### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs J

une 20, 2001
STATE OF TENNESSEE v. EDWIN BEARD
Appeal from the Circuit Court for Maury County No. 11443 Robert L. Jones, Judge

No. M2000-02886-CCA-R3-CD - Filed August 7, 2001

After a jury trial, Defendant was found guilty

of the included of

fense of simple a

ssault in two counts and the jury assessed fines of $5,000 for each count. Defendant

was subsequently sentenced to 11 months and 29 days on each count to run concurrently

. The sentence was suspended except for 12 days to be served cons

ecutively or six consecutive weekends. The fines were remitted to $500 for eachcount. In this direct appeal as of right, Defendant asserts that the jury and court erred in finding Defendan t guilty, beyond a reasonable doubt, in two counts of simple assault based upon the sufficiency

of evidence. We conclude that the evidence was sufficient to support Defendant’s two convictions for si

mple assault. Thus,

we affirm the tri

al court’s judgm

ent. Tenn. R. App. P. 3; Ju

dgment of the Circ

uit Court is Affirme

d.

L. T ERRY L AFFERTY , S R

. J., delivered the opinion of the court, in which D AVID G. H AYES , J., and T HOMAS T. W OODALL , J., joined. Rick C. Osborn, Columbia, Tennessee, for the appellant, Edwin Beard.

Paul G. Summers, Attorney General and Rep

orter; Elizabeth T . Ryan, Assist ant Attorney

General; and Mike Bottoms, District Attorney General, for the appellee, State of Tenne ssee.
OPINION

At t rial, Kim Westlund testified that in March 1999, she rented a residence from th e Defendant,

located at 5822 Fly Hollow Road, in Maury County, Tennessee. She stated that she pa

id
a mont h ly rental payment of $800.00. She notified Defe ndant that she was moving and would be outof the home by

November 1, 1999. She had removed most of her belongings from the residence except for some trash

cans, some last minute articles and a goat. On October 30, 1999, she and her son, Warren Ashworth, went to the property. About 11:30 a.m., she pulled into the driveway leading to the house. The driveway is about a half mile from the entrance to the house. As they pulled in, Defendant

was just coming out of the driveway. She testified that she told Defe

ndant, “I’ve

come to get my goat.” Defendant started y elling that we had trashed the place and that there were stains-2-

on the carpet. Defe ndant stat ed,“There looks like there is blood all over the carpet.” Defendant followed Westlund up the driveway and pulled his truc

k alongside of th

em. Mrs. Westlund we

nt to the Defendant’s dr

iver window. Def

endant began y

elling for her t

o get off his prop

erty and that she had no business there. Her son joined her at the truck’s side and to

ld Defend ant, “Just b

e quiet. We ju st co me to find my mom’s goat, and we’ll be out of here.” Mrs. Westlund testified that “at that point, he pulled a gun and stuck it in my face, about an inch from my face.” He said, “I’ ll kill you.” He says,“I’ll kill you, you e ffing bitch. I’ll kill you. Get off my property.” I said, “I ’m outof here. I’m gone. Don’t worry, I’m g one.” She stated Defendant then turned the gun on her son and fired
a shot at him. Mrs. Westlund went to herjeep and Defendant got out of his truck and stood between the passenger’s door and her son. Defendant fired a couple of m ore shots at her son, at c lose range towards his feet. Defen

dant b acked a way. Ashworth got in the jeep and they started to leave. Defendant

was still screamin

g, “I’ll kill you, you crazy bitch. I’ll kill you,” and fired a couple of
more shots at her jeep. Mrs. Westlund reported the incident to the Maury County Sheriff’s Department. During cross-examination , Mrs. Westlund ackn

owledged that sh

e had threatene

d a lawsuit against the Defendant over his intention to rem ov e a mobile home from the property. She denied threatening Defendant about him running over her 14 year old dog which later died as a result of the accident. She stated that the gun “looked like a .22” caliber pistol.

