IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs February 23, 2012

STATE OF TENNESSEE v. EDDIE LEROY ROWLETT

Appeal from the Circuit Court for Stewart County

No. 4-1967-CR-08 Larry Wallace, Judge

No. M2011-00485-CCA-R3-CD - Filed February 26, 2013

The Defendant, Eddie Leroy Rowlett, was convicted by a Stewart County jury of aggravated

assault and resisting arrest. Following a sentencing hearing, the trial court imposed an

effective six-year sentence. In this direct appeal, the Defendant challenges (1) the denial of

his motion to suppress, arguing that the entry into his home and his subsequent detention and

arrest violated his Fourth Amendment rights; (2) the sufficiency of the evidence supporting

his convictions; (3) several evidentiary rulings, including the admission of certain

photographs and limitations on establishing a “criminal trespass” defense; and (4) the jury

instructions, arguing that a special instruction should have been given for the State’s failure

to disclose the deputy’s telephone records, and that instructions on self-defense and defense

of others should have been included in the final charge to the jury. Because the evidence of

serious bodily injury was insufficient, the Defendant’s conviction for aggravated assault is

reversed and modified to a conviction for Class A misdemeanor assault. The judgment for

resisting arrest is affirmed. The case is remanded for resentencing.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court

Affirmed in Part; Reversed in Part

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD

WITT, JR., J., joined. JEFFREY S. BIVINS, J., filed a separate opinion concurring in part and

dissenting in part.

B. Lynn Morton (at trial), Clarksville, Tennessee; William (Jake) B. Lockert, III, District

Public Defender, and Drew W. Taylor, Assistant Public Defender (on appeal), for the

appellant, Eddie Leroy Rowlett.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant

Attorney General; Dan M. Alsobrooks, District Attorney General; and Suzanne LockertMash, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION

FACTUAL BACKGROUND

This case arises from an officer-involved shooting that occurred at the Defendant’s

residence during the early morning hours of September 25, 2006. The Defendant allegedly

assaulted the officer, and ultimately, the officer shot the Defendant to halt the Defendant’s

advances. As a result of these events, a Stewart County grand jury returned a three-count

presentment against the Defendant, charging him with one count of aggravated assault

causing serious bodily injury, one count of aggravated assault by display of a deadly weapon,

and one count of resisting arrest. See Tenn. Code Ann. §§ 39-13-102, -16-602.

Motion to Suppress. The Defendant filed a motion to suppress the evidence on July

28, 2008. Therein, the Defendant argued that his seizure and subsequent arrest were not

supported by probable cause and, thus, were in violation of his Fourth Amendment rights.

He also submitted that he revoked any consent to enter his residence, and Deputy Saltkill did

not comply with his request to leave, violating his constitutional rights. The State filed a

response, claiming that there was no unlawful seizure or arrest of the Defendant. A hearing

was held on February 13, 2009.

At the hearing, Chris Summers testified that he was a paramedic with Stewart County

Emergency Medical Services (“EMS”). Shortly before midnight, he and his partner

responded to a 9-1-1 call from the Defendant’s residence of “difficulty breathing, shortness

of breath.” Once inside the residence, they located the Defendant sitting on a couch,

“explaining how he felt, how he was breathing and so forth, calm at first.”

Upon further questioning, the Defendant requested a breathing treatment. Summers

informed the Defendant of EMS policy to transport patients to the hospital after

administering a treatment. Summers, having knowledge of a recent visit by another EMS

crew, told the Defendant that they “could not keep coming out [t]here to administer breathing

treatments to him . . . and then leave.” Summers recommended that the Defendant be

transported to the hospital. Summers then phoned his supervisor and received permission

to administer the treatment to the Defendant, still hoping to transport the Defendant

thereafter.

After the breathing treatment was given, the Defendant said that his breathing was

getting better. Summers and his partner tried, to no avail, to get the Defendant to accompany

them to the hospital anyway. The Defendant became “very belligerent, angry.” As

Summers’ partner removed the blood pressure cuff from the Defendant, the Defendant stood

up and said, “I’m going to whoop your ass.” In the process of standing up, the Defendant

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“slightly shoved” Summers’ partner. Believing the scene to be unsafe, they proceeded to

pack up their equipment “and get out as quick as possible.”

Summers testified that he did not yell at the Defendant’s wife at any point during the

episode. When asked if the Defendant threatened his wife at any time while they were inside

the residence, Summers replied, “He pointed out to her very loudly” that it was her fault

because she “was the one that called 9-1-1 for [them] to come out here. [She was] the one

who started all this.” Both Summers and his partner believed the Defendant’s wife “could

possibly be in some kind of spousal abuse.” They were concerned that “some kind of

altercation may take place if [they] did not say or do something to report this in any kind of

way.” They were also worried about future EMS calls to that residence, so they radioed

dispatch and advised of the situation that had just occurred at the Defendant’s residence and

requested an officer to accompany EMS personnel on all future calls.

They then met with Deputy Dana Saltkill, who had been monitoring the radio, at

“EMS Station 2” to explain the events. Summers told Deputy Saltkill how the situation had

escalated at the Defendant’s residence and expressed his concern for the Defendant’s wife,

requesting a “welfare check” be conducted. Following the events of the evening, Summers

made an incident report of the evening’s events.

On cross-examination, Summers stated that anxiety often accompanies shortness of

breath. Summers also said that the Defendant did not want to be transported because he did

not have medical insurance and could not afford the expense. Summers estimated that his

visit to the Defendant’s residence lasted about thirty minutes.

According to Summers, his partner participated in the previous call to the Defendant’s

residence, and on that occasion, a breathing treatment was not administered. Summers

confirmed that neither he nor his partner wanted to take out a warrant against the Defendant

based upon his behavior that evening when they met with Deputy Saltkill.

Deputy Saltkill, a deputy with the Stewart County Sheriff’s Department, testified that

he met with EMS, who stated their concern for Mrs. Rowlett and their desire for Deputy

Saltkill to conduct a welfare check at the residence. Deputy Saltkill explained that a welfare

check “is to make sure there’s no domestic violence going on at that residence.” Deputy

Saltkill stated that he was familiar with the Defendant and his “past domestic assaults on

Mrs. Rowlett.”

Deputy Saltkill testified that Chris Summers informed him that the Defendant “got

very angry at them and started pushing them out the door.” According to what Summers told

Deputy Saltkill, they were in fear of the Defendant, so they left the Defendant’s residence

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quickly and contacted dispatch for police assistance. Summers also requested Deputy Saltkill

“to go out there and talk to [the Defendant] and just tell him the next time an EMS unit

comes out there, also that the police were going to come out there too.” After speaking with

EMS, Deputy Saltkill went immediately to the Defendant’s residence.

According to Deputy Saltkill, he “drove in the driveway” of the Defendant’sresidence

and turned his “lights out.” He then exited his vehicle and started walking “up to the trailer

looking around and just to see what’s going on.” He observed “a possible light on in the

living room” and walked up to the porch and knocked on the front door. According to

Deputy Saltkill, the Defendant answered the door dressed in boxer shorts. Deputy Saltkill

informed the Defendant that, based upon his talk with EMS personnel, he “was there to

check on him and make sure everything was all right.”

According to Deputy Saltkill, at the outset of their conversation, the Defendant was

polite and invited Deputy Saltkill inside. Deputy Saltkill testified, “I told him I was there to

check on him and he said, come on in.” Once inside the residence, Deputy Saltkill was able

to observe Mrs. Rowlett, who was in the kitchen; he did not talk to Mrs. Rowlett at that time.

Deputy Saltkill inquired about the prior incident with EMS, and the Defendant “started

getting agitated” and yelled at Deputy Saltkill. The Defendant then turned and yelled at his

wife, “you better not ever call the ambulance again because I will sit here and die.” Deputy

Saltkill explained that the EMS was there “trying to help” him and that he did not “need to

push them out the door.”

At this time, the Defendant “started coming towards” Deputy Saltkill. The Defendant

got “probably about a foot away” from Deputy Saltkill and “stuck his finger” in Deputy

Saltkill’s face, “just yelling.” Deputy Saltkill then asked the Defendant “to back up”

because, knowing about the Defendant’s past history of violence, Deputy Saltkill did not

want the Defendant that close to him. Deputy Saltkill testified that the Defendant did not

“back up,” so he told the Defendant, “if you don’t back up. I’m going to back you up.” The

Defendant finally complied.

Shortly thereafter, the Defendant began “getting furious” with Deputy Saltkill.

Deputy Saltkill testified that the Defendant said for him “to get the f--k out of his house and

went to the door.” Deputy Saltkill “was kind of angled at the door and between [the

Defendant],” and as the Defendant headed towards the door, his shoulder hit Deputy

Saltkill’s, shoving him. Deputy Saltkill did not arrest the Defendant at that time. The

Defendant was still belligerent towards Deputy Saltkill, who continued to ask the Defendant

to calm down. The Defendant opened the door and again told Deputy Saltkill to get out of

the house. The Defendant said to Deputy Saltkill, “I told the guys out earlier I’d whoop their

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a-s and I’ve done whooped a 400 pound n----r’s a-s and I’m going to whoop yours.” The

Defendant was now between Deputy Saltkill and the door.

