State v. Ammons, No. M2006-00286-CCA-R3-CD (Tenn. Crim. App. 6/21/2007)

Decision Date21 June 2007
Docket NumberNo. M2006-00286-CCA-R3-CD.,M2006-00286-CCA-R3-CD.
CourtTennessee Court of Criminal Appeals

Justin Johnson, Nashville, Tennessee, for the appellant, Mark A. Ammons.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Victor S. (Torry) Johnson III, District Attorney General; and Sharon Reddick, Assistant District Attorney General, for the appellee, State of Tennessee.

Thomas T. Woodall, J., delivered the opinion of the court, in which David H. Welles and Robert W. Wedemeyer, JJ., joined.



Defendant, Mark A. Ammons, was indicted on one count of assault, a Class A misdemeanor, and one count of theft of property less than $500.00, a Class A misdemeanor. After a bench trial, Defendant was found guilty of the offense of assault and not guilty of theft of property. Following a sentencing hearing, the trial court sentenced Defendant for his assault conviction to thirty days to be served in the county workhouse. On appeal, Defendant argues that (1) the evidence is insufficient to support his assault conviction; (2) the trial court erred in permitting the State to amend the indictment after jeopardy attached; and (3) the trial court erred in not sustaining Defendant's objection to the introduction of hearsay evidence. After a thorough review, we conclude that the trial court erred in allowing the State to amend count one of the indictment without Defendant's consent after jeopardy attached, but that such error was harmless beyond a reasonable doubt. We therefore affirm the judgment of the trial court.

I. Background

Ramona Reid was a loss prevention investigator for Home Depot at the time of the incident at the company's Bellevue location. Ms. Reid testified that on September 19, 2003, she was in the store's parking lot when she saw Defendant approach a group of azaleas which were located outside the store's entrance. Defendant put two azalea shrubs in his cart and then pushed the cart into the parking lot. Ms. Reid ran toward Defendant, calling out that Defendant had to pay for the shrubs. Ms. Reid said that she was not wearing a uniform, but she identified herself as a member of the store's loss prevention team. Defendant turned his cart around and headed for the contractor's entrance to the store.

Ms. Reid was approximately twenty to thirty seconds behind Defendant. When she entered the store, Defendant was at a checkout counter. The sale had been rung up, and Defendant was offering his credit card to Nelda Lusk, the cashier, as payment. Ms. Reid placed her hand on Defendant's jacket and told Defendant that they needed to discuss the incident. Ms. Reid said that Defendant grabbed Ms. Reid's arm, and "there was a brief struggle." Ms. Reid said that Defendant stepped on her foot at one point during the struggle and pushed her arm away. Ms. Reid stated on cross-examination that it hurt when Defendant stepped on her foot.

Ms. Reid followed Defendant into the parking lot. Ms. Reid said that she and Defendant "were both grabbing at each other." Ms. Reid had a grip on Defendant's shirt, and Defendant slipped out of his shirt. Ms. Reid said she decided not to escalate the situation in accordance with the company's loss prevention policy, and Defendant got into his truck and drove off.

Ms. Lusk testified that she had rung up Defendant's azalea shrubs on the cash register when Ms. Reid entered the store. Ms. Lusk described Ms. Reid's tone as "reasonable." Ms. Lusk said that when Ms. Reid spoke to Defendant, he "stepped away from her," and left the building. On cross-examination, Ms. Lusk said that she did not see Defendant push or shove Ms. Reid at the checkout counter.

Jeff Bennett, a Home Depot employee, was in the parking lot when Ms. Reid and Defendant left the store. Mr. Bennett said he saw Ms. Reid and Defendant struggle, and Ms. Reid put a hand on Defendant's arm.

Donna Ammons, Defendant's wife, testified that she and Defendant were looking at chandeliers in the Bellevue Home Depot Store on September 19, 2003. As they were leaving, Ms. Ammons told Defendant to pick out two azalea shrubs. Ms. Ammons returned to her car and drove up to Defendant in the parking lot. Ms. Ammons handed Defendant his wallet so that he could pay for the shrubs and then drove out of the parking lot.

