         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                          Assigned on Briefs September 12, 2006

                  STATE OF TENNESSEE v. JOHN F. WALLACE

                      Appeal from the Criminal Court for Shelby County
                        No. 04-01333 Carolyn Wade Blackett, Judge



                   No. W2005-02477-CCA-R3-CD - Filed October 31, 2006


The appellant, John Wallace, was convicted of four counts of assault. As a result, the trial court
sentenced him to four, concurrent sentences of eleven months and twenty-nine days. The trial court
then placed the appellant on probation for the length of the sentence and imposed a fine of $500 for
each conviction. On appeal, the appellant challenges the sufficiency of the evidence and the trial
court’s imposition of the $500 fine for each conviction. Because the evidence is sufficient to support
the convictions, we affirm the judgment of the trial court in that regard. However, because the trial
court improperly fined the appellant $500 for each conviction when the jury was not instructed to
impose a fine and the appellant did not waive his right to a jury-imposed fine, we remand the matter
to the trial court for the proper assessment of a fine.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed in
                        Part; Reversed in Part and Remanded.

JERRY L. SMITH , J., delivered the opinion of the court, in which DAVID H. WELLES and THOMAS T.
WOODALL, JJ., joined.

Robert C. Brooks, Memphis, Tennessee, for the appellant, John F. Wallace.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General;
William L. Gibbons, District Attorney General, and Tiffani Taylor, Assistant District Attorney
General, for the appellee, State of Tennessee.



                                             OPINION

      On September 19, 2003, Memphis Police were dispatched to the Shelby Drive location of
Memphis Light, Gas and Water (“MLGW”) after 911 operators received a call that there was an
“armed party” on the premises.
        According to Elizabeth Jackson, on September 19, 2003, she drove her 1998 Dodge Stratus
to the MLGW payment center in Memphis on Shelby Drive. Ms. Jackson had three passengers in
the car that day, her daughter Gail Herron, her granddaughter Latrina Hardaway and her
granddaughter-in-law Zarisiahe Lewis. When they arrived at MLGW, Ms. Lewis went inside to pull
a number for the customer service line. The three other women sat in the car with the windows
rolled down, enjoying the warm weather.

         Ms. Jackson stated that at the time, the office was very crowded and the parking lot was very
full, so when Ms. Lewis returned to the car, the women decided to go to lunch and come back later
that afternoon. As Ms. Jackson was attempting to drive out of the parking lot, her car was blocked
by the appellant in his large pick-up truck. Ms. Jackson testified that she told the appellant she was
leaving the parking lot and not trying to park. Another car pulled out of a nearby parking space at
that time and the appellant began to back his truck into that spot. Ms. Jackson stated that she saw
the appellant pull out a gun and place it on the ledge of his window as he was “curving his wheel to
go into the parking area.” When the appellant pulled out the gun, Ms. Jackson heard him say “pow,
pow.” The gun was pointed at the women in Ms. Jackson’s car. Ms. Jackson also heard the
appellant saying other things, but she could not remember his exact words. Ms. Jackson became
extremely frightened at the sight of the gun and immediately drove across the street to the
Walgreen’s parking lot while her daughter called 911. The women waited for the police to arrive.

        Gail Herron also saw the appellant’s large truck blocking her mother’s car as they were trying
to leave the MLGW parking lot. Ms. Herron remembered that the appellant was cursing “pretty
bad,” even calling Ms. Jackson a “goddamn bitch.” According to Ms. Herron, the appellant claimed
that he was “trying to get this goddamn parking space” when Ms. Jackson told the appellant that she
was not trying to park. Ms. Herron also saw the appellant point the gun out the window of his truck
toward the women in the car. Ms. Herron described that she was “scared [the appellant] was going
to shoot it, you know, fire it” and began screaming. After telling her mother to “step on it,” Ms.
Herron got on a cell phone and dialed 911.

        Zarisiahe Lewis also witnessed the appellant’s truck blocking the car as the four women
attempted to leave the MLGW parking lot that day. Ms. Lewis heard the appellant using “bad
profanity” toward them, even though none of the women in the car said anything rude or “ugly” to
the appellant. Ms. Lewis saw the appellant reach down and grab a gun from somewhere in his truck
before he placed it on the ledge of his window pointed toward Ms. Jackson’s car. Ms. Lewis was
frightened because the appellant “could have shot [them].”

       The fourth passenger in the car, Latrina Hardaway, relayed a substantially similar version of
the events. Ms. Hardaway described the appellant as losing his “cool” about a parking space at the
MLGW parking lot and stated that the appellant yelled “all types of things” before pulling out a gun,
pointing it at the women and stating “pow, pow.” Ms. Hardaway was also frightened by the
traumatic incident.




