we will review the trial court’s determination for an abuse of discretion. Thacker, 164

S.W.3d at 240 (citing State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997); State v. Baker,

785 S.W.2d 132, 134 (Tenn. Crim. App. 1990)). However, if a trial court fails to

substantially comply with the requirements of the rule, then the trial court’s decision should

be afforded no deference by the reviewing court. DuBose, 953 S.W.2d at 652.

In this case, the trial court conducted a pretrial hearing at the State’s request for

admission of testimony about the Defendant’s threats against A.S. and about the Defendant’s

assault on Ms. Sutton. First, the Defendant argues for plain error relief on appeal because

a written motion by the State is not contained in the technical record; thus, he contends that

the trial court “erred by holding a hearing and issuing a ruling on” any Rule 404(b) motion

made by the State.7 Specifically, the Defendant submits, “As Tenn[essee] R[ule of]

7

We note that appellate counsel was substituted for trial counsel after the hearing on the motion for new

trial was complete. Accordingly, the issue of a written motion, or lack thereof, was not raised in the motion

(continued...)

-12-

App[ellate] P[rocedure] 24(a) requires that ‘all papers filed in the trial court’ be placed in the

technical record on appeal[,] then the presumption on appeal must be that no such motion

was filed[,] and thus[,] the [trial c]ourt’s ruling with regard [to] such a motion is plain error.”

The Defendant continues that he was denied his “right to full notice of any issue to be heard”

and that he was substantially prejudiced by the testimony received at the motion hearing.

The record belies the Defendant’s motion that no written motion was ever filed. As

the State correctly points out, trial counsel, at the motion hearing, made an explicit statement

indicating his receipt of such a document: “Before I address that issue, the State had also,

in their notice, indicated a second incident after . . . .” The prosecutor then interrupted and

detailed the second incident involving Ms. Sutton. Simply because the written document did

not become a part of the technical record, as it should have, does not mean that there is a

presumption on appeal that none was ever filed. Otherwise, the provisions of Tennessee

Rule of Appellate Procedure 24 which provide for supplementation of the record with

material “omitted from the record,” “improperly included,” or “misstated” therein would be

meaningless. See Tenn. R. App. 24(a), (e).

The Defendant’s assertion that the lack of a written motion denied him his right to be

heard is incongruous with the fact that a pretrial hearing was held and testimony was

received. Furthermore, the Defendant provides no authority that a written motion was

required in this instance, and Rule 404 does not specifically establish such a requirement.

Finally, this court has held that a pretrial hearing on a Rule 404(b) motion is not required,

further alleviating the need for any written motion. See State v. Denise Diane Brannigan,

No. E2011-00098-CCA-R3-CD, 2012 WL 2131111, at *9-10 (Tenn. Crim. App. June 13,

2012) (concluding that a trial court is not required to have a Rule 404(b) hearing prior to

empaneling a jury and noting that Rule 404(b) motions are frequently decided on the basis

of statements or arguments of counsel setting out the proposed evidence). On this ground,

the Defendant’s argument is devoid of any merit.

Next, the Defendant argues that the trial court did not sufficiently provide its rationale

for admitting testimony regarding the assaults on A.S. and Ms. Sutton on the record. See

Tenn. R. Evid. 404(b)(2). The Defendant acknowledges that the trial court did determine that

material issues other than conduct conforming to a character trait existed, but he submits that

the trial court failed to explain or elaborate how evidence of these two assaults accomplished

the stated ends.

7

(...continued)

for new trial and is, thus, waived; any relief on appeal would be via plain error review. See Tenn. R. App.

P. 36(b).

-13-

The trial court held a pretrial hearing and heard testimony from A.S. A.S. provided

details about the Defendant’s assault on him, occurring before the Defendant’s altercation

with the victim, and the Defendant’s assault on his grandmother, occurring after said incident

involving the victim. At the conclusion of this testimony, the trial court ruled that the

evidence was admissible, reasoning as follows:

The question of the credibility of the witness would be a matter for the

jury. He would be subject to cross examination . . . . You may question him

about his prior statements. All those issues go to credibility. But taking the

testimony that he has testified to today, it is abundantly clear that the sequence

of events that this witness describes was really all part and parcel of a chain of

events that link together the same time and place within minutes, that one

event led to the other, that they were connected, that -- although no charges

were placed, the evidence that he testified to would support additional charges.

