        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                 March 1, 2016 Session

                STATE OF TENNESSEE v. TANYAWA SALLIE

                   Appeal from the Circuit Court for Lake County
                     No. 14-CR-9985        R. Lee Moore, Jr., Judge


               No. W2015-00427-CCA-R3-CD - Filed August 15, 2016


Defendant, Tanyawa Sallie, was indicted for the offense of cutodial interference, but a
Lake County Circuit Court jury convicted her of custodial interference with voluntary
return of the child, a Class A misdemeanor. She was sentenced by the trial court to
eleven months, twenty-nine days, with ten days to serve and the remainder of the time on
supervised probation. On appeal, Defendant challenges the sufficiency of the evidence in
support of her conviction and argues that the trial court erred in sentencing by
considering her 2004 felony conviction in an unrelated matter and by imposing an
excessive sentence. After a careful review of the record, we affirm the judgment of the
trial court.

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

THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Shantell S. Suttle, Cordova, Tennessee, for the appellant, Tanyawa Sallie.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; C. Phillip Bivens, District Attorney General; and Renee M. Creasy,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

   I.     Background

        We will refer to the minor victim by her initials, or as “the child.” On Sunday,
April 6, 2014, Defendant failed to return her five-year-old daughter, J.H., to the child‟s
father, Joseph Collins, III, at the end of her scheduled weekend visitation, in violation of
a custody order. On Tuesday, April 8, 2014, Defendant was arrested when she went to
the Lake County Juvenile Court Clerk‟s Office with J.H. seeking to file an emergency
petition for change of custody. Defendant was subsequently indicted by the Lake County
Grand Jury for custodial interference, a Class E felony, in violation of Tennessee Code
Annotated section 39-13-306.

        The State‟s first witness at Defendant‟s jury trial was Lake County Juvenile Court
Clerk Roger Shirley, who identified a certified copy of the custody order involving the
child, which was admitted as an exhibit. Mr. Shirley testified that on Monday, April 7,
2014, Defendant telephoned him about filing an emergency petition for change of
custody of the child. Because he knew Defendant was represented by counsel, he advised
her to contact her attorney. The next morning, Defendant came to his office seeking to
file an emergency petition. Defendant told him she had been unable to reach her attorney
and indicated she thought she could obtain a custody petition from the Lake County
Juvenile Court Clerk‟s Office, as in Shelby County. Mr. Shirley testified that he
explained to Defendant that Lake County did not provide custody petitions and that she
would have to have her attorney prepare the paperwork for her. He said that sometime
during the course of their conversation, Defendant informed him that J.H. was outside in
her vehicle with her two other children.

       Mr. Shirley testified that he was aware there was a pending arrest warrant for
Defendant. He, therefore, notified the sheriff‟s department that Defendant was in his
office. Sheriff‟s deputies took Defendant into custody, and Mr. Shirley went outside with
the deputies to remove Defendant‟s children from Defendant‟s vehicle. Mr. Shirley said
that Mr. Collins took custody of J.H., while Mr. Shirley kept Defendant‟s two older
children in his office until Defendant‟s family members came from Memphis to pick
them up.

       On cross-examination, Mr. Shirley acknowledged that Defendant expressed
concern about J.H.‟s safety while in the custody of Mr. Collins. He further
acknowledged that he never told Defendant that she had an outstanding arrest warrant
and that Defendant volunteered the information that J.H. was outside in her vehicle.

       Joseph Collins, III, testified that the custody order provided Defendant with
weekend visitation with J.H. on the first, third, and fifth weekends of the month, from
6:00 p.m. Friday until 6:00 p.m. Sunday. He said he, his wife, and J.H. arrived at the
parking lot of the Lauderdale County Sheriff‟s Department, the location where he and
Defendant met to exchange custody, at approximately 5:45 p.m. on Friday, April 4, 2014.
When Defendant drove up with her son and older daughter, he approached her vehicle
because there was a matter involving J.H. that he wanted to discuss with her. He told
Defendant‟s son to let Defendant know that he wanted to speak with her, but Defendant‟s
son said, “[N]o.” Defendant went into the police station, and Mr. Collins followed her.
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Defendant, however, started complaining to the police officers that Mr. Collins had been
drinking and was harassing her, so he left.

       Mr. Collins testified that some officers followed him out of the building, and one
of them asked if he smelled beer on his breath. He said he answered no and volunteered
to take a breathalyzer test, but the officer said nothing else to him. Mr. Collins stated
that he had not been drinking and was not under the influence of any intoxicant.
However, to avoid any further conflict, he got into the passenger seat of his vehicle and
his wife moved to the driver‟s seat. Mr. Collins testified that J.H. left with Defendant
without his ever having the opportunity to talk with Defendant about the issue he had
wanted to discuss.

