# FILED April 22, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE NOVEMB ER SESSION, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9711-CC-00552 ) Appellee, ) ) ) ROBERTSON COU NTY VS. ) ) HON . JOHN H. GAS AWAY , III BOBBY GENE WILSON, ) JUDGE ) Appe llant. ) (Dire ct Ap pea l - Cla ss E Felo ny)

FOR THE APPELLANT : FOR THE APPELLEE : MICHAEL R. J ONES JOHN KNOX WALKUP 19th District Publi c Defender Attorney Generaland Reporter 110 Sixth Avenue, West Springfi eld, TN 37172 LISA A. NAY LOR Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243 JOHN CARNEY Distri ct Attorney General DENT MORRISS Assistant Distri ct Attorney Springfi eld, TN 37172
OPINION FILED ________________________ AFFIRMED JERRY L . SMI TH, J UDGE1 The state’s cha rge against Appellant

for assault

was unresolved at

the ti me this tri al took pl ace; therefor e, the disp osition of this charge is unkn own to this Court. -2- 

## OPINION

The appellan t, Bobby Gene Wilso n, was co nvicted by a Rob ertson C ounty jury of one (1 ) count o f retaliation fo r past acti on by threate ning a w itness, a Class E felony. The trialcourt sentenced him as a Range I offender to 402 days in the Tennessee Department of Corre ction. A ppella nt’s so le issue on ap peal is whetherthe evide nce wa s sufficient to sustain th e jury’s verd ict. After a thorough review of th e record of this Cou rt, we affirm th e trial court’s ju dgme nt.

I
In February 199 6, charges were br ought against Appel lant for assaulti ng Tonya Hamilton and Jacki e Adams with a bri ck. Hamiltonand A dams w ere subpoenaed to testif

y againstAppellant at his prel iminary hearing on March 12. Although both we re prese nt in court o n Marc h 12, neither test ified against Appellant because he waived hi s prelimi nary heari ng. 1 On June 2, 1996, Hamilton was outs ide ofher hom e in Rob ertson C ounty when she observed Appell ant and anothe r man w alking do wn the s treet. When Appellant

saw Hamilton, he d ec lared in a loud voice,“there’ s that bi tch that showed up in Court. I haven’t forgotten what you do ne [sic] to m e in Cou rt.” Ham ilton’s husb and w alk ed outsi de, and he and Appell ant exchanged heated words. Appellant p roclaimed t hat he would return, and when he returned, he was carryi ng a shot gun. Ap pellant then shot t he weapon twice i n the air and threatened to “k ill someone a t [Hamilton’s] hou se.”-3- At the conclusi on of the proof at tri al, the j ury returned a verdict of guil ty on
one (1) count of retaliation for pa st action by t hr eaten ing a w itness . From his convic tion, Ap pellan t brings this ap peal.

II
Appellant

mainta ins th at the eviden ce is ins ufficien t to sus tain the jury’s guilty verdict . He claims t hat Hamilton was n ot a “witn ess” w ithin 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 hi m. We disagree. A. When an a ppellant challenges t he sufficiency of the evidence , this Court is oblige d to review that chall enge according to certain well -settled pri nciples. Wh ere the suffi ciency of the evidence i s contested on appeal , the rel evant question for the re v iewing court is wh ether any rationa l trier of fact could have found the acc used guilty of e very ele men t of the o ffense beyon d a rea sona ble doubt. Tenn. R. App. P. 13(e); State v. Harris , 839 S.W .2d 54, 75 (T enn. 1992 ). On appeal, t he state i s entitl ed t o the st rongest legiti mate view of the evidence
as well as all rea sonab le and leg itimate inferences that maybe d raw n th erefrom. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 19 78). In cond ucting ou r evaluati on of the c onvictin g evide nce, th is Cour t is precluded f rom reweighing or reconsideri ng the evide nce. State v. Morgan , 929 S.W.2d 380, 383 (Ten n. C ri m. App. 1996); State v . Matt hews , 805 S.W .2d 776, 779 (Tenn. Crim . App. 1990 ). Moreover, this Court

may not substi tute it s own inferences “for t hose drawn by the trier of fact from circums tantial evidence.” State v. Matthews , 805 S.W.2d at 779.-4- A verdict