                                                 -2-
        Officer Louis Brown of the Memphis Police Department responded to the “armed party” call
at the MLGW office on September 19, 2003. Based on the description from the caller, Officer
Brown located the appellant in a large pick-up truck that was backed into a parking space in front
of the payment office. The victims returned to the scene once the police arrived and were able to
identify the appellant as the man who pointed the gun at them. According to Officer Brown, all four
victims were frightened. The appellant was described as “belligerent” and “very angry” when he was
removed from the truck, handcuffed and placed in the back of a patrol car. Officer Ted Williams,
also of the Memphis Police Department, described the appellant as irate, “upset and frustrated.”
Officer Brown searched the appellant’s truck and recovered a .45 caliber handgun in a console
compartment between the front seats. The gun was loaded, but was inside a zippered bag.

        As a result of the incident, the Shelby County Grand Jury indicted the appellant on four
counts of aggravated assault. At trial, William Nunley testified on behalf of the appellant. Mr.
Nunley and the appellant had been friends and co-workers for many years. On the date of the
incident, Mr. Nunley asked the appellant to take him to MLGW so that he could pay his bill. When
they arrived, the drive-through window was closed and there were no available parking spaces, so
Mr. Nunley got out of the appellant’s truck and walked into the building to pay his bill. The
appellant told him that he would wait in the parking lot. When Mr. Nunley exited the building, he
saw the appellant sitting in the back of a police car. Mr. Nunley stated that the appellant was calm
when he saw him in the back of the police car.

        The appellant also took the stand. He testified that he took Mr. Nunley to the MLGW
payment office in his Ford F350 dually truck so that Mr. Nunley could pay his bill. The appellant
stated that the parking lot was crowded, so he intended to circle the building until he found a parking
spot. The appellant testified that he saw a lady leaving a parking space, so he positioned his truck
so that he could get her spot after she pulled out. The appellant stated that he saw the Dodge Stratus
with the four women in it and thought that they were trying to get the parking space that he was
waiting for, so he blocked the Stratus because he “intended for nobody to take [his] spot.” The
appellant stated that when the car left the parking spot, he backed his truck into the open parking
space and motioned to Ms. Jackson in the Stratus that she could pass. At that point, the appellant
claimed that he reached into the back seat of his vehicle to get his medicine bag so that he could
“check [his] sugar.” The appellant stated that he was not angry at the women in the car and did not
curse at them or threaten them with a gun. The appellant admitted that he always kept his gun with
him in his car, but testified that he had a concealed carry permit for the weapon. The appellant
denied pulling out the gun during the confrontation with the victims.

         At the conclusion of the proof, the jury found the appellant guilty of four counts of assault,
a lesser-included offense. The jury did not recommend a fine. At a subsequent sentencing hearing,
the trial court sentenced the appellant to eleven months and twenty-nine days for each conviction,
but ordered the sentences to run concurrently. The trial court also ordered the appellant to serve the
sentences on probation. Lastly, the trial court imposed a $500 fine on each of the four counts of
assault.



                                                 -3-
        The appellant filed a motion for new trial in which he challenged, among other things, the
sufficiency of the evidence and the fines as imposed by the trial court. After the denial of the
motion, the appellant filed a timely notice of appeal. On appeal, the appellant challenges the
sufficiency of the evidence and argues that the trial court was without authority to fine the appellant
$500 for each conviction.

                                               Analysis

        The appellant contends on appeal that the evidence was not sufficient for a rational jury to
find him guilty of four counts of assault. Specifically, the appellant argues that because the jury
rejected the State’s theory that he committed aggravated assault by displaying a weapon, the
evidence was not sufficient to prove that the appellant “intentionally or knowingly caused the alleged
victims to ‘reasonably fear imminent bodily injury’” as required by statute. The State disagrees.

         When a defendant challenges the sufficiency of the evidence, this Court is obliged to review
that claim according to certain well-settled principles. A verdict of guilty, rendered by a jury and
“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). Thus, although the accused is originally cloaked
with a presumption of innocence, the jury verdict of guilty 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 the defendant to demonstrate the insufficiency of the convicting evidence.
Id. The relevant question the reviewing court must answer is whether any rational trier of fact could
have found the accused guilty of every element of the offense beyond a reasonable doubt. See Tenn.
R. App. P. 13(e); Harris, 839 S.W.2d at 75. In making this decision, we are to accord the State “the
strongest legitimate view of the evidence as well as all reasonable and legitimate inferences that may
be drawn therefrom.” See Tuggle, 639 S.W.2d at 914. As such, this Court is precluded from re-
weighing or reconsidering the evidence when evaluating the convicting proof. 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, we may not substitute our own “inferences for those drawn by the trier of
fact from circumstantial evidence.” Matthews, 805 S.W.2d at 779. Further, questions of witness
credibility, the weight and value of evidence, and resolution of conflicts in the evidence are entrusted
to the trier of fact. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996).

