         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE              FILED
                         AUGUST SES SION, 1998       September 30, 1998

                                                     Cecil W. Crowson
                                                    Appellate Court Clerk
STATE OF TENNESSEE,              )    C.C.A. NO. 01C01-9708-CR-00336
                                 )
           Appellee,             )
                                 )    DAVIDSON COUNTY
V.                               )
                                 )
                                 )    HON . CHE RYL BLA CKB URN ,
WILLIAM BRADLEY,                 )    JUDGE
                                 )
           Appe llant.           )    (HARA SSME NT)




FOR THE APPELLANT:                    FOR THE APPELLEE:

CHARLES GALBREATH                     JOHN KNOX WALKUP
901 Stahlman Building                 Attorney General & Reporter
Nashville, TN 37201
                                      TIMOTHY F. BEHAN
                                      Assistant Attorney General
                                      2nd Floor, Cordell Hull Building
                                      425 Fifth Avenue North
                                      Nashville, TN 37243

                                      VICTO R S. JO HNS ON, III
                                      District Attorney General

                                      ROGER MOORE
                                      Assistant District Attorney General
                                      Washington Square
                                      222 Second Avenue North, Suite 500
                                      Nashville, TN 37201-1649




OPINION FILED ________________________

CON VICTIO N AN D SE NTE NCE AFFIR MED ;
REMANDED FOR ENTRY OF NEW ORDER
THOMAS T. WOODALL, JUDGE




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                                   OPINION

      William Bradley, the Defendant, appeals as of right from his conviction for

harass ment. In December 1995, Defendant was charged with harassment. He was

tried and conv icted in Gene ral Sessions C ourt, but appea led to the Crimin al Court

of David son C ounty for a trial de novo. After waiv ing his righ t to a trial by jury,

Defendant pled not guilty. The trial court found the Defendant guilty and sentenced

him to eleven (11) months, twenty-nine (29) day s. Defe ndan t was to serve his

sentence on unsupervised probation pursuant to the provisions of Tennessee Code

Annotated section 40-35-313. In his appeal, Defendant argues the evidence was

insufficient to convict the Defendant of harassment and that hearsay evidence was

impro perly admitted. We affirm the conviction and sentence, but remand to the trial

court for a withdrawal of the judgment of guilty and entry of an order in compliance

with Tennessee Code Annotated section 40-35-313.




      While there is not a tra nscrip t of the p rocee dings at trial, pu rsuan t to Ru le

24(c) of the Tennessee Rules of Appellate Procedure a statement of the evidence

was filed in the record. The Defendant first submitted a statement of the evidence,

but the State filed an objection to portions of this. As a result, the trial court provided

the statement including the testimony of David Beard, the Defendant, Susan Ramey,

the Defendant’s wife, and a local attorney.




       David Beard testified that he is the manager of a mattress store in Bellevue

Mall in Nashville. Beard identified the Defendant as a customer of the store who


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purchased a Tempera Pedic mattress on June 25, 1996. The Defendant drove to

Lexington, Kentucky, to pick up the mattress. Beard’s store has a sixty (60) day

return policy with no questions asked and the sale price returned to the custom er.

On November 30, 1996, the Defendant called Beard and aske d for a refund for the

mattress due to his dissatisfaction. Beard explained that no money would be

refunded as the sixty (60) day period had expired. Defendant was upset and called

several more times the next week refusing to accept Beard’s explanation of the

store’s return policy. Defendant then c alled Beard’s su pervisor. Finally, Bea rd

advised Defendant that he could not help him and to stop calling his store.




       Defendant and his w ife, Susa n Ram ey, contin ued to repea tedly c all the store,

often calling back immediately after the prior telephone call. Defendant believed that

this mattress was purchased under a six (6) month same as cash policy. During one

continuing phone co nversation, D efendant threa tened Bea rd that he would “kick his

ass.” Beard stated that he was “shook up” and upset after this telephone call. Beard

was then advised by his supervisors that Defendant had also made threatening and

abusive calls to them. On cross-examination Beard admitted that he had exchanged

mattresses with Defendant, and that this new mattress has a ten (10) year

guarantee.




