         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                     May 20, 2003 Session

                 STATE OF TENNESSEE v. HOWARD DUTY, JR.

                     Appeal from the Criminal Court for Sullivan County
                             No. S45,840   R. Jerry Beck, Judge



                                 No. E2002-01772-CCA-R3-CD
                                      December 23, 2003

Convicted by a jury of assault and aggravated stalking, the defendant, Howard Duty, Jr., appeals.
In addition to claiming that his convictions are not supported by sufficient evidence, he claims it was
error for the trial court to enhance a charge of misdemeanor stalking to the felony of felony stalking.
The lower court imposed the felony stalking conviction based upon a previous conviction of stalking
that was adjudicated after the commission of the offense in the present case. Based upon our review,
we conclude that sufficient evidence supports the stalking conviction; however, the aggravation of
the stalking offense to a felony was improper. Thus, the lower court’s actions are reversed in part
and affirmed in part.

       Tenn. R. App. P. 3; Judgments of the Criminal Court are Affirmed in Part and
                                    Reversed in Part.

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which GARY R. WADE, P.J.,
and THOMAS T. WOODA LL, J., joined.

Terry L. Jordan, Blountville, Tennessee, for the Appellant, Howard Duty, Jr.

Paul G. Summers, Attorney General & Reporter; Renee W. Turner, Assistant Attorney General; H.
Greeley Wells, Jr., District Attorney General; and Todd Martin, Assistant District Attorney General,
for the Appellee, State of Tennessee.

                                             OPINION

                On November 14, 2001, the defendant was charged via presentment with stalking
James Martin from January 13, 2001, through July 1, 2001. See Tenn. Code Ann. § 39-17-315(a)(1),
(b)(1) (2003) (proscribing stalking as a misdemeanor). In the second count of the presentment, the
defendant was charged with felony stalking. See id. § 39-17-315(a)(1), (b)(2) (2003) (“A second or
subsequent violation of subsection (a) involving the same victim and occurring within seven (7)
years of the prior conviction is a Class C felony.”). In the third and final count of the presentment,
the defendant was charged with assault, specifically, “intentionally and knowingly caus[ing] another,
James Martin, to reasonably fear imminent bodily injury.” See id. § 39-13-101(a)(2) (2003) (assault
is committed by one who, inter alia, “[i]ntentionally or knowingly causes another to reasonably fear
imminent bodily injury”).

               At trial, James Martin, the victim, testified that he met the defendant in the summer
of 1998. Later a brief homosexual relationship developed, but the victim terminated the relationship.
Subsequently, the defendant began appearing in the environs of the victim’s Blountville home.

               The victim introduced videotapes made by himself and, on some occasions, by the
victim’s daughter. The videotapes were made on various days, beginning on January 13, 2001 and
concluding on July 1, 2001. The tapes and the victim’s narrative testimony showed that on January
13, 2001, the defendant parked across the street from the victim’s home and sat in his vehicle. On
a number of days throughout the presentment’s time frame, the defendant went to a middle school
outdoor basketball court located about 500 feet from the victim’s house. Typically, the defendant
would play basketball on the court for a few minutes, then drive his vehicle around a circle that
enveloped the victim’s neighborhood, and return to the school. On occasion, the defendant sat or
stood and looked toward the victim’s house. The victim testified that the defendant usually made
two or three trips to the neighborhood on each Friday evening and made five or six trips each
Saturday.

                In May, the victim was working on a utility pumping station near the chamber of
commerce office in Bristol, Tennessee. The victim began seeing the defendant standing or sitting
near the work site. On the afternoon of May 16, 2001, the victim was sitting in his truck at the work
site when the defendant “walked by and he throwed [sic] a [finger-sized] rock and hit the side of the
truck.” The victim told the defendant, “[Y]ou need to get out of here . . . go on, leave me alone.”
The defendant retreated but came back and “throwed [sic] another [small] rock – hit the side of the
truck.” The victim told him again to leave, but the defendant stepped over a small fence, picked up
then dropped a piece of wood, picked up a half of a brick, and said, “I’ll just whip your ass.” The
victim told the defendant to come on, and they “got into it,” meaning that a fist fight ensued, during
the course of which both combatants struck the other. The victim testified that he “was afraid”
during the encounter. Ultimately, the defendant left the scene.

