State of Tennessee v. Arthur Jay Hirsch

09/28/2017

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

July 18, 2017 Session

STATE OF TENNESSEE v. ARTHUR JAY HIRSCH

Appeal from the Circuit Court for Lawrence County

No. 32518 Stella Hargrove, Judge

No. M2016-00321-CCA-R3-CD

The defendant, Arthur Jay Hirsch, appeals his Lawrence County Circuit Court jury

convictions of driving on a suspended license, unlawfully carrying a weapon with the

intent to go armed, and violating both the vehicle registration and financial responsibility

laws, claiming that the statute proscribing the unlawful carrying of a weapon is

unconstitutional, that the rulings of the trial court evinced a bias against him and resulted

in a violation of due process principles, and that the trial court lacked subject matter

jurisdiction. Discerning no error, we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOHN

EVERETT WILLIAMS and TIMOTHY L. EASTER, JJ., joined.

Arthur Jay Hirsch, Lawrenceburg, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant

Attorney General; Kim Helper, District Attorney General; and Tammy Rettig, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

The Lawrence County Grand jury charged the defendant with one count of

driving while his license was cancelled, suspended, or revoked; one count of carrying a

firearm with the intent to go armed; one count of violating the motor vehicle registration

requirement; and one count of violating the financial responsibility law.

The evidence adduced at the defendant’s December 2015 jury trial

established that, on the evening of December 10, 2013, Tennessee Highway Patrol

Sergeant Jeff Reed first observed the defendant driving “a vehicle . . . that had a strange

registration plate on the rear of the vehicle.” When Sergeant Reed saw that the vehicle

also lacked a registration plate on the front bumper, he followed the vehicle, “[a] red Ford

F-350 with a steel flatbed on the vehicle,” into a nearby parking lot, where he made

contact with the defendant. When Sergeant Reed asked about the registration plate, the

defendant pointed to the plate on the rear of his vehicle. When asked “about his real

registration plate,” the defendant said “that he was not required to have one.” Sergeant

Reed testified that the plate affixed to the rear bumper of the defendant’s vehicle was

“not an official government plate recognized anywhere within Canada, United States, or

Mexico.” According to Sergeant Reed, the plate, which contained a reference to Little

Shell Pembina Band along with “some alpha numerics and some numbers,” looked

“almost” like “an official registration plate.” A photograph of the registration plate was

exhibited to Sergeant Reed’s testimony and displayed to the jury.

When Sergeant Reed asked to see the defendant’s driver’s license, the

defendant “started to explain . . . why he . . . was not required to have a driver’s license in

regards to the laws of God, the laws of man and thus he was not required to have a

driver’s license.” The defendant possessed no registration papers for his vehicle or proof

of insurance and provided a similar explanation to Sergeant Reed for having neither.

At that point, Sergeant Reed inquired whether the defendant had any

weapons on his person or in the vehicle, and defendant said that he did. The defendant

said that he did not have a permit for the weapon, a small pistol that he had stored in a

small water cooler. The weapon was loaded.

Sergeant Reed issued a citation to the defendant for driving while his

license was suspended. The officer later obtained from the State of Virginia a certified

document reflecting the status of the defendant’s driver’s license. That document, which

established that the defendant’s driver’s license had been suspended, was exhibited to

Sergeant Reed’s testimony.

At the conclusion of Sergeant Reed’s testimony, the State rested.

Following a Momon colloquy, the defendant, who was acting pro se, elected to put on

proof in the form of a sworn statement before the jury.

In his statement, which the trial court allowed in lieu of direct examination,

the defendant acknowledged that he did not comply with the financial responsibility or

motor vehicle registration laws, that he did not have a valid driver’s license, and that he

had in his possession a loaded handgun as described by Sergeant Reed. He explained that

he had discovered, through his own research, that, because he was not engaged in

commerce, he was not required to have a driver’s license or obtain vehicle registration.

He insisted that it was his God-given, unalienable right to travel freely and arm himself

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for protection and that the State of Tennessee could not interfere with those rights by

requiring that he register his vehicle, obtain a driver’s license, register his firearm, or

obtain a permit to carry his firearm. The defendant insisted that he possessed the weapon

solely for protection and that he “wasn’t intending to go armed against anybody.” He

acknowledged, however, that he was prepared to fire the weapon should the need arise.