       The Defe ndan t testified that he did not make the telephone call threatening to

“kick [Mr. Beard’s] ass,” but that George Wesley White made that telephone call. A

copy of Def enda nt’s tele phon e bill wa s ente red as an ex hibit wh ich ind icated multip le

calls to Beard’s Bellevue mattress store. On cross-examination, Defendant admitted


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that White was calling upon his behalf when he threatened Beard. Defendant

remembered calling on approximately three (3) occasions requesting his money

back and looking for a replacement mattress. Defendant described his frustration

in the inability to re solve the matter a nd felt shu nned b y Beard . After calling the

corpora te offices for assistance, Defendant was instructed to call the Bellevue sto re

and Beard was ofte n not ava ilable wh en De fendant called. In his estimation,

Defendant teleph oned Dave Fall with Tem pera Ped ic mattresses asking for a refund

on sev en (7) to te n (10) oc casions .




       Susan Ramey testified that she was present when Defendant telephoned the

store and neve r heard Defendant threaten Beard. Ramey also telephoned Beard at

least two (2) or three (3) times. Ramey was aware that White called and threatened

to “kick [Mr. Beard’s] ass,” and that these calls were made at Defen dant’s req uest.

Ramey was not present when the threatening telephone call was made as she works

outside th e hom e at Bap tist Hosp ital.




       An attorney in Waverly, Tennessee, testified that he has know n Def enda nt all

his life. Bas ed up on De fenda nt’s rep utation , the atto rney te stified th at he w ould

afford Defen dant “full faith and credit on his oath as a witness” and that he is not

aware of any vio lent tende ncies of th e Defe ndant.




       Following the conclusion of the bench trial, the trial court found Defendant

guilty and se ntence d him to serve eleven (11) months, twenty-nine (29) days of

unsupervised probation pursuant to Tennessee Code Annotated section 40-35-313.


                                            -5-
Defendant filed a motion for new trial, but the trial court ruled against the motion.

Specifically, the trial court “heard the proof in this case and was convinced beyond

a reaso nable doubt that the [D]efendant was guilty of violation of T.C.A. § 39-17-308

by making offensively repetitious telephone calls which knowingly annoyed or

alarmed the victim.”




      When an accused challenges the sufficiency of the convicting evidence, the

standard is w hether, 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 reaso nable d oubt. Jackson v. Virginia , 443 U.S. 30 7, 319 (1979 ).

On appe al, the State is entitled to the strongest legitimate view of the evidence and

all inference s therefro m. State v. Cabbage, 571 S.W .2d 832, 835 (Tenn. 197 8).

Because a verdict of guilt removes the presum ption of inn ocenc e and re places it w ith

a presumption of guilt, the accused has the burden in this court of illustrating why the

evidence is insufficient to suppo rt the verdic t returned by the trier o f fact. State v.

Tugg le, 639 S.W.2d 913, 914 (Tenn. 1982); State v. Grace, 493 S.W.2d 474, 476

(Tenn. 1 973).




      Questions concerning the credibility of the witness es, the w eight and value to

be given the evide nce, as we ll as all factual issues raised b y the evidenc e, are

resolved by the trier o f fact, not this c ourt. State v. Pappas. 754 S.W.2d 620, 623

(Tenn. Crim. App .), perm. to appeal denied, id. (Tenn. 1987 ). Nor may this c ourt

reweigh or reeva luate the e vidence . Cabbage, 571 S.W .2d 832, 835 (Tenn. 197 8).

This case involved a ben ch trial, and the findings of the trial court who conducted the


                                           -6-
proceedings carry the same weight as a jury v erdict. State v. Tate, 615 S.W.2d 161,

162 (Te nn. Crim . App. 19 81).




      A person commits the offense of harassment when he intentionally: (1)

threatens, by telephone or in writing, to take action known to be unlawful against any

person, and by this action knowingly annoys or alarms the recipient; or (2) places

one (1) or more telephone calls anonymously, or at an inconvenien t hour, or in an

offens ively repetitio us manner, or without a legitimate purpose of communication,

and by this action kn owingly annoy s or alarm s the recip ient. Tenn . Code Ann. § 39-

17-308(a)(1) and (2). A violation of this offense is a Class A m isdemea nor. Tenn.

