        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                  July 12, 2016 Session

                   STATE OF TENNESSEE v. JOHN FREITAS

                   Appeal from the Criminal Court for Shelby County
                      No. 15-02390    W. Mark Ward, Judge


               No. W2015-02492-CCA-R3-CD - Filed October 7, 2016



The defendant, John Freitas, was convicted by a Shelby County Criminal Court jury of
assault and domestic assault, both Class A misdemeanors, and sentenced to consecutive
terms of eleven months and twenty-nine days in the county workhouse. On appeal, he
argues that: (1) the evidence is insufficient to sustain his convictions; (2) his convictions
for assault and domestic assault violate double jeopardy; and (3) the trial court abused its
discretion by imposing consecutive sentences. After review, we conclude that it violates
double jeopardy for the defendant to receive punishments for assault and domestic
assault. Therefore, we order that the defendant‟s convictions stand but that amended
judgments be entered showing that the simple assault conviction merges into the
domestic assault conviction for imposition of one sentence.


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


ALAN E. GLENN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and ROBERT W. WEDEMEYER, JJ., joined.


Stephen C. Bush, District Public Defender; Barry W. Kuhn (on appeal) and Trent Hall (at
trial), Assistant Public Defenders, for the appellant, John Freitas.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;
Amy P. Weirich, District Attorney General; Omar Z. Malik and Jamie B. Kidd, Assistant
District Attorneys General, for the appellee, State of Tennessee.
                                        OPINION

                                         FACTS

        As a result of his assault on his ex-girlfriend, the defendant was indicted for one
count of aggravated assault by strangulation and one count of domestic assault by
inflicting bodily injury.

        The victim testified that she and the defendant previously dated and had a child
together. They also lived together at one time, but they no longer did so and had been
separated for almost three years. On March 1, 2015, the victim was working at Lakeside
Behavioral Health System and had arranged for the defendant to drop off their four-year-
old-daughter at her workplace when she got off of work. The victim called the defendant
to let him know that she would be late getting off work, and the defendant became angry
because he had to work the next morning. He told her that she was going to have to drive
to West Memphis to pick up their daughter from him.

       When the victim got off work around 9:30 p.m., she went to her car and called the
defendant to see where he was. The defendant told her that he was parked next to her,
and she looked around and saw him and their daughter in the defendant‟s truck. The
victim told the defendant that she had left her jacket in another building and was going to
drive over and get it and would then get their daughter. She drove over to the other
building, parked, and got out of the car. The defendant, who had also driven to the other
building, got out of his truck and “began screaming and yelling at [her].” The defendant
was mad because he learned that a close male friend of the victim‟s had already picked
up the victim‟s son. The defendant advanced toward her and yelled that “if [she] didn‟t
get [her] shit together, that there were going to be dire consequences and that it was going
to be [her] wors[t] nightmare.”

        The victim testified that she was scared and told the defendant that she just wanted
to get their daughter and go home, but the defendant kept yelling at her. He finally told
her to get their daughter, but, when she tried to get the child, the defendant advanced
toward her again. This time the defendant was so close he was spitting in her face as he
yelled. The victim tried to go around the defendant to get to the truck, brushing the left
side of her body against him in the process, but the defendant threw her to the ground and

       [h]e got on top of me and he had part of his arm or hand it was across my
       face and part of it was in my mouth because my mouth was wide open to
       where I couldn‟t bite to get away from him. I couldn‟t close my mouth and
       he was strangling me with his other hand.

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        The defendant used his left hand to strangle her, applying “hard” pressure to the
point where she could not breathe. The defendant was still yelling at her, and she thought
that she was going to die. She could not tell how long the defendant had his hand around
her throat and mouth. The next thing the victim remembered was getting up and running,
and she thought that the defendant might have let her up because she had previously been
unable to move. She ran into a nearby building, and the police were called. As she ran
away, she recalled the defendant‟s making a “veiled threat” that she “just needed to take
[her] daughter and go home and that if he got arrested, something about it was all on
[her].”

