IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

March 27, 2018 Session

STATE OF TENNESSEE v. ERNESTO DELGADILO RODRIGUEZ

Appeal from the Criminal Court for Knox County

No. 105765 Bobby R. McGee, Judge

___________________________________

No. E2017-00369-CCA-R3-CD

___________________________________

A Knox County jury convicted the Defendant, Ernesto Delgadilo Rodriguez, of resisting 

arrest and assault. The trial court sentenced the Defendant to six months for the resisting 

arrest conviction and to eleven months and twenty-nine days for the assault conviction. 

On appeal, the Defendant challenges (1) a jury instruction of the definition of “arrest”;

(2) the sufficiency of the evidence; and (3) the admissibility of evidence regarding 

alcohol and drug use. After a thorough review of the record and applicable law, we 

affirm the judgments of the trial court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ROBERT L.

HOLLOWAY, JR., and J. ROSS DYER, JJ., joined.

Mike Whalen, Knoxville, Tennessee, for the appellant, Ernesto Delgadilo Rodriguez.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;

Charme Allen, District Attorney General; and Kyle Hixson, Assistant District Attorney 

General, for the appellee, State of Tennessee.

OPINION

FACTUAL AND PROCEDURAL HISTORY

At approximately 7:20 a.m. on July 9, 2014, Officers Frederick Kimber and 

Thomas Thurman of the Knoxville Police Department (“KPD”) responded to a 9-1-1 call 

of a domestic incident involving an intoxicated individual. The officers were advised that 

the Defendant had a knife and had slashed the tires of a van. As they drove toward the 

06/05/2018
- 2 -

location, the officers were advised that the Defendant had been drinking and using 

cocaine, that he had left the residence where the domestic incident occurred, that the 

person who called 9-1-1 did not see the knife in the Defendant’s possession when he left, 

and that the Defendant was wearing a white shirt, a gray hat, and jean shorts.

Officer Kimber saw the back of a man, later identified as the Defendant, wearing 

the clothes that were described and walking down a road near the residence. As Officer 

Kimber approached the Defendant in his patrol car, the Defendant looked back at him “a 

couple of times” but continued to walk down the road. Officer Kimber believed, based 

on his nineteen years of experience with the KPD, that the Defendant may have been 

preparing to run. Officer Kimber pulled his patrol vehicle “as close as possible” to the 

Defendant and exited the vehicle. He asked the Defendant what was going on, and the 

Defendant did not respond. He then asked if the Defendant lived down the road, and the 

Defendant replied, “yes.” He again asked what was going on, but the Defendant did not 

respond. Officer Kimber could smell “a very strong odor” of alcohol on the Defendant 

and noticed “something on his face.” The Defendant’s “pupils were huge,” which 

Officer Kimber found strange for that time of day. The Defendant’s shirt appeared as 

though “somebody had pulled on him,” and the shirt collar was not lying flat. 

Because Officer Kimber did not know if the Defendant still had a knife or any 

other weapons, he asked the Defendant to put his hands on the patrol car and frisked him. 

Officer Kimber asked the Defendant if he understood, and the Defendant replied 

affirmatively and complied. Officer Kimber did not find any contraband or weapons 

during the frisk. Officer Kimber then stated, “[H]ere’s what’s going to happen. I’m 

going to place you in handcuffs. You’re not under arrest right now. We’re just going to 

go back here and find out exactly what all is going on.” Officer Kimber testified that the 

Defendant was not free to leave at that point because he did not know whether anybody 

had been injured or what was going on with the domestic dispute. 

Officer Kimber grabbed a set of handcuffs from his belt and placed a cuff on the 

Defendant’s left wrist. He explained that he normally keeps the handcuffs “pretty loose” 

until he has the handcuffs secured over both wrists. The Defendant complied as Officer 

Kimber cuffed his left hand, but when Officer Kimber reached for the Defendant’s right 

hand, the Defendant removed the hand from the car and “reached straight down and 

grabbed his pants.” Officer Kimber kept his hold on the Defendant’s left arm and 

repeatedly told the Defendant to give Officer Kimber his right arm. The Defendant 

responded multiple times that he would give him his hand but then would not do so. The 

