        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                   May 19, 2009 Session

             STATE OF TENNESSEE v. TEDDY RAY MITCHELL

                  Appeal from the Criminal Court for Hamblen County
                       No. 06CR464 John Dugger, Jr., Judge




                 No. E2008-02672-CCA-R3-CD - Filed March 31, 2010




The Defendant, Teddy Ray Mitchell, appeals from his jury conviction in the Criminal Court
of Hamblen County for disorderly conduct, a Class C misdemeanor, for which he received
a sentence of thirty days in jail. In this appeal as of right, the Defendant contends (1) that the
evidence is insufficient to support his conviction, (2) that his conviction violates his First
Amendment right to free speech, and (3) that the trial court erred in admitting evidence of
an altercation with another police officer that was contemporaneous to the offense. Following
our review, we conclude that the evidence is insufficient to support the Defendant’s
conviction of disorderly conduct. Accordingly, the Defendant’s conviction is reversed, and
the case is dismissed.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is
                            Reversed and Dismissed.

D. K ELLY T HOMAS, JR., J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., J., joined. N ORMA M CG EE O GLE, J., filed a separate dissenting opinion.

Darren V. Berg; James C. Wright; and R. Deno Cole, Knoxville, Tennessee, attorneys for
appellant, Teddy Ray Mitchell.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant
Attorney General; C. Berkeley Bell, District Attorney General; and Victor J. Vaughn,
Assistant District Attorney General, attorneys for appellee, State of Tennessee.
                                          OPINION

        The events giving rise to the Defendant’s arrest involve his attendance at an anti-
illegal immigration rally held on June 24, 2006 on the grounds of the Hamblen County
Courthouse. Morristown Police Department personnel were present at the scene for the
purpose of controlling the crowd and ensuring that no one entered the rally site with any
weapons. Included in the safety restrictions was the prohibition against carrying an
American flag attached to any pole or stick. When the Defendant was confronted at the rally
entrance by officers about his standard-size flag and flagpole, a verbal altercation and
physical confrontation occurred between the Defendant and several officers that ultimately
led to the Defendant’s arrest for disorderly conduct and resisting arrest.

        Andre Kyle, a patrol officer with the Morristown Police Department, testified that he
was the first officer to encounter the Defendant at the rally. He recalled that when the
Defendant attempted to park his car along the shoulder near the sidewalk, a prohibited area
for security reasons, the Defendant told Officer Kyle, “There’s no n****r going to tell me
where I can and can’t park.” After Officer Kyle called for assistance, Officer Matt Stuart
arrived and told the Defendant that he could not park along the sidewalk. Officer Kyle stated
that the Defendant then “got irate and mad and he sped off.” Officer Kyle recalled that the
Defendant eventually parked “up the road . . . where he wasn’t supposed to be parked” but
where no officer was present to ask him to move. Officer Kyle stated, upon exiting his
vehicle, that the Defendant “made a b-line toward the gate.”

        Officer Kyle testified that the Defendant approached the gate with flag in hand and
that an officer immediately told him that he could carry the flag, but not the flagpole, into the
rally. The Defendant began yelling and screaming. Officer Kyle testified that while officers
attempted to arrest the Defendant, the Defendant shook the flag up and down toward the
officers and poked Officer Troy Wallen. Officer Kyle testified that it took a struggle to
subdue the Defendant and place him under arrest. Officer Kyle stated that he was
accidentally tasered by another officer during the struggle. He also opined that “when you
cause a scene in public you are disorderly.”

       Officer Matt Stuart of the Morristown Police Department testified regarding his initial
encounter with the Defendant on the day of the rally. He recalled that he went to Officer
Kyle’s assistance and described the Defendant as “real belligerent, real irate, made some
remarks, talked about how he fought for this country, wanted to know who says he could not
park there . . . . He made some derogatory comments about the chief [of police] . . . and
parked at another illegal spot.” Officer Stuart recalled that no one was allowed into the rally
with a flagpole or poster stick or anything else that could be used a weapon. He recalled that
everyone had complied without objection with the safety requests except the Defendant.

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When he told the Defendant that he would need to remove the flag from its pole, the
Defendant began screaming. Officer Stuart testified that they received a radio call to remove
the Defendant from the area because he was causing a scene at the gate entrance and the
police personnel were concerned that a riot could occur.

