Opinion

State of Tennessee v. Kirk D. Farmer

Court
Court of Criminal Appeals of Tennessee
Filed
Mar 7, 2024
Status
Published
Cited by
0 cases
Authority
More cited than 15.5%

The opinion

03/07/2024

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs February 21, 2024

STATE OF TENNESSEE v. KIRK D. FARMER

Appeal from the Circuit Court for Dickson County

No. 22CC-2020-CR-153 David D. Wolfe, Judge

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No. M2023-00522-CCA-R3-CD

___________________________________

After a Dickson County jury trial, Defendant, Kirk D. Farmer, was convicted of vandalism

of $2,500 or more but less than $10,000 and disorderly conduct. The trial court sentenced

him to an effective term of three years in the Tennessee Department of Correction. On

appeal, Defendant argues the evidence produced at trial was insufficient to sustain his

vandalism conviction. After review, we affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

MATTHEW J. WILSON, J., delivered the opinion of the court, in which JAMES CURWOOD

WITT, JR., and TOM GREENHOLTZ, JJ., joined.

Mitchell A. Raines, Assistant Public Defender—Appellate Division (on appeal); Matthew

Mitchell, District Public Defender; and Mitch Dugan, Assistant District Public Defender

(at trial), for the appellant, Kirk D. Farmer.

Jonathan Skrmetti, Attorney General and Reporter; G. Kirby May, Assistant Attorney

General; W. Ray Crouch, Jr., District Attorney General; and Danielle Bryson, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Trial

On July 30, 2019, Defendant, Kirk D. Farmer, vandalized a Dickson County

Wendy’s restaurant with a mallet. Three on-duty employees and another employee whose

shift had not started were present. The Dickson County Grand Jury indicted Defendant on

three counts of reckless aggravated assault and one count each of vandalism valued at

$2,500 or more but less than $10,000, public intoxication, and disorderly conduct. The

case proceeded to a jury trial held on March 28, 2022.

Jennifer Richey testified she was the store manager at the Wendy’s located on

Highway 46 in Dickson the day of the incident. On that day, she and two other workers,

Adriana Guellen and Veronica Ortega, opened the store. Another worker, Brett Richey,

whom Ms. Richey identified as her “significant other,” was present at the store, although

his shift did not begin until later that day. Ms. Richey explained Mr. Richey was “in and

out” of the restaurant the morning of the incident.

The restaurant opened at 9:00 a.m., and Defendant entered as it opened. Ms. Richey

testified that Defendant was a regular customer who usually arrived as the restaurant

opened. Ms. Richey, who was working the register at the front of the restaurant, took

Defendant’s order; the other two on-duty employees were working in the back of the

restaurant. Ms. Richey told Defendant that because the restaurant had just opened, it would

take some time to prepare his order. She said Defendant was “fine” with this news, and he

headed to the restroom. When Defendant emerged from the restroom, Ms. Richey gave

Defendant the food he had ordered.

After Defendant exited the restroom, Mr. Richey went to the restroom. Ms. Richey

testified that when Mr. Richey exited the restroom, “He alerted me to an empty liquor

bottle, razor caps, and just like, I don’t even know how to explain, like a bunch of like

debris type like dirtiness in our sink.” Ms. Richey went to the bathroom and saw the scene

as Mr. Richey had described it. Ms. Richey testified that customers had complained

previously about “beard shavings and liquor bottles” being in the restroom, so after

discovering the scene in the restroom she went into the employee area and called her

general manager. Ms. Richey told the manager that she would “let [Defendant] know . . .

that would not be tolerated at our unit, at our store.”

Ms. Richey then went to Defendant’s table and explained that “if he continued his

actions of using our bathroom as a personal restroom that he would no longer be allowed

to sit at Wendy’s.” Ms. Richey testified that Defendant then became “[v]ery

argumentative,” repeatedly denying that he had done anything wrong. Ms. Richey asked

Defendant if he understood that “if he continued that he was not going to be allowed to sit

at [the] store,” after which point Defendant said he was not leaving. Ms. Richey added,

“After five minutes of going back and forth probably, I told him that I was not going to

tolerate it anymore, that I was just going to give him his money back and he was going to

go.” Ms. Richey informed Defendant that the police would be called if he did not leave,

and when he did not leave as instructed, she went into the restaurant’s employee area to

call the police.

