text:
    STATE of Missouri, Respondent, v. David Wayne GARRIOTT, Appellant.
    No. WD 63714.
    Missouri Court of Appeals, Western District.
    Dec. 21, 2004.

      F. Randall Waltz, III, Jefferson City, MO, for Appellant.
    Carol A. England, Fulton, MO, for Respondent.
    Before LISA WHITE HARDWICK, P.J., ROBERT G. ULRICH and THOMAS H. NEWTON, JJ.
   THOMAS H. NEWTON, Judge.

Mr. David Wayne Garriott was convicted of driving while intoxicated and failing to yield to an emergency vehicle. Mr. Gar-riott claims that the trial court erred in denying his motion to suppress all the evidence obtained after he was stopped by the police officer because the stop was an unreasonable search and seizure. He also claims that there was insufficient evidence to support the conviction for failure to yield. And he claims that his application for a change of judge should have been granted because the judge was biased and prejudiced against him. We affirm.

I. Factual and Procedural Background

On November 23, 2002, Missouri State Highway Patrol Trooper Scott Carey was traveling westbound on Route F. As he was making a left-hand turn onto Airway Drive, he observed one pick-up truck rear end another pick-up truck at a stop sign on the corner of Airway Drive and Route F. Mr. Garriott was the driver of the front truck.

Mr. Garriott was stopped at the stop sign when the other truck struck him. Trooper Carey described the impact as hard enough that it jolted Mr. Garriott’s truck. Mr. Garriott described the impact as a minor bump that had no jarring effect. Trooper Carey activated his lights and turned around to investigate the accident. As he approached, Mr. Garriott had already turned right and driven westbound down Route F, without stopping to assess any damage or to speak to the driver who rear-ended him. Trooper Carey motioned to the driver of the rear truck to follow him and proceeded after Mr. Garriott’s truck. The driver who struck Mr. Garriott did not actually follow Trooper Carey and drove off. At some point while following Mr. Garriott, Trooper Carey turned on his siren. Mr. Garriott then pulled over onto the shoulder before reaching Hawk Lake Road.

Trooper Carey testified that it took longer than a vehicle normally takes for Mr. Garriott to pull over. He also testified that Mr. Garriott probably traveled one-half to three-quarters of a mile between when Trooper Carey first activated his lights at the intersection of Airway Drive and Route F and when Mr. Garriott actually pulled over. Mr. Garriott claimed that after he was rear-ended he waited until he saw that Trooper Carey was driving off before he turned onto Route F. He testified that after he had driven about one-quarter of a mile he saw Trooper Carey’s fights in his rearview mirror and immediately pulled over.

Trooper Carey testified that he followed and stopped Mr. Garriott’s truck because he became concerned when the vehicle left the scene of the accident, particularly since Mr. Garriott was the victim. Trooper Carey wanted to make sure that Mr. Garriott was not hurt because he had seen other people injured in accidents with that magnitude of impact. Trooper Carey also testified at the motion to suppress hearing that he was concerned that this might be a road rage incident or that a fight could result. And he stated that he wondered why the victim would drive off from the scene of an accident, unless he had an outstanding warrant or was intoxicated.

Once Trooper Carey stopped Mr. Gar-riott and approached his car to speak with him, the trooper detected the odor of intoxicants coming from the truck. Trooper Carey asked Mr. Garriott to step out of the car. He noticed that Mr. Garriott’s speech was slurred. He asked Mr. Gar-riott to perform five field sobriety tests. After they were completed, Trooper Carey determined that Mr. Garriott was intoxicated and placed him under arrest. Mr. Garriott refused to take a breathalyzer test, and the Director of Revenue revoked his driver’s license under section 577.041.

When Trooper Carey asked Mr. Garriott why he drove off, Mr. Garriott said that his truck was old and he did not care even if there was any damage to it.

Mr. Garriott was charged with driving while intoxicated, in violation of section 577.010 (count 1), and with failing to yield to an emergency vehicle, in violation of section 304.022 (count 2). Four different judges were assigned to Mr. Garriott’s case. The first judge recused himself; the State moved to recuse the second judge, who then recused himself because he had heard Mr. Garriott’s civil appeal of his driver’s license revocation; and Mr. Gar-riott moved to disqualify the third judge.

Mr. Garriott filed a motion to suppress all evidence obtained after Trooper Carey stopped him, claiming that the stop violated the Fourth Amendment of the United States Constitution because it was an illegal search and seizure and, therefore, all evidence collected after the stop could not be considered. This motion was denied.

A bench trial was scheduled but Mr.. Garriott and his counsel arrived late because defense counsel had the wrong time written down. The trial was continued to another date because they were in the jury deliberation room and the recording equipment was not working properly. The judge made the following hand-written docket entry:

11-3-03 State by England. A [defendant] in person & by counsel Randall Waltz. Ct notes cause was set and notice given for trial at 1:00 pm this date, and counsel fail to appear until 1:30 pm. files Motion for Findings of Fact and Conclusions of Law. A given leave to amend by interlineation. Due to lack of courtroom space in courthouse, cause called in Jury Deliberation room. Recording equipment fails to operate properly. Cause con’t & reset 1:00 pm 11-24-03. All costs incurred this date by witnesses for State to be taxed to A.

On November 14, 2003, Mr. Garriott filed an Application for Change of Judge. He alleged that the judge was biased and prejudiced against him and manifested irritation with him by ordering the continuance and costs be assessed against him when the continuance was not due to his late arrival but to the failure of the recording equipment to work properly. This motion was overruled.

At the bench trial, he objected to all evidence obtained after he was pulled over by Trooper Carey. The court watched a video of the pursuit and arrest of Mr. Garriott. The trial court found Mr. Gar-riott guilty on both counts. He was sentenced to thirty days in jail on count 1 and two days in jail on count 2, both sentences to run concurrently. Both sentences were suspended on the condition of completion of two years of unsupervised probation.

Mr. Garriott appeals both convictions and brings three points on appeal. First, he claims that the trial court erred in overruling his motion to suppress because all of the evidence obtained after he was pulled over was the result of an unreasonable search and seizure in violation of the Fourth Amendment of the United States Constitution, and should, therefore, be excluded. Second, he claims that the trial court erred in finding that he was guilty of failing to yield to an emergency vehicle because there was insufficient evidence to support finding that he did not immediately stop. Finally, he alleges that the trial court erred in not sustaining his Application for Change of Judge because by ordering him to pay the costs of the continuance that was not his fault, the judge violated the code of judicial conduct.

II. Legal Analysis

A. Motion to Suppress

In Mr. Garriott’s first point relied on, he claims that the trial court erred in overruling his motion to suppress. When a defendant’s pretrial motion to suppress evidence is overruled and the defendant objects to admission of the evidence at trial, we will review denial of the motion. State v. Rowe, 67 S.W.3d 649, 654 (Mo.App. W.D.2002). This review is limited to a determination of whether the denial is supported by substantial evidence. Id. We will reverse the trial court’s ruling on a motion to suppress only if that ruling is clearly erroneous, which requires us to have a definite and firm belief that a mistake has been made. Id. We view the facts and all reasonable inferences therefrom in the light most favorable to the trial court’s ruling. Id. We defer to the trial court’s factual findings and credibility determinations, while we review questions of law de novo. Id. Whether or not the Fourth Amendment has been violated is a question of law. State v. David, 13 S.W.3d 308, 311 (Mo.App. W.D.2000). But the interpretation of the facts and circumstances related to the seizure is still “a matter of some discretion.” Id.

When a motion to suppress is filed, the state bears the burden of producing evidence and the risk of non-persuasion to show by a preponderance of the evidence that the motion to suppress should be overruled. § 542.296.6; State v. Abeln, 136 S.W.3d 803, 807 (Mo.App. W.D.2004).

A police officer may make an investigatory stop, without probable cause, when the officer has a reasonable suspicion that the person is engaged in criminal activity. State v. West, 58 S.W.3d 563, 568 (Mo.App. W.D.2001). A traffic stop is justified if based on the violation of traffic laws. State v. Hoyt, 75 S.W.3d 879, 882-83 (Mo.App. W.D.2002). “A traffic stop may also be justified by observation of conduct which may not itself constitute a traffic violation but merely an unusual operation [of the vehicle].” State v. Mendoza, 75 S.W.3d 842, 845 (Mo.App. S.D.2002) (internal citations and quotation marks omitted). The stop must be justified from its inception, and must be based on specific and articulable facts known to the officer. West, 58 S.W.3d at 568. This is an objective standard, considering the totality of the circumstances, which do not have to exclude the possibility of innocent behavior. State v. Thompson, 826 S.W.2d 17, 19 (Mo.App. W.D.1992).

In this case, Trooper Carey observed what he reasonably believed to be an accident. He testified that he saw Mr. Garriott’s car move forward from the impact and that such impacts have caused injuries. He was concerned that Mr. Gar-riott may have been hurt or that this was a road rage incident, so he followed and stopped Mr. Garriott. Mr. Garriott focuses on the fact that he did not care about any damage to his truck and knew that there was no injury. But Trooper Carey had no way of knowing Mr. Gar-riott’s view of the accident until after he spoke with him. Leaving the scene of such an accident without checking the damage, particularly after seeing a police officer’s emergency lights come on, is certainly an unusual operation of the vehicle and justifies the initial stop. Cf. State v. Heyer, 962 S.W.2d 401, 407 (Mo.App. E.D.1998) (defendant’s unusual operation of his truck justified the initial stop: the defendant approached the checkpoint area, came halfway up the exit ramp, then pulled back onto the highway); State v. Malaney, 871 S.W.2d 634, 637-38 (Mo.App. S.D.1994) (driver’s weaving within his lane justified stopping him; a reasonable officer could believe that the driver was drunk, asleep, or otherwise inattentive); State v. Bunts, 867 S.W.2d 277, 280 (Mo.App. S.D.1993) (stop is not pretextual when officer intended to warn driver that an abrupt and drastic reduction in speed could be problematic and that he should be more attentive to other drivers).

