        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                               October 13, 2015 Session

               STATE OF TENNESSEE v. RODNEY STEPHENS

                Appeal from the Criminal Court for Campbell County
                        No. 15,070 E. Shayne Sexton, Judge


                No. E2014-02514-CCA-R3-CD – Filed January 6, 2016


The Defendant, Rodney Stephens, was convicted by a Campbell County Criminal Court
jury of aggravated stalking. T.C.A. § 39-17-315(c)(1)(E) (2010) (amended 2012). The
court sentenced the Defendant to three years, with sixty days‟ confinement and the
remainder to be served on probation. On appeal, the Defendant contends that (1) the trial
court erred in allowing the trial to proceed despite the absence of a police officer and (2)
the evidence is insufficient to support the conviction. We modify the judgment of
conviction for aggravated stalking to one for misdemeanor stalking, and we remand the
case for sentencing and entry of a judgment of conviction for misdemeanor stalking.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed as
                            Modified; Case Remanded

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., J., joined. TIMOTHY L. EASTER, J., filed a dissenting opinion.

Michael G. Hatmaker, Jacksboro, Tennessee, for the appellant, Rodney Stephens.

Herbert H. Slatery III, Attorney General and Reporter; Ahmed A. Safeeullah, Assistant
Attorney General; William Paul Phillips, District Attorney General; Leif E. Jeffers,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

       The Defendant‟s conviction relates to conduct directed at his wife, from whom he
was separated at the time of the relevant events. At the trial, Jessica Stephens testified
that she and the Defendant were in the process of divorcing and that they were separated
on August 19, 2010. She said that at about 9:00 p.m. on August 19, she was seated in her
car in a parking lot while waiting for a pizza order and was opening a greeting card
envelope when the Defendant banged on her car‟s window and jerked open the door. She
said the Defendant pinned her throat against the car seat with his forearm and “started
snatching” at the card. She said his physical restraint of her hurt. She stated that the
Defendant “said a lot of things” but that she could not remember some of them two and
one-half years later. She said that the Defendant‟s behavior was erratic and that she was
scared. She said that when headlights from another car hit her car, the Defendant
released her and that she was able to close her car door and drive away. She said she
called 9-1-1 as she left.

       Ms. Stephens testified that she drove to a convenience store and went inside. She
said she went into the store to make a purchase and that the Defendant came into the store
“screaming and yelling and . . . threatening[.]” She said a store employee made the
Defendant go outside. She said that the police arrived one or two minutes after she did
and that they knew where she was because she had remained on her cell phone with 9-1-
1. The police arrested the Defendant. Ms. Stephens said she talked to a police officer but
did not know his name. She said that although she had been on her way to work when
the incident occurred, she did not go after the incident because she was scared. She
acknowledged that in the application she completed to obtain an order of protection, she
had said fifteen minutes elapsed between her leaving the location where the Defendant
opened her car door and restrained her and his arrival at the convenience store. She
acknowledged she did not state in the application that the Defendant banged on her car
door.

       Ms. Stephens testified that on the morning of August 20, 2010, she obtained an
order of protection against the Defendant. She said the sheriff‟s department called and
advised her that the Defendant was being released from jail and that he had been served
with the order of protection. She identified the paperwork she completed to obtain the
order. An exhibit was received, which consisted of three documents: (1) an untitled
form completed by Ms. Stephens requesting an order of protection; (2) a Petition for
Orders of Protection, which was signed by Ms. Stephens on August 20 and served on the
Defendant at 10:10 a.m. on August 20 by Officer David Goin; and (3) an Ex Parte Order
of Protection signed by a judge on August 20, which contained a blank return of service.
Ms. Stephens acknowledged that the return of service on the Ex Parte Order of Protection
was unsigned.

       Ms. Stephens testified that about two hours after the Defendant was released from
jail on August 20, she and her father were traveling to her house when they saw the
Defendant and the Defendant‟s mother in a vehicle on the road. Ms. Stephens said the
Defendant‟s mother was driving. Ms. Stephens said the Defendant and his mother turned
around and followed her and her father. Ms. Stephens said that at one point, the
Defendant and his mother drove around the vehicle in which Ms. Stephens was traveling

                                           -2-
and attempted to block them. Ms. Stephens said the Defendant and his mother drove
through a church parking lot and attempted to block her and her father. She said she was
surprised to see the Defendant because he was not supposed to have contact with her or
her children. Ms. Stephens said she and her father drove around a church at which a 9-1-
1 dispatcher told her to stay near until the sheriff‟s department could respond. She said
the sheriff‟s department found the Defendant and his mother near the church. Ms.
Stephens said neither vehicle stopped during the encounter.

