State of Tennessee v. Kortney Ball

IN THE COURT OF CRll\/IINAL APPEALS OF TENNESSEE

AT NASHVILLE

F|LED

02/21/2018

C|erk of the

Appellate Courts

Assigned on Briefs January l7, 2018

STATE OF TENNESSEE V. KORTNEY BALL

Appeal from the Circuit Court for Rutherford County

No. F-76526 David M. Bragg, Judge

No. M2017-01436-CCA-R3-CD

Defendant was convicted by a Rutherford County Jury of driving under the influence

(“DUI”), retaliation for past action, assault, and resisting arrest. The trial court sentenced

Defendant to an effective sentence of two years, of which Defendant was ordered to serve

six months in incarceration and the balance of the sentence on supervised probation

Defendant appeals his conviction for retaliation for past action, arguing that the evidence

was insufficient to support the conviction For the following reasons, we affirm the

judgments of the trial court.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which THOMAS T.

WoODALL, P.J., and RoBERT L. HoLLoWAY, JR., J., joined

Gerald L. Melton District Public Defender, and Billie I. Zimmerman, Assistant District

Public Defender, for the appellant, Kortney Ball.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel;

Jennings H. Jones, District Attorney General; and Brent Pierce, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

In Novernber of 2016, the Rutherford County Grand Jury indicted Defendant for

DUI, retaliation for past action, assault, and resisting arrest as a result of his actions

during a traffic stop on the evening of February lO, 2016.

At trial, Detective Jonathan Brown testified that he was working patrol as a

detective for the Murfreesboro Police Department on the night of February lO, 2016. lt

was snowing that night, which caused “the roads to be slicker.” Detective Brown was

driving down North Rutherford Boulevard when he observed a black vehicle “trying to

change lanes.” The vehicle “started moving over into the left lane, and then corrected

back over to the right lane” before it “drove down the center striped line for just a short

period, and then moved over to the left side.” Detective Brown engaged the video

camera in his patrol car because the way the driver maneuvered the vehicle through

traffic indicated possible “signs of impairment.” The vehicle never used the blinker to

indicate a lane change and, once in the left lane, began to accelerate, traveling at speeds

“going well over 45” in a forty mile per hour Zone. The vehicle eventually crossed back

into the right lane and turned onto Main Street, again without using a blinker. Detective

Brown followed the vehicle onto Main Street and observed the vehicle “drift over into

that oncoming traffic lane, and then . . . make a right turn, and then . . . come to a

complete stop in the middle of the road.” At that point, Detective Brown “lit him up,”

turning on his blue lights. Detective Brown also observed that the “tag light on the rear

was blown out.”

After announcing the location of the traffic stop to dispatch over the radio and

requesting backup support, Detective Brown exited his patrol car and approached the

vehicle on the driver’s side. Defendant was sitting in the driver’s seat, and the vehicle

also contained a female passenger. Defendant “rolled his window down just a little bit”

and Detective Brown observed a “strong smell of intoxicant emitting” from the vehicle.

Defendant had “slurred speech” and “bloodshot, watery eyes.” Defendant continually

reached down beside the door with his left hand while he was talking to Detective Brown.

Initially, Defendant was “polite and friendly.” Detective Brown asked Defendant

for his driver’s license, registration, and proof of insurance Defendant handed the officer

his driver’s license and insurance but had a “hard time” locating the registration,

eventually handing Detective Brown a piece of paper that was not the registration

Defendant continued to reach down beside the driver’s door with his left hand, a motion

described by Detective Brown as a “furtive movement.” When Detective Brown

informed Defendant that the paper was not the registration, Defendant reached up and

“snatched” the paper out of the officer’s hand. Detective_Brown was afraid that

Defendant might try to “flee,” so Detective Brown asked Defendant to exit the vehicle.

Defendant stepped out of the vehicle onto the road.

Detective Brown described Defendant as “unsteady on his feet.” Defendant

started to walk toward the officer with papers in his hand. Detective Brown told him to

leave the papers in` the vehicle. Defendant did not listen, so the officer told him to place

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the papers on the trunk. Defendant complied before he walked back up toward the front

of the vehicle to get another piece of paper from the passenger.

Defendant again approached Detective Brown. Defendant kept putting his hands

inside his pockets. Detective Brown repeatedly asked Defendant to take them out.

Defendant explained to the officer that it was cold outside so he needed to put his hands

in his pockets Detective Brown explained that he was uncertain what,» if anything,

Defendant had in his pockets and that he asked Defendant to take his hands out of his

pockets for safety reasons Defendant denied having anything “illegal” on his person.

Defendant asked Detective Brown if he wanted to search him, lifting his shirt up in the

process as if to show the officer that he did not have anything on his person. Detective

Brown initiated a search of Defendant by asking him to interlock his fingers behind his

head and spread his feet. Detective Brown asked Defendant multiple times to comply

with his requests Defendant became “agitated,” and Detective Brown told him to “calm

down, just calm down.”

