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State v. Ball

Court of Criminal Appeals of Tennessee, Nashville

February 21, 2018


          Assigned on Briefs January 17, 2018

         Appeal from the Circuit Court for Rutherford County No. F-76526 David M. Bragg, Judge

         Defendant was convicted by a Rutherford County Jury of driving under the influence ("DUI"), retaliation for past action, assault, and resisting arrest. The trial court sentenced Defendant to an effective sentence of two years, of which Defendant was ordered to serve six months in incarceration and the balance of the sentence on supervised probation. Defendant appeals his conviction for retaliation for past action, arguing that the evidence was insufficient to support the conviction. For the following reasons, we affirm the judgments of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

          Gerald L. Melton, District Public Defender, and Billie I. Zimmerman, Assistant District Public Defender, for the appellant, Kortney Ball.

          Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel; Jennings H. Jones, District Attorney General; and Brent Pierce, Assistant District Attorney General, for the appellee, State of Tennessee.

          Timothy L. Easter, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Robert L. Holloway, Jr., J., joined.



         In November of 2016, the Rutherford County Grand Jury indicted Defendant for DUI, retaliation for past action, assault, and resisting arrest as a result of his actions during a traffic stop on the evening of February 10, 2016.

         At trial, Detective Jonathan Brown testified that he was working patrol as a detective for the Murfreesboro Police Department on the night of February 10, 2016. It was snowing that night, which caused "the roads to be slicker." Detective Brown was driving down North Rutherford Boulevard when he observed a black vehicle "trying to change lanes." The vehicle "started moving over into the left lane, and then corrected back over to the right lane" before it "drove down the center striped line for just a short period, and then moved over to the left side." Detective Brown engaged the video camera in his patrol car because the way the driver maneuvered the vehicle through traffic indicated possible "signs of impairment." The vehicle never used the blinker to indicate a lane change and, once in the left lane, began to accelerate, traveling at speeds "going well over 45" in a forty mile per hour zone. The vehicle eventually crossed back into the right lane and turned onto Main Street, again without using a blinker. Detective Brown followed the vehicle onto Main Street and observed the vehicle "drift over into that oncoming traffic lane, and then . . . make a right turn, and then . . . come to a complete stop in the middle of the road." At that point, Detective Brown "lit him up, " turning on his blue lights. Detective Brown also observed that the "tag light on the rear was blown out."

         After announcing the location of the traffic stop to dispatch over the radio and requesting backup support, Detective Brown exited his patrol car and approached the vehicle on the driver's side. Defendant was sitting in the driver's seat, and the vehicle also contained a female passenger. Defendant "rolled his window down just a little bit" and Detective Brown observed a "strong smell of intoxicant emitting" from the vehicle. Defendant had "slurred speech" and "bloodshot, watery eyes." Defendant continually reached down beside the door with his left hand while he was talking to Detective Brown.

         Initially, Defendant was "polite and friendly." Detective Brown asked Defendant for his driver's license, registration, and proof of insurance. Defendant handed the officer his driver's license and insurance but had a "hard time" locating the registration, eventually handing Detective Brown a piece of paper that was not the registration. Defendant continued to reach down beside the driver's door with his left hand, a motion described by Detective Brown as a "furtive movement." When Detective Brown informed Defendant that the paper was not the registration, Defendant reached up and "snatched" the paper out of the officer's hand. Detective Brown was afraid that Defendant might try to "flee, " so Detective Brown asked Defendant to exit the vehicle. Defendant stepped out of the vehicle onto the road.

         Detective Brown described Defendant as "unsteady on his feet." Defendant started to walk toward the officer with papers in his hand. Detective Brown told him to leave the papers in' the vehicle. Defendant did not listen, so the officer told him to place the papers on the trunk. Defendant complied before he walked back up toward the front of the vehicle to get another piece of paper from the passenger.

         Defendant again approached Detective Brown. Defendant kept putting his hands inside his pockets. Detective Brown repeatedly asked Defendant to take them out. Defendant explained to the officer that it was cold outside so he needed to put his hands in his pockets. Detective Brown explained that he was uncertain what, if anything, Defendant had in his pockets and that he asked Defendant to take his hands out of his pockets for safety reasons. Defendant denied having anything "illegal" on his person. Defendant asked Detective Brown if he wanted to search him, lifting his shirt up in the process as if to show the officer that he did not have anything on his person. Detective Brown initiated a search of Defendant by asking him to interlock his fingers behind his head and ...

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