       On cross-examination, Officer Stuart conceded that one of the rally organizers was
permitted to carry a flag attached to a pole into the rally for placement at the speakers
podium, an area that was separate from the general rally area. Officer Stuart stated that the
Defendant “tensed up” when he attempted to place him under arrest. Officer Stuart also
conceded that the Defendant did not fight with the flagpole until after Officer Stuart
attempted to place the Defendant under arrest. Officer Stuart testified that the Defendant
cursed loudly from his car and also cursed at the gate entrance. When asked about whether
the use of a taser was appropriate when someone is “simply questioning whether he could
bring his flag in,” Officer Stuart replied

       It could be. Not pertaining to just carrying a flag. Like I told you once before,
       it’s not an issue of carrying a flag in, the issue was it was a simple request.
       Everyone else there [did] it. There w[ere] a lot of people there at the rally.
       Simply remove the pole, take it back to your car and you can bring your flag
       in. That’s all he had to do.

Officer David Hancock and Detective Chris Blair, both of the Morristown Police
Department, testified consistently with the other officers regarding the Defendant’s demeanor
when approaching the gate entrance and the general commotion caused when he refused to
remove his flag from the flagpole. Detective Blair testified that he was responsible for
screening people for weapons as they entered the rally and that he had to close the entrance
for a brief period of time while the other officers handled the struggle with the Defendant in
order to insure that the incident did not escalate into involvement of other citizens at the rally.

       Morristown Police Department Officer Troy Wallen testified that the Defendant
approached the gate and “began to rant and rave over not being able to bring his flag in.”
Officer Wallen attempted to explain to the Defendant that he could bring the flag but had to
remove it from the flagpole. He testified that the Defendant “continu[ed] to rant and rave
about this, he had the flagpole in his hands. Where I was standing at the flagpole, he was
shaking it up and down as he was ranting and the flagpole, at that point, had come in contact
with me two or three times.” When officers began to arrest the Defendant, Officer Wallen
grabbed the flagpole to prevent the Defendant from striking anyone with it. He recalled that
the Defendant complained about the unfairness that others could bring in Mexican flags but
he was forbidden from bringing in an American flag to which Officer Wallen recalled, “I
explained to him on more than once that he could bring his flag in, that he could just not

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bring his flagpole in.” Notably, Officer Wallen stated that the Defendant poked him with the
flagpole several times prior to the officers attempting place the Defendant under arrest.
Officer Wallen admitted that he and the other officers surrounded the Defendant soon after
he approached the gate but explained that they did so because the Defendant was attempting
to enter the rally without removing the flag from the flagpole. He also recalled that the
Defendant used foul language as he argued loudly with the officers throughout the incident.

        Frankie Lane testified that he was a part-time officer with the Morristown Police
Department at the time of the rally. He recalled coming to the assistance of the other officers
as they attempted to place the Defendant under arrest. He admitted that he attempted “to give
a drive stun” with a taser to the Defendant in an effort to subdue him. He explained that a
taser is used whenever a person “becomes actively aggressive towards officers or anyone.
If you think they are fixing to use hands or feet to become physically combative . . . .” He
further testified on cross-examination that he attempted to use the taser because the
Defendant was pushing an officer. He also stated that he did not know whether he touched
the Defendant with the taser and that he put it away when the struggle with the officers
escalated to the point that the use of the taser was unsafe.

       Chris Weisgarber, a lieutenant training officer and SWAT team commander for the
Morristown Police Department, testified that he was responsible for planning and
coordinating officers for the rally. As part of his duties, he briefed the officers regarding
safety measures and restricted items at the rally. He admitted that one of the rally organizers
was allowed to carry a flag attached to a flagpole to the speaker’s podium but explained that
the speaker’s podium “was controlled even more than the regular participants” area. He also
explained that the restriction regarding poles and sticks was developed from anti-terrorism
briefings that the officers attended which instructed them that people often carry weapons
such as knifes hidden within poles or attached to sticks. He recalled that he noticed the
Defendant was at the main entrance “creating a scene” so he radioed the officers and
instructed them to remove the Defendant from the area. A video recording of the incident
was also presented at trial.

       The Defendant presented the testimony of several witnesses who testified that they
attended the rally that day. Patricia Stephens described the presence of law enforcement
officers as “just terrifying” yet she elected to stay at the rally. She also stated that “it was
upsetting that no one could enter with a flag on a pole or even on a little tiny stick” as she
was asked to remove her small flags from their sticks prior to entering the rally. She
admitted that the Defendant was upset and used a loud voice but denied that he cursed the
officers or acted threateningly in any way. She reported that she was so upset after the
incident that she “cried and cried all day.” Tom Lowe, a guest speaker at the rally, testified
regarding what he described as the rather large presence of law enforcement. He was

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surprised to see officers dressed in riot gear and snipers on area roof tops. He opined that the
large presence was an effort to “quieten [sic] us down.” Audrey Lowe testified that she
witnessed one officer snap a flag stick while telling a lady that she could not carry it in on
the stick. She denied seeing the Defendant fighting with anyone or using obscenities at any
time.