       Ms. Stephens testified that her next contact with the Defendant was around
September 1, 2010, at a Verizon store. She said she was inside paying her cell phone bill
when she heard a banging noise and saw the Defendant hitting the window and telling her
to come outside. She said that the store‟s personnel allowed her to go into the back of the
store and that Jeff McMann, whom she began dating in approximately October 2010,
walked outside. She said a store employee called 9-1-1. She said the Defendant sat in
his truck until the police arrived. She said the police arrived quickly, and she thought
they arrested the Defendant. She said no physical contact occurred between herself and
the Defendant during this incident.

       Ms. Stephens testified that her next contact with the Defendant was on September
26 of an unspecified year when the Defendant drove up and down the road in front of her
house. She said that he told her daughter he was going to “get” the daughter and that he
cursed and made an obscene gesture toward Ms. Stephens. She said the Defendant drove
past her house one or two more times. She said she left to go to her grandmother‟s house
and saw the Defendant driving behind her as she pulled into a convenience store. She
said that as she pulled into the store, the Defendant called her cell phone. She said he
called a second time from his mother‟s or father‟s cell phone. She answered the second
time because she did not recognize the telephone number. She said the Defendant
threatened to hurt her and said she would “pay for this.” She said the Defendant circled
the store and stopped on the other side. She called 9-1-1 and drove to her grandmother‟s
house. She said that she talked to a police officer that day but that she did not know the
officer‟s name. She was unsure but thought the Defendant was arrested.

      Ms. Stephens testified that additional contact between the Defendant and herself
had occurred since September 26. She said that she was afraid of him and that, if she saw
him today pulling into a store where she was, she would leave quickly.

       Dustin Leper, a Verizon salesperson, testified that he was at work on a date he did
not recall about two and one-half years ago and that he assisted a couple with a
transaction. He said the woman became uneasy and whispered to her companion, “He‟s
out in the parking lot.” Mr. Leper said a man outside the store came to the window and

                                            -3-
motioned for the woman to come outside, but the man did not come inside. Mr. Leper
said that the woman became more nervous and that the woman‟s companion went
outside. Mr. Leper said that he called 9-1-1 and that the police responded in about ten
minutes and arrested the Defendant. Mr. Leper identified the woman as Ms. Stephens.
He did not recognize the Defendant in court because the Defendant had worn a hat on the
day of the incident, but Mr. Leper said he knew the Defendant‟s name from talking to the
officers that day.

       Jeffrey McMann testified that he had been romantically involved with Ms.
Stephens since late September or early October 2010. He said that on August 19, 2010,
he drove to Tennessee from New Jersey. He spoke with Ms. Stephens by telephone and
went to the location where she was waiting for a pizza order. When he arrived, he saw a
green Toyota T-100 truck blocking Ms. Stephens‟s car from leaving. He said he heard
Ms. Stephens screaming. Mr. McMann said the Defendant had his arm against Ms.
Stephens‟s throat and was reaching over her trying to take something from her hand. Mr.
McMann contacted 9-1-1 via the OnStar emergency service in his truck. He said he did
not say anything to the Defendant. Mr. McMann said the Defendant left in the
Defendant‟s truck. Mr. McMann followed the Defendant in order to be able to tell the 9-
1-1 dispatcher where the Defendant went, but he lost sight of the Defendant after the
Defendant made a u-turn.

       Mr. McMann testified that he went to a convenience store and saw the Defendant
in handcuffs and Ms. Stephens crying in her car. Mr. McMann said that Ms. Stephens
was “terrified” and that he stayed with her at her request. Mr. McMann gave a statement
to the police. He did not know how much time elapsed between the incident he
witnessed and the Defendant‟s arrival at the store but said “I guess” it would take less
than a minute from the location where the Defendant made the u-turn.

