IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED NOVEMB ER SESSION, 1998 April 22, 1999
Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9711-CC-00552 ) Appellee, ) ) ) ROBERTSON COU NTY VS. ) ) HON . JOHN H. GAS AWAY , III BOBBY GENE WILSON, ) JUDGE ) Appe llant. ) (Dire ct Ap pea l - Cla ss E Felo ny)
FOR THE APPELLANT: FOR THE APPELLEE:
MICHAEL R. JONES JOHN KNOX WALKUP 19th District Public Defender Attorney General and Reporter 110 Sixth Avenue, West Springfield, TN 37172 LISA A. NAYLOR Assistant Attorney General 425 Fifth Avenu e North Nashville, TN 37243
JOHN CARNEY District Attorney General
DENT MORRISS Assistant District Attorney Springfield, TN 37172
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE OPINION
The appellan t, Bobby Gene Wilso n, was co nvicted by a Rob ertson C ounty
jury of one (1 ) count o f retaliation fo r past action by threate ning a w itness, a
Class E felony. The trial court sentenced him as a Range I offender to 402 days
in the Tennessee Department of Corre ction. A ppella nt’s so le issue on ap peal is
whether the evide nce wa s sufficient to sustain th e jury’s verd ict. After a thorough
review of th e record of this Cou rt, we affirm th e trial court’s ju dgme nt.
I
In February 1996, charges were brought against Appellant for assaulting
Tonya Hamilton and Jackie Adams with a brick. Hamilton and Adams w ere
subpoenaed to testify against Appellant at his preliminary hearing on March 12.
Although both we re prese nt in court o n March 12, neither testified against
Appellant because he waived his preliminary hearing.1
On June 2, 1996, Hamilton was outside of her hom e in Rob ertson C ounty
when she observed Appellant and anothe r man w alking do wn the s treet. When
Appellant saw Hamilton, he declared in a loud voice, “there’s that bitch that
showed up in Court. I haven’t forgotten what you done [sic] to m e in Cou rt.”
Ham ilton’s husb and w alked outside, and he and Appellant exchanged heated
words. Appellant proclaimed that he would return, and when he returned, he was
carrying a shotgun. Appellant then shot the weapon twice in the air and
threatened to “k ill someone a t [Hamilton’s] hou se.”
1 The state’s charge against Appellant for assault was unresolved at the time this trial took place; therefor e, the disp osition of this charge is unkn own to this Court.
-2- At the conclusion of the proof at trial, the jury returned a verdict of guilty on
one (1) count of retaliation for pa st action by threaten ing a w itness . From his
convic tion, Ap pellan t brings this ap peal.
II
Appellant mainta ins that the eviden ce is ins ufficien t to sus tain the jury’s
guilty verdict. He claims that Hamilton was n ot a “witn ess” w ithin the meaning of
Tenn. Code Ann. § 39-16-510 because she did not testify at any court proceeding
and did not swear out a warrant against him. We disagree.
A.
When an a ppellant challenges the sufficiency of the evidence , this Court
is obliged to review that challenge according to certain well-settled principles.
Wh ere the sufficiency of the evidence is contested on appeal, the relevant
question for the reviewing court is wh ether any rationa l trier of fact could have
found the accused guilty of e very ele men t of the o ffense beyon d a rea sona ble
doubt. Tenn. R. App. P. 13(e); State v. Harris , 839 S.W .2d 54, 75 (T enn. 1992 ).
On appeal, the state is entitled to the strongest legitimate view of the evidence
as well as all rea sonab le and leg itimate inferences that may be drawn therefrom.
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). In conducting our
evaluation of the c onvictin g evide nce, th is Cour t is precluded from reweighing or
reconsidering the evide nce. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim.
App. 1996); State v. Matthews, 805 S.W .2d 776, 779 (Tenn. Crim . App. 1990 ).
Moreover, this Court may not substitute its own inferences “for those drawn by
the trier of fact from circums tantial evidence.” State v. Matthews, 805 S.W.2d at
779.
-3- A verdict of guilty by the jury, approved by the trial judge, accredits the
testimony of the state’s witn esse s and resolve s all con flicts in the testim ony in
favor of the state. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994); State v.
Harris , 839 S.W.2d at 75. Although an accused is originally cloaked with a
presumption of innocence, a jury verdict removes this presumption and replaces
it with one o f guilt. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence,
on appe al, the b urden of proo f rests w ith App ellant to demonstrate the
insufficienc y of the con victing evide nce. Id.
B.
Tenn. Code Ann. § 39-16-510(a) provides:
[a] person commits the offense of retaliation for past action who harms or threatens to harm a witness at an official proceeding, judge, juror or former juror by any unlawful act in retaliation for anything the witn ess, ju dge, o r juror d id in an official capacity as witness, judge, or juro r.
