         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                 September 16, 2003 Session

            STATE OF TENNESSEE v. LESTER ARNOLD CLOUSE

                      Appeal from the Criminal Court for White County
                           No. 00686B     Lillie Ann Sells, Judge



                   No. M2002-00124-CCA-R3-CD - Filed January 30, 2004


The Appellant, Lester Arnold Clouse, was convicted by a White County jury of five counts of setting
fire to land, two counts of aggravated assault, and one count of resisting arrest. These convictions
resulted in an effective sentence of twenty-one years, eleven months, and twenty-nine days. On
appeal, Clouse raises three issues for our review: (1) whether the evidence was sufficient to convict
him of setting fire to land and aggravated assault; (2) whether the trial court erred by denying his
motion for a mistrial after a co-defendant invoked his Fifth Amendment privilege and testified before
the jury that he had been threatened; and (3) whether the jury instruction regarding circumstantial
evidence was proper. After review of the record, we conclude that the errors resulting from the co-
defendant’s invocation of his Fifth Amendment privilege at trial affected the jury’s verdict.
Accordingly, we reverse the judgment of the trial court and remand the case for a new trial.

 Tenn. R. App. P. 3; Judgment of the Criminal Court Reversed; Remanded for New Trial.

DAVID G. HAYES , J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JOHN
EVERETT WILLIAMS, JJ., joined.

John E. Appman, Jamestown, Tennessee, for the Appellant, Lester Arnold Clouse.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Helena Walton
Yarbrough, Assistant Attorney General; Tom P. Thompson, Jr., District Attorney General, Pro Tem;
and Howard Chambers, Assistant District Attorney General, for the Appellee, State of Tennessee.


                                            OPINION

                                       Factual Background

        On October 26, 1999, numerous fires were set along the edge of public roads in four
Tennessee counties, including White County. The White County Sheriff’s Department received
several calls from landowners reporting that a small suspicious black car was seen in an area of
White County where fires were occurring. One witness specifically identified the Appellant as the
passenger in “a small black compact type car.” As this witness turned and looked in the direction
the car had come from, she noticed a fire on the right-hand side of the road. Just as the car crested
the hill and disappeared, she noticed another fire along the side of the road.

        Because of the reports made to both Putnam and White County Sheriffs’ Departments,
several law enforcement officers were patrolling the area searching for a small dark car. David
Gibbons, a Putnam County deputy sheriff, spotted the car and initiated a traffic stop. While Gibbons
was checking the license of the driver, Deputy Bill Harris arrived, and the two deputies walked back
towards the car. The Appellant and the driver of the car, Michael Shane Carter, were standing
outside the vehicle. Deputy Gibbons proceeded to place Carter under arrest pursuant to an
outstanding capias he discovered when checking his license. Upon attempting to conduct a security
search of the Appellant, he refused to put his hands on top of the car, insisting that he had done
nothing wrong. Despite instructions to the contrary, the Appellant kept reaching into the backseat
area of the car where a crossbow and arrows were located. Deputy Harris reached out to stop the
Appellant by grabbing his arm, but the Appellant jerked away and retreated to the front of the
vehicle. He then reached into his pocket, removed a pocket knife and opened the blade. He
proceeded to wave the knife at the deputies, while ordering them to stay away. The deputies tried
to calm the Appellant, but he began running down the road and eventually into a field. The
Appellant repeatedly stopped and ordered the deputies to stay back. The deputies were pursuing the
Appellant with their weapons drawn. At one point, the Appellant pulled a cell phone from his
pocket and called his mother, telling her that the officers were trying to kill him. Eventually other
deputies arrived, and the Appellant was subdued with pepper spray and taken into custody.

        On September 12, 2000, a White County grand jury returned two indictments against the
Appellant charging him with two counts of aggravated assault and two counts of resisting arrest. A
second multi-count indictment was subsequently returned charging the Appellant with seventeen
counts of setting fire to land. These indictments were later consolidated. The Appellant’s trial began
October 3, 2001. At the conclusion of its proof, the State dismissed twelve counts of setting fire
to land and one count of resisting arrest. The jury convicted the Appellant of the remaining five
counts of setting fire to land, two counts of aggravated assault, and one count of resisting arrest. The
Appellant was subsequently ordered to serve an effective sentence of twenty-one years, eleven
months, and twenty-nine days. The Appellant’s motion for new trial was denied on August 27, 2002,
with this appeal following.

