### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ugus t 14 , 200 7 S es sio n

STA TE OF TEN NES SEE v. AL ONZ O EU GEN E TERREL L

Direc t Appeal from the Cr im inal Cou rt for Davidson Coun ty No. 2005-B-1011 M ark J. F ishb urn, Jud ge

No. M2006- 01688-CCA -R3-C D - F iled Janu ary 30, 2008

The de fenda

nt, Alonzo Eugene Terr ell, was c onvicted of dome stic assault, a Class A misdemea nor, and wa s sentence d to eleven months and twen t y -n i n e day s, to be serve d on probation. He filed a mot ion fo r n e w tri a l, w hic h w a s d e nie d, and thi s a pp e a l fol low e d. On a

pp e a l, h e ra ise s se ve n is su e s. F ir st, he argue s th e e vid e nc e wa s ins uf fi c ie nt to su

pp or t a c on vic tio n of do me sti c a ssa ult . H e a lso

argue s th a t th e tr ia l c ourt e rr e d in a llo wi ngthe State to i ntr od uc e c e rt a in e vid e nc e and e rr e d in d en y i n g b o t h his moti on to dismi ss for violation of his rig ht to speedy trial and his motion for acquittal. Additionall y , he conte nds the court e rre d in refusingto allow two specific lines of questioning to the vic tim and a police officer during the trial. Our r eview r evea ls that the evidenc e was suff icient to support the conviction and that no error exis ts. The judg ment from the tria l court is affirme d.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed

J OHN E VE R E TT W I L L I AMS , J ., delivere d the opinion of the cour t, in which J ER R Y L. S MI TH and A L AN E. G L EN N , J J ., joined.

Mark H. Che n, Na sh vil le , T e nn e sse e , f or the a pp e lla nt, Al on zo E ug e ne Te rr e ll.

Robert E. Cooper, Jr., Attorney Ge n er al and Reporte r; Rache l West Harmon, Assistant Attorney Gene ral; Victor S. (Tor

ry ) Johns on, I I I , District Attorney Gene ral; and Sar ah Davis, Assistant District Attorney

Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

This case involves a dis pute between a husband and wife, stemming from a n argument that

occur red be tween the m inside their home.

The defe ndant filed a motion to dismiss the underly ing char g es, alleg ing he was de nied the ri g ht t o a sp e e dy tr ia l. He fi le d the mot ion to dis mis s on F e br ua ry 27 , 20 06 , a

nd a he ari ngwa s h e ld on Marc h 9, 2006. During the hear ing, the defe ndant testified that he was arr ested on Dec ember 17,-2-

2 0 0 4

. H e w a s n o t r e le a s e d u n ti l A u g u s t 1 5 , 2 0 0 5

. T h e d e f e n d an t te s ti f

ie d th a t th e tr ial was

or ig ina lly se t f or Oc tob e r 3 1, 20 05 , b ut wa s mov e d to No ve mbe r 1 3, 20 05 . H e sa id t hat it wa s a lso

mov e d fo ur a dd iti on a l tim e s to M arc h 2 7, 20 06 . T he de fe nd ant s a id t hat he wa s p re pa

re d to g o to tr ia l on e a c h o f t he pr op os e d d a te s. He te sti fi e d th a t th e pe nd ing c ha rg e s had a dv e rs e ly a ff

e c te d h is life bec ause the y

continued to hangover his hea d and pre vented him from moving on with his li fe.

During cross-e x amination, the def endant a cknowledg ed that he was on parole when he was
arr ested for

the under ly ing of

fense . He wa s held until August bec ause he was on pa role for a previous v i o l at i o n an d was inca rce rate d until he completed that sente nce. H e said that the c ourt low e re d h is b on d in

July to e na ble him to m a ke bo nd

in Augus t. H e sa id h e wa s n ot c ur re ntl y incar cer ated be cause the jail acc identally rele ased him af

ter ten da y s. He did not post a se cond bond

a ft e r v iol a tin g the te rm s o f h is p aro le . H e sai d he r e qu e ste d d if fe re nt c ouns e l be c a

us e his fi rs t attorney would not file for a speedy trial. The defenda nt claimed he did not know that ne w counse l would need time to pre pare for his ca se. He said he wa s nervous while t h i s ca s e wa s pending bec ause he was not g uilty of the c harg es. He related that he wa s not nervous about a prior law violation when he wa s char g ed with second de g ree murder be cause he knew he wa s g oing to jail.