Appellant argues that because Hamilton did nothing in an “official cap acity”
as a witness, she was not a “witness” within the meaning of the statute. In
support of his argum ent, App ellant poin ts to severa l opinions of this Cou rt,
where in we indicated that the act of sig ning a n affida vit of complaint makes one
a “witness” under Tenn. Code Ann. § 39-16-510(a), regardless of whether the
“witness” testifies at an official p roceed ing. See State v. Manning, 909 S.W.2d
11 (Tenn. Crim. App. 1995); State v. James Robert Littleton, C.C.A. No. 03C01-
9507-CC-00201, 1996 WL 377086 (Tenn. Crim. App. filed July 5, 1996, at
Knoxville); State v. Carrie Phipps, C.C.A. No. 01C01-9506-CC-00199, 1996 WL
111341 (Tenn. Crim. App. filed March 14 , 1996, at Nas hville). Appellant urges
that beca use H amilto n did not sign a n affidavit of co mplain t and did not testify at
the prelim inary hea ring, she c annot b e a “witne ss.”
-4- W e agree that wh en a p erson signs an affidavit of complaint initiating
criminal proceedings against another, that person is a “witness” under Tenn.
Code Ann. § 39-16-510. However, we do not agree that signing the affidavit of
complaint is the exclu sive way fo r one to become a “witness.” Clearly, Hamilton
was involved in initiating criminal proceedings against Appellant as she
comp lained about A ppellant’s actions to the prop er autho rities. The fa ct that a
police detective signed the warrant instead of Ms. Hamilton does not alter her
status as a “witness”. Furthermore, Hamilton was listed as a witness on the
warran t. Once she be came a “witness ” for the state , she “retained that status
pending proper disposition of the case.” State v. Phipps, 1996 WL 111341 at *2.
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED NOVEMB ER SESSION, 1998 April 22, 1999
Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9711-CC-00552 ) Appellee, ) ) ) ROBERTSON COU NTY VS. ) ) HON . JOHN H. GAS AWAY , III BOBBY GENE WILSON, ) JUDGE ) Appe llant. ) (Dire ct Ap pea l - Cla ss E Felo ny)
FOR THE APPELLANT: FOR THE APPELLEE:
MICHAEL R. JONES JOHN KNOX WALKUP 19th District Public Defender Attorney General and Reporter 110 Sixth Avenue, West Springfield, TN 37172 LISA A. NAYLOR Assistant Attorney General 425 Fifth Avenu e North Nashville, TN 37243
JOHN CARNEY District Attorney General
DENT MORRISS Assistant District Attorney Springfield, TN 37172
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE OPINION
The appellan t, Bobby Gene Wilso n, was co nvicted by a Rob ertson C ounty
jury of one (1 ) count o f retaliation fo r past action by threate ning a w itness, a
Class E felony. The trial court sentenced him as a Range I offender to 402 days
in the Tennessee Department of Corre ction. A ppella nt’s so le issue on ap peal is
whether the evide nce wa s sufficient to sustain th e jury’s verd ict. After a thorough
review of th e record of this Cou rt, we affirm th e trial court’s ju dgme nt.
I
In February 1996, charges were brought against Appellant for assaulting
Tonya Hamilton and Jackie Adams with a brick. Hamilton and Adams w ere
subpoenaed to testify against Appellant at his preliminary hearing on March 12.
Although both we re prese nt in court o n March 12, neither testified against
Appellant because he waived his preliminary hearing.1
On June 2, 1996, Hamilton was outside of her hom e in Rob ertson C ounty
when she observed Appellant and anothe r man w alking do wn the s treet. When
Appellant saw Hamilton, he declared in a loud voice, “there’s that bitch that
showed up in Court. I haven’t forgotten what you done [sic] to m e in Cou rt.”
Ham ilton’s husb and w alked outside, and he and Appellant exchanged heated
words. Appellant proclaimed that he would return, and when he returned, he was
carrying a shotgun. Appellant then shot the weapon twice in the air and
threatened to “k ill someone a t [Hamilton’s] hou se.”
1 The state’s charge against Appellant for assault was unresolved at the time this trial took place; therefor e, the disp osition of this charge is unkn own to this Court.
-2- At the conclusion of the proof at trial, the jury returned a verdict of guilty on
one (1) count of retaliation for pa st action by threaten ing a w itness . From his
convic tion, Ap pellan t brings this ap peal.
II
Appellant mainta ins that the eviden ce is ins ufficien t to sus tain the jury’s
guilty verdict. He claims that Hamilton was n ot a “witn ess” w ithin the meaning of
Tenn. Code Ann. § 39-16-510 because she did not testify at any court proceeding
and did not swear out a warrant against him. We disagree.
A.
When an a ppellant challenges the sufficiency of the evidence , this Court
is obliged to review that challenge according to certain well-settled principles.
