# FILED

June 26, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON NOVEMBER 1996 SESSION

STATE OF TENNESSEE, ) No. 02C01-9606-CC-00205 ) Appellee ) ) MADISON CO UNTY V. ) ) HON. WHIT LAFON, CHRISTOPHER M. BARHAM, ) JUDGE ) Appellant. ) (Assault) ) )

For the Appellant: For the Appellee: Stephen P. Spracher John Knox Walkup Assistant Public Defender Attorney General and Repor ter 227 West Baltimore Jackson, TN 38301 (At trial) Mary M. Bers Assistant Attorney Gener al George Morton Goo ge 450 James Robertson Parkwa y District Public Defender Nashville, TN 37243-0493 227 West Baltimore Jackson, TN 38301 (On appeal) James G. (Jerry) Woodall District Attorney General James W. Thompson Assistant District A

ttorney 225 Marti n Luther King Drive Jackson, TN 38302

OPINION FILED: ___________________

REVERSED AND REMANDED

William M. Barker, Judge2 OPINION The appellant, Christopher M . Barham, appeals as of right hi s conviction in the Madison County Circuit Court of one count of assault. A ppellant was sentenced to th e maximum eleven (11) months, twenty-nine (29) da ys for the misdemeanor offense. This sentence was ordered to run consecutively to prior sentences unrelated to this conviction. On appeal, Barham contends that the trial court erred by neglecting to instruct the jury on the defense of alibi. He also objects to the consecut ive nature of his sentence. After a thorough rev iew of the record, we find that the failure of the trial court to instruct the jur

y on the defense of alibi when i t was fairly rais

ed by the evidence constitutes reversible error. Therefore, the appellant’s assault con viction is reversed and the cause is remanded to the trial court for a new trial. On a Friday afternoon in the summer of 1994, app ellant went to Evelyn Day’s home in Jackson to visit his four-year-old daug hter, Lakesha. Evelyn Day was the mother of the child and Lakesha’s pr imary caretaker. Appel lant had recently pursued his visitation ri ghts and a court had ordered a regular visitation schedule. That particular day, how

ever, was not one of the sc heduled occasions. When Ms. Day came to the door, appe llant asked to see Lakesha. The child’s mother let him in the house and they sat down on the couch in the den. According to Ms. Day, they star

ted “playing around.”

However, appellant

soon began twisting

her arm. She told him that it hurt because she was suffering from c arpal tunnel syndrome. They wrestled to the floor, where appellant then put her in a head lock. Lakesha w as in the room and observed these events. Fearful that he w as hurting her mother, she went over to appellant and started hitting him. A ppellant became upset and picked up Lakesha, put her on his lap, and spanked her. Lakesha then ordere d her father out of the house, a sentiment that was echoed by Ms. Day’ s mother, who had witnes sed the incident.3 Appellant went outside and as ked Evelyn Day to accompany him to talk. She complied by following

him into the garage. Appel lant sat down in a patio c hair, exposed his genitals to Day, and asked her to have sex with him. She declined his advances and a shouting match ensued. Appellant then left. In August of 1994, Ms. Day reported these eve nts to the authorities after l earning that she could not obt ain a restraining order against appellant. As a resul t, appellant was indict

ed for two counts of assault, one against Evelyn Day and another against Lakesha. He was also indicted for indecent exposur e. At trial, when questioned about which day the assault occurred, Ms. Day candidly admitted that she di d not remember the exact date. H owever, she testified that she distinctly r

emembers that it occurred on a F riday. Also, she stat ed that it was “around like two w

eeks before the 4th of July” and that it was close to the end of the month. R elying upo n a 1994 c alendar , it was det ermined that tha t date wou ld have been June 24. She further testified that the incident occurred betw een 4:30 p.m. and 5:30 p.m. She had gotten off work at 4:00 p.m. and appellant stopped by just shortly after she arrived home. Speci fically, she remembers loo king at the clock at 5:10 and appellant had been there for a few mi nutes. She testified that the assaul t occurred soon thereafter. Most of Ms. Day’s testimony was confirmed by her mother, Ruby Day , with whom she resided. Ruby Day stated that she w

as washing dishes w

hen the events occurred. She was able to observe her daughter and appellant because her kitch en and den adjoin in one large area. Ms. Ruby Day observed appellant twisting Evelyn’s arm and also when he put her i n a head lock. She confirmed that sh e ordered him to leave the house. Ms. Day had no firsthand knowledge about the events that occurr ed in the garage. Three witnesses testified on behalf of appellant. Phoebe Pearson w as appellant’s girlfriend at the time of the incident. She testified that on the day of the incident she and appellant rode the bus downtown in the mor ning and then they4

parted ways. Later that day, she encountered appell ant at the Hello Gorgeous Beauty Shop where he was hav ing his hair done. She and appellant left the shop around 3:00 p.m., and she drove him to hi s home where he changed his clothes for work. She dropped him off at work sometime between 4:0 0 and 5:00. On crossexamination, she admitted that s he was not sure of the actual d ate when that happened. Pearson remembered that those activities occurr ed one day, but was relying on appellant’ s assertion that the assault happened on June 24, 1994. She also agreed that she had prev iously told an inves

tigator that it could not

have been on a Friday. Other inconsistencies from her earlier statement were revealed as well. Vanessa Watkins, a stylist at the Hel lo Gorgeous Beauty Shop, al so testified on appellant’s behalf. She was aware of the day the alleg ed incident happened, but could not recall the parti cular events of that day. She did not remember whether appellant was in her shop on the day of the incident. Watkins said she often does not write down appellant

