State vs. David Gary Millsaps

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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE DECEMBER 1994 SESSION FILED July 17, 1996 Cecil Crowson, Jr. Appellate Court Clerk D 5 STATE OF TENNESSEE, Appellee vs. DAVID GARY MILLSAPS, Appellant 5 5 5 K 5 5 5 5 E No. 03C01-9409-CR-00313 MONROE COUNTY Hon. R. Steven Bebb, Judge (Disorderly Conduct) FOR THE APPELLANT: FOR THE APPELLEE: pro se at trial Charles W. Burson Attorney General & Reporter William C. Donaldson 110½ Washington Avenue, N.E. Athens, TN 37303 (on appeal) Jennifer L. Smith Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493 Jerry N. Estes District Attorney General Steve Ward Asst Dist. Attorney General Tellico Street Madisonville, TN. 37354 OPINION FILED: _______________________ REVERSED AND DISMISSED Robert E. Burch Special Judge OPINION The defendant appeals his conviction of the offense of disorderly conduct, presenting for review the single issue of whether the evidence is sufficient to sustain a conviction of that offense. FACTS Officers of the Sweetwater Police Department were dispatched to a reported disturbance at the Huddle House Restaurant. arrival, the officers found nothing presently amiss. Upon An investigation pointed to appellant as a participant in the earlier reported disturbance. When questioned, appellant became belligerent and refused to accompany the officers outside for questioning, throwing his car keys at one of the officers. Officer Martin then "scooted" the appellant over in his booth and took him outside. Once outside, appellant was "cussing, hollering and very belligerent". Officers Vineyard and Martin both answered affirmatively when asked if they felt appellant s conduct to be violent or threatening. STANDARD OF REVIEW On appeal, the State is entitled to the strongest legitimate view of the evidence and all reasonable or legitimate inferences which may be drawn therefrom. (Tenn. 1978). State v. Cabbage 571 S.W. 2d 832 A verdict of guilt, approved by the trial judge, accredits the testimony of the State's witnesses and resolves all conflicts in testimony in favor of the State. 525 S.W.2d 842 (Tenn. 1975). State v. Townsend The presumption of innocence is thereby removed and a presumption on guilt exists on appeal. Anglin v. State 553 S.W. 2d 616 (Tenn. Crim. App. 1977). The defendant has the burden of overcoming this presumption. State v. Brown 551 S.W. 2d 329 (Tenn. 1977). 2 When the sufficiency of the evidence is challenged on appeal, the test is whether, after reviewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Duncan 698 S.W. 2d 63 (Tenn. 1985); Rule 13(e), T.R.A.P. ANALYSIS T.C.A. §39-17-305 provides that the offense of disorderly conduct is committed inter alia when a person in a public place and with the intent to cause a public annoyance or alarm engages in violent or threatening behavior. This was the particular offense charged in the indictment. The facts introduced in evidence by the State in this case and reviewed hereinabove establish that the essential elements of the statute have not been established beyond a reasonable doubt, even when viewed in their most favorable light. The appellant's actions were characterized by the officers as "belligerent" and loud . The officer s testified to very few facts, mostly stating their conclusion that the appellant was belligerent or uncooperative . When asked the direct (but leading) question of whether appellant s actions had been violent or threatening , Officer Vineyard replied, At sometimes, yes . In answering a similar question, Officer Martin responded, I felt like it was, yes . These two statements comprised all of the proof offered by the State of a violation of the statute. Belligerent actions do not rise to the level of violent or threatening. The American Heritage Dictionary of the English Language, 1969 ed. defines Belligerent as, Given to or marked by hostile or aggressive behavior . This definition does not rise to the level of violent or threatening behavior, which would require an overt act or direct threat of harm. There is no proof of such acts in the record, only the conclusory answers of the 3 officers to improperly leading questions. In short, there are no facts upon which a violation of the statute can be based. If search warrants and arrest warrants must be based upon facts and not conclusions that a crime has been committed, Hughes v State 588 S.W.2d 296 (Tenn. 1979), State v Mitchell 593 S.W. 2d 280 (Tenn. 1980), the same should be true of a conviction of an element of a criminal offense beyond a reasonable doubt. Appellant committed no act threatening toward the officers. See State v Creasy 885 S.W.2d 829 (Ct. Crim. App. 1994). The only possible threatening act was the throwing of appellant s car keys at (or to) the officer. action as tossing . Officer Martin described this Neither officer testified that he regarded the action as menacing. We hold that there are insufficient facts contained in the record nor inferences from those facts for a rational trier of fact to find appellant guilty of this offense beyond a reasonable doubt. State v. Tuggle 639 S.W.2d 913 (Tenn. 1982). The judgement of the trial court is reversed and the case is dismissed. _________________________ Robert E. Burch, Special Judge CONCUR: _________________________ Gary R. Wade, Judge _________________________ 4 Joseph M. Tipton, Judge 5

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