             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT JACKSON

                               MARCH 1996 SESSION
                                                            FILED
                                                             October 17, 1996

                                                            Cecil Crowson, Jr.
STATE OF TENNESSEE,                   )                      Appellate Court Clerk
                                      )
             APPELLEE,                )    No. 02-C-01-9510-CR-00291
                                      )
v.                                    )    Shelby County
                                      )
JIM R. HOLLINGSWORTH,                 )    W. Fred Axley, Judge
MICHAEL G. DONATO,                    )
THOMAS G. HAMMOND,                    )    (Criminal Trespass)
and BETTY L. HAMMOND,                 )
                                      )
             APPELLANTS.              )




FOR THE APPELLANTS:                        FOR THE APPELLEE:

Handel R. Durham, Jr.                      Charles W. Burson
200 Jefferson Avenue, Suite 750            Attorney General & Reporter
Memphis, TN 38103-2335                     500 Charlotte Avenue
(For Appellant Hollingsworth)              Nashville, TN 37243-0497

Stephen R. Leffler                         William David Bridgers
50 North Front Street, Suite 1075          Assistant Attorney General
Memphis, TN 38103                          450 James Robertson Parkway
(For Appellant Donato)                     Nashville, TN 37243-0493

James V. Ball                              John W. Pierotti
217 Exchange Avenue                        District Attorney General
Memphis, TN 38105                          201 Poplar Avenue, Suite 301
(For Appellant Thomas G. Hammond)          Memphis, TN 38103-1947

Betty L. Hammond, pro se                   C. Alanda Horne
P. O. Box 707                              Assistant District Attorney General
Senatobia, MS 38668                        201 Poplar Avenue, Suite 301
                                           Memphis, TN 38103-1947

                                           Judson W. Phillips
                                           Assistant District Attorney General
                                           201 Poplar Avenue, Suite 301
                                           Memphis, TN 38103-1947



OPINION FILED: ________________________________


AFFIRMED


JOE B. JONES, Presiding Judge

                                    OPINION
       The appellants, Jim R. Hollingsworth, Michael G. Donato, Thomas G. Hammond,

and Betty L. Hammond, were each found guilty of criminal trespass, a Class C

misdemeanor, by a jury of their peers. The trial court sentenced each appellant to pay a

fine of $50 and serve thirty (30) days in the Shelby County Workhouse. The appellants

contend that the evidence is insufficient, as a matter of law, to support a finding by a

rational trier of fact that they are guilty of criminal trespass beyond a reasonable doubt.

After a thorough review of the record, the briefs of the parties, and the authorities that

govern the issue, it is the opinion of this Court that the judgment of the trial court should

be affirmed.

       The Memphis Area Medical Center for Women (clinic) is located at 29 South

Bellevue Boulevard in Memphis, Tennessee. The building that houses the clinic is situated

on the northwest corner of Bellevue Boulevard and Monroe Avenue. The clinic offers

medical services to women. However, it is known as an abortion clinic. A clinic employee

described the business in the following manner: “It’s an abortion clinic. It’s also a well-

women clinic.”

       A high, chain link fence surrounds the clinic. Razor wire is affixed to the top of the

fence. There are three entrances that permit ingress and egress to the clinic parking

facilities. The main entrance to the clinic’s front parking lot is on Bellevue. A second

entrance to the front parking lot is on Monroe. The parking lot in the back of the clinic is

also accessed from Monroe. At the entrances, gates slide open behind the chain link

fence on each side of the driveway. The fence and gates are located eighteen inches

inside of the property lines. In other words, there is eighteen inches between the fencing

and gates and the sidewalks on both sides of the building.

       On Saturday, April 10, 1993, pro-life activists staged a protest at the clinic. Before

the clinic opened, the appellants, who were part of the protest, chained themselves to the

gate covering the Bellevue entrance to the clinic with heavy duty bicycle locks. Two men

also used the locks to chain themselves together at the neck, and one of the men was

chained to the gate.

       The appellants were asked by a clinic employee to remove the locks and leave the



                                             1
premises. They refused to either unlock the locks or leave the premises. The police were

summoned. A police officer also asked the appellants to remove the locks and leave the

premises. The officer advised the appellants that they would be arrested and transported

to jail if they did not unchain themselves and leave. They ignored the officer’s request.

