### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE September 19,

2000 Session
STATE OF TENNESSEE v. RICHAR D C. SILK
Direct Appeal from the Circuit Court for Rutherford County

No. M-46854 J. Steve Daniel, Judge

No. M1999-02526-CCA-R3-CD - Filed March 2, 2001

The appellant, Richard

C. Silk, was convicted by a jury in the Rutherfor d County Circuit Court of
one count of resisting arrest, a class B misdemeanor. The trial court sentenced him to six (6) months incarceration

in the Rutherford County Jail, assigning a service percentage of seventy- five percent (75%). The appellant now presents the follo

wing iss ues fo r our review: (1) whether the evidence adduced at trial issufficient to

support the appellant’s conviction of resisting arrest; (2) whether the trial court erred in sustaining certain objections by the State to the appellant’s testimony concerning
a statement made to

him by an arresting officer; and (3) whether the trial court erred in sentencing the appellant. Following a thorough review of the reco rd and the parties’ briefs, we affirm the judgment of the tr

ial court.
Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Circuit Cour

t is Affirmed.

N ORMA M C G EE O GLE , J., delivered the opinion of the c ourt, in which D AVID H. W ELLES and J OE G. R ILEY , JJ., joined.

William W. Bur ton an d Gera ld L. Melton, Murfreesboro, T ennessee, for th

e appellant, Rich

ard C. Silk.

Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney Ge

neral’ William C. Whitesell, Jr., District Attorney General; and Paul A. Holcombe, III, Assistant District Attorney General, for the appellee, State of Tennesse e.
OPINION
I. Factual Backgr

ound On January 6, 1999, a Ruth erford County Grand Jury returned a n indictment charging the appellant with one

count of assault

and one count of resisting arrest. The indictment arose from the ultimately successful efforts of off icers o f the Rutherford County Sheriff’s Department on October 1, 1998, to execute a

warrant for the

appellant’s arr

est. On April 21, 19

99, the Stat e submitted a motion to

the Ruther ford Count y Circuit Cou rt to dism iss the cha rge of assault. The trial1 At the commencement of the trial, the appellant and the State entered into the foll owing stipulation: On October 1 st of 1998, William Sharp, a Detective with the Rut her ford Cou nty Sheriff’s Departm ent and be ing a prop er off icer had in hi s possession . . . a duly issued and valid arrest warrant commanding him to arrest the Defendant, Richard Silk.
-2- court granted the State’s motion, and the State’s pr osecution proce

eded to trial on April 22, 1999, solely on the

basis of the char

ge of resisting

arrest.

At trial, the State

presented

the testimony of Detective William Sharp and Sergeant EgonGrissom, both employed by the Rutherford County Sheriff’s Department. Th e officers’ testimonyestablished that, in September 1998, a complaint was filed with the R utherford County Sheriff’s Department ag

ainst the appellant. Ac

cordingly , Detective Shar

p and his partner, Detective Dinardo, drove to the appellan t ’s workplace at Automotive Service

, a business locate

d on a main thoroughfare

in Murfreesboro. At AutomotiveService, Sharp spoke with the appellant, identifying himself as a law enforcem

ent officer and

notifying h

im concerning th

e complaint. Sharp

also warned the appellant that, if he persisted in the behavior that had provoked the c omplaint, the issuance of
an arrest warran

t might be forthc

oming. At trial, Sha

rp recalled tha

t his encounter with the appellant on this occasion was cordial, notwithstanding the topic of conversation.

Sub seq uen tly, on October 1, 1998, Detectives Sharp and Dinardo were informed that
a misdemeanor warrant had been issued for the appellant’s arrest and were ordered to execute the warrant. Accordingly, the detectives obtained the warrant 1 and, at approximately 12:30 p.m. or 1:00 p .m., drove to Automotive Service. Because the detectives’ vehicle was not equi pped for the transportation of prisoners, Sergeant Grissom accompanied t he detectives in a marked patrol car. Grissom was attire

d in a Rutherford Co

unty Sheriff

’s Department uni

form.

