# FILED
May 27, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON FEBRUARY

1999 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. NO. 02C 01-9809-CC-00269 Appellee, ) ) MADISON COUNTY VS. ) ) HON. WHIT LaFON, CHARLES GWYNNE BLEDSOE, ) JUDGE ) Appellant. ) (Resisting Arrest & Assault)

FOR THE APPE LLANT: FOR THE APPELLEE:
JOSEPH L. PATTE RSON JOHN KNOX WALKUP 225 West Baltimore, Suite B Attorney General & Repor ter Jackson, TN 38301 ELI ZABE TH T. RYAN Asst. Attorney General Cordell Hull Bldg., 2nd Fl. 425 Fifth Ave., North Nashville, TN 37243-0493 JERRY WOODALL District Attorney General SHAUN A. BRO WN Asst. District Attor

ney General P. O. Box 2825 225 Martin Luther King, Jr. Dr. Jackson, TN 38302

OPINION FILED:

AFFIRMED JOHN H. PEAY, Judge1 The dispatcher’s call was based on information obtained from an anonymous caller. 2 

### O P I N I O N

The defendant was found guilty by a jury of resisting arrest and simple assault. The trial court sentenced the defendant to a term of six mont hs for resis ting arrest and a term of eleven months, twenty -nine days for assault. These ter ms were to run concurre ntly with all but thirt y days suspended. The defendant’s subsequent motion fora new trial was overruled. The defendant now appeals and contends that the trial court erred in denying hi s motion to suppress his ar res t and that the evidence is insufficient to support his conv ictions.

On October 18, 1995, Gary Benton, a Jackson police officer, received a call from a dispatch operat orregarding two s uspicious black males stand ing outside of the Hale Street Disco. 1 One of the men was supposed to be w earing a whiteshirt and the other a white and beige str

iped shirt. When Officer Benton arrived at the disco,he saw the defendant, a man he thought matched the description given by the dispatch operator, outside of the disco. Officer Benton pulled hi s c ar in front of the defendant, and the defenda nt turned around and started w alking in the opposite di rection. Officer Bento n exited his patrol car and told the defenda nt he needed t o talk to him. The defendant stopped, and Officer Benton asked the defendant to take his hands out of his pockets. According to Officer Benton, the defendant did not res pond to the request and , as a result, Officer

Benton decided to frisk the defendant for safety reasons. Officer Bent on again told the defendant to take his hands out of his pockets and place them on the wall. The defendant complied. However, after Officer Benton began to frisk the defendant, the defendant turned around and tried to grab Officer Benton’s fla shligh t. The defendant started to fall, grabbed Officer Benton’s duty belt, and pulled Officer Benton to the gro und3

with him. Officer Benton claimed the d efendant then hit him in the left arm and, in response, Officer Benton hit the defendant’s forearm with the flashlig ht. Officer Benton
was able to stand up and call for back up. Officer Benton then told the defendant he was under arrest, but the defendant started t o back away. Officer Benton sprayed t he defendant with the chemical agent “Freeze,” but the defendant continued to resist. At this point, two other police officers arrived at the scene. According to Officer Benton and one of the other officers on the scene, David Russel l, after they told the defendant he w as under ar rest, the defendant remained on the ground and k ept his arms tucked underneath his body in an effort to avoid being handcuffed. The defendant was finally handcuffed and placed under arrest. Officer Benton subsequently found marijuana in the defendant’s pocket.

The defendant testified in his own be half at trial. He testified that, upon arrivingat the disco, he realiz ed he needed to urinate. As he started to walk tow

ard the backof the building to urinate i n a ditch, a patrol car pul led up and blocked his path. The defendant testified that since he needed to urinate, he turned around and s tarted walking the other way. He further testified that

he complied with Officer Benton’ s request that he take his hands out of his p ockets and and that he turned to face the wal l when Officer Benton started to frisk him. The defendant den ie d trying to grab Officer Benton’s flashlight. He did not recall falli ng to the groun d or pullin g Office r Benton down on top of him. The defendant did not recall try ing to hi t Officer Bent on, but he did recall being spraye d with t he chemical agent. He also testified that he was hit in the face with “a flashlight or some other instrument.”

The de fendant now contends that the tri al court should have gr anted the motion to suppress his arrest.In support of this conte ntion the defendant argues that4

there was nojustification for Officer Benton’s inital stop of the defendant. The defendant argues that the anonymous tip received by the police would not have been sufficient to justify the issua nc e of a search warrant and w as insufficient to justify a s top of the defendant.

A trial court’s findings of fact on a motion to suppress are c onclusive on appeal unless the evidence preponde rates against them. State v. Moore , 949 S

. W.2d 704, 705 (Tenn. Crim. App. 1997). However, this Court must conduct a de novo review of the trial court’s appli cation of law to fact. State v. Winn , 974 S.W.2d 700, 703 (Tenn. Crim. App. 1998).

A police officer may make an investigatory stop when the office r has a reasonable suspicion, supported by specific and articulable facts , that a criminal offense has been, or is about to be, committed. Terry v. Ohio , 392 U.S. 1, 30 (1968). An investigatory

stop may be based upon information c ontained in a police radio broadcast, bulletin, or flyer is

sued by another

law enforcement agency. United St ates v. Hensley , 469 U.S. 221, 232 (1985); Moore , 775 S.W.2d at 378.

