### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs February

25, 2003
STATE O F TENN ESSEE v. MICHA EL SAM MIE BRO WN

Direct Appeal from the Criminal Court for Mor gan County No. 8613 James B. Scott, Jr., Judge

No. E2002-01035-CCA-R3-CD July 17, 2003

The defenda

nt, actin g pro se

at trial, was convicted of retaliation for past action and sentenced to one year of probation. The def

endant a rgues t hat the evidence

is insufficient to sustain his conviction and that he was wrongfully

tried for recklessly

committing the present offense. Because the indictment alleged that the d efenda nt i ntention ally committed the instant offense, the defendant argues that there
was a fatal variance between the indictment and the proof. The defendant also contends that the trial court wrongf ully terminat ed his cr oss-examin ation of th

e victim a

nd th e prosec ution made inapprop riate comments regarding his relig ious beliefs during the closing arguments. The defendant argues that

the trial court impr

operly acted in its capa city as a thirt eenth jur or and fa iled to co rrectly charge the jury. We conclude tha t the evidence is sufficient to sus tain the defendant’s conviction and that the trial court did not err. The judgment of the trial cour t is affirmed. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

J OHN E VERE TT W ILLI AMS , J., delivered the opinion of the court, in which J AMES C URWOOD W ITT , J R . and R OBER T W. W EDEMEYER , JJ., joined. Carl W. Eshbaugh, Knoxville, Tennessee, for the appellant, Michael Sammie Br own.
Paul G. Summers, Attorney Gene ral and Reporter; Thomas E. Williams, II I, Assistant Attorney Genera l; Scott McCluen, District Attorney Gene ral; andFrank Harvey , Assistant DistrictAttorney General, for the appellee, State of Te nnessee.

OPINION

The defendant, Michael Sammie Brown, actingpro se at trial, was convicted by a jury of retaliation for past action, a Class E felony

. See Tenn. Code Ann. § 39-16-510. On O ctober 15, 2001, the trial court sentenced the defendant to one year in the Tennessee Department of Corr ection, suspended the sentence, and ordered the de fendant to serve one y

ear of probation.-2-

Since 1999, the defend ant an d his sibl ings had bee n involved

in the sett

lement of the esta te of their moth

er, Mag rada Da vis Brow n. Befo

re his mother’sestate w as settle d, the def endant w rote the following lette

r to the pr esiding chance llor, Fr ank William s: I, Michael, the Seven Son of the Almighty God Jehovah, Fa ther to my brother Jesu s Christ, Mother Magrada Brown, wife of the Almighty God Jehova h, wh o created life and the world. I write this to the order of my Father the Almighty God Jehovah th at it be done as, I have written. Eve ry one name

or title written here must be in Morgan County Courtroom, when court room is call to order at 9:30 am E.S.T., on Monday Feb, 22, 1999. If anyone is not there , they are DIE at 9: 31 am no matter who that are. No
one can be save, if they

are not i n that cou

rt room. T

hey are Die d at 9:31 a

m. Andrew Hall, De

bbie Hill, Vivian Cr

andall, Governor of the State of Tenn., Attorney Genera l, of the State of Tenn. (Frank Williams, Johnny Dunaw ay, James Brook. (Andrew Hall give copy

James Brook and Debbie Hill.) The first letter is the topic. The Word, the Almighty God my Father is the Speaker. The Almighty

God Jehovah Sa y Amen Be There

. The defendant contends that the trial court erred in refusing to grant his Motion for Acquittal and Motion for New Trial. Analysis

I. Judgment of Acquittal

The defendant cont ends that t he trial court erred in deny ing his Motion for Judgment of Acquitta l. The defenda

nt also co ntends tha

t the tria l court e rred in n ot gran

ting the defendant’s postsentencing Motion for

Judgment of

Acquittal. Specifically, the de fendant argues that the trial court erred in finding that the evidence was sufficient to prove the elements of the offense and that the actions of the defendant were “re ckless.” A. Sufficiency of Evidence

The defendant contends that the evidence is insufficient to prove the elementsof the of fense of retaliation of past action.

