             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE                  FILED
                             MARCH SESSION, 1995
                                                              December 9, 1997

                                                             Cecil W. Crowson
                                                            Appellate Court Clerk

STATE OF TENNESSEE,             )
                                )
             Appellee,          )     No. 01C01-9407-CR-00252
                                )
                                )     Davidson County
v.                              )
                                )     Honorable Thomas H. Shriver, Judge
                                )
ANTHONY NOE,                    )     (Vandalism over $500.00 and making a
                                )      false report)
                                )
             Appellant.         )




For the Appellant:                    For the Appellee:

Lionel R. Barrett, Jr.                Charles W. Burson
Washington Square Two                 Attorney General of Tennessee
222 Second Avenue, North                     and
Nashville, TN 37201                   Charlotte H. Rappuhn
(AT TRIAL AND ON APPEAL)              Assistant Attorney General of Tennessee
                                      450 James Robertson Parkway
Karl Dean                             Nashville, TN 37243-0493
District Public Defender
   and                                Victor S. Johnson, III
Paul Newman                           District Attorney General
David Baker                                   and
Assistant Public Defenders            Mary Hausman
Stahlman Building                     Bill Reed
Nashville, TN 37201                   Assistant District Attorneys General
(AT TRIAL)                            102 Metro Courthouse
                                      Nashville, TN 37201




OPINION FILED:_______________________



VANDALISM CONVICTION AFFIRMED; FALSE REPORT CONVICTION REVERSED

Joseph M. Tipton
Judge
                                    OPINION



              The defendant, Anthony Noe, was convicted in a jury trial in Davidson

County Criminal Court of vandalism that resulted in over $500.00 worth of damages, a

Class E felony, and of making a false report, a Class A misdemeanor. He was

sentenced as a Range I, standard offender to one year for vandalism to be served

concurrently with a sentence of eleven months and twenty-nine days for the false report

conviction. The trial court ordered that the sentences be suspended and served in a

community corrections program. The defendant contends that the evidence is

insufficient to support his convictions and that the trial court erred by refusing to grant a

continuance after his counsel was appointed on the day of trial.



              This case involves a dispute between the defendant and his neighbors,

Ruth and John Finley, over a fence that extends from the Finleys’ property into an

undeveloped alley that is owned by the Nashville Metropolitan Government (Metro) and

that abuts the defendant’s property. The proof at trial established that the defendant

cut a portion of the fence after he made several inquiries to various Metro officials and

learned that Metro refused to get involved in the fence dispute because it was not

interested in developing the alley. After the defendant was arrested for damaging the

fence, he signed an arrest warrant charging Mr. Finley with vandalism of the alley. The

defendant does not deny cutting the fence or reporting that Mr. Finley vandalized the

alley.



              At trial, John Finley testified that there has been a fence in the same place

behind his house since at least 1949. He explained that he replaced part of the fence

in 1986. He said that the defendant called him on December 30, 1991, and warned him

that he would cut the fence the next morning. Mr. Finley said that the next morning he

saw the defendant cut eight to ten feet of the fence. Mr. Finley laced the fence back



                                              2
together. However, the following day, he noticed that the fence had been cut again,

near the anchor post. Mr. Finley said that his fence was ruined and that the fence was

worth between one $1,000.00 and $1,100.00.



              Mr. Finley testified that he was arrested on May 8, 1992, and identified the

arrest warrant. The affidavit in support of the warrant is signed by the defendant and

states that the defendant has probable cause to believe that John Finley had “dirt, rock

and sand dumped in public alley #1839 and then fenced in said pollution and thus

caused great and considerabe (sic) inconvience (sic) to myself and others that need

access to the rear of their property.” The affidavit states that the defendant based

these allegations on statements that Mr. Finley made to him, the police and to the

Metro Codes division. Mr. Finley denied dumping dirt, rock and sand in the alley. He

further explained that the presence of an eight to ten foot rock bluff would make it

impossible to drive a vehicle through the undeveloped alley, even in the absence of the

fence.



              On cross-examination, Mr. Finley admitted that he had a load of dirt

dumped in the alley and leveled off so that he could get back there to mow. Mr. Finley

explained that the dirt that was dumped was topsoil and did not contain gravel or rocks.

He explained that he used the dirt to cover some rocks and a manhole and that he also

placed a pipe over the manhole so that it could be easily located. Mr. Finley said that

he told the defendant what he had done. Although Mr. Finley denied telling the Metro

Codes division about dumping the topsoil, he explained that there was another time that

the Metro Codes division stopped him from having rock and dirt dumped in the alley

area. He explained that in 1984, while the state was building a nearby interstate

highway, a state superintendent offered to fill in the alley with rock and dirt. Mr. Finley

said that his neighbors at the time approved of this action but that Metro Codes division

contacted him and told him that it could not be done.