He said that the financial responsibility law was unconstitutional because it forced him to

enter into an insurance contract against his will. The defendant added that the

requirement that he utilize his Social Security number to obtain a driver’s license or

handgun carry permit violated his religious beliefs because the Social Security number

was a precursor to the “mark of the beast” described in the Book of Revelation.

When cross-examined, the defendant said that he had originally possessed a

valid Virginia driver’s license but that, after he made these discoveries regarding his right

to travel freely, he “took the steps to notify the Department of Motor Vehicles in Virginia

. . . that [he] was rescinding [his] signature off the original application.” He also turned

in his driver’s license along with an affidavit in August 2003. Shortly thereafter, he was

ticketed for speeding in the State of Virginia. The defendant insisted that because he

“had submitted all this paperwork severing [his] relationship with the Department of

Motor Vehicles,” “they don’t have administrative authority” to ticket him for a traffic

violation or to suspend his driver’s license. The defendant acknowledged that

documentation established that he was convicted of speeding but insisted that the

conviction did not count because he “was free of the requirement to get a license and the

registration and so forth.” The defendant also claimed that the certified driving record

exhibited to Sergeant Reed’s testimony “is questionable” because it indicates that he was

“a commercial driver” when he was never “driving in commerce.”

In a nutshell, the defendant explained that requirements that he obtain a

driver’s license, car insurance, and a handgun carry permit and that he register his vehicle

violate those rights accorded to him by the Bible, the Declaration of Independence, and

the state and federal constitutions.

Following the defendant’s testimony, the jury convicted the defendant of

driving on a suspended license, unlawfully carrying a firearm with the intent to go armed,

and failing to comply with the motor vehicle registration and financial responsibility

requirements.

The defendant did not file a motion for new trial but did file a timely notice

of appeal, which brings us to our first consideration. In its brief, the State argues that the

defendant has waived plenary consideration of all of his claims by failing to file a motion

for new trial. The defendant moved this court to suspend the rules of criminal procedure

to allow appellate consideration of his claims.

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Initially, we note that the State’s assertion that the defendant’s failure to file

a motion for new trial bars all of the defendant’s claims on appeal is incorrect. The

failure to file a motion for new trial bars only those claims for which a new trial is the

remedy. As to those claims for which the remedy is a dismissal of the charges, the failure

to file a motion for new trial does not operate as a bar to appellate relief. The defendant

raises two such claims, both of which strike at the jurisdiction of the trial court: that the

statute prohibiting the carrying of a firearm with the intent to go armed is unconstitutional

on its face1 and that the trial court lacked subject matter jurisdiction in this case.

With regard to the remainder of the defendant’s myriad claims, the State is

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correct. His failure to file a motion for new trial acts as a bar to plenary appellate review

of those claims. See Tenn. R. App. P. 3(e) (“[I]n all cases tried by a jury, no issue

presented for review shall be predicated upon error in . . . [any] ground upon which a new

trial is sought, unless the same was specifically stated in a motion for a new trial;

otherwise such issues will be treated as waived.”); see also State v. Martin, 940 S.W.2d

567, 569 (Tenn. 1997) (holding that a defendant relinquishes the right to argue on appeal

any issues that should have been presented in a motion for new trial but were not raised

in the motion); State v. Johnson, 970 S.W.2d 500, 508 (Tenn. Crim. App. 1996) (“Issues

raised for the first time on appeal are considered waived.”). As indicated, the defendant

has asked this court to suspend the rules of procedure to allow full consideration of all of

the claims he presents in this appeal. Although Rule 2 of the Rules of Appellate

Procedure provides this court with the authority to “suspend the requirements or

provisions of any of these rules in a particular case,” Tenn. R. App. P. 2, the rules of

criminal procedure prohibit the extending of the time for filing a motion for new trial, see

Tenn. R. Crim. P. 45(b)(3) (“The court may not extend the time for taking any action

under Rules of Criminal Procedure 29, 33 and 34, except to the extent and under the

conditions stated in those rules.”). Because the time for filing a motion for new trial

cannot be extended, because an untimely filed motion for new trial is a nullity, and

because the failure to file a timely motion for new trial bars plenary review of those

issues for which the remedy is a new trial, suspending our rules does not avail the

defendant the relief he desires.

1

A claim that the proscriptive statute is facially unconstitutional amounts to a claim that the trial

court lacks jurisdiction to impose a conviction under the statute. See State v. Dixon, 530 S.W.2d 73, 74

(Tenn. 1975) (holding that a facially unconstitutional statute is “void from the date of its enactment” and

cannot form the basis for a “valid conviction”).