1. Sufficiency of the Evidence

        On appeal, the Appellant asserts that the evidence presented at trial was insufficient to
support his convictions for setting fire to land and for aggravated assault. He does not challenge his
conviction for resisting arrest. In considering this issue, we apply the rule that, where the sufficiency
of the evidence is challenged, the relevant question for the reviewing court is “whether, after viewing
the evidence in the light most favorable to the [State], 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,


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99 S. Ct. 2781, 2789 (1979); see also Tenn. R. App. P. 13(e). Moreover, the State is entitled to the
strongest legitimate view of the evidence and all reasonable inferences which may be drawn
therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). All questions involving the credibility
of witnesses, the weight and value to be given the evidence, and all factual issues are resolved by the
trier of fact. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). This court will not
reweigh or reevaluate the evidence presented. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

       “A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the
witnesses for the State and resolves all conflicts in favor of the theory of the State.” State v. Grace,
493 S.W.2d 474, 476 (Tenn. 1973). A jury conviction removes the presumption of innocence with
which a defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a convicted
defendant has the burden of demonstrating that the evidence is insufficient. State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982). These rules are applicable to findings of guilt predicated upon direct
evidence, circumstantial evidence, or a combination of both. State v. Matthews, 805 S.W.2d 776,
779 (Tenn. Crim. App. 1990).

        Although a conviction may be based entirely upon circumstantial evidence, Duchac v. State,
505 S.W.2d 237, 241 (Tenn. 1974), in such cases, the facts must be “so clearly interwoven and
connected that the finger of guilt is pointed unerringly at the Defendant and the Defendant alone.”
State v. Black, 815 S.W.2d 166, 175 (Tenn. 1991) (citing State v. Duncan, 698 S.W.2d 63 (Tenn.
1985)). However, as in the case of direct evidence, the weight to be given circumstantial evidence
and “[t]he inferences to be drawn from such evidence, and the extent to which the circumstances are
consistent with guilt and inconsistent with innocence, are questions primarily for the jury.” Marable
v. State, 313 S.W.2d 451, 457 (Tenn. 1958) (citations omitted).

a. Setting Fire to Land

        Before an accused can be convicted of setting fire to personal property or land, the State must
prove beyond a reasonable doubt that the accused “knowingly damage[d] any personal property,
land, or other property . . . by means of a fire or explosion: (1) [w]ithout the consent of all persons
who have a possessory or proprietary interest therein; or (2) [w]ith intent to destroy or damage any
such property for any unlawful purpose.” Tenn. Code Ann. § 39-14-303(a) (2003).

         The Appellant argues there is “no proof” that he set the fires for which he was convicted.
He asserts that the only evidence presented was witness testimony regarding a small dark car in the
area and that the Appellant was seen and later arrested in a small black car. While we cannot agree
with the Appellant’s assertion that “no proof” supports his convictions, a careful review of the
evidence in the record reveals that the State’s proof against the Appellant is wholly circumstantial
as is often the case in the crime of arson.

       There is no dispute that the State proved beyond a reasonable doubt that, on October 26,
1999, several fires were set along a roadway in White County. The landowners each testified
regarding the fires, the damages done to their land, and that no consent had been given to start a fire.


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The Appellant challenges only the proof regarding his identity as the perpetrator of the crimes. The
circumstantial proof presented by the State established that several witnesses in the area reported
seeing a small dark colored car in the area where the fires were set. Testimony established that the
car was being driven “ridiculously slowly” and was suspicious. A principal witness identified the
Appellant as the passenger in a small dark car, which passed her home. Her attention was directed
to the car after one of the occupants of the vehicle “yelled something out the window.” This witness,
who was retired from law enforcement, observed fires alongside the road, both in the direction from
which the car had come and, after passing her house, the direction in which the car left. Both fires
were on the passenger side of the car. Eventually deputies stopped a small black car in the area. The
Appellant was a passenger in that car. When deputies attempted to question the Appellant, he
confronted them with a knife and fled. Viewing this evidence in the light most favorable to the
State, we conclude that the circumstantial evidence in this case is sufficient to support the jury’s
verdict that the Appellant knowingly set the fires as charged in the indictment.

b. Aggravated Assault

        The Appellant also challenges his convictions for aggravated assault against Deputies
Gibbons and Harris. He asserts that there is “no evidence that [he] intentionally or knowingly caused
the officers to reasonably fear imminent bodily injury.” This is because, according to the testimony
of the officers, “[he] ran from them,” or as one described it, “[h]e back-peddled down the road.”