In Te nnessee , whethe

r the issue

of the suf

ficienc y of

the evide nce for acquitta l purpose s is being considered by

the trial court upon motion or by an appella te court upon review, the standard-3-

to apply is the same. State v. A dams , 916 S.W.2d 471, 473 (Tenn. Crim. App. 1995). That standard is “whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have f

ound the essential elements of the crime bey ond a reasonable doubt.” Jackson v. V

irginia , 443 U.S. 307, 319 99 S. Ct. 2781, 2789 (197 9). This c ourt is precluded from reweighingor reconsidering the evidence. Thi s court ma y no t reweig

h the evid

ence, b ut must presume that the jury has re solved all conflicts in the testimony and drawn all reasonable inferences from the evidence in favor

of the State. See State v. She ffield , 676 S.W.2d 542, 547 (Tenn. 1984); Stat e v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978). A jury verdic t removes the presumption of innocence and repl aces it w ith on e of guilt. State v. Tu ggle , 639 S.W.2d 913, 914 (Tenn. 1982). Therefore, the burden of proof rests with the defendant, on appeal, to demonstrate the insufficienc y of the convicting evidence. Id. A person c ommits the offense of retaliation for past action who harms or threatens to harm a wi

t n ess at an official proceeding, judg e, district attorney g eneral, an assistantdistrict attorney g ene r al, an employee of the district attorney g eneral or a law enforcement officer, cler k, juror or former juror

by any unlawful act in retaliation for anything the

witness, judge, district

attorney g eneral, an assistant district attorney general , an employee

of the district attorney g eneral or a law enforce ment offi cer , clerk, or juror

did in an official capacity as witness, judge, district attorney gener al,
an assistant district attorney g eneral, an employee of the district attorney general or a law enfo rcemen t office r, cler k, or juro r. The of fense of retaliation for past action shallnot apply

to an employee of

a clerk who harms or threatens to harm such c lerk. Tenn. Code Ann. § 39-16-510(a).

The defendant testified that heand his siblings fought over their mother’s estate f or almost four years. The

defendant perc eiv ed that the victim in this case, Frank Williams, had been ineffective in his role as chancellor over his mother’s estate. He said he was frustrated because the chancellor could not make a final decision and because “he kept putting it off.” He stated that the purpose of his lett er was to get eve ry one tog ether “ to solve this problem,” and to warn the chancellor of spiritual death. The chancellor testified that he had no reasonto believe that there was any sort of immediate

dange r, but sta ted that he saw “th

e potenti al f

or violence” fr om the language of the letter. In the instant case, it is logical for a reasonable person to conclude that the letter

was a threat of impending harm and not a warning to seek divine sa lvation. We conclude that a letter which informs the sender that he will die, if he does not arrive at a time and place, is sufficient to prove an intent to harm or a threat to harm.

The defendant also contends that there exists no past action of the chancellor for which the letter addressed. The record reve als that t he defendant’s letter referr ed to the past inaction of the chancellor. We conclude that any of the chancellor’s actions, either perc eived or real, are sufficient to prove retaliation for

past action. Furthermore, because we conclude that the evidence is sufficient to convict the defendant of retaliation for past action , the tria l court did not err in deny ing the defendant’s Motion for Acquittal.-4-

B. Reckle ssness

The defendant contends that in approving the jury ’s verdict, the court specific ally

ruled that the proof supported

the fact that

the defendant’s actions were “reckless.” The defendant contends that the trial court should have granted the defe ndant’s Motion for Judgment of Acquittal for three
reasons : (1) It is impossible

for a pe rson to act “in

retaliation” recklessly , because retaliation require s an inten

tional ac t to get e

ven with so meone fo

r past co nduct; (2) The defendant could not have been found

guilty of har

assment under Tennessee Code Annotated section 39-17-308(a), a lesser included offense to the crime of retaliation for past action, without pro of that he intentionally threatened the person in the letter and alarmed the recipient; and (3) The indic tment ag ainst the d efenda nt gave noti ce of the necessary

requirement of proof beyond

a reaso nable dou

bt of an in tention to retaliate against the judge, chargingt hat t he defendant did “unlawfully and intentionally threaten to ha rm Chancellor

Frank Williams, a judge, by

an unlawful act in retaliation for actions the said Chancellor Williams performed in his official capacity as judge.”

