# FILED May 13, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE FEBRUARY SESS ION, 1997

STATE OF TENNESSEE, ) ) C.C.A. NO. 03C01-9603- CC-00135 Appellee, ) ) McMINN COUNTY V. ) ) HON. MAYO L. MASHBURN, JUDGE JOHNNY VIOL ET AND ) SHIRLEY VIOLET, ) (CRIMI NAL TRESPASSING, KILLI NG ) A DOMESTIC ANI MAL, VANDA LISM) Appellants. )

FOR THE APPELLANT : FOR THE APPELLEE : CHARLES M. CORN CHARLE S W. BURSO N Distri ct Public

Defender Attorney General& Reporter WILLI AM DONAL DSON MICH AEL J. F AHEY , II Assistant Public Defender Assistant Attorney General 110 1⁄2 Washington Ave. NE 450 James Robertson Parkway Athens, TN 37303 Nashvill e, TN 37243-0493 JERRY N. ESTES Distri ct Attorney General SANDRA DONAGHY Assistant Distri ct Attorney General 10th Judicial Dist rict P.O. Box 647 Athens, TN 37303-0647

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Defendants, Johnny Violet and Shi rley

Violet are husband and wife. They appeal as of right pur suant to Rule 3 of the Tennessee Rules of Appe llate Procedure fr om their convi ctions following a bench tri al in t he McMinn Coun ty C rimi nal Co urt. Mr. Violet was convicted of the offens e of kil ling a dom estic anim al le ss than $500.00 i n value, t wo (2) counts of

misdemeanor van dal ism , and one (1 ) count of crimina l trespass. The trial court sentenced Mr. Violet to eleven ( 11) months and twent y-nine (29) days o n the convic tion for kill ing a domestic ani mal and eleven (11 ) months and twent y-nine (29) days on each vandalism convict ion. He was sentenced to t hirty (30) days for the convicti on of crim in al trespass, with allsentences to run concurrently. The sentences w er e suspended, he was order ed to pay rest ituti on within nine (9) months as a conditi on of his pr obation. Shirley Violet was convicted of one (1) count of misdemeanor vandal ism, and was sentenced to el even (11) monthsand twenty-ni ne (29) days, which was suspended and she was placed on prob ation. As to bot h Defendants, t he sole issue on appeal is whet her the evi dence w a s 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 suff iciency of the convi cting evidence, the sta ndard is whether, after revi ewing the evidence in the l ight most favora ble to the pros ecution, a ny rati ona l tri er of fact could have found the essentialelements of

thecri me 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 rai sed 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 .), pe r m . to appeal denied , id . (Tenn.-3-

1987). Nor may th is court reweigh o r reevaluat e the evid ence. State v. Cabbage , 571 S.W .2d 832 , 835 (T enn. 19 78).

On a defen dant’s a ppeal from a convi ction fo llowing a benc h trial, the State is entitled to the s tronge st legitim ate v iew of th e evide nce a nd all inferences

the ref rom. Cabbage , 571 S.W .2d at 835
. Beca use a verdict o f guilt removes the presu mptio n of innocence and r eplaces it

with a presu mption of guilt, the accused has th e burd en in th is cour t of illustra ting wh y the ev idenc e is insuffi cientto su pport 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. T he evi dence sho wed that an el ectric f ence had been placed upon t he property of Della Thom as prior to the Defe ndants moving into the area. At some point, t he Defen dants took the positi on that the electri c fence was placedon their property. Proof was presented at trialthat the f

ence had been cutseveral times, and that a cow which belonged to Della Thomas was shot by a shotgun near the fence
. The cow died approxi mately two weeks later. After bei ng charged byindict ment with the offens es of vandali sm, criminaltrespass, and kill ing a dom estic a nima l, the Defendants were i nitial ly placed on pre-tr ial di version. However, when no r esti tution was paid pursuant to the memorandum of understanding, the prosecutor appar

ently f iled a not ice of termination of pre-tri al diver

sion.

The victim , D ella Thomas, and Off icer Kenny Coleman of the McMinn County Sherif f’s Depart ment testified for t he State at t rial. Ms. Thomas described how she heard a gunshot on t he evening of August 7, 1992 and later-4-

went out to c heck on he r cattle and noticed t he injured cow separated from the othercattle in the fie ld. Upon investi gation, s he noted the cow had i njuries appa rently caus ed by s hotgu n pell et s 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. Appr oximat ely three (3) days af ter her cow was shot, Ms. Thomas was returning home from Clevel and, Tennessee and noticed that allof her catt le were in t he middle of the blacktop road adjoi ning her property. She cal led for her husband to help her gather up the cattle. Ms. Thomas, her husban d, and h er father-in -law walk ed dow n the fenc e line to discover the loc ation of where the ca ttle had escap ed. They co nfronted Mr. Violet, who was intoxi cated. He stated to Ms. Thomas that if her cattl e ca me back on the propert

y withi n the area o f the fen ce, tha t he wo uld sh oot an d kill anothe r cow.

Ms. Thomas testifi ed thatMr. Violet h ad bee n explicitly inform ed to stayoff of her

property. Followingthi s admon ition, she observed bot h of the Defen dants on one occasi on cu tting t he electri c fence and removi ng the insulators. Ms. Thomas further testified about a separ ate incident

where she observed Mr. Violet c utting the fe nce by h imself. Furthermore, she testi fied that a survey

s howed the elect ric fenceto be on her si de of the proper ty li ne by approxim ately three (3) feet.

Officer Coleman testified that he was dispatched to t h e victim’s residenceappro

ximately s ix or

seven t imes co ncerni ng a pr oblem with the fence. One of the occasions involved the shooting of the cow. After speakin g wit h Ms. Thomas and her husba nd, he spoke with the Defendants. They advi sed the officer-5-

thatthey felt the fence was on their property. Although not admitting t o shooting the cow, Mr. Violet t old Officer Colem an that he had bee n shooting his gu n that day.

Mr. Violet did not

testify at

trial but hi s wife testifi ed that her husband had in fact

cut the fen ce, but on only one occasion. His reason fo r cuttin g the fence was that he belie ved it was on the Vio lets’ side o f the prope rty li ne. She t estified thather family owned no guns,and she also testifi ed thatMr. Violet could not h ave shot the cow because no one in her family owned any guns. She denied that any police officer talked to h er or her husba nd about shoo ting the cow.

The evidence pres ented a classic question to be dete rmined b y the trier of fact. There i s sufficient evidence i n this record for a rational trier of fact to find the Defendan ts guilty of the crimes for w hich they were co nvicted.

We affirm the judgment of the trial c ourt.

____________________________________ THOMAS T. W OODALL, Judge CONCUR:

___________________________________ JOSEPH M. TIPTON , Judge

___________________________________ JERRY L. SMITH, Judge