1 Th e par ties testified a t the trial on M ay 23 , 200 2, that the y were th en eng aged to be marrie d.



### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON Assigned on

Briefs J une 3, 2003
STATE OF TENN ESSEE v. JAMIE JOHN SC HRANTZ
Appeal from the Circuit Court for Madison County No. 01-708 Roy B. Morgan, Jr., Judge

No. W2002-01507-CCA-R3-CD - Filed December 2, 2003

The defendant, Jamie John Schrantz, appeals from hi s Madi son County Circuit Court jury conviction of assault. He claims that the evidence is insufficient to support the conviction, that

the trial court erred in limiting the defendant’s cross-examination of a prosecution witness, and that the trial court erred in order ing the a ssault sen

tence se rved con secutive

ly to prior sentences. We affirm the lower court’s judgmen

t. Tenn. R. App.P. 3; Judg ment of t he Circui t Court is

Affirme d.

J AMES C URWOOD W ITT , J R ., J., delivered the opinion of the court, in which J OSEPH M. T IPTON and D AVID G. H AYES , JJ., joined.

Micha el D. Rasna

ke, Ja ckso n, Tennes see, for t

he Ap pella nt, Jam ie John Schrantz.
Paul G. Summers , Attorney General & Repo rter; Eliz abeth B. Marney, A ssistant Attorney Genera l; James G. Woodall, District A ttorney Genera l; and Jody

S. Pic kens, Assistant District Attorney General, for the Appellee, State of Tenne ssee.
OPINION

The assault c onvicti on eman ates fro m an incid ent at the Fast Lane ga s station in Jackson on April 1, 2001. The defendant accompanied the victim, Diana T odd, into the store. The defendant and the vi ctim

had bee n involved

in a rela tionship, but in the hours prec eding th e events at the Fast Lane , they

had arg ued abou t the def endant st aying out un

til the we e hours on

April l wit

h the victim’s sister. 1

In the Fast Lane s tore, the couple argued over how many packs of

cigarettes the victim should buy, and the victim left the store with the defe ndant following behind her.-2- The victim, who was called as a witness by the state, testified tha t after leaving the store, she got behind the wheel of her sport utility vehicle and locked the doors. The defenda nt testified that he panicked when he found the passeng er side door locked. He went to

the rear of the vehicle and opened the unlocked hatch door. Then, by all accounts, the six-foot-seven-inch, 293- pound defendant climbed through the rear of the vehicle a nd over the rear seat. The victim and the defendant both testified that the defendant tried to get the key s fromthe vehicle switchand that the victim struck him several times in the face with her wallet “to get his attention.” They both denied that the d efenda nt struck the victim

. The victim left the vehicle, went in to the store, and asked the store clerk to call 911. The victim and the defendant testified that when the victim went to the store, the defendant occupied the driver’s seat of the vehicle and ref used to budge when the victim returned and trie d to pull him out. The victim and the defendant testified that the defendant did not strike the victim at any time during the episodeat the Fast Lane. The victim tes tified tha

t she was n ot fear

ful of the defenda nt, characterizing him as “a big teddy bear” who would not harm her.

The victim denied that

she told investigating JacksonPolice Officer Mark Ellington that the defendant had hit her. Wh en she learned the day after the incident that the defendant had been incarc erated , she rev iewed the incident report, which sta

ted that th

e defendant h ad ass aulted th e victim. She called Officer Ellington and told him the report was inac curate and that the defendant had not struck her.

The Fast Lane cle

rk testified that

after the argument inside the store, the victim lef

t,
an angry defenda nt followe d her, and the vict imgot into her vehicle. The clerk saw the defendant climb throu gh the hatch door and testified that the defenda nt began hitting the victim with op e n hands and fists on the head and in the face. The clerk te stified, “He just kept hitting her and hitting her.” The victim the

n came ba

ck into the

store in an agitated state and asked the cle rk to call 911, which the clerk did. The clerk testified that the victim returned to the vehicle and that the defendant and the victim engaged in “constant fig hting” while standing outside the vehicle. She described the victim’s efforts as defensive.

A customer

of the Fa st L ane testified that he was pumping gas when he sa w the defendant enter the victim’s vehicl e through the rea r hatch. The custo mer, who was an of

f-duty deputy sheriff

in another county, testified tha t the defendant began hitting the victim. He testified that when he went into the store to pay for his gas, the clerk screa med, “He ’s beating her!” The customer told the clerk to call 911 before the victim came to the door to make the same request.

