Session September 8, 2016, Heard at Knoxville
by Permission from the Court of Criminal Appeals Circuit
Court for Maury County No. 22821 Robert Lee Holloway, Jr.,
Circuit Court Judge
Flowers ("the defendant") was convicted of the
criminal offense of stalking, see Tennessee Code
Annotated section 39-17-315, based, in part, on her posting
disparaging signs about the victim on the victim's
private property and on the property of his employer, which
was a public place. We granted this appeal to consider
whether the signs placed by the defendant amounted to an
exercise of her right to free speech, as protected by the
United States and Tennessee Constitutions. We also consider
whether the evidence presented at the bench trial was
sufficient to sustain the defendant's conviction. We
conclude, based on the proof in the record on appeal, that
the evidence underlying the defendant's conviction for
stalking is insufficient to sustain her conviction and
therefore reverse the judgment of the Court of Criminal
Appeals. Having determined that the evidence is insufficient,
the issue of the defendant's right to free speech is
R. App. P. 11 Appeal by Permission; Judgment of the Court of
Criminal Appeals Reversed
Howell, Mt. Pleasant, Tennessee (at trial); Travis B. Jones,
Assistant District Public Defender (at trial and on appeal);
and Brandon E. White, Columbia, Tennessee (on appeal), for
the appellant, Nicole Flowers.
Herbert H. Slatery III, Attorney General and Reporter;
Andrée Sophia Blumstein, Solicitor General; Leslie E.
Price, Senior Counsel (on appeal); Brent Cooper, District
Attorney General; and Kevin Latta, Assistant District
Attorney General (at trial), for the appellee, State of
A. Page, J., delivered the opinion of the court, in which
Jeffrey S. Bivins, C.J., Cornelia A. Clark, Sharon G. Lee,
and Holly Kirby, JJ., joined.
A. PAGE, JUSTICE.
Facts and Procedural History
matter involves a conflict between the victim, Jason Dale,
and the defendant, with whom the victim had a daughter. The
victim and the defendant were never married, and the victim
had five other children.
8, 2013, the victim had been employed by the Maury County
Board of Education for fifteen years. That morning, he
received a call from a coworker at 6:25 a.m., telling him
that "[s]omeone has [a] sign on the fence about
you." When the victim arrived at work, he observed a
sign on the fence and cut it down. The sign read, "Jason
Dale is a deadbeat." Two signs had been placed at the
victim's workplace; one sign was attached to the fence,
and another sign bearing the same message was affixed to the
main gate. A third sign had been placed at his residence.
That sign read, "Jason Dale is a deadbeat dad, and he
works for the Department of Education." His neighbor
removed the sign and placed it in a ditch in his yard.
victim did not see the defendant place any of the signs.
However, his neighbor saw the defendant walking down his
street. In addition, the defendant had previously called the
victim a "deadbeat dad, " and no one else had ever
called him that except her. For these reasons, he believed
that the defendant was responsible for the signs.
the victim left work that afternoon, he exited through the
gate, looked to his right, and saw a vehicle occupied by the
defendant and her sister, Priscilla Dawson, parked outside of
an abandoned house. When he pulled out, the defendant and Ms.
Dawson followed him. Believing that they intended to continue
following him, he drove to the sheriff's department.
After speaking with a magistrate inside the sheriff's
department, the victim followed the necessary procedure to
obtain a warrant against the defendant.
victim explained that he had experienced difficulties with
the defendant prior to May 8. She had sent him several text
messages calling him a "deadbeat dad" and telling
him that he needed to "step up" and "be a
father." The victim responded to the defendant via text
message and informed her that he did not want to receive any
more text messages from her. The victim did not recall
whether the defendant had called him on the telephone. The
victim acknowledged that the content of the text messages
pertained to their then-fourteen-year-old daughter. Their
daughter was a member of ...