       The police summoned the Memphis Fire Department to cut the bicycle locks. When

the firemen arrived, they attempted to cut the locks with the “jaws of life” tool, a device

used to cut away metal and remove people trapped in a wrecked motor vehicle. The tool

could not cut through the bicycle locks. Subsequently, the firemen cut the fence where the

locks were attached. The appellants were removed from the premises, placed in a paddy

wagon, and transported to jail. It cost the clinic $550 to repair the gate.1

       When an accused challenges the sufficiency of the convicting evidence, this Court

must review the record to determine if the evidence adduced at trial is sufficient "to support

the finding 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 based upon direct evidence, circumstantial

evidence, or a combination of direct and circumstantial evidence. State v. Dykes, 803

S.W.2d 250, 253 (Tenn. Crim. App.), per. app. denied (Tenn. 1990).

       In determining the sufficiency of the convicting evidence, this Court does not

reweigh or reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.

App.), per. app. denied (Tenn. 1990). Nor may this Court substitute its inferences for those

drawn by the trier of fact from circumstantial evidence. Liakas v. State, 199 Tenn. 298,

305, 286 S.W.2d 856, 859, cert. denied, 352 U.S. 845, 77 S.Ct. 39, 1 L.Ed.2d 49 (1956).

To the contrary, this Court is required to afford the State of Tennessee the strongest

legitimate view of the evidence contained in the record as well as all reasonable and

legitimate inferences which may be drawn from the evidence. State v. Cabbage, 571

S.W.2d 832, 835 (Tenn. 1978).

       Questions concerning the credibility of the witnesses, the weight and value to be

given the evidence, as well as all factual issues raised by the evidence are resolved by the

trier of fact, not this Court. Cabbage, 571 S.W.2d at 835. In State v. Grace, 493 S.W.2d

474, 476 (Tenn. 1973), our Supreme Court said: "A guilty verdict by the jury, approved by

       1
        The clinic employee testified that the repairs to the gate cost $550. A check
introduced into evidence indicates the cost of repairs was $1,514.

                                              2
the trial judge, accredits the testimony of the witnesses for the State and resolves all

conflicts in favor of the theory of the State."

       Since a verdict of guilt removes the presumption of innocence and replaces it with

a presumption of guilt, the accused, as the appellant, has the burden in this Court of

illustrating why the evidence is insufficient to support the verdicts returned by the trier of

fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This Court will not disturb a

verdict of guilt due to the sufficiency of the evidence unless the facts contained in the

record are insufficient, as a matter of law, for a rational trier of fact to find that the accused

is guilty beyond a reasonable doubt. Tuggle, 639 S.W.2d at 914.

       Before an accused can be convicted of criminal trespass, the State of Tennessee

must prove beyond a reasonable doubt that (a) the accused entered or remained on the

property, or a portion of the property, of another person, and (b) the accused did not have

the owner’s effective consent before entering the property. Tenn. Code Ann. § 39-14-

405(a). The term “enter,” as used in the statute, is defined as an “intrusion of the entire

body.” Tenn. Code Ann. § 39-14-405(c). The accused’s knowledge that he or she did not

have the “effective consent” to enter the property may be inferred from “(1) personal

communication to the [accused] by the owner or by someone with apparent authority to act

for the owner,” and (2) “[f]encing or other enclosure obviously designed to exclude

intruders.” Tenn. Code Ann. § 39-14-405(a)(1) and (2). In this case, the State of

Tennessee established each element of the offense beyond a reasonable doubt. Tenn.

R. App. P. 13(e).

       The appellants entered the premises of the clinic. Each appellant had his or her

torso within the area owned by the clinic. While the appellants’ legs extended beyond the

property line, their legs were within the driveway leading from the street to the clinic’s

parking lot. It is an elementary rule of law that the owner of property has an easement of

access between the property and an abutting street. This Court holds that when a person’s

body is within the owner’s easement, denying the owner ingress and egress, there has

been an “intrusion of the entire body” within the meaning of the statute.              Here, the

appellants’ entire bodies were blocking the driveway leading into the main parking lot.

Neither the owners of the property nor the patients seeking assistance at the clinic could



                                                  3
enter or leave the premises through the main entrance to the front parking lot.

         The evidence makes it clear that the appellants did not have the “effective consent”

to “enter” the property of the clinic. First, the fence and gates topped with razor wire made

it clear the owners did not want the appellants to “enter” the premises. Second, an

employee of the clinic told the appellants to leave. Also, a police officer, who had been

summoned by an owner of the clinic, instructed the appellants to leave. They refused to

leave.

         In summary, the evidence contained in the record is sufficient to support a finding

by a rational trier of fact that the appellants were guilty of criminal trespass beyond a

reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979).



                                           ________________________________________
                                               JOE B. JONES, PRESIDING JUDGE


CONCUR:



___________________________________
     GARY R. WADE, JUDGE



___________________________________
    WILLIAM M. BARKER, JUDGE




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