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State v. Dixon

Court of Criminal Appeals of Tennessee, Nashville

December 15, 2017

STATE OF TENNESSEE
v.
JERRY DIXON

          September 13, 2017 Session

          Appeal from the Criminal Court for Sumner County No. 584-2012 Louis W. Oliver III, Judge

         The Defendant, Jerry Dixon, was convicted by a Sumner County Criminal Court jury of reckless endangerment, a Class A misdemeanor, for which he received a sentence of eleven months, twenty-nine days, with sixty days to be served in jail, 180 days to be served on house arrest, and the balance to be served on probation. See T.C.A. § 39-13-103 (2014). On appeal, he contends that the evidence is insufficient to support his conviction and that the trial court erred in excluding evidence of a witness's prior inconsistent statement. We affirm the judgment of the trial court.

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

          Peter J. Strainse (at trial and on appeal), Nashville, Tennessee, and William L. Moore, Jr. (at trial), Gallatin, Tennessee, for the appellant, Jerry Dixon.

          Herbert H. Slatery III, Attorney General and Reporter; Leslie E. Price, Senior Counsel; Lawrence Ray Whitley, District Attorney General; C. Ronald Blanton, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which John Everett Williams and Robert L. Holloway, Jr., JJ., joined.

          OPINION

          ROBERT H. MONTGOMERY, JR., JUDGE

         The Defendant and the victim, Ricky Troutt, were former partners in several business ventures. Their business dealings ended in litigation, and at the time of the events relevant to this case, their relationship was strained to the extent that they did not speak to each other. In early 2012, the Defendant and Eli Cornell engaged in a scheme to play a practical joke on the victim, whereby Mr. Cornell posed as a wealthy individual who wished to have the victim build a house for him. The Defendant's goal was to embarrass the victim, who was in the construction industry.

          The present case relates to a physical altercation between the victim and the Defendant that occurred at Longhorn Steakhouse on February 21, 2012, and in which the victim received significant cuts to his face, neck, and right arm. The Defendant was charged with attempted second degree murder and was convicted of the lesser included offense of misdemeanor reckless endangerment.

         At the trial, a 9-1-1 call was introduced through a dispatcher. In the call, a person who identified herself as Paige Brown reported that two men were involved in a fight at Longhorn Steakhouse. She said that both men had cuts to their face, that there was a lot of blood, and that a man she knew as Rick Troutt had a man whose name she did not know pinned down. She said initially that the unknown man had a knife but reported later in the call that the restaurant's cook had taken the knife from the unknown man.

         Sumner County Sheriff's Deputy Chris Vines, a former Gallatin Police officer, responded to the scene. He testified that he found the Defendant lying on the restaurant's foyer floor with the victim kneeling next to and holding down the Defendant. Deputy Vines said that the Defendant's forehead was bleeding badly and that the victim's neck was "sheeting" or spurting blood. Deputy Vines said the Defendant was covered in blood. Deputy Vines said blood was on the walls, windows, and glass doors of the foyer. He said a knife was inside the restaurant near an umbrella stand. He said the Defendant's glasses, the victim's glasses, and a charm from the Defendant's necklace were on the foyer floor. Deputy Vines was unaware of Officers Kent or Shockley having been told by an elderly, male restaurant patron that the victim had been the aggressor.

         William Elijah Cornell testified that he met the Defendant and Roger Harrison six to eight weeks before the February 21, 2012 incident and that he had met the victim once. Mr. Cornell said that he and the Defendant developed a friendship and that the Defendant told Mr. Cornell about the Defendant's disdain for the victim due to their past business dealings. Mr. Cornell said the Defendant wanted to play a practical joke on the victim to make the victim look foolish in front of the victim's bankers. Mr. Cornell said the Defendant asked Mr. Cornell to talk to the victim about having the victim build Mr. Cornell a large home in "the Plantation." Mr. Cornell said the plan was to raise the victim's hopes about building the home and then to tell the victim that Mr. Cornell was not interested because the Defendant had said the victim was "an A-hole." Mr. Cornell explained that the victim would have to explain to his bankers that he did not need to borrow money for the project. Mr. Cornell said he went along with the scheme because he wanted the Defendant to help him finance a trucking company.

