        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT KNOXVILLE              FILED
                      FEBRUARY SESS ION, 1997       December 17, 1997

                                                Cecil Crowson, Jr.
                                                 Appellate C ourt Clerk
STATE OF TENNESSEE,        )    C.C.A. NO. 03C01-9605-CC-00183
                           )
      Appellee,            )
                           )
                           )    JEFFERSON COUNTY
VS.                        )
                           )    HON. REX HENRY OGLE
LARRY GUNTER,              )    JUDGE
                           )
      Appe llant.          )    (Direct A ppeal - A ggravate d Assa ult)


                ON APPEAL FROM THE JUDGMENT OF THE
                 CIRCUIT COURT OF JEFFERSON COUNTY


FOR THE APPELLANT:              FOR THE APPELLEE:

EDWARD C. MILLER                JOHN KNOX WALKUP
Public Defender                 Attorney General and Reporter
P.O. Box 416
Dandridge, TN 37725             SANDY R. COPOUS
                                Assistant Attorney General
                                425 5th Avenu e North
                                Nashville, TN 37243

                                AL SCHMUTZER, JR.
                                District Attorney General

                                JAMES L. GASS
                                Assistant District Attorney General
                                Sevier County Courthouse, Suite 301
                                Sevierville, TN 37862



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                      OPINION

        Appellant Larry Donald Gunter appeals from a jury verdict rendered on April 12,

1995 in the Jefferson County Circuit Court finding him guilty of aggravated assault.

Appellant pleaded guilty to a charge of driving a motor vehicle without a valid operator's

license. As a Range I standard offender, Appellant received the following sentences:

(1) six years confinement in the Tennessee Department of Corrections for the

aggravated assault; and (2) a concurrent sentence of thirty days in the Jefferson

County Jail, on the conviction for driving a motor vehicle without a valid operator's

license. On April 24, 1995, Appellant filed a motion for new trial. However, the trial

court denied this motion on February 7, 1996. Appellant presents two issues for

consideration on this direct appeal: (1) whether the evidence was sufficient as a matter

of law to sustain Appellant's conviction for aggravated assault; and (2) whether the trial

court erred in denying Appellant's motion in limine to prohibit the introduction of threats

allegedly made by Appellant to Melissa Baker, Appellant's former girlfriend, when the

victim was not Ms. Baker.

        After a review of the record, we affirm the judgment of the trial court.



                                I. FACTUAL BACKGROUND

        The proof shows that on August 24, 1994, Appellant arrived at work at

approximately 3:45 P.M. Appellant's shift commenced at 4:00 P.M., and Melissa

Baker's, his former girlfriend, shift ended at 4:30.1 According to the testimony of the

victim, Ms. Debbie Quisenberry, Appellant arrived early in order to talk with Ms. Baker;

however, Baker was reluctant to speak with him. Subsequently, Appellant allegedly

began to cause a disturbance by pushing Baker and by threatening to kill her when she


   1
   At the time of this offense, Appellant and Ms. Melissa Baker both worked at LeSportsac in
Dandridge, Tennessee. Moreover, Ms. Debbie Quisenberry, the victim, also worked at
LeSportsac and was a friend of Baker's.

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left work. Because Baker feared Appellant, she requested that Ms. Quisenberry follow

her home.     Shortly after leaving work, Baker traveled down Nina Road, with

Quisenberry following her. Quisenberry saw Appellant sitting in his car, alongside Nina

Road, with his motor running. Immediately after Quisenberry's van passed Appellant,

he pulled onto the road behind her. Appellant then accelerated and began nudging

Quisenberry's bumper with his car. Quisenberry testified that the more that she sped

up, the faster Appellant drove. Appellant continued to drive at a high rate of speed,

pushing the victim's car with his bumper until she ran off the road. Quisenberry applied

her brakes and crossed the opposite lane. The victim's van then flipped three times

and ultimately came to rest in a field. She sustained two broken ribs and a badly

bruised pelvis and back.

       The prosecution presented the testimony of Officer Bud McCoig. Officer McCoig

testified that Appellant's left front parking light was broken and that he recovered from

along the roadside pieces of plastic from the housing of the parking light. Additionally,

Officer McCoig stated that he successfully fit together the broken fragments with that

portion of the housing which remained on Appellant's vehicle. The officer explained

that while he could detect no damage to a good portion of the front of appellant's car,

there was a scratch on the rubber pad of the left side of the vehicle's bumper.