When the three officers arrived at Automotive Servi

ce, the appellan

t was not present. Acco rdi ngly, they waited

for several minu

tes, standing beside

their vehicles in the parking lot. The appellant soon drove into the parking lot and stopped beside the three officers. When the appellant got out of his vehicle, Sharp informed the appellant that he had a warrant for the appellant’s arrest. Add iti ona lly, Grissom explained to the appellant the

basis of the arre

st warrant. The appellant

began to back away

from the officer

s and als o be gan “yelling and screaming” and demanding to see the warrant. Sha rp t est ifi ed at tri al t hat he d id n ot i mme dia tel y s how the warrant to the appellant because he had left the wa

rrant in his

vehicl e and, moreover

, a policy of

the Rutherford Cou

nty She rif f’s Dep art men t re qui red o ffi cers to f irs t se cure arre ste es i n th eir cus tod y.

Accordingly, Sharp and

Grissomapproached the appellant and ordered him to turn aroundand place his hands on his car. The appellant initially complied. However, when Grissom placed a handcuff on theappellant’s left wrist, the appella

nt turned suddenly

, swinging his

right hand in the officer s’ dire ction and forcing Grissom to duck in order to avoid being struck in the head. Sharp then seized the app ellant’s right a

rm and attempted to

assis t Grissom in handcuffing the appellant,but the appellant c ontinued to

struggle. All three office rs were require

d to restrain him.-3- Afterwards,

the officers attempted to escort the appellant to Grissom’s patrol car, but the appellant was “kicking his feet” and screaming, “I

want to see the warrant. You can’t do this.” Grissomrecalled at the appellant’s trial that the officers were forced, essentially , to carry the appellant to the patrol car. At some point, the appellant also began complaining that the handcuff restraining his right hand was to o tight. However, the of

ficers decline

d to loosen the hand

cuff while the appellant con

tinued his efforts

to resist arrest.

At Grissom’s patrol car, the officers attempted to place the appellant inside the rear, “caged” portion of the vehicle, but the appellant propped his feet a

gainst the frame of the car door, again fighting with the offi cers. Grissom finally concluded that the

appellant posed a

danger to himself and the officers and sprayed the appellant with “Freeze Plus P,” a chemical substance similar to Mace. The appe

llant immedi ate ly b ecame compliant . At trial, Grissom n

oted that, during

his twenty-year

tenure as a l aw enforcement officer, he had only been f orced to use Freeze Plus P or Mace on one other occasion.

The offic ers next drove the a ppellant to the “Rut

herford County

Ambulance Se

rvice, ” where the appellant was brought before a magis

trate to determine whether the appellant had suffered any injuries and also to set a bail amount. At the Ambulance Service, Grissom loosened the appellant’s ri ghthandcuff. Additi onally, Shar

p showed the arre

st warrant to the a

ppellant. Sub seq uen tly, at the Ru therford County Sheriff’s Department, Sharp also read the warr ant to the appellant.

The appellant testified on his own behalf at trial. The appellan t in itially conceded that, at the time of his arrest, he knew that Sharp, Dinardo , and G rissom were law enforcement officers. In this rega

rd, he acknowle

dged that Grisso

m was wearing a

uniform, and the three officers
were standing beside

a marked patrol c

ar. He confirme

d that, approximate

ly one month be

fore his arrest, he had spoke n with Shar p concernin g a prior complaint. Somewhat contradictorily, however, the appellant also testified that

I . . . didn’t know that Detective Sharp was an officer. He still hasn’t identifiedhimself by his badge or any other kind of other i dentification. As far as I know, he’s still somebody’s good buddy

. This could be a pack of buddies out just to rouse some guy and have a good old time and exercise their testosterone.

