# FILED
September 10, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE APRIL 1998 SESSION
STATE OF TENNESSEE, * C.C.A. # 01C01-9707-CR- 00236 Appellee, * DAVIDSON COUNTY VS. * Hon. Thomas H. Shriver, Judge WILLIAM JETT, JR., * (Stalking)

Appellant. *

For Appellant : For Appellee : Terry J. Ca nady, Att orney John Knox Walkup 211 Printers Alley Bui lding Attorney General and Repor ter Suite 400 Nashville, TN 37201-1414 Marvin E. Clements, J r. Assistant Attorney Gener al Criminal Justice Div

ision Cordell Hull Buildi ng, Second Floor 425 Fifth Avenue North Nashville, TN 37243-0493 S. Carran Daughtre y and Kymberly Haas Assistant District A

ttorneys General 222 Second Avenue North Suite 500 Nashville, TN 37201

OPINION FILED:__________________________

AFFIRMED
GARY R. WADE, JUDGE2 OPINION The defendant, William Jett, Jr., was conv icted of Class C felony stalking. The trial c

ourt imposed a Range II, sev en-year sentence whi ch is to be served consecutivel

y to a prior sentence he i s serving as the r esult of a probation violation. In this appeal of right, the defendant challeng es the sufficiency of the evidence, complains that the trial court erred by refusing to instruct the jury on the crime of harassment and argues that the jury was impr operly informed of his prior conviction for stalking . We find no error and affirm the judgment of the trial court.
The defendant and the victim, Jamie Carter, initiate d a relationship in March of 1994 and began to liv e together at the victi m's residence in March 1995. On July 22, 1995, the defendant had an ar gument with the eleven- year-old daughter of the victim. In consequenc e, the victim then direc ted the defendant to leave and asked hi m not to c

all, w rite, o r other

wise c ommunica

te wit h her. Th e defendant left but remarked that "it wasn' t over yet...."
On August 30, 1995, the vic tim received three teleph one calls. She did not answer and no messag e was left on the voice mai l system. On the follow ing day, there was another call. Again, no message was left. Shortly thereafter, the defendant left a recorded message for the victim, acknowledg ing that he should not have called. He expressed his love for her and asked her "not to get him in trouble for calling." The vict im continued to receive c alls later that evening ; three messages were left from a Nashvil le pay phone by a disg uised voice. In these r ecordings, the caller left word that he was "coming for her," out t o "get her," and going to "blow her up."

It was the victim' s opinion that the defendant had left the mess ages.3 Her conclusion was ba sed upon the caller's util ization of phrases commonly used by the defendant and his obvious know ledge of information personal to th e victim. The recordings included thr eats to rape, kill, and "ri p the insides out" of the victim. The caller stated that he enjoy ed watching the vi ctim and would enjoy hur ting her. The victim estimated at tw

elve the number of hang-up tele phone calls she receive d during the course of that particular day. There w ere other calls invol

ving either hangups or mess ages by a disguised voic e. The calls con tinued through September 8. In a call from a pay phone, a disguised voic e left the following message: Listen to what I say. You and Bill better get back

together or people wil l get hurt. Work it out or pay the price.
The victim had not received any threatening or harassing calls before August 30 and did not receive any after September 8. During this period, the victim changed her telephone number four ti mes; on the last change, she tol d no one of her new number, including her daughter. When the calls persiste d, the victim and her daughter moved to the residence of a friend, Mickey W alker, for a period of six to eight weeks in September and October.

During this time, the victim was employed by the Baptist Hospital in Nashville. Timothy Harrington, a security officer at the hospital, had been briefed about a possible situation i nvolving the v ictim on September 8. He obser ved the defendant at the victim's place of work the next day, only a short time after a telephone call had been receiv ed by a hospital receptio nist. The telephone equipment indicated that the cal l had been made from inside the hospital . The caller asked for the vic

tim. After learning of the cal l, Harrington saw the defendant, who had parked his car on a public street, walk three of the levels insi de the hospital4 employee parking gar

