Tennessee Criminal Lawyer Blog

According to the Chattanooga Times Free Press, a new bill is making its way through the Tennessee Senate that would allow motorists who are driving in excess of twenty-five miles per hour over the speed limit to be fined up to $500. To put this fine in perspective, it is more than the minimum fine imposed for a first offense DUI and is the same maximum fine as that allotted for a Class B misdemeanor which carries a penalty of up to six months in jail. This bill, dubbed the “super speeder” bill, clearly demonstrates that Tennessee lawmakers wish to increase the seriousness with which excessive speeding is handled.

The bill’s sponsor, Jack Johnson of Franklin, Tennessee, said the bill is necessary because Tennessee Courts have determined that excessive speeding alone is not enough to sustain a charge or conviction for reckless driving. In T.C.A. §55-10-205, reckless driving is said to occur when “any person […] drives any vehicle in willful or wanton disregard for the safety of persons or property. Accordingly, then, excessive speeding alone has not been found to amount to willful or wanton disregard within the contemplation of the statute.

What this bill has done, in essence, is to make excessive speeding the equivalent of reckless driving from the standpoint of the fine imposed. While this bill does not impose jail time upon excessive speeders, it should be noted that a great deal of individuals charged with reckless driving likewise avoid jail time by being placed on probation or undergoing some other form of alternative sentencing. From a practical standpoint, then, this bill will make the offense of excessive speeding essentially equivalent to reckless driving by imposing an identical maximum fine to that allowed for reckless driving, which is a Class B misdemeanor. This fine can be a substantial amount of money for a lot of Tennesseans, and persons who are looking at a charge of reckless driving or a $500 fine under this new bill once it passes would be wise to consult an experienced criminal defense attorney who can assist them in obtaining a favorable resolution to their case.

Source: http://www.timesfreepress.com/news/2010/apr/28/super-speeders-face-500-fine-tenn/?breakingnews

A suspected serial killer accused of murdering eleven women has received a new judge to try his murder case after the Ohio Supreme Court has removed his current judge under suspicion of inappropriate conduct. The man’s attorney filed a motion to have the judge removed in order to avoid the “appearance of impropriety,” alleging that the judge discussed the case with another judge outside of the presence of the defendant or his attorneys, that the judge made inappropriate comments about the defendant on a website, and that the judge had a financial stake in the outcome of the case. All three of these activities would be grounds for disqualification of the judge if they were true. At this point, there is no definitive evidence that the allegations are true, but the fact that such serious allegations were made apparently prompted the Ohio Supreme Court to take action.

One of the most concrete rights of all criminal defendants is the right to a fair trial. This right carries with it the right to an impartial jury and an impartial judge. Impartiality is critical in criminal cases, because a judge makes evidentiary and other rulings at trial that have enormous impact on the outcome of the case. For this reason, a conviction obtained at a trial over which a biased or impartial judge presided would almost certainly be overturned and a new trial would be granted. This would amount to a serious waste of judicial resources and damage the efficiency and integrity of the court. The Model Rules of Judicial Conduct, which is a body of regulations that sets the ethical standards for judges, recognizes this and instructs its judges to avoid the appearance of impropriety at all times.

Unfortunately, defendants do not always have a fair, unbiased judge and do not always get a fair trial. Tennesseans who feel like they have been subjected to an unfair trial should consult an experienced criminal defense attorney who can assist them in appealing their conviction and resolving the case.

Source: http://www.aolnews.com/nation/article/shirley-strickland-saffold-is-second-judge-replaced-in-anthony-sowell-ohio-serial-killer-case/19457606

In our previous blog, we discussed how police officers in Tennessee are commanded by law to assess a domestic violence situation by determining who the primary aggressor is and responding to that situation accordingly. It is worth noting that the decision as to who is the primary aggressor is not entirely up to the discretion of the police officer. In fact, the Tennessee Code mandates what factors the officer can consider in determining who the primary aggressor is. T.C.A. §36-3-619(c) provides that an officer must consider:

(1) The history of domestic abuse between the parties;

(2) The relative severity of the injuries inflicted on each person;

(3) Evidence from the persons involved in the domestic abuse;

(4) The likelihood of future injury to each person;

(5) Whether one (1) of the persons acted in self-defense; and

(6) Evidence from witnesses of the domestic abuse.