        The victim identified photographs of her throat taken by the police after the attack,
showing redness and swelling. She also sustained muscle injuries to her lower back and
left side of her neck. The victim admitted that she did not go to the hospital for treatment
after the incident, but she later sought treatment from her doctor when she realized her
pain and soreness had worsened. She also admitted that she declined a ride to the police
station to take out a domestic violence warrant against the defendant, but she explained
that the defendant was arrested at the scene so she thought she was just declining to go to
the hospital.

       Officers Jessica Lawbacker and Robert Reed with the City of Bartlett Police
Department responded to the scene. The defendant was still at the scene, sitting in his
vehicle, when Officer Lawbacker arrived, and she detained him. The victim was visibly
shaken, crying, and scared about what had happened. The officers observed injuries on
the victim‟s nose, chin, neck, chest, and inside her mouth. Officer Lawbacker
photographed the victim‟s injuries. After speaking with the defendant and the victim,
Officer Reed arrested the defendant. Officer Reed recalled that the defendant said that
the victim pushed him, and he denied striking or choking the victim.

        The defendant testified that, on the night in question, the victim called him and
asked him to bring their daughter to the victim‟s place of work because a male friend of
the victim‟s was going to pick up their daughter and the victim‟s son. When he arrived to
the victim‟s place of work, the two of them got into an argument about the victim‟s male
friend. He said that the victim pushed him with her left arm “in a kind of a stiff-arm
football blocking maneuver,” and he grabbed her hands and wrapped them around her.
The two of them fell to the ground, and the victim began screaming. He covered her
mouth with his right hand, while he remained on top of her as they had fallen. The victim
got up and ran inside the building; the defendant did not think that he screamed at her but
did tell her that it would affect both of them if he were arrested. The defendant said that
he did not strike or choke the victim, but he could not explain how the victim sustained
injuries to her neck and lip.

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        Following the conclusion of the proof, the jury convicted the defendant of the
lesser-included offense of assault in the first count and of domestic assault as charged in
the second count.

       The trial court conducted a sentencing hearing, at which the State provided proof
that the defendant had two prior convictions for aggravated assault in Louisiana in 1998.
It was unclear whether the offense was a felony in Louisiana, but the trial court noted that
the statute defined aggravated assault as assault committed with a dangerous weapon,
which would be a felony if committed in Tennessee.

       The victim testified that the first incident of violence exhibited to her by the
defendant occurred in June of 2008 when the defendant assaulted her and her son, who
was four years old at the time. She elaborated that the defendant “picked up [her] son
and slammed him down” and then “began verbally abusing [her] son, telling him he was
a piece of shit and never going to be anything more than that, just like his father.” The
defendant “backhanded [her], twice, in the face and blood[i]ed [her] nose up really
good.” She believed that he broke her nose. She did not call the police because they
were in Louisiana at the time, and she “was scared and . . . made a stupid decision and
didn‟t report it.” However, she did take photographs of the injuries.

        The victim testified that, since that first incident, the defendant had slammed her
against a door when she was pregnant with their daughter. He shoved her into things on
numerous occasions. He had been verbally and emotionally abusive over the years. The
victim was “on the second order of protection that [she had] gotten against him since
[they] broke up. As soon as the first order was up, he just started . . . harass[ing] [her]
constantly” with “text messages, phone calls, [and] just continuous fights.” On cross-
examination, the victim admitted that she and the defendant both continued to work at
Lakeside during the period of the first order of protection. They worked different days
and shifts and handled transferring their child through family members or a child care
center.

       Relying on State v. Smith, 436 S.W.3d 751 (Tenn. 2014), the trial court
determined that it appeared the convictions for assault and domestic assault should not
merge. Accordingly, the court imposed a sentence of eleven months and twenty-nine
days for each conviction and ordered that the terms be served consecutively.




