Court of Criminal Appeals of Tennessee, Knoxville
CHARLES E. WAGNER
STATE OF TENNESSEE
Assigned on Briefs November 16, 2016
from the Criminal Court for Knox County No. 104551 Steven W.
Petitioner, Charles E. Wagner, appeals the Knox County
Criminal Court's denial of his petition for
post-conviction relief from his 2011 convictions for
especially aggravated kidnapping, aggravated kidnapping,
kidnapping, aggravated assault, assault, aggravated criminal
trespass, and false imprisonment and his effective
nineteen-year sentence. The Petitioner contends that he
received the ineffective assistance of counsel. We affirm the
judgment of the post-conviction court.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
M. Jeffress, Knoxville, Tennessee, for the appellant, Charles
Herbert H. Slatery III, Attorney General and Reporter;
Courtney N. Orr, Assistant Attorney General; Charme P. Allen,
District Attorney General; and TaKisha Fitzgerald, Assistant
District Attorney General, for the appellee, State of
H. Montgomery, Jr., J., delivered the opinion of the court,
in which D. Kelly Thomas, Jr., and Timothy L. Easter, JJ.,
H. MONTGOMERY, JR., JUDGE
case arises from three incidents involving the Petitioner,
Sylvia Wagner, who was the Petitioner's then-estranged
wife, and William Hardy, who was Ms. Wagner's boyfriend
at the time of the offenses. An incident on July 14, 2008,
resulted in the Petitioner's pleading guilty to
assaulting Mr. Hardy. An incident on July 17, 2008, resulted
in the Petitioner's being charged with the aggravated
burglary of Mr. Hardy's home. An incident on August 4,
2008, resulted in the Petitioner's being charged with
three counts of aggravated assault against Mr. Hardy, four
counts of the especially aggravated kidnapping of Ms. Wagner,
and four counts of the aggravated kidnapping of Ms. Wagner.
See State v. Charles Edward Wagner, No.
E2012-01144-CCA-R3-CD, 2014 WL 60971, at *1 (Tenn. Crim. App.
Jan. 8, 2014), perm. app. denied (Tenn. Sept. 19,
2014). The Petitioner was ultimately convicted and appealed
his convictions, and this court affirmed the convictions and
summarized the facts of the case as follows:
The State's first witness [at the trial] was Michael
Mays, the 9-1-1 records manager. Through Mr. Mays, the State
introduced recordings of one 9-1-1 call placed on July 14,
2008; one call placed on July 17, 2008; and five calls placed
on August 4, 2008.
Ed Johnson, an officer with the Knoxville Police Department
forensic unit, . . . responded to the scene at West High
School and photographed various pieces of evidence that were
arranged on the hood of a Ford van. The items included: a
cellular telephone, gloves, a mask, an identification card, a
wallet, a knife, a flashlight, a [Taser], a camera, and a
stick. He also took photographs of Ms. Wagner at the
University of Tennessee Medical Center.
. . . .
. . . On August 4, 2008, [Jason] Ware left his home to drive
to a grocery store. As he was driving, he observed a man
later identified as appellant "forcibly" taking a
female across the street. Mr. Ware described that appellant
held the victim, later identified as Ms. Wagner, in a
"headlock" and was walking with a stick in his
other hand. Appellant was wearing dark-colored clothing, and
it appeared to Mr. Ware that appellant and Ms. Wagner were
emerging from someone's yard and not walking along the
street. Mr. Ware dialed 9-1-1 and turned his vehicle around.
As Mr. Ware approached the scene again, he entered the
parking lot of West High School and shined his headlights on
appellant as he was attempting to force Ms. Wagner into his
van. Another truck pulled beside Mr. Ware and positioned
itself similarly. They waited for the police to arrive and
departed shortly after their arrival. Mr. Ware described the
van as a "custom" van that was gold, tan, brown, or
cream in color.