       Mr. McMann testified that on August 20, 2010, he took Ms. Stephens to obtain an
order of protection. He said she was upset and did not want to be alone. He said that
after Ms. Stephens obtained the order, they picked up Ms. Stephens‟s father at Ms.
Stephens‟s grandmother‟s house and that Ms. Stephens‟s father received a call from the
Defendant. He said that as a result of the call, they went to Ms. Stephens‟s house. He
said that they passed the Defendant and the Defendant‟s mother, that the Defendant and
his mother had been “at the residence coming from the road,” and that Mr. McMann, Ms.
Stephens, and Ms. Stephens‟s father pulled over at a cemetery to allow the Defendant to
pass. He said that the Defendant and the Defendant‟s mother pulled into a parking lot
nearby and that Mr. McMann rolled down the window and said they were calling the
police. Mr. McMann said the Defendant and the Defendant‟s mother drove away. Mr.
McMann said the Defendant‟s mother was the driver of a maroon or red car. Mr.

                                          -4-
McMann said they spoke with Officer Ken Daugherty, who Mr. McMann said arrested
the Defendant for violating an order of protection. Mr. McMann acknowledged that the
Defendant filed a divorce complaint between August 20 and September 1, 2010. Mr.
McMann said he did not know the Defendant‟s mother and was unaware of Ms. Stephens
and the Defendant‟s mother having any problems.

        Mr. McMann testified that on September 1, 2010, he accompanied Ms. Stephens
to purchase a cell phone for Ms. Stephens‟s daughter. He said that as they were looking
at a cell phone in the store, the Defendant banged on the store‟s window, yelled, and
motioned for Ms. Stephens to come outside. Mr. McMann said that he told Ms. Stephens
to go to the back of the store. Mr. McMann said he went outside and told the Defendant
that an order of protection existed. Mr. McMann said he asked the Defendant why he
was there, and the Defendant stated he wanted to talk to Ms. Stephens. Mr. McMann said
he told the Defendant that Ms. Stephens did not want to talk to the Defendant. Mr.
McMann said he told the Defendant he should leave or wait for the police. Mr. McMann
said the Defendant climbed into the back of the Defendant‟s truck, sat down, and waited
for the police.

       Mr. McMann testified that when he went back inside the store, Ms. Stephens was
crying and shaking. He said that he was supposed to go back to New Jersey the next day
but that he and Ms. Stephens took a trip together instead. He said that when they
returned, they rented a house together until they could find a permanent residence in
Sevier County. He said that at the time of the trial, they still lived together in Sevier
County. He acknowledged he had stayed with Ms. Stephens and her children at the
Defendant and Ms. Stephens‟s marital home for about one and one-half weeks before
September 26, 2010.

      Mr. McMann testified that on September 26, 2010, he was at the rental house
when “the girls” ran through the house crying and stating that the Defendant was there.
Mr. McMann said the girls were “terrified.” He said that they were afraid the Defendant
“was gonna come back and hurt their mom again” and that he promised them that as long
as he was in town, the Defendant would not hurt Ms. Stephens again. He said that Ms.
Stephens was upset and that she called 9-1-1. He said that although he had seen the
Defendant driving away from the front yard, he did not see the Defendant do anything
else.

       Mr. McMann stated that his testimony was truthful. He said his testimony had not
been influenced by allegations in a lawsuit filed by the Defendant.



                                           -5-
       Lafollette Police Officer Daniel Smith testified that on August 19, 2010, he was
involved in a domestic dispute case pertaining to the Defendant and Ms. Stephens. He
said he responded to a convenience store, where he found Ms. Stephens crying and upset.
He said the Defendant was not present but was escorted to the station by a Jacksboro
officer. Officer Smith said the Defendant stated he had not assaulted Ms. Stephens.
Officer Smith arrested the Defendant. Officer Smith said part of the incident occurred in
Jacksboro outside a pizzeria.

        Campbell County Sheriff‟s Deputy Ken Daugherty testified that on August 20,
2010, he was dispatched to respond to a call involving the Defendant. He said that as a
result of the call, he looked for a maroon Saturn with a female driver. He found the car,
which was driven by the Defendant‟s mother and in which the Defendant was a
passenger. Deputy Daugherty said that he told the Defendant and the Defendant‟s
mother why he stopped them and that he left their location and went to the church to talk
to Ms. Stephens. Deputy Daugherty later returned. He said he asked the Defendant if the
Defendant had the order of protection with him, which the Defendant provided. Deputy
Daugherty arrested the Defendant. The prosecutor showed Deputy Daugherty the exhibit
consisting of the request for an order of protection form, the Petition for Orders of
Protection, and the Ex Parte Order of Protection. Deputy Daugherty acknowledged the
exhibit “look[ed] familiar” and said one of his primary responsibilities was to serve
orders of protection. The record does not reflect which document or documents within
the exhibit Officer Daugherty identified as looking familiar. Deputy Daugherty said the
charges relative to the Defendant‟s August 20 arrest were dismissed.

