# FILED September 30, 1998 Cecil W. Crowson Appellate Court Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT NASHVILLE AUGUST SES SION, 1998
STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9708-CR-00336 ) Appellee, ) ) DAVIDSON COUNTY V. ) ) ) HON . CHE RYL BLA CKB URN , WILLIAM BRADLEY, ) JUDGE ) Appe llant. ) (HARA SSME NT)

FOR THE APPELL

ANT : FOR THE APPELLEE : CHARLES GALBREATH JOHN KNOX WALKUP 901 Stahlman Buildi ng Attorney General& Reporter Nashville, TN 37201 TIMOTHY F.BEHAN Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenue Nor th Nashville, TN 37243 VICTO R S. JO HNS ON, III Distri ct Attorney General ROGER MOORE Assistant Distri ct Attorney General Washington Square 222 Second Avenue North, Sui te 500 Nashville, TN 37201-1649

OPINION FILED ________________________ CON VICTIO N AN D SE NTE NCE AFFIR MED ; REMANDED FOR ENTRY OF N EW ORDER-2-

THOMAS T. WOODALL, JUDGE-3- 

# OPINION
William Bradl ey, the Defendant, appeal s as of ri ght from his convicti on for harass ment. In December 1995, Defendant was charged with har assment. He was tried and conv icted in Gene ral Sessions C ourt, but appea led to the Crimin al Court of David son C ounty for a trial de novo . After waiv ing his righ t to a trial by jury , Defendant pled not guilty. The trial court found the Defendant guilty and sentenced him to eleven ( 11) months, twent y-nine (29) day s. Defe ndan t was to serve his sentence on unsupervised pr obation pursu ant to the p rovisio ns of Tennessee Code Annotated section 40- 35-313. In hi s appeal, Defend ant argu es the evidence was insuffi cientto convict t he Defendantof harassment and t hat hearsay evi dence was impro perly admitted. We affirm the con victi on and sentence, but remand to the t rial court for a wit hdrawal of the j udgment of guil ty and entry of an order in compliance with Tennessee Code Annotated section 40- 35-313.

While there is not a tra nscrip t of the p rocee dings at trial, pu rsuan t to Ru le 24(c) of the Tennessee Rules of Appellate Procedure a statement of the evidence was filed in the reco rd. The Defendant first submitted a statement of the evidence, but the State fil ed an objection to porti ons of this. As aresult, the trial court provided the statement including t he testimony of David Beard, the Defendant, Susan Ramey, the Defendant’s wife, and a localattorney.

David Beard testi fied that he is the manager of a mat tress store in Bellevue Mall in Nashvil le. Beard i dentifi ed the Defend ant as a customer of the store who-4-

purchased a Tempera Pedic mattres s on June 25, 1996. The Defendant drove to Lexington, Kentucky, to pick up the mattress. Bear d’s storehas a sixty (60) day return policy wi th no questi ons asked and the sal e price ret urned to the custom er. On November 30, 1996, the Defendant called Beard and aske d for a refund for the mattr ess du e to his di ssatisfaction. Beard explainedthat no money would be refunded as the sixt

y (60) day peri od had expired. Defendant was upset and called several more times the next week refusing t

o accept Beard’s

explanati on of the store’s return policy . Defe ndant then c alled Beard’s su pervisor. Finally, Bea rd advised Defendant that he coul d not help hi m and to stop call ing his store.
Defendant and his w ife, Susa n Ram ey, contin ued to repea tedly c all the store, often calli ng back immediatel y after t he prior telephone call . Defendant bel ieved that this mattress was purchased under a six (6) month same as cash policy . During one continui ng phone co nversation, D efendant threa tened Bea rd that he would “kick his ass.” Beard stated that he was “shook up” and upset af

ter thi s telephonecall. Beard was then advised by his supervi sors that Defendant had also made thr eatening and abusive cal ls to t hem. On cross-examinati on Beard admitted t hat he had exchanged mattresseswith Defen dant, and that this new mattr

ess has a ten (10)year guarantee.