Although Trooper Carey speculated about whether there were legal reasons that Mr. Garriott chose to not stop, his concern about whether Mr. Garriott was hurt or if this was a road rage incident are both valid reasons to investigate why Mr. Garriott did not stop. These other speculations do not change that. See Hoyt, 75 S.W.3d at 883 (the officer’s intent or motive in stopping a vehicle is irrelevant as long as his actions were lawful). Looking at the totality of the circumstances, Trooper Carey was justified in following Mr. Garriott and stopping him to ascertain why he drove off after being rear-ended. “[A]n officer may have legitimate, non-pretextual reasons other than reasonable suspicion of criminal activity or violation of traffic laws to stop a vehicle that are readily apparent upon a consideration of ‘the objective facts and circumstances surrounding the case.’ ” Mendoza, 75 S.W.3d at 846 (internal citations omitted). Such reasons are readily apparent here, and the stop was valid.

Once Trooper Carey learned why Mr. Garriott drove away from the accident, then the purpose of his initial stop ended. A seizure may lose its lawful character once a reasonable amount of time has passed to effectuate the initial reason for the stop, “unless a new factual predicate for reasonable suspicion is found during the period of lawful seizure.” State v. Martin, 79 S.W.3d 912, 916 (Mo.App. E.D.2002). But a new reason to stop Mr. Garriott developed after Trooper Carey began speaking with him, which justified further detention. Trooper Carey became suspicious that Mr. Garriott was intoxicated due to the smell of alcohol and Mr. Garriott’s slurred speech. Probable cause to arrest a driver for driving while intoxicated may develop after the driver is properly stopped. State v. Huckin, 847 S.W.2d 951, 954 (Mo.App. S.D.1993). Such probable cause existed, and Mr. Garriott’s arrest was valid. All the evidence obtained after the stop was, therefore, not excludable and the trial court correctly denied Mr. Gar-riott’s motion to suppress. Point one is denied.

B. Failure to Yield to an Emergency Vehicle

In Mr. Garriott’s second point relied on, he asserts that there was insufficient evidence to support finding that he was guilty of failing to yield to an emergency vehicle. “Review of a court-tried criminal case is the same as for a jury-tried criminal case.” State v. Daniels, 18 S.W.3d 66, 67-68 (Mo.App. W.D.2000). When we .review a challenge to the sufficiency of the evidence, we are limited to a determination of whether there is sufficient evidence from which a reasonable trier of fact might have found the defendant guilty beyond a reasonable doubt. Rowe, 67 S.W.3d at 657. Therefore, we accept all evidence favorable to the state and all reasonable inferences therefrom, disregarding all evidence to the contrary. Id. We defer to the trier of fact. Id. When reasonable minds can differ, we will not disturb the verdict. Rankin v. Venator Group Retail, Inc., 93 S.W.3d 814, 819 (Mo.App. E.D.2002).

Mr. Garriott was found guilty of failing to yield to an emergency vehicle. Under this statute:

Upon the immediate approach of an emergency vehicle giving audible signal by siren or while having at least one lighted lamp exhibiting red light visible under normal atmospheric conditions from a distance of five hundred feet to the front of such vehicle or a flashing blue light authorized by section 301.175, RSMo, the driver of every other vehicle shall yield the right-of-way and shall immediately drive to a position parallel to, and as far as possible to the right of, the traveled portion of the highway and thereupon stop and remain in such position until such emergency vehicle has passed, except when otherwise directed by a police or traffic officer.

§ 304.022. Although not entirely clear from the record, this violation is apparently based both on the fact that Mr. Garriott drove off after the accident after Trooper Carey had already turned on his lights and the fact that Mr. Garriott did not pull over right away once Trooper Carey began to pursue him.

The parties are debating whether or not Mr. Garriott “immediately” pulled over once Trooper Carey was clearly pursuing him in an emergency vehicle. Neither party cites any case law to support their arguments and we were unable to find any cases discussing what constitutes “immediately.” According to the dictionary, “immediately” means “without interval of time: without delay.” Webster’s ThiRD New INTERNATIONAL DICTIONARY OF THE ENGLISH Language 1129 (3d ed.1993).

There are two different reasons that Mr. Garriott could be accused of not “immediately” pulling over. The first arose when Trooper Carey turned around and turned on his fights and Mr. Garriott made his right turn onto Route F and drove off. Mr. Garriott testified that he saw Trooper Carey continue on down Airway Drive, without stopping, so he went ahead and turned onto Route F. He stated that he went about a quarter mile, looked in his rearview mirror, and saw Trooper Carey’s lights. He then pulled over. Trooper Carey testified that he stopped in the middle of his turn after he saw and heard the impact, he turned on his fights, and at that point Mr. Garriott turned onto Route F. This creates a conflict in the evidence. Under our standard of review, we must consider all evidence and inferences in favor of the decision and defer to the trial court’s finding that Mr. Garriott was guilty. Rowe, 67 S.W.3d at 657. Therefore, we must presume that Mr. Gar-riott turned after Trooper Carey turned on his fights, which creates an inference that Mr. Garriott knew that Trooper Carey was becoming involved in the accident and he still chose to drive off.

The parties also argue about how far Mr. Garriott traveled after Trooper Carey turned onto Route F and began pursuing him. Mr. Garriott testified that as soon as he saw that Trooper Carey was after him, which was only about a quarter of a mile up Route F from Airway Drive, he pulled over. He testified that he did not hear Trooper Carey’s siren. Trooper Carey testified that he felt that it took longer than a vehicle normally takes for Mr. Gar-riott to pull over once Trooper Carey began to pursue him. He said that he had his lights on and although he did not initially have his siren on, he had it on when he caught up to Mr. Garriott. Trooper Carey stated that Mr. Garriott pulled over about one-half to three-quarters of a mile from where he first turned on his lights. And when asked on cross-examination if it could be less than a half mile he said, “I don’t believe so. It’s probably right around a half mile, a little more.” Also, when asked if Mr. Garriott was two or three hundred yards down the road before Trooper Carey even started after him, Trooper Carey said that he did not believe that Mr. Garriott was that far ahead and was probably less than two hundred yards.

Mr. Garriott claims that he could not have traveled one-half to three-quarters of a mile up Route F before pulling over because it is not that far between Airway Drive and Hawk Lake Road. He asserts that the distance between Airway Drive and Hawk Lake Road is .451 miles. He is correct that we can take judicial notice of geographical facts, including official maps. Abeln, 136 S.W.3d at 808 n. 3. But Mr. Garriott failed to provide any map or other proof of the distance between Airway Drive and Hawk Lake Road to either the trial court or this court. Thus, we cannot take judicial notice of a nonexistent map. The trial court had conflicting evidence about how far Mr. Garriott traveled before he pulled over and apparently found Trooper Carey’s claim about the distance traveled to be more credible. Again, we defer to the trier of fact and all evidence favorable to the verdict. Rowe, 67 S.W.3d at 657. Further, reasonable minds could differ as to whether Mr. Garriott immediately pulled over after turning down Route F and traveling some distance down that road. As such, we will not disturb the trial court’s verdict. Rankin, 93 S.W.3d at 819. After reviewing the tape and the testimony, we find that there was sufficient evidence for the trial court to find that Mr. Garriott did not pull over “without delay” and, therefore, failed to yield to Trooper Carey. Point two is denied.

C. Application for Change of Judge

In Mr. Garriott’s final point, he claims that his Application for Change of Judge should have been granted because the trial court manifested a lack of patience and bias and prejudice against him by ordering him to pay the costs of the continuance. He claims that this violates three provisions in the judicial code of conduct contained in Rule 2.03, Canon 3, sections B(4) and (5), and E(l).

To ensure that a defendant receives a fair trial, a trial judge must maintain absolute impartiality during criminal proceedings. State v. Bass, 81 S.W.3d 595, 613 (Mo.App. W.D.2002). A judge must recuse herself if her impartiality might reasonably be questioned. In re C.D.G., 108 S.W.3d 669, 678 (Mo.App. W.D.2002). Actual proof of bias or impartiality is not required; it is enough if a reasonable person would have factual grounds to question the impartiality of the judge. Id.

Mr. Garriott claims that the trial court’s decision to assess costs against him for the continuance when that continuance was required because of faulty equipment and not because he was late demonstrates bias and prejudice against him. But “[b]ias and prejudice must flow from an extra-judicial source to be disqualifying.” Id. Mr. Garriott presents no evidence of an extra-judicial source of bias. As such, we cannot find bias or prejudice merely because the trial court assessed Mr. Garriott with costs. Furthermore, a judge is entitled to the presumption that she will not preside in a case in which she cannot be impartial. Id. We do not know why the trial court assessed costs against Mr. Garriott, but it is entitled to the presumption that it would not have denied the application for a new judge if it could not be impartial. See State v. Lopez, 898 S.W.2d 563, 567-68 (Mo.App. W.D.1995) (judge was not required to recuse himself when he displayed displeasure in having to delay trial to get an interpreter for defendant because he did not express any overt opinion about the necessity of the interpreter; his citation of defendant’s attorney for criminal contempt and calling her “young woman” also did not display prejudice or bias; nothing in the transcript revealed that the trial court lost his temper in either instance, the court was merely attempting to control the courtroom and promptly proceed with trial). Point three is denied.

III. Conclusion

After considering all of the facts in the case, and the arguments presented by the parties, we affirm the denial of the motion to suppress, the denial of the application for a new judge, and find that there was sufficient evidence to support the conviction for failure to yield. The trial court’s judgment is affirmed.

LISA WHITE HARDWICK, P.J., and ROBERT G. ULRICH J. concur.

      . This revocation was reversed by the trial court and then reinstated by our court in Garriott v. Director of Revenue, 130 S.W.3d 613 (Mo.App. W.D.2004).

      . Unless otherwise indicated, all statutory references are to RSMo. (2000).

      .This video was made automatically once Trooper Carey turned on his emergency lights.

