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DA: Wilcher/Lee incident not assault
Zavogiannis finds no reasonable fear of bodily harm in alleged threat
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District Attorney General Lisa Zavogiannis says the exchange between county commissioners Michael Shane Wilcher and Ron Lee on Aug. 18, 2014 was not assault and a reasonable person would not have believed they were in danger of bodily injury.
Wilcher sent a video of the incident to the district attorney.
“This letter is in response to your letter dated June 10, 2015, wherein you request this office to open multiple investigations into the alleged misconduct of numerous county and state officials for assault, official misconduct, official oppression, sunshine law violations, etc. all of which appear to follow from an incident that occurred on or around August 18, 2014 involving yourself and Commissioner Ron Lee.”
After reviewing the video, Zavogiannis has determined that no assault “as defined by Tennessee Law” was committed.
“In the video Commissioner Ron Lee is shown holding a document in his right hand while addressing you and making the statement, ‘If you ever send a piece of mail to my property again, at my house, I’ll whip your ass. Do you understand me? Do you understand what I just said to you?’,” said Zavogiannis. “After making the above statements Commissioner Lee was asked whether he was threatening you to which he replied, ‘I didn’t threaten him, I’m making a promise. You don’t send nothing suspicious to my house.”
Tennessee Code Annotated 39-13-101 set forth the law concerning assault as follows:
A person commits assault who: 1) Intentionally, knowingly or recklessly causes bodily injury to another; 2) Intentionally or knowingly causes another to reasonably fear imminent bodily injury; or 3) Intentionally or knowingly causes physical contact with another and a reasonable person would regard the contact as extremely offensive or provocative.
The lack of contact between Lee and Wilcher excludes the first and third sections of the statute, says Zavogiannis.
“The lack of any evidence of physical contact between yourself and Commissioner Lee obviates the need for further analysis of subsections (1) and (3) of the statute,” she said. “This necessarily focuses the inquiry to an analysis of subsection (2) of the statute regarding reasonable fear of imminent bodily injury.”
In State v. Payne in 1999, the Tennessee Supreme Court adopted the Black’s Law Dictionary definition of “imminent” as follows: ‘Near at hand; mediate rather than immediate; close rather than touching; impending; on the point of happening; threatening; menacing; perilous. Something which is threatening to happen at once, something close at hand, something to happen upon the instant, close although not yet touching, and on the point of happening.’
“The court explained,” said Zavogiannis, “that in order for the threat of bodily injury to be imminent a person must be placed in a reasonable probability of danger as opposed to the mere possibility of danger. The court further explained that the zone of danger is one where a reasonable probability exists that the defendant’s conduct would place others in imminent danger of bodily injury if others were present in that area. Thus that which is imminent threat is a threat of something that is about to happen as opposed to something which is threatened to happen in the future or which is threatened to happen based on some intervening event, action or occurrence.”
The use of the word ‘if’ by Lee set a contingency of a future event and no reasonable person would have believed they were in imminent danger of bodily injury, says Zavogiannis.
“The words spoken by Commissioner Lee in the above-referenced video refer to contingencies and future events,” she said. “Importantly he uses the word ‘if’ and sets a condition, i.e. sending mail to his property, as a contingency upon which he would take further action and ‘whip your ass.’ Thus his words do not equate with something that is ‘on the point of happening’ or ‘near at hand.’ There is no evidence in the above-referenced video that the words spoken by Commissioner Lee were accompanied by any overt act or physical movement which would cause a reasonable person to believe that he or she was in imminent danger of bodily injury. Rather, review of the video suggests that after the brief verbal exchange depicted in the video the parties to the conversation simply walked away from one another without further incident.”
Zavogiannis sites Dowlen v. Matthews from 2004 where a police officer sued a Clarksville resident in civil court for assault stemming from a complaint of loud music coming from the resident’s home. In that case, the officer went to the home and the resident stated, “if you come back you will not leave.” The court dismissed the case noting that these words were not accompanied by any overt act or physical movement causing the officer to reasonably believe that he was in imminent danger because witnesses at the scene testified that at the conclusion of the verbal exchange the Clarksville resident simply walked away.
“It is important to note,” said Zavogiannis, “that the Dowlen case was civil in nature and thus the burden of proof presented in that case was one whereby the assault claim would have prevailed simply by sustaining a preponderance of the evidence. The court nevertheless directed a verdict as to the issue of assault and dismissed the case finding that no assault was committed. This office is concerned primarily with the prosecution of criminal cases wherein the burden of proof is even more substantial, i.e. one of proof beyond a reasonable doubt. It is my opinion that there is insufficient proof in this case that Commissioner Lee’s words and actions in this case would cause a person to reasonably fear imminent bodily injury as those terms are interpreted under Tennessee law.”
The letter from Zavogiannis to Wilcher was dated July 10, 2015.
Wilcher filed a federal lawsuit against Warren County government and Lee approximately four months ago claiming he has been “in fear for his safety.” The lawsuit contends that Wilcher has been placed “in reasonable apprehension of imminent physical harm at the hands of Defendant Lee” and “has been in fear of his safety every time he attends a public hearing where Defendant Lee is present and is chilled in his efforts to contact his duly elected officials.” Wilcher is seeking punitive and compensatory damages against both Lee and the county government.
About the letter, Wilcher stated, “She does not even deal with the official misconduct or oppression. She only deals with whether there was an assault. I never asked her if there was an assault or her opinion on it. I asked her to investigate official misconduct and oppression by several elected officials. She doesn’t even deal with it in her letter.”