On re direc t e xa

mi nation, the def

endant testified that his parole wa s revoke d beca use he f ailed to report to his parole office r. He said that, bec ause his cha rg es we re misdemea

nors, they could have been de alt with a long time a g o. The de fenda nt had bee n on parole for thre e months when he was
arr ested for the new law violation. The case was set se vera l times for a settlement a nd was moved

sever al times for motions to be filed.

The trial c ourt found t hat all the continuances were due to other ca ses on the cour t’s docket “which wer e either more serious, much more serious, or the person was in ja il

. ” T h e c o urt acknow ledg ed that the tria l was h el d slightly more than one y ear

from the date of the a

rre st. The court fur ther found that the rea sons for the de lay wer e “ne utral” toward the defe ndant and that none of the de lay s was the f

ault of the S tate. The defenda nt made no complaint about the dela y until the month prior to trial, and he w as not prejudice d or in jail as a r esult of the ca se pending

. During the trial, the victim testified that she and the defe ndant wer e mar ried but we re in the proce ss of obtaining a divorc e. The victim said that she returne d home on the date of the incide nt and that the d ef

endant made some comments about her cooking . She told him he needed to c ook for himself because they

had not g otten along the pre vious night. She said that the de fenda nt talked to h e r a s th ou g h he wa

nte d to sta rt an ar g ume nt an d ask e d que sti on s abo ut one of he r f e ma le fr ie nd s. The victim said that the def endant a sked her

wher e the f

riend lived, a

nd she re sponded, “Why

do y ou

w an tt o kn o w w h e r e s h e l i v e s , y o ud o n ’ te v e nl i k e h e r , s o w h y w o u l d Ite ll y o uw h e r e s h e l i v e s ?” At that time, the defe ndant lunge d at her and, using both of his ha nds, g rabbe d her by the throat. The defe ndant said, “B itch, y ou g onna make me do it, y ou g onna make me do it.” The vic tim believed that he mea

nt that he would kill he r. She could not breathe, and the de fenda nt scratc hed her

neck with his thum bnail. Hoping that the def endant would r elea se his hold on her throat, the victim tried to give him the friend’ s number. The defe ndant re lease d some of the pressure when he saw she w as trying to give him the address. When the defendant release d her, she ran to a neighbor ’s hom e. As-3-

she ra n, she hea rd the de fenda

nt say he was g oing to burn t he house down and hear d him slammi ng down the windows of the house.

As the victim ran to the neig hbor’s house, she heard the sound of fire alar ms. Be cause the defe ndant had state d he would burn down the house , the victim immediately phoned her

landlord, who then conta cted the police . The victim was at the neig hbor’s house w hen the police ar rived. She ta lke d w iththe po lic e , a

nd the po lic e ph oto g ra

ph e d h e r i nju

ri e s.

The victim testified that the defe ndant tried to contac t her seve ral times to discuss the ca se. He us e d th e ir

da ug hte r t o ta lk to he r. Th e de fe nd ant ph on e d and se nt te xt m e ssa g e s to t he vic tim
, sp e c if ic a lly a sk inghe r t o d

ro p th e c ha

rg e s. She fe lt that th e de fe nd ant was tr y in g to “ we a se l” his

wa y ou t of g e tti ng in trou

ble a g a in. He sta

rt e d to c ur se he r w he n s he re fu se d to dr op the c ha rg e s. The victim said that the incident itself, a s well as the text messag es and calls she re ceive d from the de fe nd ant, c a

us e d h e r t o b e a fr a id o f t

he de fe nd ant.