’s appointments and she had no notati on concerning him on that day. Finally, the appellant’ s supervisor at Po Fol ks restaurant, where he worked at the time of the incident, testified and introduced computerized r ecords from the restaurant. Those records r eflect that on June 24, 1994, appellant clocked in at 5:06 p.m. and clocked out at 11:07 p.m. She had no independent recollection of the hours that appellant actually w orked that night. The jury found appellant guil ty of assaulting Evel

yn Day, but acquit

ted him of the assault of Lakesha Day and the indecent exposure charg e. No fine was imposed. The trial court later sentenced appellant to eleven (11) months, twenty-nine (29) days, the maximum for a Class A misdemean or. The sentence was order ed to be served consecutively to appel lant’s unserved prior sentences.1 W e not e tha t app ellant failed to rais e this issue in his m otion for a n ew tria l. Ord inarily, th is constitute s waiver. T enn. R. A pp. P. 3(e ); State v. Clinton , 754 S.W.2d 100, 103 (Tenn. Cr im. App. 1988). However, as an exercise of our discret ion, we have chosen to address t he issue. Fur thermore, we are mindful that the suprem e court has alluded that the omission of the alibi defense in jury instruction s ma y constitute p lain error. See Mann ing v. State , 500 S.W.2d 913, 914 (Tenn. 1 973) (hold ing th at an appe llate c ourt is not p reclu ded from cons iderin g an u nas sign ed er ror on appe al if it seriously affects the fairness, integrity , or public reputation of judicial proceedings).

2 As a resu lt, app ellant ’s failu re to r equ est th e inst ructio n at tria l is of n o con seq uen ce on appe al. 5 Appellant first challenges the trial court’s failur

e to instruct the jury

on the defense of alibi. 1 He contends that he filed a notic e of the alibi defense prior to tr ial and that such defense was support ed by the proof. As a result , he argues that it was mandatory for the trial cour t to instruct the jury

on this defense. He further contends that the failure to do so is r eversible error. We are compelled to agree with appellant. It is incumbent upon a trial court to give the jur y a complete charge of the l aw applicable to the facts of the case. State v. Harbison , 704 S.W.2d 314, 31 9 (Tenn.), cert. denied , 476 U.S. 1145, 106 S.Ct. 2261, 90 L.Ed. 2d 706 (1986) (citation omitted). Trial courts hav e an affirmative duty to inst ruct the jury on eve ry issue raised by the proof. Taylor v. State , 369 S.W.2d 385, 38 6 (Tenn. 1963). This duty for a full exposition of the applicable law extends to the accused’s theory of defense, includi ng the defense of alibi. Poe v. State , 370 S.W.2d 488, 491 (Tenn. 1963). See also State v. McPherson , 882 S.W.2d 365, 374 (Tenn. Crim. App. 1994) (cit ations omitted). When a defen dant pursues an alibi defense at trial, the trial court must instruct the jury on the defense when it is “fair ly raised” by the evidence. Manning v. State , 500 S.W.2d 913, 916 (Tenn. 1973); Poe , 370 S.W.2d at 491. See also Christian v. State , 555 S.W.2d 863, 864 (Tenn. 1977); State v. Hardin , 691 S.W.2d 578, 581 (Tenn. Crim. App. 1985). This duty exists irrespecti

ve of a request for the instr uction by the defendant. 2 Poe , 370 S.W.2d at 491. Our supreme court has prov ided three scenarios reflecting when an alibi defense has been “fairly rais ed,” thereby making the i nstruction mandatory. Manning , 500 S.W.2d at 916. Those scenarios are:3 We are aware that the date of the offense was not conclusi vely est ablished. Based on information from the vict im, Evely n Day, the St ate proceeded on t he theory that the offense occurred on June 2 4, 1994. W hether th at was th e exac t day of the o ffense was a q uestion o f fact for the jury to decide. 6 (1) where the defendant’s alibi has been corroborated by other credible witnesses; (2) where the victim has been unable to identify the defendant; or (3) where the proof against the defendant is wholly circumstantial. Id. Only where th e evidenc e fairly ra ises the d efense by meetin g one of t he above circumstances does the tri al court have an unequiv ocal duty to instruct the jury. Id. In contrast, where the ev