The J ackson

office rs who inv estiga

ted the incident te stified th at they found the victim in an upset, hysterical, a

nd “flushed” condition. They testified that she told themthat the defendant had hit her. The defendant was arre sted and transported to the jail.

In his testimony at trial, the defenda nt acknowledged

being upset and emotional over the prospe ct of the co uple breaking up and that he raised his voice dur ing the argument over the2 The assault of fense was charged in t

he alternati ve in one count . Tenne ssee Code Annot ated sect ion 40-13- 206 (a) arg uab ly supp orts this p ractice

. See Tenn. Code Ann. § 40-13- 206(a) ( 2003) (“ When the of fen se may be committe d by differe nt form s, by differe nt mea ns or w ith different intents, such f orms, means or int ents may be all eged in the same count in t

he alternati ve.”). In our v iew, ho weve r, the be tter pra ctice is to allege alterna tive mo des o f assault in sepa rate co unts. -3- cigare ttes. He denied that he was angry . He panicked when he found the vehicle door locked because he thought the victim wa s goi ng to dri ve away and leav e him. He e

ntered t he vehic le throu gh the hatch and tried to get the key s. He denied that he ever struck the victim. He admitted that he had sixteen prior felony c onvictions for thefts, forgeri es, and bad che ck char ges. He also admitted that

he was on pa

role on A pril 1, 200 1, and tha

t as a re sult of the

incident on that da

te, his parole had been revoked.

I

In his first issue, the defendant assails the sufficiency of t he convicting evidence. When the suff

iciency of the

evidence is challenged on appea l, the appellate court must view the evidence in the lig

ht most fav orable

to the state, indulge the state the benefit of all inferenc es that may reasonably

be drawn from the evidence, and de termine w hether a ny r easonab le perso n could find th e a cc us ed gu il ty b eyo nd a reasona ble doubt, after deferring to the trier of fact to weigh the evidence, resolve factual disputes, and judge the credibility of witnesses. Te nn. R. Crim. P. 13(e); State v. R eid , 91 S.W.3d 247, 276 (Tenn. 2002).

In the present case, the

defenda nt was convicted of assault via Tennessee Code Annotated section 3 9-13-101 (a), an offense committe d by one who intentionally , knowingly or reckle ssly causes bodily injury

to another or who inten tio na lly o r knowingly c auses an other to reasonably

fear imminent bodily injury . Tenn. Code Ann. § 39-13-101(a)(1), (2) (2003)

. The defendant claims on appeal that the state failed to prove that thevictim sustained any bodily injury , leaving the offense alternative of reasona ble fear of imminent

bodily injury

as the only other basis for

conviction. 2 As to this ba sis, the de fendant argue s that the v

ictim vehe

mently denied being fearful of any bodily injury

and that o nly

the victim

could est ablish whether she was afraid. The state

counters that it circumstantially e stablished the victim’s fear of bodily injury throu gh witnesse s who var iously describ ed her a s being “ hys teric al,” “scared,” “pretty upset,” “crying ,” “shaking,” “flushed,” and “ frantic.”

The defendant’s argument is intriguing , but it runs headlong into the general rule that “criminal offense[s] may be established e xclusively by

circ umstanti al evidence.” State v. Penderg rass , 13 S.W.3d 389, 393 (Tenn. Cr im. App. 19 99); see also Duchac v. State , 505 S.W.2d 237 (Ten n. 1973); State v. Jones , 901 S.W.2d 393, 396 (Tenn. Crim. App. 1995).

In State v. Tommy Arwood , Jr. , N o. 01C01-9505-CC-00159 (Tenn. Crim. App., Nashville, May 24, 1996), this court reviewed the sufficiency of the evidence in an assault case. The victim, a store employee who suspected the defenda nt of shoplifting cigarettes, followed the-4-

defendant and confronted him. After the defen dant t hreatened to fight the victim, the defendant “shoved[the victim] with both hands backwards into the ice machine.” Id. , slip op. at 3. After the defendant left, the victim swo

re out an assault w arrant

agains t the def

endant. A

lthough t he victim didnot “specifically

[testify] that the defendant’s words and a ctions caused hi m to fear imm inent bo dily injury ,” this court held th at “ther e was suf ficient c ircumsta

ntial evid ence fo r the jury to conclude bey ond a rea sonable d oubt that [ the vi ctim] had experienced such fear as a result of the defenda nt’s conduct. ” Id. , slip op. at 6. The circumstances relied upon by the court in Tommy Arwood, Jr. were that the victim hit the defendant with an emptysoda bottle as a gesture of selfdefense, the victim was unable to recite the defendant’s license number following the attack, and the victim responded to the attack by calling the police. Id

. (conce rns a bout self -defen se, inabi lity

to concentrate, and turning to the police for help are indicia of fearfulness).

