This post examines an opinion the Tennessee Court of Criminal Appeals recently issued in a case involving, essentially, domestic
relations: State v. Wiss, 2014 WL 1259178 (2014). This is how the Court of Criminal Appeals
describes the appeal before it:
In 2011, the Maury County Grand Jury
indicted . . . Michael Wiss for harassment by the electronic phone
communication of text messaging. A jury convicted [him] of harassment. He was
then sentenced to eleven months and twenty-nine days and ordered to pay a $2500
fine. On appeal, [Wiss] argues that the evidence presented by the State at
trial was insufficient to support his conviction.
State v. Wiss, supra.
We will come back to the charges against
Wiss later.
And this, according to the appellate court, is how the
prosecution arose:
In late June 2011, Cassie Gidcomb
received a number of text messages and phone calls from [Wiss]. Gidcomb and
[Wiss] had been romantically involved intermittently from 2007 to 2011, but
they had parted ways prior to the incidents at hand. The relationship was
strained because Gidcomb and [Wiss] shared custody of their then six-year-old
daughter, S.W.
In June, Gidcomb, accompanied by her brother-in-law,
Joshua Fullagar, and his sister, took a trip to New York to visit Mr.
Fullagar's family. Gidcomb elected not to take her daughter with her on the
trip and agreed beforehand to allow [Wiss] to visit their daughter even though
it was not his scheduled weekend for visitation. However, [Wiss] did not pick
up their daughter before Gidcomb left for her trip, so she asked her mother,
Bee Gidcomb, to care for S.W. instead.
The following day, after Gidcomb had already left on
her trip, [Wiss] called [her] and inquired about his scheduled visitation with
their daughter. Gidcomb revealed that she left S.W. with her mother because [Wiss]
did not call or show up to retrieve his daughter.
Throughout her visit to New York and while she was
returning home, Gidcomb received repeated text messages and phone calls from [Wiss]
because he was unhappy about [her] decision to leave their daughter with her
mother instead of him. Because Gidcomb refused to answer the text messages and
phone calls, they began to accumulate rapidly.
The majority of the text messages and phone calls
were received between 12:00 a.m. and 3:00 a.m. on the evening of June 25, 2011,
while Gidcomb and her companions were in New York. The content of the messages
consisted of [Wiss] threatening [her] mother's life and even implying that she
had already been killed; that [Wiss] or others were outside of Gidcomb's home,
where [she] resided with her mother, her daughter, and her son; and that [Wiss]
hoped Gidcomb's son was not in her home because [he] did not want the son to be
hurt mistakenly.
State v. Wiss, supra.
The Court of Criminal Appeals gives an example of the content of the
messages:
One message stated, `Feeling good to do
it, so stop ignoring me or no one is going to be able to identify what's left
of you. Think I'm playing? If I don't have [our daughter] by 12:00, I'm gonna.’
Another message singled out Gidcomb's mother, `Why do you keep hanging up? You
playing. I'm about to put you momma under for good. I don't care.’
[Wiss] continued his intimidation by
targeting Gidcomb's son with the following message, `Is [her] son there? This
is very important. . . . He doesn't need to get hurt. I need to know to let them
know I'm about to go have some drinks. I need want [sic] the kids to get hurt.’
Finally, [Wiss] tried to convince
Gidcomb that her mother had been killed when he sent, `Your road is blocked off
and if they miss the hit they will be back, but I've been assured she is gone
and your only concern is S.W.’ [He] followed minutes later with `Okay
[Gidcomb]. I'm sorry. I'm going to pray for your family. We are all sorry for
your loss. Guess you will get the call in the morning. Faith is the tool of
God. I'm sorry this happened.’
State v. Wiss, supra.
The court also notes that both Gidcomb and Fullagar
recounted . . . that she was worried for her
family's safety while receiving the messages and spent the majority of the
night in tears. Fullagar confirmed that [she] was distressed. Gidcomb preserved
as many messages as she could for evidence. Fullagar also recollected the
threatening content of the phone calls. Additionally, he identified [Wiss] as
the speaker when Gidcomb put the calls on speakerphone.
[Wiss] finally ceased messaging a little past 3:00
a.m., but commenced again the next afternoon by sending, `You get back, you
think getting raped fucked your head up. You ain't seen shit. And tell that
digger [sic] wannabe I got a chopper with a fifty round clip to shut that ass
up.’ During this time, Gidcomb had great difficulty reaching her family due to
the rural location of their home.
State v. Wiss, supra.
Finally, the Court of Criminal Appeals also explains that
[d]ue to the number of messages received, Gidcomb
had to store messages in Fullagar's email account so she could receive incoming
messages from [Wiss]. Gidcomb testified that she received approximately fifty
to one hundred threatening messages throughout the duration of her trip to New
York.
The correspondence was so troubling that Gidcomb,
Fullagar, and his sister decided to shorten their trip and return to Tennessee.
Upon returning home, Gidcomb, Fullagar, and [his] sister drove immediately to
Gidcomb's home.
After arriving and verifying that her family was
safe, Gidcomb filed a report with the sheriff's office and then went to speak
with the Magistrate. [She] continued to receive telephone calls and text
messages from [Wiss] during this time.