The Defendant then “took a blatant stance raising his hands up” and hit Deputy

Saltkill “in the left chest area,” pushing Deputy Saltkill backwards. Deputy Saltkill then

informed the Defendant to get on the ground, that he was going to arrest him and take the

Defendant to jail.

Deputy Saltkill pulled out his taser and called dispatch, requesting “backup.” The

Defendant picked up a computer chair, using it as shield, and asked Deputy Saltkill not to

shoot him with the taser. The Defendant began “backing up,” still disobeying Deputy

Saltkill’s commands. Deputy Saltkill testified that he was afraid of being assaulted with the

chair. Deputy Saltkill attempted to discharge his taser, but it malfunctioned. When Deputy

Saltkill “started advancing on” the Defendant, the Defendant threw down the chair and went

inside a bedroom.

Deputy Saltkill asked Mrs. Rowlett if the Defendant had any weapons in the bedroom,

and Mrs. Rowlett stated, “yes, a knife.” The Defendant emerged from the bedroom in “[a]

matter of seconds,” and Deputy Saltkill noticed “something wrapped around [the

Defendant’s] right fist.” Deputy Saltkill believed the item was a belt. The Defendant

grabbed another chair, and by this time, Deputy Saltkill had transitioned to his handgun. The

Defendant continued to approach Deputy Saltkill with the chair in front of him. Once the

Defendant was “about a foot away from” Deputy Saltkill, the Defendant dropped the chair.

Deputy Saltkill then tried to kick the Defendant “in the groin to get him back away from

[him].” At this time, the Defendant “came around” and hit Deputy Saltkill in his left eye.

Deputy Saltkill stated that he “was fixing to pass out because of the pain.” The Defendant

continued advancing towards Deputy Saltkill, so Deputy Saltkill shot the Defendant once,

halting the advance. According to Deputy Saltkill, “this occur[red]” in “a matter of minutes,”

“no more than three minutes total.”

On cross-examination, Deputy Saltkill was asked if he had any intent to arrest the

Defendant when he arrived at the residence, and Deputy Saltkill said, “No. My only intent

was to check on [Mrs. Rowlett] and do an investigation on assaulting the . . . other EMS.”

Deputy Saltkill confirmed that neither of the EMS personnel wanted to take out a warrant

against the Defendant for assault. Deputy Saltkill explained, “But any time there is an

assault, there’s a follow-up. If I can find a person to talk to and ask them what went on, I’m

going to go out there and talk to him.” Deputy Saltkill continued, “I was just going to advise

[the Defendant] and let him know if [EMS] come out [t]here next time not to be putting his

hands on them because the police was going to be out there with them.”

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Deputy Saltkill agreed that if the Defendant would not have answered the door when

he knocked, then “there wouldn’t have be[en] anything” he could have done. Further,

Deputy Saltkill agreed that any contact with the Defendant “from the very beginning was

voluntary.”

Deputy Saltkill acknowledged that the Defendant was clear when he instructed him

to leave, but because the Defendant “was so angry,” Deputy Saltkill was unsure what the

Defendant “would have done to his wife.” Deputy Saltkill stated that he told the Defendant

he was going tell him “one more thing before [he] left,” in an attempt to defuse the situation.

The Defendant continued to insist that Deputy Saltkill leave, but Deputy Saltkill was going

to stay because he wanted to talk to Mrs. Rowlett. Once Deputy Saltkill decided to arrest the

Defendant, he was “not leaving that house.” Deputy Saltkill said that he remained at the

front door area once invited inside.

Deputy Saltkill estimated that only fifteen seconds elapsed from the time the

Defendant took “the defensive stance” until he shot the Defendant. Deputy Saltkill testified

that everything “happened real quick.” According to Deputy Saltkill, the Defendant did not

“give [him] a chance to even talk to [Mrs. Rowlett].”

At the conclusion of the hearing, the trial court overruled the Defendant’s motion,

reasoning as follows:

After considering all the circumstances involved in the case, . . . an

officer needs to have the ability to be able to find out if someone is in danger.

And based on the officer’s information at that time, he went to the house on

a valid belief that there might have been some danger for Mrs. Rowlett and

wanted to inquire about the assault, even though the EMS wasn’t going to

press charges.

At that point in time, when he went to investigate or find out as a

caretaking role what was going on, the situation with Mr. Rowlett obviously

escalated to where we find ourselves today. At that point in time, it ended up

being an assault eventually by Mr. Rowlett upon the officer and, unfortunately,

resulted in the circumstances in which we find ourselves. So, any time there’s

a situation like this, it’s always an unfortunate situation, but the [c]ourt finds

that there’s not enough evidence to suppress the arrest, therefore, the motion

is respectfully denied in all respects.

A written order denying the motion was entered on May 12, 2009. The case proceeded to

trial.

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Trial. The evidence presented at trial revealed the following facts. Louella Rowlett

testified that late in the evening on September 24, 2006, she phoned 9-1-1 because her

husband, the Defendant, was having trouble breathing. She acknowledged that in the prior

“week or two,” EMS had come to their home and explained that “they couldn’t just treat,

they had to treat and transport.” During her call to 9-1-1 on September 24, 2006, she stated

her desire that the Defendant not be transported to the hospital. A recording of this call was

played for the jury.

Stewart County EMS personnel, Chris Summers and his partnerJustin Zellers, arrived

at the Defendant’s residence between 11:30 p.m. and midnight that evening. Zellers had

been involved in the prior call to the Defendant’s residence one week earlier. On that prior

call, they did not treat the Defendant.

Upon their arrival on September 24, 2006, the Defendant was experiencing breathing

difficulties, and he requested the administration of Albuterol medication. The Defendant

again stated his desire not to be taken to the hospital due to his lack of medical insurance, and

the EMS again relayed their policy to take a patient to the hospital following treatment on the

scene. Eventually, they contacted their supervisor to get approval to give the Defendant a

breathing treatment. After receiving approval, they administered the medication and checked

the Defendant’s vital signs. According to Zellers, the Defendant “appeared to be breathing

better.” They again requested that the Defendant accompany them to the hospital, and then

“it escalated to [where the Defendant] was getting more agitated.”

The Defendant, who said he had been drinking that evening, became violent. Mrs.

Rowlett stated that the Defendant told the paramedics “to get the f--k out of [his] house” after

“they were getting onto [her]” for calling them. Zellers testified that they never admonished

Mrs. Rowlett and that the Defendant began making threats following their repeated requests

for him to accompany them to the hospital. As Zellers was “taking the BP cuff off” the

Defendant, the Defendant “shoved [Zellers] out of the way.” Summers said that the

Defendant told them, “If you don’t get out of here right now, I’m going to whoop both of

you're a-ses right now.” According to Summers, the Defendant “proceeded to shove [them]

out the door.” They quickly gathered their supplies and left. The entire encounter lasted

approximately thirty-eight minutes.

Zellers explained that at some point during the incident, the Defendant began to

criticize Mrs. Rowlett, blaming her for the EMS’ presence in their home because she had

been the one to call for medical assistance. Zellers described the Defendant as “yelling” at

Mrs. Rowlett. After leaving the Defendant’s home, they contacted dispatch for a “welfare

check” on the Defendant’s residence, believing the Defendant’s “wife could very well be in

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danger.” They also requested that police accompany EMS personnel on any future visits to

the Defendant’s home. Recordings of these calls were played for the jury.

Deputy Saltkill responded to the EMS’ call for a check on the Defendant’s residence

“for some kind of domestic dispute.” The EMS were concerned for Mrs. Rowlett. Summers

and Zellers met with Deputy Saltkill at an EMS station and relayed the events that had

occurred earlier that evening. Deputy Saltkill testified that Summers reported to him that the

Defendant had “put his hands on him and pushed him out the door.” Deputy Saltkill then

proceeded to the Defendant’s home.

Deputy Saltkill provided trial testimony similar to that he gave at the suppression

hearing about the events occurring inside the Defendant’s home. Deputy Saltkill described

his injury at trial as follows. He said that the Defendant “coldcocked” him in the eye with

“some type [of] an item wrapped around his hand” and that the hit was “so hard” that his

knees “buckled.” He was “dazed” after the hit. The hit caused lacerations “to the eyelid”

and nose, with blood “pouring out of” the eye, and he could not see out of it. Deputy Saltkill

testified that he experienced “pretty high” pain after being hit in the face by the Defendant.

An ambulance was called to the scene to tend to Deputy Saltkill’s injury. EMS

“cleaned up [the] eye,” and Deputy Saltkill began to “see out of it a little bit better.” He was

not transported to the hospital and returned to the sheriff’s office a few hours after the

incident.

Photos of Deputy Saltkill’s eye were admitted into evidence, over objection from the

defense. Approximately thirteen photos of the eye were entered in total, and the photos

spanned several days, showing how the injury progressed over time. Deputy Saltkill testified

that, over the next few days, his eye was “swollen.” He further explained that he lost sight

in the eye for one night because it was “swollen shut.”

In addition to EMS personnel who tended to the Defendant and Deputy Saltkill,

numerous other law enforcement officials arrived on the scene. Deputy Daren Taylor with

the Stewart County Sheriff’s Department responded to the call for backup and was the first

to arrive on the scene. Deputy Taylor estimated that he arrived within “[t]hree to four

minutes max.” Upon entering the Defendant’s residence, he observed Deputy Saltkill with

his weapon drawn and then saw the injury to Deputy Saltkill’s face. According to Deputy

Taylor, Deputy Saltkill asked him “to keep the male subject on the floor,” and Deputy Saltkill

appeared as if “he was about to pass out.” Deputy Saltkill exited the residence. When EMS

arrived shortly thereafter, Deputy Taylor “holstered [his] weapon.”