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Ms. Richey called the Dickson Police Department’s non-emergency number and

asked for “assistance in removing a customer who refused to leave.” The dispatcher asked

Ms. Richey if it was an emergency; Ms. Richey responded it was not. Ms. Richey testified

that at this point in the phone call, it was quiet in the restaurant, and nobody other than the

aforementioned persons were present. However, while Ms. Richey was on the phone with

the police dispatcher, she looked to the front of the restaurant to see Defendant “smashing

everything on our counter. And I immediately told the [dispatcher] that this has now gone

from non-emergency to 911, I need somebody now.”

Specifically, Ms. Richey testified, Defendant grabbed a “rubber ended mallet” to

smash the restaurant’s “cash register, our credit card machines, our cookie display, our

ketchup pumps. Any and everything that he could get to.” During this time, Ms. Richey’s

focus was to prevent Defendant from entering the employee area at the rear of the

restaurant, so she locked the door leading to that area.

Ms. Richey testified the single damaged cash register was valued at $2,800; the two

damaged credit card machines were valued at $500 each; the damaged cookie display was

valued at $300; the two damaged receipt printers were valued at $300 each; and the two

ketchup pumps were valued at $150 each.

Ms. Richey was unable to smell the odor of an alcoholic beverage on Defendant,

but in her opinion “he acted as if something was not right. Like he was not of [a] sober

mind frame[.]” She had interacted with Defendant often before this incident and never

encountered problems. She denied that Defendant swung the mallet at her, adding that she

did not get close enough to Defendant for him to do so. She also denied that Defendant

approached the two employees working in the back of the restaurant during the incident.

Mr. Richey testified that when he went into the men’s restroom after the Defendant

the morning of the incident, he found a liquor bottle and shaving razor. Mr. Richey said

that he and Defendant were the only two persons who could have placed those items in the

restroom that morning, and that he did not place the items there. After Mr. Richey found

the items in the restroom, he notified Ms. Richey of his findings and went outside the

restaurant. Mr. Richey returned when he heard Ms. Richey “yell[ing] out the window that

[Defendant] was inside destroying everything.” Mr. Richey said he approached Defendant

and asked him, “why are you doing this[?]” At one point, Defendant placed a chair on a

dining room table; Mr. Richey said that Defendant did not say anything after he did this,

but “[h]e just stood there with a big smile on his face.” Mr. Richey denied asking

Defendant to break the chair and denied asking Defendant to do anything while he was in

the store with Defendant.

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Testifying through an interpreter, Adriana Guellen1 recalled that Defendant visited

the restaurant frequently, as often as five times per week, and that he occasionally helped

pick up garbage around the restaurant. Ms. Guellen testified that Ms. Richey did not like

Defendant being at the restaurant so often, but Ms. Guellen did not know whether Ms.

Richey wanted Defendant to stop visiting the restaurant before the incident occurred. The

morning of the incident, Ms. Guellen testified, Defendant started off calm, but she soon

saw Defendant “destroy[ing] everything in Wendy’s. The cash registers, the ketchup

containers, and the place where we would put the crackers.” Ms. Guellen said she was

concerned for her safety during the incident. She said that when Defendant first started

smashing things, she thought she would be able to “talk to him to calm him down.” Ms.

Guellen changed her mind when Ms. Richey “yelled at me and told me that he had a

weapon,” which Ms. Guellen thought could be a pistol. Ms. Guellen testified nobody had

given Defendant permission to smash things in the restaurant.

Veronica Ortega, who also testified through an interpreter, testified that she and Ms.