Mr. Ware confirmed that he discerned the scene to be an
"aggressive situation" and that Ms. Wagner was
being dragged or pulled. He stated, "[Appellant] was
putting this woman into his vehicle forcibly."
Nickalas Hardy testified that he is Bill Hardy's son, and
his grandmother's name is Kathleen Hardy. Sylvia Wagner
was his father's [fiancée] at the time of the
trial. In 2008, he, Mr. Hardy, Ms. Wagner, and her son Zack
Cagle resided together on Greenleaf Avenue, which was located
close to West High School. Nickalas stated that in July 2008,
he suffered from torn ligaments in his ankle and required
crutches to walk. On July 17, 2008, Nickalas, Mr. Hardy, Ms.
Wagner, and Mr. Cagle were present at the home on Greenleaf
Avenue. Appellant arrived at the residence and
"pound[ed]" on the door, demanding to see Ms.
Wagner. Although Ms. Wagner was present, occupants of the
home told appellant she was not there. Appellant kicked in
the door and "stormed" through the house. Ms.
Wagner locked herself in a bathroom. Occupants shouted at him
to leave, and after a "minute or two, " appellant
left the home. Someone called 9-1-1, and police responded
after appellant had left.
On August 4, 2008, Ms. Wagner, Mr. Cagle, Mr. Hardy, and
Nickalas were at the residence. Mr. Hardy was planning to
drive Mr. Cagle and Nickalas to a friend's house to spend
the night. Ms. Wagner was going to accompany them. Mr. Hardy
was moving the vehicle as the other passengers were preparing
to enter the vehicle when appellant ran toward them wearing
all black clothing and a mask and carrying a stick. Appellant
began hitting Mr. Hardy with the stick as Mr. Hardy attempted
to exit his vehicle. Appellant dragged Mr. Hardy out of the
vehicle, and after Mr. Hardy was on the ground, appellant
continued to strike him. Mr. Hardy attempted to block the
blows. Nickalas recalled that Ms. Wagner jumped onto
appellant's back to stop him. Appellant turned toward Ms.
Wagner and struck her in the jaw, then "grabbed her by
her head and started pulling her down the driveway . . .
." He accomplished this by placing Ms. Wagner in a
"headlock" and pulling her by her hair. Nickalas
stated that appellant yelled that if anyone followed him, he
would kill her. Ms. Wagner shouted for everyone to "stay
back." Nickalas also saw appellant strike Ms. Wagner in
Nickalas and Mr. Cagle remained back and called 9-1-1. Mr.
Cagle then ran to a neighbor's house and knocked on the
door, but no one answered. He continued to knock on doors in
an attempt to obtain assistance. They followed at a distance
and could see appellant as he forced Ms. Wagner to walk
toward the high school. Appellant then "threw" her
into a van. Nickalas was still on the telephone with the
9-1-1 operator. Nickalas saw the van's headlights turn on
and told the operator that appellant and Ms. Wagner were
about to leave. Police arrived shortly thereafter, before the
van could pull away. Officers removed appellant and Ms.
Wagner from the van, placed them against the van, and
handcuffed them b oth. The 9-1-1 operator asked to speak with
Mr. Hardy, so Mr. Cagle ran back to the residence to take the
telephone to Mr. Hardy.
. . . Kathleen Hardy, Mr. Hardy's mother and
Nickalas's grandmother[, ] . . . testified that on July
14, she . . . heard a noise coming from her driveway and ran
to the door. She found Mr. Hardy bleeding and saying,
"'Let me get in, let me get in, I think he's
gonna kill me.'" She opened the door, and Mr. Hardy
fell into the home. Ms. Hardy dialed 9-1-1. She noticed that
Mr. Hardy's face was bleeding.
Ms. Hardy recalled a subsequent incident when she was in her
bedroom, and Mr. Hardy said, "'Mama, come in here,
he's back again . . ., '" and asked her to sit
in the living room with them. She then heard a loud noise,
and appellant kicked in her door. Ms. Hardy stood up and
placed herself between appellant and Mr. Hardy. She yelled at
appellant to get out of her house. Appellant turned and ran
from the house. Police officers responded to the incident.
