### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON STATE OF TENNESSEE v. ROBIN MCNEAL VANHOOSE Direct Appeal from the Criminal Court for Hardin County

No. 7797 C. Creed McGinley, Judge

No. W1999-00708-CCA-R3-CD - Decided July 28, 2000

The defendant

was convicted

by a Hardin County j ury of aggravat ed assault and re

ceived an eightyear sentence as a Range II multiple offender. He now appeals his conviction alleging (1) the indictment does not state an offense; and (2) the evidence is insufficient to support aggravated assault. We conclude the

indictment adequa

tely informed the defendant of the offense charged, and the evidence prese

nted at trial was s

ufficient for the

jury to conclude h

e was guilt

y of aggravated assault. Thus, the judgment of the trial court is affirmed. Tenn. R. App. P. 3 Appeal as of Right; Judgmen

t of the Criminal C

ourt Affirmed.
R ILEY , J., delivered the opinion of the court, in which G LENN , J., joi ned. T IPTON , J., dissents without filing a separate opinion. Ed Neal McDaniel, Savannah, Tennessee, for the appellant, Robin McNeal Vanhoose. Paul G. Summe

rs, Attor ney General and Reporter; J. Ross Dyer, Assistant Attorney General; G. Robert Radford, District Attorney General; and John W. Overton, Assistant District Attor n ey General, for the appellee, State of Tennessee. OPINION FACTS
On December 15, 1998, the victim's next door neighbors were having a party and a domestic dispute erupted. Kathy Cr

easy, the sister o

f the victim's girlf

riend, was badly b

eate n by her exhusband, David Creasy. The victim, William Hughes, went next

door to get Kathy Creasy and her nine-year-old child. He brought Creasy and the child to his residence. Shortlythereafter, the defendant, who had been next door, entered the victim's residence and a fight ensued betwee n the two men. Thereafter, the defendant left the premises but returned approximately

fifteen to twenty minutes later. He knocked on the victim’s door and when Hughes answered, the defendant pointed a 12 gauge shotgun at him. The victim grabbed the gun, and a shot was fired. Neither the defendant nor the victim was wounded. Subsequently, the victim wrestled-2-

the gun away from the defendant an d fired at the window to the left of the defendant's head. The victim was able to s

ubdue the defend

ant. The defendant gave

a statement to auth

orities in which he

admi tted goin g to the victim’s house and pointing the gun at him in an attempt to “scare” him. However, at trial, the defendant claimed he was too drunk to remember the details of the incident and asserted he “blacked out” off and on throughout the evening. The defendant was convicted of aggravated assault and received an eight-yea r sentence as a Range II multiple offender. The defendant now challenges both the sufficiency of the indictment and the sufficiency of the convicting evidence.

SUFFICIENCY OF THE INDICTMENT The defendant asserts the indictment was insufficient for failing to state an of fense. H e claims the indictment merely alleged an assault by d ispl aying a deadly weapon and alleged insufficient facts. Thus, he argues the indictment and subsequent conviction are void.
T he defendant was indicted for the crime of aggravated assault. The indictment read, i n pertinent part, th

at on December 1 5, 1998, the defen dant did intentionally or kn

owingly commit an assault on the per son of William Hughe

s, by the use or display of a deadly weapon, to-wit: a loaded 12 ga. shotgun, thereby com mitting the offense of Aggravated Assault, in violation of Tenn. Code. Ann. § 39-13-102(a)(1)(B), against the peace and dignity of the State of Tennessee. The defendant was c

onvicted under th

e subsection of th

e aggra vated assault statute which requires the commission of an assault with the “use or display of a deadly weapon.” See Tenn. Code Ann. § 39-13-102(a)( 1)(B). An assault occurs when the d

efendant either

causes “bodily inj ury to another” or causes “anot

her to reasonab

ly fear imminent bodily injury.” See Tenn. Code Ann. § 39- 13-101(a)(1) and (2). The issue no w before us is whether the omission of specific allegations of “bodily injury” or allegations that the victim feared “imminent bodily injury” rendered the conviction invalid. Judge Tipton, a member of this panel, authored

an opinion in

which this court dismissed an indictment that is similar to the indictment presently before us. See State v. Donald Ray Hammonds , C.C.A. No. 03C01- 9709- CR-00420, Sullivan County (Tenn. Crim. App. filed June 24, 1999, at Knoxville), perm. to app. granted January 1, 2000. That panel concluded the indictment did not sufficiently

allege an aggravated assault in the absence of any allegation concerning “bodily injury” or fear of “imminent bodily injury.” Judge Tipton continues to adhere to his opinion in Hammonds