          Mr. Cornell testified that, in furtherance of the scheme, he met with the victim and posed as a wealthy, disbarred attorney from Maine and discussed having a house built with money he had obtained fraudulently. Mr. Cornell recorded their conversation. He later met with the Defendant and Mr. Harrison and gave the recording to the Defendant, who was pleased with its contents.

         Mr. Cornell testified that on February 21, 2012, he had drinks with the Defendant at Longhorn Steakhouse. Mr. Cornell said that the Defendant wanted him to call the victim but that Mr. Cornell did not want to because he had to be up early the next day. Mr. Cornell thought, however, that he had called the victim as he and the Defendant sat outside in Mr. Cornell's car. Mr. Cornell said he sensed that the victim knew he was the subject of a joke. Mr. Cornell said that he left the premises, that he left the Defendant there, and that he assumed the Defendant returned to the restaurant. Mr. Cornell said that he received a call from the victim, that the victim asked his name and other questions, and that Mr. Cornell called the Defendant and told him the victim sensed he was the subject of a joke. Mr. Cornell said the Defendant stated, "[H]e's right here with me." Mr. Cornell heard the Defendant say, "You've been had, buddy, " and heard the victim say, "[N]o, you've been had, buddy." Mr. Cornell tried to call the Defendant later but did not receive an answer. Mr. Cornell said that on his way home, he saw police and emergency vehicles at Longhorn Steakhouse but that he did not stop because he had consumed three beers and did not want to be charged with driving under the influence. He said that the police left a message for him during the night and that he contacted them the next day.

         Mr. Cornell did not recall telling Investigator Messler that Mr. Harrison had instigated Mr. Cornell's contacting the victim about building a house. Mr. Cornell said, however, that if he had said this when he was interviewed on February 24, 2012, his memory at the time of the interview would be more accurate than his memory at the time of the trial. He acknowledged that a transcript of his interview reflected that Mr. Harrison had instigated the practical joke and that Mr. Cornell had characterized the Defendant as "standoffish."

         Retired Gallatin Police Officer Danny Deyhle identified photographs he took of the scene, the victim, and the Defendant, and the photographs were received as exhibits. Some of the photographs depicted a ring on the Defendant's left hand, a sutured laceration several inches long on the victim's right arm, and four cuts on the side of the victim's face. Officer Deyhle said he collected a leather coat, a cell phone, eyeglasses, and a pocketknife from the scene. He said that to the best of his knowledge, samples of blood spatter he collected from the scene were not submitted to the Tennessee Bureau of Investigation (TBI) for analysis. He said that no analysis was necessary because two known individuals were involved in the altercation and that analysis was used to identify unknown individuals.

         Candice Pewitt testified that she was the Longhorn Steakhouse bartender at the time of the altercation. She knew the Defendant as a regular customer. She said that on February 21, 2012, the Defendant and a friend of the Defendant's arrived shortly after 4:00 p.m. She said that the Defendant's friend drank several beers and that the Defendant drank a double margarita, a second margarita, and part of a third. She said that a note she wrote on the back of a receipt for the Defendant's purchases on the date of the incident indicated the Defendant had been at the restaurant from 4:15 to 7:45 p.m. She did not think the Defendant was intoxicated.

         Richard Miller, M.D., and expert in trauma surgery, testified that on February 21, 2012, the victim was transported by a Life Flight helicopter to Vanderbilt Medical Center and that he operated on the victim due to a life-threatening injury. Dr. Miller said the victim had four major slash wounds to his face, neck, and arm. Regarding a fifteen-centimeter right-side facial cut, Dr. Miller said that in his opinion, the cut was first inflicted near the victim's ear and extended toward the victim's mouth. Dr. Miller said the victim had a smaller, two centimeter cut on the right side of the face, as well. Regarding an eleven-centimeter cut on the right side of the victim's neck, Dr. Miller stated his opinion that the cut was deeper in the front than the back, indicating that the cut began in front and traveled back. He said the victim also had a six-centimeter arm cut and a two-centimeter facial cut.