      . Mr. Garriott claims that the only possible reason that Trooper Carey could have had a reasonable suspicion of criminal activity, to justify pulling him over, is because Mr. Gar-riott left the scene of an accident, possibly violating section 577.060, which he claims does not apply here. But because a traffic stop may also be justified by observation of unusual conduct, Mendoza, 75 S.W.3d at 845, we do not need to consider whether Trooper Carey had a reasonable suspicion of criminal activity.

      . Unless otherwise indicated, all rules refer to Missouri Court Rules (2004).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In the Matter of the CARE AND TREATMENT OF Elroy W. KEY, Appellant, v. STATE of Missouri, Respondent.
    No. WD 63524.
    Missouri Court of Appeals, Western District.
    Dec. 21, 2004.
    Emmett D. Queener, Columbia, MO, for appellant.
    Cherylayn C. Nield, Jefferson City, MO, for respondent.
    Before LISA WHITE HARDWICK, P.J., ROBERT G. ULRICH and THOMAS H. NEWTON, JJ.
   ORDER

PER CURIAM.

Elroy Key appeals the judgment, following jury trial, committing him to the custody of the Department of Mental Health as a sexually violent predator as provided by section 632.480 et seq., RSMo 2000. He asserts in his single point on appeal that the evidence was insufficient to prove beyond a reasonable doubt that he is more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility. The judgment is affirmed. Rule 84.16(b)


author: JAMES K. PREWITT, Judge.

text:
    Jeffrey A. WINDER, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
    No. 26174.
    Missouri Court of Appeals, Southern District, Division One.
    Dec. 22, 2004.

      Mark A. Grothoff, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Lacey R. Searfoss, Assistant Attorney General, Jefferson City, MO, for respondent.
   JAMES K. PREWITT, Judge.

Following jury trial, Jeffrey A. Winder (“Movant”) was convicted of three counts of tampering in the first degree, in violation of § 569.080, RSMo 1994, and four counts of receiving stolen property, in violation of 570.080, RSMo 1994. He was sentenced as a prior and persistent offender to seven concurrent eighteen-year terms in the Department of Corrections. Movant’s convictions and sentences were affirmed in State v. Winder, 50 S.W.3d 395 (Mo.App.2001).

On November 7, 2001, Movant filed a pro se motion for post-conviction relief pursuant to Rule 29.15. Following the appointment of counsel, an amended motion to vacate, set aside, or correct the sentence and judgment, along with a request for evidentiary hearing, was filed on February 11, 2002. Within the amended motion, Movant claimed, inter alia, that his trial counsel was ineffective for failing to call two witnesses: Bill Bowman and Debbie Winder. An evidentiary hearing was held, and on March 1, 2004, the motion court entered its judgment denying Mov-ant’s motion for post-conviction relief, finding that counsel was not ineffective for not calling either Bowman or Winder as witnesses at Movant’s trial. Movant appeals.

The complete set of facts may be found in Winder, 50 S.W.3d 395; we summarize them here. During March or April of 1998, a reserve police officer, Officer White, with the Crane Police Department noticed some activity and increased traffic at a home that had been vacant for some time; a home that had been owned previously by the officer’s grandfather. Id. at 397. The Stone County Sheriffs Department advised Officer White to place the house under surveillance, and from mid-May to mid-July 1998, Officer White saw various vehicles parked behind the house that would come and go, but two vehicles, a green pickup and a station wagon, were always present on the property. Id.

There was a three-car garage on the property, the lights of which were always on, and people were in the garage with the doors closed, although the garage was not air-conditioned. Id. at 397-98. As people entered or exited the garage, Officer White could see vehicles inside. Id. at 398. Officer White observed Movant on the premise on at least five occasions. Id.

Officer Doucey of the Stone County Sheriffs Department also observed activity on the property, including vehicles parked in front of the garage, and vehicle parts and debris left outside that would later disappear. Id. Officer Doucey also saw people working inside the garage with the doors closed and saw Movant near the garage on at least one occasion. Id.

On June 7, 1998, Patsy Gobetz’ 1987 Chevrolet Silverado pickup was stolen from the driveway of her Springfield, Missouri home. Id. Three days later, law enforcement officials found it approximately two miles from the property described above. Id. It was on a trailer in the middle of the road, completely stripped, with evidence that it had been set on fire, although it had not completely burned. Id. Paint cans found in Gobetz’ pickup were similar to paint cans seen on the property by Officer Doucey in the green pickup. Id. Movant’s fingerprint was also found inside Gobetz’ pickup in an area that would be difficult to reach if the truck were intact. Id.

On June 8, 1998, Alfred Conway’s fian-cée found that the laundry room door of a farmhouse Conway owned had been kicked open. Id. Along with some furniture, a small refrigerator, two antique cabinets, and dolls were missing. Id.

On June 15 or 16, 1998, the Marleys, owners of a lawn service business, had a pickup and trailer stolen from the backyard of their home. Id. at 398-99. The trailer held a commercial lawnmower and various other lawn care equipment. Id. Some of the stolen property was found a few days later at a towing service company. Id. at 399. The pickup appeared burnt, and various items not belonging to the owners were in the truck, including an envelope addressed to Movant at an address a block from the Marleys’ home. Id.

On July 1, 1998, Richard Rieschl, Jr. discovered his checkbook and numerous other items were missing from his home. Id. Rieschl notified authorities and closed the account, but on July 4, 1998, two men purchased kegs of beer from a liquor store with one of Rieschl’s stolen checks. Id. On July 8, 1998, Gwenda Carnelison held a garage sale in Springfield at her son’s home at which she was selling an antique cherry bedroom set. Id. A man who identified himself as Rieschl approached Carnelison and wrote a check for $825 for the set, and Movant helped the man load the furniture onto a vehicle. Id. On the same day, another of Rieschl’s checks was used to rent a carpet stretcher; the carpet stretcher was not returned and the check was returned unpaid by the bank. Id.

On July 11, 1998, Matthew Hilburn parked his teal green pickup with a “for sale” sign in the parking lot of a shopping center and discovered it was missing two days later. Id. On July 12, 1998, Brenda Hayden’s red pickup was parked in an area along Highway 160 in Nixa in order that it could be advertised as being for sale. Id. The next day the truck was gone, although glass was on the ground where it had been parked. Id.

Surveillance of the property continued, and during the late evening of July 12, 1998, and early morning of July 13, 1998, Officer Hammer of the Christian County Sheriffs Department observed Movant exit from the garage talking on a phone and later get into the station wagon with another man and leave. Id. at 399-400. About an hour later, Movant returned alone in the station wagon, following a pickup. Id. at 400. The pickup, which matched the description of Hayden’s red pickup, entered the garage. Id.

Officer Clayton of the Stone County Sheriffs Department conducted surveillance of the property later in the morning of July 13, 1998, and by the afternoon could hear the sounds of air tools coming from the garage. Id. Officer Clayton saw someone leave in a blue pickup, Movant and another man carrying a teal green truck bed out through one garage door and then in through another, and also saw a red pickup inside the garage. Id.

A search warrant was served at the house on the property at 4 p.m., July 13, 1998. Id. Movant was present at the house with four other people, two of whom were later released. Id. Among the items found were Conway’s antique cabinets and refrigerator, Carnelison’s antique bedroom set, the carpet stretcher, two kegs from the liquor store, and Rieschl’s checkbook. Id. Mail addressed to Movant and photos of him in a photo album were also found. Id.

In the garage, parts from Gobetz’ pickup were found, as well as the essentially intact pickups belonging to Hilburn and Hayden. Id. The commercial lawnmower and trailer owned by the Marleys were also found on the property. Id. at 401.

Movant was charged with three counts of tampering in the first degree, in violation of § 569.080, RSMo 1994, four counts of receiving stolen property, in violation of § 570.080, RSMo 1994, and one count of possession of a controlled substance, in violation of § 195.202, RSMo 1994. The last count was severed, and the case proceeded to jury trial on the other seven counts. As noted, the jury found Movant guilty on the three counts of tampering in the first degree, in violation of § 569.080, RSMo 1994, and four counts of receiving stolen property, in violation of § 570.080, RSMo 1994. Movant was sentenced as a prior and persistent offender to seven concurrent 18-year terms in the Department of Corrections. He subsequently filed a motion for post-conviction relief pursuant to Rule 29.15 which was denied following an evidentiary hearing.

In this appeal of the denial of his motion for post-conviction relief, Movant raises one point in which he contends that the motion court clearly erred in denying the motion because counsel was ineffective for failing to call Bill Bowman and Debbie Winder as witnesses at trial.

In our review of the denial of a post-conviction motion, we are limited to a determination of whether the motion court’s findings of fact and conclusions of law are clearly erroneous. Gully v. State, 81 S.W.3d 651, 654 (Mo.App.2002). Findings of fact and conclusions of law are only clearly erroneous if, after a review of the entire record, we are left with the definite and firm impression that the motion court made a mistake. Id. at 654-55.

To prevail on claims of ineffective assistance of counsel, Movant must establish that (1) counsel’s conduct fell below an objective standard of reasonableness and (2) counsel’s deficient conduct or errors prejudiced Movant’s case. Cravens v. State, 50 S.W.3d 290, 294 (Mo.App.2001); see also Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under an objective standard of reasonableness, counsel must have “exercised the customary skill and diligence of a reasonably competent attorney under similar circumstances.” Cravens, 50 S.W.3d at 294. To establish that his case was prejudiced, Movant must show “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

Under Strickland, a reviewing court may consider the prejudice prong first and stop the inquiry there, if Movant makes an insufficient showing on that prong. Gully, 81 S.W.3d at 655. Specifically related to a claim of ineffective assistance of counsel, it is appropriate to consider the strength of other evidence against Movant in determining whether prejudice was suffered by Movant. Kluck v. State, 30 S.W.3d 872, 877 (Mo.App.2000). That an error may have had some conceivable effect on the outcome is not sufficient; to determine whether a reasonable probability exists, the totality of the evidence must be considered. Id.