The history of domestic abuse is obviously relevant in determining who the aggressor is because it is likely that a person is the primary aggressor if he or she has been the primary aggressor in domestic abuse situations involving those parties in the past. The severity of the injuries is likewise relevant because the party who is least injured is often, but not always, the party responsible for initiating the violence. This factor also speaks somewhat to factor (5) because the more a party injures another party, the less likely that they were acting in self-defense in most cases. The officer must also consider evidence from the parties themselves and from witnesses, as such parties would be in the best position to tell the officers what actually happened.

This determination is often instrumental in domestic violence cases as to which person is charged for criminal conduct in connection with the incident. Persons who feel like they were wrongfully charged or were charged with a more serious offense than they deserved should contact an experienced Tennessee criminal defense attorney for assistance in disputing the charges and obtaining a favorable result to their case.

The old adage “familiarity breeds contempt” unfortunately rings even truer when one looks at the criminal landscape in Tennessee. Unfortunately, domestic violence situations comprise a great deal of the criminal activity in this state. There are a lot of reasons for this, but one overwhelming factor is that people who live together generally face life’s biggest ups and downs together. These situations get tense and people don’t always respond in the appropriate manner. Many of these situations result in the police being contacted to get the situation under control.

Tennesseans who are engaged in a domestic disturbance may be surprised to say the least when the police show up and arrest them but do not arrest the other person. There is, however, a good reason for law enforcement officials to do so. Under T.C.A. §36-3-619, law enforcement officials who arrive at a scene where they have probable cause to believe that two or more persons have committed domestic abuse or where two or more people make domestic abuse complaints must try to ascertain who the primary aggressor is. Once they have done that, the law dictates that the preferred response is to arrest the primary aggressor and not to arrest the person who is not the primary aggressor. This command is what gives rise to the seemingly inequitable situation described above where only one person is arrested.

There are several policy reasons for treating domestic abuse situations this way. The most significant may be that the Tennessee legislature wishes to insulate one party from being arrested and charged in order to ensure that such situations are reported to police when they arise. This allows the officers to be aware of the situation and to break it up before anyone gets hurt. Tomorrow’s blog will take a look at what factors officers can consider in determining who is the primary aggressor. Domestic abuse situations are taken very seriously by law enforcement and they can result in one or more parties being charged with serious offenses. Tennesseans who have been charged with a domestic violence-related crime should consult an experienced Tennessee criminal defense attorney who can assist them throughout the trial process.

At one time or another, almost everyone has received a parking ticket or citation that they felt was given out unfairly. In fact, many reality TV shows focus solely or in large part on what happens when drivers are pulled over or cited for some driving violation and react inappropriately. While it may seem unfair at times getting a speeding ticket when you were only going three miles per hour over the limit or getting ticketed for a u-turn at a spot where everyone else seemingly makes u-turns with impunity, taking it out on the officer or law enforcement agency responsible for giving you the citation is only going to make your life harder.

For a great example of this, look no further than a twenty-two year-old Chicago man who was recently arrested for disorderly conduct after he expressed his disapproval of a parking ticket he was issued by the Bartlett Police Department. The man decided that he would show the police department how he felt about receiving the ticket, so he used the ticket to perform a grotesque act of self-cleansing and then sent the ticket to the police department. They did not think the maneuver was as clever as he did, and he was charged with disorderly conduct.

In Tennessee, a person can be charged with disorderly conduct for a variety of reasons pursuant to T.C.A. §39-17-305. Of importance in this situation is T.C.A. §39-17-305(a)(3) which provides that a person can be so charged if he or she “creates a hazardous or physically offensive condition by any act that serves no legitimate purpose.” Clearly the act in question here is physically offensive and serves no legitimate purpose. A violation of this statute is a Class C misdemeanor, punishable by up to thirty days in jail and a fine of $50.00. It should also be noted that the man will still have to pay the parking ticket.

It is a defense to such a charge that the act was not physically offensive or hazardous or that it served a legitimate purpose. Tennesseans who have been charged with this offense and wish to inquire about possible defenses or obtain assistance with the trial process should contact an experienced Knoxville criminal defense attorney for help with their case.

Source: http://www.cltv.com/news/wgntv-parking-ticket-toliet-paper-april21,0,5760700.story

Sometimes, as a driver, it is difficult to tell when you are driving in violation of the law. For example, it’s difficult to judge at times when you should use your turn signal, when you should turn your headlights on, how fast you should drive, etc. Other times, however, it is blatantly obvious that you are breaking the law while driving. Such instances may occur when the driver is drunk, speeding excessively, or driving down the freeway with his or her leg hanging out of the window. The latter activity is what landed a twenty-seven year old British man in court this week.