Defendant testified on his own behalf. Defendant said that he put two azalea shrubs in a cart and then waited for Ms. Ammons to drive by and hand him his wallet. Defendant pushed his cart toward the contractor's entrance to pay for the shrubs. Defendant said that he did not notice Ms. Reid in the parking lot. Defendant said that his purchase had been rung up when Ms. Reid approached him and grabbed him by the arm. Ms. Reid identified herself by three initials, but Defendant did not understand their meaning. Defendant said he was "embarrassed" and "upset," and tried to leave the store. Ms. Reid followed Defendant into the parking lot and grabbed his shirt. The shirt ripped and fell off, and Defendant left the store in his truck. Defendant denied stepping on Ms. Reid's foot. Defendant said that he intended to return to the store later and find out why Ms. Reid had confronted him.

II. Amendment to the Indictment

Five days following the incident on September 19, 2003, at the Home Depot Store in Bellevue, Defendant was charged in an arrest warrant with committing the offense of misdemeanor assault by causing bodily injury to Ramona Reid, an employee of Home Depot. A preliminary hearing was held in the General Sessions Court of Davidson County, and the case was bound over to the Davidson County Grand Jury.

Subsequently, on May 28, 2004, the Grand Jury returned an indictment charging Defendant with the misdemeanor assault of Margie Adams on September 19, 2003. Ramona Reid, the alleged victim in the arrest warrant, as well as Margie Adams, were listed as witnesses on the indictment. The address of both women was listed as the Home Depot store in Bellevue.

Defendant waived his right to a jury trial, and a bench trial was held on January 18, 2005. Ramon Reid was called as the State's first witness. Immediately following Ms. Reid giving her oath to tell the truth, Defendant's counsel made an oral motion for the trial court to dismiss the assault charge. Defendant correctly asserted that jeopardy had attached. He further brought to the attention of the trial court that while the State's position was that Defendant had assaulted Ramona Reid, the indictment alleged that he had assaulted Margie Adams, "a witness the State does not even have here."

The trial court denied Defendant's motion based upon the fact that no proof had yet been heard. The State proceeded to present its proof and called as witnesses, Ramona Reid, Nelda Lusk, and Jeff Bennett, all of whom were employees of the Home Depot store. Margie Adams was not called as a witness by the State or Defendant.

Immediately upon the close of the State's proof, the prosecutor moved to amend the indictment. The prosecutor stated as follows:

Your Honor, that's the State's proof. At this point, Your Honor, I'd like to amend the indictment as to count one to reflect Ramona Reed [sic] as the victim. That's obviously a clerical error.

Defendant's counsel objected to the proposed amendment to the indictment, stating:

[The State] already closed [its] proof and we are getting ready to make a motion to dismiss count one because the State, for whatever reason, has indicted [Defendant] for an assault on the wrong person.

In granting the State's motion , the trial court stated:

There is wide allowance with regard to the amending of the indictment. It is normally allowed if it does not increase the penalty of the crime charged. This one does not. I'll allow the amendment.

Analysis of the issue raised by Defendant on appeal necessitates a review of case law regarding the amendment of indictments, necessary allegations which must be alleged in indictments, and harmless error versus reversible error. We can comfortably assume that the prosecutor's trial preparation was sufficient to know the facts of the case because of the identity of the witnesses called to testify. A modicum of additional preparation, that is, reading the indictment prior to trial, would have necessarily revealed a problem that presumably could have been readily cured prior to jeopardy attaching. In addition, the tactic of delaying a motion to amend until the close of the State's proof, rather than immediately upon becoming aware of a problem before the first witness testified, results in an additional fact which must be weighed in determining whether any error by the trial court is reversible or harmless.

Clearly, in this bench trial, jeopardy attached as to the indictment charging Defendant with assault (of Margie Adams), when Ramona Reid, the first witness, was given the oath to testify truthfully. State v. Daniels, 531 S.W.2d 795, 801-02 (Tenn. Crim. App. 1975).

When a defendant properly objects, an indictment cannot be amended after jeopardy attaches. State v. Carter, 121 S.W.3d 579, 587 n.5 (Tenn. 2003)("Tennessee rule of Criminal Procedure 7(b) only allows for an indictment to be amended without consent of the defendant if it is done before jeopardy attaches."); State v. Lindsey, 208 S.W.3d 432, 439 (Tenn. Crim. App. 2006); State v. Lane, 673 S.W.2d 874, 875 (Tenn. Crim. App. 1983).

Accordingly, it was error for the trial court to grant the State's motion to amend the indictment; consequently, the indictment, at the close of the State's case and thereafter should have remained as a charge that Defendant assaulted Margie Adams. This does not end our inquiry. Under our case law, we must first determine if the...

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