age. The garage requi red an access card. When confronted by Harrington, the defendant claimed that he was there to see an orthopedist about his knee. The orthopedic gr oup he referred to no longer had an office near the garage. After this incident, the victim sw ore out a warrant agai nst the defendant for stalking.
At trial, Mickey Walker testified that when she learned of the threatening calls, she gave permission to the v ictim and her daughter to s tay with her and her husband at night. Ms. Walker recalled that the defendant made sev eral calls to her residence, professing love for the v ictim and expressing

his desire to get her back. She remembered that the defendant left word for the victi m to page or telephone either him or his moth er. She estimated that the defendant cal led between two and three ti mes a day from August 31 to September 8. Ms. Walker testified that the defendant became angry when the victim w

as not there and demanded to know her whereabouts. She informed the defendant, who had threatened to destroy the v ictim's flowers, that the victim was stay ing with her at night. Ms. Walker testified that the defendant continued to call her resi dence even though he had been asked not to do so.

Bobby Comfort testified that on Sept ember 1, he had seen the defendant walking out of a vi deo store in the Fairvi ew area where the v ictim resided. A clerk in the store, Amy White, testifi ed that on that date, a male h ad rented some items and charged them to the v ictim's account. The time of the tr ansaction was 8:56 P.M.
Joyce LaTrina Johnson, a rec eptionist and clerical w orker at the food court at Baptist Hospital , answered several telephone calls during th at period. She5 was familiar with a male voice who had made pre vious calls to the v

ictim at the hospital. When she received a call on September 8, Ms. Johnson contacted security and the defendant was eventually arrested. On cross-examination, Ms. Johnson admitted that she did not kno w whether the defendant w as the person who had made the telephone calls. She di d say, however, that only one male voice h ad ever telephoned the victim at the hospital. Ms. Johnson explained that she chose not to inform the victim of the September 8 call beca use "we didn't want to alarm her."
The defendant did not testify. He did not of fer any witnesses in his defense.

I

Initiall y, the def endant c ontends that no ra tional tr ier of fa ct could h ave found the essential elements of stalki ng beyond a reasonable doubt. He maintains that the victim never knew the defendant was follow ing her.
On appeal, the state is entitl ed to the strongest legi timate view of the evidence and all reasonabl e inferences which might be drawn therefrom. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). The credibilit y of the witnesses, the weight to be given their testimony, and the reconciliation of conflicts in the evidence are matters entrusted excl usively to the jur y as the trier of fact. Byrge v. State , 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). A conv iction may only be set

aside when the reviewing c

ourt finds that the "evidence i s insufficient to support the finding by the trier of fact of guilt beyond a reasonable doubt. " Tenn. R. App. P. 13 (e). A jury verdict, approved by

the trial judge, accr

edits the testimony of the w itnesses for the state and resolves all conflicts in favor of the theory of the prosecution. State v.6 Hatchett , 560 S.W.2d 627, 63 0 (Tenn. 1978).

The statute prohibiting stalking provides as follows: Stalking.-- (a)(1) A person commits the offense of stalking who intentionally and repeatedly follows or harasses another person in such a manner as would cause that person to be in reas onable fear of being assaulted, suffering bodily injury or death

. As used in this subsection: (A) "Follows" means maintaining a visual or physical proximity over a period of time to a specific person in such a manner as would cause a reasonable person to have a fear of an assault, bodily injury or death; (B) "Harasses" means a c ourse of conduct directed at a specific person which would cause a reasonable person to fear an assault, bodil y injury, or death, including, but not limit

ed to, verbal threats, w ritten threats, vandalism, or un consented-to physical c ontact; and (C) "Repeatedly" means on two (2) or more separ ate occasions. (b)(1) Stalking i s a Class A misdemeanor. (2) A second or subsequent violation of subsection ( a) occurring within seven (7) years of the prior conviction is a Class E felony. A second or subsequent vi olation of subsection (a) invol

ving the same victi m and occurring within seven (7) years of the prior conviction is a Class C felony

. (c) The provisions

of this section shall not be c onstrued to prohibit following

another person during the c ourse of a lawful business activ ity. Tenn. Code Ann. § 39-17-315 (emphasis add ed).

