IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs December 1, 2009

STATE OF TENNESSEE v. JOSE A. INIGUEZ

Direct Appeal from the Circuit Court for Madison County

No. 08-519 Donald H. Allen, Judge

No. W2009-01067-CCA-R3-CD - Filed November 15, 2010

Defendant, Jose A. Iniguez, was convicted by a Madison County jury of stalking, a Class A

misdemeanor, and driving while unlicensed, a Class C. Misdemeanor. For stalking, the trial

court imposed a sentence of 11 months, 29 days and for driving while unlicensed a sentence

of 30 days, to be served concurrently in the county jail. On appeal, Defendant’s sole issue

is a challenge to the sufficiency of the evidence for his stalking conviction. After a thorough

review of the record, we affirm the judgments of the trial court.

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

THOMAS T. WOODALL, J., delivered the opinion of the Court, in which JOHN EVERETT

WILLIAMS and J.C. MCLIN, JJ., joined.

Gregory D. Gookin, Jackson, Tennessee, for the appellant, Jose A. Iniguez.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney

General; James G. Woodall, District Attorney General; and Brian Gilliam, Assistant District

Attorney General, for the appellee, the State of Tennessee.

OPINION

I. Background

The eighteen-year-old victim, Laura Jones, worked as a pharmacy technician in the

Wal-Mart Pharmacy located on Emporium Drive in Jackson from August of 2007 until

March of 2008. She was married at the time, but her husband, a marine, was stationed in

Iraq. Around late November or early December of 2007, the victim observed Defendant in

the pharmacy area staring at her. Around fifteen minutes later, the victim noticed Defendant
walking around the area, and when she looked up, he was staring at her again. This made her

feel uncomfortable and scared. After that, the victim saw Defendant on almost a daily basis

walking up and down the isles of the pharmacy section and staring at her. He did not

purchase anything in the pharmacy. The victim testified that Defendant walked up to her on

several occasions and attempted to say “hey” or engage her in a conversation but she ignored

him. Defendant “would stand there for a second and stare at [her] and then he would walk

off after a couple of seconds.” The victim eventually pointed Defendant out to Kyle Pinckley

and Jud Jones, two of her co-workers. At one point during the month of December,

Defendant attempted to give her a gift with a card. The victim told Defendant that she could

not accept the gift or the card, and the pharmacist on duty told Defendant to leave her alone.

Defendant then walked away. The victim saw Defendant in the pharmacy again the

following day watching her.

The victim saw Defendant in the pharmacy almost daily throughout the remainder of

December 2007 and through January 2008. She began having a male employee walk her to

her car after work. On one occasion, Defendant ran up to the victim as she was entering

Wal-Mart from the parking lot and attempted to speak to her. The victim informed

Defendant that she was married and to leave her alone. Defendant then ran away, and the

victim ran into Wal-Mart because she was afraid. On February 13, 2008, after leaving work

in the pharmacy, the victim walked down the Valentine’s Day isle to make a purchase, and

she noticed that Defendant was behind her. The victim quickly left the store and walked to

her truck parked in the Wal-Mart parking lot. She saw a card, a rose with a ring in it, and a

teddy bear on the windshield of the vehicle. Inside the card read:

It’s so easy to tell you just about anything. Whether we trade stories or confide

in each other, I can count on you to be sensitive and supportive. I want you to

know how much I value you. Happy Valentines Day.

Defendant also wrote: “Every single February day is your birthday celebration.” On the

envelope, Defendant indicated that he loved the victim and wanted to take her to Mexico to

meet his family and be his wife. He also mentioned the earlier gift that he attempted to give

her. Defendant included a business card from Lexington Plastics Co. with the name “Angel”

written on it, and a phone number which was circled. Angel is Defendant’s middle name.

The victim was “absolutely terrified.” She testified: “I was afraid of him kidnapping me and

taking me to Mexico. I could have been raped. He could have tried to sell me. I had all

kinds of crazy thoughts going through my head.” The victim never told Defendant that she

wanted to marry him or go to Mexico.

