### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs F

ebruary 20, 2001
STATE OF TENNESSEE v. NOAH HA MILTON
Direct Appeal from the Circuit Court for Monroe County

No. 99-021 Carroll Lee Ross, Judge

No. E2000-01018-CCA-R3-CD May 18, 2001

T he defendant appeals and asserts that the evidence was insufficient to support his conviction of vandalism. Specifically, he contends that theState’s evidence failed to prove the amount of damage beyond a reasonable doubt to establish a felony. After review, w e hold that the tria

l court properly calculated

the value of the amount of damages done by the defendant and that the evidence was sufficient to support the defendant’s conviction for felony vandalism. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

J OHN E VERETT W ILLIAMS , J., delivere d the opinion of the court, in which D AVID H. W ELLES , J., joined. J AMES C URWOOD W ITT , J R ., J., not participating. Charles M. Corn, District Public Defender, for the appellant, Noah Hamilton.

Paul G. Summers, Attorne y General and Re

porter; Lucian D . Geise, Assi stan t Attorney Gener al; Jerry N. Estes, District Attorney General; and Jon Chalmers Thompson, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

The defendant, Noah Hamilton, appeals his felony conviction for violation of Tennessee Code Annotated sectio

n 39-14-408, vand

alism. He asserts

that the evidence

was in s ufficient to support a conviction for v andalism and that the trial court erred in determining the value of the amount of damages done t

o the victim’s property . After review of the record, we hold that the evidence was sufficient to support the defendant’s co nviction for vanda

lism and that the trial court properly calculated the value of the amou nt of damages done b y the defendant to

make his conviction a Class D felony.-2- Facts

The defendant, Noa

h Hamilton, was indi

cted on March 4, 1 999, by a Monroe Cou nty Grand Jury. He was indicted f

or “unlawfully, in

tentio nally, or knowingly caus[ing] damage to or the destruction of personal property, to-wit: wheat field and fence, more than $100 0 but less than $10,0 00 . . . in violation of T.C.A. 39-14-408.” On March 3, 2000, after waiving a jury trial, the defendant was found guilty

by the Monroe Circuit Cour t of vandalism over

$1000 pursuant to Tennessee Code Annotated section 39-14-408. The court sentenced the defendant to two years probation conditional upon paying restitution of $2000.

The State’s first witne

ss was James Wall,

a resident of Tel

lico Plains, who witn

ess ed t he defendant driving his white truck on the victim’s property on February 11, 1999. Mr. Wall testified that the defendant drove through the victim’s muddy field and left tracks in the soft farmland.

Kenneth Hamilton, farm manager for the victim, testified that upon arriving at the victim’s farm the next day he discovered the damage that had

been done to the property. Hamilton testified that he saw tire tracks leading through the broken fence and continuing throughout the field. He testified that in some places in the field the defendant’s tire tracks appeared to form “doughnuts.” He affirmed that the damage was in fact done to farmland.

Hamilton then testified as t o th e am ount and manner of the damage. He detailed how the farm used a no-till system to grow soybeans. As a part of that system, the company first planted a wheat crop as a cover

crop. This

wheat crop is the one that was recently put into place at the time the defendant drove

through the field.

The purpose

of this wheat crop was to prevent erosion and to retain moisture in the ground to eventually help produce a better soybean yield.

Hamilton testified that in order to restorethe wheat crop to its status prior to the defendant’s actions, the company was required to re-level and replant fift y (50) acre s of farmland. Thi s replanting of the fifty acres required four “tillage passes” per acre in order to maintain even growing times for the crops. Each one of these “tillagepasses” cost the victim ten dollars per acre for a total expense of $2000. Although alleged in the indictment, the State failed to prove any damage to the broken fence.

The defendant

then testified on h

is own behalf and a

dmitted driving his

truck on the victim’s land. He claimed that he drove onto the land to get to a fishing spot and that he had been doing so for nearly fifteen years with permission. The defendant denied damaging the victim’s land. He then claimedthat he had permission from Ed Powers, who worked for

the victim. However, Ed Powers did not testify at the

trial.

At the conclusion of the trial, the defendant claimed that the State f ailed to pro ve the appropriate

amount of damages

for felony vanda

lism. He maintained

, as he did througho

ut the trial, that because the appropriate amount of damages had not been legally proven, then under Tennessee Code Annotated section 39-11-106(a)(36)(C), the damage should be l

ess than $50. Essentially, the-3-

defendant maintained that the appropriate measure of damages should be the loss of market value.

The trial court found that the total amount of damages was $2000 and that the defendant was guilty of felony vandalism. Accordingly, the trial court sentenced the defend ant to two (2 ) years pr obation conditioned upon paying $2000 restitution to the victim. The defendant appeals an d asserts that the evidence was insufficient to support his conviction for felony vandalism and that the trial court used the incorrect measure in order to place a value on the amount of damages. Analysis

When an accused challenges the sufficiency

of the evidence

, we review the r

ecord to determine if the evidenceadduced during the trial was sufficient "to support the findings by the trier of fact of guilt beyond a reasonable doubt." Tenn. R. App. P. 13(e). This rule is applicable

to findings of

guilt predicated upon direct evidence, circumstantial evidence or a combination of direct and circumstantial evidence. State v. Brewer , 932 S.W.2d 1,18 (Tenn. Crim. App.1996).