In approving the jury’s ver dict, the trial court ruled that the proof showed that the defendant acted “recklessly .” The trial court stated, “As a thirteenth juror, I hereby f ind that you have reckle ssly done this, even though you w ere sincere in doing it.” The defendant argues that Tenne ssee Code Annotated section 39-16-510(a) requires that the pe rpetrator ac t in tentionally and not recklessly. When the de

finition of an offense does notspecify a culpab le mental

state the n intent, knowledge, or reck

lessness is suffic ient to est ablis h the r equired mens rea. See Tenn. Code Ann. § 39-11- 301(c). Theref

ore, the trial cou rt did not e

rr in find ing the d efenda nt guilty of reck lessly committing the crime of retaliation for past action.

The defenda

nt furthe r argu es that he

could not have been found guilty of harassment, which he contends is a lesser included offense of retalia tion for p ast actio n, if rec

klessnes s is not a required
mens rea under

Tennessee Code Annotated section 39-16-510. We will not speculate whether the defendant could or could not have been

found guilty of ha

rassment by a jury , having acknowledged that the evidence is sufficient to prove him guilty of the instant offense.
II. New Trial

The defendant contends that the trial court erred in not granting the defendant’s motion for a new trial.-5-

A. Thirteenth Juror

The defendant contends that the trial court erred by finding the defendant guilty of the present offense, after deciding as the thirteenth juror that the de fendant acted recklessly . He contends the trial cou rt erre d in not gr

anting h im a new tr

ial.

Rule 33(f) of

the Tenn essee Ru les of Cri minal Proc edure pr ovides t hat a “trial court may grant a new tri al follow ing a ve rdict of g uilty if it disag

rees wit h the jury about the weight of th e evidence.” The purpose of the thirteenth juror rule is to b e a “saf

eguar d . . . ag ainst

a misc arriage of justice by the

jury.” State v. Mo ats , 906 S .W.2 d 431, 434 (T enn. 1 995)( quot ing State v. Johnson , 692 S.W.2d 412, 4 15 (Tenn . 1985)). The rule require s th at the trial judg e must be p ersonally satisfied with the verdict. State v. D ankwort h , 919 S.W.2d 52, 56 (Tenn. Crim. App. 1995).

An order overruling a motion for new trial establishes a presumption that the trial court has exercise d the duty

and no expli cit

statement of the record is required. State v. Carter , 896 S.W.2d 199, 122 (Tenn. 1995). It is only when the trial court disagrees, expresses dissatisfaction with the jury verdict, or states that it absolves itself of its responsibility that the judgment should be set aside. Once the trial court approves the verd ict as the thirteen th juror and imposes its judgment, the review of the evidence on

appeal is limited, requiring the accrediting of the testimony of the witnesses for the State and

the reso lution of e

videntia ry conflic ts in favor of the State. State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973).

As men tioned above, Tennessee Code Annotated section 39-11-301( c) allows for intentional , knowi ng, or

recklessness as the mens rea for any offense which does not

specify a culpable mental state. For this r

eason, w e conclu de that the trial c ourt did notdisagr

ee or expr ess dissa tisfacti on with the jury ’s verdi ct by

its stateme

nt rega rding th e mens re a of rec

klessnes s. There

fore, th is issue is without merit. B. Jury Inst

ructions

The defendant contends that the trial court erred in not gr antin g his motion for a new trial because the defe ndant wa s charg ed with a c rime that requires speci fic intent, but was tried on the grounds that he acted recklessly . The defendant argues that the trial court erroneously

instructed the jury on th e reckless element of the offense of retaliation of past action. However, the def endan t failedto include the jury cha rge in the appellate record. Since the defendant did not include a copy of the jury instructions in the recor d, the basis of

this issue o n appea

l, we must

presume that the trial court did not err in

its charge to the jury

. See T.R.A.P. 24 (b); State v. Boling , 840 S.W.2d 944, 951 (Tenn. Crim. App. 1992). Because the record is explicit th at the tri al court , acting as the thir

teenth juror, found tha

t the def endant a cte d re cklessly, we c onclude that even if the trial court used the Tennessee Pattern Jury I

nstructions, the trial court would have correctly instructed the jury on the mental sta

tes of inte ntional, k nowing, or reck

less.-6-

C. Cross-examination

The defendant contends that the trial court erred in not g ranting his Motion for aNew Trial because the trial court

wrongf ully terminated his cross-examination of Chancellor Williams. The defendant argues that

he had the right to confront and cross-examine witnesses under the Sixth and Fourteenth