                Additionally, the victim testified that during the months that the defendant was seen
in the victim’s neighborhood, he was afraid of the defendant because he had been assaulted on two
previous occasions.1




         1
          Although the victim’s testimony on this point strongly suggests that the defendant had assaulted the victim on
two prior occasions, the victim did not specifically say the defendant had been the one who assaulted him. The nature
of any prior assaults committed against the victim by the defendant was not imparted to the jury in the present case.
Although not of record in the case now before us, this court’s opinion in State v. Ho ward D uty, Jr., No.
E2001-03008-CCA-R3-CD (Te nn. Crim. Ap p., Knoxville, Nov. 13, 200 2), perm. app. denied (Tenn. 2003), describes
the Novembe r 4, 20 00 assault, whe rein the d efendant ram med his truck into the truck the victim was driving.

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                A police officer testified that he was familiar with the victim’s neighborhood and had
been to the defendant’s house. He traced the possible routes of travel from the defendant’s house
to the victim’s house and testified that, regardless of the route chosen, a traveler would pass two
outdoor basketball courts between the defendant’s house and the middle school outdoor court near
the victim’s house. Also, the officer testified that the defendant had a basketball goal in the gravel
driveway at his house.

               The defendant did not testify at trial.

                                  I. Sufficiency of the Evidence.

                The defendant challenges the sufficiency of the evidence supporting the assault and
felony stalking convictions. To assess the sufficiency of the convicting evidence, the appellate court
determines whether 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, 99 S. Ct. 2781, 2789 (1979);
State v. Shaw, 37 S.W.3d 900, 902-03 (Tenn. 2001); State v. Keough, 18 S.W.3d 175, 180-81 (Tenn.
2000). The appellate court affords the prosecution the strongest legitimate view of the evidence and
the benefit of all reasonable and legitimate inferences which may be drawn from the evidence, and
we defer to the trier of fact to weigh the evidence and to resolve factual issues, including credibility
issues. Shaw, 37 S.W.3d at 902-03.

                                     (A) Aggravated Stalking.

                “A person commits the offense of stalking who intentionally and repeatedly follows
or harasses another person in such a manner as would cause that person to be in reasonable fear of
being assaulted, suffering bodily injury or death.” Tenn. Code Ann. § 39-17-315(a)(1) (2003).
“‘Follows’ means maintaining a visual or physical proximity over a period of time to a specific
person in such a manner as would cause a reasonable person to have a fear of an assault, bodily
injury or death,” and “‘[h]arasses’ means a course of conduct directed at a specific person which
would cause a reasonable person to fear an assault, bodily injury, or death, including, but not limited
to, verbal threats, written threats, vandalism, or unconsented-to physical contact.” Id. § 39-17-
315(a)(2)(A), (B) (2003). “Repeatedly” refers to two or more separate occasions. Id. § 39-17-
315(a)(2)(C) (2003). Although stalking as defined above is a Class A misdemeanor, id. § 39-17-
315(b) (2003), it is a Class C felony when it is a “second or subsequent violation . . . involving the
same victim and occurring within seven (7) years of the prior conviction,” id. § 39-17-315(b)(2)
(2003). Stalking is a “continuing offense,” based upon the proscriptive statute “contemplat[ing] a
series of discrete actions amounting to a continuing course of conduct.” State v. Hoxie, 963 S.W.2d
737, 743 (Tenn. 1998).

              First, we examine the defendant’s claim that the trial court erred in using Code section
39-17-315(b)(2) to aggravate the stalking charge to a Class C felony, even though the defendant had
only a pending charge, not a conviction of misdemeanor stalking when he committed the instant
offense. See Tenn. Code Ann. § 39-17-315(b)(2) (2003) (stalking is aggravated when the offense


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is the “second or subsequent violation . . . involving the same victim and occurring within seven (7)
years of the prior conviction”). The record reflects that, in August 2001, the defendant was
convicted of stalking the victim, James Martin, on November 4, 2000. Thus, the defendant was
convicted of stalking the same victim, and the current offense occurred within seven years of the
conviction for the November 4, 2000 offense. The issue in dispute is whether the August 2001
conviction for the November 4, 2000 offense is a prior conviction.

