        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs December 7, 2010

              STATE OF TENNESSEE v. RODNEY MCALISTER

             Direct Appeal from the Circuit Court for Lauderdale County
                      No. 8506    Joseph H. Walker, III, Judge


                  No. W2010-00996-CCA-R3-CD - Filed June 7, 2011


The defendant, Rodney McAlister, was convicted by a Lauderdale County jury of vandalism
between $1000 and $10,000, a Class D felony. He was thereafter sentenced to a term of five
years, as a multiple offender, in the Department of Correction. On appeal, the defendant
challenges only the sufficiency of the evidence, asserting that the State failed to negate the
defenses of duress and necessity. Following review of the record, we conclude that the
evidence is sufficient and affirm the conviction.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL and A LAN E. G LENN, JJ., joined.

Gary F. Antrican, District Public Defender (on appeal), and Stephen Lefler, Memphis,
Tennessee (at trial), for the appellant, Rodney McAlister.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; D. Michael Dunavant, District Attorney General, and Joni Livingston and Julie
Pillow, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                         OPINION

                                    Procedural History

       The evidence, in the light most favorable to the State, established that the defendant
was incarcerated at the West Tennessee State Penitentiary on December 7, 2008. The
defendant, after kicking his cell door, managed to escape the cell and was free inside the pod.
The defendant was seen smashing the cameras by the control room and proceeded to climb
into the ceiling, after breaking several of the ceiling tiles. The defendant continued on his
rampage, breaking another camera, knocking out lights, and breaking a sprinkler head.
Officers in the pod ordered the defendant to come down from the ceiling, and he responded
that he would when he was finished. The defendant did eventually come down from the
ceiling, and, upon reaching the ground, he ran back into his cell. The entire episode was
captured on video.

        Based upon these actions, the defendant was indicted by a Lauderdale County grand
jury for one count of vandalism between $10,000 and $60,000. At the subsequent trial, the
defendant proceeded upon the theory that he had committed the acts under duress or
necessity, claiming that he was being abused by the prison officers and was only trying to get
the attention of someone who could stop the treatment. The defendant testified and stated
that the problems began when he got into an argument with an officer at the prison. He
claimed that the officers then began “messing” with his food, sometimes even depriving him
of anything to eat. He testified that he would be given food which had dirt, cleaning
solvents, or pubic hairs in it. He related that he went on a “hunger strike” to draw attention
to the alleged abuse. The defendant testified that he became weak from lack of food and that
the officers attempted to take him to the prison physician. When he refused to go, the
defendant related that the extraction team was called to remove him from his cell. He alleged
that on multiple occasions during these extractions, he was beaten, dragged down stairs, and
returned to his cell unconscious. He also contended that he was denied privileges such as
showers and recreation time and that he was written up for infractions which he did not
commit.

       According to the defendant, he wrote the warden on multiple occasions concerning
this abuse, but he received no aid. He stated that he feared for his safety and came up with
the idea to destroy property in order to force officials to recognize his plight. He
acknowledged that, prior to the incident, he destroyed two cells for which he was now
charged. He claimed that on the day in question, the officer in the control room, who
controlled the doors to the cells, began taunting him that he could not get out. The defendant
claimed that this officer released the electronic lock and dared him to try to get out, despite
the fact that the deadbolt lock was still in place. The defendant acknowledged that he then
burst through the door, breaking the lock, and then committed the acts of vandalism for
which he was charged.

        In support of his defense theory, the defendant also called three other inmates to
testify. Each gave testimony supporting the defendant’s allegations of abuse at the hands of
the prison officers.

     The State called multiple officers to testify who were on duty when the defendant
committed his rampage. Each testified that when the defendant burst from his cell, nothing

                                              -2-
in his demeanor indicated that he was afraid or had been threatened in any way. Each of the
officers also testified that they never witnessed or saw any abuse of the defendant, that his
food was not tampered with, and that he was not denied privileges. Additionally, no officer
was able to testify exactly how the defendant had gotten out of his cell. The control officer
specifically testified that she did not release the lock for his door. Testimony was also
elicited that the amount of damage to property caused by the defendant’s actions was
$14,313.62.

        The State also called the warden to testify at the defendant’s trial, although at the time
of the incident he had been the deputy warden. He testified that he had received two letters
from the defendant prior to this incident. In each of the letters, the defendant demanded that
he be transferred to another prison, asserting that he wanted to be closer to Knoxville, and
he set a deadline for the transfer to occur by December 1. The warden testified that he
attempted to have the defendant transferred but was unable to find an institution willing to
accept him. In the letters, the defendant also demanded that a disciplinary action be taken
off his record because it was a “lie.” The warden further testified that neither letter
mentioned any abuse or improper treatment at the hands of prison officials. The warden also
testified that when he engaged the defendant in conversation in the pod, he did not recall any
mention or allegations of problems with the defendant’s food.

