### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ugus t 14
, 200 7 S es sio n

STATE OF TENNESS EE v . LAVON NUNNERY

Direc t Appeal from the Circ uit Court for Rutherford Coun ty

No. 57369 Jer ry Scott , Senior Jud ge

No. M2006- 02054-CCA -R3-C D - F iled October 11, 2007

A f t e r a b e n c h t r i a l
, t h e R

u t h e r f o r d C o u n t y C i r c u i tC o u rtc o n v i c t e d t h e d e f e n d a n t , L a v o n N u n n e r

y, of misdemeanor

assault for thr eate ning to turn his pit bulldog loose on his neig hbor. The trial court subsequently

sentenc ed him to eleven months, twenty -nine da y s in the county

workhouse, to be

serve d consec utively

to the three -y ear

sentenc e for

assault with a dea dly

wea pon for whic h he wa s on probation at the time of the instant offe nse. I n a timely appea l to this court, the de fenda nt challeng es the suff

iciency of the c onvicting e vidence , arguing that the proof wa s insufficient to show that the vi ctim rea sonably fea red imminent bodily

injury from the dog . Following our re view, we aff irm the judg ment of the trial c ourt.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

A L AN E. G L EN N , J
., delivere d the opinion of the cour t, in which J ER R Y L. S MI TH and J OHN E VE R E TT W I L L I AMS , J J ., joined.

Tony L . Maples (on a

ppeal) and J am es R. Smit h (at trial) , Murfre esboro, Te nnessee , for the

a p p e l l a n t , L a v o n N u n n e r

y.
Robert E. Cooper, Jr., At t o rney Gene ral a

nd Reporter ; Cameron L . Hy der, A ssistant Attorney Ge ne ra l; Wil liam C. Whit e se ll, Jr., Di str ic t At tor ne y Ge ne ra l; a nd Tr e vo r H. L y nc h a nd Th oma s S. Santel, J r., Assistant District Attorney s Gene ral, for the appe llee, State of Te nnessee

.

OP IN ION

F AC TS

The State’s f

irst witness at the defendant’s Ma rch 3, 2006, be nch trial wa s the victim’s wife, Kimberly Drummond, who testified a s follows. She and her husband lived with their thre e childre n,

a g e s 1 4, 8, a nd

6, a t 10 3 App omatto x Cou rt in Mu rfr e e sb or o. Th e de fe nd a nt, wh o h a d b e e n th e ir neig hbor for approximately six or seven y ear s, lived acr oss the street f rom them. On the a fternoon-2-

of Ap ri l 17 , 2 00 5, Mr s. Dr umm on d w a s o uts ide wi th a nei ghbo r w hil e he r t he n- fi ve -y e a r- old daug hter a

nd two neig hbor g irls w ere riding their bicy cles on their cul-de -sac . Her husband and son

arr ived home and came out to whe re the women and g irls were cong reg ated. At a bout the same time, the def endant pulled into his drivewa y , walked into his house, and returne d with his pit bulldog.

The de fenda

nt walked to the e nd of his drivewa y with the d o g an d s ai d,“Sic ‘e m, Dusty ,” causing the dog to strain and pull at the le as h

. T h e v i ct im, who was standing in front of his own drivewa y , told the defe ndant, “Ma n, don’t do this. There’ s [s ic] kids out here .” The defe ndant

re sp on de d, “ Yo u d on ’t

kn ow ho w b a d I

wa nt t o le t th is dog g o on y ou .” He the n taunte d th e vic tim to step out in the street, telling him that he was g oing to “ kick his ass” in fr ont of all the childre n.

Mrs. Drummond testified t hat her family was ter rified of the def endant’ s dog beca

use they had see n it e xh ib it a g g r e s s iv e b e h a v io r in th e p a s t. A s a n e xa mp le
, s h e r e late d th a t th e d og had
ag g ressively

char g ed her

family as they wer e w al k i n g home past the de fenda nt’s backy ard

a pp ro xima te ly

tw o y e a rs e a rl ie r. She sa id t he y ha d s e e n th e de fend ant ho ldi ng the do g in h is backy ard a

nd had hurr ied past, but the dog had char g ed afte r them, coming within a couple of fee t and stopping only

when the vic tim st ruck it betwe en the e y es with a full ca n of s o d a. On another

occa sion, she witnessed the dog chase a little gir l who was riding her bic y cle down the ir stree t.