                In support of his position that the conviction for the November 4, 2000 offense is not
a prior conviction, the defendant advances State v. Blouvett, 904 S.W.2d 111, 112-13 (Tenn. 1995),
which holds that, for purposes of establishing offender range pursuant to the sentencing law, a “prior
conviction” means that the conviction was adjudicated before the commission of the offenses for
which the defendant is currently being sentenced. Conversely, the state relies, at least in part, upon
State v. Bowen, 67 S.W.3d 826, 827 (Tenn. Crim. App. 2001), in which this court held that a second-
offense driving while under the influence (DUI) conviction may be imposed, despite that Bowen’s
first conviction occurred after the DUI offense occurred in the second case. Based upon the
differences in statutory language being construed in Blouvett and Bowen, however, we are
unconvinced that either case affords much guidance in the present case.

                Rather, we are guided by rules of statutory construction, particularly the rules that
statutory provisions should be “construed according to the fair import of their terms . . . to promote
justice[] and effect the objectives of the criminal code,” Tenn. Code Ann. § 39-11-104 (2003), and
that the reviewing court should apply the natural and ordinary meaning of the language employed,
State v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000). In the interests of promoting justice, we are
also compelled by the established rule that a criminal statute is strictly construed in favor of the
defendant. Key v. State, 563 S.W.2d 184, 188 (Tenn. 1978). Applying these rules, we construe
Code section 39-17-315(b)(2) to mean that, to be a felony, a stalking offense must have occurred not
only subsequently to a previous stalking offense but also subsequently to, and within seven years of,
the prior conviction resulting from the prior offense. Applying normal and ordinary meaning to
the language “[a] second or subsequent violation of subsection (a) . . . involving the same victim and
occurring within seven (7) years of the prior conviction,” we conclude that the legislature meant that
at least one stalking conviction must precede the subsequent offense by no more than seven years
before the subsequent offense may be prosecuted as a felony. That having not occurred in the
present case, the evidence was insufficient to establish a felony.

                As to the remainder of the elements of stalking in the light most favorable to the state,
the evidence showed that the defendant intentionally and repeatedly followed and harassed the victim
within the meaning of Code section 39-17-315. Because the victim had previously been assaulted
by the defendant, combined with the defendant’s doggedness, his threat to whip the victim, and his
brandishing a brick on May 16, 2001, the victim would reasonably be fearful of bodily injury at the
hands of the defendant. Therefore, the evidence establishes the elements of misdemeanor stalking.
The judgment of conviction of felony stalking shall be vacated, and in its place the trial court shall
enter a judgment convicting the defendant of stalking pursuant to Code section 39-17-315(a), after
which the trial court shall resentence the defendant on the misdemeanor conviction.


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                                            (B) Assault.

              Assault, as alleged in the indictment, is committed by one who “intentionally,
knowingly or recklessly causes another to reasonably fear imminent bodily injury.” Tenn. Code
Ann. § 39-13-101(a)(2) (2003).

                We need not review the sufficiency of the evidence of assault via putting the victim
in reasonable fear of imminent bodily injury because the jury acquitted the defendant of this charge.
Instead, the jury convicted the defendant of assault via extremely offensive or provocative physical
contact, based upon the trial court’s instruction that the latter offense was a lesser-included offense
of the former.

                The defendant argues that no physical contact occurred on May 16, prior to the parties
engaging in mutual combat. He assumes that, once the mutual combat commenced, he could
physically contact the victim with impunity to a charge of assault via extremely offensive or
provocative physical contact. We do not make that assumption. The evidence showed that the
defendant was the provocateur. After weeks of loitering about the victim’s home and then extending
that behavior to the victim’s work site, the defendant disobeyed a reasonable request to leave, picked
up a brick, and threatened to whip the victim. That the victim did not back down does not endue the
defendant with license to assault the victim. We conclude that the evidence authorized the jury to
convict the defendant of assault through extremely offensive physical contact had that offense been
charged.

       II. Plain Error Review of Lesser-Included Offense Instruction/Conviction.

                 This section of this opinion expresses the minority view of Judge Witt that the
conviction offense of assault was not charged in the presentment. Presiding Judge Wade and Judge
Woodall are of the view that the conviction offense of assault was charged in the presentment via
its status as a lesser included offense.