        After hearing all of the evidence presented at trial, the jury returned a verdict of guilty
to the lesser included offense of vandalism valued between $1000 and $10,000. On
December 18, 2009, he was sentenced to five years, as a multiple offender, in the Department
of Correction. No motion for new trial was filed in the case by counsel nor was a timely
notice of appeal filed. On February 17, 2010, the defendant filed a “Motion for Appointment
of Counsel for a Belated Direct Appeal.” The trial court thereafter appointed the Public
Defender’s Office for the purpose of filing an appeal on the issues of sufficiency and
sentencing, as those were the only issues not waived by the failure to file a motion for new
trial. As directed, counsel thereafter filed a notice of appeal to this court on May 5, 2010.

                                            Analysis

        As an initial matter, the State argues that the appeal should be dismissed based upon
the defendant’s failure to file a timely notice of appeal. There is no dispute in this case that
no motion for new trial was ever filed nor was there a timely-filed notice of appeal.
However, the defendant did file a motion requesting an appeal based upon his trial counsel’s
failure to perfect the appeal as he had been instructed.

       Based upon the facts before us, as noted by the trial court, the defendant was
precluded from appealing any issues other than sufficiency or sentencing based upon the

                                                -3-
failure to file a motion for new trial. See State v. Boxley, 76 S.W.3d 381 (Tenn. Crim. App.
2001). As the defendant has raised only the issue of sufficiency, it is not necessary to address
the relevant law and waiver of all other issues based upon that failure. However, the State
is correct that the issue of an untimely notice of appeal must be addressed.

        Pursuant to Tennessee Rule of Appellate Procedure 4(a), a notice of appeal “shall be
filed with and received by the clerk of the trial court within [thirty] days after the date of
entry of the judgment appealed from[.]” Again, there is no dispute in this case that the
defendant failed to comply with this rule. However, it has been established that the untimely
filing of a notice of appeal is not always fatal to an appeal. State v. Rockwell, 280 S.W.3d
212, 214 (Tenn. Crim. App. 2007). Rule 4(a) states that “in all criminal cases the ‘notice of
appeal’ document is not jurisdictional and the filing of such document may be waived in the
interest of justice.” Tenn. R. App. P. 4(a). “In determining whether waiver is appropriate,
this court will consider the nature of the issues presented for review, the reasons for and the
length of the delay in seeking relief, and any other relevant factors presented in the particular
case.” Rockwell, 280 S.W.3d at 214. Waiver is not automatic and should only occur when
“the interest of justice” mandates waiver. If this court were to summarily grant a waiver
whenever confronted with untimely notices, the thirty-day requirement of Tennessee Rule
of Appellate Procedure 4(a) would be rendered a legal fiction. Id.

        The State, relying upon State v. Ronnie Edward Sexton, No. E2009-00292-CCA-R3-
CD (Tenn. Crim. App., at Knoxville, Oct. 6, 2010), asserts that the interest of justice does
not mandate review in this case. The State argues that, just as in Sexton, the brief filed by
the defendant contains no explanation as to why the notice of appeal was late-filed.
However, while the brief contains no such information, the defendant, through appointed
counsel, did file a “Motion to Allow Late Filed Notice of Appeal” with this court. In fairness
to the State, we note that this motion was filed after its brief. In the motion, which was
deferred for consideration by the panel assigned to hear the case, the defendant put forth the
chronology of events which led to the late filing. He stated that: his trial counsel was
contacted by his mother to see if the appeal process had been started; trial counsel continued
to represent the defendant at sentencing; a notice of withdrawal was filed by trial counsel;
trial counsel was not given leave to withdraw by the court; the notice of withdrawal was not
communicated to the defendant; and the defendant was under the assumption that the appeal
had been filed. The record further establishes that, once he became aware of the facts, the
defendant promptly took the appropriate actions to remedy the situation. On these facts, we
conclude that the interest of justice mandates against dismissal of the appeal and elect to
review the single issue raised by the defendant.

       On appeal, the defendant has raised the single issue of sufficiency of the evidence,
asserting only that the State failed to negate the defenses of duress and necessity beyond a

                                               -4-
reasonable doubt. When an accused challenges the sufficiency of the convicting evidence,
the standard of review is “whether, after reviewing 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) (emphasis
in original); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004); see also Tenn. R. App.
P. 13(e). “[T]he 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. Smith, 24
S.W.3d 274, 279 (Tenn. 2000). Questions involving the credibility of witnesses, the weight
and value of the evidence, as well as all factual issues raised by the evidence are resolved by
the trier of fact, and an appellate court does not reweigh or re-evaluate the evidence. State
v. Evans, 108 S.W.3d 231, 236 (Tenn. 2003).