Am endments to the U.S. Constitution and under Article I, Section 9 of the Tenne ssee Constitution.

A defendant has a constitutional right to confront witnesses; however, “a defenda nt’s right to confrontation does notpreclude a trial court from imposing limits upon cross-examination which take into account s uch fac tors as ha rassmen t, prejud ice, issu e confr

ontation, witness sa

fety , or mere

ly repetiti ve or mar

ginally relevant interrogation.” State v. Re id , 882 S.W.2d 4 23, 430 (T enn. Crim. App. 1994). “Appellate courts may not disturb limits on cross-examination except when there has been an unr eason able re stri ction on th e righ t.” State v. Fowler , 213 Tenn. 239, 253, 373 S.W.2d 460, 466 (1963).

The trial transcript indicates that the d efenda nt repea tedly refuse d to ask

the victim questions and was admonished by the tria l court for testifying

on seve ral occasions. The defendant’s questioning wa s prob lematic, at best. T he reco rd is uncl ear as t

o how the d

efenda nt came to represent himself. The trial transcript does not include a warning from the t

rial cou rt as to the

perils of sel f-repr ese ntation; ho wever, the rec ord reve als the de fendant was assis ted by

elbow counsel. Neverth eless, the trial court warned the defendant that he was no t allowed

to make sta

tements, o nly to ask questions. The trial judge “is under no obligation to become an ‘advocate’ for or to assist and guide the pro se layma

n through the trial thicket.” United States v. Pinkey , 548 F.2d 305, 311 (10 th Cir. 1977)

. The pro se defendant must abide by the rules of evidence and procedure , just as if he
were repres ented by

counsel. We conclu de that the trial c ourt did not err in ending the defendant’s cross-examination of the victim.
D. Indictm

ent

The def endant c ontends th

e trial c ourt err

ed in deny

ing his Mo tion for New Tria l becaus e there is a fatal variance betwe en the indictment and the proof against him.
The indic tment in the

instant ca se alleg es that the defenda nt did “unl awfully

intentiona

lly threaten to harm Chancellor Frank Williams, a judge by an unlawful act

in retaliation for actions the said Chancellor Williams performed in his official capacity

as judge in violation of T.C.A. Section 39-16-510 . . .” As mentioned previously, Tenne ssee Code Annotated section 39-16-510 states that,
a person c ommits the o ffense of reta liation fo r past action who harms or

threate ns to harm a witness at an official proceeding, judge , districtattorney g eneral, an assistant districtattorne

y g eneral , an emplo ye e of the d ist rict attorney g eneral or a law enforcement-7-

officer, clerk, j uror or f

ormer jur or by any unlawful act in

retaliation for

anything the witness, jud ge, district attorney g eneral, an assistant district attorney general, an employee of the district attorney g eneral or a law enforce ment officer, clerk, or juror didin an off

icial ca pacity as witnes s, judge , district attor ney g eneral, an assistant districtattor ney general , an em ployee of t he dis trict attor ney ge nera l or a law enforc eme nt office

r, cler k, or juro r. The of fense of retalia tion for p ast actio n shall not apply to an employ

ee of a clerk who harms or threa tens to harm such clerk. Tennessee Code Annotatedsection 39-26-510 does not specify a culpable mental state. When the definition of an off

ense doe s not spec ify a culpable mental state then intent, knowledge, or reckle ssness is sufficient to establish the required mens rea. See Tenn. Code Ann. § 39-11-301(c).