Defendant was “sweating profusely,” and every time Officer Kimber was able to reach 

the Defendant’s right hand, the hand would slide out of his grip. 
- 3 -

The Defendant, with his left hand secured in a cuff and his right hand free, leaned 

away from the patrol car and swung his elbow at Officer Kimber. Officer Kimber 

knocked the Defendant’s arm forward, and the Defendant turned toward Officer Kimber 

with his fist drawn. Officer Kimber feared that the Defendant would try to hit him, so he 

did a “leg sweep,” where he pressed his left leg and right hand on the Defendant and 

pulled him to the ground. Officer Kimber testified that if he could get the Defendant to 

the ground, then he could hold him there until backup arrived. He stated that a “leg 

sweep” was the easiest way to do so. The Defendant “hit the ground pretty hard,” the left 

side of his face hit the concrete, and his arm “went flying out.” Officer Kimber tried to 

grab the Defendant’s right arm, but he put it underneath his body where Officer Kimber 

could not reach it. 

Officer Kimber noticed that he had blood on his arm, and both of his knuckles 

were bleeding from scraping the concrete. Blood was “pouring” from the Defendant’s 

nose. Officer Kimber informed the Defendant that he was bleeding and that the blood 

was getting on Officer Kimber. Officer Kimber had one of his knees on the Defendant’s 

lower back and his other knee on the Defendants’ shoulder area. He considered the 

Defendant to be “controlled” and explained that the Defendant “wasn’t moving as much.” 

He asked for police backup through his radio. He again demanded that the Defendant 

give him his right hand, and the Defendant responded that he would and to “let [him] up.” 

The Defendant still would not give his right hand to Officer Kimber, and then the 

Defendant did a “one-arm push-up” with Officer Kimber still on top of him. At this 

point, Officer Kimber jumped to his feet, grabbed the Defendant, and moved the 

Defendant from the front driver’s side of the patrol car to the back of the car.

Officer Kimber then tried to get the Defendant to bend over the car and pulled the 

Defendant’s left arm to his right side to try to “lock him up.” Officer Kimber got his 

taser out and warned the Defendant that he would tase him. He testified that he did not

tase the Defendant because the police are trained not to tase someone who appears to be 

in a state of “excited delirium” since there is “a good chance you could kill [him].” He 

described “excited delirium” as when a person has been drinking or using drugs, is 

sweating profusely, gets “crazy energy or strength,” and “kind of go[es] out of control.” 

Because he feared that the Defendant was in this state and because he could see Officer 

Thurman’s vehicle coming toward them, he decided not to tase the Defendant.

Officer Thurman, who began working with the KPD in 2007, was on his way to 

respond to the domestic incident call but joined Officer Kimber after Officer Kimber 

asked for backup with the Defendant. Officer Kimber had told Officer Thurman over the 

radio to “step it up” in a “frantic” manner. This sent off “red flags” in Officer Thurman’s 

mind because he had worked with Officer Kimber for a number of years, and Officer 

Kimber had never asked him to “step it up” before. Officer Thurman was also concerned 
- 4 -

because when he attempted to check on Officer Kimber, there was a long pause on the 

radio before he responded. Officer Thurman arrived on the scene and noticed that 

Officer Kimber and the Defendant were “in a struggle.” Officer Kimber appeared to be 

“in distress” and “distraught.” His eyes were wide, and his breathing was heavy. Officer 

Thurman was concerned because he could not see the Defendant’s right hand and 

believed his hand was close to Officer Kimber’s belt, where his firearm and pepper spray 

were located. 

Officer Thurman tried “tearing” at the Defendant’s right arm, which proved 

unsuccessful. He then struck the Defendant on the “meaty portion of [his] shoulder blade 

area” with four “hammer strikes.” He tugged at the Defendant’s arm again but still could 

not reach it. Officer Thurman noticed that Officer Kimber was getting tired, so he told 

Officer Kimber that they needed to take the Defendant to the ground. The Defendant was 

“hollering and screaming,” and he appeared “distraught” and “very agitated.” Officer 

Thurman struck the Defendant with his knee three times on the Defendant’s “back 

hamstring area.” The Defendant was still standing, so Officer Thurman grabbed him 

around his shoulders and began pulling at the Defendant while Officer Kimber tried to do 

“a sweep or a hip toss.” The three men eventually all fell to the ground together.

The Defendant continued to scream. Officer Kimber landed on his back, the 

Defendant landed on his stomach, and Officer Thurman landed on top of the Defendant’s 

back. Officer Thurman continued to demand the Defendant to give him his hand. The

Defendant “was flailing around, throwing his head back, just kicking and everything.” 