       Mr. Collins testified that he arrived at the parking lot to pick up the child at 5:45
p.m. on Sunday, but left at 6:15 or 6:20 p.m. after a Lauderdale police officer informed
him that Defendant had called to tell the police she would not be returning J.H. because
Mr. Collins did not have a driver‟s license. On Tuesday or Wednesday of that same
week, he received a telephone call from the Tiptonville Police Department informing him
that his daughter was possibly at the courthouse. When he arrived, he found J.H.
standing outside a white Jeep. Mr. Collins testified that he had a valid driver‟s license
on April 4, 2014.

       On cross-examination, Mr. Collins acknowledged that he took three prescription
medications each morning and two at night, but denied that any of his medications
contained warnings against driving. He testified that he drank alcohol but only a
“[c]ouple of beer [sic] at night.” He denied that he had any recent DUIs, testifying that
his DUI was “about eight years ago.”

        Leonora Collins, Mr. Collins‟ wife, testified that when Mr. Collins approached
Defendant‟s vehicle on Friday, April 4, and told Defendant‟s son that Mr. Collins wanted
to talk to Defendant, Defendant rolled down her window and told her son not to talk to
Mr. Collins and to get the police. Defendant then exited the vehicle and went into the
police station followed by Mr. Collins. Approximately ten to fifteen minutes later,
Defendant, Mr. Collins, and one or two police officers came outside. Mrs. Collins
testified that she could tell from the tone of their voices that “the conversations [sic]
wasn‟t going too great” so she got out of the passenger side of the vehicle, let J.H. out of
the car, and told Mr. Collins that they should leave. She said one of the officers was
“insisting that [Mr. Collins] had been drinking,” but Mr. Collins had not, to her
knowledge, been drinking that day and did not appear to her to be intoxicated.

       Mrs. Collins testified that Defendant failed to show when they returned to pick up
J.H. on Sunday evening and never communicated directly with them to let them know she
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was not bringing the child back. On cross-examination, she testified that Mr. Collins had
not had a recent DUI.

       The State‟s final witness, Deputy Robert Perkins of the Lake County Sheriff‟s
Department, testified that he took out an arrest warrant for Defendant based on the events
of the April 4-6, 2014 weekend visitation and arrested Defendant in Mr. Shirley‟s office.
After Defendant was in custody, she accompanied them outside and instructed her
teenaged children to open the door to her vehicle and let J.H. out. On cross-examination,
Deputy Perkins testified that he took out the arrest warrant on the same morning of
Defendant‟s arrest. He said he did not know whether Defendant was already in Mr.
Shirley‟s office at the time the warrant was being prepared.

       Defendant testified that the incident that Mr. and Mrs. Collins described in their
testimony did not occur during the April 4 exchange of custody, but during the previous
custody exchange in March. She said that on that earlier date, Mr. Collins wanted to
speak to her, but she refused because he was “very rude” and calling her names. She
stated that Mr. Collins told her seventeen-year-old son, who had gotten out of her car to
receive J.H., that he would not allow Defendant to have her weekend visitation if
Defendant refused to talk to him. Defendant testified that she responded by getting out of
her vehicle and going into the police station. She said that Mr. Collins ran after her and
that they arrived at the door at about the same time. Mr. Collins shoved her, and she
shoved him back. Mr. Collins then began yelling to the police officers that she had hit
him. Defendant testified that Mr. Collins was staggering and appeared to her to be
intoxicated, which caused her concern about J.H.‟s welfare because she knew that Mr.
Collins had at least two prior DUIs.

       Defendant testified that Mr. Collins once again appeared to be intoxicated, with a
staggering gait and slurred speech, when he showed up with J.H. for the April 4 weekend
custody exchange. This time, however, he was not accompanied by his wife. Defendant
said she did not return J.H. at the end of the weekend visitation out of concern for her
safety, testifying that, in addition to Mr. Collins‟ prior DUIs, she was also aware that he
had been involved in a recent automobile accident in which his vehicle had flipped three
times. She stated that she contacted the court “first thing” on Monday morning to voice
her concerns and was instructed by Mr. Shirley to come to court to file a petition. When
she showed up the next day, Mr. Shirley told her there was no petition for her to file. He
then stepped out of the room and returned with the officers, who took her into custody.
Defendant testified that no one ever asked her to get J.H. from the vehicle before she was
arrested.

       On cross-examination, Defendant insisted that her recollection was correct that the
incident described by Mr. and Mrs. Collins occurred in late March rather than April. She
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acknowledged she did not file an emergency custody petition following that March
incident but said she had called the Department of Children‟s Services to report it. She
also stated that she called dispatch at 4:00 p.m. on Sunday, April 6, to let them know she
would not be returning J.H. and later that same day went to the justice center to file a
report.

       Courtney Little, Defendant‟s son, testified that during the custody exchange on the
Friday that preceded Defendant‟s arrest, he got out of Defendant‟s vehicle to get J.H., but
Mr. Collins refused to turn her over, telling him that he wanted to talk to Defendant.
Defendant did not want to talk to Mr. Collins, however, so Mr. Little went inside to get
the sheriff. Mr. Little described Mr. Collins as appearing “kind of intoxicated,” testifying
that “[h]is words were kind of slurred and his gestures.” He said he recalled nothing
about the prior weekend custody exchange.