idence does not meet these circu mstances, the trial court i s not required to give such instructions. Id. ; see also Hardin , 691 S.W.2d at 581; Almonrode v. State , 567 S.W.2d 184, 186 (Tenn. Crim. App. 1978). Becaus e the evidence at appellant’s tr ial satisfies the circums tances in the first example, we find that an instruction on the defense of al ibi was warrante d. Appellant’s only defense at trial was that he was not present in Evelyn’s house at the time of the assault. Although he did not testif y at trial, appellant’s alibi defense was introduced through Phoebe Pearson’s testimony and corroborated by Sheree Hixson, his supervisor at Po Folks. Pearson testified that she took appellant to work on the day of the assault be tween 4:00 p .m. and 5:00 p. m. Hixson produced tim e records from the restaurant w here appellant worked. Thos e records reflected that on June 24, 1994, the alleged day of the as sault, appel lant began w ork at 5:06 p .m. 3 This created a direct conflict in factual testimony. Evelyn Day testified positively that appellant was at her h ouse at 5:10 p.m on the day of the assaul t. Appellant asserted, through Hix

son’s testimony, that he w as at work that day at

5:06 p.m and remained ther

e until after

11:00 p.m. Appellant coul d not be in tw o places at t he same time. Thus, appellant fairly raised the defense of alibi and it was for the jury to evaluate the credibility of the witnesses and dec ide this factual issue. In or der to properly perform its duty of applying the law t

o the facts, the jury must be i nstructed on the law applicable to al l factual issues raised by the proof, including the ali bi defense.7

Thus, appellant was entitled to an instruction on that def ense to aid the jury in properly evalua ting th e proof. Appellant also satisfied the i nherent requirement that his alibi be corroborated by a credible

witness. See State v. Jo hnny W ayne Brown , No. 88-153-III, (Tenn. Crim. App. at Nashvil le, April 28, 1989) (holdi ng that alibi defense could not be considered fairly rai sed where it was not supported by credible ev idence). Here, the credibility of the corroborating witness, Hixson, was never at issue. From all appearances, she was a dis interested witness and the State never attacked her credibility. At the

time of trial, neither appell ant nor Hixson wor ked at the restaurant. Thus, appellant’s defense of alibi w as corroborated by cre dible evidence, thereby making it incumbent upon the tr ial court to instruct the jury on this defense. Finding that the trial court erred in its jur y charge by omitti ng the alibi instruction, we cannot say that it is harmless error. When the de fense of alibi is fairly raised by the proof at tri al, the failure to so instru ct the jury is rev ersible error. Poe , 370 S.W.2d at 490-91; see also Manning , 500 S.W.2d at 916. W hen an alibi is supported by the proof, the inst ruction is fundamental to the defense and es sential to a fair trial. Poe , 370 S.W.2d at 491. It follows that appellant’ s conviction must be reversed and a new tr

ial ordered. For the benefit of the trial court on remand we will address the alleged errors in sentencing. Appellant argues that it was error for the trial court to order his misdemeanor sentence to be serv ed consecutively to hi s prior sentences. Contr ary to the trial court’s rul ing, he contends that such an or der was not mandated by la w. In addition, appellant argues that the trial court err ed in ordering him to ser ve one hundred percent of this sentence. At his sentencing hearing , the appellant testified that he had been on parole at the time of his conviction i n this case and his parole w as thereafter revoked in par t for this conviction and in part for an unrelated parole v iolation. As the trial court was8

pronouncing its judgment regarding the appellant’ s sentence for this offense, the prosecutor advised the tr ial court that by law

the sentence for this assault c onviction was required to be or

dered to be served consecuti vely to the sentence bei ng served by the appellant followi ng his parole revoca tion. The trial court ag reed and accordingly order

ed the appellant to serve hi s eleven months and twenty -nine day sentence consecutively to his prior convic

tion. Rule 32 of the Tennessee Rules of Cri minal Procedure outlines thos e instances where consecutive s

entences are mandatory. Sinc e the appellant was conv icted of misdemeanor assault in this case, Rule 32 did not make a conse cutive sentence mandatory. Therefore, upon retrial, if the app ellant is again convicted, the trial court should use its sound discretion in determining whether a sentence in this case should be served consecutive ly or concurrently with any other sentenc es. That decision, of course, should be made based upon the r ecord and in accordance with the principles and guidelines of the Sentencing Act. Finally, the trial

court ordered that the appell ant serve one hundred percent of this misdemeanor sentence. The misdeme anor sentencing statute provides for a maximum of seventy-five percent service. Tenn. C ode Ann. § 40-35-302(d) (Supp. 1996). Our Supreme Court has held that one hundred percent ser vice may be ordered in DUI cases onl y. State v. Palmer , 902 S.W.2d 391, 393 (Tenn. 1995). Theref ore, the trial cour t may not o rder the a ppellan t to serve m ore than seventy-f ive percent of any new misdemeanor sentence he may receive upon subsequent conviction. As stated, we find that the tr ial court committed reve rsible error in faili ng to instruct the jury on the defense of alibi when it w as fairly raised by

the proof at trial. Accordingly, we reverse the appellant’s conviction for assault and remand this cause to the trial court for a new trial.9 _______________________________ William M. Barker, Judge

____________________________ Gary R. Wad e, Judge

____________________________ David G. Hayes, Judge