ALAN E. GLENN, Judge.
The Defendant, Dwayne Jones, was convicted by a Shelby County Criminal Court jury of aggravated assault, a Class C felony, and was sentenced by the trial court as a Range I, standard offender to five years of incarceration. The trial court also imposed the $7000 fine assessed by the jury. The Defendant raises three issues on appeal: whether the trial court lacked subject-matter jurisdiction due to the Defendant's pending petition to remove the case to federal court, pursuant to 28 U.S.C. § 1443; whether the evidence is sufficient to sustain his conviction because the proof did not show that the victim suffered serious bodily injury; and whether the trial court erred in imposing the $7000 fine without making any specific findings of fact regarding the Defendant's financial circumstances and ability to pay. Following our review, we affirm the judgment of the trial court.
FACTS and PROCEDURAL HISTORY
Shortly after midnight on May 21, 2012, Memphis Police Officer Leonard Bockhold, Jr. was booking the Defendant into the Shelby County Jail when the Defendant suddenly hit the officer in the face, knocking him to the floor unconscious and fracturing his jaw and cheekbones. On June 25, 2013, the Defendant was indicted by the Shelby County Grand Jury for the aggravated assault of Officer Bockhold. On August 19, 2014, the Defendant filed a petition in the United States District Court for the Western District of Tennessee to have his criminal prosecution in this case and in his other pending criminal cases transferred to federal court, pursuant to 28 U.S.C. § 1443. The Defendant alleged various, mostly incomprehensible grounds in his petition.
The federal district court ordered the Defendant to file an amended petition bearing his personal, notarized signature rather than that of the non-lawyer who had signed the original petition on his behalf. The Defendant apparently filed an amended petition on December 22, 2014, as well as a series of motions and pleadings. The Defendant was tried before a Shelby County Criminal Court jury from September 15-16, 2015, was convicted of aggravated assault, was subsequently sentenced by the trial court to five years in the county workhouse, and ordered to pay the $7000 fine that had been assessed by the jury. Judgment was entered on October 16, 2015.
On September 30, 2016, the federal district court entered an order remanding the case to the Shelby County Criminal Court on the basis that it lacked subject-matter jurisdiction over the Defendant's state criminal cases. The federal district court noted that the category of cases that are removable under 28 U.S.C. § 1443(1) is narrow and that none of the claims the Defendant raised in his removal petition — of false arrest, false imprisonment, and violation of his right to due process — involved the denial of a right guaranteed under a law conferring a right to racial equality. The federal district court also noted in a footnote that the Defendant had "not properly removed his three criminal cases to federal court" because his "largely incomprehensible" notice of removal was both untimely and failed to meet the procedural requirements of the removal statute. However, the court, citing
The State's first witness at the Defendant's state criminal trial was Sergeant Alisa Styles of the Shelby County Sheriff's Department, the custodian of the jail records, who identified a May 21, 2012 videotape of the intake processing area of the jail, which, she said, showed an inmate being brought into the sally port by a Memphis police officer, the inmate turning around and striking the officer approximately four times in the face after the officer removed his handcuffs, the officer falling to the ground, and the inmate then being "taken down" by two other Memphis police officers and two Shelby County Sheriff's Department deputies. The videotape was admitted as an exhibit and published to the jury.
Memphis Police Officer Leonard Bockhold described his late-night traffic stop of the Defendant on May 20, 2012, for passing other vehicles in the turn only lane, the Defendant's belligerent and uncooperative behavior during the stop, and the Defendant's refusal to sign the traffic citation he issued him for driving in an emergency lane and violation of the financial responsibility law, which led to the Defendant's arrest. Officer Bockhold testified that when they reached the intake processing area of the jail, his partner, Officer Cedric Chalmers, went to the window to get the paperwork while he began removing the Defendant's handcuffs. He stated that after he had removed one cuff, the Defendant began turning around and arguing with him. The Defendant finally stopped trying to spin around, and Officer Bockhold was able to remove the second handcuff. He had just told the Defendant, who was "steadily just mouthing off," to sit down when the Defendant suddenly hit him.
