FILED

April 22, 1999

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

NOVEMBER SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9711-CC-00552

)

Appellee, )

)

) ROBERTSON COUNTY

VS. )

) HON. JOHN H. GASAWAY, III

BOBBY GENE WILSON, ) JUDGE

)

Appellant. ) (Direct Appeal - Class E Felony)

FOR THE APPELLANT: FOR THE APPELLEE:

MICHAEL R. JONES JOHN KNOX WALKUP

19th District Public Defender Attorney General and Reporter

110 Sixth Avenue, West

Springfield, TN 37172 LISA A. NAYLOR

Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243

JOHN CARNEY

District Attorney General

DENT MORRISS

Assistant District Attorney

Springfield, TN 37172

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
1

 The state’s charge against Appellant for assault was unresolved at the time this trial took place;

therefor e, the disp osition of this charge is unkn own to this Court.

-2-

OPINION

The appellant, Bobby Gene Wilson, was convicted by a Robertson County

jury of one (1) count of retaliation for past action by threatening a witness, a

Class E felony. The trial court sentenced him as a Range I offender to 402 days

in the Tennessee Department of Correction. Appellant’s sole issue on appeal is

whether the evidence was sufficient to sustain the jury’s verdict. After a thorough

review of the record of this Court, we affirm the trial court’s judgment.

I

In February 1996, charges were brought against Appellant for assaulting

Tonya Hamilton and Jackie Adams with a brick. Hamilton and Adams were

subpoenaed to testify against Appellant at his preliminary hearing on March 12.

Although both were present in court on March 12, neither testified against

Appellant because he waived his preliminary hearing.1

On June 2, 1996, Hamilton was outside of her hom e in Robertson County

when she observed Appellant and another man walking down the street. When

Appellant saw Hamilton, he declared in a loud voice, “there’s that bitch that

showed up in Court. I haven’t forgotten what you done [sic] to me in Court.”

Hamilton’s husband walked outside, and he and Appellant exchanged heated

words. Appellant proclaimed that he would return, and when he returned, he was

carrying a shotgun. Appellant then shot the weapon twice in the air and

threatened to “kill someone at [Hamilton’s] house.” 
-3-

At the conclusion of the proof at trial, the jury returned a verdict of guilty on

one (1) count of retaliation for past action by threatening a witness. From his

conviction, Appellant brings this appeal.

II

Appellant maintains that the evidence is insufficient to sustain the jury’s

guilty verdict. He claims that Hamilton was not a “witness” within the meaning of

Tenn. Code Ann. § 39-16-510 because she did not testify at any court proceeding

and did not swear out a warrant against him. We disagree.

A.

When an appellant challenges the sufficiency of the evidence, this Court

is obliged to review that challenge according to certain well-settled principles.

Where the sufficiency of the evidence is contested on appeal, the relevant

question for the reviewing court is whether any rational trier of fact could have

found the accused guilty of every element of the offense beyond a reasonable

doubt. Tenn. R. App. P. 13(e); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992).

On appeal, the state is entitled to the strongest legitimate view of the evidence

as well as all reasonable and legitimate inferences that may be drawn therefrom.

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). In conducting our

evaluation of the convicting evidence, this Court is precluded from reweighing or

reconsidering the evidence. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim.

App. 1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).

Moreover, this Court may not substitute its own inferences “for those drawn by

the trier of fact from circumstantial evidence.” State v. Matthews, 805 S.W.2d at

779.
-4-

A verdict of guilty by the jury, approved by the trial judge, accredits the

testimony of the state’s witnesses and resolves all conflicts in the testimony in

favor of the state. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994); State v.

Harris, 839 S.W.2d at 75. Although an accused is originally cloaked with a

presumption of innocence, a jury verdict removes this presumption and replaces

it with one of guilt. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence,

on appeal, the burden of proof rests with Appellant to demonstrate the

insufficiency of the convicting evidence. Id.

B.

Tenn. Code Ann. § 39-16-510(a) provides:

[a] person commits the offense of retaliation for past action who

harms or threatens to harm a witness at an official proceeding,

judge, juror or former juror by any unlawful act in retaliation for

anything the witness, judge, or juror did in an official capacity as

witness, judge, or juror.

Appellant argues that because Hamilton did nothing in an “official capacity”

as a witness, she was not a “witness” within the meaning of the statute. In

support of his argum ent, Appellant points to several opinions of this Court,

wherein we indicated that the act of signing an affidavit of complaint makes one

a “witness” under Tenn. Code Ann. § 39-16-510(a), regardless of whether the

“witness” testifies at an official proceeding. See State v. Manning, 909 S.W.2d

11 (Tenn. Crim. App. 1995); State v. James Robert Littleton, C.C.A. No. 03C01-

9507-CC-00201, 1996 WL 377086 (Tenn. Crim. App. filed July 5, 1996, at

Knoxville); State v. Carrie Phipps, C.C.A. No. 01C01-9506-CC-00199, 1996 WL

111341 (Tenn. Crim. App. filed March 14, 1996, at Nashville). Appellant urges

that because Hamilton did not sign an affidavit of complaint and did not testify at

the preliminary hearing, she cannot be a “witness.”
-5-

We agree that when a person signs an affidavit of complaint initiating

criminal proceedings against another, that person is a “witness” under Tenn.

Code Ann. § 39-16-510. However, we do not agree that signing the affidavit of

complaint is the exclusive way for one to become a “witness.” Clearly, Hamilton

was involved in initiating criminal proceedings against Appellant as she

complained about Appellant’s actions to the proper authorities. The fact that a

police detective signed the warrant instead of Ms. Hamilton does not alter her

status as a “witness”. Furthermore, Hamilton was listed as a witness on the

warrant. Once she became a “witness” for the state, she “retained that status

pending proper disposition of the case.” State v. Phipps, 1996 WL 111341 at *2.

Moreover, we find it absurd that Appellant could be insulated from liability

for this offense because Hamilton did not testify at the preliminary hearing.

Hamilton, upon being subpoenaed, duly appeared before the General Sessions

Court and was prepared to testify against Appellant. It was Appellant’s own

action, in waiving the preliminary hearing, that precluded Hamilton from taking the

stand.

Several months after Hamilton initiated crim inal proceedings against

Appellant for assault, Appellant confronted her in front of her home. He

proclaimed, “I haven’t forgotten what you done [sic] to me in Court.” Thereafter,

he retrieved a shotgun and fired it into the air, while threatening the lives of the

people inside Hamilton’s home. We cannot imagine a more clear cut case of

threatening a witness in retaliation for past action. The evidence is sufficient to

support Appellant’s conviction.

This issue has no merit.
-6-

III

We conclude that the state presented sufficient evidence for a rational trier

of fact to find Appellant guilty beyond a reasonable doubt. Accordingly, the

judgment of the trial court is affirmed.

____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

GARY R. WADE, PRESIDING JUDGE

___________________________________

JOHN H. PEAY, JUDGE