of guil ty by th e jury, appr oved by the t rial j udge, accredi ts the testimony

of the st ate’s witn esse s and resolve s all con flicts in the testim ony in favor of thestate. State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994); State v. Harris , 839 S.W.2d a t 75. Al though an accused i s origina lly cl oaked with a presumption of innocence, a jury ver dict removes this presumpti on and replaces it with one o f guilt. State v. Tug gle , 639 S.W.2d 913, 914 (Tenn. 1982). Hence,
on appe al, the b urden of proo f rests w ith App ella nt to demonstrate the insufficienc y of the con victing evide nce. Id. B. Tenn. Code Ann. § 39-16-510(a) provides: [a] perso n commits the offense of retal iation f or past act ion who har ms or t hreatens to harm a witness at an off icialproceeding, judge, juro r or fo rmer juror by any unlawf ul act i n retali ation for anything the witn ess, ju dge, o r juror d id in an official capaci ty as witness, judge, or juro r. Appellant

argues that

because Hamilton did nothing in an “official cap acity”
as a witness, she was not a “wi tness” within the meaning of the statut e. In
s upport o f his argum ent, App ellant poin ts to severa l opinions of this Cou rt, where in we indicated that the act of sig ning a n affida vit of complaint makes one
a “witness”

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

testifies at an official p roceed ing. See State v. Manning , 909 S.W.2d 11 (Tenn. Crim. App. 1995); State v. James Robert Litt leton , C.C.A. No. 03C01- 9507-CC-00201, 1996 WL 377086 (Ten n. Crim. App. filed July 5, 1996, at Knoxville); State v. Carri e Phipps , C.C.A. No. 01C01-9506- CC-00199, 1996 WL 111341 (Tenn. Crim. App. filedMarch 14 , 1996, at Nas hville). Appellant u rges thatbeca use H amilto n did not sign a n affidavit of co mplain t and did not testify at the prelim inary hea ring, she c annot b e a “witne ss.”-5- We agree that wh en a p erson sig ns an a ffidavit of complaint i nitiating criminalproceedi ngs against anot her, that person is a “

witness” unde r Tenn. Code Ann. § 39-16-510. However, we do not agree that si gning the affi davit of complaintis the exclu sive way fo r one to become a “witness. ” Clearl y, Hamilton was involved in ini tiati ng criminalproceedings agai nst Appellant as she
c omp la ined about A ppellant’s actions to the prop er autho rities. The fa ct that a police detecti ve signed th e warrant i nstead of Ms. Hamilton does not alter her statusas a “witness”. Furt hermore, Hamilton was listed as awitness on the
warran t. Once she be came a “witness ” for the state , sh e “retai ned that status pending proper dispos ition of the case.” State v. Phipps , 1996 WL 111341 at *2. Moreover, we find i t absurd that Appellant

could be insulated from liability forthis offe nse b ecau se Ha mil ton did not testify at the prel iminary hearing. Hamilton, upon being subpoenaed, duly appeared before the General Sessions Court and was prepared to tes tify against

Appella nt. I t was Appel lant’ s own action, in waivin g the p relim inary hear ing, that precluded Hamilt

on from taki ng the stand. Several mon ths afte r Ham ilton initia ted crim inal pro ceedings against Appellant

for assaul t, Appell ant confronted her in fr ont of her ho me. H e proclaimed, “I haven’t forgotten wh at you done [sic] to me in Cou rt.” Thereafter, he retrieved a shotgu n and fired it into the air, while thr eatening thelivesof the peop le inside Hamil ton’s home. We cannot imaginea more cle ar cut case of threateni ng a witness in retal iation for past action. The evidence is suff icient to support Appell ant’s convi ction. This issu e has n o merit.-6- III

We conclud e that the s tate presented suf ficien t evidence f

or a rati onal trier of fact to find A ppellant g uilty bey ond a reasonable doubt . Accordingly, the judgment of t he trialcourt is affirmed.

____________________________________ JERRY L . SMI TH, J UDGE

CONCUR:

___________________________________ GARY R. WADE, PRESI DING J UDGE

___________________________________ JOHN H. PEAY, JUDGE