Duri ngc ro ss- e xami natio n, the vic tima c kn ow le dg e d th a t on e of the ir da ug ht ers live s w ith the def endant. She sa id that the child was unruly and that she a llowed her to live wi t h h er fathe r. The victim said she ra

n to the neig hbor’s house be cause she thoug ht it would be a safe place

.
Offic er Judy Ba

rre ra, of the M etro Nashville Police Depa rtment, testified that she r esponded to a do me sti c dis tur

ba nc e c a ll on Nov e mbe r 15, 20 04

. She sa id that, wh e n she arr ive d, the vic tim appea red ve ry shaken a nd was c rying. T he victim told her the de fenda nt tried to strang le her

and threatened to kill her and her children. The office r observe d a scratch on the victim’s thr o at t h at appea red to be a rec ent injury

. Additionally
, the office r testified that she sme lled something bur ning in the home but did not know w hat it wa s. She said that she wa s unable to interview the def endant beca use he le ft the sce ne. She did not a ssist the victim in obtaining a wa rra nt beca use she wa s g oing of f d uty wh e n s he re sp on de d to the c a ll. Ho we ve r, sh e did fi le an o ff

e ns e re po rt

.
O f f i c e r B ar r e r a s a i d t h a tth e v i c t i m ’ s n a m e w a s m i s s p e l l e d o n t h e o f f e n s e r e p o rt , s p e c i f

i c a l l y, one “n” is omit ted from the vi ctim’s name. How ever , she did not rec all whether the victim spelled

ou t he r n a me wh e n s he wa s c omp ili ngthe re po rt

.
The de fenda

nt called his sister t o t es t i fy . The de fenda nt’s sister testified that she ha d observe d a roc ky

relationship between the defe ndant and the victim. She opined that the victim was not a truthful per son and that she ha s been dishonest ove r the y ear s.

An a ly sis

First, we revie w the def

endant’ s challeng e to the s ufficie ncy of t he evide nce. H e conte nds that the victim’s testimony and the scratch on her neck were not sufficie nt to prove that he assaulted he r. Spe c if

ic a lly , h e a sse rt s th a t it

is p os sib le the vic timha d u lte ri or mot ive s f or c ha rg inghim wi th

a ssa ult and that, be c a

us e he r te sti mony wa s the on ly pr oo f pr e se nte d, the re sh ou ld be reaso nab le doubt that the assault occ urre d.-4-

When an ac cused c halleng es the suff iciency of the e vidence , this court must review the

rec ord to deter

mine if the e v idence adduce d during the trial wa s sufficient “ to support the finding by the tr ier of

fa c t of g uil t be y on d a

re a so na ble do ub t.” Te nn . R. Ap p. P. 1 3( e ). Th is r ule is applicable to findings of g uilt predicate d upon direc t evidence , circ u m s t an t i al evidence or a
c omb inatio n o f d ir e c t and c ir c ums tanti a l e vid e nc e

. State v. B re we r, 93 2 S. W.2 d 1 , 1 8 ( Te nn . Cr im. App. 1996).

I n deter mining the sufficie ncy of the evidenc e, this court does not rew eig h or ree valuate the

e vid e nc e . St a te v. Ca

bb a g e , 5 71 S.W. 2d

83 2, 83 5 ( Te nn . 1 97 8)

. No r may thi s c ourt su bs tit ute its infere nces f

or those dra

wn by the trier of

fac t from circ umstantial evidence . L i ak as v

. S t ate, 199 Tenn. 298, 305, 286 S.W.2 d 8 5 6 , 859 (1956). To the contra ry , this court is require d to affor d the State the str on g e st le g iti ma te vie w of the e vid e nc e c onta ine d in the re c or d a s w e ll a s a ll r e a so na ble and leg itimate infere nces w hich may be dra wn from the evidenc e. State v. Elkins, 102 S.W .3d 578, 581 (Tenn. 2003)

.
Th e tr ie r o f f

a c t, n ot t his c ourt , r e so lve s que sti on s con c e rn ing the c re dib ili ty of the wi tne sse s, the weig ht and value to be g iven the evide nce, a s well as all fa ctual issues ra ised by the evidenc e. Id

. In S t a t e v

. G r a c e , t h e T e n n e s s e e S u p r e m e C o u rts t a t e d t h a t“ [ a ] g u i l t y v e r d i c tb y t h e j u r y,
a pp ro ve d b y

the tr ial ju dg e , a c c re dit s th e te sti mony of the wi tne sse s f

or the State and

re so lve s a ll conflicts in favor of the the ory of the State.” 493 S.W .2d 474, 476 (Tenn. 1973)

.