On c ro ss- e x amina tio n, Mr s. Dr umm on d te sti fi e d th a t th e de fe nd a nt w a s a t th e e nd of his drivewa y , approximately

ten to fiftee n fee t from the victim, when h e s ai d, “Sic ‘e m, Dusty .” She acknow ledg ed the stre et was betwee n the men and that the de fenda nt never rele ased the dog from its le a sh . Sh e c ou ld n ot r e c a ll i f t he vic timba c ke d up a nd sa id that he did no t im me diate ly

g o in to the house be cause his children were still outside and he had to protec t them. She acknow ledg ed that he r s on ha d h is d og , a

ba sse t ho un d, ou tsi de on a le a sha t th e tim e . Sh e sa id t ha t th e de fe nd a nt,

acc ompanied by

his girlf riend’s son, walked his dog down t he st ree t in front of he r house while she and the victim took their childre n inside and ca lled the police.

Mrs. Drummond testified ther e wa s no anim o s i t y betwee n the families ini tially , but the de fe nd a nt h a d b e e n ma

kin g pr og re ssi ve ly mor e vio le nt thr e a ts tow a rd the m ove r the pa st f e w y e a rs

. She denied that the victim had ever threatene d the defendant. She a cknowledg ed that she a nd her neig hbors had he ld a cookout to ce lebra te the def endant’ s previous move from the neig hborhood and explained that they

had all fe lt safer

when the de fenda

nt was g one. She r eadily admitted that she would like for the de fenda nt to leave the ne ighbor

hood ag ain.

Sha nn on Cuc c hia ra , a ne ig hb or of the vic tima nd the de fe nd a nt, te sti fi e d th a t sh e wa s w ith he r d a ug hte r i n th e vic tim ’s “ fr on t si de y a rd ” wh e n th e vic tima nd his wi fe cam e ho me wi th t he ir children a nd beg an talking to her. The defe ndant, who had be en in his y ard pla y ing w ith his st epson, went into his house, returne d with his dog
, and walked to the middle of the stree t. After e stablishing
ey e conta ct with the victim, the defe ndant threatened to turn the dogloose:

An d wh e n the y c a me ho me a nd wa lke d ov e r to me , he we nt ins ide the ho us e and g ot his dog, whic h I believe is a pit bull, and walked out into the middle of the-3-

road a nd made e y e conta ct with [t he victim] and threatened to let the dog g o. He threa te n e d to s ic th e d o g o n th e k id s

. I b e li e v e h e s a id s o me th in g to th e e f f ect of I have ha lf a mind to let this dog g o. And he reac hed down towa rds the dog ’s cha in, and the dog had like an attack stanc e. And [the victim] said, Don’t do it. And at that time I g ather ed my

thoughts to g et my

children. [The victim’s wife ] t ried to g et her children. A nd then he sa id it aga in, and [t he victim] just kind of shook his head a nd started wa lk i n g aw ay . And that’s whe n [t he def endant] started wa lking down the road.

Cucchiar a testified that she knew that the de fenda nt’s dog was a m ea n d o g beca use the defe ndant had “ Be war e of D og ” sig ns posted around his y ard a nd house. She said that t h e dog barke d and snar led at the f ence whene ver a

ny one wa lked past the de fenda nt’s y ard a

nd that she had

se e n it ru nn ingloo se in t

he pa st. On c ro ss- e xami na tio n, sh e te sti fi e d th a t th e de fe nd a nt w a s w ith in twenty -five fee t of

the victim when he ma de the c omment about having half a mind to let the dog
g o. She said the victim stood whe re he was and told the de fenda nt not to do it . The de fenda nt then

mov e d c los e r a

nd ma de a g e sture a s if he we re a bo ut to unl e a shthe do g . A t th a t po int , th e vic tim told him aga in not to do it . Cucchiar a neve r hea rd the de fenda

nt say , “Sic ‘e m, Dusty .”