2

The defendant alleges the deprivation of his constitutional rights both prior to and during the trial

under all manner of theories, none of which, even if true, would result in a dismissal of the charges. As a

result, these claims have been waived.

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That being said, “[w]hen necessary to do substantial justice, an appellate

court may consider an error that has affected the substantial rights of a party at any time,

even though the error was not raised in the motion for a new trial or assigned as error on

appeal.” Tenn. R. App. P. 36(b). This court will grant relief for plain error pursuant to

Rule 36(b) only when:

“(1) the record clearly establishes what occurred in the trial

court; (2) the error breached a clear and unequivocal rule of

law; (3) the error adversely affected a substantial right of the

complaining party; (4) the error was not waived for tactical

purposes; and (5) substantial justice is at stake.”

State v. Cooper, 321 S.W.3d 501, 506 (Tenn. 2010) (quoting State v. Hatcher, 310

S.W.3d 788, 808 (Tenn. 2010)). In our view, none of the defendant’s preempted issues

satisfy the criteria for plain error review. That leaves for our consideration the

defendant’s claim that the statute proscribing the carrying of a firearm with the intent to

go armed is facially unconstitutional and his claim that the trial court lacked subject

matter jurisdiction of the case.

Jurisdiction

We consider first the defendant’s claim that the trial court lacked subject

matter jurisdiction to impose his convictions because a lack of subject matter jurisdiction

would render his convictions void. See Brown v. Brown, 281 S.W.2d 492, 501 (Tenn.

1955) (“Courts derive their powers to adjudicate not from the parties, but from the law.

A Court acting without jurisdiction of the subject matter, or beyond the jurisdiction

conferred upon it, is therefore acting without authority of law and its judgments and

decrees in so acting are void and bind no one.”).

The defendant’s somewhat convoluted argument challenging the

jurisdiction of the trial court touches on several points, each of which has been previously

considered and expressly rejected in other cases before this court. See, e.g., State v.

Booher, 978 S.W.2d 953, 957 (Tenn. Crim. App. 1997) (rejecting Booher’s claims

regarding both in personam and subject matter jurisdiction on grounds nearly identical to

those presented by defendant); State v. Anthony Troy Williams, No. M2012-00242-CCA-

R3-CD (Tenn. Crim. App., Nashville, Oct. 3, 2012); State v. Paul Williams, No. W2009-

02179-CCA-R3-CD (Tenn. Crim. App., Jackson, June 23, 2010); State v. David A.

Ferrell, No. M2007-01306-CCA-R3-CD (Tenn. Crim. App., Nashville, Aug. 7, 2009);

State v. Bobby Gene Goodson, No. E2001-00925-CCA-R3-CD (Tenn. Crim. App,

Knoxville, July 29, 2002).

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The record establishes that Sergeant Reed observed the defendant’s vehicle

traveling on a public roadway in Lawrence County with an unrecognized license tag

affixed to the rear bumper. He followed the defendant into a nearby parking lot, where

the defendant acknowledged that he did not have a proper registration, license tag, or

driver’s license. Sergeant Reed discovered a loaded handgun in the passenger

compartment of the vehicle.

Article VI, section 1 of the Tennessee Constitution provides: “The judicial

power of this State shall be vested in one Supreme Court and in such Circuit, Chancery

and other inferior Courts as the Legislature shall from time to time, ordain and establish;

in the Judges thereof, and in Justices of the Peace.” Tenn. Const. art. VI, § 1. Code

section 16-1-101 provides: “The judicial power of the state is vested in judges of the

courts of general sessions, recorders of certain towns and cities, circuit courts, criminal

courts, common law and chancery courts, chancery courts, courts of appeals, and the

supreme court, and other courts created by law.” T.C.A. § 16-1-101. Code section 16-

10-102 vests in the circuit courts of the state “exclusive original jurisdiction of all crimes

and misdemeanors, either at common law or by statute, unless otherwise expressly

provided by statute or this code.” Id. § 16-10-102; see also id. § 16-10-101 (“The circuit

court is a court of general jurisdiction, and the judge of the circuit court shall administer

right and justice according to law, in all cases where the jurisdiction is not conferred upon

another tribunal.”). Exercising the power granted via Article VI, the legislature created

31 judicial districts, and vested jurisdiction of criminal cases arising in Lawrence County

in the three trial judges for the Twenty-second Judicial District. See id. § 16-2-

506(23)(A). Because the offense occurred in Lawrence County, the Lawrence County

Circuit Court had subject matter jurisdiction over the defendant’s misdemeanor charges.