The Defe ndan t testified that he did not make the tel ephone call t hreatening to “kick[Mr. Beard’ s] ass,” but that GeorgeWesley White made that telephone call. A copy of Def enda nt’s tele phon e bill wa s ente red as an ex hibit wh ich ind icated multip le calls to Beard’s Bel levue m attress store . On cross-examinat ion, Defendant admitted-5-

thatWhite was calli ng upon his behalf when he threatened Bear d. Defendant remembered calli ng on approximatel y three ( 3) occ asions request ing his money back and looking f

or a replacement mattress. Defendant descri bed hi s frustr ation in the inability to re solve the matter a nd felt shu nned b y Beard
. Aft er calli ng the corpora te offices

for assi stance, Defendant was instructed to call the Bellevue sto re and Beard was ofte n not ava ilable wh en De fe ndant called. In his est imation, Defendant teleph oned Dave Fall with Tem pera Ped ic mattresses asking for a refund on sev en (7) to te n (10) oc casions
.
Susan Ramey testifi ed thatshe was present when Defendant telephoned the store and neve r heard Defendant threaten Beard. Ramey also telephoned Beard at least two (2) or three (3) times. Ramey was aware that White call ed and threatened to “kick [ Mr. Beard’s]ass,” and t hat these call s were made at Defen dant’s req uest. Ramey was not present when t he threateni ng telephone cal l was made as she works outside th e hom e at Bap tist Hosp ital.

An attorney i n Waverly, Tennessee, testified that h e has know n Def enda nt all his life. Bas ed up on De fenda nt’s rep utation , the atto rney te stified th at he w ould afford Defen dant “full fa ith and credit on his oath as a witness” and t hat he is not aware of any vio lent tende ncies of th e Defe ndant.
Following the conclusi on of the bench t rial , the t rial cour t found Defendant guilty and se ntence d him to serve eleven (11) mont hs, twenty- nine (29) days of unsupervised probation pursuant to Tennessee Code Annotated sect ion 40-35-313.-6-

Defendant filed a motion for n ew trial , but the t rial cour t ruled agai nst the moti on . Specifically, the trial court “heard theproof in t his case and was convi nced beyond a reaso nable doubt t hat t he [D] efenda nt was g uil ty of viol atio n of T. C.A. § 39-17-308 by making offensively repet itious telephoneca lls which knowingly annoyed or alarmed the victim.”

When an accused challenges the suffici ency of the convi cting evi dence, the standard is w hether, after r eviewing the ev idence in t he light most favorabl e to the prosecution , any ration al trier of fact could have found the essenti al elements of the crime beyond a reaso nable d oubt. Jackson v. Virginia , 443 U.S. 30 7, 319 (1979 ). On appe al, the State i s entitl ed to the st rongest legitimate vi ew of the evidence and all inference s therefro m. State v. Cabbage , 571 S.W .2d 832, 835 (Tenn. 197 8). Because a verdict

of guil t removes thepresum ption of inn ocenc e and re places it w ith a presumption of

guilt, the accused hasthe burden i n this cour t ofill ustrati ng why the evidence is insufficient to suppo rt the verdic t returned by the trier o f fact. State v. Tugg le , 639 S.W.2d 913, 914 (Tenn. 1982 ); State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1 973).
Questions concerning the credibility of the witness es, the w eight and value to be given the evide nce, as we ll as all factual issues raised b y the evidenc e, are resolved by the trier o f fact, not this c ourt. State v. Papp as . 754 S.W.2d 620, 623 (Tenn. Crim. App .), per m . to appeal denied , id . (Tenn. 1987 ). Nor may this c ourt reweigh or reeva luate the e vidence
. Cabbage , 571 S.W .2d 832, 835 (Tenn. 197 8). This case involved a ben ch trial, and the fi ndings of t he trialcourt who conducte d the-7-

proceedingscarry the s ame weight as a jury v erdict. State v. Tate , 615 S.W.2d 161, 162 (Te nn. Crim . App. 19 81).

A person commi ts t he of fen se o f ha ras sme nt when he intenti onally: (1) threatens, by telephone or in writ ing, to t

ake action known to be unlawful agai nst any person, and b y th is acti on knowingly annoys or alarms the rec ipient; or (2) pl aces one (1) or more telephone call s anonymously, or at an inconvenien t hour, or in an offens ively repetitio us manner, or wit hout a legi timate purposeof communication, and by this action kn owingly annoy s or alarm s the recip ient. Tenn . Code Ann. § 39- 17-308(a)(1)and (2). A violat ion of this of fense is a Class A m isdemea nor. Tenn. C ode Ann. § 39-17-308( b). Testi mony demonstrated that Defendant repe atedl y called Beard, eve n after being instructe d to stop calling and that nothing m ore could be done to assist the D efenda nt. Beard testi fied that Defendant thr

eatened that h e wou ld “kick his ass,”