In the case at bar, Officer Benton w as told by a dispatch oper ator that a caller had reported there were t wo suspicious

black males on the corner of Hale Street,
one of which was wear

ing a white and beig e striped shirt and the other a whi te shirt. The suspiciousactivity was

not described by the

caller. When Officer Benton arrived on the
s cene, he observed the defendant walk ing around the corner. Ac cording to Office r Benton, the defendant matched one of the descriptions given by the anonymous caller. Officer Benton then became suspicious when he pulled in front of the defendant and the defendant turned around and started w alking in the opposite d irection . At that point,2 Altho ugh Offic er Be nton testifie d tha t he fo und ma rijuan a in the defe nda nt’s p ock et up on his arrest, the defendant was not convict ed of any off

ense regarding such possession. As such,there is no issue on appealpertaini ng to the sear ch of the defendant

or the suppressi on of the evi dence seized as a result of that search. 3 It is still unlawful to res ist arrest by u sing forc e even if the arrest, itself, is u nlawful. T .C.A. § 39-16-602(b). 5 Officer Benton got out of his car and stopped the defendant.

In light of the for

egoing , Offi cer Be nton did not have a reasonable suspicion, based upon specific and articulable facts , that the defendant had committedor was about to commit a criminal offense. As such, Officer Benton’s initial stop of the defendant was unconstitutional. However, even though we agree that the i nitial stop of the defendant
was unconstitutional, the defendant is not e ntitled to reli ef. 2 The fact that the initial stop of the defendant was illegal has no bearing on whether the defendant could be convicted of assault or resisting arrest. 3

The defend ant next contends that the evidence is insufficient to support his conviction for resisting arrest because t he statute regarding the offense is unconstitutional as applied to this case. We first note that whether a statute is constitutional is not a sufficiency of the evidence issue. The defendant c laims that the sta tute rega rding resisting ar rest should be declared uncons titutional because he was stopped based solely on his race. However, there is no evidence in the record indicating that the d efe ndant was stopped solely because of his race. In fact, Officer Benton testified that he stopped the defendant because he matched the description given by the anonymous caller and because he thought the defendant wastrying to avoid contact with the police when he

turned around and walked aw ayafter Officer Benton pulled up in his patrol car. In light of the lack of evidence to support the defenda nt’s con tention, it is without merit.6 The defendant’s next argument is that the resisting arrest statute is unconstitutional because article 1, section 8 of the Tenness ee Constitution protects minoritiesfrom the wrongful use of power by majoriti es and it is therefore unconsti tutional not to allow someone

to refuse to be stopped, frisked or halted by law enforcement w hen there is no reasonable suspicion of criminal activity. We agree that article 1, se ct ion 8 of the Tennessee Constitution was enacted to protect minorities from the wrongful use of power by majorities. Wally v. Kennedy , 10 Tenn. 554, 556 (1831). Howev er, as the statute regarding resisting arrest is “eq ual ly binding upon ever y member of the community,”it does not violate article 1, section 8 of the Tennessee Constit ution. Id. at 555. As such, the defendant’s contenti on is without merit.

The defendant next contends that the evidence is insufficient to support his conviction for assault. A defendant challeng ing the s ufficiency of the proof has the burden of illustrating to this Court why the evidence is insufficient to support the verdict returned by the trier

of fact in his or her case. This Court will not disturb a verdict of guilt forlack of sufficient

evidence unless the

facts contained in the record a nd any inferences which may be drawn from the facts are insufficient, as a matter of law, for

a rational trier of fact to fi nd the defenda nt guilty beyond a r easonable doubt. State v. Tuggle , 639 S.W.2d 913, 914 (T enn. 1982).

When an accused challenges the sufficiency of the convic ting evidence , we m ust r eview the evidence in the light most favorab le to the prosecution in deter mining whether “ any rational trier of fact could have found the essential el ements of the cr ime beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319 (1979). We do not rew eigh or re- evaluate the evidence and are required to afford the State the strongest legitimateview of the p roof contained in the record as well as all reasonabl e and7

legitimateinferences which may be d rawn t herefrom. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978).

The defendant argues that the proof indicate s that it was Office r Be nton that “committed the first assault,” that “ it was [the defendant] who suffered at the hands of the police,”and that the entire matter could have been avoided if the po lice had simply observed the defendant rather than immediately approaching him. However, it is within the pr ovince of the trier of fact, in this cas e the jury, to determine th e credibility of witnesses. The jury obviously credited Officer Benton’s test imo ny regarding the arrest
over that of the defendant asis within their pr ovince. As such, this argument lacks meri t. Accordingly, w

e affirm the defendant’s conviction for simple assault.

In sum, we affirm the defendant’s convictions fo r resisting arrest and simple assault.

___________________ ___________

__ _ JOHN H. PEAY, Judge

CONCUR:

_________________________________ JOE G. RILEY, Judge

_________________________________ JAMES C. BEASLE Y, SR., Special Jud ge