He then started to roll over and lift Officer Thurman off of the ground. The Defendant 

raised his fist, and Officer Thurman could see that the Defendant’s face was bleeding. 

The Defendant continued to scream, which Officer Thurman compared to a “battle cry,” 

and he was “spitting fluids all over [Officer Thurman].” Officer Thurman then “bearhugged” the Defendant’s arm, but the Defendant “ripped it away.” Officer Thurman, 

fearing that the Defendant was going to hit him, struck the Defendant’s right cheek. 

KPD Officer Travis Baker arrived on the scene, and Officer Thurman instructed 

Officer Baker to secure the Defendant’s right arm. With Officer Baker’s assistance, the 

officers were able to finish handcuffing the Defendant. The Defendant was rolled onto 

his side so he could breathe better. The Defendant was taken to a hospital by ambulance. 

A photograph of the Defendant taken at the hospital on July 9 and a photograph of the 

Defendant when he was taken to jail on July 10 were entered into evidence.

Ms. Teresa Hatfield testified that she was the aunt of the Defendant’s girlfriend 

and called 9-1-1 on July 9, 2014. Ms. Hatfield stated that the Defendant and his 

girlfriend were living together and that Ms. Hatfield had stayed at their residence on the 

night of July 8 through the morning of July 9. She testified that there were four minor 
- 5 -

children, ages four to ten, in the house. The Defendant was not home on July 8 and 

returned to the residence around 7:00 or 7:30 a.m. on July 9. Ms. Hatfield testified that 

she did not know where the Defendant had been, that she assumed he was “partying,” and 

that she was mad at him when he arrived in the morning. She described him as being in a 

“fairly good mood” when he first arrived home, but he later became angry when he could 

not locate his wallet. 

A redacted recording of the 9-1-1 call was entered into evidence and played for the 

jury. The call was consistent with Ms. Hatfield’s testimony and also reflected that Ms. 

Hatfield told the 9-1-1 operator that the Defendant had a knife and that she was standing 

in the driveway with the Defendant’s girlfriend and the children. She agreed she told the

9-1-1 operator that the Defendant had been drinking and using cocaine, but she denied 

stating that someone had taken the Defendant’s cocaine away from him. She stated that 

she did not know what the Defendant had been doing all night because she was not with 

him. Over the defense’s objection, the State played a portion of the 9-1-1 recording that

had been redacted from the version admitted into evidence. The trial court allowed this 

portion of the call to be played as a prior inconsistent statement for impeachment 

purposes only.1 After listening to the recording, Ms. Hatfield clarified that she stated in 

the 9-1-1 call that the Defendant’s girlfriend “must have thr[own] the cocaine away.” 

She further clarified that she did not say that his girlfriend actually threw any cocaine 

away. She agreed that she asked his girlfriend whether she had been cut and that she 

asked the children if they were okay. She was aware that the Defendant had slashed the 

tires on the van so his girlfriend could not leave.

On cross-examination, Ms. Hatfield testified that she was “upset” that the 

Defendant had been gone all night. She agreed that sometimes the Defendant played 

pool at a house nearby. She acknowledged that they used chalk around the pool table and 

that the chalk consisted of a white powder. She agreed that the Defendant never came 

toward her while holding the knife. She agreed that when the 9-1-1 operator asked if the 

Defendant had been using drugs or alcohol, she responded, “I guess.” She testified that 

when the Defendant left the residence, she saw him throw the knife into the yard of a 

vacant house. 

Officer Kimber testified that the primary concern in any domestic dispute is 

always safety. He stated that once officers arrive at the scene, they will try to determine

exactly what is happening, who the aggressor is, and whether anyone is injured. Both 

Officer Kimber and Officer Thurman testified about the training they received on the

progressing levels of force to use with an individual who is not complying with law 

 

1

The redacted portion was not included in the record on appeal. 
- 6 -

enforcement. Officer Kimber explained that on July 9, 2014, he had his firearm, pepper 

spray, and a taser. Officer Thurman had the same tools, plus an extendable baton.

Audio and video recordings from Officer Kimber’s and Officer Thurman’s patrol 

cars were also admitted into evidence. The video from Officer Kimber’s car did not have 

any audio during his initial interaction with the Defendant, which was when Officer 

Kimber stated he was speaking with and frisking the Defendant. Additionally, the 

Defendant and Officer Kimber cannot be seen on the video from Officer Kimber’s car. 