B e c a u s e a v e r d ic t o f g u il t r e mo v e s th e p r e s u mp ti o n o f inn o c e n c e a n d r e p la c es it with a pr e su mpt ion

of g uil t, t he a c c us e d h a s th e burd e n in thi s c ourt

of illus tra tin g wh y

the e vid e nc e is insufficient to support the ve rdict re turned by the trier of

fac t. State v. Tug g le, 639 S.W .2d 913, 914 (Tenn. 1982) ; Grac e, 493 S.W.2d at 476.

An a ssa ult is c omm itt e d w he n a

pe rs on int e nti on a lly , k

no wi ng ly , o r r e c kle ssl y

c a us e s b od ily injury to another or

when a person intentionally

or knowing ly

cause s another to r easona bly fea r immi n e n t b o d il y

in ju r y

. Se e T e n n

. Co d e A n n

. § 3 9

- 1 3

- 1 0 1

. D o me s ti c a s s a u lt is d e f in e d a s an assault ag ainst a p er s o n t h at i s a fa mily member. See Tenn. Code Ann. § 39- 13-111. He re, the victim testified that the defe ndant lung ed at her and g rabbe d her by the throat when she would not provide him the addr ess for he r fr iend. As he c lutched her throat, he said, “B itch, y ou g onna make me do it, y ou g onna make me do it.” She descr ibed that he was pressing deep in he r throat so that she could ne ither bre athe nor talk until she tried to te ll him the number . He then r elea sed pre ssure, and she w as able to esca

pe to a neig hbor’s house wher e she ha d the landlord phone the police. The

e vid e nc e pr e se nte d at tr ia l w a s su ff ic ie nt t o p ro ve the de fe nd ant a ssa ult e d th e vic tim

.

Ne xt, th e de fe nd ant a

rgue s th a t th e tr ia l c ourt

e rr e d i n all owi ng the State to a dmi t in to

e vid e nc e me ssa g e s th a t he se nt to the vic tim ur g ing he r no t to purs ue the c ha rg e a g a ins t him . In h is brief, he provides no author ity to support his contention that the tex t messag es should not have be en admitted though he contends they wer e irrelevant. I n Tillery v. State, 565 S.W .2d 509, 511 (Tenn. Crim. App. 1978), this court held that “a ny attempt by

an ac cused to c oncea l or destroy evidenc e, including a

n attempt to suppress t he testi mony of a witness, is releva nt as a c ircumstance from which-5-

g uilt of the acc used may be inferr ed.” Her e, the def endant doe s not dispute that the tex t messag es
wer e sent. F urther, the tr i al co u rt , d u ri ng the hea ring on the motion for new tr ial, held that the pr ob a tiv e val ue of th e mess a g e s o utw e ig he d a ny pr e jud ic ia l e ff

e c t. We a g re e . T he de fe nd a nt i s entitled to no relief on this issue.

Next, the defe ndant argues that the trial court err ed in allowing the police off icer to testify when he r involvement wa s limi ted to filing a police re port based o n t h e v i ct i m’s asser tions. The State argues that the de fenda nt does not offe r any

authority to support his c ontention that it was e rror fo r t he of fi c e r t o te sti fy ; th e re fo re , it is w a ive d p ur su ant t o Ten nes see Cour t of Cr imi na l App e a ls Rul e 10 (b ). Ho we ve r, we c on c lud e that th e tr ia l c ourt did no t e rr in a llo wi ng the po lic e of fi c e r t o testify . The off

icer was the first to respond to the sce ne of the incident and f iled an off

ense r eport based on her interview of the victim a nd her observations at the scene

. She offe re d re l ev ant testimony reg ardingher involveme nt in the i nvestig ation, and the trial court ha d no rea son to prevent he r t e sti mony . T his iss ue is w ith ou t me ri t.

Ne xt, th e de fe nd ant a

rgue s th a t the tr ia l c ourt e rr e d in fa ili ng to g ra nt tw o mot ion s. Th e fi rs t motion erroneously

dismiss ed wa s his moti on to d i smiss for failure to provide him with a speedy trial, and the se cond wa s his moti on for a cquittal afte r the c lose of the State’ s proof.

