         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs February 20, 2001

                    STATE OF TENNESSEE v. JOSEPH VELLA

                       Appeal from the Criminal Court for Knox County
                         No. 65143A Mary Beth Leibowitz, Judge



                                  No. E2000-01149-CCA-R3-CD
                                         March 12, 2001

The Defendant, Joseph Vella, appeals as of right from his criminal trespass conviction. He asserts
that the evidence presented at trial was insufficient to support his conviction. We disagree;
accordingly, we affirm the judgment of the trial court.

       Tenn. R. App. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

DAVID H. WELLES, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR. and
JOHN EVERETT WILLIAMS, JJ., joined.

Mark Stephens, Knox County Public Defender, Knoxville, Tennessee; Bob Edwards, Assistant
Public Defender, Knoxville, Tennessee, for the appellant, Joseph Vella.

Paul G. Summers, Attorney General and Reporter; Patricia Kussman, Assistant Attorney General;
Randall E. Nichols, District Attorney General; Patti Cristil and Jennifer Welch, Assistant District
Attorneys General, for the appellee, State of Tennessee.

                                              OPINION

       The Defendant and his nephew, Gary Vella, were tried jointly before the Honorable Mary
Beth Leibowitz in a bench trial in Knox County. The Defendant was found guilty of criminal
trespass, a Class C misdemeanor, and Gary Vella was found guilty of assault, a Class A
misdemeanor. The Defendant was sentenced to ten days in the Knox County jail, which was
suspended upon payment of costs. Gary Vella was permitted to apply for judicial diversion. In this
appeal as of right, the Defendant asserts that the evidence was insufficient to support his conviction.

        Tennessee Rule of Appellate Procedure 13(e) prescribes 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 findings by the trier of fact of guilt beyond a reasonable doubt.” Evidence is sufficient if, after
reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia,
443 U.S. 307, 319 (1979); State v. Smith, 24 S.W.3d 274, 278 (Tenn. 2000). 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 evidence was insufficient.
See McBee v. State, 372 S.W.2d 173, 176 (Tenn. 1963); see also State v. Buggs, 995 S.W.2d 102,
105-06 (Tenn. 1999); State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992); State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982).

        In its review of the evidence, an appellate court must afford the State “the strongest legitimate
view of the evidence as well as all reasonable and legitimate inferences that may be drawn
therefrom.” Tuggle, 639 S.W.2d at 914; see also Smith, 24 S.W.3d at 279. The court may not “re-
weigh or re-evaluate the evidence” in the record below. Evans, 838 S.W.2d at 191; see also Buggs,
995 S.W.2d at 105. Likewise, should the reviewing court find particular conflicts in the trial
testimony, the court must resolve them in favor of the jury verdict or trial court judgment. Tuggle,
639 S.W.2d at 914. All questions involving the credibility of witnesses, the weight and value to be
given the evidence, and all factual issues are resolved by the trier of fact, not the appellate courts.
See State v. Morris, 24 S.W.3d 788, 795 (Tenn. 2000); State v. Pappas, 754 S.W.2d 620, 623 (Tenn.
Crim. App. 1987).

         At trial, Ronald Dean Sandifer testified that he was the chief of security for the Electric
Ballroom on June 29, 1997. The Electric Ballroom is a bar in Knox County which features live
entertainment. On the night in question, the Electric Ballroom was presenting a female impersonator
floor show. Mr. Sandifer testified that his job was to deal with security problems that other
employees could not handle. He had the authority to ask people to leave the bar. He identified the
Defendant and Gary Vella as patrons who came into the bar together on June 29, 1997, around the
time the bar opened, which was 9:00 p.m. Around 11:30 that evening, it was brought to his attention
that the Defendant had been making remarks about the entertainers and had shoved one of them. He
approached the Defendant and Gary Vella and asked them to come to the front of the bar where he
could talk to them. At first they were unresponsive, but then they began to follow him.

        Mr. Sandifer testified that he walked in front, followed by the Defendant and Gary Vella,
who in turn were followed by two other security guards. When they were almost to the front of the
bar, the procession stopped, and Mr. Sandifer turned around. At this point, Gary Vella assaulted
him. Mr. Sandifer said that Gary Vella knocked him to the ground, straddled him, and started hitting
him about the head and chest. One of the other guards assisted Mr. Sandifer, and they restrained
Gary Vella until the police arrived. Mr. Sandifer stated that during this assault, one of the other
guards escorted the Defendant out the door, but the Defendant kept coming back inside, “screaming
and hollering,” and he attempted once to free his nephew. Mr. Sandifer said that the Defendant was
asked to leave by himself and by the other guards, but he came back into the bar approximately three
times after being told to leave and being escorted out.