. . . .
I was terrified. . . . I

thought they

were jus t a b unc h of good old boys outto take somebody out and beat them up. I

figured I w

as going to either end up dead in a hole somewhere or very seriously injured.
According to the appellant, he fully cooperated with the officers despite his “terror.” The appellant asserted that the only “resistance” he offered comprised his persistent demands to see the arrest warrant. Moreover, upon being handcuffed, he realized that the rig ht handcuff had been2 “‘Force’ means compul sion by t he use of ph ysical power or vio lence . . . .” Tenn. Code Ann. § 39-11- 106(a)(12) (1997).
-4- fastened too tightly, causing him extreme pain. Indeed, the appellant claimed at trial that he suffered
a significant cut to his right wrist due to the manner in which he was handcuffed. In any event, the appellant recounted that, as the officers escorted him to the patrol car, he sought to prevent his right wrist from moving, and

he request

ed that the handcuff be loosened prior to his placement in the patrol car. The appellant noted at trial tha t he had “no intention . . . of jumping into a car like a trainedporpoise.” He also conceded that the officers had to “tackle[]” him

in order to place

him in the patrol car bu

t denied that he did

anything to

provoke Grissom’ s use of Freeze Pl us P.

At the conclusion of the trial, i n addition to instructing the jury on the charged offense, the trial court ins tructed the jury

on the justificatio

n of self-defen

se as set f orth in Tenn

. Code Ann. § 39-11-611 (1997). Nevertheless, following deliberation, the jury returned a verdict of guilt of resisting arrest. Pursuant to the jury’s verdict, the trial court sentenced the appellant to six (6) months incarc

eration in the Ruthe

rford County

Jail, ass igni ng a s ervi ce pe rcen tage of s even tyfive percent (75%).
II. Analysis I. Sufficiency of the Evidence

The appellant first challenges the sufficiency of the evidence unde rly ing his conviction of resisting arrest. In Tennessee, appellate courts accord considerable weight to the verdict of a jury in a criminal tri al. In essence, a jury conviction removes the presumption of the appellant’s innocence and replaces it with one of guilt. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). Conversely

, the State is entitle

d on appeal to

the strongest legitimate view of the evidence andall reasonable inferences which may be drawn therefrom. State v. Williams , 657 S.W.2d 405, 410 (Tenn. 1983). Thi

s shifting of burdens stems from the principle that questions concerning the cred ibility of witnesses and the weight and value to be given the evidence, as well as all factual issues raised by the evid

ence, should

be resolve d by the trier of fact and not this court. State v. Pruett , 788 S.W.2d 559, 561 (Tenn. 1990). Ac cordingly, in over

coming the presump

tion of hisguilt, the appellant

must establish that “

no reasonable tr

ier of fact” co

uld have found the

essential elemen

ts of the offense beyond a reasonable doubt. Jackson v. Virgini a , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Tenn R. App. P. 13(e).

In this case, in order

to convict the appellant

of resisting arrest, the State was required to prove beyond a reasonable doubt , and the jury was required to find, that (1) the appellant obstructedan arrest by a pe rson known to

him to be a law enforcement officer ; (2) the appellant used force 2 against the law enforcement officer; and (3) the appellant acted intentionally . Tenn. Cod e Ann. § 39 -16-602 (a) (1997). It is not a defense to a charge of re sisting arrest that the arrest was unlawful. Id. at (b). However, under certain limited circumstance s, self-de fense can be a justification for resisting a rrest, excluding criminal responsibility. Id. Moreover, “[t]he [S]tate has the burden of proof

to negate the de

fense; the burde

n is not upon the defen

dant to prove the d

efense exists.” State v. Belser , 945 S.W.2d 776, 782 (Tenn. Crim. App. 1996). Whether the State has met-5-

its burden is

a question for the jury to determine. State v. Clifton , 880 S.W.2d 737, 743 (Tenn. Crim. App. 1994); State v. Woods , No. 03C01-9707-CR -00287, 1998 WL 751460, at *3 (Tenn. Crim. App. at Knoxville, October 29, 1998).

