# FILED February 17, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE NOVEMB ER SESSION, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9710-CC-00455 ) Appellee, ) ) ) RHEA COUNTY VS. ) ) HON. J.CURTIS SMI TH, ROBERT GILLESPIE, ) JUDGE ) Appe llant. ) (Aggra vated A ssault)

ON APPEAL FROM THE JUDGMENT OF THE CRIMIN AL COURT OF RHEA COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : EDWARD L. BORING JOHN KNOX WALKUP P.O. Box 1025 Attorney Generaland Reporter Pikevil le, TN 37367 MICH AEL J . FAHE Y, II Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243 J. MI CHAEL TAY LOR Distri ct Attorney General JAME S W . POP E, III Assistant Distri ct Attorney General First Ameri can Bank Bldg., Suite 300 Dayton, TN 37321
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES , JUD GE-2- 

# OPINION

Th e Defen dant, Ro bert Gilles pie, pursu ant to Te nness ee Ru le of App ellate Procedu re 3(b), ap peals as of right his convicti on for the aggr avated assaul t of Charles Mears, his wife’s uncl e. Defendant was co nvicted af ter a jur y tri al, and he was sentenced to four yea rs and six m onths, w ith ninety da ys to be se rved in the county jai l and the remai nder to be serv ed on supervise d proba tion. W e affirm the ju dgme nt of the trial co urt.

Defendantchallenges only the sufficiencyof the evide nce to con vi ct h im. At the tim e of this offense, Defendant was engaged to his pr esent wife, and the coup le attended her

moth er’s fun eral. Mears, the v ictim, had apparently warned Defendant to stay away f rom the funeral ; and when he sawDefendant ther e, he
as saulted Defendant, causi ng him to fl ee toward his car. When D efendan t reached his car, he did not leave, but instead retri eved a gun and held i t up in t he parking lot among a gathering of fun eral guests . Another guest obtained the gun from Defendant, who f led on foot until capt ured. It is undisputed tha t Mears initially comm itted an as sault upo n Defe ndant. T he issu e for res olution by this Court is whether the evidencewas suffi cientto support Defendant’s aggr avated
assa ult convicti on or, stated differ ently, whether Defendant adequately pr

oved self-defen se so as to rende r the jury’s verd ict untena ble.

At trial t he State first

prese nted Cha rles Mears. Mears admitted t hat he cursed and struck Defenda nt after asking him at least

twice to leave the f uneral parlor. Mears testified that he then fol lowed Defendant outside to the parking lo t,-3-

where Defendant “pul led a gun” on him an d threate ned to kill him . Accord ing to Mears, Defendantpointe d the g un at h im for a pprox imate ly two m inutes with his finger on the tri gger. In addition, Defendant “chambered”a round, which ejected into the air o ver a park ed car.

O n cross-examinat ion Mears acknow ledged his intent to assa ult Defendan t further if he di d not leave t he premises. When as ked whet her Def enda nt h it

him , Mears stated tha t he “got hit,” b ut h e didnot kno w whethe r De fen dant hit him
. Mears never express ed that he feared bodily injury , but he stated, “When a man ’s got a gun o n you po inting straigh t at you, y ou don’t count the seconds or t he minutes. You don’t l ook to see where t he other people is [sic]at.” Mears also agreed that Defe ndant “h ad the p otential to sq ueeze the trigger a nd sho ot [him].”

The S tate next call ed Larry Wolcott t o testif y, who recounted that he saw Defendant point thegun at Mears, heard the “cli ck” of the ej ected round fr om the gun an d Defend ant’s threat to kill Mears, ran around the c rowd and c ars in th e parking lot, and s eized the gu n from Defe ndan t’s hand . He str uck D efend ant’s forehead with the gu n, and Defend ant then fled the scene. Wolcott estimated thatDefendant had held the gun for approxim ate ly thi rty

to f ort y se cond s. On cross-examinat ion, Defe ndan t im peac hed Wolcott with hi s testi mony from the pre li mi na ry hearing, during which he was ask ed whether he heard Defendant threaten Mears, and he responded, “No. There was too much noise going on out there to start

with.” On rebuttal , the State called Diane Wo lcott, La rry W olcott’s wife, who testified con sistently with h er husb and’s sta temen ts.-4- Defendanttestified on his own beha lf, desc ribing h ow M ears o rdere d him to leave the funeral home, sayi ng, “Get your black ass up, ” struck hi s thenfiancée, and then str uck him two or three ti mes on the side of his face and head. According to Defendant, he and his fi ancée attempted to get i nto their car when Mears began to beat Defendant again. For this r

eason, Defendant r

emoved from behin d the s eats a .22 ca liber pis tol that h e had not be fore se en, an d he h eld it “down beside” hi m forprotecti on against t he several men who descended upo n him. He denied point ing the gun at anyone . Defendant test ified that the car h e drove belonged to hi s brother and t hat the gun had not been in the car when he drove to th e funera l.

J enni ferGillespi e, Defendant’ s wife and Mears’ s niece, af firmed Defe ndan t’s testimony. She stated th at Mears “hi t [her]and knocked [her]out of the way and star

ted hitting Robert,” t hen “chased him out of the funeralhome .” She recalled M ears thre atening to kill Defen dant and c allin g him a “nigger.” According to Ms. Gil lespie, both Mears an d La rry Wolcott hit Defendant “consta ntly,” and they ch ased him out to hi s car. She deni ed that Defendant pointed the gun atanyo ne, stating that he he ld it by his side and tha t Wo lcott obtaine d it and be gan to h it him over th e head with it.