Under most circumstances, the choice of witnesses is a matter of trial strategy and will not support a claim of ineffective assistance of counsel. Helmig v. State, 42 S.W.3d 658, 667 (Mo.App.2001). Unless Movant can clearly establish otherwise, a decision to not call a witness to testify at trial is presumed to be a decision of trial strategy and is virtually unchallengeable and will not support the overturning of a conviction based on a claim of ineffective assistance of counsel. Leisure v. State, 828 S.W.2d 872, 875 (Mo.banc 1992). Trial counsel may be found ineffective for the failure to locate and call witnesses if Movant can establish (1) counsel knew or should have known of the existence of such witnesses, (2) that the witnesses could have been located through reasonable investigation, (3) that the witnesses would have testified if called, and (4) that the witnesses’ testimony would have provided a viable defense for Movant. Helmig, 42 S.W.3d at 667.

Prior to trial, Movant identified a list of witnesses he wanted. Among those listed were Bill Bowman, Movant’s stepfather, and Debbie Winder, Movant’s sister. At some later date, counsel asked Movant to provide counsel with the names and addresses of the witnesses Movant wished to have subpoenaed to testify at trial. Mov-ant responded to counsel with a letter that included a list of names; however, that list did not contain either Bowman’s or Debbie’s name.

At the evidentiary hearing, counsel testified that he and Movant discussed having Bowman called as a witness on Movant’s behalf, but that Movant did not want his stepfather to testify; Movant did not want his stepfather involved. Although counsel did not interview Bowman, counsel did review a report that was prepared by the Highway Patrol fourteen months after Movant’s arrest.

In the Highway Patrol report, Bowman indicated that Movant had been at Bowman’s house sometime after the Fourth of July weekend to help with a patio, but Bowman was unable to recall the specific day. Bowman testimony’s at the eviden-tiary hearing on the post-conviction motion was that Movant had been at Bowman’s home on July 13, 1998 (the date the search warrant was served) from 8:00 or 8:30 a.m. until 3:30 or 3:45 p.m. According to Bowman, Movant left prior to 4:00 p.m. in order to receive a phone call from Debbie, who was incarcerated in Illinois.

Counsel testified at the evidentiary hearing that, in addition to Movant indicating that he did not want to involve his stepfather, had the Highway Patrol report showed that Bowman could recall the specific date Movant “was here as opposed to there,” counsel might have considered calling Bowman as a witness. According to Bowman, he attended Movant’s trial, but “stayed in the hall pretty much all of the time except right up toward the end.” He watched the trial at that point after being told, “that I wasn’t going to be called as a witness[.]”

Debbie testified by deposition at the motion hearing. According to Debbie, on July 13,1998, she was in jail in Illinois and attempted to contact her brother, Movant. Because the phone where Movant was located that day, at Bowman’s house, could not take collect calls, Debbie called another brother, whom Debbie asked to contact Movant so that arrangements could be made for her to reach Movant at a phone that would allow collect phone calls. That phone was at the house at which the search warrant was served. Between 4:34 p.m. and 9:15 p.m., Debbie testified that she called the number at that house four times, but never spoke to Movant or the person phone company records showed as the occupant of the home, Barry Agee. Phone records for Agee showed four collect calls to Agee’s number from Illinois during that time period. Debbie indicated during her deposition that had she been called as a witness for Movant’s trial, she would have been willing to testify.

With regard to either Bowman or Debbie, we cannot find that Movant was prejudiced by any alleged error by counsel in failing to call them as witnesses as trial. There is not a reasonable probability that the outcome, given the strength of the other evidence, would have been different. Debbie’s testimony regarding the arrangements for Movant to take her collect phone call at the house at which the search warrant was served does not provide a viable defense to the crimes with which Movant was charged. Further, with respect to Bowman testifying, the motion court specifically noted that it found counsel’s testimony at the hearing credible that Movant did not want Bowman involved or to testify at trial. It is within the motion court’s purview to judge the credibility of those who testify at the evidentiary hearing. Ayres v. State, 93 S.W.3d 827, 834 (Mo.App.2002).

The motion court did not clearly err in denying Movant’s Rule 29.15 motion, and the motion court’s judgment is affirmed.

GARRISON, P.J., and RAHMEYER, J., concur.

      . Although the property under surveillance was located in Stone County, as a part of his job, Officer Hammer, a member of the Chris-fian County Sheriff’s Department, worked on “joint efforts with surrounding counties.”

      . We use Debbie's first name here simply to lessen any possible confusion as she shares the same last name with Movant. We mean no disrespect.


author: VICTOR C. HOWARD, Judge.

text:
    In the Interest of D.D.H., Plaintiff. Juvenile Officer, Respondent; A.D.A. (Mother), Respondent, v. S.M.H., Appellant.
    No. WD 63759.
    Missouri Court of Appeals, Western District.
    Dec. 28, 2004.
    Gary Michael Steinman, Gladstone, MO, for Appellant.
    John Richard Shank Jr., Kansas City, Kelly J. Ruark, Liberty, MO, for Respondent.

      Before EDWIN H. SMITH, C.J., HOWARD and HOLLIGER, JJ.
   VICTOR C. HOWARD, Judge.

In October of 2003, D.D.H., the minor child of Appellant, was placed in the care and custody of the Children’s Division for placement in alternative care. Pursuant to section 210.720.1 RSMo 2000, the Circuit Court of Clay County held a permanency review hearing and issued its “Findings and Judgment on Permanency Review,” in which the court continued the prior orders of disposition wherein D.D.H. was placed in the care and custody of the Children’s Division in alternative care. Appellant then filed this appeal, arguing the court erred because the continuation of the permanency plan is not in the best interests of D.D.H., is not supported by substantial evidence, and is contrary to section 210.720 RSMo 2000.

Respondent Juvenile Officer, relying upon this court’s opinion in In re L.E.C., 94 S.W.3d 420 (Mo.App. W.D.2003), moved to dismiss the appeal. The motion was taken with the case and is hereby granted.

In L.E.C., the natural mother argued the trial court erred in entering an order pursuant to § 210.720 changing in the permanency plan from reunification to adoption because there was not clear and convincing evidence that changing the permanency plan was in her children’s best interests.. Id. at 424-25. After considering the authorities for appeals, “this court [could] find no basis in Chapters 210 and 211 for appeal of a § 210.720 order.” Id. at 425. Nor did we “consider the ruling a final judgment under § 512.020.” Id. We concluded that “[a]l-lowing appeals from § 210.720 orders would cause inefficiency and lengthen the time needed to address the ultimate issue of parental rights termination.... It would significantly impede a process designed to proceed expeditiously.” Id. at 425-26. Because Appellant’s sole point on appeal involves a non-appealable matter, we dismiss the appeal.

EDWIN H. SMITH, C.J., and HOLLIGER, J., concur.

      . In so holding, we expressly "[did] not rule out the possibility that a parent may, in an appropriate case, be able to proceed by way of a writ proceeding to compel a juvenile officer to comply with applicable statutes.” L.E.C., 94 S.W.3d at 426. No writ is at issue, here.


author: WILLIAM M. BARKER, J.,

text:
    TOWN OF NOLENSVILLE v. Ronald M. KING.
    Supreme Court of Tennessee, at Nashville.
    Oct. 2004 Session at Franklin.

    Dec. 16, 2004.

      John E. Herbison, Nashville, Tennessee, for the appellant, Ronald M. King.
    Robert J. Notestine III, Nashville, Tennessee, for the appellee, Town of Nolens-ville.
    George E. Barrett and Gerald E. Martin, Nashville, Tennessee, for Amicus Curiae, Tennessee Municipal League.

      . This case was heard on October 8, 2004 at the Williamson County Courthouse in Franklin, Tennessee as part of the S.C.A.L.E.S. (Supreme Court Advancing Legal Education for Students) project. Since the program began in October 1995 more than 14,000 students have participated in S.C.A.L.E.S. projects across the State.

   OPINION

WILLIAM M. BARKER, J.,

delivered the opinion of the court,

in which the panel of FRANK F. DROWOTA, III, C.J., and E. RILEY ANDERSON, JANICE M. HOLDER, JJ., and ALLEN WALLACE, SP.J., joined.

The issue presented in this case is whether a fine imposed by a municipal court judge in violation of Article VI, section 14 of the Tennessee Constitution, which prohibits the laying of fines in excess of fifty dollars unless assessed by a jury, is nevertheless constitutionally permissible if the person so fined has a right to a de novo appeal and jury trial in a higher court. We hold that it is not. After concluding that this issue had been left unresolved by this Court’s prior decisions, the Court of Appeals held that the right to a de novo appeal and jury trial in circuit court satisfied the constitutional requirements of Article VI, section 14. We respectfully disagree. We conclude that our decision in City of Chattanooga v. Davis, 54 S.W.3d 248 (Tenn.2001), in which we held that Article VI, section 14 was applicable to proceedings for violations of municipal ordinances, compels a contrary result. Accordingly, we hold that Article VI, section 14 of the Tennessee Constitution prohibits a municipal court judge from imposing fines in excess of fifty dollars for the violation of a municipal ordinance, irrespective of any right afforded the defendant to obtain a jury trial upon appeal to a higher court. Therefore, for the reasons stated herein, the judgment of the Court of Appeals is reversed.

FACTUAL BACKGROUND

This case initially arose prior to our decision in City of Chattanooga v. Davis, and the current appeal marks the second time this Court has reviewed the case. To summarize the facts, in April of 1999, the appellant, Ronald M. King, was cited into Nolensville Municipal Court for violating a city ordinance which prohibited, among other things, the accumulation of trash or debris or the storage of inoperative automobiles or trailers on property within the town limits. The' appellant had, at that time, nine inoperative vehicles, one trailer, two piles of scrap and a pile of wooden pallets illegally stored on his property. The appellant was found guilty and fined fifty dollars; however, the fine was suspended for thirty days to give the appellant an opportunity to correct the violation. Apparently, all of the offending items were not removed, and in May, the appellant was issued a second citation for having an inoperative automobile, a trailer, and a “pile of assorted personal belongings” stored on his property in violation of the ordinance. The appellant was again found guilty in municipal court but given another sixty days in which to remedy the violation. Finally, in August of 1999, a third hearing was held in municipal court. The appellant was found to be in continuing violation of the ordinance and fined $300 per day for each of the sixty-two days it was determined he had been in violation up to that point. Thus, the total of the fines levied against the appellant was $18,600.

