Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs March 25, 2015
Direct Appeal from the Circuit Court for Sevier County No. 18986-II Richard R. Vance, Judge
Bryce W. McKenzie (on appeal) and Micaela Burnham (at trial), Sevierville, Tennessee, for the Appellant, Derek Gene Clark.
Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel; James B. Dunn, District Attorney General; and Ronald C. Newcomb, Assistant District Attorney General, for the Appellee, State of Tennessee.
Norma McGee Ogle, J., delivered the opinion of the court, in which John Everett Williams and Robert L. Holloway, Jr., JJ., joined.
NORMA MCGEE OGLE, JUDGE
I. Factual Background
In November 2013, the Sevier County Grand Jury indicted the appellant for two counts of aggravated domestic assault based upon alternative theories, one count of theft of property valued more than $1, 000, one count of coercion of a witness, one count of evading arrest, two counts of retaliation for past action, and one count of violating a restraining order. On March 10, 2014, the appellant pled guilty to one count of aggravated domestic assault, one count of theft of property valued more than $1, 000, one count of coercion of a witness, and one count of retaliation for past action, and the State dismissed the remaining charges. At the guilty plea hearing, the State announced that the appellant was entering an "open" plea but that the sentence for the theft conviction "will run concurrent with whatever sentence this Court sentences on the remaining counts. This is all reflected in the plea agreement." Defense counsel clarified, "I think I put it as it would be concurrent to the aggravated [domestic] assault. . . . [I]n fact, running this one count concurrent is what made this open plea a lot more attractive to us, Your Honor."
The State then gave the following factual account of the crimes:
Your Honor, with regard to Count 1, the State's proof would be that Mr. Clark obtained control over property on or about February 22nd, [2013, ] which would include a Thompson Renegade Center Fire fifty caliber rifle and a Hawken fifty caliber rifle belonging to Mr. [Donnie] Clark valued in excess of one thousand dollars without his effective consent. [With regard to Count 2, the] State's proof would be that on or about March 31st, 2013, Mr. Clark did cause bodily injury to Ruth Clark who is a domestic assault victim as defined by § 39-13-111 by use or display of a deadly weapon, that is a walking stick. That happened here in Sevier County. Count 3 is dismissed as it is an alternate count. Count 4 is dismissed. Count 5 is dismissed. Count 6 is on or about October 8th, 2013, Mr. Clark did attempt to coerce or influence [Donnie] Clark at an official proceeding in an attempt to influence his participation in that official proceeding. Count 7 is dismissed. And Count 8 is that on or about October 8th, 2013, Mr. Clark did threaten to harm Ms. Jean Cutshaw at an official proceeding. All those events happened here in Sevier County.
At the appellant's sentencing hearing, the State did not call any witnesses but introduced the appellant's presentence report into evidence. According to the report, the then thirty-two-year-old appellant was married and did not have any children. In the report, the appellant stated that he dropped out of high school after the eleventh grade because he had to go to work and that he did not obtain his GED. He described his mental health as fair and said that he did not take any medications for his mental health but that he felt claustrophobic in jail, was angry in jail because "people are always stealing our stuff, " and planned to seek counseling at Helen Ross McNabb Center for "family problems" upon his release. He described his physical health as good but said that he began using prescribed Oxycodone when he was 18, which lead to an abuse of the drug until early 2013, and that he began consuming alcohol when he was twelve. He also stated in the report that his father was disabled and an abusive alcoholic, that he took care of his father, and that he had a good relationship with his mother. The report shows that the appellant worked as a truck driver for Whaley and Sons Construction from January 2001 to January 2008 and then for friends and associates doing roofing and carpentry. According to the report, the appellant had three prior convictions of misdemeanor domestic assault and prior misdemeanor convictions of cocaine possession, theft, and traffic offenses.
The State also introduced into evidence the April 2013 medical records of Ruth Clark, the appellant's grandmother and the victim of the aggravated domestic assault, and advised the court that the victim had stated in the records that the appellant hit her with a walking cane because she refused to give him her social security money. The State noted that Donnie Clark and Jean Cutshaw, the named victims of the offenses in counts 6 and 8, also were members of the appellant's family.
Janice Clark, the appellant's mother, testified for him that she divorced the appellant's father because he was an aloholic and that Ruth Clark was the appellant's paternal grandmother. She acknowledged that the appellant had a history of mental problems and substance abuse and said that the appellant had to "deal with" his father's alcoholism and "some other family members that he's had to deal with alcohol too." She said that the appellant helped his father and his grandmother and that he would never intentionally hurt his grandmother. Ms. Clark stated that the appellant had never received mental health treatment and that he "just can't handle so much on him." She stated that if the trial court granted the appellant probation, he could live with her. She said she would drive him where he needed to go, including appointments for alcohol and drug treatment and work if he obtained employment.
On cross-examination, Ms. Clark testified that the appellant was her only child, that he obtained a commercial driver's license after he dropped out of high school, and that he used to drive dump trucks. The appellant also shooed horses and "[cut] wood, building, you know, just whatever he could do." Ms. Clark acknowledged that the appellant's grandmother was frail but said that "[s]he's good for her age" and that "[h]er mind comes and goes." She acknowledged that the appellant had served probation previously but said that "he's never been in major trouble." Regarding the appellant's prior convictions of domestic assault, she explained as follows:
His wife done a lot of false reports because she left him six times. He took her back and he lost her. He went trying to deal with that. And he lost his papaw, which was like a dad to him. He lost him. And then he's dealing with two family members that's alcoholics and it's a constant fight. Ruth's sisters, Ruth's son, [Donnie] Clark, none of them. She don't want to talk to any of them. And Derek has tried to be the mediator.
Ms. Clark said that the appellant's father gave the appellant beer when he was just twelve years old, that she wanted to get help for the appellant, and that she "would call probation and let them be aware" if he caused trouble when he got out of jail.
On redirect examination, defense counsel asked if the appellant had ever been violent towards her. She said no but that one time "he got right up in my face and had a hoe in his hand." She said that she called the police and that the appellant spent some time in jail. Upon being questioned by the trial court, Ms. Clark acknowledged that the hoe incident resulted in the appellant being charged with domestic assault in 2012. She also acknowledged that the appellant was on probation for that offense when he committed the offenses in this case. At the conclusion of Ms. Clark's testimony, defense counsel introduced into evidence a ...