Warren Ashworth, age 19, testified that he and his m other went to her residence on Fl

y Hollow Road to look for her goat and help her pack som e tr ash . As the y pul led int o th e dri vew ay, th ey met the Defendant. Defendant started yelling about the house be ing messed up and spo ts o n the carpet. Ashwor

th did not know what th

e Defendant wa

s talking about sin

ce he did not live at

that pro pert y. His mother told Defendant they were there to look for

the goat and to get the trash. They drove to the back of the m obile home. Defe

ndant followed the

m and parked his tr

uck next to their j eep. Defendant beca

me irate, y

elled and screa

med at his mother, a

nd called her “a

crazy bitc

h. ” Ashworth stepped u p and said, “Hey, we’re just here to get the g oat. Shut up and we’ll be out of here.” Defendant then pulled a gun and stuck it in his mother’s face. He stated that the gun looked “like a little .22 pistol.” Defendant kept saying, “I ’ll kill you, you c raz y bit ch. Get off my pr ope rty. I’ll kill you. I’ll kill you.” His mother ran a nd got in the jeep. Defendant turned the gun toward Ashworth and said, “And y

ou, boy, don’ t you ever te ll me to shut up,” and

pointed the gun a

t him and walked toward him and fired between his legs a couple of times. Ashworth stated that he backed up and then jumped in th e jeep and they

took off. While they

were leaving,

Defendant was s

till yelling, “Get off my f--king property. I ’ll kill you. I’ll kill you.” Although Ashw orth had seen Defendant

two or three times before, he had never spoken to Defendant. Ashworth stated that the shots were loud and as they were leaving, he hea rd more shots.

On his own behalf, Defendant testified that he owned the property on Fly Hollow Road a nd rentedthe house to

Kim Westlund and her husband. Adjacent to the house was a mobile home that he rented to

some friends of the Westlunds. On the night of October 29, 1999, Defendant was called to the house because of a broken water connection in the laundry room. Defendant found thre e in ches of water throughout the house. Defendant had the broken connection repaired. On th e-3-

morning of

October 30 th , Defendant

returned to the house and learned that the Westlunds had moved out. Before this date, Defendant and the Westlunds had some conflicts as to who would pay for the pouring of some concrete

pads for the car

port. They a

lso had some words when she hooked her dog to the winch of his truck and the dog was injured while he was trying to leave. Westlund took the dog into the house

and laid it on the ne

w carpet and g

ot bloodstains on it.

On the day in

question, Defendant had arranged for Mike Rogers to do some work for him. Rogers wanted to build a sta nd for hunting an

d to also help

Defendant do some

work. About 11:00 a.m., Defendant left to go get he and Rogers something to eat when he c ame upon the victims atthe entrance of the driveway. “I pulled over a nd stopped, 'cause

I didn’t real

ly, you know, pull

in front of them, but I crowded them over to the side of the road, 'cause I wanted them

to stop.” They got into an argument ab

out the bloodstains o

n the carpet and

Westlund said, “Well,

all it takes is

a steam vac.” Defendant told

them to leave, and Westlund said, “I’m going to look for my goat.” Defendant told her the goat had

been gone for t

wo weeks. Defe

ndant stated that h

e called the Maur

y County Police Department. The victims went up to the house and Defendant parked his truck about 15 feet away from them. Westlund started calling for her goat. Defendant said, “It's gon e.” “Now y ’all leave. Thi s is my pr ope rty. I don't want you on here. You have already caused me enoug h trouble.” “Get in it and get the hell out of here.” Westlund c

ame over to

the truck and got in Defendant’s face,
so he said, “Look. Get out of here.” Ashworth said, “Hey you. Shut

your face.” Ashworth walked towards Defendant and Defendant opened his truck door and Westlund said, “Look, Mr. Bea rd, we’re leaving.” Defendant responded, “Well, just do it. . .” “I’m going to c all the police, and

I’m going to sue you for the damages. . .” As they were leaving , Defendant saw Rogers standing near the barn. Defendant denied threatening or cursing the victims. He also denied that he pulled a gun and shot at Ashworthon or the jeep. Although Defendant denied calling Mrs. Westlund a “bitch,” he did call her a “bimbo.”

M ike Rogers testified that he arrived at the Defendant’s place on October 30, 1999, about 11:00 a.m. He was going to build a deer stand for hunting. Rogers parked his truck behind the barn
near the lumber and heard Defendant leaving. He then heard a little white car return. Defendant was behind the car when both occupants began arguing back and forth. They appeared to be arguing over a goat. Although Rogers heard some bickering and s

ome curse words,

he did not hear an

y gunshots
or threats of violence. Rogers did not see Defendant with a gun,nor had he seen one in Defendant’s truck.