The appellant then pursued two alternative judicial remedies by (1) perfecting a de novo appeal and request for a jury trial in circuit court pursuant to Tennessee Code Annotated section 27-5-101 (2000); and (2) filing a petition for a writ of certio-rari in circuit court seeking a determination that the penalties assessed against him violated Article VI, section 14 of the Tennessee Constitution in that they were fines exceeding fifty dollars and had not been imposed by a jury. In a hearing on the petition for writ of certiorari, the circuit court concluded that although the municipal court had designated the assessments as “penalties,” they amounted in substance to fines and therefore violated Article VI, section 14 because they were imposed by a judge rather than a jury. Due to this ruling, the circuit court also dismissed the appeal and request for a jury trial brought under section 27-5-101 and remanded the case back to the municipal court for entry of a judgment not to exceed fifty dollars.

The Town of Nolensville appealed to the Court of Appeals, which subsequently held that the proceedings in municipal court were constitutionally permissible as the monetary assessments were not fines for purposes of Article VI, section 14. The Court of Appeals also held that the appellant’s right to a jury assessment of the fines had not been violated because he could have obtained a jury trial through the appeals procedure provided for in Tennessee Code Annotated section 27-5-101 (2000). Thus, the Court of Appeals vacated the order granting the writ of certiora-ri. We then granted the appellant’s appeal. By that stage in the proceedings, however, our opinion in City of Chattanooga v. Davis had been handed down, and we therefore remanded the case back to the Court of Appeals with directions to reconsider it in light of our recent holding in Davis.

Upon reconsideration, the Court of Appeals applied the rule announced in Davis to conclude that the monetary assessments against the appellant were indeed “fines” for purposes of Article VI, section 14. However, the intermediate court was of the opinion that the holding in Davis had left open the question of whether the right to a de novo appeal and jury trial in circuit court protected the appellant’s Article VI, section 14 right. Following an analysis of the issue, the Court of Appeals reaffirmed its previous holding that there had been no constitutional violation because the appellant could have had a jury set his fines, if he so chose, by pursuing a de novo appeal to circuit court and requesting a jury trial. We then granted permission to appeal in order to clarify our interpretation of Article VI, section 14 of the Tennessee Constitution, as it applies to proceedings in a municipal court.

ANALYSIS

Article VI, section 14 of the Tennessee Constitution, commonly known as the Fifty Dollar Fines Clause, provides:

No fine shall be laid on any citizen of this State that shall exceed fifty dollars, unless it shall be assessed by a jury of his peers, who shall assess the fine at the time they find the fact, if they think the fine should be more than fifty dollars.

The constitutional right established by this clause is unique to Tennessee and “no other provision like it may be found either in the Federal Constitution or in any other modern state constitution.” City of Chattanooga v. Davis, 54 S.W.3d 248, 257 (Tenn.2001).

In Davis we addressed the issue of whether Article VI, section 14 applied to proceedings for the violation of a municipal ordinance. Id. at 251. We held that Article VI, section 14 applied to such proceedings when a monetary sanction imposed for an ordinance violation was punitive and therefore a “fine” for purposes of Article VI, section 14, rather than a remedial measure. Fully explained, we held that a monetary sanction fell within the scope of Article VI, section 14 when:

(1) the legislative body creating the sanction primarily intended that the sanction punish the offender ...; or (2) despite evidence of remedial intent, the monetary sanction is shown by the “clearest proof’ to be so punitive in its actual purpose or effect that it cannot be legitimately viewed as remedial in nature.

Id. at 264.

In the case before us today, both parties agree in this Court that the sanctions imposed by the municipal court judge were “fines” within the meaning of Article VI, section 14. Therefore, the only issue we need address is whether the Court of Appeals erred in holding that the municipal court judge’s assessment of the fines in excess of fifty dollars was constitutionally permissible because the appellant had the right to pursue a de novo appeal and obtain a jury trial in circuit court.

In construing Article VI, section 14, the Court of Appeals held that the right to have a jury assess any fine exceeding fifty dollars was satisfied when the jury was obtained upon appeal, rather than in the trial court. In its analysis, the Court of Appeals characterized these proceedings— a trial in municipal court followed by a de novo appeal in circuit court — as two-tier proceedings, in which the de novo appeal and jury trial in the higher court effectively wiped the slate clean of the lower court’s judgment and afforded the appellant the full panoply of constitutional rights. As a result, the Court of Appeals concluded that the initial assessment of fines by the municipal court judge did not violate Article VI, section 14. We disagree. We find no support for the proposition that a constitutional right of an individual may be violated by a judge in a court of law and that violation be allowed to stand, unless the aggrieved individual takes affirmative action by appealing to a higher court for relief. To hold that such a proceeding adequately satisfies an affirmative constitutional right would contradict our most well-established principles of constitutional jurisprudence and fundamental fairness. See City of White House v. Whitley, 979 S.W.2d 262, 268 (Tenn.1998) (rejecting the proposition that the right to a de novo appeal satisfied the constitutional right to a trial before an attorney judge and stating that “the due process violation resulting from the lack of an attorney judge [in municipal court] is not cured by the statutory right to a de novo appeal”).

The Court of Appeals’ characterization of the municipal court trial as being part of a valid two-tier proceeding is inappropriate in this instance because the municipal court lacked any ability to provide for the appellant’s Article VI, section 14 right. Not only was the municipal court judge expressly prohibited by Article VI, section 14 from imposing the fines in issue, but the court also lacked the authority to either empanel a jury or transfer the case to a higher court where a jury was available. This is the same factual scenario with which we were confronted in Davis. The appellant in Davis had been found guilty in municipal court of violating a Chattanooga municipal ordinance. Davis, 54 S.W.3d at 252. The municipal court judge subsequently assessed a $800 fine. Id. Upon appeal, we held that the assessment of such a fine violated Article VI, section 14 of the Tennessee Constitution. In reaching this conclusion this Court stated:

Assuming presently that the General Assembly has granted the Chattanooga City Council authority to enact punitive sanctions in excess of fifty dollars, we have been unable to locate any statute that confers upon the Chattanooga City Court the power or authority to empanel a jury for this purpose.... Therefore, irrespective of any city ordinance to the contrary, the discretion of the Chattanooga City Court to impose punitive monetary sanctions is necessarily limited by Article VI, section 14 to fines not exceeding fifty dollars.

Id. at 267. Consequently, the Court reduced the fine assessed by the trial judge to fifty dollars, “the maximum assessment allowed under such circumstances by Article VI, section 14.” Id. at 281-82.

We point out that the appellant in Davis had the same statutory right to a de novo appeal in circuit court as does the appellant in the present case. Nevertheless, the availability of a jury trial upon appeal did not affect our analysis in Davis of whether Article VI, section 14 had been violated. By reducing the fines in both cases considered in Davis to fifty dollars, this Court clearly concluded that the trial courts were constrained by Article VI, section 14 of our Constitution from imposing fines exceeding fifty dollars in these cases. Presented with the same factual scenario today, we likewise apply the same reasoning and reach the same conclusion. Because the Nolensville Municipal Court judge lacked the authority to empanel a jury to assess fines, the court’s power to assess fines in this case was limited by Article VI, section 14 to fines not exceeding fifty dollars. Davis, 54 S.W.3d at 267.

By so stating, we do not hold that fines in excess of fifty dollars may never be imposed by judges rather than juries. Judges may impose fines in excess of fifty dollars so long as the defendant waives his or her right to a jury determination of fines in excess of fifty dollars. The defendant may voluntarily relinquish his or her constitutional right to jury determination of fines greater than fifty dollars by executing a written waiver consistent with the provisions of Rule 5(c) of the Tennessee Rules of Criminal Procedure, governing waivers of the right to a trial by jury and to a grand jury investigation. See City of White House, 979 S.W.2d at 268. This is precisely the procedure employed in general sessions courts when defendants are charged with misdemeanor state offenses. If a defendant in general sessions court executes a waiver of his or her right to a jury, the court may hear the case, determine guilt, and impose punishment. If, however, a defendant chooses not to waive his or her right to a jury, the general sessions court has no option other than, upon a finding of probable cause, to bind the case over for a grand jury investigation. If the grand jury returns an indictment, a jury trial may be held.

In contrast, a municipal court has no option but to fully adjudicate the case, even when the defendant requests a jury trial. Therefore, while we agree that the right to a jury determination of fines may be waived, we cannot envision that a defendant in municipal court would knowingly waive this constitutional right, and thereby allow the court to impose a fine in excess of fifty dollars, when the alternative would be either a fine of fifty dollars or less or dismissal of the case.

Accordingly, for the reasons stated herein, we hold that Article VI, section 14 of the Tennessee Constitution prohibits a municipal court judge from imposing fines in excess of fifty dollars for a violation of a municipal ordinance, absent a valid waiver of the defendant’s Article VI, section 14 right. This limitation applies irrespective of any right affording the offender a right to a de novo appeal and jury trial in circuit court. In the present case, we reduce the appellant’s fines to fifty dollars for each offense, the maximum the municipal court judge could have imposed. See id. at 267; see also Huffman v. State, 200 Tenn. 487, 292 S.W.2d 738, 744 (1956) (stating that it is duty of appellate court to reduce fine to fifty dollars to remedy Article VI, section 14 violation), overruled on other grounds; State v. Irvin, 603 S.W.2d 121, 123 (Tenn.1980). Because the ordinance at issue prescribes that each day in violation constitutes a separate offense, the appropriate fine is fifty dollars per day for each of the sixty-two days the appellant was found to be in violation, resulting in a total fine of $3,100 assessed against the appellant.

