        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT KNOXVILLE             FILED
                      NOVEMB ER SESSION, 1998       February 17, 1999

                                                Cecil Crowson, Jr.
                                                 Appellate C ourt Clerk
STATE OF TENNESSEE,        )    C.C.A. NO. 03C01-9710-CC-00455
                           )
      Appellee,            )
                           )
                           )    RHEA COUNTY
VS.                        )
                           )    HON. J. CURTIS SMITH,
ROBERT GILLESPIE,          )    JUDGE
                           )
      Appe llant.          )    (Aggra vated A ssault)


                ON APPEAL FROM THE JUDGMENT OF THE
                  CRIMINAL COURT OF RHEA COUNTY


FOR THE APPELLANT:              FOR THE APPELLEE:

EDWARD L. BORING                JOHN KNOX WALKUP
P.O. Box 1025                   Attorney General and Reporter
Pikeville, TN 37367
                                MICH AEL J . FAHE Y, II
                                Assistant Attorney General
                                425 Fifth Avenu e North
                                Nashville, TN 37243

                                J. MICHAEL TAYLOR
                                District Attorney General

                                JAME S W . POP E, III
                                Assistant District Attorney General
                                First American Bank Bldg., Suite 300
                                Dayton, TN 37321



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                   OPINION

       The Defen dant, Ro bert Gilles pie, pursu ant to Te nness ee Ru le of App ellate

Procedu re 3(b), appeals as of right his conviction for the aggravated assault of

Charles Mears, his wife’s uncle. Defendant was convicted after a jury trial, and

he was sentenced to four yea rs and six m onths, w ith ninety da ys to be se rved in

the county jail and the remainder to be served on supervised proba tion. W e

affirm the ju dgme nt of the trial co urt.



       Defendant challenges only the sufficiency of the evide nce to convict him.

At the tim e of this offense, Defendant was engaged to his present wife, and the

coup le attended her moth er’s fun eral. Mears, the victim, had apparently warned

Defendant to stay away from the funeral; and when he saw Defendant there, he

assaulted Defendant, causing him to flee toward his car. When Defendant

reached his car, he did not leave, but instead retrieved a gun and held it up in the

parking lot among a gathering of funeral guests. Another guest obtained the gun

from Defendant, who fled on foot until captured. It is undisputed tha t Mears

initially comm itted an as sault upo n Defe ndant. The issu e for res olution by this

Court is whether the evidence was sufficient to support Defendant’s aggravated

assault conviction or, stated differently, whether Defendant adequately proved

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



       At trial the State first presented Charles Mears. Mears admitted that he

cursed and struck Defendant after asking him at least twice to leave the funeral

parlor. Mears testified that he then followed Defendant outside to the parking lo t,



                                             -2-
where Defendant “pulled a gun” on him an d threate ned to kill him . Accord ing to

Mears, Defendant pointe d the g un at h im for a pprox imate ly two m inutes with his

finger on the trigger. In addition, Defendant “chambered” a round, which ejected

into the air o ver a park ed car.



       On cross-examination Mears acknowledged his intent to assault Defendant

further if he did not leave the premises. When asked whether Defendant hit him,

Mears stated tha t he “got hit,” b ut he did not know whether Defendant hit him.

Mears never expressed that he feared bodily injury, but he stated, “When a man ’s

got a gun o n you po inting straigh t at you, you don’t count the seconds or the

minutes. You don’t look to see where the 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 called Larry Wolcott to testify, who recounted that he saw

Defendant point the gun at Mears, heard the “click” of the ejected round from the

gun and Defend ant’s threat to kill Mears, ran around the c rowd and c ars in the

parking lot, and s eized the gu n from Defe ndan t’s hand . He str uck D efend ant’s

forehead with the gun, and Defendant then fled the scene. Wolcott estimated

that Defendant had held the gun for approxim ately thirty to forty seconds. On

cross-examination, Defe ndan t impeached Wolcott with his testimony from the

preliminary hearing, during which he was asked 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.




                                          -3-
       Defendant testified on his own beha lf, desc ribing h ow M ears o rdere d him

to leave the funeral home, saying, “Get your black ass up,” struck his then-

fiancée, and then struck him two or three times on the side of his face and head.