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After the Defendant had been transported from the home, Deputy Taylor took a

statement from Mrs. Rowlett. Deputy Taylor denied using force or threats in getting a

statement from Mrs. Rowlett and denied that he told her what to say. He further denied

speaking with Deputy Saltkill before taking the statement from Mrs. Rowlett. Mrs. Rowlett’s

statement was admitted into evidence, which statement provides as follows:

The deputy came to the door, and was asking Eddie about what went on earlier

with the EMS guys. The deputy was trying to explain that they were there to

help him and that he shouldn’t have got an attitude and pushed them out the

door. Eddie started to get angry and told the deputy to get out of the house.

Eddie got angrier and started to get up in the deputy’s face. The officer told

him to back down, that’s when I think Eddie pushed or hit him, and he pulled

out his taser. Eddie picked up a chair and started to back up toward the

bedroom and shut the door. The officer asked me if he had any weapons. I

told him he had a knife. Eddie came toward him and hit the officer in the eye.

That’s when the officer shot him.

Deputy Taylor described Mrs. Rowlett’s demeanor following the incident as “just no

emotion.” Deputy Taylor also stated that, after writing the statement, Mrs. Rowlett inquired

about Deputy Saltkill’s well-being following the attack. Mrs. Rowlett then asked if she could

go back inside to check on her child. According to Deputy Taylor, Mrs. Rowlett never asked

to leave the residence to be with her husband.

Also present on the scene that evening were Andrew Washington, an officer with the

Stewart County Sheriff’s Department; John Vinson, the Sheriff of Stewart County; and

Deryk Wyatt, Chief Deputy of the Stewart County Sheriff’s Department. Sheriff Vinson

went to the scene and, thereafter, contacted the Tennessee Bureau of Investigation (“TBI”)

for assistance with the investigation. According to Sheriff Vinson, Mrs. Rowlett also asked

him about Deputy Saltkill. Sheriff Vinson said that Mrs. Rowlett “appeared to be fine” and

that she never requested to leave the residence. Chief Deputy Wyatt also testified that Mrs.

Rowlett asked how Deputy Saltkill was doing. According to Chief Deputy Wyatt, if Mrs.

Rowlett had asked to be transported to the hospital to see her husband, then they would have

made arrangements for her transportation. Chief Deputy Wyatt testified that the sheriff’s

department deferred the investigation to the TBI.

Chief Deputy Wyatt described the radio dispatch system for the jury. Multiple

recordings of radio transmissions and telephone calls going into and out from dispatch,

involving EMS personnel, various deputies, and officers, during the relevant time frame were

played for the jury and admitted into evidence. During several of these “different

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transmissions,” different “individuals [were] talking about the inability to transmit” from the

Defendant’s residence.

At approximately 3:50 a.m., TBI Agent Derrick Jones arrived at the scene to conduct

an investigation of the shooting. He spoke with Deputy Saltkill and collected evidence from

the scene. AgentJones also reviewed Mrs. Rowlett’s written statement, took statementsfrom

Deputies Saltkill and Taylor, and received a report from Chief Deputy Wyatt. Agent Jones

recounted Deputy Saltkill’s statement for the jury. Also, EMS workers Summers and Zellers

gave statements to Agent Jones, which statements were admitted into evidence. Agent Jones

later went to the hospital and visited the Defendant. While there, he took a picture, which

was admitted into evidence, of the Defendant’s right hand, showing “some scabs or injuries

. . . on the knuckle area.” Ultimately, Agent Jones concluded that the shooting was

“justified.”

The Defendant testified on his behalf and denied ever hitting Deputy Saltkill. First,

the Defendant claimed that he was never angry with his wife while the EMS personnel were

inside his home. According to the Defendant, “when they were taking the thing off my arm,

[they] actually tried to lift me up to tell me to come on, . . . I was going” to the hospital. The

Defendant said to the EMS, “[G]et off me.” The Defendant testified that the EMS personnel

then turned to Mrs. Rowlett and said, “[L]ook, lady, you know, we’re not his baby sitter.

Don’t be calling us out here.” The Defendant did not like the way they spoke to his wife, so

he told them to “get the eff out of [his] house.” They left. The Defendant claimed that there

“wasn’t any contact at all” with the EMS.

The Defendant denied that he ever gave Deputy Saltkill permission to enter his home.

According to the Defendant, Deputy Saltkill knocked on the front door,said “Stewart County

Sheriff’s Department,” opened the door, and “stepped on in.” Once he was inside, they

discussed the prior situation with EMS. The Defendant then told Deputy Saltkill he needed

to leave, and Deputy Saltkill said “that he would leave whenever . . . he decided to leave and

that [the Defendant] needed to listen to what he had to say.”

According to the Defendant, this discussion continued for five or six more minutes,

after which the Defendant “started to step up and open” the front door. Deputy Saltkill

ordered him “to back up, get out of his face or he would back [him] up.” Shortly thereafter,

the Defendant, who was dressed in only his boxer shorts, told Deputy Saltkill to “get the eff

out of [his] house because” he was going to bed. He denied ever pushing Deputy Saltkill.

Instead, according to the Defendant, Deputy Saltkill “shoved” him “so hard” that he “flew

backwards.” Deputy Saltkill then pulled out his taser. The Defendant retreated to his

bedroom but emerged quickly once he realized his son was inside the bedroom. The

Defendant denied having anything in his hands when he exited the bedroom. He claimed that

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he told Deputy Saltkill he wanted “to give up,” but Deputy Saltkill responded “he didn’t give

an eff.” According to the Defendant, he was attempting to leave the residence through the

back door when he was shot. The Defendant testified that, after being shot, Deputy Saltkill

said to him, “[S]tay down or I’ll blow your head off.” The Defendant asked Deputy Saltkill

why he shot him, and Deputy Saltkill replied “that he was in fear of his life.”

The Defendant denied ever touching Deputy Saltkill. According to the Defendant, he

did not see any injury to Deputy Saltkill’s eye after the shooting. The Defendant alluded to

“an altercation in high school” with Deputy Saltkill as a possible motivation for the shooting.

The Defendant also recounted an incident where Deputy Saltkill pulled him over forspeeding

and arrested him for driving on a suspended license, but his “license was good.”

In addition to the Defendant’s testimony, Mrs. Rowlett, who was declared a hostile

witness for the State, gave a similar recount of the events as that of the Defendant.

According to Mrs. Rowlett, when Summers and Zellers returned to her house following the

shooting, they said to the Defendant, “[W]ell, are you going to act right now.” Mrs. Rowlett

testified that the Defendant replied to the EMS, “I’m sorry I cussed out you boys; can you

help me?” Mrs. Rowlett also testified that, after her husband had been transported from the

home, she “asked anybody that was there” if she could leave to go be with her husband. She

claimed that she was upset and that they told her she could not leave until she gave a

statement. She denied ever asking anyone how Deputy Saltkill was doing. Additionally,

Mrs. Rowlett claimed that Deputy Taylor told her what to write and denied much of the

contents of the statement she gave to Deputy Taylor.

Both Rowletts admitted that they had a pending civil suit against Deputy Saltkill and

the Stewart County Sheriff’s Department based on these events. In that lawsuit, they were

asking for damages in the amount of five million dollars.

Following the conclusion of proof, the jury found the Defendant guilty in Count 1

(aggravated assault causing serious bodily injury), not guilty in Count 2 (aggravated assault

by display of a deadly weapon), and guilty in Count 3 (resisting arrest). The trial court

imposed a five-year and six-month sentence for the aggravated assault conviction and a

consecutive term of six months for the resisting arrest conviction, resulting in an effective

six-year sentence in incarceration. This appeal followed.

ANALYSIS

On appeal, the Defendant raises multiple issues for our review: (1) whether the trial

court erred in denying his motion to suppress; (2) whether the evidence was sufficient to

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support his convictions; (3) whether the trial court erred in several evidentiary rulings; and

(4) whether the trial court erred in its instructions to the jury. We will address each in turn.

1

I. Motion to Suppress

The Defendant argues that his suppression motion was improperly denied. The

Defendantsubmits that Deputy Saltkill’s entry into his home violated his Fourth Amendment

protections, specifically that Deputy Saltkill’s entry was not justified under the communitycaretaking or emergency aid exceptions to the warrant requirement. Alternatively, the

Defendant contends that if Deputy Saltkill was legitimately inside the home based upon the

Defendant’sinitial consent, the Defendant thereafter unequivocally withdrew that invitation.

According to the Defendant, the encounter was no longer consensual, and his subsequent

detention and arrest violated his constitutional rights.

First, the State correctly notes that the Defendant has failed to provide citations to the

record in the argument section of his brief. Our rules require that each issue raised by a

defendant contain “citations to the authorities and appropriate references to the record.”

Tenn. R. App. P. 27(a)(7)(A); see also Tenn. R. Crim. P. 10(b). . While the Defendant risked

waiver, the Defendant did provide citations to the record in the “statement of the facts”

section of his brief, and the technical record includes everything necessary for our review.