       A jury verdict approved by the trial court accredits the State’s witnesses and resolves
all conflicts in the evidence in favor of the State. State v. Grace, 493 S.W.2d 474, 476
(Tenn. 1973). “Because a verdict of guilt removes the presumption of innocence and
imposes a presumption of guilt, the burden shifts to the defendant upon conviction to show
why the evidence is insufficient to support the verdict.” State v. Thacker, 164 S.W.3d 208,
221 (Tenn. 2005). These rules are applicable to findings of guilt predicated upon the direct
evidence, circumstantial evidence, or a combination of both. State v. Pendergrass, 13
S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).

        As previously noted, the defendant does not challenge that the State proved all the
elements of the crime of vandalism beyond a reasonable doubt. Rather, his entire sufficiency
argument centers around his allegation that the State failed to negate the raised defenses of
duress and necessity. We agree that the proof sufficiently establishes the elements of
vandalism, defined by statute as “[a]ny person who knowingly causes damage to or the
destruction of any real or personal property of another or of the state, the United States, any
county, city, or town knowing that the person does not have the owner’s effective consent
is guilty of . . .” vandalism. Clearly, these statutory elements are met by the proof which was
presented. The prison guards offered testimony, the event was captured on video, and the
defendant admitted that he forced open the door of his prison cell and went on a destructive
rampage. In the process, he destroyed the door locks, cameras, ceiling tiles, light fixtures,
and a sprinkler head. Testimony was given that the amount of damage totaled more than
$14,000. Thus, we conclude that the elements of the crime were established by the State’s
proof.

       It was acknowledged that the defendant did, in fact, raise the defenses of duress and
necessity at trial and that the jury was instructed accordingly. The defendant is correct in his
assertion that it is the State who bears the burden of negating these defenses beyond a
reasonable doubt once they have been fairly raised by the proof. See T.C.A. § 39-11-

                                              -5-
201(a)(3) (2011). Pursuant to Tennessee Code Annotated section 39-11-504(a) (2011),

               Duress is a defense to prosecution where the person or a third person
       is threatened with harm that is present, imminent, impending and of such a
       nature to induce a well-grounded apprehension of death or serious bodily
       injury if the act is not done. The threatened harm must be continuous
       throughout the time the act is being committed, and must be one from which
       the person cannot withdraw in safety.

             Further, the desirability and urgency of avoiding the harm must clearly
       outweigh the harm sought to be prevented by the law proscribing the conduct,
       according to ordinary standards of reasonableness.

Tennessee Code Annotated section 39-11-609 (2011) defines necessity as:

             Except as provided in [sections] 39-11-611, 39-11-616, 39-11620, and
       39-11-621, conduct is justified if:

              (1)     The person reasonably believes the conduct is
                      immediately necessary to avoid imminent harm; and

              (2)     The desirability and urgency of avoiding the harm clearly
                      outweigh the harm sought to be prevented by the law
                      proscribing the conduct, according to ordinary standards
                      of reasonableness.

        The defendant argues that the proof he put forth, namely his own testimony and the
testimony of the three inmates he called, established that he was in imminent danger based
upon the injuries he had received and the starvation he experienced at the hands of the
officers. According to his argument, because he had previously been denied aid, he felt that
he had no choice but to commit the acts to bring attention to his plight. While we agree that
the defendant did put forth sufficient evidence to raise the defenses, his argument ignores that
all of the relevant information was placed before and evaluated by the jury. The jury was
free to weigh and assess the credibility of the witnesses, and, as noted on multiple occasions,
it is not the province of this court to reweigh such determinations.

       The State called multiple prison officers, as well as the warden, and testimony
established that no one was aware of any abuse toward the defendant. The warden, in
contradiction to the defendant, testified that no reports of starvation or abuse had been made
to him. Each of the officers testified that the defendant burst out of his cell, in stark

                                              -6-
contradiction to his own testimony that he was weak from starvation, and that he exhibited
no sign of fear while destroying the property of the prison. Based upon this evidence and a
clear credibility determination by the jury, we must conclude that the State did, in fact, negate
the raised defenses of duress and necessity. As such, the defendant is not entitled to relief.

                                       CONCLUSION

       Based upon the foregoing, the judgment of conviction is affirmed.




                                                     _________________________________
                                                     JOHN EVERETT WILLIAMS, JUDGE




                                               -7-