J oann Goins, anothe r neig hbor of the defe ndant and the victim, testified that she w as stopped in h e r v e hic le on the str e e t ta lki ng to the vic tim ’s wi fe wh e n sh e sa w the de fe nd a nt c ome ou t of his house with his leashe d dog
, walk to the end of his drive way , and say something to the vic tim, who

was wa lking his dog at the edge o f hi s y ard. She sa id that the men exchang ed wor ds and that she asked the victim’s wife what was g oing on. I n response , the victim’s wife told her that she nee ded to g e t he r c hil dr e n in to t

he ho us e . G oin s d e sc ri be d th e inc ide nt:

As Is ai d
, wh en [ t h e d ef

en d an t ] ap p ro ac h ed t h e r o ad
, h e ha d s ai d s o m et h i n g. [The victim] had responde d. [The de fenda nt] had said something e lse. And at that point [ the victim] kind of rolled his he ad and started to walk awa y into his y ard. A nd at that point there w hen [t h e v i ct i m ’s wi fe] had said I just need to g et my

kids and kid s w e re be ing sc oo pe d, a nd Iha d my da ug hte r i n th e c a r a s w e ll, a nd we ne e de d to
g o home.

Goins testified that she could not hea r any of the wor d s ex ch anged be tween the defe ndant and the victim. However, she could see that the def endant’ s dog was stra ining a t the end of a

taut leash: “The re w as no slack in the le ash to wher e the dog was responsive t o him to si t and so on and so forth. I t was just pulled. I t was ready to g o.” She said that she w as familiar with the defe ndant’s dog from occ asions in the past when it had been loose and had char g ed her dog as she wa s walking down the stree t. On those occ asions, she had ha d to pull her dog back a nd kick at the de fenda

nt’s dog to preve nt the dog s from fig hting. On c ross-examination, she acknow ledg ed that the def endant

ne ve r l e t hi s d og loo se du ri ng the Ap ri l 17 , 2 00 5, inc ide nt.

The victim testified as f

ollows. He had just a

rrived home and was walking toward his wife

a nd ne ig hb or s w he n th e de fe nd a nt c a me ou t of his ho us e wi th his pit bu ll, wa lke d to the e nd of his-4-

drivewa y , and y elled, “Sic ‘em, Dusty .” He stopped and looked at the defe ndant and the dog , which

wa s p ull inga t it s le a sh a nd sh ow ingits te e th. Th e de fe nd a nt ke pt c omi ng tow a rd him , y e lli ng “ Sic ‘em, Dusty ,” and r eac hing dow n toward the dog ’s collar as if to turn it loose. He threw his hands
up a nd tol d th e de fe nd a nt n ot t o d o it

. Th e de fe nd a nt re pli e d, “ Yo u d on ’t kn ow ho w b a d I

wa nt t o let th is d o g g o

. ” H e a g a in to ld th e d e f e n d a n t n o t to d o it
, a n d th e d e f e n d a n t in v ite d him into t he street to fig ht, telling him that he was g oing to “ whup” him. At that point, the victim helped his wife
g ather t h ei r childre n into the house and then te lephoned the she riff’ s depar tment to report the incident.

The victim testified that the defe ndant’s dog had attacke d his f amily in the past and de scribed the inc ide nt t

ha t oc c ur re d a s h e a nd

his fa mil y we re wa lki ng ho me pa st the de fe nd a nt’ s y a rd . H e a lso descr ibed the incident whe re the dog had cha sed the little g irl on the bicy cle. On c ross-examination, he ac knowledg ed t h at the def endant ne ver le t the dog off its leash dur ing the April 17, 2005, inc ide nt. He te sti fi e d tha t the de fe nd a nt ha d the do g po int e d tow a rd him a nd wa s lo ok ingdir e c tly at him when he told the dog to “ sic” him a nd that he was no more than twe nty -five f eet f rom him at the time. The victim acknow ledg ed that he had had “ run-ins” w ith the defe ndant in the past and tha t he and his ne ighbor s had held a party to cele brate when the defe ndant previously had moved f rom the neig hborhood.