In determining the sufficiency of the evidence, this court does not reweigh or reevaluate the evidence. State v. Ca bbage , 571 S.W.2d 832, 835 (Tenn.1 978). Nor may this c ourt substitute its inferences for those drawn b y the trier o

f fact, “whethe

r by the tria

l cou rt or jury,” from circumstantial evidence. Tenn . R. App. P. 13(e); Liakas v. State , 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956). We are required to afford the state the strongest legitimate view of the evidence containedin the record as well as all reasonable and legitimate inferences which may be drawn from the evidence. State v. Tuttle , 914 S.W.2d 926, 932 (Tenn. Crim. App.1995).

The trier of

fact, not this cour

t, resolves questi

ons concerning

the credibility

of the witnesses, the weight and value to be given the evidence, as well as all fa c tual issues raised by the evidence. Tuttle , 914 S.W.2d at 932 . Because a verdict of guilt removes the presumption of innocence and replaces it with a

presumption of gu

ilt, the accused h

as the burden in

this court of illustrating why the evidence is insufficient to support the trial court’s verdict. See State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982); State v. Grace , 493 S.W.2d 913, 476 (Tenn. 1982).

Under Tennesse

e statutory

law, the offense

of vandalism is def

ined as follows: A ny person who knowingly causes damage to or the destruc tion of a ny real o

r per sonal property of another . . . knowing he does not have the owner ’s effective consent is guilty of an offense under this section. Tenn. Code Ann. § 39-14- 408(a). Damag

e is defined under this section as “[d]estr oying, pollut ing,
or contaminating property; or . . . causing pecuniary loss or substantial inconvenience to the owner or third person.” Tenn. Code Ann. § 39-14-408(b)(1).

The evidence clearly showed that the defendant drove onto the victim’s freshly planted wheat field and made several tracks throughout. By making these tra cks in the wheat field, the defendant destroyed the victim’s wheat crop, the replacing of which caused the victim a pecuniary loss and a substantial inconvenience. Therefore, the evid ence was sufficient to support the defendant’s-4-

convictio n of vandali sm. Altho ugh the defendant asserts that he had permission to come onto the victim’s land, the trial court obviously rejected the defendant’s assertion. Further more, evenif the defendant’s assertion is correct, no evidence indicated that the defendant’s permission to enter onto the victim’s land extended to him driving through or damaging the wheat crop.

Embeddedwithin the defendant’s claim that the evidence w as in sufficient to supp ort his conviction for

felony vandalism is his assertion that the trial incorrectly calculated the value of the damages. In coming to the appropriate class of crime for vandalism, the “[a]cts of vandalism are to be valued accordi

ng to the provisions of

§ 39-11-106(a)(36) and are to be valued as theft under § 39- 14-105.” Tenn. Code Ann. § 39-14-408(c)(1). Thus, if the damages are over $1 000 but less that $10,000 then the defenda

nt is guilty of a

Class D felony. Tenn. Code Ann. § 39-14-105(3). The trial court concluded that the appropriate value of the amou nt of the victim’s damages was $2000 and found the defendant guilty of Class D felony vandalism.

The defen da nt avers that application of Tennessee Code Annotated section 39-11-106(a)(36) requires the value of th

e amount of damag es to be the reduction of the fair market value of the property and because there

was no evidence of a reduction in the fair market val ue o f th e pro pert y, then the evidence wa

s insufficient. Th

e defendant fa

ils to recog

nize that Tennessee Code Annotated section 39-11-106(a)(36 )( A)(ii) further p rovides that “[i]f the

fair market valu

e of the property cannot be ascertained

” then the value sh

all be establish

ed by “the c

ost of replacing

the property within a reasonable ti

me after the offense.” In this case, the evidence showed tha t the cost of repairing the property to its status prior to the defendant’s actions was $2000. We arecognizant of the fact that one might argue that such action to the property is c o nsidered repair

and not replacement.

However, implici

t in most replaceme

nt of damaged pr

operty, whe

ther real or per

sonal, is the requirement for

extra costs that could be considered repairs. Thus, we find no error in the trial court’s con clu sio n th at t he v alu e of t he d ama ge to the vic tim ’s p rop ert y was $ 2000, sufficient t o est abl ish tha t th e def end ant ’s a cti ons were a Cl ass D fel ony.
Conclusion

Becau se we conclude that the evidence at trial was sufficient to support the defenda nt’ s conviction for vandalism and the trial court properly calculated the amount of damages,we affirm the defendant’s conviction.

___________________________________ JOHN EVERETT WILLIAMS, JUDGE