        To sustain convictions of aggravated assault under the facts of this case, the State was
required to prove that the Appellant “[i]ntentionally or knowingly cause[d] another to reasonably fear
imminent bodily injury” by the use or display of a deadly weapon. Tenn. Code Ann. § 39-13-
101(a)(2), -102(a)(1)(B) (2003). After review of the record, we conclude that the evidence is
sufficient to establish these elements.

        Both Deputies testified that the Appellant pulled a knife from his pocket and brandished it
at them. The Appellant was irate and refused to put the knife down despite repeated requests from
the deputies. Deputy Harris testified that, despite having their guns drawn, it was possible for the
Appellant to strike them before they could shoot him. Each deputy testified that he feared imminent
bodily injury.

        The Appellant does not dispute the fact that he displayed a knife to the deputies. He only
asserts that their fear of imminent bodily injury was unreasonable in light of the fact that their
weapons were drawn and he was running from them. We find this argument without merit. After
listening to the testimony, the jury obviously accredited the testimony of the deputies. We conclude
that the proof was legally sufficient to support the convictions.




                                                 -4-
2. Co-defendant’s Invocation of Fifth Amendment Privilege

        The Appellant next asserts that the trial court erred in refusing to grant a mistrial based upon
prosecutorial misconduct.1 The alleged misconduct resulted from the State’s action in improperly
calling the co-defendant as a witness and in improperly eliciting testimony before the jury. The
following pertinent colloquy occurred during direct examination:

         [STATE]   Mr. Carter, You’re a co-defendant in this case are you not?
         [CARTER]  Yes.
         [STATE]   . . . Mr. Carter, were you the person that Officer
                   Givens (sic)2 stopped out in White County?
         [CARTER] Yes Sir.
         [STATE]   And who was with you?
         [CARTER] Mr. Clouse.
         [STATE]:  Now if I could, you indicated to me earlier that you didn’t want to
                   testify today?
         [CARTER]: No, I don’t.
         [STATE]:  And why don’t you?
         [CARTER]: Because I fear for mine and my families life.
         [DEFENSE COUNSEL]: Your Honor, we object.

         At this point, the jury was excused, and the trial court directed the State to examine the
witness regarding the alleged threat to himself and his family. 3 Following this jury-out examination,
the trial court instructed that the co-defendant’s attorney be contacted and discuss this matter with
his client. The trial court then advised defense counsel and the prosecutor that the co-defendant
would be recalled to the witness stand. At this point, defense counsel moved for mistrial. The trial
court advised that the motion for mistrial would be taken under advisement and that perhaps special
instructions would be given.4 Upon the jury’s return to the courtroom, the jury was informed by the
trial judge that the co-defendant was talking to his attorney and that he would be recalled to the stand
later. Before being called for a second time, the co-defendant, with counsel present, advised the trial


         1
           Although the Ap pellant raises the errors stemm ing from the co-defendant’s Fifth Am endment assertion within
the context of his right to a mistrial, we find these alleged errors are more appropriately reviewed under the guidelines
of controlling case law decisions discussed within this section. We note, however, that the end result would be the same,
i.e., whether the erro r was ha rmless or prejudicial.

         2
          Througho ut the trial transcript, the name of Officer David G ibbo ns is used intercha ngeably as O fficer David
Givens. Th is is true with o ther witnesses' names, i.e., Officer Harris (O fficer Parrish). Efforts to reconc ile these
inconsistencies constitute a waste of judicial resources and could easily be remedied by having the witness spell his or
her name for the record at the trial level.

         3
          During the jury-o ut voir d ire, Carter indicated that he an d me mbe rs of his fam ily had received anonymous
phone calls and a letter stating “if you show up in court and testify, you die.”