The video from Officer Thurman’s patrol car, however, had audio and showed the 

Defendant and Officer Kimber when Officer Thurman arrived on the scene. When 

Officer Thurman struck the Defendant with his knee, however, the three men could no 

longer be seen in the video. The audio and video recordings were consistent with the 

officers’ testimony.

Officer Kimber testified that as the Defendant was transported to the hospital, he

learned that the Defendant had an arrest warrant for failure to pay child support. He 

acknowledged on cross-examination, however, that he did not know whether the 

Defendant was aware of the warrant at the time. He denied ever pulling the Defendant’s 

left arm when he was reaching for the Defendant’s right arm. He agreed that it is 

possible to hurt someone when handcuffing them. On redirect examination, he testified 

that “arrest” has many meanings. He stated that, based on his experience, telling a person 

that he is under arrest means that he is being detained and going to jail on criminal 

charges.

Officer Thurman testified that he had to receive medical testing after the fight with 

the Defendant due to the fluids that got onto his arms and face and into his mouth. On 

cross-examination, he acknowledged that Officer Kimber did not use the code on the 

radio that would indicate he was involved in a physical altercation. He also agreed that 

he did not request an intoxication test to be performed on the Defendant. On redirect 

examination, he was asked about the training he received on “excited delirium.” The 

defense objected on the grounds that Officer Thurman was not a doctor and was not 

“qualified” to testify about “excited delirium.” The trial court determined that if Officer 

Thurman had an understanding of the meaning of the term, then he could testify about his 

understanding. He then explained the training he had received about “excited delirium,” 

which was consistent with Officer Kimber’s testimony. Officer Thurman also testified 

that he has never requested an intoxication test to be given when an individual is arrested 

for a charge other than driving under the influence.

The defense elected not to present any proof at trial. The Defendant was charged 

with resisting arrest in Count 1, assault of Officer Kimber in Count 2, and assault of 

Officer Thurman in Count 3. The jury returned guilty verdicts for Counts 1 and 2 and a 
- 7 -

not guilty verdict for Count 3. The Defendant was sentenced to six months for Count 1 

and to eleven months and twenty-nine days in Count 2. The Defendant now appeals.

ANALYSIS

On appeal, the Defendant argues that the trial court erred in allowing the jury 

instruction on the definition of “arrest.” He also challenges the sufficiency of the 

evidence to support his convictions. He finally asserts that the trial court erred in 

allowing the State to impeach Ms. Hatfield with the portion of the 9-1-1 call that included 

her statements regarding the Defendant’s drug and alcohol use, and in denying his request 

for a mistrial.

I. Jury Instruction

The Defendant argues that the trial court erred in defining “arrest” consistently 

with its definition for constitutional purposes, that the definition was too broad, and that 

the instruction was an improper comment on the evidence by the trial court. The State 

requested the following instruction, which was given over the defense’s objection:

“Arrest” means the taking, seizing or detaining of the person of another, 

either by touching or putting hands on him, or by any act which indicates 

an intention to take him into custody and subjects the person arrested to the 

actual control and will of the person making the arrest. An arrest may be 

effected without formal words or a station house booking. However, there 

must be actual restraint on the arrestee’s freedom of movement under the 

legal authority of the arresting officer.

The Defendant argued that the definition was too broad and would confuse the jury. The 

trial court noted that the Tennessee pattern jury instructions for resisting arrest did not 

include a definition of arrest. However, the court believed the definition of arrest was “a 

very important issue” in the case, noting that arrest has a “street” definition and a 

“technical, legal meaning.” The trial court concluded that the definition was accurate and 

made the jury instructions complete.

“[A] defendant has a right to a correct and complete charge of the law, so that each 

issue of fact raised by the evidence will be submitted to the jury on proper instructions.” 

State v. Garrison, 40 S.W.3d 426, 432 (Tenn. 2000). The propositions of law governing 

a case should be plainly stated to the jury, so that the jury can comprehend the principles 

involved. State v. Williamson, 919 S.W.2d 69, 80 (Tenn. Crim. App. 1995). “[A] jury 

charge should not contain inaccurate or inapplicable statements of legal principles that 

might tend to confuse the jury.” State v. Hatcher, 310 S.W.3d 788, 812 (Tenn. 2010) 
- 8 -

(quoting Troup v. Fischer Steel Corp., 236 S.W.3d 143, 149 (Tenn. 2007) (internal 

quotations omitted). We review jury instructions in their entirety and not in isolation. 