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                                        ANALYSIS

                                       I. Sufficiency

       The defendant first challenges the sufficiency of the convicting evidence as to both
offenses. In considering this issue, we apply the rule that where sufficiency of the
convicting evidence is challenged, the relevant question of the reviewing 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); see also Tenn. R.
App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury
shall be set aside if the evidence is insufficient to support the findings by the trier of fact
of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn.
1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 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. See State v.
Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). “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). Our supreme court stated the rationale for this rule:

       This well-settled rule rests on a sound foundation. The trial judge and the
       jury see the witnesses face to face, hear their testimony and observe their
       demeanor on the stand. Thus the trial judge and jury are the primary
       instrumentality of justice to determine the weight and credibility to be
       given to the testimony of witnesses. In the trial forum alone is there human
       atmosphere and the totality of the evidence cannot be reproduced with a
       written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212
Tenn. 464, 370 S.W.2d 523 (1963)). “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).

       The defendant was convicted of assault as a lesser-included offense of aggravated
assault. As charged by the trial court, assault is intentionally or knowingly causing
bodily injury to another or causing another to reasonably fear imminent bodily injury.
Tenn. Code Ann. § 39-13-101(a)(1), (2). “„Bodily injury‟ includes a cut, abrasion,
bruise, burn or disfigurement, and physical pain or temporary illness or impairment of the
                                              5
function of a bodily member, organ, or mental faculty[.]” Id. § 39-11-106(a)(2). In its
verdict, the jury specifically found that the defendant caused bodily injury to the victim
and caused her to reasonably fear bodily injury.

       The defendant argues that the “slight abrasion” on the victim‟s nose and the
“slight discoloration” on her neck are insufficient to corroborate “the kind of assault
described by [the victim].” The very definition of bodily injury includes abrasions and
bruises. The jury heard the victim‟s testimony and saw photographs of her injuries, and it
determined that the victim had sustained bodily injury. In addition, the jury could find
that the victim reasonably feared bodily injury when the defendant charged her and
forced her to the ground. The proof is sufficient to sustain the defendant‟s conviction for
assault.

       The defendant was also convicted of domestic assault, which is defined as
intentionally, knowingly, or recklessly causing bodily injury to a domestic abuse victim.
Tenn. Code Ann. § 39-13-111(b). A domestic abuse victim includes adults who have
lived together, and adults who have dated or had a sexual relationship. Id. § 39-13-
111(a)(2), (3).

        The defendant asserts that the victim should not be considered a domestic abuse
victim because they had not lived together for almost three years prior to the incident.
However, the statute contains no time limitation on when the prior relationship must have
occurred, nor are we aware of any case law providing for such limitation. In addition, the
evidence showed that the victim and the defendant had a child together, and therefore
there was proof for the jury to find that they once had a sexual relationship. The evidence
is sufficient to sustain the defendant‟s conviction for domestic assault.

                                  II. Double Jeopardy

       The defendant argues that his convictions for assault and domestic assault violate
double jeopardy because the violations arose out of the same act and “each offense does
not contain an element not contained in the other.”

       The Double Jeopardy Clause of the United States Constitution provides that no
person shall “be subject for the same offense to be twice put in jeopardy of life or
limb[.]” U.S. Const. amend. V. Article I, section 10 of the Tennessee Constitution
similarly provides “[t]hat no person shall, for the same offence, be twice put in jeopardy
of life or limb.” Our supreme court has recognized that the Double Jeopardy Clause
provides three separate protections: (1) protection against a second prosecution for the
same offense after acquittal; (2) protection against a second prosecution for the same
offense after conviction; and (3) protection against multiple punishments for the same
                                            6
offense. State v. Watkins, 362 S.W.3d 530, 541 (Tenn. 2012). This case involves the last
of these three categories.

       “In single prosecutions, multiple punishment claims ordinarily fall into one of two
categories, . . . referred to as „unit-of-prosecution‟ and „multiple description‟ claims.” Id.
at 543. “[M]ultiple description claims arise when a defendant who has been convicted of
multiple criminal offenses under different statutes alleges that the statutes punish the
same offense.” Smith, 436 S.W.3d at 766 (citing Watkins, 362 S.W.3d at 544). By
contrast, unit-of-prosecution claims arise “when defendants who have been convicted of
multiple violations of the same statute assert that the multiple convictions are for the
„same offense.‟” Watkins, 362 S.W.3d at 543. The defendant‟s assertion in this case
presents a multiple description claim.