The man reportedly had been driving down the freeway after work when he got what he described as an “agonizing” cramp. At this point, the driver had three choices: (1) continue driving in agonizing pain, (2) pull over to a safe location, relieve the cramp, then continue home, or (3) thrust his leg out the window to stretch the muscle while continuing to drive and thus transforming his car into a weaving, swerving death machine. He chose door number three.
Fortunately, law enforcement officials were nearby and pulled him over before he or anyone else was hurt. He was cited for what would be the equivalent in Tennessee of reckless driving. The court, however, allowed the man to avoid serving jail time given the extenuating circumstances and the fact that the man seemed very remorseful and accepted responsibility for his actions.

In Tennessee, such behavior would be punished as reckless driving, which is a Class B misdemeanor. Such an offense can carry a penalty of up to six months imprisonment. However, there often are, as there were in the case above, extenuating circumstances that caused or led the driver to drive in an unsafe manner. In some cases, the courts will be receptive to the fact that those circumstances existed and will show the defendant some leniency. To maximize the chances of that happening, defendants should consult with an experienced criminal defense attorney who can assist them in showing the court why they deserve such lenient treatment.

Source: http://www.telegraph.co.uk/motoring/news/7620484/Driver-escapes-jail-despite-driving-down-busy-motorway-with-leg-hanging-out.html

Some incidents resonate in both the personal injury and criminal law contexts, which enables both our injury blog and our criminal law blog to examine the issue from both sides of the spectrum. The situation that will be discussed here and on www.tennesseeinjurylawyerblog.com today is one of those situations. An eighteen year old New York woman has been charged with manslaughter after she drove a van into the yard of a sixty-nine year-old lady while she was mowing, running her over and killing her. The young lady claims the car was out of control at the time of the incident and that she was pressing the brake to try to stop the vehicle. The young lady was apparently high on painkillers when she ran over her victim, having been released prematurely from drug rehab recently due to insurance issues. To make matters worse, the driver did not seem to express much remorse, reportedly telling the police: "The thing that made me feel not so bad was she was old. I mean, 70 years is a long time to live."

In Tennessee, the young lady would be looking at a vehicular homicide charge under T.C.A. §39-13-213. This charge can be applied to any situation where a driver recklessly kills another person by operation of a motor-driven vehicle as a result of that driver’s intoxication. This offense is a Class B felony in Tennessee, and is punishable by up to thirty years in prison.

The bright side for many defendants facing such charges, however, is that the application of mitigating factors such as acceptance of responsibility or showing remorse can substantially reduce a defendant’s sentence when faced with a scenario such as this. However, making statements to the effect that you do not feel so bad because the victim was old and her best days were behind her will do little to increase your chances of obtaining lenience from the court at sentencing based on these factors. Defendants would be better off to consult with an experienced criminal defense attorney as early in the process as possible in order to maximize the chances for a reduced sentence and a favorable resolution to the case.

Source: http://www.1010wins.com/Woman-Charge...as-Old/6869742

The right to choose and participate in a religion is a right that many Americans hold near and dear to their hearts. For the most part, many Americans participate in their religion of choice as frequently and passionately as they want without risking any sort of criminal or other type of penalty for doing so. Occasionally, however, the way a person chooses to practice his or her religion does pose some criminal law issues. Sometimes, as in the case that will be discussed in today’s blog, religious practices can lead to serious criminal charges.

A Maryland mother is awaiting sentencing after pleading guilty in the starvation death of her one year-old son. The mother was reportedly ordered to starve the boy after the leader of the cult, the very regally-named Queen Antoinette, noticed that the boy did not say “Amen” during a mealtime prayer. The mother complied and the boy eventually died of starvation. After the boy died, the cult leader told them to pray for his resurrection. The cult-leader, her daughter, and another man involved were reportedly convicted of second degree murder.

The mother pleaded guilty to child abuse resulting in the death of her son. She did, however, manage to carve out the caveat that if her son was resurrected she would be entitled to withdraw the plea. Assuming her son does not rise from the dead in the meantime, she will be sentenced next Wednesday but is not likely to be facing more jail time.

Continue reading "Woman Awaits Sentencing for Starving Son to Death" »

Any time charges are brought against two or more individuals in connection with the same alleged criminal activity, possible joint representation may be an issue. Joint representation poses certain risks for both the lawyer and the client(s) that differ depending on the circumstances. It can also, however, provide substantial benefits by allowing the clients to share information while still allowing that information to be protected by the attorney-client privilege. Also, it allows the clients to present a united defense that may be stronger than both clients being represented individually, depending on the circumstances.

