Session: August 7, 2019
from the Circuit Court for Dyer County No. 17-CR-198 R. Lee
Moore, Jr., Judge
Defendant, Joan Odell, appeals from her felony conviction for
failure to appear, which resulted in a sentence of two years
in the Tennessee Department of Correction. On appeal, the
Defendant asserts that the evidence is insufficient to
support her conviction and challenges the jury instructions.
She also contends that the State engaged in purposeful
discrimination in striking a prospective juror in violation
of Batson v. Kentucky, 476 U.S. 79 (1986). We
conclude that the evidence is sufficient to support the
conviction and that there was no reversible error in the
instructions. However, the trial court failed to comply with
the procedure set forth in Batson by denying the
Defendant's Batson claim based upon the
Defendant's race, and we remand for a hearing on the
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Reversed; Case Remanded
E. Lanier, District Public Defender; and Sean P. Day,
Assistant District Public Defender, for the appellant, Joan
Herbert H. Slatery III, Attorney General and Reporter;
Katharine K. Decker, Assistant Attorney General; Danny
Goodman, Jr., District Attorney General; and Karen Burns,
Assistant District Attorney General, for the appellee, State
Everett Williams, P.J., delivered the opinion of the court,
in which Norma McGee Ogle and Camille R. McMullen, JJ.,
EVERETT WILLIAMS, PRESIDING JUDGE
AND PROCEDURAL BACKGROUND
to the evidence presented at trial, the Defendant was on
probation for a prior felony conviction; she was charged with
violating the terms of her probation; and she failed to
appear at the probation hearing. A probation violation
warrant was filed on March 2, 2017; the Defendant was
arrested on the warrant on March 6th; and a bond in the
amount of $5, 000 was set. On March 20th, Ms. Lillie Cooper
with Volunteer Bonding posted the bond on the Defendant's
Defendant signed an appearance bond, which listed her court
date as April 11, 2017, at 9:00 a.m. Ms. Cooper testified
that she obtained the court date from the intake sheet at the
Dyer County Sheriff's Office. She stated that by signing
the appearance bond, the Defendant agreed to appear at the
court hearings and to contact the bonding company if her
address changed. Ms. Cooper said she provided the Defendant
with a document that listed the date of the hearing as April
11, 2017, at 9:00 a.m., as well as the location of the
Defendant failed to appear at the April 11th hearing, and the
trial court entered an order revoking and forfeiting the
Defendant's bond. Based upon the trial court's order,
a capias was issued for the Defendant's arrest, and a
scire facias was issued to the bonding company, notifying the
company of the Defendant's failure to appear.
Cooper, who was present at the April 11th hearing, attempted
to contact the Defendant when she failed to appear but was
unable to reach her. Ms. Cooper was able to reach one of the
Defendant's contacts listed on her bond application, and
the contact informed Ms. Cooper of the Defendant's
location. Ms. Cooper testified that the Defendant had changed
addresses but had failed to inform Ms. Cooper of the change.
Ms. Cooper went to the apartment where the Defendant was
located and transported her to jail.
cross-examination, Ms. Cooper testified that she was able to
quickly locate the Defendant, who was in Dyer County. Ms.
Cooper stated that when she arrived at the Defendant's
address, the Defendant appeared confused and assumed that Ms.
Cooper was there to take her to court. The Defendant informed
Ms. Cooper that the Defendant had arranged for someone to
take her to court but that the person had not come. Ms.
Cooper agreed that the Defendant did not appear to be
attempting to abscond but that the Defendant seemed
"very confused in her thinking." Ms. Cooper
testified on redirect examination that she did not have a
prior agreement with the Defendant to transport her to court
for her hearing.
Ms. Cooper and Ms. Bridgette Brown, a deputy clerk at the
Dyer County Circuit Court Clerk's Office, agreed that in
the past, some defendants who had posted bond had expressed
confusion or a misunderstanding regarding their initial court
dates. Ms. Cooper and Ms. Brown testified that the April 11th
court date was the correct date, and Ms. Cooper stated that
the date was provided to the Defendant.
Defendant testified that she had arranged for someone to
drive her to court but that the person did not arrive to take
her to court until Ms. Cooper arrived. On cross-examination,
the Defendant acknowledged that she signed the appearance
bond, which listed her court date as April 11, 2017 at 9:00
a.m. She also acknowledged that she did not arrange for Ms.
Cooper to transport her to court for her hearing and that Ms.
Cooper happened to show up at the Defendant's address.
When questioned by the State regarding her failure to inform
the bonding company of her change in address, the Defendant
stated that her brother, who had arranged for the bonding
company to post her bond, listed "that address" on
papers provided to the bonding company.