Subsection (a) of Tenn. Code. Ann. § 39-11-611 s ets forth the follo

wing basic components

of self-defens

e: (1) a person us

e d or attempted to use unlawful force against the accused; (2) there

existed a real danger of imminent death or serious bodily injury , or the accused honestly believed that the danger was real at the time of the accused’s threat or use of force; and (3) the accu sed reas ona bly b eli eved tha t he was thr eat ened wit h im min ent deat h or ser iou s bo dil y inj ury, i.e., the belief was founded upon reasonable grounds. I n the co ntext of justifying resistance to an arrest, subsection (e) of

Tenn. Code Ann. § 39

-11-611 limits the a

pplicati on of self-defense, as definedabove, to those instances in which “[t]he law enforcement offi cer uses o r attempts to use greater force than necessary to make the arrest,” andthe accused

“reasonably believes that the force is imm edi ate ly nece ssa ry to protect against the law enforcement officer’s use or attempted use of greater force than necessary.” Se e State v. Mize , No. 03C01-9405-CR-00163, 1995 WL 562243, at *8 (Tenn. Crim. App. at K nox vil le, Sep tem ber 2 2, 1 995 )(h old ing t hat sub sect ion (e) i s me rel y a restriction on t he use of self-defense, and the statute should be read as a whole in considering whether the defense applies). The Sentencing Commission Comments explain:

Subsection (e) represent

s a policy de

cision by the

commiss io n that the street is not the proper forum for determining the legality o f an arrest. To a large exten

t, the rule is

designed to protect

citizens from being harmedby law enfo

rcement office

rs. Research ha

s sh o wn that citiz ens who resist arrest frequently are injured by trained officers who use their skills and

weapons to

protect themselves and effectuate the arrest. If t

he defendant kno

ws it is a law enforcement officer who has stopped or arrested him or her, respect for the rule of

law requires the defe nda nt t o su bmi t to app aren t au tho rit y. Tenn. Code Ann. § 39

-11-611, Sentenc

ing Commission Commen ts.

The appellant predicates his challenge to the sufficiency of the evidence upon two specific claims: (1) the evidence adduced at trial does not support a finding that the appellant intendedto resist his arre

st; and (2) the evidence

adduced at trial established that the appellant acted in self-defense.

In addressin

g these claims, w

e initially r

eiterate that “w

hen witnesse s giv e diametrically

opposed versions of how an event occurred, we must presume [on appeal] that

the trier of fact accredited the ver sion in sup port of the state’s position unless the record demonstrates conclusively

the physica

l impossib ility of that versio n.” State v. Kemp , No. 02C01-9401-CC-00012, 1994 WL 568409, at *1 ( Tenn. Crim. App. at

Jackson, October 1 9, 1994). Theref ore, we must
assume that the jury

in this case accredit

ed the testimony

of Detective Sha

rp and Sergean

t Grissom. Once again, according

to the officers’ testimony, Grissom was dressed in uniform at the time of the appellant’s arrest, the thre e officers wer

e standing besid

e a marked patro

l car at that ti

me, and Detectives Sharp and Dinard o had previously

identif ied themselves to the appellant as law enforcement officers. Moreover, we note that the appellant never requested any additional confirmation of

the officers’ id

entities during th

e course of his ar

rest. The arrest occurred during the3 The appellan t does not

appear to challenge on appeal the jury’s f inding that he knew that t he arresting officers were, in fact, law enforcement off icers. Moreover, in viewof the str ong evidence adduced to th e contrary, the jury was certainly entitled to reject the appellant’s patently incredible testimony that he be lieved the arresting officers to b e “a pack of b uddies ou t just to rouse so me guy and have a goo d old time a nd exercise their testosteron e.”
-6- early afternoon at an establishment that was located on a main thoroughfare in Murfreesboro and was then open for business. The officers informed the appellant that they had a warrant for his arrest and that they were now executing the warrant. Additionally, Grissom explained t o the appellant the

basis of the arrest warran

t. Nevertheless,

the appellant use

d force to resist a

ttempts by the

officers both to handcuff him and to place him in the patrol car.

The appell ant now c laims that he did not “intend” to resist his arrest but, rather, “intended” to examine the arrest warrant and to avoid “irrepar able” injury to his wrist. However, the app ellant’s ar gument confuses intent with motive. Regardless of the appellant’s motives, the State’s ev idence established beyond a reasonable doub

t that the appellan

t intentionally

and forcefully obstructedefforts by known 3 law enforcement officers to arrest him. As to his motives, these are more relevant to potential defenses to, or justifications for, his resistance.