In State v. Ricky Atkins , No. 03C01-9812-CC-00432 (Tenn. Crim. App., Knoxville, Nov. 10, 1999), this court reviewed an assault that emanated fr om yet ano ther conven ience store cigar etteincident . Atkins fl ed a stor e with stol en ciga

rettes, a nd the stor

e clerk follo wed. “[T]he defendant turned to face t

he vict im, display

ed a wea pon, and t hreate ned [the vi ctim’s] lif

e” while standing approximately ten feet fr om the victim. Id. , slip op. at 6. The victim retreated to the store and called 911. Id. Even though the victim did not specifically testify that he was f

earful, this court held that “[u]nde

r the cir cumstanc es, the ju

ry was entit

le d to infer tha

t the victim ‘reaso nably fear[ed] imminent bodily injury ’ as required by the [assault] statute.” Id.

These two cases not only establish that a victim’s fear of

imminent bodily injury

may be inferred from circumstantial evidenc e, but the

y a lso point to circumsta

nces tha t sugg est the victim experienced

fear. A lthough Ricky Atkins is somewha t attenua ted as g uidance in the pre sent cas e because the circumstance s involv e d Atkins’ wielding a weapon, that case, along with Tommy Arwood, Jr. , mention the victims’ respectively turning to the police f

or help f ollowing the assa ults. In Tommy Arwo od, Jr. , the court emphasized the victim’s attempts at self-defense as sugg estive of
a person’s fear of personal injury

. Both these factors apply in the prese nt case. Witnesses observed M s. Todd striking at the defendant defensively , and it is undisputed that the victim came into th e store to ask the clerk to call 911. In addition, the victim enter ed h er vehicl e and locked the doors when she le f

t the store following the argument. Most significa ntly, witnesses observed the defenda nt, a larg e man, str

iking the victim both

inside and outside the vehicle The customer testified that the store clerk screa

med, “He’ s beating

her!” F ollowing the alter cation, v arious wi

tnesses, without objection, described the victim as “frantic,” “cry ing,” “hy sterical,” and “scared.”

We conclude

that giv en the ci

rcumstan ces in the present case and base d upon the lega l authority of Tommy Arwo od, Jr. and Ricky Atkins , the evid ence wa s suffici ent to justify the jury in inferring that the victim reasonably f eared imminent bo dily inj ury. Fur thermore, the evidence supports a finding of all of t he eleme nts of ass ault via in

tentiona lly o r knowingly putting the victim in re as on ab le fe ar of

im mi ne nt bo di ly i nj ur y.-5- II

In his next issue , the def

endant c laims that

the trial court er red whe n it disallo wed him to cross-examine a prosecution wi tne ss, Officer Ellington, about receiving a one-day suspe

nsion without pay

in connection with the officer failing to detect the defendant’s possession of cigar ettes during his search of the

defendant incidental to arrest on the night of Apr il 1, 2001. In a jury -out hearin g, Ms. Todd testified that, when she confronted Officer Ellington about what she vie wed as
an inaccurate incident report, he responde d that the defendant was the one who“cos t [him] a day off without pay.” Ms. Todd

then posited that the report was in retaliation for Officer Ellington receiving
a suspension. The court

ruled that evidence of Officer Elling ton’s one-day suspe

nsion was irrelevant to the issue whether the incident report was retaliatory because Ellington

did not prepare the report and that the defendant coul d not cros s- ex am in e O ff ic er El li ng to n a bo ut th e d ay o ff wi th ou t p ay. Later, Officer Ellington testified before the jury that he was the first officer to arrive at the Fast Lane
on April 1, 20 01, but tha t he was n ot the on e who aut hored the incident report. On cross

examination, he testified that he had no problems with the defendant.

On appeal, the defendant arg ues that the evidence was relevant to show Officer Ellington’s prejudice against the defendant. The defendant claims that impeachment of the witne ss throu gh a showing of prejudice was critical to the defense a nd should have beenallowed pursuant to Tennessee Rule of

Evidence 616 and his due process rights to a fa ir trial. See Tenn. R. Evid. 616 (“A party may offer e vidence by c ross-exa mination, e

xtrinsic evid e nce, or b oth, that a witness is biased in favor of

or preju diced ag ainst a pa rty or anothe r witness .”); State v Br

own , 29 S.W.3d 427, 435 (Tenn. 2 000) (co nstitutiona l right to present a defense may

be violated by exclusion of hearsay testimony).