We, therefore, choose to address this issue on its merits.

Addressing the merits of the issue, the State responds that the trial court properly

denied the Defendant’s motion to suppress since the initial encounter between Deputy

Saltkill and the Defendant was consensual, noting that “courts have upheld the ‘knock and

talk’ procedure as a consensual encounter, as well as a means to request consent to search

a residence.” The State continues that the Defendant invited Deputy Saltkill into his home

and that the Defendant’s subsequent detention and arrest were supported by probable cause.

On review, an appellate court may consider the evidence presented at the suppression

hearing as well as at trial in determining whether the trial court properly denied a pretrial

motion to suppress. State v. Henning, 975 S.W.2d 290, 297-99 (Tenn. 1998). When the trial

court “makes findings of fact in the course of ruling upon a motion to suppress, those

findings are binding on appeal unlessthe evidence in the record preponderates against them.”

State v. Meeks, 262 S.W.3d 710, 722 (Tenn. 2008). Additionally, a trial court’s conclusions

of law along with its application of the law to the facts are reviewed de novo without any

presumption of correctness. Id. The prevailing party “is entitled to the strongest legitimate

view of the evidence adduced at the suppression hearing as well as all reasonable and

For the purpose of clarity, we have reordered and combined several of the issues as presented by the 1

Defendant in his brief. 

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legitimate inferences that may be drawn from that evidence.” State v. Talley, 307 S.W.3d

723, 729 (Tenn. 2010) (quoting State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). Questions

about “the assessment of witness credibility, the weight and value of evidence, and the

resolution of evidentiary conflicts are entrusted to the trial court” as the trier of fact. Meeks,

262 S.W.3d at 722.

Both the federal and state constitutions offer protection from unreasonable searches

and seizures with the general rule being “that a warrantless search or seizure is presumed

unreasonable and any evidence discovered subject to suppression.” Talley, 307 S.W.3d at

729 (citing U.S. CONST. amend. IV; TENN. CONST. art. I, § 7). As has often been repeated,

“the most basic constitutional rule in this area is that ‘searches conducted outside the judicial

process, without prior approval by judge or magistrate, are per se unreasonable under the

Fourth Amendment—subject to only a few specifically established and well delineated

exceptions.’” Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971) (quoting Katz v.

United States, 389 U.S. 347, 357 (1967)); see also State v. Berrios, 235 S.W.3d 99, 104

(Tenn. 2007). Such exceptions to the warrant requirement include “searches incident to

arrest, plain view, exigent circumstances, and others, such as the consent to search.” Talley,

307 S.W.3d at 729. These constitutional protections “are designed to safeguard the privacy

and security of individuals against arbitrary invasions of government officials.” Id. (quoting

State v. Keith, 978 S.W.2d 861, 865 (Tenn. 1998)).

Courts have generally recognized the right of police officers to enter portions of a

person’s property that are implicitly open to the public for purposes of seeking an

individual’s consent to perform a search, and furthermore this court has expressly

“recognize[d] that ‘it is not improper for a police officer to call at a particular house and seek

admission for the purpose of investigating a complaint or conducting other official

business.’” State v. Cothran, 115 S.W.3d 513, 522 (Tenn. Crim. App. 2003) (quoting 1

Wayne R. LaFave, Search and Seizure § 2.3(b) (3d ed. 1996)). Police officers conducting

official business have the same rights as members of the general public, and as such they may

enter any area of a person’s property into which the general public is implicitly invited for

purposes of pursuing legitimate business or social interests—such as a sidewalk or pathway

leading from a public street to the front door of a residence—because individuals do not have

a legitimate expectation of privacy in such areas. See, e.g., State v. Harris, 919 S.W.2d 619,

623 (Tenn. Crim. App. 1995) (“What an officer sees from a vantage point along the walkway

between the public road and the front door is not protected by either the Fourth Amendment

or the state constitution.”); State v. Baker, 625 S.W.2d 724, 727 (Tenn. Crim. App. 1981) (“It

cannot be said a person has an expectation of privacy in the area in the front of his residence

which leads from the public way to the front door.”).

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The “knock and talk” procedure is considered to be a consensual encounter with the

police and a means for police officers “to request consent to search a residence.” Cothran,

115 S.W.3d at 521. In explaining the procedure and the reasoning for it, this court has

quoted with approval the following:

Absent express orders from the person in possession against any possible

trespass, there is no rule of private or public conduct which makes it illegal per

se, or a condemned invasion of the person’s right of privacy, for anyone openly

and peaceably, at high noon, to walk up the steps and knock on the front door

of any man’s “castle” with the honest intent of asking questions of the

occupant thereof-whether the questioner be a pollster, a salesman, or an officer

of the law.

Id. (quoting United States v. Cormier, 220 F.3d 1103, 1109 (9th Cir. 2000)).

It is clear from the record that Deputy Saltkill had a legitimate investigative purpose

for knocking on the front door of the Defendant’s residence to speak with those inside.

Deputy Saltkill simply went to the Defendant’s front door to conduct a consensual interview,

commonly referred to as a “knock and talk.” He testified he was concerned for Mrs.

Rowlett’s welfare and wanted to inquire about the prior incident with EMS workers.

According to Deputy Saltkill, the Defendant thereafter consented to Deputy Saltkill’s entry

into his home.

In this case, the issue of consent is almost entirely a matter of credibility. As

previously mentioned, credibility determinations belong to the trial court. Here, the trial

court accredited Deputy Saltkill’s testimony that the Defendant voluntarily and intelligently

provided consent to enter the Defendant’s home. The evidence in the record does not

preponderate against the trial court’s finding. Accordingly, Deputy Saltkill did not violate

the Defendant’s constitutional rights by knocking on hisfront door and entering hisresidence

upon invitation.

2

The Defendant contends that his encounter with Deputy Saltkill was no longer

consensual when he asked Deputy Saltkill to leave. Consent can be limited in time, duration,

area, and intensity, and it may be revoked at any time. See State v. Troxwell, 78 S.W.3d

866, 871 (Tenn. 2002) (citing Florida v. Jimeno, 500 U.S. 248, 251 (1991)). Whether a

search is authorized by warrant or by consent, the scope of the search is limited by the terms

of its authorization. See id. Moreover, if the consent is voluntary, evidence seized in the

Given our finding of entry by consent, we deem it unnecessary to address the community-caretaking or

2

emergency aid exceptions to the warrant requirement. 

-14-
search will not be admissible if the search exceeds the scope of the consent given. Id. (citing

3 Wayne R. LaFave, Search and Seizure § 8.1(c) (3d ed. 1996)). The scope of consent is not

based on the subjective intentions of the consenting party or the subjective interpretations of

the searching officer. Id. at 871-72. Instead the standard is “that of ‘objective’

reasonableness—what would the typical reasonable person have understood by the exchange

between the officer and the suspect.” Id. at 872 (citing Florida v. Jimeno, 500 U.S. at 251).

The Defendant maintains that, even if he gave oral consent to Deputy Saltkill’s entry,

he immediately revoked that consent, and his subsequent detention and arrest were invalid.

Our supreme court has stated, “[W]arrantless felony arrests inside a home are generally

prohibited by the Fourth Amendment absent probable cause and exigent circumstances.”

Henning, 975 S.W.2d at 300 (citing Payton v. New York, 445 U.S. 573, 583-90 (1980); State

v. Clark, 844 S.W.2d 597, 599 (Tenn. 1992)); see State v. Carter, 160 S.W.3d 526, 531

(Tenn. 2005). “Probable cause exists if the facts and circumstances within the officer’s

knowledge at the time of the arrest, and of which the officer ‘had reasonably trustworthy

information sufficient to warrant a prudent man in believing that the [defendant] had

committed or was committing an offense.’” Henning, 975 S.W.2d at 300 (quoting Beck v.

Ohio, 379 U.S. 89 (1964)).

Once voluntary consent to search is given, it continues until it is revoked or

withdrawn. Deputy Saltkill testified that he told the Defendant that he “was there to check

on him,” and the Defendant said, “[C]ome on in.” After entering, Deputy Saltkill was able

to observe Mrs. Rowlett and asked the Defendant about the prior incident with EMS. The

Defendant became agitated at this time. He “started coming towards” Deputy Saltkill, and

after getting “about a foot away” from Deputy Saltkill, “stuck his finger” in Deputy Saltkill’s

face, “just yelling.” The Defendant began “getting furious” with Deputy Saltkill and ordered

Deputy Saltkill “to get the f--k out of his house and went to the door.” As he did so, his

shoulder hit Deputy Saltkill’s, shoving him. Deputy Saltkill attempted to get the Defendant

to calm down, but the Defendant was now between Deputy Saltkill and the door. After

saying to Deputy Saltkill, “I told the guys out earlier I’d whoop their a-s and I’ve done

whooped a 400 pound n----r’s a-s and I’m going to whoop yours,” the Defendant hit Deputy

Saltkill “in the left chest area,” pushing him backwards. Deputy Saltkill then attempted to

arrest the Defendant for assault. Deputy Saltkill testified that everything “happened real

quick.” According to Deputy Saltkill, “this occur[red]” in “a matter of minutes,” “no more

than three minutes total.”