We stress that our holding today, along with our previous holding in City of Chattanooga v. Davis, applies only to punitive monetary sanctions and preserves a municipality’s power to impose remedial monetary assessments for violations of ordinances. See Davis, 54 S.W.3d at 259 (pointing out that Article VI, section 14 does not apply when the assessment is not punitive in nature). Primarily remedial sanctions, such as to cover the cost of clean-up, reimburse administrative costs, or to compensate for actual loss may all be imposed in greater amounts pursuant to authority granted by statute. Additionally, when confronted with cases similar to this one, we point out that municipalities continue to have the option of pursuing a remedy through other courts by filing suits to abate a nuisance.

We are also not insensitive to the argument by both the appellee and the Tennessee Municipal League that the prospect of a fifty dollar fine in 1796, when this provision was first enacted, would have had a greater deterrent effect than a fifty dollar fine in the present day. It is common knowledge that the real value of currency fluctuates over time. A fifty dollar fine in contemporary value lacks the weighty and serious quality a fifty dollar fine would have had two hundred years ago. Nevertheless, there is no reliable and proper way by which this Court can translate the actual value of 1796 dollars into contemporary dollar amounts. For this very reason, it is unwise for a constitution to include monetary figures, and it is no wonder that Tennessee’s Constitution is the only one in the United States to include such a figure. Davis, 54 S.W.3d at 257. Had the delegates to the Constitutional Convention of 1796 known that the provision would survive unchanged for more than 200 years, they likely would not have included a precise monetary figure. Nonetheless, this Court is constrained to uphold the plain language of the Tennessee Constitution. Proposed changes to the Fifty Dollar Fines provision must be addressed in a different forum. The General Assembly and the citizens of Tennessee, not this Court, have it in their power, if they so desire, to amend the constitution and change the fifty dollar provision of Article VI, section 14.

CONCLUSION

In summary, we reaffirm our previous decision in City of Chattanooga v. Davis in which we held that Article VI, section 14 of the Tennessee Constitution applies to proceedings involving the violation of municipal ordinances when either the intended purpose or the actual purpose or effect of the monetary sanctions is punitive. We further hold that Article VI, section 14 prohibits a municipal court judge from imposing fines in excess of fifty dollars in such proceedings, irrespective of whether the person so fined has the right to a de novo appeal and jury trial in a higher court.

With respect to the case at bar, we reverse the judgment of the Court of Appeals, and we reduce the fines imposed against the appellant, Ronald M. King, to fifty dollars for each offense, the maximum amount allowed under Article VI, section 14. The appellant was found to be in violation of the ordinance in question for sixty-two days, with each day in violation constituting a separate offense. Therefore, the appellant’s fines are reduced to fifty dollars per day for sixty-two days, resulting in a total amount of $3,100.

Costs of this appeal are taxed to the Town of Nolensville.

      . This Court originally granted an application to appeal in this case in 2001. Thereafter, in October of 2001, we remanded the case to the Court of Appeals with directions to reconsider the case in light of our then recent opinion in City of Chattanooga v. Davis, 54 S.W.3d 248 (Tenn.2001). The Court of Appeals handed down a second opinion, and it is this latter opinion which we now review.

      . The Town of Nolensville municipal ordinance, as amended, provides in part:

        Section 4. Overgrown and dirty lots. It shall be unlawful for any owner of record of real property to create, maintain, or permit to be maintained on such property the growth of trees, vines, grass, underbrush and/or the accumulation of debris, trash, litter, or garbage or any combination of the preceding elements so as to endanger the health, safety, or welfare of other citizens or to encourage the infestation of rats and other harmful animals.

        Section 7. Abandoned and/or unusable automobiles and motor vehicles and storage trailers.

      It shall be unlawful for any persons to place or allow any abandoned or unusable automobiles, motor vehicles, or storage trailers to be stored or lodged on real property within the Town of Nolensville. For purposes of this Ordinance, 'unusable' shall mean that said automobile, motor vehicle or storage trailer is not suited for the purpose for which it was manufactured, in its present condition.

        Section 8: Violations and penalty: Violations of this chapter shall be (sic) subject the offender to a penalty of up to five hundred dollars ($500) for each offense. Each day a violation is allowed to continue shall constitute a separate offense.
      Nolensville, Tenn., Ordinance 98-04 (as amended) (May 7, 1998).

      . The appellant's right to an appeal in circuit court is set forth in Tennessee Code Annotated section 27-5-101 (2001), which provides:
      Any person dissatisfied with the judgment of a recorder or other officer of a municipality charged with the conduct of trials, in a civil action, may, within ten (10) days thereafter, Sundays exclusive, appeal to the next term of circuit court.

        Id. The appeal in circuit court is subject to the same terms and restrictions as an appeal from sessions court, which includes de novo review. Tenn.Code Ann. §§ 27-5-102, 27-5-108(c); State v. Cunningham, 972 S.W.2d 16, 18 (Tenn.Crim.App.1998). Also, a jury trial will be provided in circuit court upon a timely demand by the appellant. City of Chattanooga v. Myers, 787 S.W.2d 921, 928 (Tenn.1990).

      . The Court of Appeals cited Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972) to support the proposition that two-tier proceedings are valid. However, the issue in Colten was whether a two-tier proceeding violated the Due Process Clause when the defendant was convicted in both the lower and higher courts and assessed a harsher penalty in the higher court. Id. at 114, 92 S.Ct. 1953. The defendant in Colten had waived his right to a jury trial in the lower court, thus this was not an issue. Id. at 113, 92 S.Ct. 1953. Colten did not address the validity of such proceedings when a defendant has an affirmative right to have a jury assess any fine exceeding fifty dollars. As we have pointed out, this right provided for under Article VI, section 14 of the Tennessee Constitution is unique to our State, and no comparable provision may be found in any other modern constitution.

      . Davis actually involved two cases: City of Chattanooga v. Davis and Barrett v. Metro. Gov't of Nashville and Davidson County. These cases were consolidated for consideration on appeal because they involved the same issue. Davis, 54 S.W.3d at 251. The appellants in both cases had violated a municipal ordinance and were subsequently assessed a fine in excess of fifty dollars by a trial judge. Id. at 252, 255.

      . See Tenn.Code Ann. § 27-5-101 (2001). The appellant in Barrett, the companion case to Davis, also had a statutory right to a de novo appeal, although it was pursuant to Tennessee Code Annotated section 27-5-108 (2000) because the case initiated in general sessions court rather than municipal court.

      . While the appellee argues that our holding today should not be applied retroactively to the present case, we note that this case was in the appeals process when this Court’s decision in City of Chattanooga v. Davis, 54 S.W.3d 248 (Tenn.2001) was handed down. At that time, we directed the Court of Appeals to reconsider its earlier decision in appellant’s case in light of the holding in Davis. As the present case has been under review in the appeals process during this entire time, our holding today is properly applied to this case without implicating the issue of retroactive application.

      . See Tenn.Code Ann. § 29-3-101 et. seq. (2000).


text:
    STATE of Tennessee v. Ricky THOMPSON.
    Supreme Court of Tennessee, at Knoxville.
    June 2004 Session. Heard at Nashville.
    Nov. 24, 2004.

      Charles Corn, Athens, Tennessee, and Brock Mehler, Nashville, Tennessee, for the appellant, Ricky Thompson.
    Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Angele M. Gregory, Assistant Attorney General; Jerry N. Estes, District Attorney General; and William W. Reedy and Amy Reedy, Assistant District Attorneys General, for the appellee, State of Tennessee.
   OPINION

WILLIAM M. BARKER, J.,

delivered the opinion of the court,

in which FRANK F. DROWOTA, III, C.J., and E. RILEY ANDERSON, ADOLPHO A. BIRCH, and JANICE M. HOLDER, JJ., joined.

The defendant was convicted by a jury for the 1989 first-degree premeditated murder of his wife, the aggravated assault of his wife’s niece, and the arson of his home. Following a bifurcated sentencing hearing, the jury sentenced the defendant to death. After a hearing on the defendant’s Motion for New Trial, the trial court found that the State had failed to prove the defendant’s sanity beyond a reasonable doubt and modified the jury’s verdict to “not guilty by reason of insanity.” On appeal by the State, the Court of Criminal Appeals reversed, finding that under the standard of review of Tennessee Rule of Criminal Procedure 29, the evidence was sufficient to support the jury’s verdicts of guilt. The court reinstated the jury’s verdicts and remanded the case to the trial court for consideration of the remaining issues in the defendant’s Motion for New Trial and for sentencing on the aggravated assault and arson convictions. The defendant filed an application for permission to appeal pursuant to Tennessee Rule of Appellate Procedure 11, seeking review in this Court. We granted the application to determine (1) whether the evidence at trial was sufficient to support the jury’s verdict, including its determination that the defendant was sane at the time of these offenses, and (2) whether the provision of Tennessee Code Annotated section 39-11-501(c)(effective as of July 1, 1995), which prohibits experts from testifying on the ultimate issue of whether a defendant is legally insane, applied in this trial for offenses committed in 1989. After due consideration of the relevant authority, we conclude that the evidence was sufficient to support the jury’s verdict of guilt and that the prohibition of expert testimony on the ultimate issue of sanity was a substantive change to the law that should not apply in this case. Accordingly, the judgment of the Court of Criminal Appeals is affirmed, and the case is remanded to the trial court for further consideration of the Motion for New Trial and for sentencing in the aggravated assault and arson convictions.

Factual Background

The Events of October 25-26, 1989.

In the days before the events in question, victim Nina Thompson confided to Vickie Lynn Estelle, her supervisor at the Jiffy convenience store in Athens, Tennessee, that she and her husband, the defendant, were having marital problems. The victim said that she was considering leaving him. On the evening of October 25, 1989, the victim asked Bryan Kevin Helms, a co-worker arriving to relieve her at the end of her shift, to cover for her if the defendant called or came looking for her. Helms agreed and did not ask any questions. The victim left with her niece, Dana Christine Rominger, and did not come home after work that night. Rominger testified at trial that after the victim had spoken to her earlier that day about the problems she was having with the defendant and expressed fear for her own safety, Rominger told her she could spend the night with her. Rominger picked up the victim after work and the women went to Rominger’s father’s house where they spent the night.