       Campbell County Sheriff‟s Deputy Josh Vann testified that he responded to a
harassment call involving the Defendant on September 26, 2010. Deputy Vann said he
went to the address involved in the call and found Ms. Stephens upset and standing in the
driveway. He said he looked at Ms. Stephens‟s cell phone and discovered that the
Defendant had attempted to contact her numerous times in the past few hours. He
acknowledged that he did not know if the Defendant made the calls and that he only saw
the numbers from which calls had been placed. He said a different number appeared
more recently in the call log and that this was consistent with what Ms. Stephens told
him. He said he did not see the Defendant on September 26.

       The Defendant testified that on August 19, 2010, he met Ms. Stephens on the road
as he drove toward Lafollette. He said he was going to visit her at work. He said that she
turned off her lights and “darted in Charley‟s [pizzeria].” He said he thought “what in the
world,” made a u-turn, and pulled beside her car. He said she was behind some
apartments when he approached her. He said that although Ms. Stephens was supposed
to be at work at a nursing home, her scrubs were in the backseat and she was “dolled up

                                            -6-
in new clothes.” He said this did not make sense. He said that they had a confrontation
because she tried to prevent him from seeing how she was dressed but that he did not
open the door and did not touch her. He said he suspected she was having an affair. He
said Mr. McMann was not present on August 19. The Defendant said that from inside
her car, Ms. Stephens called the Defendant‟s mother and stated Ms. Stephens was going
to call the police. He said that he stayed to hear what Ms. Stephens said, that he told her
he was “over it” and was going to divorce her, that she called the police, and that he left.

       The Defendant testified that he saw Ms. Stephens at a convenience store later on
the evening of August 19. He said that he did not see her until he went inside and that he
called her a liar. He said that she started to confront him and that they were both told to
leave. He said he left immediately and went to another business. He said Officer Zack
Graves escorted him from the other business back to the store. He acknowledged that he
was arrested for domestic violence and was in jail until around 1:00 or 2:00 the next day,
August 20, 2010. He later acknowledged that the jail records would be accurate if they
showed he was released at 11:49 a.m.

        The Defendant testified that he was unsure if he was served with an order of
protection while he was in jail but acknowledged he was served with something. He said
that after he was released from jail, his mother might have taken him to his apartment to
shower and change clothes. He said she drove him to the convenience store to get his
truck but that it was not there. He said that they went to his house to look for the truck
but that it was not there. He said that as they drove back toward town, they saw Ms.
Stephens and Mr. McMann in Mr. McMann‟s truck. The Defendant said he called the
police multiple times trying to locate his truck. He said his mother flagged down Ken
Daugherty because she thought Deputy Daugherty was responding to the Defendant‟s 9-
1-1 calls. The Defendant said Deputy Daugherty told them to stay where they were and
that as they waited, the Defendant saw Ms. Stephens‟s father “flying by.” The Defendant
said Deputy Daugherty returned and arrested him for violating an order of protection.
The Defendant acknowledged that he knew when he left the jail that an order prohibited
any contact with Ms. Stephens and that he had received a copy of the order when he was
at the jail. He said the document he showed Deputy Daugherty was the one he received
at the jail. He said that on August 20, he was not going to have contact with Ms.
Stephens.

        The Defendant testified that he filed for a divorce on August 24, 2010. He said
that he told Ms. Stephens he was going to do so on August 19 but that he was delayed by
his arrests.



                                            -7-
       The Defendant testified that on September 1, 2010, he pulled into a Verizon store
parking lot and saw Mr. McMann. The Defendant said that he “approached to talk to”
Mr. McMann, that he was upset because he thought Mr. McMann was involved with Ms.
Stephens, and that he and Mr. McMann exchanged words in the parking lot for five to ten
minutes. The Defendant denied that he banged on the store‟s windows and gestured for
Ms. Stephens to come outside and that he saw her before the police arrived. He denied
that he got into the back of his truck before the police arrived. The Defendant said
Officer Zach Graves arrested him. He learned on the day of the trial that Officer Graves
was the prosecutor in the case, and he said he had not seen Officer Graves at the trial.