Defendant acknowledged that she had prior convictions for
theft of property valued at under $500 and for writing bad
checks. She denied being convicted of criminal impersonation
in 2008. She acknowledged that in January 2016, she entered
an Alford plea to theft of property valued over $10,
000, a Class C felony, but maintained that it was a
"false charge." She acknowledged that she was on
probation for this conviction when the probation violation
warrant was issued. The State presented certified judgments
of her conviction for criminal impersonation in 2008 and her
felony theft conviction.
jury convicted the Defendant of failure to appear, and the
trial court imposed a two-year sentence to be served
consecutively to her prior sentences. The Defendant filed a
motion for new trial, which the trial court denied. The
Defendant appeals, challenging the sufficiency of the
evidence and the jury instructions. The Defendant also
contends that the State engaged in purposeful discrimination
in striking a prospective juror in violation of Batson v.
Kentucky, 476 U.S. 79 (1986).
Defendant contends that the evidence is insufficient to
support her conviction, asserting that her absence from the
probation revocation proceeding did not constitute failure to
appear as criminalized in Tennessee Code Annotated section
39-16-609. The Defendant relies upon former subsection (d),
which provides that failure to appear is a Class A
misdemeanor "[i]f the occasion for which the
defendant's appearance is required is a
misdemeanor," and upon former subsection (e), which
provides that failure to appear is a Class E felony
"[i]f the occasion for which the defendant's
appearance is required is a Class A misdemeanor or a
felony." T.C.A. § 39-16-609(d), (e) (2014).
The Defendant maintains that because the violation of
probation is not classified as either a misdemeanor or a
felony offense, the failure to appear at a probation
revocation proceeding is not a criminal offense pursuant to
defendant challenges the sufficiency of the evidence, the
relevant question for this court is "whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt." Jackson v. Virginia, 443 U.S. 307, 319
(1979). On appeal, "'the State is entitled to the
strongest legitimate view of the evidence and to all
reasonable and legitimate inferences that may be drawn
therefrom.'" State v. Elkins, 102 S.W.3d
578, 581 (Tenn. 2003) (quoting State v. Smith, 24
S.W.3d 274, 279 (Tenn. 2000)). Therefore, this court will not
re-weigh or reevaluate the evidence. State v.
Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).
Instead, it is the trier of fact, not this court, who
resolves any questions concerning "the credibility of
witnesses, the weight and value to be given the evidence, as
well as all factual issues raised by the evidence."
State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).
guilty verdict removes the presumption of innocence and
replaces it with a presumption of guilt. State v.
Evans, 838 S.W.2d 185, 191 (Tenn. 1992). The burden is
then shifted to the defendant on appeal to demonstrate why
the evidence is insufficient to support the conviction.
State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
This court applies the same standard of review regardless of
whether the conviction was predicated on direct or
circumstantial evidence. State v. Dorantes, 331
S.W.3d 370, 381 (Tenn. 2011). "Circumstantial evidence
alone is sufficient to support a conviction, and the
circumstantial evidence need not exclude every reasonable
hypothesis except that of guilt." State v.
Wagner, 382 S.W.3d 289, 297 (Tenn. 2012).
Defendant's assertion that her absence from the probation
violation hearing does not constitute the offense of failure
to appear as provided in Tennessee Code Annotated section
39-16-609 involves an issue of statutory construction. Issues
of statutory construction are questions of law, which this
court reviews de novo with no presumption of correctness.
State v. Henderson, 531 S.W.3d 687, 692 (Tenn. 2017)
(citing State v. Springer, 406 S.W.3d 526, 532-33
(Tenn. 2013)). In interpreting a statute, we must
"ascertain and effectuate" the intent of the
Legislature. Id. (citing Baker v. State,
417 S.W.3d 428, 433 (Tenn. 2013)). We must accord the words
of the statute "their natural and ordinary meaning"
and construe the statute "in a reasonable manner which
avoids statutory conflict." Id. (citing
Baker, 417 S.W.3d at 433). "'[W]e presume
that every word in the statute has meaning and purpose and
should be given full effect if the obvious intent of the
General Assembly is not violated by so doing.'"
Id. (quoting Larsen-Ball v. Ball, 301
S.W.3d 228, 232 (Tenn. 2010)). If the statute's language
is clear and unambiguous, "'the legislative intent
shall be derived from the plain and ordinary meaning of the
statutory language.'" Id. (quoting
State v. Wilson, 132 S.W.3d 340, 341 (Tenn. 2004)).
If the statute's language is ambiguous, we must examine
the entire statutory scheme and "rely upon
well-established canons of statutory construction in order to
ascertain the legislative intent." Id. (citing
State v. Marshall, 319 S.W.3d 558, 561 (Tenn. 2010);
Wilson, 132 S.W.3d at 341).
applicable to the present case, Tennessee Code Annotated
section 39-16-609(a) prohibits a person from knowingly
failing to appear "as directed by a lawful authority if
the person … [h]as been lawfully released from
custody, with or without bail, on condition of subsequent
appearance at an official proceeding or penal institution at
a specified time or place[.]" T.C.A. §
39-16-609(a)(4) (2014). "'Official proceeding'
means any type of administrative, executive, legislative or
judicial proceeding that may be conducted before a public
servant authorized by law to take statements under
oath." T.C.A. § 39-11-106(a)(25). A probation
revocation hearing falls within the ...