                                             3
              James Butler, an outside salesman with Sears Roebuck and Company

(Sears), testified for the defense as an expert in the field of repairing or replacing

damaged fences. He explained that Sears does not carry the type of welded wire fence

that the defendant cut. However, he said that he could sell better, more expensive,

galvanized chain-link fencing to replace the damaged portion of the fence. He

explained that the fence could be restretched so that only the portion that was cut

needed to be replaced. He testified that the cost for replacing the damaged portion of

the fence with a chain-link fence would be $265.00. According to Mr. Butler, replacing

one hundred feet of fence at the back of the property would cost $537.00.



              During the state’s rebuttal, Mr. Finley testified that he thought that the

whole fence needed to be replaced. He explained that once the fence was cut near the

post, it could not be restretched to the same tension as it was before it was cut. He

also said that he did not know how a chain-link fence would work with the present

fence, but he believed that it would not look right unless the fence surrounding the

damaged portion was also replaced with chain-link fencing. Mr. Finley said that it would

take one hundred and sixty-five feet of fencing to replace the entire fence.



                                              I

              The defendant contends that the evidence is insufficient to support his

vandalism conviction. The defendant argues that he did not have the requisite intent to

commit vandalism because ownership of the fence was disputed. He asserts that he

was acting in a noncriminal fashion when he cut the fence because he was only trying

to remove property that was violative of his rights in that it blocked the alley. He also

argues that the state failed to prove that the value of the damaged property was in

excess of $500.00.




                                              4
              Our standard of review when the sufficiency of the evidence is questioned

on appeal is "whether, after viewing 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." Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.

2781, 2789 (1979). This means that we may not reweigh the evidence, but must

presume that the jury has resolved all conflicts in the testimony and drawn all

reasonable inferences from the evidence in favor of the state. See State v. Sheffield,

676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.

1978).



              Vandalism occurs when a person "knowingly causes damage to or the

destruction of any real or personal property of another or of the state, the United States,

any county, city, or town knowing that he does not have the owner's effective consent."

T.C.A. § 39-14-408(a). The definition of damage “includes, but is not limited to

[d]estroying, polluting or contaminating property; or [t]ampering with property and

causing pecuniary loss or substantial inconvenience to the owner or a third person”.

T.C.A. § 39-14-408(b).



              “Acts of vandalism are to be valued according to the provisions of § 39-

11-106(35) and punished as theft under § 39-14-105.” T.C.A. § 39-14-408(c)(1991).

The definition of value under T.C.A. § 39-11-106(35)(1991) includes the fair market

value of the property at the time of the offense, or “[i]f the fair market value of the

property cannot be ascertained, the cost of replacing the property within a reasonable

time after the offense.” Id.



              When viewed in the light most favorable to the state, see Cabbage, 571

S.W.2d at 835, the proof at trial showed that the defendant intentionally damaged Mr.

Finley’s fence. On December 30, 1991, the defendant called Mr. Finley and threatened



                                              5
to cut the fence the next morning. The next day the defendant cut eight to ten feet of

the fence. According to Mr. Finley, the defendant ruined the entire fence by cutting it

near the anchor post. Mr. Finley said that the fence was worth between $1,000.00 and

$1,100.00. Mr. Butler testified that it would cost $537.00 to replace one hundred feet of

the fence. Although Mr. Butler also testified that the fence could be restretched with

only a small portion of it being replaced, the jury obviously rejected this testimony. It is

not our function to reweigh the evidence on appeal. Based on the proof presented at

trial, the jury was justified in concluding that the defendant committed vandalism of

property in an amount over $500.00.



                                                           II

                  The defendant also challenges the sufficiency of the evidence with

respect to his conviction for making a false report. First, he asserts that the report was

not false because Mr. Finley admitted dumping dirt in the disputed area. Second, he

argues that the state failed to show that he knew the information he reported was false.

The state counters that sufficient evidence supports the defendant’s false report

conviction.1



                  In this case, the state had the burden of proving that the defendant

reported an incident or offense to an officer while knowing that the offense or incident

did not occur. See T.C.A. § 39-16-502(a)(1)(A). Even viewing the proof in the light

most favorable to the state, we are unable to say that the state met its burden.



                  The false report charge in this case involves an affidavit signed by the

defendant that states that he has probable cause to believe that Mr. Finley dumped dirt,

rock, and sand in the alley and then fenced “said pollution” in, causing considerable



                  1
                    The state also contends that this court may not fully analyze this issue because the
arrest warrant sworn to by the defendant is not part of the record before us. However, a copy of the
warr ant w as en tered into ev idenc e as a n exh ibit du ring th e trial a nd is p art of the re cord on ap pea l.