The defendant spent the evening and early morning hours looking for the victim. During visits to the convenience store where the victim worked and to the victim’s mother’s home, the angry defendant stated that “he was ready to kill someone,” that he was going “to kill that damn bitch Nina” and “kill the cops if they came to his trailer.” He also threatened to “blow out” the brains of his eight-month-old son, Ricky, who was with him during his search for the victim. At one point, he purchased two gallons of kerosene or gasoline at the convenience store and showed Helms an assault rifle with a bayonet attached.

At 11:00 a.m. the following morning, the victim, Rominger, and the victim’s five-year-old daughter drove to the couple’s trailer and went inside. The defendant and Nina argued, and the defendant threatened to hurt the victim if she did not do what he said. The victim, her daughter, and Rominger then ran out of the trailer and got into Rominger’s car, taking the eight-month-old Ricky with them. The defendant followed, carrying an assault rifle. The victim, still carrying baby Ricky, got out of the car at the defendant’s direction. When Rominger began blowing the car horn and screaming for help, the defendant told her to “shut ... up” and shot her in the leg. Rominger and the victim’s daughter fled across the street to a neighbor’s trailer. As the victim turned to run, the defendant shot her in the back. She fell to the ground on top of baby Ricky. As the baby crawled out from under his mother’s body, the defendant stood over the victim and fired several more shots as she lay on the ground. He also fired several shots into the air and into cars parked nearby. The defendant then picked up baby Ricky, went into his trailer, and set it afire. When he left the trailer, he was overheard as he walked next to the victim’s body stating, “See you later,” as though nothing had happened. He then carried the baby to a store across the street, bought a soft drink, took some unidentified “powder,” and waited for the police.

Evidence of the Defendant’s Mental State.

The defendant presented the expert testimony of two witnesses in support of his insanity defense. Dr. Tramontana, a clinical psychologist, opined that the defendant suffered from a mild to moderate impairment of the frontal lobe of his brain. On the day of the crime, this impairment would have affected the defendant’s reasoning, his judgment, and his ability to inhibit impulsive reactions. It would also have affected the defendant’s ability to focus, concentrate, plan, and organize. Such condition could be aggravated by stress or intoxication. Dr. Tramontana opined that the defendant’s mental impairment could have interfered with the defendant’s exercise of proper delay in judgment when provoked by circumstances such as were alleged to have occurred on the day of the crime. During cross-examination, Dr. Tramontana admitted that the Minnesota Multiphasic Personality Inventory test administered to the defendant in 1991 was invalid, possibly because the defendant had fabricated or exaggerated his symptoms.

Dr. Bernet, a psychiatrist, recounted the defendant’s history of mental health problems, which included numerous hospitalizations from 1968 to 1984. Dr. Bernet testified that the defendant had an impairment to the frontal lobe of his brain as a result of chronic alcohol abuse. This impairment affected his ability to exercise self-control and curb impulsive behavior. Furthermore, the defendant suffered from a chronic psychiatric disorder called schizo-affective schizophrenia, which caused a loss of touch with reality, delusions, hallucinations, and drastic mood swings. These two conditions (the frontal lobe defect and the schizophrenia), could aggravate one another. Dr. Bernet testified that the defendant’s mental defects could diminish his ability to appreciate right and wrong and conform his actions to the law. He admitted, however, that the defendant’s condition would come and go and that he would have “good periods” during which he could function normally. Dr. Bernet also admitted that the report he had prepared after evaluating the defendant stated that the defendant’s mental deficiencies were not serious enough to support an insanity defense. This latter testimony was later stricken from the record and the jury was instructed to disregard it, after the trial court decided that such testimony was barred by the passage, in 1995, of an amendment to the insanity statute that provided that “[n]o expert witness may testify as to whether the defendant was or was not insane as set forth in subsection (a) [of that statute].”

The defense also presented the testimony of Nancy Smith, the defendant’s first cousin, who testified that the defendant had been strange and out of touch with reality at times since he was a child. She also testified about the defendant’s history of mental health problems, which included suicide attempts and repeated hospitalization over the years. On cross-examination, the defendant’s cousin admitted that the defendant had not had any mental health problems requiring treatment from 1985 until the date of the shooting, although he continued to abuse drugs.

The State relied on the testimony of lay witnesses and cross-examination of the defendant’s experts to rebut the claim of insanity. The defendant’s physician, who had been treating the defendant for six months before the homicide, testified that on October 25, 1989, the day before the shooting, the defendant came to his office and appeared to be “stable.” Family members, co-workers of the victim, neighbors, and others in contact with the defendant testified that although the defendant appeared somewhat withdrawn or different, they never saw anything bizarre or unusual about his behavior and that he was a good father. There was testimony that the defendant appeared agitated and angry the night before the killing, exhibiting an assault rifle and stating that he was mad enough to kill someone. He was also reported to have instructed his brother-in-law on how to feign mental illness.

After the killing, the defendant gave the police a detailed account of the shooting and showed no emotion. He did not appear to be under the influence of drugs or alcohol.

At the conclusion of the proof, the jury returned a verdict of guilt of the first-degree (premeditated) murder of Nina Thompson, the aggravated assault of Rom-inger, and arson. Following a bifurcated sentencing hearing, the jury sentenced the defendant to death. Upon the defendant’s motion for a new trial or judgment of acquittal, the trial court entered an order modifying the jury’s verdicts to not guilty by reason of insanity. The court found as follows:

At trial, the defendant presented expert testimony that he suffered from a mental disease or defect at the time of the offense which would have affected his ability to both appreciate the wrongfulness of his conduct and to conform his conduct to the requirements of the law. The defense also presented lay evidence concerning the defendant’s strange behavior during the time leading up to and after the offense as well as evidence of the defendant’s possible consumption of both drugs and alcohol. The defendant, therefore, satisfied his burden of proof in raising a reasonable doubt as to his sanity at the time of the offense, and shifted the burden to the state to prove his sanity beyond a reasonable doubt as an element of the offense.
The state’s evidence on sanity consisted entirely of cross-examination of the defendant’s expert witnesses and of some lay testimony concerning the defendant’s behavior leading up to the event. The state presented no expert witnesses. Although several witnesses testified for the state that the defendant was acting “normal,” many of these same witnesses also testified that the defendant was “odd,” “nutty,” “strange,” or “different.” Family members of the victim testified that when the defendant was looking for the victim at 4:00 A.M. the morning before the murder, that he had threatened anyone who tried to take his child and had said he would kill them all and be out of the Moccasin Bend [Mental Health Institute] in time to piss on their graves. There was a discrepancy about when the statement was actually made and the person who testified that he heard these comments never told anyone about them until the time for retrial, about 10 years after the offense. They also testified that the defendant threatened to harm the children. Even these family members indicated that the defendant was not acting in a rational manner.
After carefully considering all the evidence, this court finds that while the record may contain some evidence on the issue of the defendant’s possible sane mental state at the time of the offense, the defendant’s sanity was not proven beyond a reasonable doubt as required by the law. Accordingly, this court finds that the jury’s verdict should be modified to NOT GUILTY BY REASON OF INSANITY.
Additionally, this court finds that the jury may have been confused on the issue- of sanity by this court’s instructions to the jury about how they were to consider the testimony of Dr. Bernet. After carefully considering this in conjunction with the evidence presented, this court pursuant to Rule 33(f) would also modify the verdict as indicated above.

The State appealed. In the Court of Criminal Appeals, the State raised only one issue: whether the trial court had erred in concluding that the evidence was insufficient to prove the defendant’s sanity beyond a reasonable doubt. The Court of Criminal Appeals agreed that the defendant had raised a reasonable doubt as to his sanity, thus shifting the burden of proving sanity to the State. However, after carefully reviewing the expert and lay testimony regarding the defendant’s actions and behavior on the day preceding and the day of the offenses, the court found the evidence legally sufficient to support the jury’s verdict, including the finding of sanity beyond a reasonable doubt. In doing so, the court found it significant that no expert testified that the defendant’s behavior was consistent with insanity; to the contrary, the descriptions of his behavior conflicted with the diagnosis. While the experts testified that his diagnosed illness would cause an inability to focus, organize, or premeditate, the description of his actions during this time period reflected a concentrated focus on finding the victim, a methodical search for her, and repeated expressions of his intent to kill anyone whom he perceived would be a threat to removing his child.

The Court of Criminal Appeals reversed the trial court’s order and reinstated the jury’s verdicts, remanding the case to the trial court for consideration of the remaining issues raised in the defendant’s Motion for New Trial, and for sentencing on the aggravated assault and arson convictions. In reaching this conclusion, the court held that a 1995 amendment to the insanity law prohibiting experts from testifying on the ultimate issue of sanity did not apply retroactively to the defendant’s case. Thus, Dr. Bernet’s original testimony that the defendant was not legally insane would have been admissible. The defendant appeals, challenging the sufficiency of the evidence of sanity, and raising the question whether the Court of Criminal Appeals erred in failing to retroactively apply the 1995 amendment.

Discussion

Sufficiency of the evidence of sanity.