Even if the Defendant withdrew his consent when he asked Deputy Saltkill to leave,

he did so after becoming belligerent with Deputy Saltkill and while simultaneously assaulting

Deputy Saltkill by hitting him in the shoulder. Things very quickly escalated to the point

where Deputy Saltkill attempted, based upon probable cause, to arrest the Defendant for

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assault. See Tenn. Code Ann. § 39-13-101(a)(3) “A person commits assault who

“[i]ntentionally or knowingly causes physical contact with another and a reasonable person

would regard the contact as extremely offensive or provocative.”) All of the events occurred

near the front door of the residence. The entire episode lasted only a matter of minutes and

did not exceed the scope of the Defendant’s voluntary consent to enter his home to discuss

the events of that evening. Thus, the Defendant revoked his consent too late to affect the

validity of his subsequent detention and arrest.

II. Sufficiency of the Evidence

The Defendant contends that the evidence at trial is insufficient to sustain his

convictions. According to the Defendant, he acted in self-defense: “The proof is clear that

the [Defendant] was in his home recovering from an asthma attack when Deputy Saltkill

entered his home uninvited and began to lecture the [Defendant]. The proof presented at trial

indicates that the [Defendant] simply acted to defend himself against the actions of the

Deputy.” The Defendant does not point to a specific element of any offense that the State

failed to prove but asserts that he was acting in self-defense. The State responds that it

presented sufficient evidence to support the Defendant’s convictions. Therefore, we will

address both the sufficiency of the evidence to establish the elements of the offenses for

which the Defendant stands convicted and the sufficiency of the evidence to establish that

the Defendant was not acting in self-defense. See, e.g., State v. Brandon Trent Patterson, No.

M2010-01573-CCA-R3-CD, 2012 WL 826604, at *5 (Tenn. Crim. App. Mar. 9, 2012)

(although defendant’s sufficiency argument raised only the claim that he was acting in selfdefense, this court addressed both the elements of the offense and the evidence that the

defendant was not acting in self-defense); State v. John D. Pass, E2000-02266-CCA-R3-CD,

2001 WL 1523352, at *4 (Tenn. Crim. App. Nov. 30, 2001) (likewise engaging in a review

of both the sufficiency of the evidence to establish the elements of the offense and the

sufficiency of the evidence to establish that the defendant was not acting in self-defense),

perm. app. denied, (Tenn. May 13, 2002).

An appellate court’s standard of review when a defendant questions the sufficiency

of the evidence on appeal is “whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). This

court does not reweigh the evidence; rather, it presumes that the jury has resolved all

conflicts in the testimony and drawn all reasonable inferences from the evidence in favor of

the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571

S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness credibility, conflicts in

testimony, and the weight and value to be given to evidence were resolved by the jury. See

State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). A guilty verdict “removes the

presumption of innocence and replaces it with a presumption of guilt, and [on appeal] the

-16-
defendant has the burden of illustrating why the evidence is insufficient to support the jury’s

verdict.” Id.; State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

A. Aggravated Assault

In this case, the Defendant was convicted of aggravated assault. As relevant here,

aggravated assault is defined as follows: “A person commits aggravated assault who . . .

[i]ntentionally or knowingly commits an assault as defined in § 39-13-101 and . . . [c]auses

serious bodily injury to another[.]” Tenn. Code Ann. § 39-13-102(a)(1)(A). According to

Tennessee Code Annotated section 39-13-101, “[a] person commits assault who: (1)

Intentionally, knowingly or recklessly causes bodily injury to another; (2) Intentionally or

knowingly causes another to reasonably fear imminent bodily injury; or (3) Intentionally or

knowingly causes physical contact with another and a reasonable person would regard the

contact as extremely offensive or provocative.” Tenn. Code Ann. § 39-13-101(a). “‘Bodily

injury’ includes a cut, abrasion, bruise, burn or disfigurement, and physical pain or temporary

illness or impairment of the function of a bodily member, organ, or mental faculty[.]” Tenn.

Code Ann. § 39-11-106(a)(2). “‘Serious bodily injury’ means bodily injury that involves:

(A) A substantial risk of death; (B) Protracted unconsciousness; (C) Extreme physical pain;

(D) Protracted or obvious disfigurement; (E) Protracted loss or substantial impairment of a

function of a bodily member, organ or mental faculty; or (F) A broken bone of a child who

is eight (8) years of age or less[.]” Tenn. Code Ann. § 39-11-106(a)(34).

The evidence in this case proves that the Defendant intentionally or knowingly caused

bodily injury to Deputy Saltkill, hitting him in the face. We turn to address whether Deputy

Saltkill suffered “serious bodily injury.” Although not specifically addressed by the

Defendant, the State contends that the record establishes that the victim suffered serious

bodily injury in the following enumerated categories: extreme physical pain; obvious

disfigurement; and protracted loss or substantial impairment of a function of a bodily

member or organ. See Tenn. Code Ann. § 39-11-106(a)(34)(C-E).

The Tennessee Supreme Court recently discussed the statutory definition of “serious

bodily injury” when it addressed whether a gunshot wound that passed through the victim’s

leg constituted “serious bodily injury.” See State v. Farmer, 380 S.W.3d 96, 100-03 (Tenn.

2012). The court ultimately concluded that the gunshot wound did not meet the statutory

definition of “serious bodily injury” because the injury, as it occurred, did not involve a

substantial risk of death, the victim did not lose consciousness, the victim did not suffer

extreme pain, and because nothing in the victim’s testimony supported an inference that his

injury involved protracted or obvious disfigurement, or protracted loss or substantial

impairment of a function of a bodily member, organ, or mental faculty. See id. We conclude

that this case is indistinguishable from Farmer.

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First, the State asserts that the victim suffered from extreme physical pain as a result

of the injuries he received at the hands of the Defendant, pointing to Deputy Saltkill’s

testimony that the “[p]ain was pretty high, especially the nose area . . . . “ In Farmer, our

supreme court cited with approval this court’s opinion in State v. Sims, 909 S.W.2d 46, 49

(Tenn. Crim. App. 1995). In Sims, acknowledging the difficulty of quantifying physical

pain, we used the ejusdem generis canon of statutory construction to determine that the pain

necessary to establish serious bodily injury via extreme physical pain “must be enough to be

in the same class as an injury which involves a substantial risk of death, protracted

unconsciousness, protracted or permanent disfigurement or the loss or impairment of the use

of a bodily member, organ or mental faculty.” Id. We held that the pain associated with the

injury suffered by the victim in that case, a broken nose, did not qualify as “extreme physical

pain” for purposes of the definition of serious bodily injury. In so holding, the Sims court

reasoned that the pain associated with the injury was not extreme enough to be included in

a class of injury that involved a substantial risk of death, protracted unconsciousness,

permanent disfigurement or protracted loss, or substantial impairment of loss of a body part

or mental faculty.

Deputy Saltkill testified that the Defendant “coldcocked” him in the eye with “some

type [of] an item wrapped around his hand.” The hit was “so hard” that it “buckled” Deputy

Saltkill’s knees. He had lacerations “to the eyelid” and to his nose. According to Deputy

Saltkill, “[b]lood started pouring out of” the eye, and he could not see out of it. He was

“dazed” after the hit. Although an ambulance was called to the scene to tend to Deputy

Saltkill’s injury, he was not transported to the hospital. EMS “cleaned up [the] eye,” and

Deputy Saltkill began to “see out of it a little bit better.” He returned to the sheriff’s office

a few hours after the incident.

As in Farmer, the evidence in the instant case does not support a finding that Deputy

Saltkill’s injury involved a degree of pain that would warrant its inclusion among the other

enumerated portions of the definition of “serious bodily injury.” Although Deputy Saltkill

testified that he experienced “pretty high” pain after being hit in the face by the Defendant,

medical care was administered at the scene, and he was not taken to the hospital. In fact, he

returned to the sheriff’s office within a few hours. A jury could not reasonably infer from

Deputy Saltkill’s testimony and the nature of his injury that the wound involved extreme

pain.

The State also asserts that Deputy Saltkill’s injury qualified as protracted or obvious

disfigurement because the area around his eye was “heavily swollen and bruised for several

days.” However, we cannot agree, finding this court’s analysis in State v. David Earl Scott

persuasive “that bruising alone can[not] qualify as disfigurement for purposes of Code

section 39-11-106 because that section specifically includes bruising in the definition of

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‘bodily injury.’” No. E2011-00707-CCA-R3-CD, 2012 WL 5503951, at *7 (Tenn. Crim.

App. Nov. 14, 2012) (citing Tenn. Code Ann. § 39-11-106(4)), perm. app. filed, (Jan. 14,

2013). “Because bruising is specifically included in the statutory definition of bodily injury

among a class of injuries that also includes ‘disfigurement,’ it cannot be included in the more

general term ‘disfigurement’ in the definition of serious bodily injury.” Id. Accordingly, we

disagree with the State and conclude that Deputy Saltkill’s swollen and bruised eye does not

satisfy the requirement of “protracted or obvious disfigurement” to establish serious bodily

injury.