Officer Bockhold testified that "everything went white and then everything went black." When he regained consciousness, he at first did not know where he was but eventually realized he was lying on the floor in the sally port. He identified his hospital medical records, which were admitted as an exhibit and which reflect that he sustained an open wound of the lip, a concussion with loss of consciousness, and closed fractures of the malar and maxillary bones. He said he experienced extreme pain in his jaw and head, especially for the first two days following the assault. He rated his level of pain as a "ten" on a scale of one to ten and testified that, for the first two days following the assault, he was unable to lie down or sleep and experienced such extreme vertigo that he repeatedly vomited. He further testified that he continued to experience vertigo to the present day and that his physician had informed him it would likely be an ongoing problem due to the damage caused to his inner ear.
Officer Cedric Chalmers of the Memphis Police Department described the Defendant's uncooperative behavior during the traffic stop, including his refusal to sign the traffic ticket, his instruction to his female passenger not to obey Officer Bockhold's directions, and his attempt to roll up his driver's window on Officer Bockhold's arm. Officer Chalmers testified that the Defendant was verbally belligerent after he was handcuffed and placed under arrest, shouting that he was an attorney and knew the law. Officer Chalmers stated that when they reached the jail, he went up to the window to begin the booking process while Officer Bockhold removed the Defendant's handcuffs. He recalled that Officer Bockhold asked the Defendant to sit down and that the Defendant refused, saying that he did not have to do so. Officer Bockhold then took hold of the Defendant's left arm in an attempt to escort the Defendant to the seat. At that point, the Defendant raised his arm and struck Officer Bockhold. Officer Chalmers testified that he responded by going over and doing "what [he] had to do" to take the fighting Defendant into custody. In the meantime, Officer Bockhold was lying unconscious on the floor behind Officer Chalmers and the other law enforcement officers who were struggling with the Defendant.
Officer Jacques Pope of the Memphis Police Department testified that he was at the intake processing window when the two officers brought in the Defendant. He saw Officer Bockhold remove the Defendant's handcuffs and heard him ask the Defendant to take a seat, which the Defendant refused to do. When Officer Bockhold again asked the Defendant to sit down, the Defendant turned around and struck the officer approximately three times, knocking him unconscious. At that point, Officer Pope assisted Officer Chalmers in taking the Defendant into custody, while his prisoner, who had been seated in the sally port, attempted to render aid to Officer Bockhold.
Deputy Robert Henderson of the Shelby County Sheriff's Department testified that he was working in the fugitive office, directly adjacent to the sally port, around 12:30 a.m. on May 21, 2012, when he heard an argument between an officer and a prisoner. Anticipating an "incident" based on the prisoner's agitated tone, he put away his weapon and chemical spray in preparation for entering the sally port,
The Defendant elected not to testify and rested his case without presenting any evidence. Following deliberations, the jury found him guilty of aggravated assault and assessed a $7000 fine. At the sentencing hearing, the trial court noted that the Defendant had no prior criminal convictions. It also noted that the Defendant had refused to cooperate with the preparation of his presentence report and that the case was unique in that the entire incident had been captured on the jail's surveillance videotape. The court applied as an enhancement factor the fact that the Defendant committed the offense against someone whom the Defendant knew to be a police officer acting in his official duties. See Tenn. Code Ann. § 40-35-114(19). Finding no applicable mitigating factors, the court sentenced the Defendant as a Range I, standard offender to five years and imposed a $7000 fine. Because of the Defendant's pending charges for a separate assault, rape of a child, incest, aggravated sexual battery, and retaliating against a witness, the trial court denied the Defendant's request for probation.