Often, though, joint representation in criminal cases presents a host of possible difficulties for the attorney-client relationship due to the possibility of a conflict of interest. The various stages of the trial process (including pretrial motions, plea bargaining, presentation of evidence at trial, and the sentencing phase) present numerous opportunities for the interests of the co-defendants to diverge. When that happens, counsel for the parties runs the risk of breaching the ethical standards of the profession by not being able to represent either client effectively if the interests of the clients become so contrary that it affects the representation. This may happen, for example, where the state seeks to admit evidence that incriminates one defendant but exculpates the other. Here, the attorney will have no choice but to adversely affect the interest of one of his clients whether he objects to the evidence or does not.

There are times, however, where the joint representation of clients poses no such risk. The clients’ interests may be completely identical at all points throughout the process and may be best served by joint representation. This consideration is initially left up to the discretion of the attorney, who may decide to represent two or more clients jointly after informing them of the pros and cons of such an arrangement and getting their informed consent. Thus, the best option for defendants who are considering joint representation is to consult with an experienced criminal defense attorney who can inform them as to the positives and negatives of such a choice.

“Community corrections” is a general term that basically encompasses most forms of criminal punishment that do not involve incarceration. For many defendants, a community corrections sentence is a godsend, allowing them to avoid incarceration and instead serve out their sentences by doing some sort of pretrial diversion, halfway house, rehabilitation program, or some other form of non-incarcerated activity. However, placement in community corrections programs is often accompanied by a set of restrictions that an individual must follow in order to remain in the community corrections program.

One primary emphasis of any community corrections program is that the offender remains close to home or, in some cases, at home at all times. This achieves a dual purpose of making sure the offender is surrounded by the support system of his family and friends that can help him avoid further criminal conduct while also allowing the defendant to be monitored easily as his movement is restricted as a punishment measure. While some community corrections alternatives, such as house arrest, may not sound like fun, they are definitely preferable to being incarcerated. As such, defendants should obey carefully the restrictions imposed on their community corrections sentences so as not to lose the privilege of such a sentence.

In State v. McDonald, the defendant was sentenced to an eight-year probated sentence of which house arrest was a restriction. While on house arrest, the defendant left his home without permission on several occasions, which he testified was to care for his ailing mother. However, the court also learned that he had frequented several different locations and was actually unable to be found for certain periods of time during his house arrest. The court thus revoked the defendant’s community corrections privileges and ordered him to serve the rest of his sentence in confinement. Tennesseans facing criminal charges would be well-advised to consult with an experienced criminal defense attorney about what happens both during and after the trial process in order to avoid a similar result.

Source: (State v. McDonald, 35 TAM 15-37, 2/11/10, Nashville, Welles, 4 pages.)

Not surprisingly, defendants who are sentenced to jail time for offenses for which they have been found guilty frequently feel that the sentence was too harsh. While it often turns out that the sentence was reached fairly, there are also times where the sentence was indeed too harsh or was not arrived at properly at the trial court level, warranting a vacation of the sentence by the court of appeals. For this to happen, however, a defendant must know the proper way to appeal a sentence. Failure to include the appropriate items in the record for appellate review can all but ensure that the sentence will stand.

In a case styled State v. Scott that recently came before the Tennessee Court of Criminal Appeals, the defendant was challenging a sentence which included six months of jail time that he received after pleading guilty to vehicular assault and driving on a revoked license. The defendant’s basis for the appeal was that the trial judge erred in failing to grant him full probation. Unfortunately for the defendant, he failed to include a transcript of the guilty plea hearing, presentence report, and victim impact statements in the record for appeal. This prevented the court from conducting a de novo (meaning the sentence would be looked at with no presumption of correctness) review and instead forced the appellate court to view the sentence as though the trial court’s rulings were supported by sufficient evidence. This error pretty much killed the defendant’s chances for reversal in this case, as the appellate court was forced to presume the sentence was correct.

This case illustrates the crucial role that knowing the court system can play in a case. You can have the best appellate argument in the world and have it squashed by a failure to provide the appellate court with the appropriate documents that would allow that argument to be successful. To minimize the chances of making such a mistake on appeal, consult an experienced criminal defense attorney who knows the ins and outs of the appellate process.

Source: (State v. Scott, 35 TAM 15-36, 2/11/10, Knoxville, Ogle, 4 pages.)