We first address the

appella nt ’s claim that he onl

y wished to e

xamine the arrest warrant. In this regard, we note that police do possess a small amount of flexibility in determining the pre cise time at which a warrant will be shown or provided to an arrestee. Tenn. R. Crim. P

. 4(d)(3)(empha

sis added) provides that an officer need not have a warrant in his possession at the time of the arrest “but upon request shall show the warrant to the defendant as soon as possible .” Tenn. Code Ann. § 40-6-216 (1997)(emphasis added) also provides that “[a] criminal defendant or such defendant’s attorney shall have the right to request and receive at a reasonable time a copy of any warrant.” In any event, a

ssuming that the appellant wished to examine the arrest warrant for the purpose of ensuring thelegality of his arrest, we have already noted that it is no defense to resisting arrest that the arrest w

as, in fact, unlawful. Tenn. Code Ann. § 39-16-602(b). A necessary corollary to this rule must be that an officer’s failure to provide proof that the arrest is lawful by showing an arresteethe warrant is likewise no defense. Thus, the appella nt inthis case should have “acquiesced to the apparent authority of the officers an

d contested the ma

tter in a court of l

aw if he felt he had been wronged.” State v. Bradley, No. 03C01-9408-CR -00298, 1996 WL 5

7945, at *2 (Tenn.

Crim. App. at Knoxville, February 13, 1996).

The appellant also

a rgues, howeve

r, that the office

rs’ response to hi

s reasonable request to examine the warrant

constituted an unnecessary use of force justify ing self-defense. Tenn. Code Ann. § 39-11-611(a) and (e). Preliminarily, we conclude that the evide nce adduced at trial supporteda finding by the jury that the officer

s’s conduct in sec

uring the appel

lant in their custody prior to showing him the warrant did not constitute an unnecessary use of force

. Id. at (e). Again, at the time

of the appellant’ s arrest, Sharp ha d left the arrest

warrant in his veh

icle. Neverthe

less, beforethe officers effectuated the arrest, Sharp informed the appellant that he had an ar

rest warrant, andGrissom informed th

e appellant of the

basis of the warr

ant. As noted prev

iously, Sharp

didnot immediately retrieve the warrant from his car because a policy of the Rutherford County Sheriff’s-7-

Departm ent required the officers to first secure the appellant in their custody. Shar p explai ned a t trial that this policy was intended to ensure the safety of the arrestee, the arresting officers, and the general public, as “the se

rvic e of an arrest warrant can be a volatile thing . . . , and reading the warrant . . . generally only . .

. aggravate[s

] [the situation].” I

ndeed, even as th

e appellant in this c

ase posedto the officer s his “re asonable request” to examine the arrest warrant, he was “y elling and screaming” and backing away from the officers. More importantly, the evidence adduced at t rial supporteda finding by

the jurythat the officer

s’ insistence upon

effectuating

the arrest prior

to showing the appellant the

warrant did

not pose an imminent danger of death or serious bodily injury to the appellant or

warrant a rea

sonable belief of such danger. Id. at (a). Therefore, the appellant’s
use of force was not

immedia tely necessary

to protect agai

nst the officers’ use of force, e ven if greater than necessary. Id. at (e).

Fin all y, the appellant claims on appeal, as in the trial court, that

the arresting officers also used unnecessary force in handcuffing his wrist too tightly and refusing to provide him relief prior to his placement in the patrol car. He asserts that the officers’ insistence upon placing him in the patrol car before loosening the handcuff posed an imminent danger of serious or “irreparable” injury to his wrist or, at lea st, inspired a rea sonable belief of

such danger. H

owever, the off

icers’ testimonyat trial established that any injury to the appellant or threa t of injury occu

rred solely

as a result of the appellant’ s resistance to a lawful arrest and the

offic ers’ n ecess ary resp onse t heret o. In sum, based upon the testimony of the State’s witnesses, a rational trier of fact could have found beyond a reasonable doubt that the appellant was guilty of resisting arrest and, moreover, did not act in self-defense

within the meaning

of Tenn. Code Ann.

§ 39-11-611. This is sue is without merit.