State v. Rimmer, 250 S.W.3d 12, 31 (Tenn. 2008). 

The trial court will often employ pattern jury instructions to properly instruct the 

jury, and such instructions must occasionally be revised or supplemented in order to fully 

and accurately state the applicable law. State v. Robinson, 239 S.W.3d 211, 228 (Tenn. 

Crim. App. 2006). “Trial courts are not limited to the mere recitation of the pattern 

instructions.” State v. James, 315 S.W.3d 440, 446 (Tenn. 2010). An erroneous jury 

instruction, however, may deprive the defendant of his constitutional right to a jury trial. 

See Garrison, 40 S.W.3d at 433-34. A charge “is erroneous if it fails to fairly submit the 

legal issues or if it misleads the jury as to the applicable law.” State v. Hodges, 944 

S.W.2d 346, 352 (Tenn. 1997). “Whether jury instructions are sufficient is a question of 

law appellate courts review de novo with no presumption of correctness.” State v. Clark, 

452 S.W.3d 268, 295 (Tenn. 2014).

The Defendant argues that the definition of arrest was too broad and confused the 

jury. The jury instruction here was consistent with our supreme court’s definition in 

State v. Crutcher, 989 S.W.2d 295, 301-02 (Tenn. 1999) (citing West v. State, 425 

S.W.2d 602, 605 (Tenn. 1968)), where the court defined “arrest” for the purpose of a 

search incident to arrest. See also State v. Ingram, 331 S.W.3d 746, 757 (Tenn. 2011). 

The Defendant argues that “arrest” should be defined narrowly for the offense of resisting 

arrest. He specifically asserts that the trial court erred in using a definition designed for 

constitutional issues such as search and seizure. We see no justification in defining 

“arrest” differently in this context than it is defined in other criminal contexts. Tennessee 

Code Annotated section 39-16-602(a) makes it an offense to prevent or obstruct law 

enforcement “from effecting a stop, frisk, halt, arrest, or search.” The distinctions 

between the terms “stop,” “frisk,” “arrest,” and “search,” are important in a constitutional 

context because they implicate different levels of individual protections. See Ingram, 331 

S.W.3d at 756 (describing the “three distinct levels of interaction between citizens and 

law enforcement officials”). In contrast, the Legislature did not distinguish between 

these terms in section 39-16-602(a), and instead, grouped them together and made it an 

offense to prevent or obstruct law enforcement from effecting any of these terms.

Moreover, the term “resisting arrest” has been used for a conviction under this 

statute, even when the defendant was not formally arrested and charged with a crime at 

the time he resisted. See State v. Jeremy D. Parvin, No. E2014-01569-CCA-R3-CD, 

2015 WL 2128585, at *3 (Tenn. Crim. App. May 6, 2015) (holding the evidence was 

sufficient to support a resisting arrest conviction where a defendant struggled with an 

officer as he attempted to handcuff him while the officer completed his investigation of 

an alleged domestic assault); State v. John Lindsey, III, No. E2011-00052-CCA-R3-CD, 
- 9 -

2012 WL 5392156, at *6 (Tenn. Crim. App. Nov. 5, 2012) (holding the evidence was 

sufficient to support a resisting arrest conviction where a defendant was stopped by 

officers, was ordered out of his vehicle, “reached for something in the compartment” of 

his car, and “struggled” with the officers as they attempted to handcuff him). Through 

our research, we have yet to find a case where a Tennessee court has used a separate 

definition of arrest for the purpose of an offense under Tennessee Code Annotated 

section 39-16-602(a). 

It is clear from our reading of the trial transcript that whether the Defendant was 

under arrest at the time Officer Kimber handcuffed him was at issue during the trial. The 

trial court recognized this as an important issue in the case and agreed that a definition of 

“arrest” was necessary. The definition given is consistent with our supreme court’s 

definition in a constitutional context. We, therefore, conclude that the definition given 

here was accurate and did not mislead the jury. See Hatcher, 310 S.W.3d at 812.

The Defendant also argues that the jury instruction was an improper comment on 

the evidence. “In Tennessee, judges are constitutionally prohibited from commenting 

upon the credibility of witnesses or the evidence in a case.” State v. Hester, 324 S.W.3d 

1, 89 (Tenn. 2010); see Tenn. Const. art. VI, § 9 (providing that “judges shall not charge 

juries with respect to matters of fact, but may state the testimony and declare the law”).