                The presentment in the case before us charged the defendant with assault via
intentionally or knowingly causing the victim to reasonably fear imminent bodily injury, a Class A
misdemeanor. Tenn. Code Ann. § 39-13-101(a)(2), (b) (2003). At trial, the court instructed the jury
to consider not only this named offense but also the offense of intentionally or knowingly causing
“physical contact with another and a reasonable person would regard the contact as extremely
offensive or provocative,” a Class B misdemeanor. See id. § 39-13-101(a)(3), (b) (2003). The trial
court treated assault via offensive or provocative contact as a lesser-included offense of assault
committed by putting the victim in reasonable fear of imminent bodily injury. See State v. Parker,
932 S.W.2d 945, 954 (Tenn. Crim. App. 1996) (indictment calls for trial on not only the named
offense but also on all lesser-included offenses of the named offense). Even though the issue has
not been raised by the parties, the appellate court must determine whether the conviction offense in
the present case was charged in the presentment; essentially, we must determine whether the
conviction offense is a lesser-included offense of the offense named in the presentment. We


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undertake this analysis pursuant to Tennessee Rule of Criminal Procedure 52(b), a provision for
examining plain error.

                 Although by the terms of Code section 39-13-101 assault via offensive or provocative
contact is a “lesser” offense than assault by putting the victim in reasonable fear of imminent bodily
injury, we must nevertheless determine whether the former is “included” in the latter. Our supreme
court has held that an offense is a lesser-included offense if:

               (a) all of its statutory elements are included within the statutory
               elements of the offense charged; or

               (b) it fails to meet the definition in part (a) only in the respect that it
                   contains a statutory element or elements establishing

                       (1) a different mental state indicating a lesser kind of
                           culpability; and/or

                       (2) a less serious harm or risk of harm to the same person,
                           property or public interest; or

               (c) it consists of

                       (1) facilitation of the offense charged or of an offense that
                           otherwise meets the definition of lesser-included offense
                           in part (a) or (b); or

                       (2) an attempt to commit the offense charged or an offense
                           that otherwise meets the definition of lesser-included
                          offense in part (a) or (b); or

                       (3) solicitation to commit the offense charged or an offense
                           that otherwise meets the definition of lesser-included
                           offense in part (a) or (b).

State v. Burns, 6 S.W.3d 453, 466-67 (Tenn. 1999).

                The undersigned discerns that, because the lesser offense contains the elements of
extremely offensive or provocative physical contact, it requires an element in addition to those
required in the greater offense. Judge Witt concludes that the lesser offense fails to satisfy any of
the parts of the Burns test for determining a lesser-included offense. As such, the Class B
misdemeanor offense of assault via offensive or provocative touching was not charged in the
presentment. Because the jury acquitted the defendant of the named charge and no other charges are



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included within the named charge, the conviction of assault should be reversed, and count three of
the presentment should be dismissed.

                It is the view of Presiding Judge Wade and Judge Woodall that the facts in this case
establish that the Class B assault falls within part (b)(2) of the Burns test. While touching another
in the manner contemplated by Tennessee Code Annotated section 39-13-101(a)(3) presents the
potential for some harm to the victim, the risk of harm is not as serious as that which is present when
the victim is threatened with immediate bodily injury as contemplated by section 39-10-101(a)(2).
Although their language might qualify as dicta, a separate panel of this court recently observed that
Class B misdemeanor assault is a lesser included offense of Class A misdemeanor assault:

       The Defendant was indicted for two counts of Class A misdemeanor assault: one
       count involving the caseworker and the other count involving the transportation
       officer. See Tenn. Code Ann. § 39-13-101(a)(2). The jury found him guilty on the
       count charging assault against the transportation officer and found him guilty of the
       lesser included offense of Class B misdemeanor assault against the caseworker. See
       Tenn. Code Ann. § 39-13-101(a)(3).

See State v. Dennis Michael Richardson, No. E2002-02675-CCA-R3-CD (Tenn. Crim. App. at
Knoxville, July 14, 2003).

               Accordingly, the assault conviction is affirmed.



                                                       ___________________________________
                                                       JAMES CURWOOD WITT, JR., JUDGE




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