Introduction of that evidence under these circumstances in this trial would then

preclude the State from charging him with those additional offenses under the

-- because they could have been, they should have been, they weren’t, they

were tried together, heard together at the same time, the State would be barred

from coming back and charging him with assault on this child, assault on the

grandmother. The State has given up that option. But they are interconnected.

They provide motive, they provide intent, they provide identity with respect to

whether or not this defendant possessed a firearm, pointed a firearm. This

witness testified to all of this. So they’re intertw[in]ed and interconnected that

had he been charged with assault on the young man and assault on the

grandmother, they could have and should have been joined together for trial.

. . . But again, they can be cross-examined, impeached as any other witness.

But that’s not the test of the admissibility of the evidence on the front end.

Contrary to the Defendant’s assertion, the trial court, as evidenced by its statements

above, did state on the record the material issues, its ruling, and the reasons for admitting the

testimony about the assaults on Ms. Sutton and A.S. We note that the trial court did not

make explicit findings that the evidence clearly and convincingly showed that the assaults

occurred or that the probative value of the evidence outweighed its prejudicial effect,

findings enumerated in Rule 404(b). However, the Defendant did not, at the hearing, and

does not on appeal, contest or make a specific objection to the findings of the trial court, or

lack thereof, in these regards. Rule 404(b) only requires such specific findings “upon

request.” See Tenn. R. Evid. 404(b)(2). Based on our review, we conclude that the trial

court substantially complied with the procedural requirements of Rule 404(b), and our review

is thus subject to the deferential abuse of discretion standard. See, e.g., State v. Jarvis Harris,

No. W2006-02234-CCA-R3-CD, 2007 WL 2409676, at *8 (Tenn. Crim. App. Aug. 24,

-14-

2007) (determining that a finding that the probative value of the evidence outweighed the

danger of unfair prejudice to the defendant was implicit in the trial court’s ruling and, thus,

applying the abuse of discretion standard); State v. Michael Bailey, No.

W2005-01815-CCA-R3-CD, 2007 WL 763212, at *5 (Tenn. Crim. App. Mar. 13, 2007)

(finding substantial compliance in the trial court’s application of Rule 404(b) despite the

failure to explicitly find that the proof of the other crime was clear and convincing because

the finding was implicit in the trial court’s explanation for allowing the challenged

testimony).

As outlined above, the Defendant here was indicted for intentionally or knowingly

using or displaying a deadly weapon causing another to reasonably fear imminent bodily

injury. See Tenn. Code Ann. §§ 39-13-101, -102. The State’s theory was that the Defendant

became enraged when A.S. rode his four-wheeler, accompanied by his young cousin, past

the Defendant’s house, causing the Defendant to lash out at the entire Sutton family. For the

purpose of establishing the intent element of aggravated assault, “‘[o]ne’s actions are

circumstantial evidence of his intent.’” State v. Holland, 860 S.W.2d 53, 59 (Tenn. Crim.

App. 1993) (quoting State v. Barker, 642 S.W.2d 735, 737 (Tenn. Crim. App. 1982)).

Moreover, “it is within the authority of the jury to infer the defendant’s intent . . . from

surrounding facts and circumstances.” State v. Brown, 311 S.W.3d 422, 432 (Tenn. 2010)

(quoting State v. Lowry, 667 S.W.2d 52, 57 (Tenn.1984)); see also State v. Inlow, 52 S.W.3d

101, 105 (Tenn. Crim. App. 2000) (“Intent, which can seldom be proven by direct evidence,

may be deduced or inferred by the trier of fact . . . from all the circumstances of the case in

evidence.”). The Defendant sought to establish that he was attacked by the Sutton family,

rather than as the State suggested, that he attacked the Sutton family. Thus, the Defendant

placed his intent squarely at issue.

