Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs September 13, 2016
from the Criminal Court for Sumner County No. 4592011 Dee
David Gay, Judge
Jeremy L. Saxton, was convicted of one count of assault and
one count of resisting arrest. As a result of the
convictions, Defendant received judicial diversion with
probation for eleven months and twenty-nine days. After the
denial of a motion for new trial, Defendant filed a timely
notice of appeal. Upon our review we determine that Defendant
was not entitled to an evidentiary hearing on the motion to
suppress because there was no evidence to suppress. Further,
we conclude that the record on appeal is incomplete,
precluding our review of the sufficiency of the evidence.
Consequently, the judgments of the criminal court are
affirmed and the matter is remanded for correction of a
clerical error. .
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
Court Affirmed and Remanded
Patrick G. Frogge, Nashville, Tennessee, for the appellant,
Jeremy L. Saxton.
Herbert H. Slatery III, Attorney General and Reporter; Andrew
C. Coulam, Assistant Attorney General; Ray Whitley, District
Attorney General; and Bryna Grant, Assistant District
Attorney General, for the appellee, State of Tennessee.
Timothy L. Easter, J., delivered the opinion of the court, in
which James Curwood Witt, Jr., and Robert L. Holloway, Jr.,
TIMOTHY L. EASTER, JUDGE.
August 25, 2014, Defendant was arrested after an incident at
a Mapco station in Portland, Tennessee. Defendant was
ultimately indicted by the Sumner County Grand Jury for four
counts of assault and one count of resisting arrest. Prior to
trial, Defendant filed a motion to suppress on the basis that
his seizure was illegal.
at Hearing on Motion to Suppress
hearing on the motion to suppress, David
Alessio testified that on August 25, 2014, at
around 8:00 or 9:00 p.m., he and his wife went to the Food
Lion in Portland. Mrs. Alessio remained in their truck in the
parking lot while Mr. Alessio went into the store. Mr.
Alessio was in the checkout line when he received a call from
his wife who told him "something was going on out in the
parking lot" and that he should "hurry." Not
long thereafter, Mr. Alessio saw two "girls" walk
in the grocery store "making a scene." One of the
"girls" was "basically hollering at the other
Alessio left the store and returned to his truck. Mrs.
Alessio told him she thought that there was a
"fight." The couple decided to sit in their truck
in the parking lot for a minute to see what was going on. The
two "girls" exited the store. One of them was
talking on her cell phone. Mr. and Mrs. Alessio saw Defendant
"jump out of the car real quick and walk around to
the back of the car" before "turning" toward
one of the "girls." The Alessios saw Defendant
point his finger at the "girl" before all three of
them got back in the car and drove through the grocery store
parking lot toward the Mapco.
time, Mr. Alessio had already called the police because he
thought it "was a domestic [disturbance]." The
police responded to the call and were directed to the gas
station. Officer Shaun Burgett with the Portland Police
Department responded to a dispatch report of a "possible
domestic in progress." Officer Burgett explained that it
was typical for "two [officers]-up to as many as
available-[to respond to a domestic call be]cause we
don't know what's gonna [sic] happen. . . ." He
thought that six officers responded to this particular call.
When he arrived at the Mapco, he positioned his vehicle
"in the front near the pumps" so that he could
block Defendant's vehicle if he tried to leave. Other
officers were situated in other locations around the gas
station. He described the parking lot and gas pump area as
"full." He received information on the description
of the vehicle and Defendant from dispatch.
Burgett located a car and subjects matching the descriptions
provided by dispatch. As he approached Defendant, he
explained that he was "an officer with the police
department" and asked if there was "a white female
in the back crying" and also asked if they just came
from the Food Lion. When Defendant responded affirmatively,
Officer Burgett informed Defendant that they received a 911
call for a "possible domestic" and that they fit
the description of the people involved.
Burgett asked Defendant to exit the vehicle. Officer Burgett
testified that he asked Defendant to step out of the vehicle
for "safety reasons" because the vehicle was
running and because Defendant could be concealing a weapon in
the vehicle. Additionally, Officer Burgett wanted to separate
the parties so that they could not hear or see each other
while the officers investigated the situation to determine if
there was indeed some type of domestic dispute taking place.
refused, telling Officer Burgett, "No, I'm not
getting out[.] I've done nothing wrong." Officer
Burgett again asked Defendant to exit the vehicle. Defendant
told Officer Burgett, "F--- you, I'm not getting
out." Officer Burgett then opened the door to the
vehicle. He informed Defendant that he had asked twice for
him to get out of the vehicle and that he would not ask
again. Officer Burgett told Defendant, "Get out or
I'm going to get you out." Officer Burgett saw
Defendant "leaning in to the center console" and
was not sure what Defendant was reaching for or doing so
Officer Burgett "reach[ed] in to try to gain access to
him [be]cause [he didn't] know if he was gonna [sic]
drive off [or had a weapon]." Officer Burgett
"grabbed the crook of [Defendant's] left arm"
with his right hand and ...