        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE            FILED
                        NOVEMB ER SESSION, 1998            April 22, 1999

                                                     Cecil W. Crowson
STATE OF TENNESSEE,             )                  Appellate Court Clerk
                                    C.C.A. NO. 01C01-9711-CC-00552
                                )
      Appellee,                 )
                                )
                                )   ROBERTSON COU NTY
VS.                             )
                                )   HON . JOHN H. GAS AWAY , III
BOBBY GENE WILSON,              )   JUDGE
                                )
      Appe llant.               )   (Dire ct Ap pea l - Cla ss E Felo ny)




FOR THE APPELLANT:                  FOR THE APPELLEE:

MICHAEL R. JONES                    JOHN KNOX WALKUP
19th District Public Defender       Attorney General and Reporter
110 Sixth Avenue, West
Springfield, TN 37172               LISA A. NAYLOR
                                    Assistant Attorney General
                                    425 Fifth Avenu e North
                                    Nashville, TN 37243

                                    JOHN CARNEY
                                    District Attorney General

                                    DENT MORRISS
                                    Assistant District Attorney
                                    Springfield, TN 37172



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                            OPINION


        The appellan t, Bobby Gene Wilso n, was co nvicted by a Rob ertson C ounty

jury of one (1 ) count o f retaliation fo r past action by threate ning a w itness, a

Class E felony. The trial court sentenced him as a Range I offender to 402 days

in the Tennessee Department of Corre ction. A ppella nt’s so le issue on ap peal is

whether the evide nce wa s sufficient to sustain th e jury’s verd ict. After a thorough

review of th e record of this Cou rt, we affirm th e trial court’s ju dgme nt.



                                                    I




        In February 1996, charges were brought against Appellant for assaulting

Tonya Hamilton and Jackie Adams with a brick. Hamilton and Adams w ere

subpoenaed to testify against Appellant at his preliminary hearing on March 12.

Although both we re prese nt in court o n March 12, neither testified against

Appellant because he waived his preliminary hearing.1

        On June 2, 1996, Hamilton was outside of her hom e in Rob ertson C ounty

when she observed Appellant and anothe r man w alking do wn the s treet. When

Appellant saw Hamilton, he declared in a loud voice, “there’s that bitch that

showed up in Court. I haven’t forgotten what you done [sic] to m e in Cou rt.”

Ham ilton’s husb and w alked outside, and he and Appellant exchanged heated

words. Appellant proclaimed that he would return, and when he returned, he was

carrying a shotgun.            Appellant then shot the weapon twice in the air and

threatened to “k ill someone a t [Hamilton’s] hou se.”


        1
           The state’s charge against Appellant for assault was unresolved at the time this trial took place;
therefor e, the disp osition of this charge is unkn own to this Court.

                                                   -2-
       At the conclusion of the proof at trial, the jury returned a verdict of guilty on

one (1) count of retaliation for pa st action by threaten ing a w itness . From his

convic tion, Ap pellan t brings this ap peal.



                                            II




       Appellant mainta ins that the eviden ce is ins ufficien t to sus tain the jury’s

guilty verdict. He claims that Hamilton was n ot a “witn ess” w ithin the meaning of

Tenn. Code Ann. § 39-16-510 because she did not testify at any court proceeding

and did not swear out a warrant against him. We disagree.

                                           A.

       When an a ppellant challenges the sufficiency of the evidence , this Court

is obliged to review that challenge according to certain well-settled principles.

Wh ere the sufficiency of the evidence is contested on appeal, the relevant

question for the reviewing court is wh ether any rationa l trier of fact could have

found the accused guilty of e very ele men t of the o ffense beyon d a rea sona ble

doubt. Tenn. R. App. P. 13(e); State v. Harris , 839 S.W .2d 54, 75 (T enn. 1992 ).

On appeal, the state is entitled to the strongest legitimate view of the evidence

as well as all rea sonab le and leg itimate inferences that may be drawn therefrom.

