State v. Irwin, No. E2005-00908-CCA-R3-CD (TN 3/31/2006), E2005-00908-CCA-R3-CD.

• Decision Date: 31 March 2006
• Docket Number: No. E2005-00908-CCA-R3-CD.,E2005-00908-CCA-R3-CD.
• Parties: STATE OF TENNESSEE v. JOANNE GELENE IRWIN.
• Court: Tennessee Supreme Court

Page 1

Unpublished Opinion

STATE OF TENNESSEE v.JOANNE GELENE IRWIN.

No. E2005-00908-CCA-R3-CD.

Court of Criminal Appeals of Tennessee, at Knoxville.

January 24, 2006 Session.

Filed March 31, 2006.

Direct Appeal from the Criminal Court for Knox County; No. 75518; Richard R. Baumgartner, Judge.

Judgment of the Trial Court Affirmed.

Michael T. Cabage, Knoxville, Tennessee, for the appellant, Joanne Gelene Irwin.

Paul G. Summers, Attorney General & Reporter; Leslie Price, Assistant Attorney General; and Ta Kisha M. Fitzgerald, Philip H. Morton, and Mitchell T. Harper, Assistant District Attorneys General, for the appellee, State of Tennessee.

Gary R. Wade, P.J., delivered the opinion of the court, in which William H. Inman, Sp. J., and James Curwood Witt, Jr., J., joined.

OPINION

GARY R. WADE, Presiding Judge.

The defendant, Joanne Gelene Irwin, was convicted of two counts of simple assault, Class A misdemeanors.SeeTenn. Code Ann. § 39-13-101(1997).After merging the two counts of simple assault, the trial court imposed a sentence of eleven months and twenty-nine days and ordered thirty days of confinement.The defendant was fined $1,000.Judicial diversion was denied.In this appeal of right, the defendant argues that she should have been permitted to introduce evidence of the juvenile record of the victim for impeachment purposes under Rule 609 of the Tennessee Rules of Evidence; that the trial court submitted erroneous instructions to the jury; that the trial court imposed an excessive sentence; and that the trial court abused its discretion by denying judicial diversion.The judgment of the trial court is affirmed.

In the spring of 2002, the victim, Ladashia Janee Rucker, was an eighth grade student at the Karns Annex School.The defendant, employed as a bus driver, drove the victim and five or six others to and from school each day.An aide, identified only as Mr. Bennett, was ordinarily on the bus to help supervise the students.On the morning of May 17, 2002, the defendant and the victim had an argument.In the afternoon, while the victim was being transported to her residence, the argument escalated into a physical altercation which resulted in the arrest of the defendant.

At trial, the victim, by then a tenth grader, testified that on the morning of the offense, she was arguing with a fellow student, Trey Hackler, when the defendant loudly ordered, "[S]hut up!"According the victim, she responded, "You can't talk to me like that `cause you ain't my mama."The victim claimed that the defendant made a reference to her own daughter to which the victim responded, "[She] can be squished . . . ."While acknowledging that she had called the defendant a bitch during the course of the argument, the victim claimed that the defendant had used the same word to describe her.She maintained that the argument continued until just before the aide boarded the bus at a Kroger grocery store.The victim stated that she informed the aide about the argument and later, after arriving at school, provided a written statement about the incident to the principal.

The victim testified that sometime after she boarded the bus that afternoon to return to her residence, she overheard the defendant, who was on a cell phone, warn, "Don't smack her down too hard."By then, the aide had left the bus.The victim further testified that soon after the phone conversation ended, the defendant stopped at her own house and that the defendant's daughter, Christina, ran toward the bus.According to the victim, the defendant allowed her daughter to board the bus for the apparent purpose of retaliating for the derogatory remarks she had made earlier that morning.She testified that the defendant's daughter, who was "way bigger" than her, confronted her and then struck her.The victim stated that she fought back but during the course of the struggle, the defendant joined in, grabbing the victim by her neck and holding her while her daughter struck her in the face.The victim testified that some of her hair had been pulled out, leaving her with a bald spot.She stated that the defendant never attempted to stop the fight and claimed that she was an agitator in the incident.According to the victim, Trey Hackler and Joann Brooks, another occupant, attempted to pull the defendant off of her and that others on the bus had also helped stop the initial altercation.She stated, however, that the battle resumed in the back of the bus and that when she was able to get the upper hand over Christina, pulling out some of her hair, the defendant again intervened, grabbing the victim by her hair.The victim, who weighed less than ninety pounds, contended that she wanted the fight to stop but had to defend herself.She recalled that another student, Chelse Christian, got off the bus and persuaded a male bystander to stop the melee.The victim testified that during the struggle, her pants were removed, both shoes came off, and her shirt was ripped.She stated that when the defendant's daughter left the bus, the defendant drove to the home of Ms. Brooks, where she ordered the victim to get off the bus.She recalled that she left the bus wearing only her shorts, her shirt, and a single shoe.She maintained that her pants and her other shoe were never returned, that she had to wear a neck brace for three weeks, and that she received a permanent scar.The victim testified that she went inside the Brooks home and, after discussion, Ms. Brooks' grandmother called the police.The victim declined ambulance service, explaining that her mother took her to the hospital.The police took photographs of her injuries.