Everyone knows someone who has lied, or still lies frequently, about the size and number of the fish they have caught. For whatever reason, exaggerating about the size of “the big one” that a fisherman has landed is as old as fishing itself. Most of the time everyone just assumes a fish was probably a few pounds lighter and a few inches shorter than the angler is claiming and moves on, no harm done.

Things didn’t work out that way for a man from Garland, Texas, for whom lying about the size of his fish has led to jail time and a lengthy probation sentence. The man was participating in a professional bass fishing tournament for which the grand prize was a bass boat, valued at $55,000. In order to emerge victorious and claim said boat, the man stuffed his bass with a lead weight before the weigh-in. Unfortunately for him, lead weights, unlike dead fish, sink when they are placed into a tank of water. Officials reportedly noticed that the fish had nearly sunk to the bottom of the tank and confronted the angler, who admitted to “stuffing” his fish and helped officials uncover the weight.

While the man probably contemplated that he would be disqualified from the tournament, he may not have considered the fact that he would be facing criminal charges. In Texas, just like Tennessee, a person can be charged with theft if he or she comes up with some sort of fraudulent scheme to exercise control over property that does not belong to them. In this case, the man was trying to obtain possession of a $55,000 boat that he had not rightfully won. Also similar to Tennessee, Texas grades the theft according to the value of the property that was stolen, so the man was charged with theft of property between $20,000 and $100,000.

In Tennessee, the man would have been charged with Class C felony theft of property between $10,000 and $60,000. Such a felony is punishable by up to fifteen years in prison and a fine of $10,000. This situation shows that criminal charges that carry serious prison time can often arise where the person may not even expect to be charged. Tennesseans who are looking at a charge of theft should contact an experienced criminal defense attorney who can assist them in disputing the charges and obtaining a fair resolution to the case.

Source: http://cbs11tv.com/pets/fish.tale.lead.2.1632321.html

Search warrants often play critical roles in many criminal cases, primarily because they are usually necessary in order to allow law enforcement officials to invade someone’s privacy in order to search for evidence. There are many principles that govern the legitimacy and use of search warrants, many of which have been discussed in previous blog articles. One in particular is the plain view doctrine, which basically holds thus: if the police have probable cause to search your home, they can seize any evidence of any crime that is in plain view. That is to say, if police are searching your home pursuant to a search warrant authorizing them to search for drugs and the police spot child pornography lying on the kitchen table, they can seize the pornography and arrest you for possessing it.

This doctrine, however, becomes more complicated when the evidence is not in plain view, but is instead contained on a computer that is in plain view. Can police search a computer sitting in plain view if they merely have a search to warrant authorizing a search of the home? The answer is no. Tennessee courts have held that police cannot search a computer pursuant to a search warrant unless that warrant establishes probable cause to search the computer itself. In a recent case that came before the Tennessee Court of Criminal Appeals, the Court found that suppression of evidence of child pornography found on a defendant’s computer was proper where law enforcement officials had searched the computer pursuant to a search warrant authorizing a search of the defendant’s home for drugs. The court reasoned that if the search warrant had established probable cause to believe that the defendant was trafficking in large enough amounts of drugs that records might be found on the computer, then the result may have been different. Since that proposition was not established by the search warrant, however, the search was illegal and the evidence was suppressed.

Search warrants can be of the utmost importance in many cases. An illegal search can lead to suppression of key evidence, allowing the defendant to obtain a not-guilty verdict or avoid trial altogether. Tennesseans who feel they have been subjected to an illegal search should contact a skilled criminal defense attorney who can assist them in suppressing any illegally seized evidence.

Source: (State v. Bearden, 35 TAM 15-26, 2/11/10, Nashville, Welles, 5 pages.)

Child neglect and child abuse cases arise frequently in the criminal law context. There may be many reasons for this, one of which is certainly the fact that supervising a child is a full-time job and that it is difficult to devote your attention to another person twenty-four hours per day. While this may be an intimidating responsibility for some people, Tennessee law expects every guardian of a child to supervise that child and not allow them to be put in danger. Failure to do this can result in criminal sanctions.

Tennessee law provides that “[a] parent or custodian of a child eight (8) years of age or younger commits child endangerment who knowingly exposes the child to or knowingly fails to protect the child from abuse or neglect resulting in physical injury to the child.” As you can see, this statute is worded very broadly and can apply not only where a child is neglected for long periods of time, but also where a child is not supervised properly at any time and gets injured as a result.

