State of Tennessee v. Randy Ray and Bobby Pryor ( 2003 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
July 16, 2002 Session
STATE OF TENNESSEE v. RANDY RAY AND BOBBY PRYOR
Direct Appeal from the Circuit Court for Marion County
No. 5137A, 5137B Thomas W. Graham, Judge
No. M2001-01532-CCA-R3-CD - Filed January 6, 2003
The defendants, Bobby Pryor and his son-in-law, Randy Ray, were indicted by a Marion County
Grand Jury for one count of aggravated assault and one count of vandalism over $1000 based on a
November 8, 1999, altercation with the victim, Randy Hutchins. A third count of the indictment
charged Pryor with another aggravated assault against the same victim, based on a separate incident
on November 8, 1999, in which Ray was not involved. At the conclusion of the defendants’ joint
trial, Pryor was found guilty of assault, a Class A misdemeanor, in count one; vandalism over $1000,
a Class D felony, in count two; and reckless endangerment with a deadly weapon, a Class E felony,
in count three. Ray was found guilty of reckless endangerment with a deadly weapon, a Class E
felony, in count one; and vandalism of $500 or less, a Class A misdemeanor, in count two.
Following the denial of their motions for new trial, both defendants filed timely appeals to this court.
However, during the pendency of the appeal, Pryor’s counsel filed a suggestion of Pryor’s death,
followed by a copy of his death certificate. Consequently, on May 1, 2002, this court entered an
order declaring that the criminal proceedings against Pryor were abated by his death, leaving only
Ray’s appeal to continue. Ray raises four issues for our review: (1) whether he was denied a fair
trial by the victim’s allegedly having tampered with the jury; (2) whether he was denied his right to
an impartial trial judge; (3) whether the evidence was sufficient to support his conviction for
vandalism; and (4) whether count one of the indictment was fatally defective. Based on our review
of the record and of applicable law, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
ALAN E. GLENN, J., delivered the opinion of the court, in which THOMAS T. WOODA LL and JAMES
CURWOOD WITT, JR., JJ., joined.
Philip A. Condra, District Public Defender, for the appellant, Randy Ray.
Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
James Michael Taylor, District Attorney General; and Will Dunn, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
FACTS
The defendants were tried jointly before a Marion County Circuit Court jury from August
15-16, 2000. The State’s first witness was the victim, Randy Hutchins, who testified that at the time
the events in this case took place, he lived in a travel trailer on Hicks Holler Road, approximately
200 yards from Bobby Pryor, who lived in a house on the other side of the road. Pryor also owned
a trailer park, consisting of three or four trailers, located across from the victim’s trailer on Hicks
Holler Road, and on the other side of a small road that ran beside Pryor’s house, apparently
perpendicular to Hicks Holler Road. According to the victim’s testimony, early on the morning of
November 8, 1999, he drove his 1976 Chevrolet Blazer across the road to one of the trailers in
Pryor’s trailer park, which was being leased by a man for whom the victim occasionally worked.
The victim testified that he got out of his vehicle, walked to the trailer’s door, and knocked. As the
victim was standing at the door, Pryor came out of his house with a baseball bat, ran across the road
beside his house over to the victim, and said, “[Y]ou’d better have your gun because I’m going to
kill you.” The victim testified he told Pryor that he did not want any trouble and would leave, but
Pryor said no, he was going to kill him.1 The victim got back inside his vehicle and began backing
out of the driveway, while Pryor began beating all over the vehicle with the baseball bat, hitting the
hood repeatedly and beating the windows out of the vehicle. The victim said that Ray was standing
on Pryor’s porch during the incident, but he did not participate. After leaving the trailer park, the
victim drove to a motel down the street, where he telephoned the sheriff’s department to report the
incident. He then drove to the county courthouse to obtain a warrant.
The victim testified that the second incident occurred at about 1:30 p.m. that same day, as
he was visiting a woman who lived on Highway 41, which is intersected by Hicks Holler Road. He
said he was standing outside talking to the woman when he saw Pryor come out of Hicks Holler
Road in his pickup truck, “burning the tires,” with Ray in the vehicle beside him. At sight of the
defendants, the victim ran for his Blazer, making it inside just as the defendants pulled in.