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).                In conducting our

evaluation of the c onvictin g evide nce, th is Cour t is precluded from reweighing or

reconsidering the evide nce. 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 circums tantial evidence.” State v. Matthews, 805 S.W.2d at

779.

                                           -3-
       A verdict of guilty by the jury, approved by the trial judge, accredits the

testimony of the state’s witn esse s and resolve s all con flicts in the testim ony in

favor of the state. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994); State v.

Harris , 839 S.W.2d at 75. Although an accused is originally cloaked with a

presumption of innocence, a jury verdict removes this presumption and replaces

it with one o f guilt. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence,

on appe al, the b urden of proo f rests w ith App ellant to demonstrate the

insufficienc y of the con victing evide nce. Id.

                                           B.

       Tenn. Code Ann. § 39-16-510(a) provides:

       [a] person commits the offense of retaliation for past action who
       harms or threatens to harm a witness at an official proceeding,
       judge, juror or former juror by any unlawful act in retaliation for
       anything the witn ess, ju dge, o r juror d id in an official capacity as
       witness, judge, or juro r.

       Appellant argues that because Hamilton did nothing in an “official cap acity”

as a witness, she was not a “witness” within the meaning of the statute. In

support of his argum ent, App ellant poin ts to severa l opinions of this Cou rt,

where in we indicated that the act of sig ning a n affida vit of complaint makes one

a “witness” under Tenn. Code Ann. § 39-16-510(a), regardless of whether the

“witness” testifies at an official p roceed ing. See State v. Manning, 909 S.W.2d

11 (Tenn. Crim. App. 1995); State v. James Robert Littleton, C.C.A. No. 03C01-

9507-CC-00201, 1996 WL 377086 (Tenn. Crim. App. filed July 5, 1996, at

Knoxville); State v. Carrie Phipps, C.C.A. No. 01C01-9506-CC-00199, 1996 WL

111341 (Tenn. Crim. App. filed March 14 , 1996, at Nas hville). Appellant urges

that beca use H amilto n did not sign a n affidavit of co mplain t and did not testify at

the prelim inary hea ring, she c annot b e a “witne ss.”




                                           -4-
         W e agree that wh en a p erson signs an affidavit of complaint initiating

criminal proceedings against another, that person is a “witness” under Tenn.

Code Ann. § 39-16-510. However, we do not agree that signing the affidavit of

complaint is the exclu sive way fo r one to become a “witness.” Clearly, Hamilton

was involved in initiating criminal proceedings against Appellant as she

comp lained about A ppellant’s actions to the prop er autho rities. The fa ct that a

police detective signed the warrant instead of Ms. Hamilton does not alter her

status as a “witness”. Furthermore, Hamilton was listed as a witness on the

warran t. Once she be came a “witness ” for the state , she “retained that status

pending proper disposition of the case.” State v. Phipps, 1996 WL 111341 at *2.

         Moreover, we find it absurd that Appellant could be insulated from liability

for this offe nse b ecau se Ha milton did not testify at the preliminary hearing.

Hamilton, upon being subpoenaed, duly appeared before the General Sessions

Court and was prepared to testify against Appellant. It was Appellant’s own

action, in waivin g the p reliminary hearing, that precluded Hamilton from taking the

stand.

         Several mon ths afte r Ham ilton initia ted crim inal proceedings against

Appellant for assault, Appellant confronted her in front of her home.             He

proclaimed, “I haven’t forgotten wh at you done [sic] to me in Cou rt.” Thereafter,

he retrieved a shotgu n and fired it into the air, while threatening the lives of the

peop le inside Hamilton’s home. We cannot imagine a more clear cut case of

threatening a witness in retaliation for past action. The evidence is sufficient to

support Appellant’s conviction.

         This issu e has n o merit.




                                          -5-
                                           III




      W e conclud e that the s tate presented sufficient evidence for a rational trier

of fact to find A ppellant g uilty beyond a reasonable doubt. Accordingly, the

judgment of the trial court is affirmed.



                                 ____________________________________
                                 JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
GARY R. WADE, PRESIDING JUDGE


___________________________________
JOHN H. PEAY, JUDGE




                                           -6-
