State v. Bobby Wilson

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-