Guellen were working in the back of the restaurant the morning of the incident when they

heard a commotion. Ms. Ortega said she and Ms. Guellen went toward the front of the

restaurant and saw Defendant “destroying things” with a mallet. Ms. Ortega was scared

during the incident and, like her colleagues, denied that anyone gave Defendant permission

to break things inside the restaurant. Like Ms. Guellen, Ms. Ortega testified Defendant

had, before this incident, occasionally helped pick up trash around the restaurant. Ms.

Ortega said that while the Wendy’s general manager had no problem with Defendant being

at the restaurant so often, Ms. Richey had wanted Defendant to leave before this incident.

The State recalled Ms. Richey after the other Wendy’s employees testified. She

denied that she wanted Defendant to break anything in the restaurant or gave Defendant

permission to break anything. Ms. Richey denied that, before this incident, she had wanted

Defendant put out of the restaurant. When asked whether she liked Defendant sitting in

the restaurant all day, Ms. Richey replied, “My like has nothing to do with my job. No, it

doesn’t matter.” She denied asking the general manager to have Defendant banned from

the restaurant, but Ms. Richey did tell the general manager about “the liabilities that we

had if someone was to cut their hand on that trash can, if a kid stuck their hand in there to

get a toy.”

Officer Luke Daniel with the Dickson Police Department responded to the 911 call

the day of the incident. Upon arriving at Wendy’s, he saw Ms. Richey “running frantically”

outside the restaurant. The officer entered the restaurant and drew his taser, pointing at

Defendant, who was the only customer in the restaurant. Defendant surrendered and was

1

Ms. Guellen is also listed in the transcript as “Adriana Perez.” However, when asked to provide

her name, the witness stated her last name was “Guellen.” We will use that name in this opinion.

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arrested. The officer collected a mallet that was broken in two pieces and a knife, which

Defendant removed from his pocket when he placed himself on the ground in front of the

officer. The officer acknowledged that Defendant complied with his orders and did not

fight the officer.

Defendant testified on his own behalf. He recalled entering the restaurant around

8:45 the morning of July 30, ordering his food, and going to the restroom. When he left

the restroom and returned to the front counter, he saw that a coffee cup was missing. He

claimed Ms. Richey told him, “you traded it.” He claimed he sat down at a table to eat and

was then confronted by Ms. Richey about the restroom. Defendant claimed he did not

damage the restroom that morning.

Defendant testified that at some point that morning, he picked up a mallet that

looked like one he owned but which was not his. He claimed that Ms. Richey told him that

“if you do something that I tell you to do I won’t call the cops.” Defendant was upset but

said he tried “to be as cool as I can be about things.” He claimed that in response to Ms.

Richey’s “barking orders” at him, he “[h]it this, smack[ed] that. Cut open the bags, thr[e]w

this over here. For some reason I just started doing that.” When asked by his attorney if

he wanted to add anything to his testimony, Defendant stated,

Well, I don’t know if anybody has ever been upset, but sometimes even years

with somebody aggravating you just, you know, a little bit, needling you,

poking at you, talking about this, talking about that behind your back, you

know, or even behind the counter while you are sitting in the dining room. It

actually bums out. And that’s the assault that she assaulted me with. That’s

the things that just kept building up to do what I did.

Defendant testified that he did not intend to hurt Ms. Richey or anyone else at the

restaurant that morning. Rather, he “want[ed] to show that you are bothering me, and it

actually started to hurt.”

Three video recordings of Defendant’s actions, taken from different vantage points

inside the restaurant, were introduced as exhibits; the videos did not record audio of the

incident. The videos show Defendant emerging from the restroom, retrieving his order,

and going to his seat near the rear of the dining room. After Defendant ate for about four

minutes, Ms. Richey approaches Defendant’s table. The apparent conversation between

the two lasts approximately ninety seconds; Ms. Richey makes some hand gestures but

Defendant does not appear agitated during the conversation. The video then shows Ms.