         The victim, a self-employed home builder, testified that he had known the Defendant for about thirty years and that, at one time, they had been friends and business partners. They began dissolving their business partnership in August 2006, and litigation pertaining to the dissolution concluded in approximately 2008. The victim said that the dissolution had been acrimonious and that he and the Defendant had not spoken since August 2006.

         The victim testified that he became acquainted with Eli Cornell, whom he knew as "Will, " when Mr. Cornell called him about building a home. The victim said Mr. Cornell claimed he was moving from "Boston or something." The victim said that he met with Mr. Cornell, that they looked at properties where a house might be built, and that Mr. Cornell called him later about seeing additional properties.

         Relative to the events of February 21, 2012, the victim testified that he and his wife went to Longhorn Steakhouse around 7:00 p.m. He said that because the restaurant was crowded, they went into the bar, where he saw the Defendant. The victim said his wife offered to trade seats with him in order to avoid his having to look at the Defendant during the meal. He said that he had seen the Defendant talking to another man at the bar and that he saw them leaving the bar and walking toward the restaurant's door. The victim said he recognized Mr. Cornell as the person with whom he had spoken about building a house. The victim said that his cell phone rang a few minutes after the Defendant and Mr. Cornell left, that his phone displayed the contact name "Will, new house." The victim said he returned the call and went to the restaurant's window. He saw the Defendant and Mr. Cornell in a car in the parking lot. The victim said Mr. Cornell stated he wanted to schedule a meeting when Mr. Cornell would be back in town. The victim said he saw the Defendant and Mr. Cornell laughing and talking. The victim said he had realized that Mr. Cornell was not the person he had represented himself to be.

         The victim testified that he talked with his wife for a few minutes, then went to the restroom. He said the Defendant was at the urinal. The victim said the Defendant never knew the victim was in the restroom. The victim said he went outside, called Mr. Cornell, and asked Mr. Cornell his last name. The victim said Mr. Cornell identified himself as Mr. Connall or Mr. Canal. The victim said Mr. Cornell stated that a realtor told Mr. Cornell that the victim had an issue with a past business partner. The victim said he stated that he found this unusual because the victim was in discussions with a family member of the realtor about building a house. The victim said he returned to the restaurant, where his wife tried to make notes of what she overheard the Defendant saying. The victim heard the Defendant say, "[J]ust tell him that. He'll believe that. Just get him up there. You know, you can tell him that right there. Just get him up there Thursday." The victim said the Defendant had been drinking and was boisterous.

         The victim testified that he walked to the bar, tapped the Defendant on the shoulder, and said, "[S]cam's up." The victim said the Defendant stated, "[B]y God, I've been scamming you, " and "[Y]ou're not coming up on me in here." The victim said that the Defendant "body checked" him and that the victim said, "[N]ot in here. If you want me to beat your a--, we'll have to go outside." The victim said the Defendant stood up and followed him out of the bar. The victim said they were six to eight feet from the hostess stand as they walked out. The victim said that as he went through the double doors at the front of the restaurant, he felt a sting that felt like a razor cut, followed by "a massive amount of pain." He said he turned around and hit the Defendant above the left eye as hard as he could with his right hand. The victim said he did not hit the Defendant until after the Defendant cut him. The victim said that when he hit the Defendant, the Defendant hit the floor and that the victim "jumped" on top of the Defendant and continued hitting him. The victim said the Defendant was cutting and stabbing him with the Defendant's left hand. The victim saw blood shooting from his body. The victim said that he hit the Defendant until he felt like he was going to pass out and that eventually, he was able to hold down the Defendant's left hand with the victim's right hand. The victim was unaware of who removed the knife from the Defendant's hand. The victim did not recall a cook's saying the victim was the aggressor. The victim said that he was taken by helicopter to Vanderbilt Medical Center and that he still had scars and numbness in his ear and on the side of his face.

         The victim testified that he did not drink alcohol. He said his intent in going outside had been to engage in a fist fight, not a knife fight. He acknowledged that he had filed a lawsuit against the Defendant and Longhorn Steakhouse related to his injuries. The victim said that he felt the neck cut first, that it occurred as he went through the doors, that the cut had gone from front to back, and that it was deeper in front. He said that the cut to his face was sustained after he was through the doors and in the foyer.