        In Watkins, the Tennessee Supreme Court abandoned the State v. Denton, 938
S.W.2d 373 (Tenn. 1996), four-factor test previously employed by Tennessee courts in
determining whether dual convictions violate the prohibition against double jeopardy.
Instead, for multiple description claims, the court adopted the same elements test
enunciated by the United States Supreme Court in Blockburger v. United States, 284 U.S.
299, 304 (1932). Watkins, 362 S.W.3d at 556. Under the Blockburger test, the first step
is to determine whether the convictions arise from the same act or transaction. Watkins,
362 S.W.3d at 545. If the convictions arose from the same act or transaction, the court
must then determine whether the legislature intended to allow the offenses to be punished
separately. Id. at 556. When the legislature has not clearly expressed its intent either to
prevent or to preclude the dual convictions, the court must examine the statutes to
determine whether the crimes constitute the same offense. Id. at 557. If each offense
contains an element that the other offense does not, the statutes do not violate double
jeopardy. Id.

       Whether multiple convictions violate double jeopardy is a mixed question of law
and fact that we review de novo with no presumption of correctness. Smith, 436 S.W.3d
at 766 (citing State v. Thompson, 285 S.W.3d 840, 846 (Tenn. 2009)).

       In Smith, our supreme court addressed a situation where the defendant violated, on
different days, three different subsections of the false reporting act. 436 S.W.3d at 766-
67. The court held that the three different subsections of the statute each contained
elements not found in the other subsections and therefore constituted separated crimes,
such that the legislature intended to permit multiple punishments. Id. at 767-68.

      In this case, relying on Smith, the trial court held that it appeared that the
defendant‟s convictions for assault and domestic assault should not merge because they
were different crimes, and the holding in Smith permitted separate convictions for
                                              7
different crimes arising out of the same act. However, the defendant asserts that “since
every element of the offense of assault is contained in the offense of domestic assault, it
is a lesser included offense of . . . domestic assault. Sentencing the defendant on both
statutes would violate the double jeopardy clause[].”

       The State responds that because the jury returned a verdict of guilty of assault by
both causing bodily injury to the victim and causing her to reasonably fear bodily injury,
it essentially found the defendant guilty of two forms of assault, either of which could
independently support a conviction. The State continues that the trial court charged the
jury that domestic assault is causing bodily injury to a domestic abuse victim. Therefore,
the State asserts that the assault conviction under either theory did not require the element
of a domestic abuse victim, and one of the theories of the assault conviction did not
require the element of reasonable fear of imminent bodily injury. Accordingly, the State
concludes that even though the convictions were based on the same act, they each have
an element not required of the other.

       We are not persuaded that the holding in Smith allows for separate convictions in
this case, given that application of Blockburger leads to the conclusion that the legislature
did not intend to permit multiple punishments. Under Blockburger, we examine statutory
elements of the offenses “in the abstract, without regard to the proof offered at trial in
support of the offenses.” Watkins, 362 S.W.3d at 544. “If each offense includes an
element that the other offense does not, the Blockburger test is satisfied, notwithstanding
a substantial overlap in the proof offered to establish the crimes.” Id. (quoting Iannelli v.
United States, 420 U.S. 770, 785 n.17 (1975)) (internal quotation marks omitted).

       Again, the first step in the Blockburger test is to determine the threshold question
of “whether the convictions arise from the same act or transaction.” Watkins, 362
S.W.3d at 556. “If the convictions do not arise from the same act or transaction, there
cannot be a violation of the double jeopardy protection against multiple punishment.” Id.
In this case, the convictions arose from the same act or transaction, leading us to the
second step of the test.