A.S. testified that the Defendant threatened him while displaying a weapon, prior to

hitting the victim with the pistol. Ms. Sutton testified that the Defendant, unprovoked, hit

her in the chest as she was trying to defuse the situation and move the four-wheeler back to

her residence. The evidence that the Defendant attacked A.S. and Ms. Sutton was extremely

probative of the Defendant’s motive, intent, and opportunity and relevant to rebut the defense

theory that the Defendant was victimized by the Sutton family.

The trial court also concluded that the uncharged assaults against Ms. Sutton and A.S.

were part of a single criminal episode or of the same criminal transaction. The same criminal

transaction category can be described as the allowance of other criminal acts evidence to

provide the “full story” of the offense for which the defendant is on trial. See Neil P. Cohen

et al., Tennessee Law of Evidence, § 404[13] (6th ed. 2011). For example, a bank robber

steals a car while fleeing from the bank; the car theft is admissible in the trial of the robbery

to describe the whole event. Id. However, “crimes admitted as part of the ‘same transaction’

-15-

should be limited to those so inextricably connected in time, place, or manner that the jury

would be unable to comprehend the essential nature of the charged crime without hearing the

evidence of the ‘other’ crime.” Id. (citing cases). It is only when “exclusion of the evidence

would create a chronological conceptual void” that would likely result in confusion on the

material issues and “sacrifice the jury’s understanding” that same criminal transaction

evidence is admissible. State v. Gilliland, 22 S.W.3d 226, 272 (Tenn. 2000). The uncharged

acts against A.S. and Ms. Sutton were relevant to explain what happened that day, providing

the jury with the “full story.”

Moreover, we hold that the probative value of this evidence is not outweighed by the

danger of unfair prejudice, despite the Defendant’s contention otherwise. For these reasons,

we conclude that the trial court did not abuse its discretion in permitting the testimony under

Rule 404(b) relative to the uncharged assaults.

Additionally, the trial court gave the jury a limiting instruction as to how to consider

this evidence. See T.P.I. — Crim. 42.10. The Defendant’s argument in this regard is that

the evidence was not admissible and, therefore, it was error to include the instruction in the

jury charge. However, because we have determined that the trial court did not abuse its

discretion in admitting the challenged evidence, the instruction was properly given.

III. Coram Nobis

On appeal, the Defendant argues that the trial court “applied an incorrect standard

when denying relief at the conclusion of the coram nobis hearing[,]” placing an “extra

burden” on him and his ability to secure coram nobis relief. Specifically, the Defendant

points to the court’s statement that the standard for relief includes “a test for whether ‘the

[trial] testimony was false and that the new testimony is true.’” The State replies that the trial

court properly denied relief after determining that Mr. Withey was not a credible witness.

A writ of error coram nobis is an extraordinary remedy available only under very

narrow and limited circumstances. State v. Mixon, 983 S.W.2d 661, 666 (Tenn. 1999). A

writ of error coram nobis lies “for subsequently or newly discovered evidence relating to

matters which were litigated at the trial if the judge determines that such evidence may have

resulted in a different judgment, had it been presented at the trial.” Tenn. Code Ann. § 40-

26-105 (2006); see State v. Hart, 911 S.W.2d 371, 374 (Tenn. Crim. App. 1995). The

purpose of a writ of error coram nobis “is to bring to the court’s attention a previously

unknown fact that, had it been known, would have resulted in a different judgment.” Wilson

v. State, 367 S.W.3d 229, 234-35 (Tenn. 2012). The decision to grant or deny the writ rests

within the discretion of the trial court. Teague v. State, 772 S.W.2d 915, 921 (Tenn. Crim.

App. 1988). “A court abuses its discretion when it applies an incorrect legal standard or its

decision is illogical or unreasonable, is based on a clearly erroneous assessment of the

-16-

evidence, or utilizes reasoning that results in an injustice to the complaining party.” Wilson,

367 S.W.3d at 235. Our supreme court has stated the standard of review as “whether a

reasonable basis exists for concluding that had the evidence been presented at trial, the result

of the proceedings might have been different.” State v. Vasques, 221 S.W.3d 514, 525-28

(Tenn. 2007) (citation omitted).