      The Defendant testified that on September 26, 2010, he was not in Campbell
County because he was working in Bridgeport, Alabama. He said he began work in
Alabama on September 20 and remained there for a few months. He said he was arrested
when he returned to Campbell County. He said he had records to prove he had been in
Alabama but did not have them with him in court.

      The Defendant testified that the police were called about an unrelated incident
between Ms. Stephens and himself on January 7, 2010. He said the domestic assault
charges related to January 7, August 20, September 1, and September 26, 2010, had been
dismissed.

        The Defendant‟s mother testified that she picked up the Defendant from jail on
August 20, 2010. She said that she drove and that they went to the store to look for his
truck and then went to the Defendant and Ms. Stephens‟s house to determine whether Ms.
Stephens had taken the truck there. The Defendant‟s mother said they called the police
four times to escort them to the house but that no one responded. She said that after they
left the house, she and the Defendant “passed them” on the road. She said she and the
Defendant did not stop and instead continued until she saw an officer, at which point, she
stopped and flagged him down because she thought he was responding to their calls. She
said the officer informed them that Ms. Stephens had filed a complaint about the
Defendant. The Defendant‟s mother said the officer told them to wait and that he would
return. She said that when the officer returned, he said he was going to arrest the
Defendant because three people claimed the Defendant had chased Ms. Stephens. The
Defendant‟s mother acknowledged that the officer told the Defendant that Ms. Stephens
had an order of protection and that Ms. Stephens said the Defendant violated the order.

      The jury found the Defendant not guilty of domestic assault and guilty of
aggravated stalking occurring between August 20 and September 26, 2010. This appeal
followed.


                                           -8-
                                               I

        The Defendant contends that the trial court violated his confrontation rights by
permitting the trial to proceed in the absence of Officer Zack Graves, whom he says was
the prosecutor, and that the court erred in denying his motion for a continuance. The
State counters that the trial court did not err because the Defendant had no constitutional
right to confront Officer Graves and that the Defendant was able to confront and cross-
examine Ms. Stephens, the victim of the offense.

                        A. Violation of Right to Confront Witnesses

        The Sixth Amendment of the United States Constitution provides, in pertinent
part, “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him[.]” U.S. Const. amend. VI. The Tennessee Constitution
provides, in pertinent part,“[I]n all criminal prosecutions, the accused hath the right . . . to
meet the witnesses face to face[.]” Tenn. Const. art. I, § 9. Despite slight variations in
the wording of the federal and state constitutional provisions, Tennessee courts have
generally followed the United States Supreme Court‟s pronouncements relative to the
rights of the accused. State v. Cannon, 254 S.W.3d 287, 301 (Tenn. 2008); State v.
Lewis, 235 S.W.3d 136, 144 (Tenn. 2007). In that regard, the United States Supreme
Court has said:



       „The main and essential purpose of confrontation is to secure for the
       opponent the opportunity of cross-examination. The opponent demands
       confrontation, not for the idle purpose of gazing upon the witness, or of
       being gazed upon by him, but for the purpose of cross-examination, which
       cannot be had except by the direct and personal putting of questions and
       obtaining immediate answers.‟ (Emphasis in original.) 5 J. Wigmore,
       Evidence § 1395, p. 123 (3d ed. 1940).


Davis v. Alaska, 415 U.S. 308, 315-16 (1974); see Delaware v. Van Arsdall, 475 U.S.
673, 678 (1986); cf. Delaware v. Fensterer, 474 U.S. 15, 18 (1985) (noting that
Confrontation Clause cases fall into two categories: cases involving the admission of an
out-of-court statement and cases involving restriction on the right of cross-examination).
The State, however, “is not required to call any particular witness in a criminal
prosecution[.]” State v. Osborne, 712 S.W.2d 488, 492 (Tenn. Crim. App. 1986); Hicks
v. State, 539 S.W.2d 58, 59 (Tenn. Crim. App. 1976).