I. Jurisdiction of Criminal Court
The Defendant first contends that the state criminal court lacked jurisdiction over his case because of his pending application to transfer the case to the federal district court, pursuant to 28 U.S.C. § 1443. The State argues that under the controlling authority in the Sixth Circuit, the removal statute was never properly invoked because the Defendant's removal petition was untimely and that the trial court, thus, retained complete jurisdiction over the case. In the alternative, the State argues that the trial court retained jurisdiction to proceed with the trial and verdict, but not to enter judgment, because the federal removal statute allows state court proceedings to continue until the federal court rules on the removal petition. The State asserts that in such a case, where the trial court erroneously and prematurely entered a judgment, this court lacks jurisdiction and the case should, therefore, be remanded to the trial court for entry of a valid judgment.
The federal statute cited by the Defendant provides in pertinent part that a criminal prosecution commenced in a state court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending:
28 U.S.C. § 1443. The procedural requirements for a petition to remove a criminal case to federal court are as follows:
28 U.S.C. § 1455.
The Defendant, who concedes that his removal petition was untimely, contends that there is a split of authority on whether a late-filed petition divests the state court of jurisdiction. He relies on
We find the Defendant's argument — that a "plain" reading of the removal statute indicates that the trial court was without jurisdiction to even try the Defendant — to be a substantial stretch. Regardless, we need not even address the Defendant's argument on this point, as we agree with the State that under the controlling authority of the Sixth Circuit, the Defendant's untimely petition for removal was insufficient to invoke the removal statute and that the state court, therefore, retained complete jurisdiction over the Defendant's case. In
As the State points out,
The State also correctly points out that
Therefore, relying on
II. Sufficiency of the Evidence
The Defendant next contends that the evidence is insufficient to sustain his conviction. Specifically, he argues that there was insufficient proof from which the jury could find beyond a reasonable doubt that the serious bodily injury element of the offense was satisfied. The State disagrees, arguing that the victim's medical records and testimony about his severe pain following the assault were sufficient to satisfy the serious bodily injury element of aggravated assault. We agree with the State.
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."
"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."
"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."
To sustain the conviction for aggravated assault, the State had to show beyond a reasonable doubt that the Defendant knowingly committed an assault of Officer Bockhold, as defined in Tennessee Code Annotated section 39-13-101(a)(1), and that the assault resulted in serious bodily injury to the officer.
Here, by contrast, the victim specifically testified that he experienced extreme pain, which he rated as a "ten" on a scale of one to ten, following his assault. He further testified that his pain was such that he was unable to lie down or sleep for the first two days following the assault and that he experienced such extreme vertigo that he repeatedly vomited. "[T]he subjective nature of pain is a question of fact to be determined by the trier of fact[.]"
II. Imposition of $7000 Fine
Lastly, the Defendant contends that the trial court erred by imposing the $7000 fine fixed by the jury because it did not make any specific findings regarding the appropriateness of the amount of the fine. The State points out that the Defendant raised no complaint about the fine at his sentencing hearing and refused to cooperate with the preparation of his presentence report. The State, thus, argues that the trial court cannot be found to have abused its discretion by not reviewing an issue for which no proof or complaint was raised by the Defendant. We, again, agree with the State.
We review a trial court's imposition of a fine, which is part of a defendant's sentence, under an abuse of discretion standard.
As the State points out, the Defendant raised no objection and made no argument against the trial court's imposition of the $7000 fine at sentencing. He also did not raise the issue in his motion for new trial or argue it at the motion for new trial hearing. Moreover, the Defendant refused to cooperate with the preparation of his presentence report, providing no information about his background, including his financial resources or ability to pay. Instead, the Defendant, at the sentencing hearing, complained about his counsel and made confusing statements about the violation of the "peace treaty" of the "indigenous people" and not being tried by a "blue-ribbon jury." As such, we cannot conclude that the trial court abused its discretion in imposing the $7000 fine assessed by the jury. We, therefore, affirm the sentencing as imposed by the trial court.
Based on the foregoing authorities and reasoning, we affirm the judgment of the trial court.