        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                 August 19, 2014 Session

                STATE OF TENNESSEE v. JANICE KIRKLAND

                   Appeal from the Circuit Court for Blount County
                     No. C20685     Tammy Harrington, Judge


               No. E2013-02243-CCA-R3-CD - Filed December 11, 2014


A Blount County jury found the Appellant guilty of two counts of assault against an
unacquainted homeowner. On appeal, the Appellant contends that the trial court erred by
subjecting her to double jeopardy in convicting her of two counts of assault rather than one.
She also challenges the sufficiency of the evidence to sustain the convictions. Because we
find that the two convictions are based on separate offenses under applicable law, and
because a rational jury could find the Appellant guilty based on the evidence presented, we
affirm the judgments of the trial court.

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

R OBERT L. J ONES, S P.J., delivered the opinion of the court, in which J OHN E VERETT
W ILLIAMS and C AMILLE M CM ULLEN, JJ., joined.

Steven B. Ward, Madisonville, Tennessee, for the Appellant, Janice Kirkland.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner and John H.
Bledsoe, Assistant Attorneys General; Mike Flynn, District Attorney General; and Betsy
Smith, Assistant District Attorney General, for the Appellee, the State of Tennessee.

                                         OPINION

                             I. Procedural History and Facts

       At approximately 4:00 on the morning of October 19, 2011, Brett Lindsey and his
wife awoke to the sound of someone shouting and pounding on their front door. Thinking
it was his aunt, Mr. Lindsey opened the door and found instead a stranger standing on his
porch. The woman was the Appellant, Janice Kirkland. Stepping close to Mr. Lindsey and
pointing her finger in his face, she shouted a stream of curses and threats about Mr. Lindsey’s
brother and his brother’s Senate campaign. Mr. Lindsey neither has a brother nor knew
anyone involved in a campaign for the Senate. After telling his wife to call 911, Mr. Lindsey
stepped outside, locking the door behind him.

        Mr. Lindsey testified that he tried without success to convince the Appellant that she
had made a mistake. He asked repeatedly that she leave his property. The Appellant
continued to berate and threaten Mr. Lindsey, saying that she would kill him and make his
family suffer. Stepping off the porch into the rain, Mr. Lindsey attempted to shepherd the
Appellant away from his home and family and toward her car, which was parked in the
driveway. As he did so, the Appellant began “rummaging” through her purse as if looking
for something. Based on her threats and behavior, Mr. Lindsey feared that she might have
a gun in the bag. He reached his hands out over the Appellant’s, not touching her, but
prepared to stop her if she did pull a gun. The Appellant then punched him in the face, hitting
him on the cheekbone. At that point, Mr. Lindsey grabbed the purse, pulling the Appellant
off balance and causing her to fall. Several pill bottles spilled from the purse onto the ground
in the scuffle. Mr. Lindsey picked them up and dropped them back into the purse. He did not
put his hand in the purse or look inside it. He testified that he was afraid the Appellant might
have hypodermic needles inside, and he did not want to “get stuck with anything.”

       The Appellant demanded that Mr. Lindsey return her purse. To get her as far away
from his family as possible, Mr. Lindsey walked to the end of his driveway. The Appellant
followed, still insisting that he return her purse. When they reached the street, Mr. Lindsey
stood at the end of the drive and waited for the police.

        Sergeant Chad Simpson of the Maryville Police Department testified that when he
arrived at the Lindsey home at approximately 4:30 a.m., he saw Mr. Lindsey standing in the
rain wearing only a white t-shirt and boxer shorts. The Appellant sat on the opposite side of
the driveway from Mr. Lindsey. Because radio dispatch had reported that a woman caused
the disturbance, Sergeant Simpson spoke with the Appellant first. He asked if she would like
to sit in his patrol car to get out of the heavy rain. He explained that Maryville Police
Department policy required anyone placed in the back of a patrol car to be handcuffed. The
Appellant agreed to the restraints. Sergeant Simpson testified that the Appellant was “a little
bit out of control, irate, upset, mad ¼ [and] loud.” She told him that Mr. Lindsey had taken
her purse and that he was hiding her sister in his house. She also told the officer that she had
hit Mr. Lindsey.