At the time this offense was committed in October 1989, insanity was a defense to prosecution if, at the time of such conduct, as a result of mental disease or defect, the person lacked substantial capacity either to appreciate the wrongfulness of the person’s conduct or to conform that conduct to the requirements of the law. Graham v. State, 547 S.W.2d 531, 543 (Tenn.1977). Sanity was presumed. State v. Flake, 88 S.W.3d 540, 550 (Tenn.2002); State v. Jackson, 890 S.W.2d 436, 440 (Tenn.1994) (citing Brooks v. State 489 S.W.2d 70, 72 (Tenn.Crim.App.1972)); State v. Clayton, 656 S.W.2d 344, 345 (Tenn.1983). If, however, the evidence raised a reasonable doubt as to the defendant’s sanity, the presumption failed, and the State was required to establish beyond a reasonable doubt that the defendant both appreciated the wrongfulness of his conduct and was capable of conforming his conduct to the requirements of the law. See Flake, 88 S.W.3d at 550; Jackson, 890 S.W.2d at 440; Clayton, 656 S.W.2d at 345. The jury could consider both lay and expert testimony on this issue and discount expert testimony which it found conflicted with the facts of this case. See State v. Patton, 593 S.W.2d 913, 916 (Tenn.1979); Edwards v. State, 540 S.W.2d 641, 647 (Tenn.1976). The burden of proving sanity beyond a reasonable doubt could also be met by showing acts or statements of the petitioner, at or very near the time of the commission of the crime, that were consistent with sanity and inconsistent with insanity. State v. Sparks, 891 S.W.2d 607, 616-17 (Tenn.1995); Jackson, 890 S.W.2d at 440; Edwards, 540 S.W.2d at 646; State v. Overbay, 874 S.W.2d 645, 651 (Tenn.Crim.App.1993).

The defendant presented compelling testimony from both Dr. Tramontana and Dr. Bernet that he suffered from an impairment of the frontal lobe of his brain. This impairment would have affected his ability to reason, his judgment, and his ability to inhibit impulsive reactions. He also suffered from a chronic psychiatric disorder, schizo-affective schizophrenia, which caused a loss of touch with reality, delusions, hallucinations, and drastic mood swings. Dr. Bernet opined that this disorder could have affected the defendant’s ability to appreciate the difference between right and wrong and prevented his ability to conform his actions to the law. The defendant also presented lay testimony from his cousin concerning his history of mental health problems from childhood. Thus, it appears that the defendant successfully rebutted the presumption of sanity and shifted the burden to the State to prove sanity beyond a reasonable doubt.

On the other hand, the State effectively established, through cross-examination of these experts, that the defendant’s illness was intermittent, and he had “good periods” when he was able to understand the concepts of right and wrong and conform his actions to the law. We find it significant that neither of the expert witnesses in this case testified unequivocally that the defendant was insane at the time of these offenses. There was also evidence that some of the psychological test results were invalid because the defendant had fabricated or exaggerated his symptoms. In addition, the State offered lay testimony which established that the defendant did not have mental health problems requiring treatment for the four years preceding the shooting. His treating physician, in fact, stated that on the day before the shooting, the defendant appeared to be “stable.” Several witnesses testified that the defendant appeared agitated the night before the shooting and made threats to kill his son or to kill anyone who might try to take Ricky from him. Shortly after the shooting, the defendant showed no emotion as he recounted the details of the shooting during a police interview. All in all, we find that the cross-examination of experts and lay testimony was sufficient to meet the State’s burden of proving the defendant’s sanity beyond a reasonable doubt. The jury was justified in finding that at the time of these crimes, the defendant was in a “good period” and was not affected by his disorder to the extent that he was unable to distinguish right from wrong or to conform his conduct to the requirements of the law. Accordingly, we agree with the Court of Criminal Appeals that the jury’s verdict should be reinstated.

Applicability of Tenn.Code Ann. § 89-ll-501(c).

A question arose at trial as to the applicability of the 1995 amendment to the insanity statute, which bars opinion testimony by expert witnesses on the ultimate issue of sanity. Prior to the amendment, expert witnesses were permitted to testify whether, in their opinion, a particular defendant was or was not legally insane at the time of the commission of an offense. Cohen, Sheppeard & Paine, Tennessee Law of Evidence, § 7.04[4] n. 400 (4th ed.2000). However, as amended, Tennessee Code Annotated section 39 — 11—501(c) now provides: “No expert witness may testify as to whether the defendant was or was not insane as set forth in subsection (a). Such ultimate issue is a matter for the trier of fact alone.” See Advisory Comm’n Comments (1996), Tenn. R. Evid. 704; Flake, 88 S.W.3d at 551; State v. Perry, 13 S.W.3d 724, 740 (Tenn.Crim.App.1999).

During cross-examination, the State asked Dr. Bernet about a statement contained in his initial report to the effect that the defendant’s mental defects were not serious enough to rise to the level of an insanity defense. The trial court permitted the question, but after further study of the applicability of the 1995 amendment, later determined that the amendment should apply to bar such opinion testimony. Accordingly, the court came back the following day and instructed the jury to disregard Dr. Bernet’s testimony on this issue.

The Court of Criminal Appeals concluded that the trial court’s initial ruling that Dr. Bernet’s cross-examination testimony was admissible was correct, and that the 1995 amendment did not apply. The defendant argues that the change to the law was “procedural” in nature and should be applied even to cases tried under the old insanity law. The State responds that the change is substantive in nature and therefore should not be applied retroactively to cases tried under the old law. Because the trial court judge who tried this case is now deceased, and because there is the possibility of re-trial on our order of remand, we choose to address this issue.

Generally, statutes are presumed to apply prospectively in the absence of clear legislative intent to the contrary. Van Tran v. State, 66 S.W.3d 790, 797-98 (Tenn.2001); State v. Cauthern, 967 S.W.2d 726, 735 (Tenn.1998). In this case, the Legislature specifically provided in Section 2 of the Act that the amendments to the Act applied to all offenses committed on or after July 1, 1995. There is nothing in the text of the Act or in its legislative history to indicate that the Legislature intended it be applied retrospectively. As we recently stated in State v. Odom: “[H]ad the legislature intended to depart from the long-established rule that statutes are presumed to apply prospectively, it could have so indicated.” Odom, 137 S.W.3d 572, 582 (Tenn.2004). Furthermore, Tennessee Code Annotated section 39-11-112 states specifically:

Repealed or amended laws — Application in prosecution for offense. — Whenever any penal statute or penal legislative act of the state is repealed or amended by a subsequent legislative act, any offense, as defined by the statute or act being repealed or amended, committed while such statute or act was in full force and effect shall be prosecuted under the act or statute in effect at the time of the commission of the offense.

Therefore, based on clear legislative intent, we hold that the law in effect at the time the defendant committed these crimes controls whether expert testimony on the ultimate issue of sanity is admissible. Since the law at the- time the defendant committed these crimes permitted expert testimony on the ultimate issue, such testimony was properly admitted and would be admissible on re-trial.

We also recognize that applying a statute retroactively in a criminal case may implicate constitutional prohibitions against ex post facto laws. U.S. Const. art I, § 9, cl. 3; Tenn. Const, art. I, § 11; see also Odom, 137 S.W.3d at 582. However, we have previously held that “courts do not decide constitutional questions unless resolution is absolutely necessary for determination of the case and the rights of the parties.” Owens v. State, 908 S.W.2d 923, 926 (Tenn.1995). “If issues in a case can be resolved on non-constitutional grounds, courts should avoid deciding constitutional issues.” Id. Accordingly, as we have resolved the case before us on non-constitutional grounds, we need not address the constitutional issue.

Conclusion

After a thorough review of the expert and lay testimony presented at trial, we conclude that the evidence was sufficient to support the jury’s verdict of guilt beyond a reasonable doubt, including its determination that the defendant was sane at the time of the offenses. Furthermore, as to the admissibility of expert testimony on the ultimate issue of sanity, we conclude that the amendment of Tennessee Code Annotated section 39-ll-501(c) in 1995, which operated to prohibit expert testimony on the ultimate issue of sanity, did not apply to offenses committed before the amendment’s effective date of July 1, 1995. Accordingly, the judgment of the Court of Criminal Appeals is affirmed, and the case is remanded to the trial court for further consideration of the Motion for New Trial and sentencing for the aggravated assault and arson convictions.

It appearing that the defendant is indigent, costs of this appeal are taxed to the State of Tennessee.

      . This was the defendant’s second trial for these offenses. The first trial occurred in 1991 and resulted in the defendant's conviction of first-degree murder, aggravated assault, and arson. The defendant was sentenced to death for the first-degree murder. The Court of Criminal Appeals reversed the defendant's convictions because the trial court had excluded expert testimony regarding the defendant’s mental state at the time of the crimes. See State v. Ricky Thompson, No. 03C01-9406-CR-00198, 1996 WL 30252 (Tenn.Crim.App. at Knoxville, Jan. 24, 1996), app. denied c.r.o., (Tenn., July 1, 1996).

      . The jury found two aggravating circumstances: (1) that the defendant knowingly created a great risk of death to two or more persons, other than the victim murdered, during the act of murder; and (2) that the murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind. Tenn.Code Ann. § 39-2-203(l)(3), (5) (Supp.1988). It is unclear in the record whether the defendant was ever sentenced for the aggravated assault and arson convictions. The trial court’s subsequent ruling on the Motion for New Trial would have abrogated those sentences.

      . Rule 29 governs disposition of Motions for Judgment of Acquittal where "the evidence is insufficient to sustain a conviction of such offense or offenses.” Tenn. R.Crim. P. 29(a).

      . We note that since the trial of this case, the trial judge, John K. Byers, has passed away. Accordingly, consideration as thirteenth juror and of the remaining issues in the Motion for New Trial will be conducted by a successor judge. Tenn. R.Crim. P. 25(b); see State v. Brown, 53 S.W.3d 264, 275 (Tenn.Crim.App.2000). If such successor judge concludes that he or she cannot perform the duty of a thirteenth juror from reading the record, the successor judge may grant a new trial. Tenn. R.Crim. P. 25(b).

      . Although over two years lapsed between the return of the jury verdict and the hearing on the Motion for New Trial, there is no record that a sentencing hearing was held or judgment entered on the aggravated assault or arson charges.

      . It is less than clear from this language whether the court was acting under Tenn. R.Crim. P. 29 (judgment of acquittal) or Tenn. R.Crim. P. 33(f)(thirteenth juror rule). Since the trial court overturned the jury's verdict and declared the defendant not guilty by reason of insanity, the Court of Criminal Appeals concluded, and we agree, that the ruling fits more readily under the purview of Rule 29.

      . 1995 Tenn. Pub. Acts, ch. 494.