Ms. Hardy testified about another occasion when she heard a
noise in her driveway, and Mr. Hardy, who was again hurt, was
trying to get into the house. She knew that a man who was
dressed in black took Ms. Wagner against her will. She called
9-1-1 and told the operator that appellant had taken a
Sylvia Wagner, the victim of all counts of the offenses
involving kidnapping, testified . . . that she married
appellant in 2000 and that appellant moved most of his
belongings out of their home in May 2008. Prior to
appellant's moving out, she had suffered physical abuse
at his hands. She described an incident wherein appellant
shoved her against the corner of a dresser, leaving a large
bruise on her back. Ms. Wagner stated that she had known Mr.
Hardy for twenty-seven years and that they had dated long
ago. After she and appellant separated, she began seeing Mr.
Ms. Wagner stated that on July 14, 2008, she drove to Mr.
Hardy's home after leaving work. She had just exited her
vehicle and was standing outside talking with Mr. Hardy when
she saw someone approach them from the neighbor's yard.
She realized it was appellant, and appellant began hitting
Mr. Hardy. Appellant knocked Mr. Hardy to the ground and
continued to strike him. Mr. Hardy was attempting to stand
up, stumbling, and trying to get into his house. Appellant
continued hitting Mr. Hardy and eventually "busted his
eye open." Mr. Hardy eventually entered his home, and
Ms. Wagner recalled that on July 17, 2008, appellant beat on
the door and kicked it in. Appellant entered the home and
demanded that she accompany him outside because he wanted to
talk with her. She went to the bathroom and locked the door.
She could hear Ms. Hardy tell appellant to leave, which he
Ms. Wagner testified that on August 4, 2008, she and Mr.
Hardy were going to drive Nickalas and her son, Zack, to a
friend's house. Mr. Hardy was going to back up the
vehicle because it was parked very close to an adjacent
vehicle and the passenger side doors were blocked. She heard
Nickalas say something and looked to see what he was talking
about. She saw appellant dressed in black with a black hood
covering his face and carrying a large stick. Appellant began
striking Mr. Hardy with the stick as Mr. Hardy attempted to
exit the vehicle. Appellant knocked Mr. Hardy to the ground.
She yelled for appellant to stop and jumped onto his back,
"trying to keep [appellant] from killing [Mr.
Hardy]." Ms. Wagner stated that appellant hit her in the
head with the stick as he was "slinging" it around
to hit Mr. Hardy. Appellant removed Ms. Wagner from his back,
placed her in a headlock, grabbed the back of her hair, and
dragged her down the street. He also struck her in the jaw.
Ms. Wagner screamed at appellant that she did not want to go
with him. She stated that she could barely breathe at that
point. She recalled that in addition to the large stick,
appellant also had a knife.
Ms. Wagner stated that appellant dragged her to the parking
lot of West High School where he shoved her toward a van,
opened the door, and tried to force her into it. He pushed
her in through the driver's side door, and she attempted
to escape through the passenger side door. Appellant told her
that if she opened the door, he would kill her. Appellant
tried to start the van, but police arrived at that time.
Officers removed Ms. Wagner and appellant and placed them in
separate patrol cars while they gathered information. She was
permitted to exit the car after a few minutes. Officers
spread out several items on the hood of the van that they had
taken from appellant. Ms. Wagner sought medical treatment at
the emergency room for the injury to her jaw, and she
obtained follow-up care the next day.
. . . .
On redirect examination, Ms. Wagner indicated that appellant
had pressured her not to appear in court to testify and that
the day before she testified, she found a threatening note on
her vehicle's windshield. She also clarified that
following the first encounter between appellant and Mr.