         The victim testified that he had not finished eating when he became aware the Defendant and Mr. Cornell were outside laughing, likely at his expense. He acknowledged that he could have requested his check, asked for his food to be packaged to go, and ignored any future calls from Mr. Cornell posing as a prospective home buyer. The victim said that instead, he sat with his wife and continued to eat dinner.

         The victim acknowledged that he had encountered the Defendant at a hospital on February 17, 2012 without incident. The victim said that he and a companion of the Defendant had spoken to each other in passing.

         The victim denied that, during the previous litigation between himself and the Defendant relative to their business dealings, he had told Roger Harrison that the Defendant "had a butt whipping coming to him." The victim agreed that signs stating "Ricky Troutt, contractor bankrupt" appeared and disappeared from his construction sites and that he strongly suspected the Defendant's involvement. Relative to gossip at a truck stop restaurant in which the Defendant had an ownership interest, the victim said he had heard, "I was [the Defendant's] main topic of interest."

         The victim's wife testified that the victim had not spoken to the Defendant for years following the dissolution of their business partnership. She said that on February 21, 2012, she and the victim had dinner at Longhorn Steakhouse. She said that when she noticed the Defendant seated at the bar, she asked the victim to swap seats with her. She said the victim drank tea with his meal. She said she overheard the Defendant's companion say, "[D]on't get a DUI, " or something similar. She said that as the Defendant's companion left, the victim recognized the man as "Will, " the person who had called about having the victim build a house for him. She said that the Defendant left shortly after Will and that the victim went to the window and looked into the parking lot. She said the victim returned to the table and received a cell phone call from "Will, new house" and did not answer. She said she urged the victim to return the call in order to determine what was happening in light of what they had just seen at the bar. She said the victim returned the call, went to the window, and returned to the table after the call. She said the victim went to the restroom, returned to the table and said the Defendant had been in the bathroom but had not seen him. She said that the victim did not know Will's last name and that he went outside to call Will to get the information. The victim's wife said the Defendant returned to the bar while the victim was outside. She overheard the Defendant on a cell phone call with a person she assumed had been the person sitting at the bar with the Defendant. She said the Defendant stated, "[I]f you're caught, tell him, 'you've been punked by Red.'" Other evidence showed that the Defendant's nickname was Red.

         The victim's wife testified that the victim returned to the table and that she showed him the notes she made in her cell phone relative to the Defendant's conversation. She said the victim walked up to the Defendant, tapped the Defendant's shoulder, and said, "[S]cam's up." She said the Defendant turned, looked angry and had a red face, said, "I've been scamming you, " and "body bumped" the victim. She said that the Defendant said, "[Y]ou're not going to walk up on me in here, " and that the victim responded, "[W]ell, we'll take it outside."

         The victim's wife testified that the victim walked toward the door with the Defendant walking quickly a couple of feet behind him. She said she paid the bill and started to leave. She saw the victim and the Defendant going into the foyer. She said she saw the Defendant's "shoulders and body go up . . . into" the victim's right side. She said that as she reached the foyer's glass doors, she saw the victim turn with his right arm up. She said the victim's face and neck were cut "wide open." She saw the victim hit the Defendant once, which knocked the Defendant to the ground. She said that the Defendant had a knife in his left hand and that the victim held the Defendant's left hand to the ground with the victim's right hand and the Defendant's body with the victim's left forearm to prevent the Defendant from continuing to stab the victim. When asked if anyone else was nearby, the victim's wife said that the restaurant's hostess was the only other person and that the hostess was behind her at the hostess stand. The victim's wife said that the victim struggled to hold down the Defendant's arm, that the victim was becoming weak from blood loss, and that the Defendant continued to try to stab the victim. She said a person she thought was a cook came from the back of the restaurant and took the knife from the Defendant.

         Paige Brown testified that on February 21, 2012, she was a high school senior and that she worked at the time as a hostess at Longhorn Steakhouse. She knew the Defendant and the victim as restaurant customers. She said the Defendant and a male companion sat at the bar that evening and that, due to the wait for dining room seating, the victim sat at a high-top bar table. She said the Defendant went outside to smoke, as ...


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