         4
             The record reflects that no ruling was even entered at trial upon the motion.

                                                            -5-
court, outside the jury’s presence, that he would be invoking his Fifth Amendment right not to
testify. Notwithstanding, the trial court directed that the witness would be required to testify before
the jury “so that they can hear the fact that he’s taken the Fifth.” In compliance, the co-defendant
was recalled and, in the jury’s presence, invoked his Fifth Amendment right. At this point the
witness was excused.

        We began our review of this issue by first noting that there is no prosecution or defense right
to have a witness claim under oath their Fifth Amendment privilege in the presence of the jury. See
State v. Dicks, 615 S.W.2d 126, 129 (Tenn. 1981) (citing United States v. Johnson, 488 F.2d 1206,
1211 (1st Cir. 1973)). Indeed, “[w]here the government has sufficient reason to believe that a witness
may invoke his or her Fifth Amendment rights in response to questioning, the better practice requires
that the prosecutor so inform the court, thus allowing for a voir dire to be conducted out of the
presence of the jury to determine ‘reliably that the witness will claim the privilege and the extent and
validity of the claim.’” United States v. Victor, 973 F.2d 975, 979 (1st Cir. 1992) (citing United
States v. Johnson, 488 F.2d 1206, 1211 (1st Cir. 1973)). However, not every failure to follow this
procedure constitutes reversible error. Id. Nonetheless, the prosecutor “may not deliberately call
a witness closely identified with the defendant, knowing that the witness will assert his right to
remain silent.” Busby v. Holt, 781 F.2d 1475, 1477 (11th Cir. 1986).5 The rational for calling the
witness outside the jury’s presence is clear.

          When a witness claims his privilege, a natural, and indeed almost inevitable,
          inference arises as to what would have been his answer if he had not refused. If the
          prosecution knows when it puts the question that he will claim the privilege, it is
          charged with notice of the probable effect of his refusal upon the jury’s mind. . . .
          [I]t is clear, not only that the presumed answer has not the sanction of an oath, but
          what is even more important - that the accused cannot cross-examine. If they once
          do get before the jury, there arises, as we have said, a strong probability that they will
          be taken as evidentiary.

United States v. Ritz, 548 F.2d 510, 519 (5th Cir. 1977) (citing United States v. Maloney, 262 F.2d
535 (2nd Cir. 1959)).

     To determine whether reversible error results from a witness’ assertion of his or her Fifth
Amendment rights in the presence of the jury, courts must conduct two distinct inquires:

          First, . . . error may result from prosecutorial misconduct when the government
          makes a conscious and flagrant’ attempt to build its case out of inferences arising
          from the witness’ assertion of the Fifth Amendment privilege. . . . [Second], . . . in
          the circumstances of a given case, reversible error may be committed where


          5
           A prosecuto r should not call a witness in the presence of the jury who the pro secuto r knows will claim a valid
privilege not to testify. S T A N D AR D R E LA T IN G T O THE P ROSECUTION AND THE D EFENSE F U N C T IO N § 3-57(c) (ABA Project
on Standards for Criminal Justice, Approved D raft 1971).

                                                               -6-
       inferences from a witness’ refusal to answer add critical weight to the prosecution’s
       case.

Zeigler v. Callahan, 659 F.2d 254, 271-72 (1st Cir. 1981) (citing Namet v. United States, 373 U.S.
179, 186-87, 83 S. Ct. 1151, 1154-55 (1963)) (internal citations omitted). In State v. Maraschello,
88 S.W.3d 586, 608 (Tenn. Crim. App. 2000), this court, in its adoption of Namet, observed:

       The two factors articulated above have subsequently been referred to as the ‘Namet
       test.’ See, e.g. United States v. Victor, 973 F.2d 975, 979 (1st Cir. 1992). In applying
       this ‘test,’ courts more specifically consider (1) the prosecutor’s intent in calling the
       witness; (2) the number of questions which elicit an assertion of the privilege; (3)
       whether either side attempted to draw adverse inferences, in closing argument or at
       any time during trial, from the witness’ refusal to testify; (4) whether the inferences
       relate to central issues or collateral matters; (5) whether the inferences constitute the
       only evidence bearing upon the issue or are cumulative of other evidence; and (6)
       whether the trial court provided curative instructions. Id.; United States v. Crozier,
       987 F. 2d 893, 901 (2nd Cir. 1993).