The d e f e n d a nt’s wife, Me linda Nunner y , testified that she, the de fenda nt, and her

seven- y ear

old so n ha d b e e n p lann ingto t a ke the de fe nd a nt’ s d og fo r a wa lk t og e the r o n th e a ft e rn oo n o f A pr il 17, 2005, but she had c hang ed h er mind at the last minut e. She said she w as on the porc h of the defe ndant’s house w hen she he ard the defe ndant say
, “Come on, Dusty ,” as he and his leashed dog
tur ne d le ft a t th e e nd

of the ir dr ive wa y

. She state d th a t th e de fe nd a nt n e ve r l e t th e do g of f i ts l e a sh and that she ne ver he ard the defe ndant or the vic tim speak to eac h other. On c ross-examination, she acknow ledg ed that pit bulls have a reputa tion as an ag g ressive br eed a nd that she and the defe ndant had “B ewa

re of Dog ” sig ns posted around the ir y ard. She explained, how ever , that they had plac ed the sig ns to protect their pr operty , not beca use the dog was a g g ressive.

The de fenda

nt testified that he and his stepson were taking his dog for a walk on the afte rnoon of Apr il 17, 2005, at the s ame tim e that the victim was outside in his y ard w ith his wife, son, and dog

. He said that his dog saw the vic tim’s dog a nd “wa nted to g o over the re to it,” so he
pu lle d le ft

on the do g ’s le a sh a nd sa id, “ Com e on , Dus ty ” a s he c on tin ue d to wa lk d ow n th e str e e t. He state d that he was at t he end of hi s drivewa y , approximately

twenty -five to thirty

fee t from the vic tim , w he n he tol d his dog to co me on

. He de nie d tha t he wa lke d in to t he mid dle of

the str e e t, s a id
any thing to the victim, or intende d to threate n t h e v i ct im in any way . On cr oss-examination, he acknow ledg ed that the pit bull bree d has a r eputation for a g g ressive be havior a nd that his dog ha d
g ott e n lo os e fr om h is y a rd on se ve ra l oc c a sio ns

.

AN AL YSI S

Th e so le iss ue the de fe nd a nt r a ise s o n a pp e a l is wh e the r the e vid e nc e wa s su ff ic ie nt t o s us ta in his c on vic tio n. Spe c if

ic a lly , he c on te nd s tha t th e re wa s in su ff ic ie nt p ro of

tha t th e vic timre a so na

bly-5-

fea red im m i n en t b o d i ly

injury from the pit bull. I n support, he cites the undisputed proof that he

never turned the dogloose and the victim’s testimony that he wa s twenty -five f eet a way when the

a lle g e d a l t e r c a t i o n t o o k p l a c e

. T h e d e f e n d a n t a d d i t i o n a l l y a s s e rt s t h a t t h e v i c t i m ’ s a c t i on s in

“ ro lli ng his he a d” a nd wa lki ng a wa y we re no t tho se of a pe rs on wh o f e a re d im min e nt b od ily

ha rm

. The State a

rg ues that the proof

was suff icient to show that the victim rea sonably fea red imminent bodily injury from the dog . We ag ree with the State.

I n considering this iss ue, we apply the familiar rule that whe re suf ficienc y of the c onvicting evidenc e is cha lleng ed, the r eleva nt question of the re viewing court is “whe ther, a fter viewing the evidenc e in the light most favora ble to the prosec ution, any rational trier of fact could have f ound the essential e lements of the c rime bey ond a re asonable doubt.” J ackson v. V irg inia, 443 U.S. 307, 319, 99 S. Ct . 2781, 2789 (1979); see also Tenn. R. App. P. 13(e) (“F indings of guilt in criminal actions whe ther by

the trial cour

t or jury shall be set aside if the evide nce is insuffic ient to support the finding s by

the trier of

fac t of g uilt bey ond a re ason ab l e d o u b t .”); State v. Eva ns, 838 S.W .2d 18 5, 19 0- 92 (T e nn

