FILED

May 13, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

FEBRUARY SESSION, 1997

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 MICHAEL J. FAHEY, II

Assistant Public Defender Assistant Attorney General

110 1⁄2 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
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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

Appellate Procedure from their convictions following a bench trial in the McMinn

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

domestic animal less than $500.00 in value, two (2) counts of misdemeanor

vandalism, and one (1) count of criminal 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 criminal 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 support the convictions. We affirm the judgment of the trial court. 

When an accused challenges the sufficiency of the convicting

evidence, the standard is whether, after reviewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 319 (1979). Questions concerning the credibility of the witnesses,

the weight and value to be given the evidence, as well as all factual issues raised

by the evidence, are resolved by the trier of fact, not this court. State v. Pappas,

754 S.W.2d 620, 623 (Tenn. Crim. App.), perm. to appeal denied, id. (Tenn.
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1987). Nor may this court reweigh or reevaluate the evidence. State v.

Cabbage, 571 S.W .2d 832, 835 (Tenn. 1978). 

 On a defendant’s appeal from a conviction following a bench trial,

the State is entitled to the strongest legitimate view of the evidence and all

inferences therefrom. Cabbage, 571 S.W .2d at 835. Because a verdict of guilt

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

guilt, the accused has the burden in this court of illustrating why the evidence is

insufficient to support the verdict returned by the trier of fact. State v. Tuggle,

639 S.W .2d 913, 914 (Tenn. 1982).

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

door to the Defendants in a rural area of McMinn County in August 1992. The

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

Della Thomas prior to the Defendants moving into the area. At some point, the

Defendants 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 domestic animal,

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
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went out to check on her cattle and noticed the injured cow separated from the

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

apparently caused by shotgun pellets from behind her left ear all the way back

down her side and up to her backbone. A veterinarian was called, but 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 walked down the fence line to

discover the location of where the cattle had escaped. They confronted Mr.

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

back on the property within the area of the fence, that he would shoot and kill

another cow. 

Ms. Thomas testified that Mr. Violet had been explicitly inform ed to

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

Defendants on one occasion cutting the electric fence and removing the

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

observed Mr. Violet cutting the fence by himself. 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 speaking with Ms.

Thomas and her husband, he spoke with the Defendants. They advised the officer
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that they felt the fence was on their property. Although not admitting to shooting the

cow, Mr. Violet told Officer Coleman that he had been shooting his gun 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 her or her husband about shooting the cow. 

The evidence presented a classic question to be determined by the

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

find the Defendants guilty of the crimes for which they were convicted. 

We affirm the judgment of the trial court. 

____________________________________

THOMAS T. WOODALL, Judge

CONCUR:

___________________________________

JOSEPH M. TIPTON, Judge

___________________________________

JERRY L. SMITH, Judge