According to the victim, Pryor drove his truck into the side of the Blazer, knocking the victim
sideways off his seat. Both defendants then jumped out of the truck and began beating the Blazer
all over, with Pryor once again using a baseball bat. The victim testified that he was lying on the
floorboard kicking his feet up and trying to get the Blazer started when Ray reached in the open
window and took his six-shot .22 caliber revolver off his dashboard. The victim explained that he
had retrieved the gun from his house after the morning incident because he feared for his life. He
said that after getting the Blazer started, he reached up, put it in reverse, and then pressed down on
1
The victim testified on direct examination that there were ill feelings between himself and Pryor before the d ate
the events in this case tra nspired, but he did not know the reason for the ill will. On cross-examination, however, he
acknowledged having had earlier confro ntations with Pryor over whether P ryor had the right to prevent him from entering
the trailer park. The victim denied that the reason Pryor ordered him to stay away was because he believed the victim
to be involved in drug transactions in the park. The victim testified, instead, that Pryor wanted him to stay away beca use
there was “a lot of stuff going on at [Pryor’s] house,” and Pryor believed the victim to be working as a confidential
informant for the police.
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the accelerator with his hand. The Blazer went backwards, hit a ditch, and spun around. When the
victim raised his head, he saw Ray standing in front of the Blazer with the victim’s gun in his hand.
The victim testified that the Blazer was still moving backwards, away from the defendants, as Ray
fired two shots into the windshield, towards the victim’s face. The victim said he then jerked the
vehicle into gear and “cut out down the road.” As he was driving away, another shot was fired at
the back of his vehicle, striking one of the tires. The victim identified photographs showing the
damage to his vehicle and estimated that the fair market value of the vehicle before and after the
damage was approximately $4500 and $1000, respectively.
The victim testified on cross-examination that Pryor had confronted him a couple of times
in the past, ordering him to stay off his property and off the road that ran beside his house. The
victim believed, however, that Pryor had no right to prevent him from using the county road, or from
visiting at a trailer he had leased to someone else. He said that Pryor beat his Blazer with a ball bat
during one of those previous encounters, putting a dent in the back of the vehicle. The victim
testified he took the bat away from Pryor and did not report the incident to the police. He denied that
he swung the bat at Pryor or pointed a gun at him, although he admitted that he probably had his gun
in the console of his Blazer at that time.
The victim was positive that he did not pull his gun on either defendant on November 8,
1999. He testified that his gun was lying in the left corner of his dashboard, behind some tools and
down in a hole. He said that Ray was beating at his vehicle with a short club when he reached inside
and took the gun from the dashboard. Upon further cross-examination, the victim testified that Ray
was trying to beat him, inside the vehicle, when he reached and took the gun. The victim also
testified, for the first time on cross-examination, that the first shot Ray fired struck the floorboard
of the vehicle beside where the victim was lying. The victim explained that he had not taken
photographs of that bullet hole because he did not think the hole made by his small caliber weapon
in the carpet would be detectable in a photograph.
Court Officer Marion Duggan, an employee of the Marion County Sheriff’s Department,
testified that he was dispatched to Pryor’s residence on November 8, 1999, regarding an altercation
between Pryor and the victim. Ray was on the front porch when he arrived, and Pryor was inside
sitting on a couch. Pryor invited him in and gave him a pistol that was in a plastic sandwich bag,
which Duggan took to the jail and turned over to an investigator. At some point, Duggan also saw
the victim’s vehicle. He testified that he remembered seeing some small holes in the vehicle that
might have been caused by a gun but could not remember anything else about the vehicle.
Marion County Sheriff’s Department Detective Gene Hargis testified that the victim came
to his office on November 8, 1999, to tell him about the afternoon incident and to show him the
damage to his vehicle. Detective Hargis’s memory was that there were four small holes in the
vehicle that appeared to have been made by a small caliber weapon: one in the passenger door, two
in the front windshield, and possibly one in the tailgate area. In addition, there were a few slivers
of broken glass in the back of the vehicle, and the left rear tire was going flat.