A good example of how even a brief lapse in supervision can lead to criminal charges comes from the story of a twelve year-old Florida boy who was recently caught driving his mother’s truck by police. He had apparently been driving for a couple of hours before he was spotted by law enforcement officials. The boy also told police that he had driven to a nearby city to pick up his sister, took her to get a candy bar, and then took her back home. Miraculously, he was able to do all of this without wrecking the vehicle and injuring himself, his passenger, or anyone else.

In Tennessee, the boy’s guardian could be charged under the above-cited child neglect statute. Violation of this statute is a Class A misdemeanor, punishable by up to eleven months and twenty-nine days in jail. However, a person can only be charged under this statute if the person “knowingly” exposes the child to, or fails to protect the child from, danger. “Knowingly” for purposes of this statute is defined as where “[…] the person knew, or should have known upon a reasonable inquiry, that abuse to or neglect of the child would occur that would result in physical injury to the child. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary parent or legal custodian of a child eight (8) years of age or younger would exercise under all the circumstances as viewed from the defendant's standpoint.”

A Class A misdemeanor can result in serious jail time. Tennesseans who have been charged with child neglect or child endangerment should contact an experienced criminal defense attorney who can assist them in contesting that the offense was committed knowingly or in asserting any other defense that a defendant may have to the charges

As discussed in previous blog articles on this site, orders of protection can be very burdensome on respondents, even to the point of giving rise to criminal contempt sanctions. Thus, a respondent who is subject to an order of protection will rightfully have a host of questions about the order. Luckily, many of the questions a respondent has about such an order can be answered by looking at the order itself.

One such question a respondent may have is how long the order will be in effect. The duration of the order will almost always be stated in the order. Under Tennessee law, all orders of protection are effective for a fixed period of time not to exceed one year. However, the court may modify its order at any time if a motion is filed by either party together with an affidavit showing a change in circumstances sufficient to warrant the modification. This means both that the petitioner who sought the order may be able to get it extended for whatever reason upon such a showing, but also that a respondent to an order may be able to get the order shortened or revoked if he or she is able to show a change in circumstances that warrants such treatment. The type of change in circumstances that is necessary depends upon the circumstances of the case and the conditions of the order.

Getting an order of protection shortened, revoked, or otherwise modified can be a huge benefit to the respondent, as violation of the order can lead to criminal contempt sanctions (as will be discussed in an upcoming blog). Respondents who are seeking modification of an order should consult an experienced Tennessee attorney who can assist them in presenting the necessary evidence of a change in circumstances to the court.

As discussed in our previous blog, one of the prohibitions that can be placed in an Order of Protection is that the respondent (the person against whom the Order is issued) is forbidden from stalking the petitioner (the victim, or person who sought the Order). The type of activity that constitutes stalking could be defined differently by different people, but Tennessee has made stalking a criminal offense in T.C.A. § 39-17-315 and has defined what type of activity constitutes “stalking” within that very statute.

Stalking is defined in the Tennessee Code as a “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.” Thus, the Tennessee legislature has basically defined stalking in the same way most people would define such activity. Normally, stalking is a Class A misdemeanor, punishable by up to eleven months and twenty-nine days in jail. However, the existence of an order of protection can increase a person’s period of incarceration dramatically.

Even though an order of protection is technically a civil order, it is being discussed on this criminal law blog because it can have substantial criminal repercussions. The stalking statute demonstrates exactly how this happens. While stalking is usually a Class A Misdemeanor, the offense can be upgraded to aggravated stalking, and the penalty increased to a Class E felony if certain factors are present. One of those factors is that the person charged with stalking “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.” Thus, the mere presence of an Order of Protection increases the penalty for stalking substantially, as a Class E felony is punishable by up to six years in prison and a fine of $3,000. To avoid situations like this, Tennesseans who are charged with stalking or aggravated staling, or are respondents to an order of protection that they feel is unfair, should contact an experienced East Tennessee attorney who can assist them with their case.

If you or anyone you know has been the respondent to an order of protection, you are probably at least generally familiar with the basic workings of such an order. If you have never been a respondent to an order of protection or have little familiarity with the topic, what an order of protection may specifically prohibit can be found in the Tennessee Code.