The following day, Ms. Tiara Baxter, a
close friend of Gidcomb, testified that she saw Gidcomb ignore many phone calls
and receive threatening text messages from [Wiss’] phone number. [His]
communications continued. In the weeks leading up to trial, on more than one
occasion, [Wiss’] mother called Gidcomb without notifying her that [he] was
also on the call as they attempted to convince [her] to `drop’ the charges.
State v. Wiss, supra.
The next thing that happened was that on November 10, 2011,
an indictment was
returned charging [Wiss] with
unlawfully and intentionally communicating in violation of Tennessee Code
Annotated § 39–17–308 for the incidents on or about June 25, 2011 through
July 1, 2011.
On June 14, 2012, a jury returned a
verdict finding [him] guilty of harassment, a Class A misdemeanor, pursuant
to Tennessee Code Annotated § 39–17–308. The judge sentenced [Wiss] to
eleven months and twenty-nine days and ordered a $2,500 fine.
State v. Wiss, supra.
Tennessee Code Annotated § 39–17–308 says someone commits
harassment who, among other things, intentionally
(1) Threatens, by telephone, in writing
or by electronic communication, including, but not limited to, text messaging,
facsimile transmissions, electronic mail or Internet services, to take action
known to be unlawful against any person and by this action knowingly annoys or
alarms the recipient;
(2)
Places one (1) or more telephone calls anonymously, or at an hour or hours
known to be inconvenient to the victim, or in an offensively repetitious
manner, or without a legitimate purpose of communication, and by this action
knowingly annoys or alarms the recipient;
(3)
Communicates by telephone to another that a relative or other person has been
injured, killed or is ill when the communication is known to be false. . . .
On appeal, Wiss argued, as noted above, that the evidence
presented at his trial was not sufficient to support his conviction”. State v. Wiss, supra. More precisely, claimed “the State failed to prove every element of the
crime for which he was convicted.” State v. Wiss, supra.
The Court of Criminal Appeals began its analysis of his
argument by noting that when the
defendant
challenges the sufficiency of the evidence, this Court is obliged to review
that claim according to certain well-settled principles. A verdict of guilty,
rendered by a jury and `approved by the trial judge, accredits the testimony of
the’ State's witnesses and resolves all conflicts in the testimony in favor of
the State. State v. Cazes, 875 S.W.2d 253 (Tennessee Supreme
Court 1994). . . .
Thus,
although the accused is originally cloaked with a presumption of innocence, the
jury verdict of guilty removes this presumption `and replaces it with one of
guilt.’ State v. Tuggle, 639 S.W.2d 913 (Tennessee Supreme
Court1982).
Hence,
on appeal, the burden of proof rests with the defendant to demonstrate the
insufficiency of the convicting evidence. State v. Tuggle, supra. The
relevant question the reviewing court must answer is whether any rational trier
of fact could have found the accused guilty of every element of the offense
beyond a reasonable doubt. See Tennessee Rules of AppellateProcedure Rule 13(e). . . .
In
making this decision, we are to accord the State `the strongest legitimate view
of the evidence as well as all reasonable and legitimate inferences that may be
drawn therefrom.’ See State
v. Tuggle, supra.
The court began its analysis of Wiss’ argument by noting
that he was convicted of harassment which was defined as (i) threatening “by
telephone, in writing or by electronic communication, including . . . text
messaging, . . . electronic mail or
Internet services, to take action known to be unlawful against any person and
by this action knowingly alarms the recipient” and/or (ii) communicating with a
person in a manner the defendant knows, or should know, is “without legitimate
purpose” and with the “malicious intent” to frighten, intimidate or cause
emotional distress”. State v. Wiss, supra (quoting Tennessee
Code Annotated § 39–17–308, supra).
It then found that when
viewing the evidence in a light most
favorable to the State, it is clear the text messages sent to and preserved by
Gidcomb were the means of communication used by [Wiss]. The context of and
frequency of the text messages and phone calls demonstrate an intentional and
non-inadvertent nature. These intentional communications sent by [him] were
threats of illegal actions including, but not limited to, murder, arson,
kidnapping, conspiracy, and assault against Gidcomb's family. Therefore, there
was no legitimate purpose for the communication.
The
hostile context of the communications threatening to kill her mother and
children if he was not permitted to see their daughter conveyed [Wiss’] intent
to frighten or intimidate Gidcomb. Additionally, [he] knew, or reasonably
should have known, such communications would frighten or cause emotional
distress upon a similarly situated person as Gidcomb.
Finally, witness testimony accredited
by the jury divulges that Gidcomb was truly frightened and intimidated as
evidenced by her panicked reactions and ensuing decision to abandon her trip
early to confirm her family's well being.
State v. Wiss, supra.
The court therefore rejected Wiss’ argument, holding that
“[t]here was ample evidence presented for any rational juror to conclude beyond
a reasonable doubt that [Wiss] did unlawfully and intentionally communicate
with Gidcomb through text messages.” State v. Wiss, supra. So it affirmed his conviction.
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