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 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, 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, 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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