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The defendants presented one witness in their defense, Kenneth Baisden, an eyewitness to
the afternoon incident, who said he did not know any of the parties involved. Baisden testified he
was outside a fish market on Highway 41 at about 1:30 or 2:00 p.m. on November 8, 1999, when he
heard loud cursing. When he looked up, he saw a Chevrolet Blazer and a small pickup truck
approximately 100 feet from him, at a house across the highway. He next saw the defendants get
out of the truck, Pryor approach the victim’s door, and the victim point a gun out the window of the
Blazer at Pryor’s head. Baisden testified that Ray lunged across the hood of the pickup truck,
knocked the gun out of the victim’s hand, and then bent to pick it up from the ground. He said that
at the very instant Ray was reaching down to get the gun, Pryor “was trying to reach through the
window to get [the victim].” The victim then took off in the Blazer, spun around, and headed
straight back toward the defendants, in an apparent attempt to run them over. At that point, Ray fired
what Baisden believed were two shots through the windshield. The victim ducked down, turning
the steering wheel and causing the vehicle to swerve from the defendants and go over a ditch.
Baisden testified that Ray was still shooting at the victim at that time. He said he did not see
anything in Ray’s hands when he dived across the hood of Pryor’s truck to knock the gun from the
victim’s hands, and that Ray did not begin shooting until the victim had spun his vehicle around and
was driving back toward Ray and Pryor.
On cross-examination, Baisden testified that Ray climbed on the bumper of Pryor’s vehicle
and lunged across the hood to get to the gun in the victim’s hands. When questioned about the
practicality of that scenario, Baisden testified, contrary to his direct examination testimony, that Ray
was able to reach the victim before the victim had a chance to shoot because the victim had to search
his vehicle for the gun while Ray was lunging across the hood. Upon further questioning, Baisden
changed his testimony again, stating that he did not see the victim searching for his gun and that
everything occurred all at once. He said that the defendants had pulled their vehicle against the
victim’s vehicle in such a way as to make them “up against him,” and he agreed that the victim never
got out of the vehicle. On redirect, he testified that the victim was holding his gun only six to eight
inches from Pryor’s head. Baisden testified on recross-examination that he heard someone yell “son
of a bitch, motherfucker, I’m going to kill you, kill you,” but he could not determine who said those
words.
ANALYSIS
I. Alleged Jury Tampering
As his first issue, Ray contends that he was denied a fair trial because the victim tampered
with the jury. He asserts that there were three instances in which the victim either had improper
contact with jurors or attempted improper contact: (1) when the victim spoke to a juror about the
juror’s job and a mutual acquaintance; (2) when he asked the court clerk, who was handing out
paychecks to jurors, if she had a check for him also; and (3) when he attempted to speak to another
juror in the hallway of the courthouse. Ray argues that the victim’s conduct created a rebuttable
presumption of prejudice, which the State failed to overcome. The State argues that the trial court
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correctly found that there was no evidence that the defendants were prejudiced by the victim’s
conduct and, therefore, did not abuse its discretion in refusing to declare a mistrial.
The jury in this case was not sequestered. The record reflects that after a break in the trial,
Ray’s counsel informed the trial court that Ray had seen the victim talking to Mr. Lowery, one of
the jurors, during the break, and that Ray’s wife had told Ray that Mr. Lowery was the third juror
to whom the victim had talked. During the jury-out hearing that followed, the victim said that he
had asked the clerk, who was giving out checks to the jurors, if she had a check for him, too.2 He
also acknowledged having spoken to Mr. Lowery, telling the trial court that he had asked what he
did for a living, and that Mr. Lowery had told him he drove a truck. The victim denied having had
any conversation about the case, and claimed not to have realized that the trial court’s earlier
admonition to the jurors not to talk with anyone included talking with him about matters unrelated
to the case.
When Mr. Lowery was questioned in turn, he informed the trial court that he and the victim
had “chit chat[ted]” during the break about his work and whether he knew a man named Flynn for
whom the victim had once worked, but they had not talked about the case. He estimated that the
entire conversation lasted one or two minutes and said that it occurred on the walkway outside the
courtroom, within sight of some of the other jurors. He said that the conversation would not
influence his decision in the case.