                                                           6
inconvenience to the defendant and others. In the affidavit, the defendant stated that

he based these allegations on statements that Mr. Finley made to him, the police and to

the Metro Codes division.



             Although the proof at trial did not show that Mr. Finley vandalized the

alley, we do not believe that the state proved that the defendant reported an incident or

offense while knowing that it did not occur. At trial, Mr. Finley denied dumping rock and

sand in the alley. However, he admitted that he had a load of dirt dumped within the

fenced area of the alley over some rocks and the manhole cover that were there. Mr.

Finley also testified that he told the defendant about what he had done. Although Mr.

Finley denied telling the Metro Codes division about dumping the dirt, he did admit that

the division stopped him from having rock and dirt dumped in the alley at one other

time. Based on these undisputed facts, we are unable to say that the defendant

reported the dumping in the alley while knowing that it did not occur.



             The state argues that the information contained in the warrant is false

because it implies that the fencing and obstructing of the defendant’s access to his

property occurred shortly before the warrant was sworn, when, the proof at trial

established that Mr. Finley’s fence, in one version or another, was already on the

property when the defendant purchased his property. However, the affidavit in support

of the warrant does not state when the alleged dumping occur. The false report statute

says nothing about holding a person criminally responsible solely because a report can

be construed to imply an incorrect time that the incident or offense occurred.



             The state also argues that there was no support for the defendant’s

allegation that Mr. Finley dumped pollution into the alley. The state asserts that the

testimony at trial indicated that Mr. Finley merely placed enough dirt over the manhole

cover to mow over it. Although we agree with the state that the proof at trial did not



                                            7
show that Mr. Finley polluted the alley, see T.C.A. § 39-14-408(2), the proof at trial did

demonstrate that there were rocks in the alley and that Mr. Finley dumped dirt into the

fenced area. Mr. Finley also admitted that the Metro Codes division stopped him from

having dirt and rocks dumped in the alley. When taken in context, the reference to

pollution in the affidavit refers to the dirt, rock, and sand, that the defendant alleged Mr.

Finley dumped in the alley. We recognize that the proof at trial did not establish that

Mr. Finley dumped rocks and sand into the alley. However, in our view, the state failed

to meet its burden of proving beyond a reasonable doubt that the defendant knew at

the time he made the report that the incident alleged in the warrant had not occured.



                                              III

              The defendant contends that the trial court erred in not granting him a

continuance after counsel was appointed on the day his trial was to begin. The

defendant concedes that his trial attorney “tried the case well, based upon the limited

time he had to prepare,” but he argues that the fact that the attorney only had one day

to attempt to prepare for his case is a per se violation of his right to counsel. We

disagree with the defendant’s contention.



              The record reflects that the trial court appointed the Davidson County

Public Defender’s office to represent the defendant at his arraignment. On November

18, 1992, the trial court relieved the Public Defender’s office, ruling that the defendant

was not indigent and should be able to secure his own counsel. According to the trial

court, it informed the defendant that he needed to hire his own attorney on at least six

occasions before the defendant’s trial date, January 25, 1993. On the day that the trial

was to begin, the defendant arrived without an attorney and again argued that he was

indigent. The trial court reappointed the attorney who represented the defendant at his

arraignment but ordered the defendant to pay $2,000.00 in attorney fees. The attorney

informed the court that he had received all the discovery material provided by the state,



                                              8
and the court continued the trial until the next day to give the attorney more time to

prepare. Although the attorney initially requested that he have more than one day to

prepare, he later told the trial court that he would prefer to begin the trial the following

morning instead of the following afternoon.



              The granting of a continuance rests within the sound discretion of the trial

court. Moorehead v. State, 219 Tenn. 271, 409 S.W.2d 357, 358 (1966). A reversal

may only occur if the denial was an abuse of discretion and the defendant was

improperly prejudiced in that a different result might reasonably have been reached if

the continuance had been granted. See State v. Dykes, 803 S.W.2d 250, 257 (Tenn.

Crim. App. 1990); Baxter v. State, 503 S.W.2d 226, 230 (Tenn. Crim. App. 1973).

Thus, it is incumbent upon the defendant to show that he was prejudiced. The

defendant has failed to demonstrate that the trial court abused its discretion or that he

was prejudiced by the trial court’s actions.



                     In consideration of the foregoing, the defendant's conviction for

vandalism in an amount greater than $500.00 is affirmed, and his conviction for making

a false report is reversed.



                                                   Joseph M. Tipton, Judge

CONCUR:



David G. Hayes, Judge



Jerry Scott, Special Judge




                                               9