When the search was concluded, Defendant took a “step back” away from

Detective Brown, who instructed Defendant to “stop.” Defendant took a “bigger step

back.” Detective Brown thought at that point that Defendant was going to run so he

“reached up to grab [Defendant’s] left hand.” Defendant “spun” around with Detective

Brown, tried to “square his shoulders,” and “ball[ed] up his fist at one point.” Detective

Brown interpreted these movements as “aggressive,” so he broke contact with Defendant

and ordered him to the ground. `

Defendant started to roll up one of his sleeves and told Detective Brown that he

“better not play” with him. Detective Brown perceived Defendant’s statements as a

threat, pulled out his Taser,1 and warned Defendant by saying “Taser, Taser, Taser.”

Detective Brown fired his Taser toward Defendant. The Taser had no effect; Defendant

“took the [Taser] barbs and swatted them away.” At that point, Defendant walked back

toward the vehicle. Defendant turned back toward Detective Brown. The officer again

ordered Defendant to the ground. Defendant refused. Detective Brown deployed a

second Taser at Defendant; Defendant again swatted the Taser away. Detective Brown

notified dispatch that the Taser had been deployed twice and that it had no effect on

Defendant.

The videotape from the dash of the patrol car showed the passenger of the vehicle,

later identified as Denicia Bah, get out of the vehicle and yell at Defendant to comply

1 In the transcript, the Weapon is referred to as a “tazer.” The Taser® is actually a trademarked

brand of electronic control devices made and distributed by a company called Axon. Axon,

http://www.axon.com (last visited January 29, 2018). Thus, we will refer to the weapon as a Taser

throughout the opinion

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with Detective Brown. Defendant yelled something incomprehensible at Detective

Brown before charging toward him. The remainder of the scuffle between the two takes

place off-camera, but the audio picks up the fight. Detective Brown testified that he took

a “fighting stance,” got his baton in his hand, and deployed the baton. While he was

deploying the baton, Defendant struck Detective Brown in the head with his fist.

Defendant continued to “attack” Detective Brown, “swinging with both hands.”

Detective Brown was able to make contact with the baton, issuing several “baton strikes”

to Defendant. Detective Brown was aware that he was losing the fight and was afraid

that Defendant might gain possession of the baton, so Detective Brown threw the baton to

“get it out of the fight.” By that time, Defendant had struck Detective Brown

“[m]ultiple” times. Detective Brown attempted to retreat, telling Defendant to “S_top.”

Defendant continued to hit him “everywhere.” Detective Brown was “dizzy” from the

repeated blows.

Eventually, Detective Brown was able to catch Defendant off balance. The men

fell to the ground and Detective Brown got on top of Defendant for a few moments.

Defendant reached up and tried to grab the officer’s holster. Detective Brown was able to

pin Defendant down until backup arrived and secured Defendant. Detective Brown was

immediately hit with “exhaustion” and had a hard time standing up. An ambulance

arrived on the scene and transported Detective Brown to the hospital. When Detective

Brown removed his bullet proof vest, he could see multiple bruises. The examination at

the hospital revealed bruised ribs, a possible concussion, and abnormally high blood

pressure.

Officer Blake Troutman, one of the officers who responded to the request for

backup, found Detective Brown and Defendant in a ditch. Detective Brown looked

exhausted so Officer Troutman placed Defendant in handcuffs Defendant was

combative, so he was placed inside of Officer Seth Jackson’s patrol car with bars

between the front and back seat. Once inside ()fficer Jackson’s car, Defendant cursed

and screamed repeatedly The cursing and screaming continued during the drive to the

police station and when Defendant was taken out of the patrol car into the station. l\/Iany

of Defendant’s rants were incomprehensible but included many curse words.

Once inside the police station, Officer Troutman asked Defendant if he would

submit to a blood test. Defendant said, “f--- you” to Officer Troutman. Officer

Troutman “assume[d] that’s a no.” Defendant replied, “f--- you, whitey, take these

mother f---ing handcuffs off, and I’ll_ kill you.” At. that point, foicer Troutman

considered Defendant’s actions to be a refusal to submit to the blood test. Officer

Troutman felt threatened by Defendant’s statements

Defendant testified at trial that he worked on the night prior to the traffic stop and

had been at home prior to driving around with his passenger, Ms. Bah. Defendant

claimed that he was on his way home when he saw the blue lights Defendant turned

right onto a street to get out of the officer’s way.

