State of Tennessee v. Anthony Noe ( 1997 )

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
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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.
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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.
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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
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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.
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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
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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,
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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
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