IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

May 19, 2009 Session

STATE OF TENNESSEE v. TEDDY RAY MITCHELL

Direct Appeal from the Criminal Court for Hamblen County

No. 06CR464 John Dugger, Jr., Judge

No. E2008-02672-CCA-R3-CD - Filed March 31, 2010

NORMA MCGEE OGLE, J., dissenting.

I respectfully disagree with the majority’s conclusion that the evidence was not

sufficient to sustain the defendant’s conviction for disorderly conduct. The majority

correctly notes that Tennessee Code Annotated section 39-17-305(a)(1) provides that an

individual commits disorderly conduct when that individual “in a public place with the intent

to cause public annoyance or alarm, engages in . . . threatening behavior.” The majority

concludes that the video recordings of the incident “belies the officers’ testimony in very

significant ways.” The majority concedes that the defendant, with a raised voice,

belligerently argued with officers regarding his ability to bring his flagpole into the rally.

However, the majority maintains, that the defendant did not made “any specific verbal

threats” and that the officers did not testify that they felt threatened by the defendant.

Further, the majority states that, contrary to the witnesses’ testimony, the videos do not

reflect that the flagpole came into contact with Officer Wallen “at all.” Therefore, the

majority concludes that “[t]he videos are void of any actions of the Defendant that could be

deemed physically threatening.”

The record reflects that the events at issue at trial stemmed from an anti-illegal

immigration rally held on the grounds of the Hamblen County Courthouse which 300 to 500

people were expected to attend. The defendant, already “irate and mad” after being told by

officers he must not park his car in a prohibited area, proceeded at a “fast pace,” visibly

upset, toward the entry gate where officers were gathered. At the gate, officers told the

defendant, who was carrying a flag on a long pole with an eagle topping one end, that he

could bring his flag into the rally but that he would have to remove the flag from the pole and

leave the pole outside the premises, explaining that all rally participants were prohibited from

bringing flagpoles or items that could be used as weapons into the rally. The defendant, who

was “very irate,” began to “rant and rave” about the prohibition, and, according to an
officer’s testimony, he shook the flagpole up and down “in a threatening manner.” Officer

Wallen said that during the defendant’s “rant,” the defendant “pok[ed]” or “prodd[ed]” him

in the chest two or three times with the eagle end of the flagpole. Deputy Lane testified that

the defendant was acting in an “actively aggressive” manner.

In my view, the videos of the incident are not inconsistent with the officers’ testimony.

The videos show that the eagle end of the defendant’s flagpole came into contact, albeit

briefly, with Officer Wallen during the incident. When the defendant was informed he could

not bring his flagpole into the rally, he became confrontational, loudly taunting the officers

to get the attention of other rally attendees, getting into the officers’ faces, and prodding

Officer Wallen with the flagpole. Additionally, the videos show that a crowd was gathering

around the defendant, shouting encouragement to him. The jury viewed the videos and heard

the testimony of the witnesses. I would conclude that a reasonable trier of fact could have

found that the defendant’s behavior was threatening. See State v. Roberts, 106 S.W.3d 658,

663 (Tenn. Ct. App. 2002); State v. Alecia Diane Cooper, No. M2006-02618-CCA-R3-CD,

2007 WL 2350097, at *7 (Tenn. Crim. App. at Nashville, Aug. 14, 2007); State v. Kenneth

D. Melton, No. M1999-01248-CCA-R3-CD, 2000 WL 1131872, at **6-7 (Tenn. Crim. App.

at Nashville, Aug. 4, 2000). Further, I would conclude that the remainder of the defendant’s

issues are without merit and would therefore affirm the defendant’s conviction.

_________________________________

NORMA McGEE OGLE, JUDGE

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