                                              -9-
       The record reflects that at the time of the trial, Officer Graves had moved to
Middle Tennessee and was no longer employed with the Jacksboro Police Department.
Four days before the trial, the State filed a motion to substitute another officer as the
prosecutor. At the trial, defense counsel moved for dismissal of the case or a continuance
because Officer Graves was not present. The trial court denied both the State‟s request to
substitute another officer as the prosecutor and the Defendant‟s request for a dismissal or
a continuance. At the trial, the State did not offer any evidence of Officer Graves‟s prior
statements about facts relevant to the offense, and Officer Graves did not testify. The
Defendant testified that Officer Graves arrested him on August 19 and September 1,
2010. As we have stated, a defendant‟s confrontation right preserves the right to confront
the witnesses against the accused. In the present case, Officer Graves was not a State‟s
witness against the Defendant, and the Defendant had no constitutional right to confront a
potential State‟s witness who did not testify. The Defendant is not entitled to relief on
this basis.

                             B.     Denial of a Continuance

       The Defendant also alleges in the final sentence of his argument relative to his
confrontation issue that the trial court erred in denying a continuance due to Officer
Graves‟s absence. He has not supported his allegation with argument or citation to
authorities relevant to the denial of a continuance. See T.R.A.P. 27(a)(7) (requiring that
an appellant‟s brief shall contain an argument setting forth the reasons appellate relief is
required and citations to relevant authorities). Separately from the confrontation issue,
the State has not addressed the denial of a continuance based upon Officer Graves‟s
absence. Although we might treat the issue as waived based upon the Defendant‟s failure
to provide an argument and citation to relevant authorities, we will address the issue, to
the extent the Defendant contends the trial court should have granted a continuance based
on the alleged confrontation violation. See Tenn. R. Ct. Crim. App. 10(b).

       “[A] motion for a continuance is addressed to the sole discretion of the trial
judge,” and the judge‟s decision “will not be disturbed in the absence of a clear showing
of gross abuse of discretion to the prejudice of the defendant.” Baxter v. State, 503
S.W.2d 226, 230 (Tenn. Crim. App. 1973). It is the appealing party‟s burden to show
how the trial court‟s decision was prejudicial. Id. The critical inquiry “is whether one
has been deprived of his rights and whether an injustice has been done.” Id. As a result,
the record must reflect that “the denial of the requested continuance „denied the
defendant a fair trial or that the result of the trial would have been different.‟” State v.
Vaughn, 279 S.W.3d 584, 598 (Tenn. Crim. App. 2008) (quoting State v. Odom, 137
S.W.3d 572, 589 (Tenn. 2004)).


                                           -10-
       In the present case, the Defendant sought a continuance based upon Officer
Graves‟s absence. The prosecutor stated on the record that Officer Graves had moved to
Middle Tennessee, that a subpoena had been sent by certified mail, and that the State had
not received any correspondence indicating the subpoena had been served or service had
otherwise been accepted. The March 25, 2011 indictment identified Ms. Stephens as the
sole witness who testified before the grand jury, and it listed Officer Graves as a State‟s
witness. The trial commenced on January 15, 2014. The Defendant was aware that
Officer Graves was a possible witness and could have attempted to serve Officer Graves
with process if he so desired. As we have stated above, the Defendant‟s confrontation
rights were not violated when the trial proceeded without Officer Graves. We conclude
that the trial court did not abuse its discretion in denying the Defendant‟s motion for a
continuance. The Defendant is not entitled to relief on this basis.


                                             II

                               Sufficiency of the Evidence

       The Defendant contends that the evidence is insufficient to support his conviction
of aggravated stalking. He argues that no basis existed for the order of protection
because the jury found him not guilty of the domestic assault charge that was the
predicate offense upon which the order was issued. He also argues that the State failed to
prove that he was served with a valid order of protection signed by a judge. The State
contends that the evidence is sufficient.


        In determining the sufficiency of the evidence, the standard of review 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); see State v. Vasques, 221 S.W.3d 514,
521 (Tenn. 2007). The State is “afforded the strongest legitimate view of the evidence
and all reasonable inferences” from that evidence. Vasques, 221 S.W.3d at 521. The
appellate courts do not “reweigh or reevaluate the evidence,” and questions regarding
“the credibility of witnesses [and] the weight and value to be given the evidence . . . are
resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); see
State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).

       “A crime may be established by direct evidence, circumstantial evidence, or a
combination of the two.” State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998); see also State
v. Sutton, 166 S.W.3d 686, 691 (Tenn. 2005). “The standard of review „is the same
whether the conviction is based upon direct or circumstantial evidence.‟” State v.
                                            -11-
Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265,
275 (Tenn. 2009)).