Finally, the State claims that Deputy Saltkill’s loss of vision for one night and that his

“swollen shut” eye establishes a “protracted loss or substantial impairment of a function of

a bodily member, organ or mental faculty.” Again, we disagree. Protracted means “delayed

or prolonged in time.” See Scott, 2012 WL 5503951, at *6. Deputy Saltkill’s injury,

including loss of sight for no more than one night, was not protracted. Moreover, nothing

in the record supports a conclusion that the function of the victim’s bodily members was

substantially impaired. Indeed, he testified that he was able to return to the sheriff’s office

immediately after the shooting despite his injury. Factors (D) and (E) were not established

because nothing in Deputy Saltkill’s testimony supports an inference that his injury involved

protracted or obvious disfigurement, or protracted loss or substantial impairment of a

function of a bodily member, organ, or mental faculty.

In accordance with the rationale espoused by our supreme court in Farmer, we must

conclude that the State failed to establish that the victim suffered serious bodily injury.

Accordingly, the Defendant’s conviction for aggravated assault must be modified to a

conviction for Class A misdemeanor assault. See Tenn. Code Ann. § 39-13-101.

B. Resisting Arrest

Because the Defendant generally challengesthe sufficiency of the evidence supporting

his convictions, we will also address whether any rational trier of fact could have found the

Defendant guilty of resisting arrest beyond a reasonable doubt.

Tennessee Code Annotated section 39-16-602 sets out the elements of resisting arrest.

That statute states as follows:

It is an offense for a person to intentionally prevent or obstruct anyone known

to the person to be a law enforcement officer, or anyone acting in a law

enforcement officer’s presence and at such officer’s direction, from effecting

a stop, frisk, halt, arrest or search of any person, including the defendant, by

using force against the law enforcement officer or another.

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Tenn. Code Ann. § 39-16-602(a). Force is defined as “compulsion by the use of physical

power or violence and shall be broadly construed to accomplish the purposes of this title.”

Tenn. Code Ann. § 39-11-106(a)(12). Unless the defendant is claiming self-defense against

excessive force from officers, see Tennessee Code Annotated section 39-11-611(e),

“[w]hether the arrest was or was not supported by probable cause is not determinative as to

whether defendant resisted arrest.” State v. Edward Iroghuehi Isibor, No. 01C01-9610-CC00441, 1997 WL 602945, at *3 (Tenn. Crim. App. Sept. 30, 1997), perm. app. denied, (Tenn.

Aug. 3, 1998).

Upon our review of the record and in the light most favorable to the State, the

evidence supports the jury’s finding that the Defendant used force to obstruct Deputy Saltkill

from effectuating his arrest. Besides verbally threatening Deputy Saltkill, the Defendant

made physical contact with Deputy Saltkill twice, once by shoving him and once by hitting

him the chest, before Deputy Saltkill attempted to place him under arrest. Deputy Saltkill

testified that the Defendant resisted his official commands that he was under arrest and to get

on the ground. Ignoring these commands, the Defendant struck Deputy Saltkill in the eye.

Deputy Saltkill had to resort to his taser and, ultimately, his handgun to stop the Defendant’s

advances. As discussed in the previous section of this opinion, the Defendant’s arrest was

supported by probable cause. Accordingly, the evidence was sufficient for a jury to find

beyond a reasonable doubt that the Defendant was guilty of resisting arrest.

C. Proof Refuting Claim of Self-Defense

The crux of the Defendant’s sufficiency argument is that the State failed to prove that

he did not act in self-defense. At the time of the Defendant’s trial, Tennessee Code

Annotated section 39-11-611 (2006) provided as follows:

(a) A person is justified in threatening or using force against another

person when, and to the degree, the person reasonably believes the force is

immediately necessary to protect against the other’s use or attempted use of

unlawful force. The person must have a reasonable belief that there is an

imminent danger of death or serious bodily injury. The danger creating the

belief of imminent death or serious bodily injury must be real, or honestly

believed to be real at the time, and must be founded upon reasonable grounds.

There is no duty to retreat before a person threatens or uses force.

(b) Any person using force intended or likely to cause death or serious

bodily injury within the person’s own residence is presumed to have held a

reasonable fear of imminent peril of death or serious bodily injury to self,

family or a member of the household when that force is used against another

person, not a member of the family or household, who unlawfully and forcibly

-20-
enters or has unlawfully and forcibly entered the residence, and the person

using the force knew or had reason to believe that an unlawful and forcible

entry occurred.

(c) The threat or use of force against another is not justified if the

person consented to the exact force used or attempted by the other individual.

(d) The threat or use of force against another is not justified if the

person provoked the other individual’s use or attempted use of unlawful force,

unless:

(1) The person abandons the encounter or clearly communicates to the

other the intent to do so; and

(2) The other nevertheless continues or attempts to use unlawful force

against the person.

(e) The threat or use of force against another is not justified to resist a

halt at a roadblock, arrest, search, or stop and frisk that the person knows is

being made by a law enforcement officer, unless:

(1) The law enforcement officer uses or attempts to use greater force

than necessary to make the arrest, search, stop and frisk, or halt; and

(2) The person reasonably believes that the force is immediately

necessary to protect against the law enforcement officer’s use or attempted use

of greater force than necessary.

Self-defense is a fact question for the jury. State v. Clifton, 880 S.W.2d 737, 743 (Tenn.

Crim. App. 1994); State v. Ivy, 868 S.W.2d 724, 727 (Tenn. Crim. App. 1993). It is within

the prerogative of the jury to reject a claim of self-defense. State v. Goode, 956 S.W.2d 521,

527 (Tenn. Crim. App. 1997). When a defendant relies upon a theory of self-defense, it is

the State’s burden to show that the defendant did not act in self-defense. State v. Sims, 45

S.W.3d 1, 10 (Tenn. 2001).

Viewed in the light most favorable to the State, the evidence proves that the

Defendant invited Deputy Saltkill into his house to discuss the prior encounter with EMS

personnel. Shortly after Deputy Saltkill entered, the Defendant began to get belligerent and

verbally abusive towards Deputy Saltkill. Deputy Saltkill testified that, after being assaulted

by the Defendant twice, he attempted to place the Defendant under arrest. The Defendant

-21-
then resisted that arrest, hitting Deputy Saltkill in the eye, and leading to Deputy Saltkill

having to shoot the Defendant to stop the continuing assault. In contrast, the Defendant said

that Deputy Saltkill was unprovoked when he shot him. Moreover, discussed in detail later

in the opinion, the Defendant primarily asserted a claim of innocence, denying that he ever

struck Deputy Saltkill. In our view, this case amounted to a classic credibility contest

between the Defendant and Deputy Saltkill. The jury obviously accredited the testimony of

Deputy Saltkill, as was their prerogative. We will not second-guess the factual

determinations made by the jury. Therefore, we conclude that the evidence was sufficient

to convict the Defendant of simple assault and resisting arrest.

III. Evidentiary Rulings

The Defendant makesseveral challengesto evidentiary rulings of the trial court. First,

the Defendant argues that the trial court erroneously admitted photographs of Deputy

Saltkill’s eye injury. Second, the Defendant submits that the trial court erroneously

prevented him from establishing the defense of “criminal trespass.”

A. Photographs

The Defendant contends that the photographs of Deputy Saltkill’s eye injury were

erroneously admitted. Citing to Tennessee Rule of Evidence 403, the Defendant argues,

“The photographs of the victim should not have been admitted into evidence because of the

danger of unfair prejudice. The photographs were not needed to show the severity of the

victim’s injuries and could only inflame the jury.” The State responds that the photographs

were relevant to show the disfiguring nature of Deputy Saltkill’s injury. The State goes on,

“[T]he multiple photos taken on different dates were necessary to demonstrate the

progression of Deputy Saltkill’sinjury over time and to corroborate his proclaimed temporary

loss of sight.”

At the motion for new trial hearing, the Defendant challenged the cumulative nature

of the photographs. The State responded that the photographs “were relevant to show the

injuries sustained and to corroborate the testimony of the victim.” The State continued:

What we’re looking at is several pictures of Officer Saltkill of his eye

swollen and the progress of that eye swelling shut to where he was unable to

use that eye, to show what it looked like so that the jury could look and see for

themselves what the eye looked like, showing extreme pain.

We had . . . [the Defendant] charged with two counts of aggravated

assault. You’ve got aggravated assault with a deadly weapon. You’ve got

aggravated assault with serious bodily injury. . . . [T]here’s several factors that

one looks at aggravated assault with serious injury and one of those is extreme

-22-
blunt pain, also the loss and use of, like, your eye or arm or something of that

nature.

The trial court ruled, “[T]here [were] valid reasons to have them admitted . . . . There wasn’t

an . . . undue amount of them admitted. The [c]ourt felt like . . . the photographs showed the

progression of the injuries and not to over extend it. It showed what it needed to as far as the

injury and that was sufficient.” The trial court noted an additional reason for admission of

the photographs:

I believe Deputy Saltkill had alleged that [the Defendant] had something in his

hand, some kind of object. And in order to show that there was a weapon in

his possession or control, the photographs -- based on what the jury did, could

reasonably believe that [the Defendant] did have an object when he hit Deputy

Saltkill . . . based on those photographs.