I nitially
, we ad dress the de fenda nt’s argument reg ardinghis unsuccessf ul motion for acquittal. In his brief, he s imply incorporates by ref ere nce the argument he submitted in contesting the suffic iency

of the e vidence . For

the same r easons, we conclude that there was suff icient evidenc e to convict the def

endant of domestic assault and that there w as no err or in de ny ing the motion for acquittal. At the time the de fenda nt made his motion for ac quittal, the trial court proper ly denied the motion because the State had provided sufficie nt e vidence to suppor t the ir case . There fore , this iss ue is w ith ou t me ri t.

Next, we addre ss the defe ndant’s unsucc essful motion to dism iss f or denying him his rig ht to a spee dy

trial. Both the U nited States and Tenne ssee Constitutions g uara ntee a criminal def

endant the rig ht to a speedy

trial. See U.S. Const. amend. VI ; Tenn. C onst. art. I , § 9; State v. Be rry , 141 S.W .3d 549, 568 (Tenn. 2004) ; State v. Utley , 956 S.W .2d 489, 492 (Tenn. 1997) . A cr iminal defe ndant’s rig ht to a speedy trial is a lso statutory in T ennesse e. See Tenn. Code Ann. § 40- 14-101 (2003).

I n de te rm ini ng wh e the r a de fe nd ant’ s ri g ht t o a sp e e dy tr ia l ha s b e e n c omp ro mis e d, we mus t weig h four f

actor s: (1) the leng th of the de lay ; (2) the r eason f or the de lay ; (3) the de fenda nt’s

a s s e rt i o n o f h i s r i g h t t o a s p e e dy t r i a l ; an d ( 4 ) an y p r e j u d i c e t o t h e d e f

e n d an t c a u s e d b y t h e d e l a y. See B arke r v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182 (1972); State v. Wood, 924 S.W .2d 342, 346 (Tenn. 1996) ; State v. Ba ker, 614 S.W .2d 352, 353 (Tenn. 1981); State v. Bishop, 493 S.W .2d 81, 84 (Tenn. 1973)

.

He re , the de fe nd ant wa s ar re ste d o n D e c e mbe r 1 7, 20 04 . H e a dmi tte d th a t he wa s o n p a ro le

a t th e tim e of

thi s arr e st a

nd ha d to se rv e tim e fo r vio la tin g his pa

ro le . H e wa s r e le a se d o n A ug us t-6-

15, 2005, when he made bond in this case . He f ailed a dr ug test and ser

ved ten da

y s for violating the conditions of his bond. T h e d ef en dant testified that the c ase w as set for trial on Octobe r 31, 2005, befor e it wa s continued to November 13, 2005. The c ase w as later continued to Marc h 2006. The de fenda

nt did acknowledg e that he c hang ed attorn ey s wh i le the ca se wa s pending . The trial court found no f

ault with the State for the c ase be ing c ontinued and stated that the cour t’s cale ndar pu sh e d it ov e r t he on e -y e ar d a te . T he c ourt fu rt he r f ound that th e de fe nd ant wa s no t in ja il b e c a us e he could not make bond for the underlying arr est but w as incar cer ated beca use he violated his par ole. There is n o ev idence that the delay was unre asonable or ca

used the de fenda

nt any rea l prejudice

. The leng th of the dela

y was not unre asonable , neither pa rty was re sponsible f

or the delay , and the defe ndant did not assert his rig ht to a speedy trial until day s befor e his trial was scheduled to beg in. We conclude that the defe ndant’s right t o a speedy trial was not violated a nd, there fore , aff

irm the judgme nt from the trial c ourt.

Next, the defenda

nt contends that the trial co u rt er re d in preve nting him from pur suing

cer tain issues on cross-e x amination of two State witnesses. Specifica lly
, he argues that he was not

a llo we d t o c r o s s

- e xam i n e t h e v i c t i m r e g ar d i n g h e r c r i m i n a l h i s t o r y an d w a s n o t a l l o w e d t o c ro ssexamine the police off

icer reg ardingthe name g iven by the victim. Howeve r, he f ails to c ite to any authority to suppor

t e ither issue. There fore , these issues ar e wa ived pursuant to Te nnessee Court of Criminal Appeals Rule 10(b).

Conclusion

Ba sed on the for eg oing a

nd the re cord a s a whole, w e conc lude that no er ror e x ists and that the judg ment from the tria l court is aff irmed.

___________________________________

J OHN EV ERETT WI L L I AMS, J UDGE