which upset Beard and “shook him u p.” Wh ile Defe ndan t’s testimony

confli cts with t hat of Beard’ s as to who issued the threats, the trial court resolved all factual i ssues raised by the ev idence
. Pappas , 754 S.W.2d at 623. This court will not rew eigh or re evalua te the evid ence. Cabbage , 571 S.W.2d at 835. Notwithstan ding the threateni ng nature of the tel ephone calls, Defendant’s testimony thathe repeatedly called Beard, who was knowingly alarmed and asked Defendant to stop calling, is sufficient for a re aso nable tri er of fact to have found beyond a rea sona ble doubt allthe elements neces sary to convi ct the Defendant of harass ment. T his issue is without m erit.-8- Defendant also contends t hat hearsay testimony of ot hers who told Beard that Defendant h ad made harassing telep hone calls to them was inadm issible. Beard testif ied that his supe rvisors advise d him that Defendant had also made abusive and threateni ng tel epho ne c all s to the m. There is no reco rd that De fendan t objected to this t estimony at t rial. Failure t o make a contemporaneous object ion waives conside ration by th is court of the issue on appea l. Tenn. R . App. P. 3 6(a).

Even consideri ng the issue on its merits, the tri al court stated in its order overruli ng Defe ndan t’s mo tion for a new tr ia l that its d ecision was based only on “relevan t, admis sible evide nce.” Th e trial court sp ecifically no te d that it “can separa te the ‘wheat f rom the chaff’in considering the testi mony of witnes ses.” Hearsay evide nce is n ot adm issib le as evidence unle ss it falls wit hin a number of exceptionsas provided by Rul es 803 and 804 of the Tennes see Rules of Evi dence. Tenn. R. Ev id. 802 . Even if the sta teme nts to w hic h De fendant refers were not adm is sible as exceptions under Rules 803 and 804, any error in admitt ing these statem ents in a bench trial i s harmless. As t he trialcourt stated within i ts order denying Defendant’s moti on for a new tr ial, t he court’s decision was based on “releva nt, adm is sible e viden ce” an d the c ourt “is s till convin ced th e defe ndan t is guilty beyond a reasonable doubt.” Af terconsidering the entire record in the case sub judice , we are sati sfied th at if ther e was er ror, it was harmless . Ten n. R. App. P. 36(b); Ten n. R. Crim. P. 5 2(a).

Defendant was sentenced to el even (11) months, twenty-nine (29) daysto be served on unsupervised probation pur suant to Tennessee Code Annotated section-9-

40-35-313, commonl y known as the “j udicialdiversi on” statute. Underthis part icular statutory scheme, when a defendant i s found guil ty or plead s guilt y to a misde meanor pun ishable by i mprisonment or a Class C, D, or E fel ony, and the defendanthas n ot bee n prev iously convicted of a felony or

a Class A m isdemea nor, the trialcourt may“ without e ntering a judgm ent of guilty ,” defer fur ther proceedi ngs and place the defendant on probati on. Tenn
. Code A nn. § 40-35-3 13(a)(1)(A). Notwithstandi ng the provi sion o f this statute, the tri al court en tered a judgment of guilty in thi s case, however not ing under “spec ial condi tions” on the judgment that he wa s senten ced pu rsuant to Tenne ssee C ode An notated section 4 0-35-31 3.

Since the expli cit l anguage of Tennessee Code Annotated section 40- 35-313 providesthat no “judgment of guil ty” is to be entered when a defendant i s placed on judici al diversi on, an order ref lectin g the offens e forwhich the Defendant has been found guilty, the lengt h of the sentence, the cl assifi cation of the offens e, and all ot her necessa ry inf ormation pursuant to the sentencing stat utes, other than a judgment of guilty, sh ould b e ente red by the trial c ourt. Th e judg men t file d in t his cas e is incorrectand it i s therefor e necessary to r

emand this matter

to the trial court

for the judgment entered to be vacated and for a proper order

pursuant to the provis ions of Tennessee Code Annotated sect ion 40-35-313 to be entered.

We therefor

e affirm the convicti on and sentence, but remand this case f

or the trialcourt to vacate its judgment of June 2, 1997 and for t he entry of a n o r der in comp liance w ith the specif ic provi sions of Tennessee Code Annotated sect ion 40- 35-313
.-10- ____________________________________ THOMAS T. WO ODALL, Judge CONCUR:

___________________________________ JOHN H. PEAY, Judge

___________________________________ L. T. LAFFERTY, Special Judge