The trial court expressed its belief that the conversation had been innocent, but announced
that it would nonetheless remove Mr. Lowery from the jury to avoid any possible taint of the jury
verdict. The court overruled the defendants’ motion for a mistrial, finding that the defendants were
not prejudiced by either the removal of Mr. Lowery from the jury, or the fact that the victim had
asked for a paycheck in the presence of the jurors. With regard to the latter instance of alleged jury
tampering, the trial court found that the victim’s behavior, rather than prejudicing the jury against
the defendants, would more likely have the opposite effect of diminishing the victim’s credibility.
When the remaining jurors were brought back into the courtroom, the trial court first informed them
that Mr. Lowery had been removed because of having engaged in conversation with the victim. The
court then questioned whether any of the remaining jurors had had any conversation with the victim,
including just to say hello or goodbye, and whether they had seen any other jurors talking with him.
None of the jurors indicated that they had, and the trial continued with the alternate juror taking Mr.
Lowery’s place.
No other mention was made during the trial of the victim’s having attempted to contact any
other jurors. However, during the hearing on the motion for a new trial, Marion County Sheriff’s
Deputy Mark Gardner testified that he was serving as a court officer during the defendants’ trial
when he observed the victim attempting to initiate a conversation with one of the male jurors outside
the courtroom by asking him if he knew a particular individual. He said that he told the victim to
move on, and no communication occurred between the victim and the juror about the case.
2
The clerk confirm ed that the victim had asked her for a chec k in the presence of the jurors.
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Gardner’s memory was that the contact occurred at some point after Mr. Lowery had already been
excused from the jury.
Ray cites State v. Young, 866 S.W.2d 194, 196 (Tenn. Crim. App. 1992), to argue that the
victim’s contacts with the jurors were sufficient to create a rebuttable presumption of prejudice,
which then shifted the burden to the State to show that the contacts and communication were
harmless. However, in order to shift the burden to the prosecution to demonstrate the harmlessness
of the communication, “the threshold question is whether the statement communicated to the jury
was prejudicial to the Defendant.” State v. Parchman, 973 S.W.2d 607, 612 (Tenn. Crim. App.
1997). Moreover, when a jury is not sequestered, the defendant has the burden of showing more than
mere interaction between jurors and third parties in order to shift the burden to the prosecution to
demonstrate that no prejudice to the defendant occurred. State v. Blackwell, 664 S.W.2d 686, 689
(Tenn. 1984); State v. Clinton, 754 S.W.2d 100, 103 (Tenn. Crim. App. 1988). Instead, the
defendant must show that some extraneous prejudicial information or improper outside influence
was imparted or brought to bear on the jury. Clinton, 754 S.W.2d at 103 (quoting Blackwell, 664
S.W.2d at 689).
The defendants were unable in this case to show that the victim imparted any extraneous
prejudicial information to the jurors or exerted any improper influence on them. To the contrary, the
record makes it clear that the conversations the victim had with the jurors, regarding work or mutual
acquaintances, were in no way directly related to the case. Ray contends that the victim’s actions
and conversations amounted to an attempt to ingratiate himself with the jurors and thereby influence
the outcome of the trial. He argues that the fact that the victim approached other jurors after the trial
court specifically instructed him not to have any contact with the jury makes it clear that the victim’s
conduct was not innocent but, instead, was a deliberate attempt to win favor with the jurors. We
disagree that the victim’s actions make it clear that he was attempting to win favor with the jurors.
Furthermore, even if this was the victim’s intention, there is no evidence that he succeeded. We
therefore conclude that the trial court did not err in denying the defendants’ request for a mistrial,
or in denying their motion for a new trial on the grounds of alleged jury tampering.
II. Trial Court’s Alleged Partiality
Ray next contends his due process rights were violated because the trial court exhibited
partiality towards the State by, inter alia: (1) making comments in the presence of the jury that
conveyed the message that defense counsel was acting improperly; (2) instructing the State during
a jury-out hearing on how to prove damages; (3) ruling that defense counsel could not cross-examine
the victim about his criminal history; and (4) failing to inform the jurors that the victim, as well as
Mr. Lowery, had engaged in improper behavior by conversing with each other.
It is axiomatic that a defendant has the right to have a fair and impartial judge preside over
his trial. See State v. Brock, 940 S.W.2d 577, 581 (Tenn. Crim. App. 1996). The conduct or action
of a trial judge can result in an abridgement of a defendant’s right to due process. See State v.