       Sergeant Simpson testified that Mr. Lindsey was polite, fairly calm, and “a little
relieved” that Sergeant Simpson was there. He gave Sergeant Simpson the Appellant’s purse.
Mr. Lindsey corroborated the Appellant’s admission that she had hit him, and Sergeant
Simpson noticed a red mark on Mr. Lindsey’s cheek that seemed to confirm both statements.

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      Sergeant Simpson testified that the Appellant’s purse was “really heavy.” When he
looked inside, he found a revolver loaded with “four rounds of .38 special ammo.” Sergeant
Simpson placed the purse and the gun in the trunk of his patrol car to be deposited in the
evidence locker at the Maryville Police Department.

        By this time, another officer had arrived on the scene. Leaving the second officer to
watch the Appellant, Sergeant Simpson went into the house with Mr. Lindsey. After speaking
further with Mr. Lindsey and his family and ascertaining that the Appellant’s sister was not
in the house, Sergeant Simpson took the Appellant to jail.

                                        II. Analysis

                          A. The Dual Convictions for Assault

       A Blount County jury found the Appellant guilty of two counts of assault and the trial
court sentenced her to two concurrent sentences of 11 months and 29 days, suspended to
supervised probation. The Appellant now argues that the dual convictions subjected her to
double jeopardy. She contends that, as the incident involved one continuous altercation with
a single victim, she should have been charged with a single offense only. The State counters
that the trial court did not err because the two charges were for two separate and distinct
types of assault. We agree with the State.

       Whether multiple convictions constitute a violation of double jeopardy is a mixed
question of law and fact, and is therefore reviewed de novo on appeal, without a presumption
of correctness on the part of the trial court. State v. Thompson, 285 S.W.3d 840, 846 (Tenn.
2009).

        The Double Jeopardy Clause, included in the Bill of Rights and applied to the States
through the Fourteenth Amendment, provides that no person “shall ¼ be subject for the same
offense to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. Additionally,
article 1, section 10 of the Tennessee Constitution provides that “no person shall, for the
same offense, be twice put in jeopardy of life or limb.” The Tennessee Supreme Court has
found no “textual reason or historical basis” for interpreting the two constitutional clauses
differently. State v. Watkins, 362 S.W.3d 530, 533 (Tenn. 2012).

       The United States Supreme Court has determined that the Double Jeopardy Clause
provides protection against unfair prosecution in three circumstances: (1) protection against
a second prosecution for the same offense after acquittal; (2) protection against subsequent
prosecution for the same offense after conviction; and (3) protection against multiple

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punishments for the same offense. Ohio v. Johnson, 467 U.S. 493 (1984); North Carolina
v. Pearce, 395 U.S. 711, 717 (1969). This appeal is based on the last of these protections.

        More than eighty years ago, the United States Supreme Court established a two-part
test to analyze questions of double jeopardy involving multiple punishments, based on
separate statutes, for a single offense. Blockburger v. United States, 284 U.S. 299, 304
(1932). First, the court must determine if the offenses were part of a single continuous
incident, or if they were separate and distinct events. Id. at 302. If the court concludes that
the offenses were part of a continuous event, the court must then move to the second step of
the analysis, which is to determine legislative intent. In deciding if the legislature intended
to allow multiple punishments for the offenses charged, the court determines if each of the
separate statutory provisions requires proof that the other does not. Id. at 304 (citing Gavieres
v. United States, 220 U.S. 338 (1911)). “A single act may be an offense against two statutes;
and if each statute requires proof of an additional fact which the other does not, an acquittal
or conviction under either statute does not exempt the defendant from prosecution and
punishment under the other.” Id. (quoting Morey v. Commonwealth, 108 Mass. 433 (1871)).