Here, the trial court denied coram nobis relief, reasoning as follows:

I’ve listened very carefully to the testimony and the statements of

counsel. I’ve considered the witnesses who testified, the exhibits that have

been filed, the statements and arguments of counsel, the facts that were

presented at trial, and from all of that the [c]ourt must conclude, first of all.

The writ which the [c]ourt granted for a petition for coram nobis is an

extraordinary procedure. It is intended for those circumstances where there is

no other relief available, and of course newly discovered evidence, recanted

testimony are the usual grounds for applying for a writ. The standard of

review really has three parts.

First of all, the court trial must be reasonably assured that the testimony

-- and this generally applies to recanted testimony -- but that the testimony was

false and that the new statement is true. That the defendant was unable to

learn about the new testimony until after the trial. Of course that’s always the

case where you have a recantation or newly discovered evidence. And that the

defendant was unable to learn of the falsity of the testimony until after the trial.

And given all that, the [c]ourt must then conclude that the jury might have

reached a different conclusion if this evidence were presented to it.

This was a three-day trial. Both [the victim] and [A.S.] were cross-

examined as vigorously as just about any witnesses I’ve ever seen. [The

Defendant] had very able, experienced, very outstanding counsel representing

him, brought out inconsistencies, contradictory statements, contradictory

testimony by both of these witnesses throughout their testimony.

The jury was instructed, as in every case, that they were free to believe

all, none or part of any witness’s testimony. The jury is the finder of fact and

the determiner of credibility of witnesses. But also there were other facts.

There was an independent witness, an officer who testified, whose

testimony corroborated in many respects the testimony of [A.S.] His

observations of the [D]efendant and his placement under the four wheeler,

again, contradicted his own testimony. But through all of that, it’s the jury’s

function to determine the facts and look at all of it together, and from that they

reached their verdict, which this [c]ourt approved.

-17-

Now, it is presented that Mr. Withey had two things to tell us. First,

that on October 19th, while outside his camper, he observed some teenagers

drinking, partying, and overheard [A.S.] say that he had lied and gotten [the

Defendant] in trouble to where he lost his job, or words to that effect. He

claims that he made a note of that that night and later reduced it to further

writing . . . . He then overheard, on October 24th, 2012, the [victim] talking

on a cell phone outside, talking to someone, and saying words to the effect that

he told [A.S.] to quit talking about -- let’s see, to keep his mouth shut and stop

running his mouth. Those are the two issues raised by Mr. Withey’s testimony.

Now, on the other hand, we have Ms. Sutton, who testified that when

they had that particular bonfire that [A.S.] wasn’t there. [A.S.] says he wasn’t

there at that party. [The victim] says he didn’t make such a phone call.

But we also have phone records, telephone records from Mr. and Mrs.

Sutton, [the victim’s] telephones which show that on October 24th, the certain

date that Mr. Withey testified to, that on that date the last phone call recorded

by either phone was at 2:53 p.m. Mr. Withey said that it was down in the

evening, 10:30 or thereabouts. That totally refutes his testimony.

We also have circumstances that Mr. Withey is a tenant of [the

Defendant’s], lives basically on the same property. It’s a little distance, but the

same place, and has since last October. We have evidence that shows that

reward fliers had been put out ever since the original trial offering a five

thousand dollar reward for information. It’s also interesting that in that time,

about a year ago, apparently this is the only information that has been brought

forward, despite reward posters being put out throughout the county. That the

only information that’s been presented here came from [the Defendant’s] own

tenant, who lives right next to him. Mr. Withey also said that when he first

moved in, that he was shown photographs of the Suttons by [the Defendant],

told to keep an eye on them. All of these things, of course, raise serious

questions about his credibility.

The conversations that Mr. Withey related were nonspecific. He says

he heard [A.S.] say that he lied. But in what respect? What? What

particulars? What specifics? He doesn’t say. Again, there’s proof to the

contrary that says that [A.S.] wasn’t there.