Benson, 973 S.W.2d 202, 207 (Tenn. 1998) (defendant alleged that the trial judge had solicited a
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bribe from him); State v. Brock, 940 S.W.2d 577, 581 (Tenn. Crim. App. 1996) (“Over the
Defendant’s objection, the trial judge asked the Defendant the question that placed in the record the
only evidence to support the jury’s finding of an essential element of the offense.”). However, in
this case, we find nothing in the record to show that the trial judge was not fair and impartial.
As his first example of alleged partiality, Ray cites comments the trial court made during a
portion of the trial in which defense counsel was cross-examining the victim about the warrants he
had signed in connection with the case. Ray argues that the trial court’s remarks suggested to the
jury that defense counsel was somehow behaving improperly. We disagree. The comments occurred
as counsel for the codefendant was questioning the victim about inconsistencies between his trial
account and his statements in the warrants. After the victim had acknowledged that the warrants did
not include any information about Ray shooting at his vehicle, counsel asked the victim to confirm
that it was his signature at the bottom of warrant “number 36287.” The trial court interrupted,
seeking clarification on the number, and stating, “I was looking in the file and for some reason that
particular warrant is not in this file and if it’s a copy it may or may not be the correct warrant.” The
trial court also said that “maybe those aren’t the applicable warrants, I don’t know.” Defense counsel
explained that some confusion could have resulted because the case had come up and been dismissed
on several different occasions before finally being put back on the docket for that day’s trial.
Counsel then continued with cross-examination, obtaining the victim’s acknowledgment that it was
his signature on the warrant. When counsel moved to have the document admitted into evidence,
the trial court made the following comment: “Well, there might be an issue of relevance here. I
don’t know why that one apparently has disappeared, it’s just not in this file, and maybe it was an
original session warrants that for some reason didn’t get put in this case, but it’s – I have some
question.”
Nonetheless, when the State announced that it had no objection, the trial court admitted the
document into evidence. After admitting the second warrant into evidence as well, the trial court
asked counsel to approach the bench, stating that “this is troubling me.” The conversation that
followed, in which the trial court questioned counsel further about the confusion with the warrants,
occurred at the bench, and the trial court made no further comments on the subject in the hearing of
the jury. We find nothing in the trial court’s comments that can be construed as a suggestion to the
jury that defense counsel was behaving improperly. Nor did the trial court’s comments give any
suggestion that it was favoring the prosecution over the defense. See State v. Caughron, 855 S.W.2d
526, 536 (Tenn. 1993) (stating that a trial judge should be careful not to express any thought that
might lead the jury to infer that the judge favors one or the other side in a criminal case) (citing
Brooks v. State, 213 S.W.2d 7, 10 (Tenn. 1948)).
The instruction on how to prove damages occurred in the context of the trial court’s having
sustained a number of objections raised by defense counsel to both the form of the prosecutor’s
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questions and the nonresponsive answers given by the victim.3 During the jury-out hearing that
followed, the trial court did not, as Ray claims, exhibit partiality by attempting to help the State
prove its case. Instead, the court told the prosecutor that he could ask the victim if he knew the fair
market value of the vehicle before and after the damage occurred, and, if he did not, the State would
be relegated to proving misdemeanor, rather than felony, vandalism. During the extended arguments
on this matter, counsel objected to the trial court’s suggesting how the State might prove the amount
of damages, while recognizing “what the Court’s doing in trying to move this case along.” We agree
that this was the trial court’s intention.
We also find no merit in Ray’s assertion that the trial court exhibited partiality by refusing
to allow defense counsel to cross-examine the victim on his criminal history, or by failing to inform
the jury that the victim acted improperly in talking with the jurors. First, we note that it was counsel
for the codefendant who sought to question the victim about his conviction. The record reflects that
counsel for the codefendant sought, in connection with questioning the victim about his ownership
of the gun, to bring up evidence of his status as a convicted felon. During a jury-out proffer of proof,
the forty-six-year-old victim testified that the crime resulting in his status as a convicted felon
occurred when he was 19 years old. The trial court refused to admit the evidence of the victim’s
criminal history, concluding that it had almost no probative value and was very prejudicial. We find
no bias on the part of the trial judge in this ruling. We also find nothing inappropriate in the trial
court’s instruction to the jury regarding the dismissal of Juror Lowery:
Ladies and gentlemen, you notice that Mr. Lowery is no
longer with us. The reason for that is that he had conversations with
[the victim], and given that conversations as innocuous as they may
or may not have been, we didn’t – we couldn’t let him stay on the
jury.