. In a case decided after the grant of permission to appeal in Hammonds , the Te nnesse e Supreme Court re-emphasized that speci fic references to a statute within the indictment may be-3-

sufficient to place the acc

used on notice of th

e charged offen se and to protect the accused from reprosecution for the same offense. State v Sledge , 15 S.W.3d 93, 94-95 (Tenn. 2000). Likewise, the majority

of this panel concludes this indictment provided anadequate basis for entry of a proper judgment by the trial court. We conclude that fear of imminent bodily injury may be inferred from the conduct and statutory reference alleged in the indi

ctment. See generally, Sledge , 15 S.W.3d at 95; State v.Carter , 988 S.W .2d 145, 149 (Tenn. 1999); Ruff v. State , 978 S.W.2d 95, 97 (Tenn. 1998); State v. Hill , 954 S.W.2d 725, 729 (Tenn. 1997). The indictment stated the date of the alleged incident, the victim of the alleged incident, and stated the defendant intentionally committed an aggravated assault with a 12ga. shotgun in violation of Tenn. Code. Ann. 39-13-102(a)(1)(B). Thus, the majority concludes the indictment satisfie s the requiremen

ts set forth in Sledge, Carter, Ruff and Hill . Judge Tip ton disagrees and concludes this indictment is insufficient to charge aggravated assault for the reasons stated in Hammonds.

SUFFICIENCY OF THE EVIDENCE The defendant conte

nds that the eviden

ce is insufficien

t to sustain his

convictio n for aggravated

assault. He claims it was the victim who a ssaul ted him, and he never threatened the victim. Great

weight is given to the jury verdict in a criminal trial, and it accre dits the s tate’ s witnesses and resolves all conflicts in the state’s favor. State v. Bigbee , 885 S.W.2d 797, 803 (Tenn. 1994); State v. Harris , 839 S.W.2d 54, 75 (Te nn. 1992); S tate v. Johnson , 910 S.W.2d 897, 899 (Tenn. Crim. App. 1995). On appeal, the state

is entitled to the st

rong est legitimate view of the evidence and all reasonable inferences which may be dra wn therefrom. Bigbee , 885 S.W.2d at 803; Statev. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Furt hermore, a guilty verdict replaces the presumption of innocence with a presumption of guilt which appel lant must overcome on a ppeal. State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). Aggravated

assault is a knowing or intentional assault, as defined in Tenn. Code Ann. § 39- 13-101, by use or display of a deadly weapon . Tenn. Code Ann. § 39-13-102(a)(1)(B). A person commits a n assault if he inte ntionally or

knowingly c

auses bodily

injury or ca

uses another to reasonably fear imminent bodily injury . Tenn. Code Ann. § 39-12-101(a)(1) and (2).
At tr ial the defendant admitted that he retrieved a loaded gun and returned to the victim’s home in order to “scar

e” the victim. The

victim testified tha

t w hen he opened the door, the defendant was pointing a 12 gauge shotgun at him. He stated that he was “scared,” and he believed the defendant was going to shoot him. Further testimony revealed that the victim yelled for someone in the apartment to ca ll the police be cause the defendant had a weapon. The essence of the defendant’s testimony was that he was so drunk that he could not remember thedetails of the attack. The trial court appropriately noted that when another per son enter s one’s property with a loaded firearm, it is

reasonable to

infer the victim of

such an intrusion w

ould fear imminent

bodily inj ury. We unanimously conclude the evidence was sufficient to sustain the conviction for-4-

aggravated assault. CONCLUSION The majority concludes the language in the indictment sufficiently alleged the o ffense of aggravated

assault. Judge Tipton dissents fromthis conclusion and would reverse a

nd dismiss the indictment. We unanimo usly concl ude the evidence was sufficient to sustain the defendant’s conviction for aggravated assault. Thus, the judgment of the trial court is affirmed.