       On direct examination, Appellant testified that he followed Ms. Baker because

he desired to stop her and to speak with her concerning their child. Appellant stated

that as he attempted to pass Quisenberry, she abruptly pulled in front of him and into

the opposite lane. Subsequently, he moved back into the righthand lane and saw

Quisenberry's van turning over. Appellant denied that he had ever intentionally bumped

Quisenberry's van with his vehicle and averred that he was not even sure that the two

vehicles had ever made contact. On cross-examination, Appellant testified that he was

not aware that Baker traveled on Nina Road in order to go to her home. Moreover, he

stated that it was a coincidence that both he and Baker were on Nina Road at the same




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time. Finally, Appellant denied ever threatening and shoving Ms. Baker at work prior

to the incident.



                        II. SUFFICIENCY OF THE EVIDENCE

       Appellant's first contention on this direct appeal is that the evidence was

insufficient to sustain his conviction for aggravated assault. We disagree.

       This Court is obliged to review challenges to the sufficiency of the convicting

evidence according to certain well-settled principles. 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 54, 75 (Tenn. 1992). 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. On appeal, "the [S]tate

is entitled to the strongest legitimate view of the evidence as well as all reasonable and

legitimate inferences that may be drawn therefrom." Id. (citing State v. Cabbage, 571

S.W.2d 832, 835 (Tenn. 1978)). 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. Harris, 839 S.W.2d 54, 75; Jackson v. Virginia, 443 U.S. 307, 319,

99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). 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." Matthews, 805 S.W.2d 776, 779. Finally, TENN. R. APP. P. 13(e) provides,

"Findings of guilt in criminal actions whether by the trial court or jury shall be set aside

                                            -4-
if the evidence is insufficient to support the findings by the trier of fact of guilt beyond

a reasonable doubt." See also Matthews, 805 S.W.2d 776, 780.

       We stated in Matthews that "A criminal offense may be established exclusively

by circumstantial evidence. However, before an accused may be convicted of a

criminal offense based upon circumstantial evidence alone, the facts and

circumstances `must be so strong and cogent as to exclude every other reasonable

hypothesis save the guilt of the defendant.'" 805 S.W.2d 776, 779-80 (quoting State

v. Crawford, 470 S.W.2d 610, 612 (Tenn. 1971)).

        Tenn. Code Ann. § 39-13-101 provides in pertinent part: "A person commits

assault who:

       (1) Intentionally, knowingly or recklessly causes bodily injury to another;

       (2) Intentionally or knowingly causes another to reasonably fear imminent bodily

injury." Id.   Tenn. Code Ann. § 39-13-102(a) provides that "A person commits

aggravated assault who:

       (1) Intentionally or knowingly commits an assault as defined in 39-13-101 and

(A) Causes serious bodily injury to another; or (B) Uses or displays a deadly weapon.

Id. "Serious bodily injury" is defined in Tenn. Code Ann. § 39-11-106(34) as "bodily

injury which involves: (A) A substantial risk of death; (B) Extreme physical pain. . . ."

Tenn. Code Ann. § 39-11-106(34). Thus, the State was required to prove each and

every element of the offense beyond a reasonable doubt.

       Appellant was originally charged with having committed this aggravated assault

in two different ways, i.e., he caused serious bodily injury to Ms. Quisenberry, and he

caused Ms. Quisenberry to reasonably fear death. Although the trial court found that

these two offenses were merged, the proof shows not only serious bodily injury to Ms.

Quisenberry but also that she was placed in reasonable fear of death.

       Viewing the evidence in light of the above-stated criteria, we hold that a rational

trier of fact could have concluded beyond a reasonable doubt that Appellant committed

aggravated assault.      First, the jury heard the compelling testimony of Debbie

                                            -5-
Quisenberry, the victim. She testified that on August 24, 1994, she heard Appellant tell

Baker that "he was going to kill her when she left work that day, he would be waiting on

her when she got off work." Quisenberry further explained that after Appellant had

threatened Baker's life, Baker asked Quisenberry to follow her home upon the

completion of their shift. Upon leaving LeSportsac that afternoon at approximately 4:00

P.M., Quisenberry followed Baker as the two vehicles traveled along Nina Road toward

White Pine. As she approached White Pine, Quisenberry noticed that Appellant "was

sitting on the side of the road in his car with it started." She stated that she could

discern that Appellant's car engine was running because she could see the exhaust

emitting from its rear. Appellant pulled out behind Quisenberry and pushed her van

with his car. As Quisenberry accelerated, Appellant simultaneously increased his

speed and continued to push her van until she ran off the road and flipped her van.