Let me ask this question of the remainder of you, have any of
you had any communication with [the victim] in any way during these
[sic] last break or two, even if it’s just to say hello or goodbye, did
anybody else on the jury talk with this man at all? Anybody?
Anybody see anybody else?
Okay. I’m taking you at your word. I think you have not had
contact, we’re going to proceed on.
We respectfully disagree with the defendant’s assertion that the trial court denied the motion
to dismiss the charges with prejudice because of the concern that “these defendants might escape
3
The pro secuto r initially asked the victim if he knew the amount o f damage caused to his vehicle. Defense
counsel objected to the form of the question, and the trial court sustained the objection, telling the prosecutor that the
proper method was to show the fair market value of the vehicle before and after the damage.
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punishment,” or that the “court had made up its mind that something had happened and it was going
to let the jury decide it.” The record supports neither of these claims nor that the trial court, by
certain of its rulings, violated the defendant’s right to due process.
III. Sufficiency of the Evidence
As his third issue, Ray challenges the sufficiency of the evidence in support of his vandalism
conviction, arguing that the proof that he caused damage to the victim’s vehicle was insufficient.
Ray first suggests that the victim’s testimony regarding the damage to his vehicle was not credible,
asserting that “[t]he only evidence submitted by the State to support the charge of vandalism that
does not involve a weighing of the testimony of the victim or placing any judgment on his credibility
are the photographs of the victim’s vehicle,” which, he claims, “fail[] to disclose any damage to the
windshield consistent with that which would occur from a ball bat.” Ray concedes the photographs
reveal damage to the driver’s side door of the vehicle, but he argues there was no evidence that he
either “caused or contributed” to that condition.
When the sufficiency of the convicting evidence is raised as an issue on appeal, we apply the
familiar rule that the relevant question of the reviewing court 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, 61 L. Ed. 2d 560, 573 (1979); see also State v. Evans, 838 S.W.2d 185, 190-92
(Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992); Tenn. R. App. P.
13(e) (“Findings of guilt in criminal actions whether by the trial court or jury shall be set aside if the
evidence is insufficient to support the findings by the trier of fact of guilt beyond a reasonable
doubt.”). All questions involving the credibility of witnesses, the weight and value to be given the
evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754 S.W.2d
620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the trial judge,
accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory
of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our supreme court stated the
rationale for this rule:
This well-settled rule rests on a sound foundation. The trial
judge and the jury see the witnesses face to face, hear their testimony
and observe their demeanor on the stand. Thus the trial judge and
jury are the primary instrumentality of justice to determine the weight
and credibility to be given to the testimony of witnesses. In the trial
forum alone is there human atmosphere and the totality of the
evidence cannot be reproduced with a written record in this Court.
Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212 Tenn. 464,
370 S.W.2d 523 (1963)). A jury conviction removes the presumption of innocence with which a
defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a convicted
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defendant has the burden of demonstrating that the evidence is insufficient. See State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982).
Tennessee’s vandalism statute provides in pertinent part that “[a]ny person who knowingly
causes damage to or the destruction of any real or personal property of another . . . knowing that the
person does not have the owner’s effective consent is guilty of an offense under this section.” Tenn.
Code Ann. § 39-14-408(a) (1997). “‘Damage,’” for the purposes of the statute, “includes, but is not
limited to: (A) [d]estroying . . . property; or (B) [t]ampering with property and causing pecuniary
loss or substantial inconvenience to the owner[.]” Id. § 39-14-408(b)(1)(A)-(B). The statute further
provides that “[a]cts of vandalism are to be valued according to the provisions of § 39-11-106 (a)(36)
and punished as theft under § 39-14-105.” Id. § 39-14-408(c)(1). Tennessee Code Annotated
section 39-11-106(a)(36)(A)(i) defines “value” as “[t]he fair market value of the property . . . at the
time and place of the offense[.]” Under Tennessee Code Annotated section 39-14-105, the value
of any vandalized property will determine the grade of the offense.