Our supreme court has cautioned that a trial judge “must be very careful not to give the 

jury any impression as to his feelings or to make any statement which might reflect upon 

the weight or credibility of evidence or which might sway the jury.” State v. Suttles, 767 

S.W.2d 403, 407 (Tenn. 1989). “It is natural that jurors should be anxious to know the 

mind of the court, and follow it. Therefore, a court cannot be too cautious in his 

inquiries.” McDonald v. State, 14 S.W. 487, 488 (1890). However, “not every comment 

on the evidence made by a judge is grounds for a new trial.” Mercer v. Vanderbilt Univ., 

Inc., 134 S.W.3d 121, 134 (Tenn. 2004). We must determine, in the overall context of 

the case, if the trial court made comments which were prejudicial. Id. (citing State v. 

Caughron, 855 S.W.2d 526, 536-37 (Tenn. 1993)).

The Defendant takes issue with the following portion of the jury instruction: 

“seizing or detaining of the person of another, either by touching or putting hands on 

him.” (emphasis added). He argues that this “comes dangerously close” to Officer 

Kimber’s testimony that he put his hands on the Defendant and that such instruction 

“crosses the line that judges should not comment on the fact[s]” of the case. The State 

responds that the instruction does not reference the facts of the case or suggest a 

particular factual conclusion. It further argues that Officer Kimber’s action of putting his 

hands on the Defendant would not even meet the definition provided unless the jury also 

determines that he was arrested, detained, or seized. We agree with the State. The 

definition does not suggest to the jury that the trial court favored the State’s case or was 
- 10 -

crediting the testimony of Officer Kimber. The jury instruction includes an important 

caveat that the jury must find “actual restraint on the arrestee’s freedom of movement 

under the legal authority of the arresting officer.” A jury could conclude under this 

definition that the Defendant’s freedom of movement was not actually restrained even 

though Officer Kimber testified that he put his hands on him. The Defendant is 

accordingly not entitled to relief on this ground.

II. Sufficiency of the Evidence

The Defendant challenges the sufficiency of the evidence to support both of his 

convictions. When a defendant challenges the sufficiency of the evidence, this court 

must determine whether the evidence is sufficient “to support the finding by the trier of 

fact of guilt beyond a reasonable doubt.” Tenn. R. App. P. 13(e). The appellate court 

examines the relevant statute to determine the essential elements for the offense and 

analyzes the evidence admitted at trial to determine whether each element is adequately 

supported. State v. Stephens, 521 S.W.3d 718, 723-24 (Tenn. 2017) (citations omitted). 

The court determines “‘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.’” Id. at 724 (quoting Jackson v. Virginia, 443 U.S. 

307, 319 (1979)). 

The standard of review remains the same regardless of whether the conviction is 

based upon direct or circumstantial evidence. Id. (citing State v. Dorantes, 331 S.W.3d 

370, 379 (Tenn. 2011)). “‘[T]he State is entitled to the strongest legitimate view of the 

evidence and all reasonable or legitimate inferences which may be drawn therefrom.’” 

Id. (quoting State v. Harris, 839 S.W.2d 54, 75 (1992)). This court does not reweigh the 

evidence. Id. (citing State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992)). Instead, “‘a 

jury verdict, approved by the trial judge, accredits the testimony of the witnesses for the 

State and resolves all conflicts’ in the testimony in favor of the State.” Id. (quoting 

Harris, 839 S.W.2d at 75). The conviction replaces the presumption of innocence with a 

presumption of guilt. Id. (citing Evans, 838 S.W.2d at 191). On appeal, the defendant 

has the burden of demonstrating why the evidence is insufficient to support the verdict. 

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

The Defendant was convicted of assault of Officer Kimber and resisting arrest. 

Assault occurs when a person “[i]ntentionally or knowingly causes another to reasonably 

fear imminent bodily injury.” T.C.A. § 39-13-101(a)(2) (2014). Additionally, “[i]t is an 

offense for a person to intentionally prevent or obstruct anyone known to the person to be 

a law enforcement officer ... 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.” T.C.A. § 39-16-602(a). “Force” is defined as “compulsion by the use of 
- 11 -

physical power or violence and shall be broadly construed to accomplish the purposes of 

this title.” T.C.A. § 39-11-106(a)(12). A defendant may still be guilty of resisting arrest 

even if the arrest was unlawful. See T.C.A. § 39-16-602(b). 