While co nceding that sta lking may be establ ished by "follo wing or harassing," the defendant asserts that the indictment charged "r epeatedly followed and harassed" and thus placed the bur den on the state to prove that the defendant both followed and harassed the victim. The de fendant also contends that the state proved neither followi ng nor harassing. Bec ause, he asserts, the vic tim did not know that she was bein g followed at the hospital , she could not have been in fear of an assault at that time.7 The tapes of the telephone messages w ere played for the jury . They contained the threats made agains t the victim and the suggestion that she was being followed. Because s he was familiar with certain phrases unique t o the defendant and some of the subject matter w as of a personal nature, the vi ctim was able to express an opinion that the defendant was the caller. Later, a security worker found the defendant in the secured em ployee parking garage at the Baptist Hospital, where the v

ictim worked, shortl

y after a receptionist r

eceived a call for the victim. The call w

as made on a hospital telephone. The r eceptionist recogniz

ed the male voice as one that had pre viously contacted the victim regularly. There was proof tha t the defe ndant w

as near the victim's re

sidence on Septe mber 1 an d proof, of course, that he was at the hos pital on September 8. The nature of the te lephone calls during that peri od warranted a fearful reacti on by the victim. In o ur view, the proof, circumstantial and other wise, is sufficient for the j ury to have concluded that the victim had been both follow ed and harassed, within the ir statutory definitions , on a repeated basis.

II

Next, the defendant contends that the trial court should hav e charged the lesser offense of harassment:

Harassment.-- (a) A person commits an offense w ho intentio nally: (1) Threatens, by telep hone or in writing , to take action known to be unlawful against any person, and by this action knowingly

annoys or alarms the rec ipient; (2) Places one (1) or more telephone calls anonymously, or at an in convenient hour, or in an offensively repetitious mann er, or without a leg itimate purpose of communication, and by this action knowingly annoys or alarms the recipient; or (3) Communicates by tel ephone to another that a relative or other person has been injured, killed or is ill when such communication is known to be false. (b) A violation of this section is a Class A misdemeanor.8 Tenn. Code Ann. § 39-17-308. While the state concedes that the trial court had announced that the crime of harassment w ould not be instructed to the j ury, it takes the position that the failure to include all of the instructi ons in the record results in a waiver of the issue. Tenn. R. App. P. 13(c); Tenn. Ct. Crim. App. 10(b). The state had argued previously

that harassment is not a less er offense because of the differing elements.

The trial court made the follow ing comment while deny ing a motion by the defendant for acquittal:

I think you've got a whole lot better case w ith telephone harassment than you do with stalking. But you don't want that charged. And I--really in reviewing it, I suppose it's not, strictly

speaking, a lesser inc

luded offense, although I think that's w hat you've proved...

.
The trial judge has a duty to give a complete char ge of the law applicable to the facts of the case. State v. Harbison , 704 S.W.2d 314, 319 (Tenn. 1986). It is settled law

that when "there are any facts that are susceptible of inferring guilt of any lesser included offense or offe nses, then there is a mandatory duty upon the trial judge to charge on such offense or off enses. Failure to do so denies a defendant his constitutiona l right of trial by a jury." State v. Wright , 618 S.W.2d 310, 315 (Tenn. Crim. App. 1981) (citati ons omitted); Tenn. Code Ann. § 40-18-110(a).

In State v. Trusty , 919 S.W.2d 305, 310 (Tenn. 1996), our supreme court set forth guidance on how to determine whether one offense is a lesser offense of another:

Tennessee law recogniz es two types of lesser

offenses that may be included in the offense cha rged in the indictment: offenses necessarily included in the indictment and offenses that are lesser grades of the9 charged offense. An offense is necessarily included in the indictment ... only if the elements of the included offense are a subset of the elements of the charg ed offense and only if the greater offense cann ot be committed without also commit ting the lesser offense. Id. In that case, our supreme cour t also provided guidanc e on how to determine whether an offense is a lesser grade or class of the offense char ged: "[o]ne need only look to the statutes to determine whether a gi ven offense is a lesser gr ade or class of the crime charged. " Id. at 310. The court observed th at the legislature has divided criminal homicide "into the grades of first- degree murder, second-deg ree murder, voluntary mansl aughter, criminally negligent homicide, and v ehicular homicide." Id.