        The Defendant testified that on the night in question, he was with a group of seven people,
including his nephew, Gary Vella. They had dinner at O’Charley’s Restaurant on Kingston Pike and
arrived at the Electric Ballroom at approximately 11:00 p.m. When they arrived, they paid the cover


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charge, bought drinks, and moved to the stage to watch the show. The Defendant said that when the
show began, a performer attempted to solicit money from him, and he asked the performer to please
not touch him and to move away. The performer said something impolite and then moved away.
At one point, a security guard, or “bouncer,” approached the Defendant and asked him to step off
the dance floor, which he did. Shortly, the performer was in the center of the stage when a patron
started “crawling” out from the crowd to tip the performer, and the Defendant stepped onto the dance
floor to see what was happening. The show ended, and the performer “shot [the Defendant] a bird.”
The Defendant responded in kind.

        The Defendant testified that two bouncers approached him at this point and asked him to
follow them up to the front of the bar to talk. The Defendant asked his nephew and another friend
to accompany him, which they did. When they were about ten feet from the front, the Defendant
stopped. The bouncers told him that he needed to leave the club. When he asked, “why,” they
responded that it was because he would not get off the dance floor. The Defendant said that the
bouncers would not let him get his friends, and when he tried to find out why, he was pushed into
a wall. Then, Gary Vella came to his defense. The Defendant testified that he was “dragged out”
of the club and “thrown out on the cement outside.” He said that he tried to go back inside two or
three times because he saw his nephew being handcuffed, but he was not allowed to reenter. The
Defendant suffered broken ribs, a broken wrist, and scratches to his face from the altercation.

        Michael Scott Trail testified that he had known the Defendant and Gary Vella for three and
a half years, and he accompanied them to O’Charley’s and to the Electric Ballroom, along with other
friends. They arrived around 11:00 p.m. Mr. Trail did not witness any altercation between the
Defendant and a performer. He testified that two bouncers approached their table, grabbed Gary
Vella, and “started hauling him out.” The Defendant then got up and went to find out what was
happening. Mr. Trail said the bouncers then grabbed the Defendant and started “hauling him
outside.” He said that they threw the Defendant to the ground outside and handcuffed him, breaking
his wrist. He did not see the Defendant try to reenter the building. He also maintained that he did
not see Gary Vella strike anybody, but he did see a bouncer hit Gary in the head with a flashlight.

         Gary Vella testified and confirmed the Defendant’s statements regarding the interaction with
the performer and being asked to step off the stage. Mr. Vella said that the bouncers asked the
Defendant to come to front of the club, and he accompanied the Defendant. When they were close
to the door, the Defendant stopped, and Mr. Vella turned around and started walking toward the
Defendant. He said that he saw the Defendant being shoved into the wall, and he went to see what
was happening. The bouncers then started shoving him, and he responded in self-defense. He
testified that he was choked into unconsciousness and then handcuffed.

        Sherril Sandifer testified in rebuttal that she was at the entrance to the club that night taking
money at the door. She heard a commotion and saw Gary Vella on top of her husband, Ronald
Sandifer, hitting him. The other security guards helped restrain Gary Vella. Ms. Sandifer said that
she also saw the Defendant that night. She said that he was loud and obnoxious. She heard the
security guards asking him to leave.


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        After hearing this proof, the trial court found the Defendant guilty of criminal trespass. The
statute defining criminal trespass provides:
        (a) A person commits criminal trespass who, knowing the person does not have the
        owner’s effective consent to do so, enters or remains on property, or a portion
        thereof. Knowledge that the person did not have the owner’s effective consent may
        be inferred where notice against entering or remaining is given by:
        (1) Personal communication to the person by the owner or by someone with apparent
        authority to act for the owner;
        ...
        (b) It is a defense to prosecution under this section that:
        (1) The property was open to the public when the person entered and remained;
        (2) The person’s conduct did not substantially interfere with the owner’s use of the
        property; and
        (3) The person immediately left the premises upon request.

Tenn. Code Ann. § 39-14-405.

         Looking at the evidence in the light most favorable to the State, we conclude that the
evidence was sufficient to support the Defendant’s conviction of criminal trespass. It is undisputed
that the property was open to the public when the Defendant entered, but he was asked to leave by
a person with the apparent authority to act for the owner. The trial court also specifically found that
the Defendant’s conduct on the dance floor did not substantially interfere with the owner’s use of
the property. The pivotal issue at trial and on appeal is whether the Defendant remained on the
property after being informed that he no longer had the owner’s effect consent to be there or whether
he left immediately upon request. We conclude that the evidence is sufficient to support the trial
court’s conclusion that the Defendant remained on the property after being asked to leave. The proof
established that Mr. Sandifer and the other security guards asked the Defendant to leave. The
Defendant was escorted out, but according to Mr. Sandifer, he reentered the building three times,
while yelling and screaming. According to the Defendant himself, he attempted to reenter the
building two or three times. Thus, the Defendant did not leave the property immediately upon
request.

       Accordingly, the judgment of the trial court is affirmed.



                                                       ___________________________________
                                                       DAVID H. WELLES, JUDGE




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