In our view, this issue has been waived. The issue of the impeachment of Officer Ellington through prejudice was first raised pre trial by the state’s ora

l motion in limine . The stat e askedthe trial court t o disallow cross-examination of Officer Ellington concerning his one-day suspension; the state posited that the suspension could not have resulted in prejudice in preparing the incident

report because Officer Freeman, not Officer Ellington, prepared the report. On the other hand, in the pretrial hearing on the issue, the defendant argued that Officer Ellington’s suspension
was an issue o f prejud

ice insof ar as Ell ington’ s trial t

es timony was concerned. The trial court discerned the distinction between the two positions a nd defer red a ruling unti l the point in the trial when the defendant wished to present the evidence. That point came during the cross-examination of Ms. Todd, who was the person to whom Officer Ellington admitted that he had been suspended
on the defendant’s account. Ms. Todd testified in t he jury-out hea ring that Officer Ellington’s reference to the suspension and his refusal to modify the r eport caused her

to believe that the report
was the result of Officer Ellington’s prejudice. The state the n revisite d its earlier argument that the claim of prejudice related to the prepara tion of the report, and

both the trial court and

the defendant responded

in the same vein. When the trial judge announced following the jury -out hearing that the defendant could not cross-examine Officer Ellington about the suspension because he had not

been the author of the report, the defendant took no issue with the court’srationale and did not pursue an argument that Ellington’s anticipated trial testimony was the result of pre judice and should be-6-

allowedvia Rule

616. When Offi cer Ellington lat er testif ied, the d efenda nt neithe r attempt ed a Rule 616 cross-examination nor sought a further ruling fr om the trial court.

In our view, the tacit basis for objecting and the trial court’s rationale for overruling the objection are at odds wit h the Rule 6 16 and due

processissues the

defenda nt raised in his motion for new trial and in his appellate brief. The ag grieve d party on appea l may not obtain

relief i n contravention of the province of the trier of fact. Tenn. R. App. P. 36 (a). In other words, the aggrieved party may

not, on appeal, rely

upon a different theory

for the admission of evidence than that asserted in the trial court. See e.g., State v. Garland , 617 S.W.2d 176, 186 (Tenn. Crim. App. 1981). We believe that the defendant runs afoul of this rule and c onclude that the issue as framed on appeal is waived.

III

In his final issue, the defendant claims that the trial court erred in imposing the eleven-month-twenty -nine-day sentence in the present

case to run consecutively

with his sentences in a large number of convictions imposed by courts in four c ounties. The record before us shows that the defendant was convicted on various charges of forg ery and violating the bad check law

in Madison, Henders o n, Crocke tt, and Per

ry Counties. T

he most re cent adj udicatio ns occur red in September

1998, when he rece

ived, in a ddition to several misdemeanor convictions, a felony theft conviction in Henderson County and f elony theft and f

orgery convictions in Madison County. On t hat date, he received sentences of up to two years for

various convictions in both Hend erson an d Madison Counties. He was apparently on pa role on April 1, 2001, when the instant offenses were committed.

When there is a challen ge tothe length, range , or manne r of ser vice of a sentenc e, it is the duty of this court to conduct a de novo review o f the re cord with a presum

ption th at th e determinations made by the trial c ourt are correct. See Tenn. Cod e Ann. § 40-35-401(d) (2003). Thi s presumption is “conditioned upon the affirmative showing in the record tha t the tri al cour t considered

the sentencing principles and all relevant fa cts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).

Al t hough consecu

tive sente ncing isnot mandated by the terms of Te nnessee Code Annotated section 4 0-35-115 (b) or by Tenness ee Rule o f Criminal P rocedure 32(c)(3), the consecutive sentencing order in this case is amply supported by the permissive provisions of Code section 40-35-115(b)(2), which authorizes the trial court to utilize consecutive sentencing when the offender has an “extensive” record of criminal activity

. Tenn. Code Ann. § 40-35-115 (b)(2) (2003). No word describes thedefendant’s record of criminal ac ti vi ty b et te r t ha n “ ex te ns iv e. ” A cc or di ng ly, the trial court was justified in impos ing the ins tant sentence to run consecutively to the previous sentenc es.-7- IV

In conclusion, we find no reversible error and affirm the judg ment of the lower co

urt.

___________________________________ JAMES CURWOOD WITT, JR., JUDGE