The victim took the items from her windshield, got into her truck, and saw a police

officer parked at a nearby Walgreen’s. She drove to the officer and turned the items over to

-2-
him and explained what had been going on with Defendant. The officer advised the victim

to keep Defendant in the pharmacy if he showed up again and to contact police. The victim

saw Defendant in the pharmacy again on February 15, 2008, walking down the isles and

staring at her. The victim initially ignored him or walked to another area of the pharmacy

to fill prescriptions. However, when she returned to the counter, Defendant was still in the

pharmacy area.

On February 24, 2008, Defendant came into the pharmacy, and the victim had

someone call police. By the time they arrived, Defendant was gone. Police were called a

second time when Defendant returned to the pharmacy later that evening. The victim

attempted to keep him there by asking him to translate for a customer who spoke only

Spanish. The victim walked away, and the pharmacist continued talking with them.

Defendant was later arrested down the road from Wal-Mart, and police brought him back to

the store where he was identified by the victim. The victim eventually took out an order of

protection against Defendant.

The victim testified that she had initially contacted police after Defendant attempted

to give her the first gift in December. She did not contact police earlier because she thought

that she was overreacting, and she hoped that Defendant would leave her alone. However,

Defendant’s attempt to give her a gift helped her realize that she was not overreacting.

Concerning her feelings, the victim testified:

After the first couple of weeks, I was paranoid. You know, I was scared. You

know, like I said, I lived alone and it made me nervous. But the more it kept

going on and once the gift was given, I started getting really scared and

paranoid and then by the time [sic] Valentines thing happened and talking

about taking back to Mexico, I was very upset, like, all the time.

The victim estimated that she told Defendant to leave her alone at least four or five times,

and the pharmacist also told Defendant to leave her alone. However, she was not successful

in getting him to leave her alone until he was arrested.

Jud Jones, a pharmacist and manager of the Wal-Mart pharmacy, worked with the

victim from November 2007 through February 2008. He became aware of the problem with

Defendant when the victim came back to the pharmacy and “appeared distressed and

uncomfortable.” Mr. Jones did not see Defendant on every occasion that he was in the

pharmacy, but he saw Defendant at least twice standing around the pharmacy area. He also

identified Defendant in the courtroom. Mr. Jones could tell that the victim was “very

uncomfortable and very distressed and definitely not happy with what was going on.” He

thought that this went on for “[t]wo or three months probably.”

-3-
Kyle Pinckley, an employee of the Wal-Mart pharmacy, testified that he worked with

the victim and noticed Defendant in the pharmacy on several occasions, and the victim

pointed Defendant out to him. He said that the victim tried to get him to act like her husband

in an attempt to scare Defendant away because the victim was “getting a little freaked out by

him.” Mr. Pinckley testified that when Defendant was around, the victim would hide behind

something or go to the restroom so that Defendant could not see her. He felt that Defendant

knew when the victim was at work because Defendant knew what type of truck she drove.

Mr. Pinckley knew that Defendant had given the victim some gifts, and he remembered a

Christmas card “that had some lights around a dog . . .” He also saw another card where

Defendant had written on the envelope. Mr. Pinckley testified that the victim “got really

freaked out” after receiving the card “because [Defendant] was saying he was going to take

her back to Mexico to meet his family.” After that, Mr. Pinckley became concerned for the

victim’s safety and began walking her to her truck when her shift ended.

Officer Alan Randolph of the Jackson Police Department testified that on February

24, 2008, he stopped Defendant around 5:20 p.m. after receiving a BOLO (be on the lookout)

for Defendant’s vehicle. Officer Randolph testified that he was aware of the situation from

talking to his partner who “had dealt with a similar situation at Wal-Mart on Emporium Drive

dealing with a reported stalking incident.” He said that “[a]nother officer was dispatched

later on second shift of that same incident and I happened to be in the area and responded to

the situation.” After conferring with the officer who was dispatched to Wal-Mart and

“determining if he had probable cause,” Officer Randolph arrested Defendant for stalking

and driving without a license. He placed Defendant in the back of his patrol car and

transported him to Wal-Mart.

Field Training Officer Tikal Greer testified that he assisted Officer Randolph with the

stop of Defendant, and he later transported Defendant to jail. Defendant told him that he did

not do anything wrong and that he had just been following the victim. Defendant also said

that there was nothing wrong with following her. Officer Greer did not ask Defendant any

questions.