Mrs. Birtha Shouse tes tified that she has

lived next to the Def

endant’s entran

ce to his property for over 30 years. She has known the Defendant for 1 1 years. She estimated that her

home is about a thousand feet from De fendant’s ho use. She stated that sometimes she can hear voices from the house if they speak loud enough and she can also hea

r Defendant lea

ving with his

dog on the truck. She stated that on the date of the incident, she heard them “having a fuss at the mailbox.” They were having a heated argument and Edwin said, “Just turn that thing around and get it out of the hollow.” “However, they went on by him and he turned and went after them.” She could n o t hear the talk at the house. Later she heard a car leave then saw Defend

ant come out. Mrs. Sh

ouse stated she did not hear any gunshots.-4-

Sally Beard, Defendant’s ex-wife, testified that she had a conversation in the summer of 1999 withMrs. Westlun d. T he conversation was about the Defendant wanting to evict the couple who rentedthe mobile home so that he could move it. However, her husband had never indicated that he wanted to do this. She stated that her ex-husband owned a Colt revolver that belonged to her father. During rebuttal, Mrs. Westlund testif ied that she never

saw Mrs. Shouse nor

Mike Rogers. As to her conversation with Mrs. Beard, she stated that she talked to her about the concrete job and not about the problem with the mobile home.

LEGAL AN ALYSIS Although Defendant was indicted for two co unts of aggravated assaul t, Defendant asserts that the evidence adduc

ed at trial is

insufficient to support

convictions for th

e included offen

se of simple assault. The State would argue otherwise.

Tennessee Rules of

Appellate P rocedure 13( e) prescribe s that “fin dings of guilt in criminal actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support the findings by the

trier of fact of guilt beyond a reasonable doubt.” Evide nce is sufficient

if, after reviewing the evidence in the light most favorable to

the prosecution, a

ny rational

trier of fact co

uld have found the essential elements of thecrime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Smith, 24 S.W.3d 274, 278 (Tenn. 2000). In addition, because convictionby a trier of fact destroy s the presumption of innocence and imposes a presumption of guilt, a convicted criminal defendant bears the burden of showing that the evidence was insufficient. McBee v. State, 213 Tenn. 15, 372 S.W. 2d 173, 176 (Tenn. 1 963); State
v. Buggs, 995 S.W.2d 102, 105-06 (Tenn. 1999); State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992).
In its review of evidence, an appellate court must afford the state “the str

ongest legitima

te view of the evidence as well as all reasonable and legitimate inferences that may be d

rawn therefro

m. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982); See State v. Smith, 24 S.W.3d at 279. The court may not “reweigh or

re-evaluate th

e e vidence” in the record. State v. Evans, 838 S.W.2d at 191. Likewise, should the reviewing court find particular conflicts in the trial testimony, the

court must resolve them in favor of the jury verdict or trial court judgment. State v. Tuggle, 639 S.W.2d at 914. All questions involving the credibility of witnesses, the weight and value to be given the evidence, and all factual issues are resolved by the trier of fact, not the appe llate courts. State v. Morris, 24 S.W.3d 788, 795 (Tenn. 2000).

Since Defendant

was accused of

aggravated assault, the trial court instructed the jury of the elements of this of

fense. That is De

fendant intention

ally or know

ingly caused Kim Westlund and Warren Ashworth

to reasonably fear imminent bodily injury and that Defendant used or displayed
a deadly weapon. Also, the trial court instructed the jury as to the elem ents of reckless endangerment

, whose elements are similar to aggravated assault. Then the trial court instructed the jury that it could consider

the included offense of assault. To convict a person of simple assault, the-5-

jury was informed that

the State must

prove beyond a reasonable doubt that Defendant int ent ion all y, knowingly

or recklessly caused a

nother toreasonably fear imminent bodily injury . Defendant contends that since the victims did not testify that they were in fear of their safety or bodily injury at the mailbox, or at the confrontation at the bac k of the hous e, but only when an alleged gun appeared, there is no eviden ce of a si m ple assault. In essence, Defendant would have this panel sub sti tute its judgment of the facts and find Defendant not guilty. We decline to do so. The jury heard the testimony of all the witnesses, considered direct and circumstantial evidence, obser ved the demeanor of the various witnesses and credited the testimony in favor of the State. These facts are
a classic jury question to determine. Therefore, based on the rec ord, the evidence was sufficient for any rational trier of

fact to determine bey ond a reasonable doubt that Defendant was guilty of an assault.

In conclusion

, we affirm the tr

ial court’s judg

ment.

___________________________________ L. TERRY LAFFERTY, SENIOR JUDGE