The Defendant argues that he could not be guilty of resisting arrest because he was 

not being formally arrested. However, as noted above, an arrest need not be a formal 

arrest where a defendant is being taken to jail and charged with a crime. Instead, the 

correct determination is whether “a reasonable, innocent person would not feel free to 

leave” and whether there is “‘actual restraint on the arrestee’s freedom of movement 

under legal authority of the arresting officer.’” State v. Bishop, 431 S.W.3d 22, 35 (Tenn. 

2014) (quoting State v. Echols, 382 S.W.3d 266, 278 (Tenn. 2012). Even though Officer 

Kimber told the Defendant he was not being arrested, the Defendant was informed he 

would be handcuffed and transported to the residence. See State v. Nidiffer, 173 S.W.3d 

62, 65-66 (Tenn. Crim. App. 2005) (“[W]hile not dispositive, an officer’s telling a 

defendant he is under arrest is a substantive factor to consider when determining whether 

an arrest has occurred.”). A jury could determine that the Defendant was restrained from 

movement and not free to leave when Officer Kimber began handcuffing him and told 

him he was taking him back to the residence. See Crutcher, 989 S.W.2d at 301-02; see 

also State v. Christopher Douglas Smith, No. W2015-01826-CCA-R10-CD, 2017 WL 

993071, at *4 (Tenn. Crim. App. Mar. 14, 2017) (holding defendant was under arrest 

even though the officer who handcuffed him told him he was being detained rather than 

arrested), no perm. app. filed. 

 The Defendant asserts that he was not under arrest at the time the struggle ensued

and that the evidence showed he was “completely cooperative.” He also notes that he

was hospitalized after his encounter with the police and that he could be heard screaming 

on the admitted recordings.

In the light most favorable to the State, the facts established that Officer Kimber 

responded to a domestic dispute and was told that the Defendant had a knife. When 

Officer Kimber encountered the Defendant, he smelled alcohol on him and noticed his 

eyes were dilated. The Defendant would not answer Officer Kimber’s questions but did 

comply with a frisk of his person. Officer Kimber then instructed the Defendant that he 

was going to be handcuffed and taken back to the residence. The Defendant complied as 

Officer Kimber cuffed one of his hands but began to resist when Officer Kimber tried to 

put the handcuff on the other hand. The Defendant pushed away from the car and swung 

his elbow toward Officer Kimber. The struggle to secure the Defendant’s other hand 

continued until two other officers arrived on the scene and helped to hold the Defendant 

down so they could finish handcuffing him. We conclude that the evidence was 

sufficient to support the Defendant’s convictions. 
- 12 -

III. Admissibility of Evidence Regarding Alcohol and Drug Use

The Defendant argues that the trial court erred in allowing the State to impeach 

Ms. Hatfield with the portion of the 9-1-1 call in which she stated that the Defendant had 

been drinking and using cocaine. He also maintains that the court erred in allowing 

Officer Thurman to testify about the term “excited delirium.” 

The Defendant first asserts that the trial court erred in allowing the State to play a

redacted portion of the 9-1-1 recording, in which Ms. Hatfield told the operator that the 

Defendant had been drinking and using cocaine. The record shows that prior to trial, the 

State filed a notice of its intent to introduce evidence of other crimes, wrongs, or acts, 

which included the evidence that the Defendant had been drinking and using cocaine on 

the night before his arrest. The trial court granted the motion in part and denied it in part;

however, the record does not reflect which parts of the motion were granted and which 

parts were denied. The State also filed a pretrial notice to introduce a recording of the 9-

1-1 call made by Ms. Hatfield, and the trial court held that the State could introduce only 

the portions of the recording that related to the Defendant’s wielding a knife and Ms. 

Hatfield’s fear. 

The party calling a witness may attack the witness’s credibility, Tenn. R. Evid. 

607, and a prior inconsistent statement may be admissible to challenge the credibility of a 

witness. See State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000) (noting that Tennessee 

cases “have consistently held that a prior inconsistent statement is admissible under the 

Rules of Evidence when the prior statement is used to impeach the credibility of a 

witness”). Extrinsic evidence of a prior inconsistent statement may be used only when 

the witness is afforded an opportunity to deny or explain the statement and the opposing 

party is afforded an opportunity to cross-examine the witness. Tenn. R. Evid. 613. Such 

extrinsic evidence is admissible when the witness “either denies or equivocates to having 

made the prior inconsistent statement.” State v. Martin, 964 S.W.2d 564, 567 (Tenn. 