      A person commits assault who “intentionally or knowingly causes another to reasonably fear
imminent bodily injury.” Tenn. Code Ann. § 39-13-101(a)(2).

         Viewing the evidence in the light most favorable to the State, the testimony at trial indicated
that all four victims testified that the appellant blocked their car as they tried to leave the MLGW
parking lot. All four of the victims testified that the appellant was yelling and cursing at them.
Additionally, all four of the victims claimed that the appellant pointed a gun at them from the
window of his large truck. The women all claimed that they were frightened by the ordeal and were
afraid that they were going to get shot or hurt by the appellant. As soon as the appellant moved his


                                                  -4-
truck, the women fled in their car to the Walgreen’s parking lot across the street and immediately
called 911. The appellant himself later testified that he blocked in the car because he “intended for
nobody to take my spot.” The testimony from the officers that were dispatched to the scene indicated
that the appellant was belligerent and irate when they arrived.

          Once armed with the evidence, the jury was entrusted exclusively as the triers of fact to
evaluate the weight and credibility of the witnesses’ testimony. Odom, 928 S.W.2d at 23. Here, they
gave the greater weight to the State’s witnesses. We will not usurp that role. Moreover, the
evidence was sufficient to support the convictions for assault. This Court has noted that the fear as
contemplated by the assault statute is “the fear or reasonable apprehension of being harmed” rather
than the fear of the actual perpetrator. State v. Gregory Whitfield, No. 02C01-9706-CR-00226, 1998
WL 227776, at *2 (Tenn. Crim. App., at Jackson, May 8, 1998), perm. app. denied, (Tenn. Dec. 7,
1998). While the jury must not have accredited all of the victims’ testimony, they certainly believed
that the victims feared some harm from the actions of the appellant as evidenced by their finding that
the appellant committed assault. This issue is without merit.

                                             Improper Fine

        Lastly, the appellant argues that the trial court improperly imposed a $500 fine on each
conviction for assault. Specifically, the appellant claims that the trial court was without authority
to impose a fine because the “jury did not assess any fine at the time of its verdict.” The State
agrees.

        Article VI, § 14 of the Tennessee Constitution provides:

        No fine shall be laid on any citizen of this State that shall exceed fifty dollars, unless
        it shall be assessed by a jury of his peers, who shall assess the fine at the time they
        find the fact, if they think the fine should be more than fifty dollars.

Tennessee Code Annotated section 40-35-301(b) prescribes the method by which a fine in excess
of $50 should be fixed. A trial judge may not set a fine of more than $50 unless: (1) the defendant
waives his right for a jury determination of the fine, or (2) the fine is statutorily specified and allows
no judicial discretion in its imposition. State v. Martin, 940 S.W.2d 567, 570 (Tenn. 1997).

        We have reviewed the record in the case herein, including the technical record, the transcript
of the evidence, arguments by counsel, the jury charge, and the trial court’s minutes and orders. The
jury charge only asked the jury to determine guilt or innocence and made no mention of a fine. The
verdict of the jury was announced in open court, apparently without the use of a written verdict form.
The verdict as announced by the trial court only made a finding of guilt without mention of a fine.
The only document appearing in the record that is similar to a verdict form is a photocopy of a piece
of notebook paper attached to the back of the jury charge on which the following is handwritten:
“We the jury find the defendant, . . . NOT GUILTY on all four counts of reckless endangerment as
included.” The record does not contain a waiver signed by the appellant. Therefore, nothing in the


                                                   -5-
record indicates there was a waiver by the appellant of his right to have the fine fixed by the jury.
Therefore, the trial judge lacked the authority to set a fine over $50. Thus, we remand this cause for
the proper assessment of the fine. If the appellant does not properly waive the right of a jury to
assess the fine, a new jury must be empaneled to fix the amount of the fine. See id. (holding the
remedy for violation of the right for jury assessment of a fine is a remand for the empaneling of a
new jury to fix the amount of the fine).

                                              Conclusion

         For the foregoing reasons, the judgment of the trial court is affirmed in part, reversed in part
and remanded. On remand, as set forth above, if the appellant does not waive his right to have a jury
set the fine, a jury must be empaneled to fix the amount of the fine.


                                                ___________________________________
                                                JERRY L. SMITH, JUDGE




                                                  -6-