Baisden testified that he did not see Ray beat the victim’s vehicle, and that he did not see him
with anything in his hand when he lunged for the victim’s gun. The victim, on the other hand,
testified that Ray was armed with a short club, and that he participated with Pryor in “beating all over
the truck [the victim’s Blazer].” The credibility of witnesses and the weight to be accorded their
testimony is accorded to the jury as the trier of fact. See State v. Pappas, 754 S.W.2d 620, 623
(Tenn. Crim. App. 1987). Photographs of the vehicle show a number of dents and scratches all
around the vehicle, including the driver’s side door. Viewed in the light most favorable to the State,
the evidence in this case was sufficient to prove that Ray (1) knowingly caused damage to the
victim’s vehicle and (2) knew he did not have the victim’s effective consent to do so. We, therefore,
conclude that the evidence was sufficient to support Ray’s misdemeanor vandalism conviction.
IV. Defective Indictment
As his final issue, Ray contends that count one of his indictment was fatally defective
because it omitted the words “State of” in the phrase “against the peace and dignity of the State of
Tennessee.” The State responds by arguing that the indictment met the constitutional and statutory
requirements of providing notice to the accused and was not rendered void by virtue of the omitted
language. We agree with the State.
An indictment must inform the accused of “the nature and cause of the accusation.” U.S.
Const. amend. VI; Tenn. Const. art. I, § 9. In addition, Tennessee Code Annotated section 40-13-
202 requires that an indictment
state the facts constituting the offense in ordinary and concise
language, without prolixity or repetition, in such a manner as to
enable a person of common understanding to know what is intended,
and with that degree of certainty which will enable the court, on
conviction, to pronounce the proper judgment.
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An indictment that achieves its “overriding purpose of notice to the accused will be
considered sufficient to satisfy both constitutional and statutory requirements.” State v. Hammonds,
30 S.W.3d 294, 300 (Tenn. 2000). Our supreme court has held that an indictment is sufficient to
satisfy notice requirements if it “contains allegations that (1) enable the accused to know the
accusation to which answer is required; (2) furnish the trial court an adequate basis for entry of a
proper judgment; and (3) protect the accused from a subsequent prosecution for the same offense.”
Id. at 299 (citing State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997)).
The indictment in this case was clearly sufficient to satisfy the overriding purpose of notice
to the accused. Count one of the indictment charged the following:
RANDY RAY and BOBBY PRYOR on the 8th day of
November, 1999 in Marion County, Tennessee, and before the
finding of this Indictment, did unlawfully and knowingly make an
assault upon the person of one Randy Hutchins, and did cause the
said Randy Hutchins to reasonably fear imminent bodily injury, said
assault being accomplished by the use of a deadly weapon, to wit:
gun, vehicle and bat, in violation of T.C.A. 39-13-102, all of which
is against the peace and dignity of Tennessee.
Ray argues that the omission of the words “state of” is sufficient to render count one of the
indictment fatally void. We respectfully disagree. In Hill, our supreme court, emphasizing that an
indictment need not conform to strict pleading requirements, explained that an analysis of the
sufficiency of an indictment should be approached “‘from the broad and enlightened standpoint of
common sense and right reason rather than from the narrow standpoint of petty preciosity,
pettifogging, technicality or hair splitting fault finding.’” Hill, 954 S.W.2d at 728 (quoting United
States v. Purvis, 580 F.2d 853, 857 (5th Cir. 1978)). Although count one of the indictment failed
to include the words “state of,” it nonetheless put the defendant on notice that he was charged with
aggravated assault accomplished with the use of a deadly weapon, including the specific deadly
weapons alleged to have been used. It also named a specific victim and a specific date for the
offense, and it referenced the statute that he was charged with violating. The indictment additionally
alleged that the offense occurred in Marion County, Tennessee. “So long as an indictment performs
its essential constitutional and statutory purposes, a defect or omission in the language of the
indictment will not render the judgment void.” Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000)
(citing Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998)). This issue, therefore, is without
merit.
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CONCLUSION
Based on the foregoing authorities and reasoning, we affirm the judgment of the trial court.
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ALAN E. GLENN, JUDGE
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