        “„Stalking‟ means a willful course of conduct involving repeated or continuing
harassment of another individual that would cause a reasonable person to feel terrorized,
frightened, intimidated, threatened, harassed, or molested, and that actually causes the
victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested[.]”
T.C.A. § 39-17-315(a)(4). “„Course of conduct‟ means a pattern of conduct composed of
a series of two (2) or more separate noncontinuous acts evidencing a continuity of
purpose[.]” Id. § 39-17-315(a)(1). “A person commits an offense who intentionally
engages in stalking.” Id. § 39-17-315(b)(1). “„Intentional‟ means that a person acts
intentionally with respect to the nature of the conduct or to a result of the conduct when it
is the person‟s conscious objective or desire to engage in the conduct or cause the
result[.]” Id. § 39-11-106(a)(18) (2010) (amended 2011, 2014). As relevant here,

       A person commits aggravated stalking who commits the offense of stalking
       . . . , and . . . [a]t the time of the offense, was prohibited from making
       contact with the victim under a restraining order or injunction for
       protection, an order of protection, or any other court-imposed prohibition of
       conduct toward the victim or the victim‟s property, and the person
       knowingly violates the injunction, order or court-imposed prohibition.”

Id. § 39-17-315(c)(1)(E).

       “Knowing” means that a person acts knowingly with respect to the conduct
       or to circumstances surrounding the conduct when the person is aware of
       the nature of the conduct or that the circumstances exist. A person acts
       knowingly with respect to a result of the person‟s conduct when the person
       is aware that the conduct is reasonably certain to cause the result[.]”

Id. § 39-11-106(a)(20).

        The relevant time period for the aggravated stalking count is August 20 to
September 26, 2010. Viewed in the light most favorable to the State, the evidence shows
that the Defendant repeatedly engaged in conduct that would cause a reasonable person to
be terrorized, frightened, intimidated, threatened, or harassed and that Ms. Stephens was
actually terrorized, frightened, intimidated, threatened, or harassed. A short period of
time after the Defendant was released from jail on August 20, he was a passenger in a car
driven by his mother which turned around to follow Ms. Stephens, who testified that the
car in which the Defendant rode attempted to block her. On September 1, the Defendant

                                            -12-
went to a Verizon store where Ms. Stephens was a customer, banged on a window, and
yelled and gestured for her come outside. On September 26, the Defendant repeatedly
drove past Ms. Stephens‟s house, made threats and an obscene gesture, called her
repeatedly and threatened to hurt her, and circled around the convenience store to which
she went after the Defendant‟s conduct at her house. Regarding the Defendant‟s intent,
the record reflects that he knew when he was released from jail on August 20 that the
victim had attempted to obtain an order of protection prohibiting him from contacting
her. The record also reflects that on August 20, the Defendant showed Deputy Daugherty
a document relevant to the order of protection. These facts show the Defendant‟s
knowledge of Ms. Stephens‟s desire not to have any contact with him and, thereby, his
intent to engage in conduct that constituted the offense of stalking.

       In order for the offense to be elevated from stalking to aggravated stalking, the
State also had to prove that the Defendant was prohibited from contacting Ms. Stephens
by an order of protection and that he knowingly violated the order. See id.§ 39-17-
315(c)(1)(E). As we have stated, the State introduced three documents as a single trial
exhibit: (1) the untitled form completed by Ms. Stephens on August 20, 2010, requesting
an order of protection; (2) the Petition for Orders of Protection, which was signed by Ms.
Stephens on August 20 and which reflects Officer David Goin served it on the Defendant
at 10:10 a.m. on August 20; and (3) the Ex Parte Order of Protection signed by a judge on
August 20 but which does not reflect service on the Defendant. Both the petition and the
order bear a file stamp indicating they were filed by the general sessions court clerk on
August 20, 2010 at 9:49 a.m.

       Officer Daugherty testified that the Defendant acknowledged the order of
protection and that the Defendant showed Officer Daugherty “the paperwork.” The
record reflects that the prosecutor showed Officer Daugherty the exhibit consisting of the
three documents detailed above and that Officer Daugherty acknowledged the exhibit did
“look familiar.” The record does not reflect which document or documents within the
exhibit Officer Daugherty identified as looking familiar.

        The Defendant testified that although he was served with a document before he
was released from jail on August 20, he was unsure what it was. On cross-examination,
the following occurred:

              Q.    And you knew when you left the jail that there was an order
      telling you not to have any contact with your wife, right?

