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State v. Howser

Court of Criminal Appeals of Tennessee, Nashville

July 19, 2019

STATE OF TENNESSEE
v.
MICHAEL RAY HOWSER

          Assigned on Briefs January 17, 2019

          Appeal from the Criminal Court for Sumner County No. 2017-CR-502 Dee David Gay, Judge

         Defendant, Michael Ray Howser, pled guilty to aggravated assault, reckless endangerment with a deadly weapon, and possession of a weapon by a convicted felon with an agreed effective sentence of ten years as a Range II multiple offender with the trial court to determine the manner of service. A sentencing hearing was held, and the trial court ordered Defendant's ten-year sentence to be served in confinement. On appeal, Defendant argues that the trial court erred by denying alternative sentencing. After a careful review of the record, we affirm the judgments of the trial court.

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

          John D. Pellegrin, Gallatin, Tennessee, for the appellant, Michael Ray Howser.

          Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant Attorney General; Lawrence Ray Whitley, District Attorney General; and Katherine Brown Walker, Assistant District Attorney General, for the appellee, State of Tennessee.

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

          OPINION

          THOMAS T. WOODALL, JUDGE

         Background

         The affidavit of complaint in this case contains the following description of events:

On 5-14-2017 at approximately 2259hrs I, Deputy M. Rice, was dispatched to the Sheriff's Office to take a report for a domestic assault that occurred earlier in the evening. Upon arrival I spoke to Taffie Howser. Taffie stated that her husband, [Defendant] (a convicted felon), came home angry at her and accused her of lying to him and started consuming alcohol. Taffie was in the yard with [Defendant's] juvenile son when [Defendant] came outside with a .380 caliber handgun walked over to her asked her to "uncock the gun." [Defendant] then fired the pistol into the air next to her head and took her keys to prevent her from leaving the house. [Defendant] proceeded to lay the pistol on a tractor and sat down by the tractor. [Defendant] consumed more alcohol picked up the pistol unloaded it and took the pistol inside the house. [Defendant] came back outside told his juvenile son to go in the house. [Defendant] and Taffie remained outside where the argument continued. [Defendant] stated he would never hurt her but she had to stop lying to him. Taffie denied lying, [Defendant] insisted she was lying. [Defendant] told Taffie to go in the house, she complied. [Defendant] left the house for a short time and returned while the juvenile was eating supper. [Defendant] told Taffie to sit and eat with the juvenile. Taffie stated she wasn't hungry; [Defendant] said "I said sit down and eat." Taffie sat next to the juvenile. [Defendant] said again "I said eat," grabbed a rib bone off a plate, grabbed Taffie by the hair on the back of her head and tried to force feed her the rib bone and said, "Eat or I'll shove this bone down your throat." Taffie separated from [Defendant] and fled the living room. Taffie returned to the table and sat down again. [Defendant] walked out of the front door, Taffie grabbed her phone and left the house by the back door.

         Sentencing Hearing

         State's Proof

         Initially, we note that Taffie Howser's testimony at the sentencing hearing differed in several ways from her statement that she made to police at the time of the offenses. Her written statement to police with appropriate edits indicated in brackets, and with lines through words that Mrs. Howser marked out on the statement, is as follows:

[Defendant] has continued for several months of being controlling, [mental] abuse, threats and his rage/anger has escalated until this last week. [Defendant] wants to know where I am every minute requesting pictures of my time clock while working. Last week while visiting his dad in the hospital he kept sending text messages and his rage/anger increased. He told me to leave and get away from his family. He sent texts stating "I can't stand you, I hate you, F[- -]cking lying b[- -]ch." I was scared to go home and called my dad for help. [Defendant] convinced me to return home after meeting with my dad. Once I arrived home, [Defendant] stated to never tell my parents anything that ever happens between us again. He made me call my dad and have it on speaker phone telling him (my dad) that I was a liar and he was in charge of the household. All this week [Defendant] has continued to change his behavior back and forth and telling me I am a fake Christian, and he hates a liar. Today [Defendant] came to my work and continued to argue with me stating I was a liar and our marriage was not worth saving because I continued with lies. Tonight once we arrived home [Defendant] came home with alcohol and his anger increased. [J.H.] and I was playing ball after [Defendant] and [J.H.] played and he brought the [.]380 outside he came over to me and said uncock this gun. I said what? and was looking at it and he shot it right up in the air by my and said never mind. Then he sat down and laid it on the tractor step beside where he was sitting. He also took my keys so I couldn't go anywhere. He continued with remarks about me and he would increase in anger [sic] then be calm. He went and picked up the gun after drinking another beer and [J.H.] and I continued to play ball. By the back porch before walking into the house he unloaded the clip of the gun. Then he came back out and told [J.H.] to come inside. [J.H.] went in then [Defendant] started to talk to me calmly again stating he wasn't going to hurt me. He moved closer and I backed away. He said again he wasn't going to hurt me because I was still his delicate flower. He continued to ask me to tell him the truth because "I was still lying" and he knew I was lying. He I told him again and he said I was still lying and we will live a marriage of where he will do what he wants and I will continue to live in a lie. He told me to get in the house and he gave me a chance to come clean and I still continued to lie. He left in the Yukon. I got [J.H.] supper and he was sitting at the table eating. [Defendant] came in the front door and said sit down and eat with him. I told him I didn't want to eat that I wasn't hungry and he yelled saying "I said sit down and eat." I sat down in the chair beside [J.H.]. He went over to the plate of ribs and said I said EAT! He came over and grabbed the back of my hair and tried to shove the bone/rib in my mouth. He said I said eat or I will shove this bone down your throat. [J.H.] began to cry and telling him to stop. I was pushing it away the rib [sic] and trying to get away from him and the chair fell. I moved around the living room automan coffee table to keep him away then came back to the kitchen and picked up the chair and sat back down [sic] he said from now on you are going to be my slave. Then [J.H.] said to him stop again and [Defendant] went out the front door. I kissed told [J.H.] I loved him grabbed my phone and ran out the back. This is not the first time [Defendant] has been physical with me. Another time [J.H.] and I came home and while helping [J.H.] get out of the vehicle [Defendant] punched me in the face. I was late coming home because I was stopped by the train in Mitchellville which outraged [Defendant]. [Defendant] continues to blame me for his actions. I made him act this way.

         Taffie Howser testified that she and Defendant have been married for two years, and they are raising Defendant's now ten-year-old son, J.H., together. As the result of an incident on May 14, 2017, there was an order of protection put into place by the arresting officer, and she asked the court to remove it shortly thereafter. She and Defendant currently live together and have lived together since the no contact order was amended to no violent contact.

         Mrs. Howser testified that on May 14, 2017, she was outside playing baseball with Defendant and J.H. At some point, Defendant sat down by the tractor, and he later walked inside the house. Mrs. Howser testified that Defendant walked back outside carrying her handgun. She said, "He handed it to me and asked if the gun was uncocked -- or unlocked and I looked at it. I said, I don't know. Then I handed it back to him." Mrs. Howser testified that Defendant turned the gun to the right and fired it "towards our field towards the ground." Mrs. Howser testified that she "was over, like, to the other side of him, and, like, when he turned I was already over to the left." J.H. was standing further away toward the house. She said that Defendant did not say anything when he fired the weapon.

         Mrs. Howser testified that Defendant sat back down beside the tractor, and she and J.H. continued playing baseball. She said that Defendant then got up and walked toward the back of the porch and "stood up at the back door and fired the weapon up in the air." Again, Defendant did not say anything. Mrs. Howser testified that neither she nor J.H. had any reaction to Defendant discharging the weapon because they were accustomed to being around guns. She also said that she did not think about leaving at that time and that "if I thought anything, you know, safety measures or [J.H.] and I was in danger, you know, I would have done whatever I needed to do." Mrs. Howser agreed that Defendant took her keys when he went inside the house the first time. However, she did not feel that she could not leave the property. Mrs. Howser agreed that in her written statement to police she wrote, "He also took my keys so I couldn't go anywhere." Mrs. Howser explained her statement as follows: "On the - - on the - - at the time when we were - -when the gun incident - - you know, if I needed to leave or - - and all that stuff, I could have left. But when I stated that in the report, that was when he got my keys is how I felt at that time." Mrs. Howser also said that she and Defendant took each other's keys all the time. Mrs. Howser testified that Defendant brought her keys back outside when he walked out with the gun, and he placed them beside the tractor. She thought that Defendant had been drinking beer. Mrs. Howser could not recall if Defendant said anything while he was sitting on the tractor beside her keys. She testified that he was "just sitting there." She eventually agreed that Defendant said something about her. Mrs. Howser said that she also wrote in the statement to police that Defendant, "Shot it right up in the air by my [sic]." She then crossed out the words "right" and "by my [sic]." She did not know why she crossed out the words.

