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Wagner v. State

Court of Criminal Appeals of Tennessee, Knoxville

March 31, 2017


          Assigned on Briefs November 16, 2016

         Appeal from the Criminal Court for Knox County No. 104551 Steven W. Sword, Judge

         The 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed.

          Leslie M. Jeffress, Knoxville, Tennessee, for the appellant, Charles E. Wagner.

          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 Tennessee.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which D. Kelly Thomas, Jr., and Timothy L. Easter, JJ., joined.



         This 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 the face.
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 hostage.
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. Hardy again.
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 appellant left.
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 eventually did.
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 residence.
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 ...

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