Sergeant Al Colon, who is fluent in both Spanish and Italian, testified that he was

assigned to the investigation the day after Defendant’s arrest. He said that Defendant spoke

Spanish and broken English. Sergeant Colon spoke with Defendant and advised him of his

rights in both English and Spanish. Defendant, who was very cooperative, then executed a

written waiver in both languages and gave the following statement:

I have known her since December. I bought her a gift and she did not take it.

I got her a card on February 13 asking her to marry me. She said no.

th

Yesterday I went to Wal-Mart to get some Benadryl. I was in the pharmacy

-4-
and she called me and asked me to translate for her because there was another

Hispanic male there that did not speak English. I told her what he wanted and

then she went to the back and did not return until later. I waited for her and

when she returned I told her the guy left and said he was going somewhere else

to get his medication. I got my medication and left. I went to mass. It started

at 10:30. I left another mass and went back to Wal-Mart to get some soda to

take to a party. I did not see her when I went to Wal-Mart to get the soda. I

paid for the soda and then was stopped by police. They brought me back to

Wal-Mart and she came out with the police officer and they then took me to

jail. I did not go to Wal-Mart after mass. I went to a couple of stores before

going to Wal-Mart to get the sodas.

The forty-nine-year-old Defendant testified that he wasliving in Lexington, Tennessee

at the time of the offenses, and that he had never been married. He first saw the victim in

November of 2007 in the Wal-Mart parking lot. He said that she was “very nice” and

allowed him to pull out in front of her truck as they were leaving the parking lot. Defendant

testified that he later saw the victim while he was shopping in Wal-Mart, and they had a

conversation. He said that the victim was again very nice and told him that she was working

at Wal-Mart, and she showed the pharmacy area to him. Defendant testified that although

he lived in Lexington, he began frequenting the Wal-Mart in Jackson because he attended

a nearby church, and he attended Alcoholics Anonymous (AA) meetings in the area.

Defendant testified that initially he gave the victim a friendship card which she

accepted, because she had been nice to him. He next purchased a $10 bottle of perfume and

attempted to give it to the victim for Christmas, but a pharmacy employee told him that the

victim would not accept the gift. He thanked the person and left. Defendant testified that

he was not in the Jackson Wal-Mart often because he lived and worked in Lexington at

Lexington Plastic.

Defendant testified that he left the Valentine’s Day gifts and card because he wanted

to show the victim that she was important to him, and he would take care of her. He said that

the victim never told him that she was married. Defendant testified that in Mexico, he would

ask a woman to marry him in the manner that he asked the victim, and he understood that

American culture is different in some ways than that of Mexico. He placed his sister’s phone

number on the Valentine’s Day card because his sister speaks fluent English, and he wanted

the victim to know that he had a “good record” and did not have a wife in Mexico.

Defendant testified that on the day of his arrest, he initially went inside Wal-Mart to purchase

something for his throat. He went there a second time later that day to purchase soda for a

dinner party. He was then arrested after he left the store. Defendant said that he did not

-5-
intend to hurt or assault the victim, and he did not intend to force her to go to Mexico with

him. He only wanted to marry the victim.

On cross-examination, Defendant testified that the victim never told him to leave her

alone. He said that the victim misunderstood the meaning of his card and that he only wanted

to take her to Mexico for a honeymoon. He admitted that he did not know the victim’s name

at the time he gave her the Valentine’s Day card and gifts. Defendant testified that he did

not learn that the victim was married until she told him on February 18, 2008. He then

decided not to continue to pursue her. Defendant estimated that he went to the pharmacy

seven times to see the victim from November to February. He was in Wal-Mart on other

occasions to shop.

II. Analysis

Defendant contendsthat the evidence isinsufficient to support hisstalking conviction.

We disagree. When a defendant challenges the sufficiency of the evidence, we must review

the evidence in a light most favorable to the prosecution in determining whether a rational

trier of fact could have found all the essential elements of the crime beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560

(1979). Once a jury finds a defendant guilty, his or her presumption of innocence is removed

and replaced with a presumption of guilt. State v. Black, 815 S.W.2d 166, 175 (Tenn. 1991).