       The second step of the Blockburger test requires us “to examine the statutory
elements of the offenses.” Watkins, 362 S.W.3d at 557. The following presumptions
apply to our examination of the statutory elements of the offenses:

       If the elements of the offenses are the same, or one offense is a lesser
       included of the other, then we will presume that multiple convictions are
       not intended by the General Assembly and that multiple convictions violate
       double jeopardy. However, if each offense includes an element that the
       other does not, the statutes do not define the “same offense” for double
                                             8
       jeopardy purposes, and we will presume that the Legislature intended to
       permit multiple punishments.

Id. (footnote omitted).

       All of the elements of assault are, by definition, included in domestic assault, as
domestic assault is defined as an assault committed against a domestic abuse victim. See
Tenn. Code Ann. § 39-13-111(b). Moreover, even though domestic assault includes an
element that assault does not, the reverse is not true, such that each offense does not
include an element that the other does not. Accordingly, application of Smith in this case
would return an illogical result, and the defendant‟s receiving two punishments for the
same offense would violate double jeopardy.

      Therefore, we order that the defendant‟s convictions stand, but that amended
judgments be entered showing that the simple assault conviction merges into the
domestic assault conviction, for which the legislature has provided more onerous
punishment, and imposition of one sentence.

                                    III. Sentencing

       The defendant argues that the trial court erred in ordering that his sentences be
served consecutively, asserting that the sentence is excessive because the victim was only
assaulted one time and her injuries were minor. In light of our conclusion above that the
simple assault conviction should merge into the domestic assault conviction, this issue is
pretermitted. However, in the event of subsequent appellate review, we address the
defendant‟s consecutive sentencing issue.

       The trial court may order multiple sentences to run consecutively if it finds by a
preponderance of evidence that any one or more of the seven factors listed in Tennessee
Code Annotated section 40-35-115(b) apply, including the one the trial court found
applicable in this case – that the defendant was a dangerous offender whose behavior
indicated little or no regard for human life and no hesitation about committing a crime in
which the risk to human life was high. Tenn. Code Ann. § 40-35-115(b)(4).

       When the court bases consecutive sentencing upon its classification of the
defendant as a dangerous offender, it must also find that an extended sentence is
necessary to protect the public against further criminal conduct by the defendant and that
the consecutive sentences reasonably relate to the severity of the offense committed.
State v. Lane, 3 S.W.3d 456, 460-61 (Tenn. 1999); State v. Wilkerson, 905 S.W.2d 933,
937-38 (Tenn. 1995). Our standard of review for a trial court‟s order of consecutive

                                            9
sentencing is abuse of discretion with a presumption of reasonableness. State v. Pollard,
432 S.W.3d 851, 859-60 (Tenn. 2013).

        In ordering that the defendant‟s sentences be served consecutively based on
finding him to be a dangerous offender, the trial court determined that the circumstances
of the offense were aggravated in that the defendant choked the victim and put his hand
over her mouth, essentially committing aggravated assault despite the jury‟s verdict to the
contrary. The court found that an additional period of confinement was necessary to
protect society from the defendant‟s unwillingness to lead a productive life and related to
the seriousness of the offense.

       The trial court accredited the victim‟s testimony that the defendant had a history of
beating and assaulting both her and her son. The photographs of a prior assault on the
victim by the defendant were entered into evidence at the sentencing hearing and show
the victim‟s clothing covered in blood. The defendant also has prior convictions for
aggravated assault involving a deadly weapon. This history, combined with the
defendant‟s strangulation of the victim that was found by the trial court to have occurred
by a preponderance of the evidence, indicate that the defendant had little regard for
human life and posed a threat to society. The trial court did not abuse its discretion in
ordering that the defendant‟s sentences be served consecutively.

                                     CONCLUSION

       Based on the foregoing authorities and reasoning, we conclude that it violates
double jeopardy for the defendant to receive punishments for both assault and domestic
assault. Therefore, we order that the defendant‟s convictions stand, but that judgments be
entered showing that the simple assault conviction merges into the domestic assault
conviction for imposition of one sentence.


                                                 _________________________________
                                                 ALAN E. GLENN, JUDGE




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