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State v. Saxton

Court of Criminal Appeals of Tennessee, Nashville

November 15, 2016


          Assigned on Briefs September 13, 2016

         Appeal from the Criminal Court for Sumner County No. 4592011 Dee David Gay, Judge

         Defendant, 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. .

         Tenn. 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., JJ., joined.



         On 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.

         Proof at Hearing on Motion to Suppress[1]

         At the hearing on the motion to suppress, David Alessio[2] 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[3] 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 girl."

         Mr. 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.

         By that 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.

         Officer 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.

         Officer 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.

         Defendant 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 ...

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