       The State called Lieutenant Weisgarber as a rebuttal witness who admitted that
security was increased in anticipation of any violence that may ensue from either side of the
immigration issue. Based upon the evidence presented, the jury convicted the Defendant of
disorderly conduct but acquitted him of resisting arrest.

                                         ANALYSIS

                                 Sufficiency of the Evidence

        An appellate court’s standard of review when the defendant questions the sufficiency
of the evidence on appeal 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) (emphasis
in original). The appellate court does not reweigh the evidence; rather, it presumes that the
jury has resolved all conflicts in the testimony and drawn all reasonable inferences from the
evidence in favor of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984);
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness
credibility, conflicts in testimony, and the weight and value to be given to evidence were
resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). A guilty verdict
removes the presumption of innocence and replaces it with a presumption of guilt, and on
appeal the defendant has the burden of illustrating why the evidence is insufficient to support
the jury’s verdict. Id.; State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This standard
applies to findings of guilt based upon direct evidence, circumstantial evidence, or a
combination of both direct and circumstantial evidence. State v. Pendergrass, 13 S.W.3d
389, 392-93 (Tenn. Crim. App. 1999).

        Tennessee Code Annotated section 39-17-305(a)(1) provides, in relevant part, that
“[a] person commits [disorderly conduct] who, in a public place with the intent to cause
public annoyance or alarm, engages in . . . threatening behavior.” In State v. Creasy, 885
S.W.2d 829 (Tenn. Crim. App. 1994), our court found sufficient proof that the defendant
engaged in “threatening behavior” based upon evidence that the defendant, with a clenched
fist and finger-pointing, directed profane and insulting language toward a police officer who
was ticketing the defendant’s car for a parking violation. Of note, this court reaffirmed the
standard first enunciated in Garvey v. State, 537 S.W.2d 709 (Tenn. Crim. App. 1975) that

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police officers are held to a different standard than the ordinary citizen when evaluating
insulting words. Creasy, 885 S.W.2d at 831. In Garvey, this court reasoned that the use of
threatening language in a disorderly conduct case involving a police officer should be
examined under a heightened standard because law enforcement officers are “trained to
exercise a higher degree of restraint than the average citizen.” Garvey, 537 S.W.2d at 711
(evidence insufficient where defendant called police officer “sooey” while passing officer
on the street). We concluded that sufficient evidence was presented in Creasy because the
defendant not only directed profanity at the officer but also positioned himself between the
officer and his vehicle, clenched his fist, and pointed his finger at the officer while the officer
issued the ticket. Creasy, 885 S.W.2d at 832. With these principles in mind, we now turn
to the evidence presented in this case.

        The testimony at trial indicates that the Defendant, whom witnesses described as “irate
and mad” after his initial confrontation with officers regarding parking, approached the rally
gate and immediately began yelling and screaming when officers told him that he could not
take his flagpole into the rally. Officer Wallen testified that the Defendant struck him several
times with the flagpole during the incident. Officer Stuart testified that the Defendant did
not begin to “fight with the stick” until Officer Stuart grabbed the Defendant’s arm to arrest
him. The Defendant was, as noted previously, acquitted of resisting arrest. Part-time Officer
Frankie Lane testified that he attempted to use a taser on the Defendant and that he had been
trained to use a taser only when someone is “fixing to use hands or feet to become physically
combative”(behavior which, without question, would be threatening).

        However, the video recording of the incident belies the officers’ testimony in very
significant ways. Although it appears that throughout the entire incident the Defendant’s
voice is raised and he is belligerently arguing with the officers about his right to carry the
flag into the rally, the officers did not testify to any specific verbal threats made by the
Defendant during the incident. Likewise, no testimony that the officers felt threatened by the
Defendant appears in the record. Furthermore, the video does not show the Defendant
shaking the flag up and down and striking Officer Wallen in the chest with the flagpole two
or three times, or at all, as testified to by Officer Wallen. Indeed, the flagpole appeared to
only raise slightly from its downward position once Officer Wallen placed his hand on the
flagpole in order to arrest the Defendant. The videos are void of any actions of the
Defendant that could be deemed physically threatening. We also note that there are neither
lapses nor segments in the videos when the Defendant is sufficiently out of view during
which time the Defendant may have accosted Officer Wallen with the flagpole. Therefore,
we conclude that the evidence is insufficient to support the Defendant’s conviction of
disorderly conduct. Having so concluded, it is unnecessary to address the Defendant’s
remaining allegations attacking the constitutionality of the statute’s application to the facts
of this case and the alleged erroneous admission of evidence.

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                                     CONCLUSION

       Following our review, we conclude that there is insufficient evidence to support the
Defendant’s conviction for disorderly conduct. Accordingly, the judgment of the trial court
is reversed and the case is dismissed.


                                                  ___________________________________
                                                  D. KELLY THOMAS, JR., JUDGE




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