We agree that

there exists a variance between the wording of the indictment, which alleged that the defendant committed the offense “intentionally ,” and the finding of the trial court that

the defendant committed

the offe nse “reckl essly .” However, our analy sis does not st

op here. We must examine whether the indictment was constitutionally sufficient in order to determine if the variance was fatal.

A variance between the indictment and proof is fatal if : (1) def endant is insuffic iently informed of

the char ges ag ainst him, s uch that h e is unable to prepare adequately for trial; and (2) defendant is not protected against a subsequent prosec ution for the same offense. State v. Mayes , 854 S .W.2 d 638, 640 (T enn. 1 993)( citi ng State v. Mo ss , 662 S.W.2d 590, 592 (Tenn. 1984)).

The Sixth Amendment to th e United States Constitution and Article I, section 9 of the Tennessee Constitution afford the accused the rig ht to be informed of the “nature and cause of the
accusa tion.” Te nnessee Code Anno tated se ction 40- 13-202 pr ovides: The indictmen

t must state

the fac ts constitu

ting the offense in ordinary

and conc ise language, without prolixity or repetition, in such a manner as to enable a person of
common understa

nding to know what

is intende d, and wit

h that deg ree of c ertainty which will enable

the court, on conviction, to pronounce the proper judgment; and in no case are such words as “for ce and arms” or “contrary

to the form of the statute” necessary
. It is sufficient

to state the offense charged in the words of the statute or words which are equivalent to the wording of the statute. State v. Ta te , 912, S.W.2d 785, 789 (Tenn. Cri m. App. 1995). An indictmentwhich fa

ils to alle ge the e

lements of

the offe nse in the terms of t

he statute will sti ll be sufficient “if the e lements a re nece ssarily

implied fr

om th e [fact ual] allegations made.” State v. Marshal l , 870 S.W.2d 532, 538 (Tenn. Crim. A pp. 1993) . Here, only one of the

three r equisite mental states was included in the wording of the indictment. The inclusion of “intentionally”in the indictmentwas surplusage and the citing of any culpable mental sta

tes was not actuall

y needed to support a convic tion for r

etaliati on for pa st action. We conclu de that the in dictment provided adequa te notice to the defendant that he was being charg ed with re taliation for past action, a Class E felony, in violation of Tenne ssee Code Annotated section 39-16-510.-8-

The indictmentmore than sufficiently advised the defendant of the crime for which he wa s charged. Fu rthermore , the tria l transcr ipt clear ly r eveals t hat the de fendant ’s counse

l was able

to adequa tely preparefor trial. This defendant was amply protected form subsequent prosecution for the same offense. Any

alleged variance between the wording of the indictment and the proof at trial was not fatal.
D. Prosecutor Com

ments
The defenda

nt conten ds that the

trial cou rt erre d in deny

ing his mo tion for a

new tria l becaus e of certain comments made by the prosecution concerning his religious beliefs. The defendant refers to the following comments made by the prosecution: I hope that by m y qu estioning

and by what I ’m sa

ying n ow I am not offending any of you. And I don’t mean to offen d the def endant. H

is faith is obviously

deeply held. But just a s someone who choos es to practice civil disobedience, who chooses to break a law, he needs tobe prepared to pay the consequences. I s that notwhy he ha s t o g o t he ha rd wa y?

The defend ant argu es tha t the p rosecu tion ’s com ments viol ated h is ri gh t to fre edom of religion. The record indicates that by the defendant’s own admission, he considers himself the Son of God. The defendant made his religious beliefs the c entral theme of his defense. The defendant testified that he se

nt the lett er to the victim bec ause the

victi m was not per forming his duty as chancellor. The def

endant st ated tha t the “au thority of the le tter” is a prophec y a

nd if the r ecipien ts of letters were not present

at the Morgan County

courtroom at a certain date and time, “the

y w ould die, no matter who they we re or the like.” There is no indication that the defendant’s religious beliefs were ever co mpromised or ridicu led. We co nclude it

would be prac tically

impossible

not to make reference to the defenda nt’s messianic beliefs in a closing argument . This issue is without merit.

Conclusion
For the aforementioned reasons, we affirm the judgment of the trial court.

____________________________________ JOHN EVERETT WILL IAMS, JUDGE