             A.     When I left the jail?


                                            -13-
             Q.     Right.

             A.     Yeah.

             Q.       When you left of [there] on August the 20th, you knew about
      this order, right? Somebody had served that on you and gave you a copy of
      it even, right?

             A.     Un-huh (yes).

             Q.     In fact, you had it with you a few minutes later when the
      officer stopped you?

             A.     Yes, sir.

             Q.     And told him about it and showed it to him?

             A.     Yes, sir.

      ....

             Q.      And you‟re not . . . trying to tell the folks on the jury that you
      didn‟t know that you were not allowed to have contact with [Ms. Stephens],
      right? I mean, I just want to make – you knew that there was an order of
      protection, right?

             A.     Yes, sir.

        The Ex Parte Order of Protection itself does not reflect that the Defendant was
aware of the order‟s existence and its contents. The Petition for Orders of Protection
reflects service on the Defendant by Officer Goin, who did not testify. Although Deputy
Daugherty testified that the Defendant had a copy of an order of protection, Deputy
Daugherty‟s identification of the document the Defendant showed him was not precise.
We cannot determine from the record before us whether Deputy Daugherty identified the
Petition for Orders of Protection or the Ex Parte Order of Protection, both of which were
included in the exhibit he was shown. The Defendant‟s testimony supports a conclusion
that he was given a document at the jail, but he did not know what the document was. He
said this document was the same one he showed Deputy Daugherty later that day. We
acknowledge that the Defendant affirmed on cross-examination that he was aware on
August 20 of an order of protection.

                                            -14-
       Resolving the question of whether the Defendant was actually aware of the order
of protection is essential to determining whether the Defendant possessed a knowing
mens rea to violate the order. We are troubled by the multi-document exhibit, the
record‟s lack of clarity relative to Deputy Daugherty‟s identification of which document
the Defendant showed him; the exhibit showing on its certificate of service that the
document the Defendant received was the Petition for Orders of Protection, not the Ex
Parte Order of Protection; and the Defendant‟s testimony that he showed Deputy
Daugherty the same document on August 20 that the Defendant had received earlier that
day at the jail.

       Upon review, we conclude that a rational trier of fact could not conclude beyond a
reasonable doubt that the Defendant possessed the culpable mental state of knowingly
violating an order of protection. Although the record contains evidence the Defendant
knew about the Ex Parte Order of Protection, the record also contains evidence the only
document served on the Defendant was the Petition for Orders of Protection. Even when
viewed in the light most favorable to the State, the evidence does not establish beyond a
reasonable doubt that the Defendant knowingly violated the order. For this reason, the
Defendant‟s conviction of aggravated stalking by knowingly violating an order of
protection was improper. As we stated previously, however, the evidence is sufficient to
support a conviction of the lesser-included offense of stalking.

       In reaching this conclusion, we have not overlooked the Defendant‟s argument
that his conviction of aggravated stalking is infirm because no basis for the order of
protection existed due to his acquittal of the domestic assault count. The flaw in this
argument is that a person subject to an order of the court may not disregard the order
simply because he believes the order is based upon a faulty factual premise. Our supreme
court has said:

             A lawful order is one issued by a court with jurisdiction over both
      the subject matter of the case and the parties. Vanvabry v. Staton, 88 Tenn.
      334, 351-52, 12 S.W. 786, 791 (1890); Churchwell v. Callens, 36 Tenn.
      App. 119, 131, 252 S.W.2d 131, 136-37 (1952). An order is not rendered
      void or unlawful simply because it is erroneous or subject to reversal on
      appeal. Vanvabry v. Staton, 88 Tenn. at 351, 12 S.W. at 791; Churchwell v.
      Callens, 36 Tenn. App. at 131, 252 S.W.2d at 137. Erroneous orders must
      be followed until they are reversed. Blair v. Nelson, 67 Tenn. (8 Baxt.) 1, 5
      (1874).



                                          -15-
Konvalinka v. Chattanooga-Hamilton County Hosp. Authority, 249 S.W.3d 346, 355
(Tenn. 2008) (footnotes omitted).

       In consideration of the foregoing and the record as a whole, we modify the
aggravated stalking conviction to one for misdemeanor stalking, and we remand the case
for sentencing and entry of a judgment of conviction for misdemeanor stalking.



                                         _____________________________________
                                          ROBERT H. MONTGOMERY, JR., JUDGE




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