According to Defendant, he and his fiancée attempted to get into their car when

Mears began to beat Defendant again. For this reason, Defendant removed 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” him for protection against the several men who descended upon

him. He denied pointing the gun at anyone . Defendant testified that the car he

drove belonged to his brother and that the gun had not been in the car when he

drove to th e funera l.



       Jennifer Gillespie, Defendant’s wife and Mears’s niece, affirmed

Defe ndan t’s testimony. She stated that Mears “hit [her] and knocked [her] out of

the way and started hitting Robert,” then “chased him out of the funeral home .”

She recalled M ears thre atening to kill Defen dant and c alling him a “nigger.”

According to Ms. Gillespie, both Mears and Larry Wolcott hit Defendant

“consta ntly,” and they chased him out to his car. She denied that Defendant

pointed the gun at anyone, 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]indings

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

evidence is insufficient to support the finding by the trier of fact beyond a

reason able do ubt.” Tenn. R. App. P. 13(e). In addition, because conviction by

a trier of fact destroys the presumption of innocence and imposes a presumption

of guilt, a convicted criminal defendant bears the burden of showing that the

                                           -4-
evidence was insu fficient. McBee v. State, 372 S.W.2d 173, 176 (Tenn. 1963);

see also State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992) (citing 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 of the 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 (citing

State v. Cabbage, 571 S.W .2d 832 , 835 (T enn. 19 78)). The court may not “re-

weigh or re-evalu ate the ev idence ” in the reco rd below . Evans, 838 S.W.2d at

191 (citing 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 them in favor

of the jury ve rdict or trial cou rt judgm ent. Tug gle, 639 S.W.2d at 914.



       “A person commits an aggravated assault who . . . [i]ntentionally or

know ingly commits an assault as defined 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 knowingly cau ses an other to

reaso nably fear immin ent bod ily injury; or . . . [i]ntentionally or knowingly causes

physical contact with another and a reasonable person would regard the contact

as extremely offens ive or provocative.” Id. § 39-13-101(a)(2)-(3). Tennessee

Code Annotated defines self-defense as follows:

              A person is justified in threatening or using force against
       another person wh en an d to the degre e the p erson reaso nably
       believes the force is immediately necessary to protect against 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

                                          -5-
      or serious b odily injury. The danger creating the belief of imminent
      death or serious bod ily injury must be real, or hones tly believed to
      be real at the time, and mus t be fou nded upon reaso nable grounds.
      There is no duty to retreat before a person threatens or uses force.

Id. § 39-11 -611(a).



      This case involves a conflict of testimony regarding the events which

occurred at Defenda nt’s car. Mears stated that he “got hit” during the altercation,

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 ammunition.      Mears and Larry Wolcott testified that Defendant

threatened to kill Mears while he pointed the gun. Althoug h Mears admitted that

he would have continued to beat Defendant had Defendant refused to leave the

premises, he testified th at he did n ot strike D efenda nt in the pa rking lot.

Furthermore, Mears stated tha t he “followe d” Defe ndant o utside, “wa lk[ing] out

there where h e was g etting into the car.” Mears believed that Defendant had the

potential to shoot him from a s hort distan ce.



      According to Defendant and his wife, Mears and several other men

“chased” him out of the fun eral home and to his car, con tinuously striking him

until the time he displayed the gun, which he claimed he held at his side.

Decisions regarding whether Defendant committed aggravated assault and

wheth er his actions constituted defense of his life must be made by the trier of

fact— in this case, the jury. The jury found that Defendant did indeed commit an

aggravated assault and that he was not justified b y self-defen se. W e conclude

that the jury was within its purview to accredit the State’s witnesses and

determine (1) that Mears reasonably feared for his life while Defendant held a



                                        -6-
gun pointed at him, and (2) that Defendant was not justified by a reasonable

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, JUDGE



CONCUR:



___________________________________
JAMES CURWOOD WITT, JR., JUDGE


___________________________________
L.T. LAFFERTY, SENIOR JUDGE




                                          -7-