Richey going to the employee food preparation and office area out of view of the dining

room. Over the next five to six minutes she is seen in the food preparation area speaking

on the telephone and talking to other employees. About six minutes after Defendant’s

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conversation with Ms. Richey ends, the video shows Defendant grabbing a mallet from his

backpack, which was at his table. He then walks to the service counter and bashes

equipment and food displays with the mallet. When Defendant’s attack at the front counter

begins, Ms. Richey is seen emerging from out of view while using the telephone. The

videos show Ms. Richey looking around the corner and speaking to Defendant briefly from

behind the counter, but during the attack she mostly stays on the telephone in a portion of

the food preparation area out of view of the dining room. Defendant is then seen leaving

the counter area, walking to a side wall of the restaurant, cutting open bags of ketchup

attached to the pumps, throwing the ketchup about the restaurant, and breaking the ketchup

pumps. Mr. Richey is then seen entering the restaurant through an entrance near the back

of the dining room and speaking to Defendant briefly; Defendant responds by placing a

chair atop a table. Defendant is then seen walking back to his table and taking a drink from

a bottle before a police officer enters the restaurant with his taser drawn. Defendant is then

seen surrendering without incident. Approximately three minutes elapsed between

Defendant’s grabbing the mallet from his bag and his surrender to police. Photographs of

the restaurant taken after the incident were also introduced, depicting damage consistent

with that described by the witnesses and shown in the videos.

At the close of the State’s proof, the trial court granted in part Defendant’s motion

for judgment of acquittal on the reckless aggravated assault counts; for those three counts,

the court charged the jury only on the lesser included offense of reckless endangerment.

The jury found Defendant guilty as charged of vandalism and disorderly conduct2 and

found him not guilty of the three counts of reckless endangerment and one count of public

intoxication. After a sentencing hearing, the trial court imposed an effective sentence of

three years in the Tennessee Department of Correction. This appeal followed.

II. Analysis

Defendant contends the evidence produced at trial was insufficient for the jury to

find him guilty of vandalism beyond a reasonable doubt. We disagree.

A. Standard of Review

The standard of review for a claim challenging the sufficiency of the evidence 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 (1979) (citing Johnson v.

Louisiana, 406 U.S. 356, 362 (1972)); see Tenn. R. App. P. 13(e); State v. Davis, 354

S.W.3d 718, 729 (Tenn. 2011). This standard of review is identical whether the conviction

2

Defendant does not challenge his disorderly conduct conviction or his sentence on appeal.

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relies on direct evidence, circumstantial evidence, or a combination of both. State v.

Williams, 558 S.W.3d 633, 638 (Tenn. 2018) (citing State v. Dorantes, 331 S.W.3d 370,

379 (Tenn. 2011)).

A guilty verdict removes the presumption of innocence and replaces it with one of

guilt on appeal, therefore, the burden is shifted to the defendant to prove why the evidence

is insufficient to support the conviction. Davis, 354 S.W.3d at 729 (citing State v. Sisk,

343 S.W.3d 60, 65 (Tenn. 2011)). On appeal, “we afford the prosecution the strongest

legitimate view of the evidence as well as all reasonable and legitimate inferences which

may be drawn therefrom.” Id. at 729 (quoting State v. Majors, 318 S.W.3d 850, 857 (Tenn.

2010)); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). In a jury trial, questions

involving the credibility of the witnesses and the weight and value to be given to evidence,

as well as all factual disputes raised by such evidence, are resolved by the jury as the trier

of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); State v. Pruett, 788 S.W.2d

405, 410 (Tenn. 1990). Consequently, we are precluded from re-weighing or reconsidering

the evidence when evaluating the convicting proof. State v. Stephens, 521 S.W.3d 718,

724 (Tenn. 2017).

B. Vandalism

As charged in the indictment, a defendant commits vandalism when the defendant

knowingly “[c]auses 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[.]” Tenn.

Code Ann. § 39-14-408(b)(1). “Effective consent” is defined as “assent in fact, whether

express or apparent, including assent by one legally authorized to act for another.” Id. §

39-11-106(a)(11).

In defining “knowingly,” the criminal code states that a person:

acts knowingly with respect to the conduct or to circumstances surrounding

the conduct when the person is aware of the nature of the conduct or that the

circumstances exist. A person acts knowingly with respect to a result of the

person’s conduct when the person is aware that the conduct is reasonably

certain to cause the result.