The defendant has the burden of overcoming this presumption, and the State is entitled to the

strongest legitimate view of the evidence along with all reasonable inferences which may be

drawn from that evidence. Id.; State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The jury

is presumed to have resolved all conflicts and drawn any reasonable inferences in favor of

the State. State v. Sheffield, 676 S.W.2d 542, 547 (Tenn.1984). Questions concerning the

credibility of witnesses, the weight and value to be given the evidence, and all factual issues

raised by the evidence are resolved by the trier of fact and not this court. State v. Bland, 958

S.W.2d 651, 659 (Tenn.1997). These rules are applicable to findings of guilt predicated upon

direct evidence, circumstantial evidence, or a combination of both direct and circumstantial

evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).

To sustain a conviction for stalking, the State must prove that Defendant engaged in

a “willful course of conduct involving repeated or continuing harassment of another

individual that would cause a reasonable person to feel terrorized, frightened, intimidated,

threatened, harassed, or molested, and that actually causes the victim to feel terrorized,

frightened, intimidated, threatened, harassed, or molested.” T.C.A. §39-17-315(a)(4). A

“course of conduct” is defined as “a pattern of conduct composed of a series of two (2) or

more separate noncontinuous acts evidencing a continuity of purpose.” T.C.A. § 39-17-

315(a)(1) “Harassment” is defined as “conduct directed toward a victim that includes, but is

-6-
not limited to, repeated or continuing unconsented contact that would cause a reasonable

person to suffer emotional distress, and that actually causes the victim to suffer emotional

distress.” This does not include “constitutionally protected activity or conduct that serves a

legitimate purpose.” T.C.A. § 39-17-315(a)(3). The statute further provides:

“Unconsented contact” means any contact with another person that is initiated

or continued without that person’s consent, or in disregard of that person’s

expressed desire that the contact be avoided or discontinued. Unconsented

contact includes, but is not limited to, any of the following:

(A) Following or appearing within the sight of that person;

(B) Approaching or confronting that person in a public place

or on private property;

(C) Appearing at that person’s workplace or residence;

(D) Entering onto or remaining on property owned, leased, or

occupied by that person;

(E) Contacting that person by telephone;

(F) Sending mail or electronic communications to that

person; or

(G) Placing an object on, or delivering an object to, property

owned, leased, or occupied by that person[.]

T.C.A. § 39-17-315(a)(5).

In this case, the proof shows that Defendant repeatedly showed up at the victim’s

place of employment, a Wal-Mart pharmacy in Jackson, for a period of nearly three months

from November of 2007 until February of 2008 and stared at her. He walked up to her on

several occasions and attempted to say “hey” or engage the victim in conversation but she

ignored him. During the month of December, Defendant approached the victim and

attempted to give her a gift and a card, which she refused. At that point, the victim’s coworker told Defendant to leave her alone. On one occasion, Defendant ran up to the victim

as she was entering Wal-Mart from the parking lot and attempted to speak to her. The victim

informed Defendant that she was married and to leave her alone. On February 13, 2008, after

leaving work in the pharmacy, the victim walked down the Valentine’s Day aisle in Wal-

-7-
Mart and noticed that Defendant was behind her. She quickly left the store and walked to

her truck. She saw a card, a rose with a ring inside, and a teddy bear on the windshield of

the vehicle. On the card’s envelope, Defendant indicated that he loved the victim and wanted

to marry her. He also expressed his desire to take her to Mexico. The victim estimated that

she told Defendant to leave her alone at least four or five times; however, his conduct

continued until his arrest. The victim testified that Defendant’s actions caused her to be

afraid, and she began having a male pharmacy employee walk her to her vehicle after work.

She was “absolutely terrified” after finding the items on her windshield. The victim testified:

“I was afraid of him kidnapping me and taking me to Mexico. I could have been raped. He

could have tried to sell me. I had all kinds of crazy thoughts going through my head.”

Based on the foregoing, we conclude that the evidence is sufficient to support

Defendant’s conviction of stalking. Defendant is not entitled to relief on this issue.

CONCLUSION

For the foregoing reasons, the judgments of the trial court are affirmed.

_________________________________

THOMAS T. WOODALL, JUDGE

-8-