Moreover, the defendant, a resident of this state by his own admission, drove a motor

vehicle on a public highway in Lawrence County and then personally appeared in the

Circuit Court of Lawrence County to stand trial in this case, thus vesting that court with

personal jurisdiction.

Constitutionality of Code section 39-17-1307

As indicated, the defendant claims that Code section 39-17-1307 is

unconstitutional on its face because it is unconstitutionally vague. The State did not

address this claim in its brief. In a related claim, the defendant argues that his possession

of a loaded handgun inside a closed container cannot satisfy the elements of the offense

under any definition, which claim is more in the nature of a challenge to the sufficiency

of the evidence.3

3

Because a finding that the evidence was insufficient to support the defendant’s conviction would

result in a dismissal of the charge, the defendant’s failure to file a motion for new trial does not preclude

our consideration of this challenge.

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“Issues of constitutional interpretation are questions of law, which we

review de novo without any presumption of correctness given to the legal conclusions of

the courts below.” Waters v. Farr, 291 S.W.3d 873, 882 (Tenn. 2009) (citing Colonial

Pipeline Co. v. Morgan, 263 S.W.3d 827, 836 (Tenn. 2008)). “In evaluating the

constitutionality of a statute, we begin with the presumption that an act of the General

Assembly is constitutional.” See Gallaher v. Elam, 104 S.W.3d 455, 459 (Tenn. 2003)

(citing State v. Robinson, 29 S.W.3d 476, 479 (Tenn. 2000); Riggs v. Burson, 941 S.W.2d

44, 51 (Tenn. 1997)). To this end, we “indulge every presumption and resolve every

doubt in favor of the statute’s constitutionality.” State v. Taylor, 70 S.W.3d 717, 721

(Tenn. 2002).

The applicable version of the statute provides, in pertinent part, that “[a]

person commits an offense who carries with the intent to go armed a firearm.” T.C.A. §

39-17-1307(a)(1) (2012). “‘Person’ includes the singular and the plural and means and

includes any individual, firm, partnership, copartnership, association, corporation,

governmental subdivision or agency, or other organization or other legal entity, or any

agent or servant thereof.” Id. § 39-11-106(27). “‘Firearm’ means any weapon designed,

made or adapted to expel a projectile by the action of an explosive or any device readily

convertible to that use.” Id. § 39-11-106(11). Although the term “carries” is not defined

in the Code, it is capable of ready understanding by a person of ordinary intelligence.

Consequently, Code section 39-17-1307 is not unconstitutionally vague.

The defendant’s claim that his conduct in carrying a loaded handgun inside

a cooler on the front seat of his vehicle did not satisfy the statutory requirements is less a

challenge to the constitutionality of the statute and more an assault on the sufficiency of

the convicting evidence. Our standard of review for a claim of insufficient evidence is

whether, after considering 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. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319 (1979);

State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This standard applies to

findings of guilt based upon direct evidence, circumstantial evidence, or a combination of

direct and circumstantial evidence. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn.

2011).

When examining the sufficiency of the evidence, this court should neither

re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id.

Questions concerning the credibility of the witnesses, the weight and value of the

evidence, as well as all factual issues raised by the evidence are resolved by the trier of

fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must

afford the State the strongest legitimate view of the evidence contained in the record as

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well as all reasonable and legitimate inferences which may be drawn from the evidence.

Id.

This court has observed that “the necessary intent to support a conviction

for carrying a weapon with the intent to go armed may be proved by the circumstances

surrounding the carrying of the weapon.” Cole v. State, 539 S.W.2d 46, 49 (Tenn. Crim.

App. 1976). Here, the evidence established that the defendant placed a loaded handgun

into a cooler and then placed the cooler on the front seat of his vehicle. The defendant

acknowledged that he carried the weapon for the purpose of defending himself. Under

these circumstances, the evidence was sufficient to support the defendant’s conviction of

carrying a firearm with the intent to go armed. See Mathis v. State, 566 S.W.2d 285, 287

(Tenn. Crim. App. 1977) (finding evidence sufficient for conviction where officers found

two loaded firearms in the back floorboard of Mathis’s car).

Conclusion

Based upon the foregoing analysis, we affirm the judgments of the trial

court.

_________________________________

JAMES CURWOOD WITT, JR., JUDGE

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