1998).

Here, Ms. Hatfield agreed that she told the operator the Defendant had been 

drinking and using cocaine, but she insisted that she did not know what the Defendant 

had been doing that night because she was not with him. She also denied telling the 

operator that someone had taken cocaine away from the Defendant. The State then asked 

to play a portion of the 9-1-1 recording that had been redacted, and the Defendant 

objected and referenced the trial court’s pretrial order. The trial court held that the 

portion of the recording could be played for impeachment purposes only and could not be 

considered as substantive evidence. After the recording was played, Ms. Hatfield was 

given an opportunity to explain her statements, and the defense cross-examined her 

regarding her statements about the Defendant’s drug use. See Tenn. R. Evid. 613. We 
- 13 -

conclude that the trial court properly allowed the portion of the recording to be played as 

a prior inconsistent statement for impeachment purposes. Moreover, any error in 

allowing the prior inconsistent statement was harmless because the information — that 

the Defendant had been drinking and using cocaine — was admitted into evidence in the 

written records from the 9-1-1 call and the audio recordings from dispatch’s relaying the 

information to the responding officers. See State v. Rodriguez, 254 S.W.3d 361, 373-74 

(Tenn. 2008) (holding that harmless error exists only where it is more probable than not 

that the error affected the verdict or judgment); Tenn. R. App. P. 36(b). The Defendant 

did not object to either of these exhibits. 

As part of the challenge to the admission of the evidence, the Defendant also 

asserts that the court erred in denying his motion for a mistrial premised on the 

impeachment of Ms. Hatfield with the 9-1-1 recording. “Whether to grant a motion for 

mistrial is a matter within the trial court’s discretion.” State v. Henretta, 325 S.W.3d 

112, 129 (Tenn. 2010) (citing State v. Nash, 294 S.W.3d 541, 546 (Tenn. 2009); State v. 

Saylor, 117 S.W.3d 239, 250 (Tenn. 2003)). The trial court should grant a mistrial only 

when there is a manifest necessity for such action. Saylor, 117 S.W.3d at 250. “In other 

words, a mistrial is an appropriate remedy when a trial cannot continue, or a miscarriage 

of justice would result if it did.” Id. An appellate court will only disturb a trial court’s 

granting or denial of a mistrial when the record demonstrates an abuse of discretion. 

State v. Johnson, 401 S.W.3d 1, 21 (Tenn. 2013) (citing State v. Adkins, 786 S.W.2d 642, 

644 (Tenn. 1990)). Because we conclude that the use of the redacted recording was 

proper for impeachment purposes or that any error was harmless, the trial court did not 

abuse its discretion in denying a mistrial on this ground.

The Defendant further challenges Officer Thurman’s testimony regarding the term 

“excited delirium.” We first note that the Officer Thurman’s testimony did not arise until 

after the Defendant’s motion for a mistrial had been denied, and such motion was not 

renewed during Officer Thurman’s testimony. Regardless, the Defendant is not entitled 

to relief on this ground. When the State questioned Officer Thurman about “excited 

delirium,” the Defendant objected, arguing that Officer Thurman was not a doctor and 

was not qualified to testify about the term. The trial court concluded that Officer 

Thurman could testify about his understanding of the term based on his training. Officer 

Thurman did so and did not testify as to whether he believed the Defendant was in a state 

of “excited delirium.” Officer Thurman did not give any expert testimony, and instead, 

gave lay testimony about his own understanding of what a term means. See Tenn. R. 

Evid. 602 (allowing witness testimony when witness has personal knowledge of the 

matter). This testimony was relevant to the motivations of the officers in refraining from 

using a taser on the Defendant. We conclude that the trial court did not err in allowing 

Officer Thurman to testify about his understanding of “excited delirium.” Moreover, any 

error is harmless since the jury had already heard Officer Kimber’s testimony about the 
- 14 -

term without any objection from the Defendant. See Rodriguez, 254 S.W.3d at 373-74; 

Tenn. R. App. P. 36(b).

CONCLUSION

Based on the foregoing reasons, we affirm the judgments of the trial court.

________________________________

JOHN EVERETT WILLIAMS, JUDGE