Tennessee courts follow a policy of liberality in the admission of photographs in both

civil and criminal cases. State v. Banks, 564 S.W.2d 947, 949 (Tenn.1978) (citations

omitted). Accordingly, “the admissibility of photographs lies with the discretion of the trial

court” whose ruling “will not be overturned on appeal except upon a clear showing of an

abuse of discretion.” State v. Faulkner, 154 S.W.3d 48, 67 (Tenn. 2005) (quoting Banks, 564

S.W.2d at 949). A relevant photograph is generally admissible, Tennessee Rule of Evidence

402, unless its “probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by considerations of undue delay, waste

of time, or needless presentation of cumulative evidence.” Tenn. R. Evid. 403. The term

“unfair prejudice” has been defined as “[a]n undue tendency to suggest decision on an

improper basis, commonly, though not necessarily, an emotional one.” Banks, 564 S.W.2d

at 951. In deciding whether to admit photographs, the trial court must consider the questions

of fact that the jury will have to consider in determining the accused’s guilt, as well as other

evidence that has been introduced during the course of the trial. State v. Williamson, 919

S.W.2d 69, 78 (Tenn. Crim. App. 1995).

We have inspected the subject photographs and agree with the trial court that their

probative value outweighed any undue prejudicial effect. The State had the burden at trial

to prove every element of the charged offense, aggravated assault, in particular that the

victim suffered some type of bodily injury or that the use of a deadly weapon was involved.

See Tenn. Code Ann. § 39-13-102. Though Deputy Saltkill testified at trial about the nature

of his injury, his injury was no longer visible. Therefore, the photographs assisted the jury

in assessing the nature of the injury the victim suffered and how that injury progressed over

time. Moreover, the photographs were not particularly gruesome or graphic. No medical

proof was presented about the nature and extent of the victim’s injuries. In sum, the admitted

-23-
photographs were relevant, and their probative value was notsubstantially outweighed by any

of the criteria set forth in Tennessee Rule of Evidence 403. Accordingly, we conclude that

the trial court did not abuse its discretion by admitting the photographs.

B. “Criminal Trespass” Defense

The Defendant contends that he was denied the right to establish a criminal trespass

defense because the trial court did not allow him “to question Deputy Saltkill regarding his

trespassing” into his home. During a jury out hearing, the State objected to the defense’s

asking Deputy Saltkill whether he thought “at any point he was trespassing.” The trial court

determined that the question asked for a legal conclusion and sustained the objection.

At the motion for new trial hearing, the Defendant explained this issue as he “was

denied his argument in pretrial motions to make [a] record regarding trespass or there were

no instructions that [D]efendant was allowed to give regarding trespass.” The State

responded, “[T]rial courts . . . give requested instructions if it is supported by the evidence.

And it’s just not support[ed] by the evidence. . . . There was no criminal trespass. Again,

we argued that. We submitted briefs in that regard to that.” The State then addressed the

issues presented at the suppression hearing. The trial court ruled, “Defendant’s ability to

argue criminal trespass, the [c]ourt believes, again, there was no evidence to support such

instruction and that’s why the [c]ourt ruled that way.”

The State initially argues that the issue is waived because the Defendant failed to cite

to any authority in his brief establishing that criminal trespass was a defense to the crimes

and failed to make appropriate references to the record. See Tenn. R. App. P. 27(a); Tenn.

R. Crim. P. 10(b). Again, the State is correct that the issue could be waived, but having a

complete record, we choose to address the issue on the merits. The State contends, waiver

notwithstanding, that to the extent that the Defendant’s theory of trespass was relevant to a

defense of property defense, the trial court permitted the Defendant to cross-examine Deputy

Saltkill thoroughly about the issue.

At the outset, we note that this court, in explaining the “knock and talk” procedure and

the reasoning for it, has quoted with approval the following language:

Absent express orders from the person in possession against any possible

trespass, there is no rule of private or public conduct which makes it illegal per

se, or a condemned invasion of the person’s right of privacy, for anyone openly

and peaceably, at high noon, to walk up the steps and knock on the front door

of any man’s “castle” with the honest intent of asking questions of the

occupant thereof-whether the questioner be a pollster, a salesman, or an officer

of the law.

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Cothran, 115 S.W.3d at 521 (quoting Cormier, 220 F.3d at 1109). There was no proof of any

express orders prohibiting trespass upon the Defendant’s property. In ruling on the

Defendant’s motion to suppress, the trial judge accredited Deputy Saltkill’s testimony that

he entered the house upon invitation.

Couching it in terms of a “criminal trespass” defense, the Defendant was presumably

seeking to establish that Deputy Saltkill’s entry into his home was unauthorized, therefore,

justifying the Defendant’s use of force. The Defendant filed proposed jury instructions on

September 3, 2008, which was six months before the motion to suppress was denied and over

a year and a half before trial occurred. In these proposed jury instructions, the Defendant

sought to have the following instructions given to the jury: criminal trespass, Tennessee

Pattern Jury Instructions—Criminal 14.05; self-defense, Tennessee Pattern Jury

Instructions—Criminal 40.06; and defense of property, Tennessee Pattern Jury

Instructions—Criminal 40.08. Defense counsel did reference these instructions at the

suppression hearing, “At that point, [Deputy Saltkill] is a trespasser when he does not leave

immediately. It’s a defense to the trespass statute. That’s why we’ve asked for a trespass

instruction that we’re going to deal with after the close of proof. He’s a trespasser at that

point, . . . by not leaving.” The proposed instructions were not submitted in the final charge

to the jury, and no further objection to their omission is apparent from the record. It appears

that, after the Defendant’s motion to suppress was denied and following the development of

the proof at trial, the Defendant abandoned any “criminal trespass” defense. At trial, the

Defendant never argued that he used justifiable force against Deputy Saltkill; as noted above,

his central claim was one of innocence, denying he used any force at all against Deputy

Saltkill.

Specifically, regarding any limitations on Deputy Saltkill’stestimony, Deputy Saltkill

was extensively cross-examined about the Defendant’s repeated requests for Deputy Saltkill

to leave his residence and Deputy Saltkill’s failure to do so. The trial court disallowed the

question, “did he think at any point he was trespassing,” finding that it called for a legal

conclusion. The propriety, scope, manner, and control of testimony and other evidence are

matters entrusted to the sound discretion of the trial court. State v. Hutchison, 898 S.W.2d

161, 172 (Tenn. 1994); State v. Barnard, 899 S.W.2d 617, 624 (Tenn. Crim. App. 1994)

(citing State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978)); see also Tenn. R. Evid. 611.

“Absent a clear abuse, which has resulted in manifest prejudice to the accused, this court will

not interfere with the trial court’s exercise of its discretion in matters pertaining to the

examination of witnesses.” State v. Humphreys, 70 S.W.3d 752, 766 (Tenn. Crim. App.

2001) (citing Coffee v. State, 216 S.W.2d 702, 703 (Tenn. 1948)). Typically, only experts

are allowed to give their opinion on an ultimate issue to be decided by the trier of fact. See

Tenn. R. Evid. 704. The trial court permitted a thorough cross-examination of Deputy

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Saltkill, and we cannot find any abuse of discretion in the trial court’s evidentiary ruling on

this issue. The Defendant is not entitled to relief on this issue.

IV. Jury Instructions

The Defendant takes issue with the jury instructions in this case. He contends that a

special instruction regarding Deputy Saltkill’s phone records should have been issued and

that instructions on self-defense and defense of others should have been given to the jury.

A. Phone Records

The Defendant asserts that the trial court erred in denying his request for a special jury

instruction, specifically an instruction “that the State failed to timely obtain the cellular

telephone records of the Deputy Dana Saltkill as requested by the Defendant.” The

Defendant contends that the trial court “should have granted a mistrial or instructed the jury

as to the State’s duty to preserve the evidence and its failure to do so.”

3

At the February 2009 motion hearing, the trial court granted the Defendant’s request

for Deputy Saltkill’s cellular telephone records from 12:00 a.m. to 5:00 a.m. on September

25, 2006. However, the judicial subpoena incorrectly provided the year as 2007. The State

4

did turn over the phone records it acquired as a result of the subpoena on July 9, 2009. The

phone records as given to the defense do not reflect a year, simply a date of Tuesday,

September 25, with phone calls during the relevant time frame. Apparently, all parties were

unaware of the error until trial. On the third day of trial, defense counsel noted that she

discovered the error when she realized that September 25 in 2006 fell on a Monday, not on

a Tuesday, as shown in the document. The trial court then issued another subpoena for the

correct records that morning. Further attempts were made to get the phone records during

the trial, but those attempts were unsuccessful. The phone company responded to the

subpoena, “call records are not available for the date and time frame requested,” which the

trial court interpreted to mean that “they’re too old or what-have-you.”

The trial court declined to impose any sanctions on the State, finding that there was

a “good faith attempt” to obtain the phone records and that prejudice had not been shown.

The trial court also ruled, “[i]n the alternative,” defense counsel “waived said issue” for

This is the first and only time that the Defendant argues that a mistrial should have been granted due to the 3

failure to obtain the information. We decline to address such a cursory allegation made for the first time on

appeal.

It appears from the transcript that this was the second subpoena issued for the phone records. Apparently, 4

the first subpoena had the incorrect phone number on it. It was also stated that an order for the phone records

was entered on February 19, 2009, that it was signed by the trial judge, that it contained the wrong year, and

that the a copy of the order was sent to defense counsel. That order is likewise not included in the record.