Wh ere the sufficiency of the evidence is contested on appeal, the relevant
question for the reviewing court is wh ether any rationa l trier of fact could have
found the accused guilty of e very ele men t of the o ffense beyon d a rea sona ble
doubt. Tenn. R. App. P. 13(e); State v. Harris , 839 S.W .2d 54, 75 (T enn. 1992 ).
On appeal, the state is entitled to the strongest legitimate view of the evidence
as well as all rea sonab le and leg itimate inferences that may be drawn therefrom.
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). In conducting our
evaluation of the c onvictin g evide nce, th is Cour t is precluded from reweighing or
reconsidering the evide nce. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim.
App. 1996); State v. Matthews, 805 S.W .2d 776, 779 (Tenn. Crim . App. 1990 ).
Moreover, this Court may not substitute its own inferences “for those drawn by
the trier of fact from circums tantial evidence.” State v. Matthews, 805 S.W.2d at
779.
-3- A verdict of guilty by the jury, approved by the trial judge, accredits the
testimony of the state’s witn esse s and resolve s all con flicts in the testim ony in
favor of the state. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994); State v.
Harris , 839 S.W.2d at 75. Although an accused is originally cloaked with a
presumption of innocence, a jury verdict removes this presumption and replaces
it with one o f guilt. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence,
on appe al, the b urden of proo f rests w ith App ellant to demonstrate the
insufficienc y of the con victing evide nce. Id.
B.
Tenn. Code Ann. § 39-16-510(a) provides:
[a] person commits the offense of retaliation for past action who harms or threatens to harm a witness at an official proceeding, judge, juror or former juror by any unlawful act in retaliation for anything the witn ess, ju dge, o r juror d id in an official capacity as witness, judge, or juro r.
Appellant argues that because Hamilton did nothing in an “official cap acity”
as a witness, she was not a “witness” within the meaning of the statute. In
support of his argum ent, App ellant poin ts to severa l opinions of this Cou rt,
where in we indicated that the act of sig ning a n affida vit of complaint makes one
a “witness” under Tenn. Code Ann. § 39-16-510(a), regardless of whether the
“witness” testifies at an official p roceed ing. See State v. Manning, 909 S.W.2d
11 (Tenn. Crim. App. 1995); State v. James Robert Littleton, C.C.A. No. 03C01-
9507-CC-00201, 1996 WL 377086 (Tenn. Crim. App. filed July 5, 1996, at
Knoxville); State v. Carrie Phipps, C.C.A. No. 01C01-9506-CC-00199, 1996 WL
111341 (Tenn. Crim. App. filed March 14 , 1996, at Nas hville). Appellant urges
that beca use H amilto n did not sign a n affidavit of co mplain t and did not testify at
the prelim inary hea ring, she c annot b e a “witne ss.”
-4- W e agree that wh en a p erson signs an affidavit of complaint initiating
criminal proceedings against another, that person is a “witness” under Tenn.
Code Ann. § 39-16-510. However, we do not agree that signing the affidavit of
complaint is the exclu sive way fo r one to become a “witness.” Clearly, Hamilton
was involved in initiating criminal proceedings against Appellant as she
comp lained about A ppellant’s actions to the prop er autho rities. The fa ct that a
police detective signed the warrant instead of Ms. Hamilton does not alter her
status as a “witness”. Furthermore, Hamilton was listed as a witness on the
warran t. Once she be came a “witness ” for the state , she “retained that status
pending proper disposition of the case.” State v. Phipps, 1996 WL 111341 at *2.
Moreover, we find it absurd that Appellant could be insulated from liability
for this offe nse b ecau se Ha milton did not testify at the preliminary hearing.
Hamilton, upon being subpoenaed, duly appeared before the General Sessions
Court and was prepared to testify against Appellant. It was Appellant’s own
action, in waivin g the p reliminary hearing, that precluded Hamilton from taking the
stand.
Several mon ths afte r Ham ilton initia ted crim inal proceedings against
Appellant for assault, Appellant confronted her in front of her home. He
proclaimed, “I haven’t forgotten wh at you done [sic] to me in Cou rt.” Thereafter,
he retrieved a shotgu n and fired it into the air, while threatening the lives of the
peop le inside Hamilton’s home. We cannot imagine a more clear cut case of
threatening a witness in retaliation for past action. The evidence is sufficient to
support Appellant’s conviction.
This issu e has n o merit.
-5- III
W e conclud e that the s tate presented sufficient evidence for a rational trier
of fact to find A ppellant g uilty beyond a reasonable doubt. Accordingly, the
judgment of the trial court is affirmed.
____________________________________ JERRY L. SMITH, JUDGE
CONCUR:
___________________________________ GARY R. WADE, PRESIDING JUDGE
___________________________________ JOHN H. PEAY, JUDGE
-6-