Code Ann. § 39-17-308(b). Testimony demonstrated that Defendant repeatedly

called Beard, eve n after being instructe d to stop calling and that nothing m ore could

be done to assist the D efenda nt. Beard testified that Defendant threatened that he

wou ld “kick his ass,” which upset Beard and “shook him up.” Wh ile Defe ndan t’s

testimony conflicts with that of Beard’s as to who issued the threats, the trial court

resolved all factual issues raised by the ev idence . Pappas, 754 S.W.2d at 623. This

court will not rew eigh or re evalua te the evid ence. Cabbage, 571 S.W.2d at 835.

Notwithstanding the threatening nature of the telephone calls, Defendant’s testimony

that he repeatedly called Beard, who was knowingly alarmed and asked Defendant

to stop calling, is sufficient for a reasonable trier of fact to have found beyond a

reasonable doubt all the elements necessary to convict the Defendant of

harass ment. T his issue is without m erit.




                                          -7-
       Defendant also contends that hearsay testimony of others who told Beard that

Defendant had made harassing telep hone calls to them was inadm issible. Beard

testified that his supe rvisors advise d him that Defendant had also made abusive and

threatening telephone calls to them. There is no reco rd that De fendan t objected to

this testimony at trial.    Failure to make a contemporaneous objection waives

conside ration by th is court of the issue on appea l. Tenn. R . App. P. 3 6(a).




       Even considering the issue on its merits, the trial court stated in its order

overruling Defe ndan t’s mo tion for a new tr ial that its decision was based only on

“relevan t, admis sible evide nce.”    Th e trial court sp ecifically no ted that it “can

separa te the ‘wheat from the chaff’ in considering the testimony of witnes ses.”

Hearsay evide nce is n ot adm issible as evidence unless it falls within a number of

exceptions as provided by Rules 803 and 804 of the Tennessee Rules of Evidence.

Tenn. R. Ev id. 802 . Even if the sta teme nts to w hich Defendant refers were not

adm issible as exceptions under Rules 803 and 804, any error in admitting these

statem ents in a bench trial is harmless. As the trial court stated within its order

denying Defendant’s motion for a new trial, the court’s decision was based on

“relevant, adm issible e viden ce” an d the c ourt “is s till convin ced th e defe ndan t is

guilty beyond a reasonable doubt.” After considering the entire record in the case

sub judice, we are satisfied that if there was error, it was harmless. Tenn. R. App.

P. 36(b); Ten n. R. Crim. P. 5 2(a).




       Defendant was sentenced to eleven (11) months, twenty-nine (29) days to be

served on unsupervised probation pursuant to Tennessee Code Annotated section


                                            -8-
40-35-313, commonly known as the “judicial diversion” statute. Under this particular

statutory scheme, when a defendant is found guilty or pleads guilty to a

misdemeanor punishable by imprisonment or a Class C, D, or E felony, and the

defendant has n ot bee n prev iously convicted of a felony or a Class A m isdemea nor,

the trial court may “without e ntering a judgm ent of guilty ,” defer further proceedings

and place the defendant on probation. Tenn. Code A nn. § 40-35-3 13(a)(1)(A).

Notwithstanding the provision of this statute, the trial court entered a judgment of

guilty in this case, however noting under “special conditions” on the judgment that

he wa s senten ced pu rsuant to Tenne ssee C ode An notated section 4 0-35-31 3.




      Since the explicit language of Tennessee Code Annotated section 40-35-313

provides that no “judgment of guilty” is to be entered when a defendant is placed on

judicial diversion, an order reflecting the offense for which the Defendant has been

found guilty, the length of the sentence, the classification of the offense, and all other

necessa ry information pursuant to the sentencing statutes, other than a judgment

of guilty, sh ould b e ente red by the trial c ourt. Th e judg men t filed in this cas e is

incorrect and it is therefore necessary to remand this matter to the trial court for the

judgment entered to be vacated and for a proper order pursuant to the provisions of

Tennessee Code Annotated section 40-35-313 to be entered.




       We therefore affirm the conviction and sentence, but remand this case for the

trial court to vacate its judgment of June 2, 1997 and for the entry of an order in

comp liance w ith the specific provisions of Tennessee Code Annotated section 40-

35-313 .


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                         ____________________________________
                         THOMAS T. WO ODALL, Judge


CONCUR:

___________________________________
JOHN H. PEAY, Judge

___________________________________
L. T. LAFFERTY, Special Judge




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