-26-
failing to bring this error to the court’s attention sooner. Defense counsel asked for a special

instruction, specifically asking, “are you willing to provide any instruction to the jury that

this information was requested but the wrong information was provided,” and then later, “I

would just like some special instructions that we attempted and were unable to get the cell

phone records.” The trial court denied the request for a special instruction, stating that “the

instruction wouldn’t be necessary” because “the response speaks for itself,” but it permitted

defense counsel to “put on anything else you like about it.”

At the motion for new trial hearing, defense counsel argued that the trial court “failed

to instruct the jury as to those telephone records or any explications thereof.” Defense

counsel noted that theory of defense was that “Deputy Saltkill acted improperly by failing

to use the 9-1-1 system, which would have been public communication, and his phone

records would have . . . showed Deputy Saltkill using his cell phone as another means of

communications that he knew wouldn’t be recorded.” The State responded that the cell

phone records were not relevant, reasoning as follows:

I’m still not sure on what the defense was trying to show. You have an officer

who goes out to the residence at the request of EMS. Everyone talks about the

poor reception that one gets out there with telephones and they have to use

their radio. The radios are recorded. Those radio transmissions from the time

that the call came in, there’s been a shooting, I’m down, everything that was

recorded was placed into evidence[.]

The trial court found the issue to be without merit, concluding that “the cell phone records

would not have had any significance with regards” to the “overwhelming” weight of the

evidence. The court continued, “[A]ny kind of instruction on that might have misled the jury

and confused them on an issue that wasn’t relevant to the [c]ourt.”

The State, citing to Rule 30 of the Tennessee Rules of Criminal Procedure, responds

that the Defendant has waived this claim because he failed to request any special instruction

in writing. The State also argues for waiver because the Defendant failed to support his

claim “with argument, citation to relevant authorities, or any references to the appellate

record.” See Tenn. R. App. P. 27; see also Tenn. Ct. Crim. App. R. 10(b).

As far as the brief not conforming with the requirements of Rule 27 of the Tennessee

Rules of Appellate Procedure, we agree with the State that the Defendant’s argument is

cursory. However, the argument portion of the Defendant’s brief does contain one citation

to authority and one reference to the record. Again, we choose to address the issue on its

merits.

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The State concedesthat the Defendant requested the instruction orally butsubmitsthat

this effort was insufficient to preserve the issue for appeal. Under the Tennessee Rules of

Criminal Procedure, a party requesting special jury instructions “may file written requests

that the court instruct the jury on the law as set forth in the requests.” Tenn. R. Crim. P.

30(a). “A trial court will not be placed in error where a requested instruction is not in

writing.” State v. Teresa Sue Skipper, No. E2006-00785-CCA-R3-CD, 2007 WL 187940,

at *6 (Tenn. Crim. App. Jan. 25, 2007) (quoting State v. Timothy M. Hodge, No.

M2001-03168-CCA-R3-CD, 2002 WL 1732357, at *5 (Tenn. Crim. App., July 26, 2002));

see also State v. Mackey, 638 S.W.2d 830, 836 (Tenn. Crim. App. 1982). Because Rule 30

of the Tennessee Rules of Criminal Procedure “envisions that such requests be made in

writing,” oral requests for instructions are not sufficient for an appellate court to find that the

trial court’s instructions were improper. Mackey, 638 S.W.2d at 836.

The requirement of a written request is not applicable when the issue concerns

fundamental defenses. See Morrison v. State, 371 S.W.2d 441 (1963). However, the failure

to comply with a discovery request is not such a defense.

A written request was never submitted to the trial court at the conclusion of trial, nor

has the Defendant set forth a proposed jury instruction in his brief to this court. It is also

unclear from our review of the record of the trial and the hearing on the motion for new trial

what the proposed instruction would have been. Because a trial court will not be placed in

error when a requested special instruction was not presented in writing, and no inaccuracy

exists in the charge given by the trial court, the Defendant is not entitled to relief on this

issue.

B. Self-Defense

The Defendant submits that the trial courtshould have included an instruction on selfdefense and defense of others in its charge to the jury. See Tenn. Code Ann. §§ 39-11-611

(self-defense), -612 (defense of a third person) (2006). The Defendant acknowledges that

the issue was not raised in the motion for new trial but argues for plain error review.

Specifically, he contends that he did not waive the instruction for tactical reasons, stating,

“[T]he [c]ourt’s refusal to allow defense counsel to ask questions regarding the officer’s

entry into the home without consent hindered counsel[’]s ability to present the defense.” He

further submits that the proof supported such an instruction. The State takes the initial

position that the Defendant has waived review of this issue by failing to include it in his

motion for new trial. See Tenn. R. App. P. 3(e) (An issue predicated on a trial court’s

refusal to give a requested instruction is waived unless the issue was first specifically raised

in a motion for new trial.). Addressing the factors of plain error review, the State contends

that plain error review is not warranted because the proof did not support such an instruction

and because the Defendant failed to demonstrate that waiver of the issue was not tactical.

-28-
Initially, we note that, nowhere is it apparent from the record that the Defendant ever

requested an instruction on defense of others. Moreover, although a self-defense instruction

was requested over a year prior to trial, no objection was lodged to its omission from the final

charge to the jury, and the issue was not raised in the Defendant’s motion for new trial. As

discussed above, we review the trial court’s refusal to instruct the jury on self-defense and

defense of others for plain error.

“When necessary to do substantial justice, an appellate court may consider an error

that has affected the substantial rights of an accused at any time, even though the error was

not raised in the motion for a new trial or assigned as error on appeal.” Tenn. R. App. P.

36(b). In determining whether plain error review is appropriate, the following factors must

be established:

(a) The record . . . clearly establish[es] what occurred in the trial court;

(b) a clear and unequivocal rule of law [has] been breached;

(c) a substantial right of the accused [has] been adversely affected;

(d) the accused did not waive the issue for tactical reasons; and

(e) consideration of the error is “necessary to do substantial justice.”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d

626, 641-42 (Tenn. Crim. App. 1994)). On appeal, the defendant has the burden of

establishing that these five factors are met. State v. Gomez, 239 S.W.3d 733, 737 (Tenn.

2007) (citing State v. Bledsoe, 226 S.W .3d 349, 355 (Tenn. 2007)). The appellate court

need not consider all five factors if any single factor indicates that relief is not warranted.

Smith, 24 S.W.3d at 283.

A trial court has the duty to “give a complete charge of the law applicable to the facts

of the case.” State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986). This duty includes

“giving jury instructions concerning fundamental issues to the defense and essential to a fair

trial . . . . ” State v. Anderson, 958 S.W.2d 9, 17 (Tenn. Crim. App. 1998). In deciding

whether a defense instruction is warranted, the trial court “must examine the evidence in the

light most favorable to the defendant to determine whether there is evidence that reasonable

minds could accept as to that defense.” State v. Sims, 45 S.W.3d 1, 9 (Tenn. 2001).

Our supreme court has held that “a trial court judge’s failure to give a jury charge on

matters characterized as ‘fundamental’ may be found to be error requiring reversal” even if

the defendant did not request the omitted instructions. State v. Stephenson, 878 S.W.2d 530,

554 (Tenn. 1994). In Tennessee, the law of self-defense is fundamental to a case when the

evidence fairly raises it as an issue. See Tenn. Code Ann. § 39-11-203(c); see also Myers

v. State, 206 S.W.2d 30, 32 (Tenn. 1947) (holding that a defendant is entitled to an

-29-
affirmative instruction on self-defense if raised by the evidence). The defendant has the

burden of introducing admissible evidence that a defense is applicable. Tenn. Code Ann. §

39-11-203(c), Sentencing Comm’n Cmts. Thus, this court may find error only if a jury

charge “fails to fairly submit the legal issues or misleads the jury as to the applicable law.”

State v. Phipps, 883 S.W.2d 138, 142 (Tenn. Crim. App. 1994).

Based upon our analysis above, we conclude that the Defendant failed to present

evidence that fairly raised an issue as to whether he acted in defense of either self or others

when he hit the victim. At trial, the Defendant said that Deputy Saltkill was unprovoked

when he shot him, never arguing that he used justifiable force against Deputy Saltkill. Once

again, as noted above, his central claim was one of innocence. Thus, there was no basis for

the trial court to conclude that the evidence fairly raised an issue as to whether the Defendant

acted in defense of either self or others. The trial court did not breach any clear and

unequivocal rule of law, which a finding of plain error requires. See Adkisson, 899 S.W.2d

at 641-42.

Importantly, this appears to be yet another attempt to relitigate matters which were

addressed at the motion to suppress hearing. Just as with the defense of “criminal trespass,”

it appears that, after the Defendant’s motion to suppress was denied and following the

development of the proof at trial, the Defendant abandoned any claim of self-defense or

defense of others. We agree with the State that the Defendant has failed to demonstrate that

he did not waive issuance of the instructions for tactical reasons. The failure to instruct on

self-defense or defense of others does not amount to plain error.

CONCLUSION

In sum, the evidence is insufficient to support the Defendant’s conviction for

aggravated assault because the State failed to establish that the victim suffered serious bodily

injury. Consequently, the Defendant’s conviction for aggravated assault is modified to a

conviction for Class A misdemeanor assault. The evidence was sufficient to support the

judgment for resisting arrest, and that judgment is affirmed. The case is remanded for

resentencing and further proceedings consistent with this opinion.

_________________________________

D. KELLY THOMAS, JR., JUDGE

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