This court has previousl y held that harassment is not a lesser included offense of stalking. See State v. Gregory Jay Hoxie , No. 03C01-9506-CR-00183, slip op. at 12-13 (Tenn. Cri m. App., at Knoxville, Nov. 7, 1996), aff'd , 963 S.W.2d 737 (Tenn. 1998). In Trusty , it was held that an offense is "necessarily included in the indictment ... only if the elements of the included offense are a subse t of the elements of the charged offense and only if the greater offense cannot be committed without also committing the lesser offense ." Trusty , 919 S.W.2d at 310 (emphasis added). Because one may commit stalking without committing harassment, harassment is not a lesser included offense of stalking

.

Harassment requires ( 1) communication which threatens unlawful action against another, (2) repetitive or inconvenient phone calls, or (3) false communication that a relativ e or other person has been inj ured, killed or is il l. Tenn. Code Ann. § 39-17-308. Stalki ng requires intentio nally and repeatedly foll owing or harassing another in such a manner as would cause that person to be in reason able fear of being assaulted, suffering bod ily injury or death. Tenn. Code Ann. § 39-17-10 315. While the stalking statute mentions the word "harass," the term h as been defined differently in the stalki ng statute than in the harass ment statute. For harassment to constitute stalk ing, it must be a "course of co nduct directed at a specific person which would cause a reasonable person to fear an assault, bodily injury or death, incl uding, but n ot limited t o verbal th reats, wr

itten threat

s, vandali sm, or unconsented-to physical contact." Tenn. Code Ann. § 39-17-3 15(a)(1)(B).
One can commit stalking, as defined in Tenn. Code Ann. § 39-17-315, without committing hara ssment, as defined in Tenn. Code Ann. § 39- 17-308. For example, one could commit stalking by vandalizing the victim's property. Such conduct would not also amount t o harassment under Tenn. Code Ann. § 39- 17-308. Because stalking can be committed without committing the offense of harassment, harassment is not a lesser included offense. Trusty , 919 S.W.2d at 309.

No determination was made i n Hoxie as to whether harassment could be a lesser grade offense of stalki ng. We must conclude that it is not. See Trusty , 919 S.W.2d at 310. Both stalking and harassment a re Class A misdemeanors. I n consequence, neither is a l esser grade than the other. Enhancement to felony status only occurs w

here one has been previously convicted of stalking within seven years. While both offenses are codified in Titl e 39, Chapter 17, Part 3, it i s doubtful that Trusty 's "lesser grade" analy sis would be applicabl e to this part of the Code. The offenses of obstructing highw ay or other passagew

ay, disrupting meeting

or procession, riot, disor

derly conduct, civ

il rights intimidati on, public intoxicatio n, etc., are also codified in that chapter

. See Tenn. Code Ann. 39-17-301 et seq.All of these offense are loosely characterized under Title 39 as "of fenses against public health, safety, welfare" and und er Part 3 as "disorderly conduct and riots." In our view, Trusty 's "lesser grade" analy sis does not readily ap ply to this chapter of the11 Code.
In consequence , the trial court h ad no obligation to charge harassment. While the two offenses at issue ar e similar, they are s

eparate and distinct crimes and one is neither included in nor l esser than the other.

III Finally, the defendant contends that the original indictmen t had also charged the defendant with having been found guilty of stalking the victim within seven years of this offense. When that portion of the indictment referring to the prior conviction w

as stricken, the remainder of the indictment was accur ately read to the jury. The defendant complains that the full document, including information about the prior convicti on, was sent to the jury for consideration during its deliberations. See State v. Morgan , 541 S.W.2d 385 (Tenn. 1976).

Nothing in the record s upports the claim that the jur y was aware of the prior offense. No objection w as made by the defendant before or durin g deliberations and none was made upon the return of the verdic t. While the issue was raised on motion for new trial, the transcript

of the hearing has not been included in the appellate rec ord. It is the obligati on of the appellant, of course, to provide this court w

ith an adequate record in r egard to any claim. The fail ure to do so results in a waiv

er of the issue as a possible g round for relief. Tenn. R. App. P. 13(c); Tenn. Ct. Crim. App. 10(b). Pleadings in the form of a motion for new trial do not qualify as proof.12 Accordingly, the j udgment is affirmed.

________________________________ Gary R. Wade, Judge CONCUR:

_____________________________ Thomas T. W oodall, Judge

_____________________________ L.T. Lafferty, Special Judge