T.C.A. § 36-3-606 defines the scope of a protection order. The language of this statute is critical for many defendants who have been charged with violating such an order, because those defendants may have a valid defense to the charge if the conduct they engaged in is not actually prohibited by the specific order or by the terms used in the order that are referenced in the statute. An order of protection can, but does not have to, include language that does any of the following or any combination of the following:

“

(1) Directing the respondent to refrain from committing domestic abuse, stalking or sexual assault or threatening to commit domestic abuse, stalking or sexual assault against the petitioner or the petitioner's minor children;

(2) Prohibiting the respondent from telephoning, contacting, or otherwise communicating with the petitioner, directly or indirectly;

(3) Prohibiting the respondent from stalking the petitioner, as defined in § 39-17-315;

(4) Granting to the petitioner possession of the residence or household to the exclusion of the respondent by evicting the respondent, by restoring possession to the petitioner, or by both;

(5) Directing the respondent to provide suitable alternate housing for the petitioner when the respondent is the sole owner or lessee of the residence or household;

Continue reading "Orders of Protection: What Do They Do?" »

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Domestic violence is the root of a great deal of the criminal charges that pop up in Tennessee courts every day. It is no secret that familiarity often breeds tension and that people who spend a significant amount of time together and deal with many of life’s most serious problems together sometimes get in disputes that are taken too far. Domestic disputes sometimes rise to the level that they leave one party feeling for his or her safety. Tennessee law provides for a mechanism, called an order of protection, which allows a person who is in or has been in a domestic relationship with another person to get a court order that will impose criminal penalties on the other person if they engage in a form of forbidden contact with the victim. Plainly put, an order of protection can basically forbid one party (who will be labeled the “respondent”) from having contact with another party (the “victim”) by imposing criminal sanctions on the respondent if the order is violated.

The next few blogs on this site will deal with orders of protection, focusing on the criminal ramifications of violating the orders. However, some basic background information is necessary to understanding exactly what these orders do and don’t do. One of the most basic questions regarding orders of protection is “Who can actually get one?”

Tennessee law provides that victims must be or have been in a domestic relationship with the respondent that falls into one of a variety of categories, including: people who are currently or have formerly been in a dating or sexual relationship, current or former spouses, current or former cohabitants, people who are or were related, and people who are or were children of someone in a relationship of the type described in this article. While this rule seems pretty simple and provides a great deal of guidance as to who can obtain restraining orders, modern society presents many types of complex relationships that may or may not fall clearly within these categories. If an order of protection has been issued against someone you who feels like he or she may not be covered by this rule, consulting an experienced criminal defense attorney is advisable, since he or she can assist you in contesting the order and avoiding the criminal repercussions that may potentially follow the issuance or violation of the order.

Certain types of criminal conduct, like running large-scale drug rings and knocking off mega-casinos Ocean’s Eleven-style, involve the cooperation of multiple individuals in order to be accomplished successfully. Tennessee recognizes that such offenses often require the cooperation of many actors and that some of those actors will never actually engage in the conduct, such as theft, that is sought to be punished by the statute. For example, one man may create an alarm-stifling device that another man uses to rob a bank. If it weren’t for the criminal conspiracy statute, the device-maker may evade punishment altogether.

Criminal conspiracy is defined in T.C.A. § 39-12-103(a) as when “two (2) or more people, each having the culpable mental state required for the offense that is the object of the conspiracy, and each acting for the purpose of promoting or facilitating commission of an offense, agree that one (1) or more of them will engage in conduct that constitutes the offense.” The statute further provides that if a person who conspires with someone that he or she knows has also conspired with other people, then that person is guilty of conspiring with every individual involved in the conspiracy. This is significant because conspiracy is charged as one offense grade lower than the most serious offense charged in the conspiracy, and increasing the number of co-conspirators increases the chance that one of the committed a serious offense. For example, if I were to conspire with X, who committed aggravated robbery, and X conspired with T to commit first-degree murder during the robbery, I may be held liable for conspiracy to commit first degree murder.

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Five New Jersey men have been arrested in connection with the rape of a seven year-old, a situation that was discussed previously on our blog article for April 1, 2010. The men, whose ages are twenty, nineteen, seventeen, thirteen, and fourteen, are reportedly five of the seven men who participated in the rape of the little girl; the other two either have not been identified yet or the authorities are keeping quiet as to their identities. Each of the men was reportedly charged with aggravated sexual assault and child endangerment, and prosecutors are seeking to try all of the offenders as adults.

As discussed in the previous blog dealing with this topic, trying these offenders as adults poses a serious increase in punishment. With this increase in punishment comes the burden of considering whether or not trying these young men as adults is proper under the law. While the offense is one that many will deem heinous and no doubt consisted of extremely troubling conduct, that alone is insufficient to try two kids in their early teens as adults. What also must be considered is the state of mind of the offenders during the commission of the offense and whether that warrants being taken out of the juvenile court system and tried as an adult. For example, how did the thirteen and fourteen year-old men become involved in the situation? Did they seek out the young girls and willingly participate in the conduct, or were they somehow coerced or otherwise intimidated into participating by the older men who participated. Understanding the mental state of the suspects at the time of the offense is key to the determination to try them as adults.

