State v. Violet

• Court: Court of Criminal Appeals of Tennessee
• Decided: May 13, 1997
• Docket: 03C01-9603-CC-00135
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED FEBRUARY SESS ION, 1997 May 13, 1997

Cecil Crowson, Jr. Appellate C ourt Clerk

STATE OF TENNESSEE, ) ) C.C.A. NO. 03C01-9603-CC-00135 Appellee, ) ) McMINN COUNTY V. ) ) HON. MAYO L. MASHBURN, JUDGE JOHNNY VIOLET AND ) SHIRLEY VIOLET, ) (CRIMINAL TRESPASSING, KILLING ) A DOMESTIC ANIMAL, VANDALISM) Appellants. )

FOR THE APPELLANT: FOR THE APPELLEE:

CHARLES M. CORN CHARLES W. BURSON District Public Defender Attorney General & Reporter

WILLIAM DONALDSON MICH AEL J. F AHEY , II Assistant Public Defender Assistant Attorney General 110 ½ Washington Ave. NE 450 James Robertson Parkway Athens, TN 37303 Nashville, TN 37243-0493

JERRY N. ESTES District Attorney General

SANDRA DONAGHY Assistant District Attorney General 10th Judicial District P.O. Box 647 Athens, TN 37303-0647

OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE OPINION

The Defendants, Johnny Violet and Shirley Violet are husband and

wife. They appeal as of right pursuant to Rule 3 of the Tennessee Rules of

Appe llate Procedure from their convictions following a bench trial in the McMinn

Coun ty Criminal Court. Mr. Violet was convicted of the offense of killing a

dom estic anim al less than $500.00 in value, two (2) counts of misdemeanor

vandalism, and one (1 ) count of crimina l trespass. The trial court sentenced Mr.

Violet to eleven (11) months and twenty-nine (29) days on the conviction for

killing a domestic animal and eleven (11) months and twenty-nine (29) days on

each vandalism conviction. He was sentenced to thirty (30) days for the

conviction of crim inal trespass, with all sentences to run concurrently. The

sentences were suspended, he was ordered to pay restitution within nine (9)

months as a condition of his probation. Shirley Violet was convicted of one (1)

count of misdemeanor vandalism, and was sentenced to eleven (11) months and

twenty-nine (29) days, which was suspended and she was placed on probation.

As to both Defendants, the sole issue on appeal is whether the evidence was

sufficient to s upport th e convictio ns. W e affirm the judgm ent of the tria l court.

When an accused challe nges the sufficiency of the convicting

evidence, the sta ndard is whether, after reviewing the evidence in the light most

favora ble to the pros ecution, a ny rational trier of fact could have found the

essential elements of the crime beyond a reaso nable d oubt. Jack son v. V irginia,

443 U.S. 30 7, 319 (1 979). Ques tions con cerning the cred ibility of the witnesses,

the weight and value to be give n the e videnc e, as w ell as all factual issues raised

by the evide nce, are resolved by the trier of fa ct, not this co urt. State v. Pappas,

754 S.W .2d 620 , 623 (T enn. C rim. App .), perm. to appeal denied, id. (Tenn.

-2- 1987). Nor may th is court reweigh o r reevaluate the evid ence. State v.

Cabbage, 571 S.W .2d 832 , 835 (T enn. 19 78).

On a defendant’s appeal from a conviction following a benc h trial,

the State is entitled to the s tronge st legitim ate view of th e evide nce a nd all

inferences therefrom. Cabbage, 571 S.W .2d at 835 . Beca use a verdict o f guilt

removes the presumptio n of innocence and replaces it with a presumption of

guilt, the accused has th e burd en in th is cour t of illustra ting wh y the ev idenc e is

insufficient to support the verdic t returned by the trier of fa ct. State v. Tug gle,

639 S.W .2d 913, 914 (Tenn. 198 2).

The victim in all of the case s was Della Thomas, who resided next

door to the De fendan ts in a rural a rea of Mc Minn C ounty in A ugust 1 992. The

evidence showed that an electric fence had been placed upon the property of

Della Thom as prior to the Defe ndants moving into the area. At some point, the

Defen dants took the position that the electric fence was placed on their property.

Proof was presented at trial that the fence had been cut several times, and that

a cow which belonged to Della Thomas was shot by a shotgun near the fence.

The cow died approximately two weeks later. After being charged by indictment

with the offenses of vandalism, criminal trespass, and killing a dom estic a nima l,

the Defendants were initially placed on pre-trial diversion. However, when no

restitution was paid pursuant to the memorandum of understanding, the

prosecutor apparently filed a notice of termination of pre-trial diversion.

The victim, Della Thomas, and Officer Kenny Coleman of the

McMinn County Sheriff’s Department testified for the State at trial. Ms. Thomas

described how she heard a gunshot on the evening of August 7, 1992 and later

-3- went out to c heck on he r cattle and noticed the injured cow separated from the

other cattle in the fie ld. Upon investigation, she noted the cow had injuries

appa rently caus ed by s hotgu n pellets from behind her left ear all the way back

down her side a nd up to her bac kbone . A veterina rian was called, bu t the pellets

were imbedded too far to be removed. Approximately three (3) days after her

cow was shot, Ms. Thomas was returning home from Cleveland, Tennessee and

noticed that all of her cattle were in the middle of the blacktop road adjoining her

property. She called for her husband to help her gather up the cattle. Ms.

Thomas, her husband, and her father-in -law walk ed dow n the fenc e line to

discover the location of where the ca ttle had escap ed. They co nfronted Mr.

Violet, who was intoxicated. He stated to Ms. Thomas that if her cattle came

back on the property within the area of the fen ce, tha t he wo uld sh oot an d kill

anothe r cow.

Ms. Thomas testified that Mr. Violet h ad bee n explicitly inform ed to

stay off of her property. Following this admonition, she observed both of the

Defen dants on one occasion cutting the electric fence and removing the

insulators. Ms. Thomas further testified about a separate incident where she

observed Mr. Violet c utting the fe nce by h imself. Furthermore, she testified that

a survey showed the electric fence to be on her side of the property line by

approxim ately three (3) feet.

Officer Coleman testified that he was dispatched to the victim’s

residence approximately six or seven times concerning a problem with the fence.

One of the occasions involved the shooting of the cow. After speakin g with Ms.

Thomas and her husba nd, he spoke with the Defendants. They advised the officer

-4- that they felt the fence was on their property. Although not admitting to shooting the

cow, Mr. Violet told Officer Colem an that he had bee n shooting his gu n that day.

Mr. Violet did not testify at trial but his wife testified that her husband

had in fact cut the fence, but on only one occasion. His reason for cutting the fence

was that he believed it was on the Violets’ side of the property line. She testified

that her family owned no guns, and she also testified that Mr. Violet could not have

shot the cow because no one in her family owned any guns. She denied that any

police officer talked to h er or her husband about shoo ting the cow.

The evidence pres ented a classic question to be dete rmined by the

trier of fact. There is sufficient evidence in this record for a rational trier of fact to

find the Defendan ts guilty of the crimes for w hich they were convicted.

We affirm the judgment of the trial court.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ JOSEPH M. TIPTON , Judge

___________________________________ JERRY L. SMITH, Judge

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