In applying the above factors to this case, the prosecutor did not inform the trial court of the witness’
intent to assert his Fifth Amendment privilege. Even more troubling, the prosecutor, knowing that
the witness did not want to testify because of threats, specifically elicited this response from the
witness in the jury’s presence. Additionally, invocation of the Fifth Amendment privilege terminated
the Appellant’s constitutional right to confront and cross-examine the witness.

        Clearly, the witness’ testimony of fear and his refusal to answer any further questions could
be imputed by a rational juror to the Appellant's actions. Knowing beforehand the witness’ desire
not to testify and his reasons therefor, we can reach no conclusion other than that the prosecutor
actions were intentional. Furthermore, improperly calling the co-defendant as a witness was further
compounded by the prosecutor’s comments in opening statement that the jury would hear testimony
from the co-defendant “as to what happened.” This statement clearly permitted the inference that
the co-defendant was a cooperative witness and would be assisting the State in its prosecution of the
Appellant. With regard to factor (4), we conclude that the witness’ testimony of fear relates to the
charge of aggravated assault, i.e., whether the deputies reasonably feared bodily injury. Finally, with
regard to factor (6), no curative instructions were provided to the jury by the trial court.

        Based upon the foregoing reasons, we conclude that the trial court erred in permitting the
witness to invoke his Fifth Amendment right before the jury on two separate occasions and that the
prosecutor’s action in deliberately eliciting improper testimony was highly prejudicial. Although
we have previously concluded that the evidence was sufficient to support the convictions, the State’s
proof with regard to setting fire to land was wholly circumstantial in nature. Moreover, we would
not characterize the proof as overwhelming. We are unable to conclude that the errors at trial did
not affect the jury’s verdict. Based upon these facts, we find reversible error.



                                                  -7-
3. Jury Instruction on Circumstantial Evidence

       As his final issue, the Appellant argues that the trial court’s instruction regarding
circumstantial evidence “negate[d] the requirement that all elements necessary for a conviction must
be proven beyond a reasonable doubt.” The challenged instruction was given as follows:

       A Defendant may be convicted on direct evidence, circumstantial evidence or a
       combination of both. When the evidence is entirely circumstantial, then this jury
       would be justified in finding the defendant guilty. You must find that all the essential
       facts are consistent with your theory of guilt and the facts must exclude every other
       reasonable theory except that of guilt.

We note initially that the Appellant did not object to the instruction at the time it was given.

        Under Tennessee’s Constitution, a defendant has a right to a correct and complete charge of
the law, so that each issue of fact raised by the evidence will be submitted to the jury on proper
instructions. State v. Garrison, 40 S.W.3d 426, 432 (Tenn. 2000). In evaluating claims of error in
jury instructions, courts must remember that “jurors do not sit in solitary isolation booths parsing
instructions for subtle shades of meaning.” State v. Vann, 976 S.W.2d 93, 101 (Tenn. 1998) (quoting
Boyde v. California, 494 U.S. 370, 380-81, 110 S. Ct. 1190, 1198 (1990)). Therefore, we review
each jury instruction to determine if it fairly defined the legal issue involved and did not mislead the
jury. State v. Hall, 958 S.W.2d 679, 696 (Tenn. 1997).

        The instruction submitted to the jury regarding circumstantial evidence is the verbatim
instruction contained in the Tennessee Criminal Pattern Jury Instructions, 42.03, and is an accurate
statement of the law regarding circumstantial evidence. State v. Bane, 853 S.W.2d 483, 487-88; see
also State v. Gregory Lance, No. M2001-02507-CCA-R3-CD (Tenn. Crim. App. at Nashville, Apr.
28, 2003). Additionally, we note that, on several occasions, the trial court instructed the jury that
the elements of the crimes had to be established beyond a reasonable doubt. The instructions
completely and correctly charged the jury on the law applicable to this case. This issue is without
merit.

                                          CONCLUSION

      Based upon our conclusion that the errors committed at trial affected the jury’s verdict, the
judgments of conviction are reversed and vacated, and this case is remanded for retrial.




                                                        ___________________________________
                                                        DAVID G. HAYES, JUDGE


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