       After deliberating, the jury convicted Defendant of the lesser-included offense of
custodial interference with voluntary return of the child, a Class A misdemeanor.

                                            ANALYSIS

   I.      Sufficiency of the Evidence

        Defendant first contends that the evidence is insufficient to support her conviction.

       When an appellant challenges the sufficiency of the convicting evidence, the
standard for review by an appellate 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); Tenn. R. App. P. 13(e). The State is entitled to the strongest
legitimate view of the evidence and all reasonable or legitimate inferences which may be
drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions
concerning the credibility of witnesses and the weight and value to be afforded the
evidence, as well as all factual issues raised by the evidence, are resolved by the trier of
fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This court will not reweigh or
reevaluate the evidence, nor will this court substitute its inferences drawn from the
circumstantial evidence for those inferences drawn by the jury. Id. Because a jury
conviction removes the presumption of innocence with which a defendant is initially
cloaked at trial and replaces it on appeal with one of guilt, a convicted defendant has the
burden of demonstrating to this court that the evidence is insufficient. State v. Tuggle,
639 S.W.2d 913, 914 (Tenn. 1982). “The standard of review „is the same whether the
conviction is based upon direct or circumstantial evidence.‟” State v. Dorantes, 331

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S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)).

      Tennessee Code Annotated section 39-13-306 provides in pertinent part:

             (a) It is the offense of custodial interference for a natural or adoptive
      parent . . . of a child younger than eighteen (18) years of age to:

             ....

              (2) Detain the child within this state . . . after the expiration of the
      noncustodial natural or adoptive parent or guardian‟s lawful period of
      visitation, with the intent to violate . . . a temporary or permanent judgment
      or a court order[.]

             ....

             (c) It is a defense to custodial interference:

              (1) That the person who removed the child . . . reasonably believed
      that, at the time the child . . . was removed, the failure to remove the child .
      . . would have resulted in a clear and present danger to the health, safety, or
      welfare of the child . . . ; or

              (2) That the individual detained or moved . . . was returned by the
      defendant voluntarily and before arrest or the issuance of a warrant for
      arrest.

             ....

            (e) Custodial interference is a Class E felony, unless the person
      taken from lawful custody is returned voluntarily by the defendant, in
      which case custodial interference is a Class A misdemeanor.

Tenn. Code Ann. § 39-13-306(a)(2), (c), (e) (2014).

       Defendant argues that the evidence showed that she had “legitimate concerns
about her child and was only trying to protect her and not to detain the child in [an]
attempt to violate the Court‟s Order.” The State argues that there was ample evidence to
sustain the conviction. We agree with the State.

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       In a light most favorable to the State, the evidence shows that Defendant
intentionally violated the custody order by not returning the child at the end of her
scheduled weekend visitation. As the State points out, the trial court, over the State‟s
objection, instructed the jury as to both statutory defenses to the offense of custodial
interference. By convicting Defendant of the lesser included offense of custodial
interference with voluntary return of the child, the jury obviously found neither defense
applicable under the facts but that Defendant was entitled to credit for having voluntarily
returned the child following her arrest. We conclude that the evidence is sufficient to
support Defendant‟s conviction.

   II.      Sentencing

        Defendant‟s remaining issues relate to sentencing. Defendant argues that the trial
court erred by: considering evidence of an old felony conviction, which was “not relevant
to the issue” and whose “probative value [was] substantially outweighed by the danger of
unfair prejudice”; and by imposing an excessive sentence under the circumstances of the
case, where Defendant “expressed legitimate concerns . . . for the safety and well-being
of her child” and there was no evidence that Defendant was an habitual criminal or had
constant contact with the criminal justice system.

       As an initial matter, we agree with the State that Defendant has waived
consideration of her sentencing issues by her failure to include the transcript of the
sentencing hearing in the appellate record. See Tenn. R. App. P. 24(b) (“[T]he appellant
shall have prepared a transcript of such part of the evidence or proceedings as is
necessary to convey a fair, accurate and complete account of what transpired with respect
to those issues that are the bases of appeal.”); State v. Troutman, 979 S.W.2d 271, 274
(Tenn. 1998); State v. Ballard, 855 S.W.2d 557, 560-61 (Tenn. 1993).

        We further agree that, regardless of waiver, Defendant would not be entitled to
relief on the basis of these issues. Trial courts are granted great discretion and flexibility
in misdemeanor sentencing determinations, see Troutman, 979 S.W.2d at 273, and it is
proper for the court to consider a defendant‟s entire criminal history in determining an
appropriate sentence. See Tenn. Code Ann. § 40-35-114(1).

                                       CONCLUSION

         For the foregoing reasons, the judgment of the trial court is affirmed.


                                     ___________________________________________
                                     THOMAS T. WOODALL, PRESIDING JUDGE
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