A Cannon County man was denied his appeal to have his conviction overturned by the Tennessee Court of Appeals today. Following is a summary of the case and opinion.
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
July 20, 2011 Session
STATE OF TENNESSEE v. JOSEPH DEAN MOORE
Direct Appeal from the Circuit Court for Cannon County
No. F0982 Don R. Ash, Judge
No. M2010-02661-CCA-R3-CD - Filed January 30, 2012
The defendant, Joseph Dean Moore, appeals his conviction and sentence after being found guilty by a Cannon County jury on the charge of failure to appear, a Class E felony. On appeal, the defendant contends that the evidence is insufficient to support his conviction, arguing that his resolve to kill himself constituted a good, reasonable excuse for failing to appear at a legal proceeding. Further, he contends that the maximum sentence of four years, as a Range II offender, was excessive and that he should have been given an alternative sentence of probation. Concluding that no reversible error occurred upon this record, we affirm the judgment from the trial court.
While on probation for two Cannon County felony convictions, a violation of probation warrant was issued against the defendant (Moore). He was arrested pursuant to said warrant, and a hearing date was set for January 9, 2009. The defendant made bond and appeared for his January 9, 2009 court date. That hearing was rescheduled for February 13, 2009, at which time the defendant again appeared. That hearing was rescheduled for March 13, 2009. It is the defendant’s failure to appear in court on March 13, 2009, that resulted in the charge in the instant case.
On June 10, 2010, the defendant was tried before a Cannon County jury on the charge of failing to appear. The Assistant District Attorney General’s (David L. Puckett) opening remarks to the jury were brief. He stated that the defendant was arrested on a violation of probation warrant, had posted a bond, was released from jail, and failed to show up on March 13, 2009, as instructed by the court.
In opening statements, defense counsel stated that “[the defendant] doesn’t deny anything that the State said.” Rather, defense counsel offered the jury what he contended was a reasonable excuse for the defendant’s failure to appear. He proposed that the defendant, who was depressed and upset about the prospect of having to go to prison, decided he would rather take his own life. He admitted that the defendant did not
show up as required by law at the hearing but noted that, after considering suicide for two months, the defendant turned himself in because he decided he could hurt the people he loved.
The parties entered a written stipulation that the charges for which the defendant was on probation at the time he failed to appear were felony convictions. Next, the State called Mary Floyd, the defendant’s bonding agent, who testified that she bonded the defendant out of jail on January 9, 2009, for subsequent court appearances in the very courtroom in which she was testifying. She testified that the defendant did not show up for court on March 13, 2009, and that she attempted to locate him thereafter. She testified that she went to the address that the defendant had given her when he made bond and also called the phone number that he had given, but she was never able to locate him. She testified that she hired JJ’s Recovery Agency, who found the defendant.
Next to testify was Robert H. Davenport, the Cannon County Circuit Court Clerk. Through him, the State elicited several exhibits showing the court records reflecting that the defendant did not appear in court on March 13, 2009, after being so directed and that a capias was issued against the defendant, with instructions to hold him without bond. That capias was served on the defendant on May 22, 2009.
Next, the State called Tammy Spooner, a court reporter. Through her testimony, the State introduced the transcript of a September 10, 2009 probation revocation hearing against the defendant. The transcript reflects that, during that hearing, the defendant was specifically asked if he failed to appear in court on March 13, 2009, as he knew he was supposed to do. His answer was yes, and the State rested its case.
The defendant took the stand and admitted that he did not appear for his March 13, 2009 hearing but stated that he did not do so because, on March 12, 2009, he had decided to commit suicide. He testified that he was depressed, having difficulty sleeping, and otherwise worried about “this stuff.” The defendant described several scenarios of committing suicide which he had contemplated, such as throwing himself in front of a semitrailer, ending his life with a gun, and throwing himself off of a hotel balcony, which he testified he had attempted several times. He testified that he contemplated killing himself from March 12 until May 21, before finally deciding he could not and should not go through with it. He then turned himself in at the Cannon County Jail. The defense rested following this testimony.
The jury returned a verdict of guilty as charged of failure to appear. A sentencing hearing was held on August 20, 2010. No witnesses were called; however, the State introduced fifteen exhibits considered by the trial court, and the defendant offered as a mitigating factor the fact that he turned himself in at the jail. Because this offense occurred while the defendant was out on bond, it was agreed that the law required its service to be consecutive to the defendant’s prior sentence.
The defendant did not dispute that he was a Range II, multiple offender. The trial court found as enhancing factors that the defendant had a previous history of criminal convictions and behavior, that he had failed to comply with conditions of sentencing, and that this offense was committed while on bond or probation. The court found as a mitigating factor that his actions neither caused nor threatened serious bodily injury to anyone. The court set the defendant’s sentence at four years in the state penitentiary, concluding that he was not a good candidate for probation. The defendant has now timely appealed.
The record establishes that the defendant has two prior probation revocations, committed the instant offense while on conditional release, and has an extensive criminal history. His prior convictions include statutory rape, identity theft, driving under the influence, fraud, theft, and assault. We cannot conclude that the court erred in ordering a sentence of incarceration. The defendant is entitled to no relief on this issue.