This offense is admittedly one that would shock the conscience of most people who read or hear about it. However, prosecutors should be wary of trying suspects as adults based solely on the nature of the offense itself. Implicit in the decision to try someone as an adult is the belief that he or she was able to reason through the decision to undertake the alleged conduct and deal with its consequences in the same manner than an adult would. Not many thirteen or fourteen year-olds are truly able to do so.

Source: http://www.aolnews.com/crime/article/5-arrests-made-in-gang-rape-of-nj-7-year-old/19425574

Elevator rides are often uncomfortable experiences. For instance, you may find yourself sharing an elevator with someone who smells particularly bad, someone who makes an awkward attempt at conversation, or even a whole group of people who are sandwiched in like sardines. And of course, there’s the occasional elevator ride you have to worry about where you find yourself alone with a completely nude woman armed with a toy gun. If the last scenario has never happened to you, then you probably weren’t at the Hilton Hotel and Spa in Richmond, Virginia last Friday night where a twenty-five year-old woman was apparently found in an elevator minus clothing and plus a weapon by a hotel employee. When the employee asked the woman to leave the hotel, she reportedly pulled the weapon on him, which turned out to be a cap gun. She was arrested and charged with indecent exposure and brandishing a weapon.

In Tennessee, a person can be charged public indecency (which is contained in the same statute as indecent exposure) if he or she “appears in a state of nudity” in public. The exact definition of “nudity” can be found in T.C.A. § 39-13-511(a)(2)(A) for those who are curious, but it is sufficient to say that a person is in a state of nudity in public if they appear with genitals or other private areas visible. A decent rule of thumb is that if you appear in such a manner that you couldn’t be shown on a network TV show, you may be in violation of this statute. A first or second violation of this statute is a Class B misdemeanor, punishable by a $500 fine but no jail time. A third or subsequent violation is a Class A misdemeanor, punishable by a $1,500 fine and up to eleven months and twenty-nine days of incarceration.

As shown above, a public indecency charge can have substantial consequences depending on the suspect’s criminal history. Persons who are facing such a charge should contact a skilled criminal defense attorney who can help them obtain a favorable resolution in their case.

Source: http://www.downtownshortpump.com/2010/03/29/woman-arrested-for-being-nude-brandishing-weapon-in-hilton-hotel/

In what may be one of the most shocking stories you will ever read, a fifteen year-old New jersey girl is charged with aggravated sexual assault, promoting prostitution, and other crimes after she allowed her seven year-old stepsister to be raped by as many as seven men in exchange for money. The teen was reportedly approached with the idea by a group of men in her apartment complex. The teen agreed and led her sister to the apartment where the men were gathered. She then left her sister alone with a group of men while she headed to the back room to conduct her own business. Not knowing what had happened to their two daughters, the girls’ parents had called the police to report that their daughters had run away. After the men had finished with the girls’, the teen dressed herself and left, leaving her little sister behind at the apartment. A couple of men reportedly found her later and lead her home, where she told what had happened. The prosecutor in this case is planning to ask the court to try the teenager as an adult.

In Tennessee, a minor can only be tried as an adult in certain circumstances. The general rule is that a child can be tried as an adult if the child was sixteen years or older at the time of the alleged conduct, or the child was less than sixteen years of age if the child is charged with the offense of first degree murder, second degree murder, rape, aggravated rape, rape of a child, aggravated robbery, especially aggravated robbery, kidnapping, aggravated kidnapping or especially aggravated kidnapping or an attempt to commit any such offenses. Thus, it would appear that if a prosecutor wanted to charge the teen in this situation as an adult in Tennessee, the teen would have to be charged with one of those enumerated offenses. Given the circumstances of the case, it is conceivable that the teen could be charged with some form of one of the listed rape offenses.

Being tried as an adult instead of a juvenile constitutes an immense enhancement in punishment and consequences for many offenses. The decision to try a minor as an adult is one that is not taken lightly by the court and involves a host of considerations. The best course of action for someone who is facing such a situation would be to seek representation from an experienced Knoxville criminal defense attorney who can guide them through the trial process.

Source: http://www.aolnews.com/crime/article/trenton-nj-teen-sold-stepsister-7-for-party-sex-police-say/19422229