         Mrs. Howser testified that J.H. eventually went inside the house for supper. She and Defendant remained outside arguing while she picked things up. Mrs. Howser did not remember what Defendant said to her. After reading her statement to police, Mrs. Howser testified that she and Defendant had been in an argument earlier that morning and that the argument had paused while she and Defendant were outside with [J.H.]. She noted that Defendant had accused her the previous day of lying about her past. Mrs. Howser agreed that Defendant called her "delicate flower" after he fired the gun, which was her nickname. She admitted that she backed away from Defendant because he told her that he was not going to hurt her. At that point, Mrs. Howser stated that she knew that the gun was inside the house.

         Mrs. Howser could not recall if Defendant told her to go inside for supper but she agreed that it was in her statement to police. She also agreed that Defendant said that "he would do whatever he wanted to do," but he was not referring to their relationship. Mrs. Howser initially could not recall if Defendant said anything else to her when he told her to get inside the house. However, she eventually admitted that Defendant said that he would give her a chance to "come clean" and that she "still continued to lie." Mrs. Howser testified that when she told Defendant that she was not hungry, he picked up a "rib bone and he puts it to my lips and he says, [']You're going to eat or I'm going to shove it down your throat.[']" Defendant had the other hand on the back of her hair. Mrs. Howser testified that Defendant was upset at that point, and he was yelling. She moved to get away from him, knocking the chair over, and Defendant followed her. Mrs. Howser eventually sat down in a chair at the dining room table, and Defendant walked out the front door. She then took her cell phone and went out the back door to a neighbor's house to "get away from the situation." Mrs. Howser called her father, George Wallace, who came and picked her up. They drove to the sheriff's office and filed a report. She said, "I didn't know all this would happen. I just wanted to make a report for a divorce in case I wanted one." Mrs. Howser noted that she and Defendant had several previous arguments but that was the first time that he threatened her. She had never been injured during any of their previous fights. She sometimes stayed at her parents' home after she and Defendant argued. Mrs. Howser agreed that Defendant's rage and anger had escalated up until the incident in May 2017.

         Mrs. Howser testified that Defendant knew everything about her daily routine because "[w]e tell each other what we're doing." She did not recall how often he contacted her each day. She said, "We would call and text back and forth all the time." Mrs. Howser worked as a home health nurse, and Defendant often had her make photographs of her time sheets with her cell phone and send them to him. She agreed that Defendant wanted to know her whereabouts "[a]ll the time." Mrs. Howser could not recall if Defendant contacted her while she was visiting his father in the hospital. She then read from her statement to police concerning the incident and stated that what she said in the statement was true. We note that at that point in the sentencing hearing, Mrs. Howser asked to go to the restroom. A brief recess was held, and when court resumed the following exchange took place:

[Prosecutor]: Mrs. Howser, while we were on break did [Defendant] talk to you?
[Mrs. Howser]: We gave each other a hug, yes.
[Prosecutor]: Did he say anything to you about your testimony?
[Mrs. Howser]: We - - no. We were - - hugging each other, told each other we loved each other.

         Mrs. Howser testified that she was afraid to go back home after Defendant contacted her when she visited his father because "I didn't know what would - - I mean, if we were still arguing or what would happen or whatever." She then called her father for help. Mrs. Howser testified that she went back home, and Defendant told her that they should keep their "business" between themselves and not tell her parents. Mrs. Howser said that Defendant may have also had her call her father on speakerphone but she could not recall what he told her to say to her father. Mrs. Howser then read from her statement to police and said that Defendant told her to tell her father that she was a liar and a "fake Christian." Defendant also told her to say "[t]hat we'll be keeping everything, you know, in our marriage between us." Mrs. Howser testified that Defendant hit her in the jaw during one of their previous arguments.

         On cross-examination, Mrs. Howser testified that she reported the incident in the present case for the purpose of filing for divorce. She would not have reported the incident if she had thought Defendant would be arrested or go to prison. Mrs. Howser testified that she had tried to get the charges against Defendant dismissed. She admitted that it would be a financial hardship, and they would lose everything if Defendant was incarcerated.