She told the jury that when Appellant bumped her car, "I thought I was going to die."

As a result of the wreck, Quisenberry sustained two fractured ribs and a badly bruised

pelvis and back.

       It was the jury's prerogative to reject Appellant's version of events in favor of Ms.

Quisenberry's. It apparently did so. That testimony shows that Appellant intentionally

caused Ms. Quisenberry to wreck and that, as a result thereof, she was put at

substantial risk of death and sustained serious bodily injury. Tenn. Code Ann. § 39-13-

102(a). Thus the verdict is amply supported by the evidence.




                                            -6-
                                III. MOTION IN LIMINE

       Appellant next argues that the trial court improperly denied his motion in limine

to prohibit the introduction of threats allegedly made by Appellant to Melissa Baker. We

do not agree.

       In his pretrial motion in limine, Appellant sought to exclude testimony that

Appellant allegedly had threatened to kill his former girlfriend, Melissa Baker. Appellant

argues that because the threats were made to one other than the victim, they were

irrelevant and should, therefore, be excluded. However, the trial court denied the

motion in limine, explaining that these alleged threats were relevant and were

admissible pursuant to TENN. R. EVID . 404(b), as they were probative on the issue of

Appellant's intent and his motive to commit the offense.

       The Tennessee Rules of Evidence embody, and our courts traditionally have

acknowledged, a policy of liberality in the admission of evidence in both criminal and

civil cases. State v. Robinson, 930 S.W.2d 78, 84 (Tenn. Crim. App. 1995); State v.

Banks, 564 S.W.2d 947, 949 (Tenn. 1978). To be admissible, evidence must satisfy

the threshold determination of relevancy mandated by Tenn. R. Evid. 401. Rule 401

defines "relevant evidence" as being "evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence." TENN. R. EVID . 401.

The decision of whether or not proffered evidence is relevant rests with the sound

discretion of the trial court, and the trial court's decision will not be reversed on appeal

absent a clear showing of an abuse of that discretion. State v. Forbes, 918 S.W.2d

431, 449 (Tenn. Crim. App. 1995). See State v. McCary, 922 S.W.2d 511, 515 (Tenn.

1996). In Forbes, this Court admonished trial courts to "state on the record the reasons

for admitting or excluding evidence on relevancy grounds" in order to expedite appellate

review. 918 S.W.2d 431, 449.




                                            -7-
       TENN. R. EVID . 404(b) controls the admissibility of specific instances of prior

misconduct. The rule delineates three specific conditions which must be satisfied

before such evidence may be admitted:

             (1) The court upon request must hold a hearing outside the jury's
             presence;
             (2) The court must determine that a material issue exists other
             than conduct conforming with a character trait and must upon
             request state on the record the material issue, the ruling, and the
             reasons for admitting the evidence; and
             (3) The court must exclude the evidence if its probative value is
             outweighed by the danger of unfair prejudice.
TENN. R. EVID . 404(b).

Evidence of the accused's prior conduct may be admitted to prove the accused's

motive, intent, identity, absence of mistake, opportunity, or the existence of a common

scheme or plan. See NEIL P. COHEN , ET AL., TENNESSEE LAW OF EVIDENCE, § 404.6 2nd

ed. (1990).

       In light of the foregoing, we conclude that the trial court correctly denied

Appellant's motion in limine. First, the testimony regarding the alleged threats by

Appellant to kill his former girlfriend was relevant to show that Appellant's encounter

with Ms. Quisenberry was not coincidence or accidental as he alleged, but was, rather,

an intentional act to either get Ms. Quisenberry out of the way so he could harm Ms.

Baker or to frighten Ms. Baker. These threats were highly relevant to show intent,

motive, and absence of mistake.

       Finding no merit in either of the two issues presented by Appellant on this direct

appeal, we, therefore, affirm the judgment of the trial court.




                                   ____________________________________
                                   JERRY L. SMITH, JUDGE



CONCUR:

                                           -8-
___________________________________
JOSEPH M. TIPTON, JUDGE


___________________________________
THOMAS T. WOODALL, JUDGE




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