Tennessee Rule of A ppellate P rocedu re 13(e) p rescribe s that “ [ f]indi ngs of guilt in cri minal acti ons whether by t he trialcourt or j ury shallbe set aside if the evidence is insuf

ficien t to suppor

t the fi ndi ng by the trier of f act beyond a
reason able do ubt.” Tenn. R. App. P. 13( e). In addition, because convict ion by
a trier of fact destroys t he presumption of innocence and imposesa presumption of guilt , a convicted criminal defendant bears the burden of showing that the-5-

evidence was insu fficient. McBee v. State , 372 S.W.2d 173, 176 (Tenn. 1963);
see als o S tate v. Evans , 838 S.W.2d 185, 191 (Tenn. 19 92) (cit ing State v. Grace , 493 S.W .2d 474, 476 (Tenn. 197 6), and State v. Brown , 551 S.W.2d 329, 331 (Tenn. 197 7)); State v. Tug gle , 639 S.W.2d 913, 91 4 (Ten n. 1982 ); Holt v. State , 357 S.W .2d 57, 61 (T enn. 1962 ).

In its review ofthe evidence, a n appellate co urt must afford the State “ the strongest legitimate view of the evide nce as well as all rea sonab le and leg itimate inferences

that may be d rawn therefrom .” Tug gle , 639 S.W.2d at 914 (citi ng State v. Cabbage , 571 S.W .2d 832 , 835 (T enn. 19 78)). The court maynot “reweigh or re-evalu ate the ev idence ” in the reco rd below
. Evan s , 838 S.W.2d at 191 (citi ng Cabbage , 571 S.W .2d at 836). Likew ise, should the review ing court find particu lar con flicts in the trial testimony, the court must resolve t hem in favor of the jury ve rdict or trial cou rt judgm ent. Tug gle , 639 S.W.2d at 914.

“A pe rso n commits an aggravated assault who . . . [i ]ntenti onally or know ingly commits an assaul t as defi ned in § 39-13-101 and . . . [u]ses or displays a deadly wea pon.” Tenn . Code An n. § 39-13-10 2(a)(1)(B). “A person
comm its assa ult who . . . [i]ntentio nally or knowi ngly cau ses an other to
reaso nably fearimmin ent bod ily injury; or . . . [i] ntentional ly or knowi ngly causes physical contact wi th another and a reasonable person would regard the contact
as extr emely offens ive or provocative.” Id. § 39-13-101(a)(2)-(3). Tennesse e Code Annotated defines self-defense as fol lows:

A per son is just ified i n threateni ng or using force agains t another pe rs on wh en an d to the degre e the p erson reaso nably belie ves th e force is

immediately necessary to pr otect agai nst the other’s use or attempted use of unlawful force. The person must have a reason able be lief that there is an imm inent dan ger of de ath-6- or serious b odily injury. The danger creating the belief of imminent death or serious bod ily injury must be re al, o r hones tly believed to be real at t he time, and mus t be fou nded upon reaso nable grounds. There is no duty to retr eat before a per

son threatens

or uses force. Id. § 39-11 -611(a).

This case involves a confl ict of test imony regarding the events which occurred at Defenda nt’s car. Mears stated t hat he “got hit” duri ng the altercat ion, although he did not know whether D efendant hit him . According to M ears, Larry Wo lcott, and Diane Wolcott, Defendant pointed a gun at

Mears and “chambered”
a round of ammuniti on. Mears and Larr y Wolcott test ified tha t Def endant threatened to kil l Mears whil e he pointed t he gun. Althoug h Mears admitted t hat he would have continued to beat Defendant had Defendant refused to l eave the premises, he testified th at he did n ot strike D efenda nt in the pa rking lot. Furt hermore, Mears stated tha t he “followe d” Defe ndant o utside, “wa lk[ing] ou t there where h e was g etting into the car.” Mears believ

ed that Defendant

had the potential to shoot him from a s hort distan ce.
According to Defendan t and his wife, Mears and sever al other men “chased” him out of the fun eral home and to his car, con tinuously s triki ng him until the time he di splayed the gu n, which he cl aimed h e held at hi s side. Decisionsregarding whet her Defendant committed aggravated assault and wheth er h is acti ons constit uted defense of his li fe must be made by the t rier of fact— in this case, the jury. The jury found that Defendant did indeed commit an aggravated assault and that h e was not justified b y self-defen se. W e conclude thatthe ju ry was wi thin its purv iew to acc redit t he State’s witnesses and determine (1) that

Mears reasonably

feared for

his li fe while Defendant held a-7-

gun point ed at him, and (2) that Defendant was not j ustifi ed by a reasona bl e belief of an immin ent dan ger of de ath or se rious bod ily injury to hims elf.

We affirm De fendan t’s conviction and se ntence for aggra vated as sault.

____________________________________ DAVID H. WELLES , JUD GE

CONCUR:

___________________________________ JAMES CU RWOOD WITT, JR. , JUD GE

___________________________________ L.T. LAFFER TY, S ENIOR J UDGE