At the conclusion of the proof, the jury found Defendant guilty of DUI, retaliation

for past action, assault, and resisting arrest. Defendant was sentenced to eleven months

and twenty-nine days for DUI, two years for retaliation for past action, eleven months

and twenty-nine days for assault, and six months for resisting arrest. Defendant was

ordered to serve six months in incarceration and the balance of the sentence on

supervised probation

After the denial of a motion for new trial, Defendant appealed

Analysis

On appeal, Defendant challenges the sufficiency of the evidence with respect to

his conviction for retaliation for past action2 Specifically, he argues that because the jury

asked for the identity of the victim of the crime during deliberations and the trial judge

gave them the indictment naming Officer Troutman as the victim to answer their

question, they were “only able to make a determination as to the alleged victim of the

charge after receiving the indictment ” The State, on the other hand insists the evidence

was sufficient to support the conviction

When a defendant challenges the sufficiency of the evidence, this Court is obliged

to review that claim according to certain well-settled principles A guilty verdict removes

the presumption of innocence and replaces it with a presumption of guilt. State v. Evans,

838 S.W.Zd 185, 191 (Tenn. 1992) (citing State v. Grace, 493 S.W.Zd 474, 476 (Tenn.

1973)). The burden is then shifted to the defendant on appeal to demonstrate why the

evidence is insufficient to support the conviction State v. Tuggle, 639 S.W.Zd 913, 914

(Tenn. 1982). The relevant question the reviewing court must answer is whether any

rational trier of fact could have found the accused guilty of every element of the offense

beyond a reasonable doubt. See Tenn. R. App. P. 13(e); Jackson v. Virgz'nia, 443 U.S.

307, 319 (1979). On appeal, “the State is entitled to the strongest legitimate view of the

evidence and to all reasonable and legitimate inferences that may be drawn therefrom.”

State v. Elkins, 102 S.W.3d 578, 581 (Tenn. 2003). As such, this Court is precluded from

re-weighing or reconsidering the evidence when evaluating the convicting proof. State v.

Morgan, 929 S.W.Zd 38(), 383 (Tenn Crim. App. 1996); State v. Matthews, 805 S.W.Zd

776, 779 (Tenn. Crim. App. 1990). Moreover, we may not substitute our own

2 Defendant does not challenge the remainder of his convictions or his sentences

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“inferences for those drawn by the trier of fact from circumstantial evidence.” Matthews,

805 S.W.2d at 779. Further, questions concerning the credibility of the witnesses and the

weight and value to be given to evidence, as well as all factual issues raised by such

evidence, are resolved by the trier of fact and not the appellate courts State v. Pruett,

788 S.W.2d 559, 561 (Tenn. 1990). “The standard of review ‘is the same whether the

conviction is based upon direct or circumstantial evidence.”’ State v. Dorcmres, 331

S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.

2009)).

Retaliation for past action is committed when a “person . . . harms or threatens to

harm . . . a law enforcement officer . . . by any unlawful act in retaliation for anything the

. . . law enforcement officer . . . did in an official capacity as . . . a law enforcement

officer . . . .” T.C.A. § 39-16-510. lt is punishable as a Class E felony. ]a’.

The proof in the light most favorable to the State shows that Defendant assaulted

Detective Brown during a traffic stop, remained belligerent and combative during his

transport to the police station, and verbally threatened Officer Troutman during booking.

Defendant argues that nothing corroborated Officer Troutman’s testimony, but the jury

clearly chose to believe the officer’s testimony, as was its prerogative See State v.

Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). Moreover, a victim’s testimony

alone is sufficient, requiring no corroboration See State v. Smith, 42 S.W.3d 101, 106

(Tenn. Crim. App. 2001).

ln fact, Defendant does not deny that he threatened Officer Troutman but merely

argues that the jury was unable to reach a verdict until it was given the indictment by the

trial court. During deliberation the jury asked a question of the trial court. Specifically,

the jury asked the trial court to identify the victim of the retaliation At the time the jury

asked the question, the trial court realized that the jury was not given a copy of the

indictment The trial court responded by giving the jury a copy of the indictment See

Tenn. R. Civ. P. 30(c) (“ln the trial of all felonies . . . every word of the judge’s

instructions shall be reduced to writing before being given to the jury. . . and taken to the

jury room by the jury when it retires to deliberate The jury shall have possession of the

written charge during its deliberations . . .”). The indictment, which was also read to the

jury at the beginning of the trial, listed Officer Troutman as the victim. The proof

showed that Officer Troutman handcuffed Defendant at the scene. At the police station,

Officer Troutman asked Defendant to submit to a blood test. The Defendant responded

by threatening Officer Troutman, telling him to take the handcuffs off and “I will kill

you.” The jury heard the evidence presented at trial and determined that it was sufficient

to convict Defendant of retaliation for past action against Officer Troutman for Officer

Troutman’s handcuffing of Defendant at the scene and Defendant’s subsequent unlawful

act of threatening to kill ()fficer Troutman Defendant has not met his burden of

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demonstrating how the evidence is insufficient to support his conviction and is not

entitled to relief on this issue.

Conclusion

For the foregoing reasons, the judgments of the trial court are affirmed

_TIMOTHY L. EASTER, JUDGE