        However, as the Tennessee Supreme Court noted in its decision in Watkins, the
analysis is slightly different when a defendant has been convicted of multiple violations of
the same statute during the same occurrence. Watkins, 362 S.W.3d at 543. Such cases are
called “unit-of-prosecution” claims. Id. In deciding unit-of-prosecution claims, courts must
determine “what the legislature intended to be a single unit of conduct for purposes of a
single conviction and punishment.” Id. (citing George C. Thomas III, A Unified Theory of
Multiple Punishment, 47 U. Pitt. L. Rev. 1, 11 (Fall 1985)). In doing so, courts must neither
restrict nor expand “a statute’s scope beyond that which was intended.” State v. Pendergrass,
13 S.W.3d 389, 394 (Tenn. Crim. App. 1999). Should the legislature fail to clearly delineate
multiple units-of-prosecution within a single statute, any ambiguity must be resolved in favor
of viewing the conduct as a single transaction rather than multiple offenses. State v. Desirey,
909 S.W.2d 20, 29 (Tenn. Crim. App. 1995); see Bell v. United States, 349 U.S. 81, 83-84
(1955). “To ensure that a legislature speaks with special clarity when marking the boundaries
of criminal conduct, courts must decline to impose punishments for actions that are not
plainly and unmistakably proscribed.” State v. Hawkins, 406 S.W.3d 121, 137-38 (Tenn.
2013) (quoting State v. Marshall, 319 S.W.3d 558, 563 (Tenn. 2010)).

       Assault is defined under Tennessee law, in pertinent part, as follows:

              (a) A person commits assault who:
                    (1)    Intentionally, knowingly or recklessly causes
                           bodily injury to another;



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                      (2)   Intentionally or knowingly causes another to
                            reasonably fear imminent bodily injury; or
                     (3)    Intentionally or knowingly causes physical
                            contact with another and a reasonable person
                            would regard the contact as extremely offensive
                            or provocative.
              (b)(1) Assault is a Class A misdemeanor unless the offense is
                     committed under subdivision (a)(3), in which event
                     assault is a Class B misdemeanor¼

Tenn. Code Ann. § 39-13-101 (2010). In codifying the crime of assault, the Tennessee
Legislature described assault offenses in three distinct ways in § 39-13-101(a)(1)-(a)(3). The
three subdivisions of § 39-13-101(a) each describe a different type of unlawful conduct. The
Legislature went so far as to state in § 39-23-101(b) that the offenses under § 39-13-
101(a)(1) and § 39-13-101(a)(2) carry different penalties than offenses under § 39-13-
101(a)(3).

       It seems clear to this Court that the Legislature intended to define at least three types
of assault under the statute. Each distinct type of offense may be distinguished from the
others. The construction of this statute allows for multiple offenses, and therefore, multiple
sentences under the law.

       The Appellant relies on this Court’s decision in State v. Pelayo, 881 S.W.2d 7 (Tenn.
Crim. App. 1994) to support her contention that the two assaults should have been merged.
In Pelayo, the Court examined the question of multiple convictions under the same statute
and found that “it must be clear that the offenses supporting the convictions are ‘wholly
separate and distinct.’” Id. at 10 (citing State v. Goins, 705 S.W.2d 648, 650 (Tenn. 1986)).
The Appellant claims that the only assault in the present case occurred when she struck Mr.
Lindsey.

       The State argues that the Appellant was charged with two separate counts of assault
because she committed two distinct forms of assault: the first by punching the victim in the
face and the second by causing him to reasonably fear that the Appellant might pull a gun
from her purse and shoot him. Count One was a violation of Tenn. Code Ann. § 39-13-
101(a)(1), and Count Two was a violation of Tenn. Code Ann. § 39-13-101(a)(2).

       The present case is distinguished from Pelayo because that case involved one
prolonged attack broken into two incidents “separated by a few seconds and feet.” Pelayo,
881 S.W.2d. at 13. The Pelayo Court found that “but for the victim’s attempted escape, the
multiple stab wounds would undoubtedly have occurred simultaneously.” Id. at 12-13.

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Additionally, Pelayo involved only one weapon, a kitchen knife. In the present case, the
Appellant struck Mr. Lindsey with her fist and also caused him to fear that he would be shot
with a gun that the Appellant might pull from her purse—and she did, in fact, have a gun in
her purse.

       Having examined the charging statute under the “unit-of-prosecution” standard as
outlined by the Tennessee Supreme Court in Watkins and having found sufficient reason to
hold that the Tennessee General Assembly intended for Tenn. Code Ann. § 39-13-101 to
codify different types of assaults, we conclude that the Appellant’s two convictions for
assault did not subject her to double jeopardy. The convictions breach neither the Double
Jeopardy Clause of the Fifth Amendment to the U.S. Constitution, nor article 1, section 10
of the Tennessee Constitution. The Appellant is not entitled to relief on this matter.