         Mrs. Howser testified that Defendant was involved in drug court when they began dating. She said that he took drug court seriously, and he was not drinking or using drugs during that time. Mrs. Howser agreed that Defendant was jealous and insecure. However, she said that he had gotten much better since the latest incident. Mrs. Howser testified that Defendant worked as a butcher for Cash Saver and that he had worked as a butcher for more than twenty years. She said that Defendant was drinking at the time of the incident in the present case but that it was an isolated event. She also did not think that he had been drinking any since the event. Mrs. Howser testified that Defendant is back in a recovery program, and she attends meetings with him. He also has a sponsor named Eric, and he has received counseling through their church. Mrs. Howser testified that she has not seen any evidence of drug or alcohol abuse since this incident.

         Mrs. Howser testified that she and Defendant previously attended church in Lebanon where her father is the pastor. She said that they now attend church in Bowling Green, Kentucky where Defendant's brother-in-law is the pastor. Mrs. Howser testified that she and Defendant attend every church service with J.H. unless Defendant has to work, and she takes J.H. to church when Defendant is working. Mrs. Howser testified that Defendant has shown remorse since this incident, and he apologized to her on several occasions. She also said that Defendant was a good father who spends a lot of time with J.H. Mrs. Howser testified that the four guns in the house belonged to her, and they are no longer there.

         The trial court asked Mrs. Howser about what happened when Defendant hit her in the jaw. She testified:

I was late that night from working. I had picked up [J.H.] from day care and I was on my way back from work and I pulled in the driveway. I was stopped by a train. And pulled in the driveway and I was getting my stuff out of the back and he came to the right and hit me in the jaw.

         Mrs. Howser testified that Defendant hit her with his fist. Defendant was under the influence of alcohol at the time. Mrs. Howser told the trial court that Defendant had changed since this incident.

         George Wallace, Mrs. Howser's father, testified that he is a pastor of a church and a bonding agent. He said that Mrs. Howser called him on May 14, 2017, and asked him to pick her up. Mr. Wallace testified that Mrs. Howser was "crying and very terrified" on the phone. She said that she had left Defendant and was at a neighbor's house. Mr. Wallace said that Mrs. Howser "come right straight out and got in the car and said - - she was very disturbed and really crying and said, [']Let's get out of here quick. Quick. Let's get out of here.[']" Mrs. Howser was also afraid that Defendant would follow them. Mr. Wallace testified that Defendant did follow them until they arrived at the Sumner County Sheriff's Office. He said that Mrs. Howser filed a report with the deputies and then rode to his house to stay with Mr. Wallace. Mr. Wallace testified that he noticed red marks on the victim's shoulders. Mrs. Howser told him that Defendant pulled her hair and grabbed and held her.

         Mr. Wallace recalled a previous occasion that Mrs. Howser called when she and Defendant were having trouble. He and his wife drove to the residence and spoke with Defendant and Mrs. Howser. He said that Defendant was very jealous and did not want the victim "seeing anybody or talking to anybody or going to - - you know, couldn't even trust her in any way to even talk with anybody on the phone." Defendant also indicated that "he was her husband and she was his wife and she was supposed to do what he wanted her to do." Mr. Wallace testified that Defendant did not want Mr. Wallace and his wife involved in his business so they left. The next week, Mrs. Howser called Mr. Wallace to come and get her, and she stayed at his house for a couple of days. Mr. Wallace testified: "But each time she would come to the house he would call her and convince her that she was his wife and she needed to be back home and she - - that was her place."

         Mr. Wallace testified that he seldom talked with Mrs. Howser by phone because Defendant did not want her talking to Mr. Wallace. He noted that Defendant would monitor Mrs. Howser's phone calls and text messages. He had also heard Defendant in the background during a phone call telling Mrs. Howser what to say. Mr. Wallace also suspected that Defendant answered Mrs. Howser's text messages.

         Upon examination by the trial court, Mr. Wallace testified that there had been two incidents since May 14, 2017, in which Mrs. Howser called him and said that she was coming to his house. He testified:

On those incidents she called said, Dad, I'm coming home and she brought her personal stuff and came to the house, stayed with us awhile and then [Defendant], of course, called her and talked to her and got her to come back.
And then another time just recently she left and she said, Dad, it's over this time, that I am through. And I even helped her change all of her passwords on her phone and she changed her checking account, everything, and I thought it was ...

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