Hardy, appellant scattered her belongings in Mr. Hardy's
driveway. After she gathered her things, she drove away, and
appellant called her on her cellular telephone. He demanded
that Ms. Wagner drive to his father's house and
threatened to "run [her] off the road" if she did
not comply. She drove to his father's house as
instructed, and once there, appellant began "slinging
[her] around." She struck her head on a wall, causing a
hole in the wall.
William "Bill" Hardy . . . testified that he and
Ms. Wagner had dated when they were younger and that they
became reacquainted through a chance meeting at a store in
2008. He recounted the events of July 14, 2008, stating that
he and Ms. Wagner were in his driveway talking when her
"eyes start[ed] getting big . . . ." As he turned
to perceive what was happening behind him, he was struck. As
Ms. Wagner yelled for appellant to stop, Mr. Hardy attempted
to run inside his home. He was on the porch when appellant
struck him again, and Ms. Wagner attempted to stop the attack
by dragging appellant away from Mr. Hardy. However, appellant
caught Mr. Hardy and punched him in the face several times.
Kathleen Hardy, Mr. Hardy's mother, opened the door to
the house, and Mr. Hardy was able to get inside. The
ambulance responded to the scene and transported Mr. Hardy to
the hospital. He received stitches over his eye and suffered
a fracture to the orbit.
On July 17, 2008, Mr. Hardy recalled that appellant
approached the back door, so Mr. Hardy immediately called the
police. He gathered his family members, and they sat in the
living room with the lights off. Appellant kicked in the
door, and Mrs. Hardy stood up and began yelling at appellant.
Nickalas also arose from his seat, and appellant left the
Mr. Hardy recalled that on August 4, 2008, around 9:00 p.m.,
he, Ms. Wagner, Zack Cagle, and Nickalas were about to leave
to drive the children to a friend's house. As he backed
up the vehicle, he turned around and saw someone dressed all
in black with a mask covering his face and carrying a stick.
Mr. Hardy tried to exit the vehicle, but appellant struck him
in the head with the stick. Mr. Hardy stumbled out of the
vehicle and was hit several more times. Ms. Wagner dragged
appellant away from Mr. Hardy, but appellant caught him as he
was trying to go inside his home and dealt several more blows
with the stick. Once Mr. Hardy gained entry to his home, he
called the police and explained the urgency of the situation.
Shortly thereafter, Mr. Cagle entered the home and informed
Mr. Hardy that the police had apprehended appellant with Ms.
Wagner at West High School. An officer arrived and escorted
Mr. Hardy to the school. The officer picked up the stick from
the ground in front of appellant's van and asked Mr.
Hardy if that was the weapon with which appellant struck him,
and Mr. Hardy confirmed that it was. Mr. Hardy sought medical
attention at the emergency room.
. . . Zack Cagle, Ms. Wagner's son, . . . explained the
events of August 4, 2008, and stated that as Mr. Hardy was
backing up his vehicle, appellant ran toward them, dressed in
all black and wearing a ski mask over his face. Appellant
began to hit Mr. Hardy with a stick that he was carrying, and
Ms. Wagner jumped on appellant's back to stop him. Mr.
Hardy was able to enter his home, and appellant then struck
the victim in the jaw with his fist and grabbed her around
the neck. Appellant began walking with Ms. Wagner toward West
High School with the stick still in his hand. Mr. Cagle said
that it appeared to him that appellant was pulling her hair
as they walked. Ms. Wagner was "squirming" and
attempting to free herself from appellant's grasp. He and
Nickalas, who was on the telephone with 9-1-1, followed
behind. Mr. Cagle was scared because he thought he would
never see his mother again.
When appellant and Ms. Wagner arrived at the high school
parking lot, Mr. Cagle witnessed appellant "throw"
her into his van. Ms. Wagner had both of her hands on each
side of the door trying to resist appellant, but she was
unsuccessful. Mr. Cagle stated that it took "a
second" for appellant to start the van, during which
time the police arrived. Officers pointed their weapons at
the van, ordered the occupants to exit, and placed ...