                              B. Sufficiency of the Evidence

       The Appellant also challenges the sufficiency of the evidence to support any
conviction in this case. She makes no claim about the sufficiency of the evidence for the
assault committed under Count Two, and she claims self-defense regarding the assault
charged under Count One.

       The applicable standard of review on appeal when the sufficiency of the convicting
evidence is challenged 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.’” State v. Parker, 350 S.W.3d 883, 903 (Tenn. 2011),
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The State is entitled to the strongest
legitimate view of the evidence and to all reasonable inferences that may be drawn from that
evidence. State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011) (citing State v. Majors, 318
S.W.3d 850, 857 (Tenn. 2010)). The standard of review is identical for both direct and
circumstantial evidence. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). A jury verdict
against the Defendant, approved by a trial judge, accredits the testimony of the State’s
witnesses and resolves all conflicts in favor of the State. State v. Williams, 657 S.W.2d 405,
410 (Tenn. 1983); State v. Hatchett, 560 S.W.2d 627, 630 (Tenn. 1978). A guilty verdict also
“removes the presumption of innocence and replaces it with a presumption of guilt, and on
appeal the Appellant has the burden of illustrating why the evidence is insufficient to support
the verdict rendered by the jury.” State v. Evans, 108 S.W.3d 231, 237 (Tenn. 2003).

       Viewed in the light most favorable to the State, the evidence shows that the Appellant
threatened to kill Mr. Lindsey and to “make his family suffer.” While maintaining a constant
barrage of threats and abuse, she actively searched through her purse. Mr. Lindsey feared that
she would pull a gun from her bag and shoot him. Sergeant Simpson later found a pistol in

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the Appellant’s purse. There is sufficient evidence for a rational jury to find that the
Appellant’s actions meet the elements of assault under Tenn. Code Ann. § 39-13-101(a)(2).

       Considering now the second assault charge, it is uncontroverted that the Appellant
struck Mr. Lindsey, causing bodily injury in violation of Tenn. Code Ann. § 39-13-101(a)(1).
The Appellant admits to punching Mr. Lindsey, and Sergeant Simpson testified that both Mr.
Lindsey and the Appellant told him she had punched the victim. Sergeant Simpson saw the
red mark that the blow made on Mr. Lindsey’s face.

        The Appellant claims, however, that she struck Mr. Lindsey in self-defense after he
tried to take her purse. She bears the burden of proving this defense on appeal. Evans, 108
S.W.3d at 237. However, the evidence does not support her assertion of self-defense.

       The section of the Tennessee Code defining self-defense states that:

              A person who is not engaged in unlawful activity and is in a
              place where the person has a right to be has no duty to retreat
              before threatening or using force against another person when
              and to the degree the person reasonably believes the force is
              immediately necessary to protect against the other’s use or
              attempted use of unlawful force.

Tenn. Code Ann. § 39-11-611(b). The Appellant’s claim of self-defense under Tennessee law
is not supported by her actions. Although she was not charged with trespassing, the Appellant
was arguably engaged in unlawful activity in a place where she had no right to be. The statute
instead validates Mr. Lindsey’s actions in taking the Appellant’s purse: The victim was
lawfully on his own property, with no duty to retreat before using whatever force he
reasonably believed necessary to protect himself from the possibility of being shot. He did
not touch the Appellant; he grabbed her purse, using only the force necessary to take it from
her, and only after she punched him.

        Assuming arguendo that Mr. Lindsey was actually trying to take the Appellant’s purse
before she hit him, the evidence shows he would have done so only because he feared for his
safety. Tenn. Code Ann. § 39-11-611(e)(2) states that the “use of force against another is not
justified if the person using force provoked the other individual’s use or attempted use of
unlawful force.” The Appellant was unjustified in hitting Mr. Lindsey because she provoked
his attempt to take her purse by leading him to think she might shoot him. The Appellant
cannot claim self-defense as a justification for her criminal actions against Mr. Lindsey.




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      Based on these facts, sufficient evidence was presented for a rational jury to infer that
the Appellant committed two separate and distinct acts of assault against Mr. Lindsey.

                                      CONCLUSION

       In consideration of the foregoing, the two convictions for assault are affirmed.




                                                    ________________________________
                                                    ROBERT L. JONES, SPECIAL JUDGE




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