On cross-examination, the victim acknowledged that during the school year, she had left Vine Middle School in order to avoid conflicts with some of the other female students.She acknowledged that about a month before this incident, she got into a fight on a bus.The victim admitted that the bus driver, possibly the defendant, notified the police in that situation, which resulted in the victim's arrest.She denied having trouble with any of the students at Karns Annex, asserting that the other school bus incident some thirty days earlier was her only previous altercation.She testified that she had never engaged in a fight at any other school.The victim acknowledged that the defendant's daughter had been on the bus on prior occasions.She also admitted that shortly after the incident her family had filed a civil suit against the defendant seeking damages.

Joann Brooks, age sixteen at the time of trial, testified that she was also a passenger on the bus on the morning and afternoon of May 17, 2002.She recalled that the defendant and the victim engaged in an argument, each calling the other a bitch.She then overheard the defendant say, "[T]here's a fly flying around," to which the victim responded, "[Y]our daughter can be squashed like a fly."Ms. Brooks remembered that the defendant then told the victim that her daughter could "blow [the victim] away."She testified that when the aide boarded the bus shortly thereafter, the victim informed him of the argument.Ms. Brooks confirmed that she and the victim had also told their teacher about the incident when they arrived at school and had to submit a written statement.

Ms. Brooks stated that on the bus ride home that afternoon, the defendant dropped off some of the occupants and then made a phone call during which she said, "Don't smack her too hard, don't smack her down."She corroborated the victim's claim that the defendant stopped the bus in front of her own house and allowed her daughter to board.She recalled that the defendant's daughter confronted the victim saying, "What's this about [the victim] talking stuff," and then striking her before she received an answer.She testified that a fight ensued, at which point the defendant approached the two girls, picking the victim up by her neck.Ms. Brooks stated that she attempted to pull the defendant's daughter off of the victim while Trey Hackler attempted to force the defendant away from her.It was her recollection that the fight was temporarily stopped before the two girls re-initiated the altercation.She testified that the defendant then grabbed the victim's braids while her daughter struck her.Ms. Brooks stated that when the victim was able to push the defendant's daughter to the floor of the bus, the defendant grabbed the victim's hair and said, "Well, you're not getting the best of my daughter no more."She recalled that a man then boarded the bus and stopped the fight.According to Ms. Brooks, the defendant ordinarily would have dropped off another student, Chelse Christian, next but instead drove straight to the Brooks' residence.She overheard the defendant tell the victim that she"needed" to get off the bus there.Ms. Brooks described the victim as having "scratches all over" and "a big old bald spot in the back of her hair."She confirmed that the victim was missing her pants and one of her shoes.Ms. Brooks acknowledged that she had an argument with the defendant's daughter about a month before this incident.

Chelse Christian, fifteen years of age at the time of trial, testified that she rode the bus to and from school on the day of the fight.According to Ms. Christian, who was in juvenile custody at the time of her testimony, the defendant stopped at her own house during the afternoon route and blew the horn for her daughter.She stated that Christina entered the bus, "got in [the victim's] face," and started punching her.Ms. Christian also testified that the victim fought back before the defendant joined in, grabbed the victim by the throat, and held her while her daughter struck and kicked her.She recalled seeing the hair pulled out of the victim's head.Ms. Christian maintained that the defendant made no effort to separate the two combatants and so she got off the bus to ask a male bystander to call the police.She...