Now, in reviewing all of that proof, the fact that these witnesses were

extensively cross-examined and contradictions brought out, inconsistencies

brought out, and the jury made a finding in view of the facts that I’ve just

related concerning the inconsistencies today -- that is the telephone records,

whether [A.S.] was even present at that bonfire or not -- in the first part of the

test the [c]ourt must be satisfied that the evidence exists. I think the evidence

is sparse, at best; inconclusive, and to put it kindly, inaccurate, at worst.

-18-

So in the first part where it says the trial judge must be reasonably

assured that the evidence shows that the testimony at trial was false and that

the new testimony is true, the [c]ourt cannot be assured of that, reasonably or

otherwise, that the testimony and the evidence is unreliable. And even if it

were presented at trial, the [c]ourt does not find that the jury might have

reached any different conclusion. It was cumulative at the very best, if it had

been available.

So for all these reasons the [c]ourt finds that the petition is not well

taken, that the evidence presented is unreliable. It’s contradicted by competent

evidence, that is the phone records. The statements claimed were vague,

without any particulars, and therefore the petition must be dismissed.

The Defendant argues that trial court applied the incorrect standard:

The [c]ourt’s recitation at ruling of its decision-making rubric included a test

for whether “the [trial] testimony was false and that the new testimony is true.”

This extra burden for the [Defendant] to prove does not appear in the statute

and inappropriately challenges [the Defendant’s] ability to secure statutorily-

authorized relief.

Recanted testimony may qualify as newly discovered evidence and justify the granting

of a writ of error coram nobis. Mixon, 983 S.W.2d at 672. Under the Mixon standard, newly

discovered recanted testimony will only justify the granting of a writ of error coram nobis

and a new trial if

(1) the trial court is reasonably well satisfied that the testimony given by the

material witness was false and the new testimony is true; (2) the defendant was

reasonably diligent in discovering the new evidence, or was surprised by the

false testimony, or was unable to know of the falsity of the testimony until

after trial; and (3) the jury might have reached a different conclusion had the

truth been told.

Id. at 673 n.17. This court has previously held that this test is equally appropriate for newly

discovered evidence of a material witness’s prior statements that are inconsistent with his or

her trial testimony. See William Paul Eblen v. State, No. E2012-01117-CCA-R3-CO, 2013

WL 4677619, at *6 (Tenn. Crim. App. Aug. 28, 2013) (citing State v. William Paul Eblen,

No. E2002-01221-CCA-R3-CD, 2003 WL 22225636, at *10 n.3 (Tenn. Crim. App. Sept. 26,

2003)), perm. app. denied, (Tenn. Jan. 14, 2014). Thus, the trial court properly applied the

Mixon standard contrary to the assertions of the Defendant.

-19-

Here, the trial court made the requisite findings and determined that it could not be

reasonably satisfied that the testimony given by A.S. and the victim at trial was false and that

the new testimony of Mr. Withey was true or that the jury might have reached a different

conclusion had Mr. Whithey testified at trial. Mr. Withey was a tenant of the Defendant’s

and was warned by the Defendant to be on the lookout for the Suttons at the outset of his

tenancy. A.S. and the victim denied Mr. Withey’s claims that these conversations took place.

Testimony from Ms. Sutton and A.S. indicated that A.S. was not present for a such a

campfire. Phone records showed no phone call to or from the Suttons during the time in

question. Additionally, these witnesses were vigorously cross-examined at trial. As the trial

court noted, Mr. Withey’s statements were vague and did not provide any particulars.

Accordingly, we conclude that the trial court did not abuse its discretion in denying error

coram nobis relief on the basis that the new witness was not credible.

CONCLUSION

In sum, we conclude that the evidence is sufficient to sustain the Defendant’s

conviction, that the trial court did not err in admitting the Rule 404(b) character evidence,

and that the denial of coram nobis was proper. Accordingly, we affirm the judgment of the

trial court.

________________________________

D. KELLY THOMAS, JR., JUDGE

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