Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs April 22, 2015
Appeal from the Circuit Court for Marion County No. 9465 Thomas W. Graham, Judge
Paul D. Cross, Monteagle, Tennessee, for the Appellant, Shannon Dixon.
Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel; James Michael Taylor, District Attorney General; and David O. McGovern, Assistant District Attorney General, for the Appellee, State of Tennessee.
Alan E. Glenn, J., delivered the opinion of the court, in which John Everett Williams and Roger A. Page, JJ., joined.
ALAN E. GLENN, JUDGE
This case involves a dispute between neighbors apparently arising out of the victims' dog injuring a dog belonging to the defendant. As a result, the defendant was charged with the aggravated assaults of Robert Joseph Riner and his son, Robert Earl Riner. After the trial, the jury found the defendant not guilty of the aggravated assault of Robert Joseph Riner, but guilty of the aggravated assault of Robert Earl Riner.
At trial, Robert Joseph Riner testified that he gained experience and knowledge about weapons when he served as a combat engineer and diesel mechanic in the military. Robert said that in November 2012, he and his family lived in a mobile home in Tracy City, Tennessee, and had two dogs for pets. One of the dogs, a pit bull named Belle, occasionally slipped out of her collar, in which case they brought her inside the house. Robert was personally not aware of Belle's causing any problems as a result of slipping out of her collar.
On the day of the incident, around 9:00-10:30 a.m., Robert's son, the victim, took Belle outside to relieve herself. The victim came back inside and informed Robert that the defendant was "outside on his porch shooting a gun over to our property trying to kill either [the dogs] or him." Robert quickly put on some clothes and ran outside toward the defendant's house, while Robert's wife went to look out a window on the front of the house to see what was going on. Robert said that he never made it out of his yard, and he was not armed. He elaborated that, although he owned three guns, they were stored at his cousin's home at that time because his children had been trying to play with them.
Robert testified that he ran toward the defendant's house, where the defendant was standing on his porch with a gun in his hands, screaming, "[I]f you ever shoot at my kid again, I will beat your brains out[.]" In response, the defendant "raised that gun up and pointed straight at [Robert], and . . . said,
'I'll kill you and that dog right now you son of a bitch.'" Robert held up his hands to show that he was unarmed and told the defendant to "hold up" and threatened to call the police. Robert turned around and told his wife to call 911. He then rounded up his children and dog and returned to the house. He said that he feared for his safety. Robert stated that he knows the difference between a long gun and a pistol, and he could tell "that day it was a rifle in [the defendant's] hand of some sort."
On cross-examination, Robert admitted that he did not hear any shots fired that day because of noise inside the house. Robert said that, when he ran outside, the victim was ten to fifteen feet from the fence line between his and the defendant's properties. Robert estimated that the defendant was shooting from a distance of 110 to 120 yards. Robert recalled that a police officer arrived and talked to him and the defendant, but left without making an arrest. Two days later, Robert took out a warrant for the defendant's arrest, and he also retrieved his pistol from his cousin's house for protection.
Stacy Riner, the victim's mother and Robert's wife, testified that the defendant was her nephew. Stacy recalled that a few days before the incident in this case, their dog, Belle, attacked one of the defendant's puppies that had come over into their yard. On the day of the incident, Stacy and her husband were in their bedroom, when the victim entered and informed them that the defendant was shooting at Belle or in the direction of their home. The victim had been outside with Belle as she was trying to relieve herself and had been staying close by her to make sure she did not wander off. "[D]umb founded" as to why the defendant would be shooting, Stacy told the victim to take Belle back outside to relieve herself and that she and her husband would go outside to investigate.
Stacy testified that she looked out a window facing the defendant's property, from where she saw the defendant step back out on his porch, raise his gun, point, and fire. Stacy opened the window and demanded to know what he was thinking by firing his gun at her son. At that point, Stacy saw Robert come from behind the house and head toward the fence line. Robert also confronted the defendant as to why he was shooting at the victim. When Robert warned the defendant not to shoot at his son, the defendant stepped off his porch, pointed his gun straight at Robert, and said, "I'll kill you and the dog." Robert told the defendant, "[N]o, no, hold up, hold up, " and asked Stacy to call 911. Robert herded the children back inside the house and got the phone.
On cross-examination, Stacy admitted that she told the victim that the defendant did not have a right to shoot onto their property or tell them that they had to chain the dogs, and then made the victim take the dog back outside to relieve herself. Stacy said that, from her vantage point at the window when she was looking outside, she saw the defendant fire one shot. The shot was aimed at the dog, but the victim was close by. Stacy said that her husband had no guns in their home or on the property at the time of the incident, but that he retrieved a gun from his cousin's house two days after the incident – the same day he took out a warrant on the defendant. She said that if she testified at the preliminary hearing that her husband possessed a gun that day, it was because she "may have got messed up or something."
The eleven-year-old victim testified that, on the day of the incident, he and Belle were outside walking a few feet from the fence line between his and the defendant's property. They stayed on their side of the fence. The victim saw the defendant standing on his front porch with a gun and start shooting. At first, the victim was not concerned, thinking the defendant "was shooting like regular because he does it mainly every day." However, he became concerned when he "saw [the defendant] shoot the second firing and that's when I saw him aim right at me and my dog." The defendant's gun appeared to be a rifle, and he pointed it "[r]ight at [the victim] and [his] dog." The victim returned to the house and told his parents. His parents instructed him to go back outside and continue walking the dog, and they would get dressed and go find out why the defendant was firing his gun at the victim and the dog.
The victim testified that he went back outside with Belle, and he saw the defendant "step back out of his house and take the third shot." Almost immediately, the victim's mother opened the door and confronted the defendant, and the victim's father walked out the back door and yelled at the defendant as well. The victim's father walked toward the fence line, unarmed. The victim's father warned the defendant "that he was going to beat his brains out if he ever shot at [the victim] again." The defendant responded that "he would kill my dad and that dog right now, " as he pointed the gun at the victim's father.
The victim recalled his testimony from the preliminary hearing. He said that if he testified that his father's pistol was in the closet in the house, he was mistaken because his parents had removed the guns from the house to prevent his younger siblings from playing with them. Asked if he thought the defendant's gun was a rifle or a pellet gun, the victim responded, "I'd say one of them pellets." Asked about the sound of the shot he heard the defendant fire, ...