II. State’s Objecti

ons to the Appellant’ s Testimony The appell a nt additionally contends that the t

rial court erre

d in sustaining ce

rtain objections by the State t

o his testimony concerning a statement made to him by Ser geant Grissom. Briefly summarizing events at trial, the appellant testified during direct examination that, when the officers attempted to place him in Grissom’s patrol car,

I couldn’t get into the car, and I was complaining about my pain. And Officer Grissom who was in uniform was standing a distance of four to six . . . feet away. And he said, son, you’re looking for a world of pain if you don’t g

et into that car. A

nd I - - what’ s he talking abou t, you know. Are they going to club me to death or what. You know, just visions - - At this point in the appe

llant’s testimony

, the prosecutor o

bjected “to

all of this,” withoutstating the basis of his objection. The trial court sustained the objection, apparently believing that the objection
was directed at the a

ppellant’s specu

latio n concerning the officers’ possible retaliation should the appellant refuse to coope

rate with them. Accordingly, the trial court instructed the appellant, “You
are just to make comments about what was said, not what your thought process is.” Upon resumption of direct examinat ion and in accord

ance with the trial court’s instruction, the appellant merely reiterated Gri

ssom’s c omment. The prosecutor then stated, “I am going to object to that again.” On this occasion, the prosecutor clarified that his objection was based upon the hearsay r ule. Tenn. R. Evid. 802. The tri al court preli

m inarily agreed but invited defense counsel to respond.-8-

Defense counsel st ated, “That ’s Your Hono r’s ruling. No need to respond.” The trial court again sustained the prosecutor’s objection.

On appeal, the appellant

contends that Grissom’s comment “was not offered for the truth of the statement but [to] show [] the state of mind of the defendant,” which was, in turn, relevant to a justification of self-defense. Similarly, the appellant contends that any spe

culation in

which he engaged at the ti me of his arrest c oncerning possi

ble abuse by

the officers wa

s relevant to his defense.

We conclude that the appellant has waived th is issue for purposes of appellate review. Tenn. R. App. P. 36(a) provides that “[n]othing in thi s rule shall be construed as requiring relief be grant edto a party r

esponsible for an

error or who fa

iled to take whate

ver action was r

easonably available to prevent or nullify the harmful effect of an error.” In this case, the appellant offered the trial court no opportunity to rule upon his positions,now presented to this court, due to his failure to offer any response to the State’s objections, even when expressly invited to respond by the trial court. The appellant als

o failed to include

this issue in

his motion for new trial. See Tenn. R. App. P. 3(e). Finally, upon careful review of the issue and the record in this case, we decline to exercise
our discretion pursuant

to Tenn. R. Crim. P. 52(b). State v. Smith , 24 S.W.3d 274, 282-283 (Tenn. 2000).

III. Sentencing

The appellant next argues that the trialcourt erred in se ntencing him for

the offense of resisting arre

st by assign

ing him a service percentage of one hundred percent (100%) and denying him a sentencing a

lternative to inca

rceration. We init

ially note that, under Tenn. Code Ann. § 40-35- 302(d) (1997), a trial court may not assign a service percentag e of more than seventy-five percent (75%), and, in fact , the judgm ent reflec ts that the trial court assigned the appellant the maximum service percentage of seventy- five percent (75%). We also note that the record does not include a transcript of the sentencing hearing. Under Tenn. Code Ann. § 40-35-302(a), the trial court is not required to hold a separate

hearing in

imposi ng a sentence for a misdemeanor; nevertheless, the parties agree and

the record reflects that the trial court condu

cted such a hear

ing in the instant c

ase on June 18, 1999. The burden is upon the appellant to ensure that the record before this cour t
co nve ys a fair, accurate, and complete account of proceedings relating to those issues that ar e the bases of appeal. Tenn. R. App. P. 24(b). The failure to do so results in a waiver of such issues and
a presumption that the trial court’s determinations are correct. State v. Oody , 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991). Accordingly, absent a transcript of the sentencing hearing, the appellant is not entitled to relief.

III. Conclusion

For the foreg

oing reasons, w

e affirm the judg

ment of the trial c

ourt.

___________________________________ NORMA McGEE OGLE, JUDGE