. 19 92 ); Sta te v. An de rs on , 83 5 S.W. 2d 60 0, 60 4 ( Te nn . Cr im. Ap p. 19 92 ). Al l questions involving the cr edibility of witnesses, the weig ht and value to be g iven the evide nce, a nd all fac tual issues are resolved by the t rier of fac t. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). Our supre me cour t stated the rationale for this rule:

This well-settled rule rests on a sound fo u n d at i o n . The trial judg e and the jury see the witnesses fa ce to f ace , hear their testimony

and obser

ve their de meanor on the stand. Thus t he trial judge and jury are the primary

instrumentality

of justice
t o d e t e r m i n e t h e w e i g h ta n d

c r e d i b i l i t y t o b e g i v e n t o t h e t e s t i m o n y o f w i t n e s s e s

. In th e tr ia l f o r u m a lo n e is th e r e h u ma

n a tm o s p h e r e a n d th e to ta li ty o f the evidenc e

c a nn ot b e re pr od

uc e d w itha

wr itt e n r e c or d in

thi s Co ur t.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W .2d 768, 771 (1966) ( citing Ca rroll v. State, 212 Tenn. 464, 370 S.W .2d 523 (1963)) . A jury conviction re moves the pre sumptio n o f i nnocenc e with which a defe ndant is initially cloake d and repla ces it with one of g uilt, so that on appea l, a convicted defe ndant has the bur den of de monstrating that the evidenc e is insufficient. See State v. Tug g le, 639 S.W .2d 913, 914 (Tenn. 1982) . The finding s of the trial judge in a benc h trial ca rry the same w eig ht as a jury verdic t. State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999).

To convict the de fenda

nt of assault, the State ha d to prove be y ond a re asonable doubt that the defend ant int e nti on a lly or kn ow ing ly

c a us e d th e vic timto r e a so na bly fe a r i mmi ne nt b od ily inj ur y

. Te nn

. Cod e An n. § 39 -1 3- 10 1( a )( 2) (2 00 3 & 20 06 ). Vi e we d in the lig ht m os t f

a vo ra ble to the Sta te , th e e vid e nc e e sta bli sh e d th a t th e de fe nd a nt thr e a te ne d, bo th by wo rd s a nd by g e sture , to turn his pit bull dog loose on the vi ctim and his family . The e vidence further established that this dog was known by the victim and other ne ighbor s for its ag g ressive te ndencie s and that it was straining and snarling at the end of its taut leash at the time of the incident. I n addition, as the trial cour t noted in its findings, the dog was of a bree d that has a g ener al re putation for ag g ression:-6-

Of c ourse a finding of g uilt of assault require s a finding that the Def endant by either words or a ctions place s another pe rson in rea sonable fe ar of imminent bodil y injury by on e wh o h a s th e pr e se nt a bil ity to d o th a t, t o inf

lic t bo dil y

inj ur y . A nd of c ours e having a pit bulldog on a leash or having one out the re with y ou at all makes it eve n

m o re t h re at en i n g. An d as t h e t es t i m o n y i n d i ca t ed
, a p i tb u l l d o g i s a d an ger o u s d o g.

. . . . Now, if the dog he was g oing to let g o had been a poodle or a Chihuahua, tha t of cour se wouldn’t have been muc h of a thre at. But with a pit bull it’s clear that the
state me nt t

ha t y ou ’r e g oin g to l e t a pit bu lld og g o wo uld be a state me nt that w ou ld place a person in rea sonable fear of i mminent bodily injury

. And t he per son with the do g a s a we a po n w ou ld h a ve a

c le a r a bil ity to d o th a t.

We c on c lud e , the re fo re , th a t th e e vid e nc e wa s su ff ic ie nt f or a ratio na l tr ie r o f f

a c t to fi nd that, by thr e a t e n i n g t o s e th i s p i tb u l l d o g l o o s e o n t h e v i c t i m , t h e d e f e n d a n t i n t e n t i o n a l l y

o r kn o w ing ly

cause d the victim to reasona bly fea r imminent bodily

injury

.

CO NC LU SION

Following our review, we conclude that the evidence is more than sufficient to sustain the defe ndant’s assa

ult conviction. Accor dingly , we a ffirm the judg ment of the trial c ourt.

___________________________________ AL AN E. GL ENN, JUDGE