Id. § 39-11-302(b). “Vandalism is a result-of-conduct offense with regard to the element

of causing damages. Vandalism is a nature-of-conduct offense with respect to the

ownership of the property.” State v. Goldberg, No. M2017-02215-CCA-R3-CD, 2019 WL

1304109, at *10 (Tenn. Crim. App. Mar. 20, 2019) (citation omitted)), perm. app. denied

(Tenn. Dec. 5, 2019).

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“[A] defendant’s mental state is rarely subject to proof by direct evidence[.]” State

v. Brown, 311 S.W.3d 422, 432 (Tenn. 2010) (citing State v. Inlow, 52 S.W.3d 101, 105

(Tenn. Crim. App. 2000)). “[I]t is within the authority of the jury to infer the defendant’s

intent, and, therefore, whether the defendant acted ‘knowingly,’ ‘from surrounding facts

and circumstances.’” Brown, 311 S.W.3d at 432 (first quoting State v. Lowery, 667 S.W.2d

52, 57 (Tenn. 1984); and then citing Inlow, 52 S.W.3d at 105). “Intent . . . may be deduced

or inferred by the trier of fact from the character of the assault, the nature of the act[,] and

from all the circumstances of the case in evidence.” Inlow, 52 S.W.3d at 105. “One’s

actions are circumstantial evidence of his intent.” State v. Holland, 860 S.W.2d 53, 59

(Tenn. Crim. App. 1993) (internal quotation omitted).

Here, the testimony of the trial witnesses and surveillance video exhibits show that

Defendant used a mallet to damage or destroy several items in the Wendy’s restaurant,

including a cash register, receipt printers, credit card machines, ketchup dispensers, and a

cookie display. Defendant acknowledges damaging or destroying the property and does

not dispute Ms. Richey’s testimony regarding the value of the damage. Instead,

Defendant’s contentions regarding the supposed insufficiency of the convicting evidence

focus on the mental state and effective consent elements of the offense. He contends the

evidence did not establish that he acted “knowingly” because he had a “documented history

of mental health issues” and was “upset,” “not thinking straight,” and “emotional,” during

the incident. He also contends that he acted with the owner’s effective consent because he

acted on Ms. Richey’s instructions in damaging the Wendy’s property. We disagree.

As stated above, vandalism is a result-of-conduct offense as to the element of

damage; thus, to prove that Defendant acted “knowingly” as to that element, the State was

required to prove beyond a reasonable doubt that Defendant was reasonably certain to

cause damage or destruction to property. Regarding Defendant’s assertion that he did act

knowingly, Defendant did not present his alleged “documented history of mental health

issues” to the jury. Defendant was ordered to undergo a pretrial forensic mental health

evaluation; the report from this evaluation appears in the technical record on appeal, but

the report was not introduced at trial and no mental health expert offered opinion testimony

which could have supported a mental health defense. None of the testifying witnesses

expressed concern about Defendant’s previous actions; rather, some of the witnesses

testified that Defendant, a “regular” at this Wendy’s, occasionally helped clean up trash at

the restaurant. Furthermore, the responding officer testified that Defendant immediately

surrendered when confronted by police and readily handed over a knife he was carrying

when arrested. The jury had legally sufficient evidence from which it could find the

Defendant was reasonably certain that his conduct would result in the damage or

destruction of Wendy’s property.

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Addressing Defendant’s argument that he damaged the Wendy’s property because

Ms. Richey instructed him to do so, Defendant’s claim was refuted by the testimony of Ms.

Richey and the other Wendy’s employees, all of whom denied Defendant had permission

to vandalize the restaurant. In finding that Defendant did not have the owner’s effective

consent at the time of his actions—and in finding that he acted knowingly or was aware

that he did not have the owner’s effective consent—the jury assessed the credibility of the

testifying witnesses and rejected the contentions that Defendant raises on appeal. As stated

above, this court will not reassess the jury’s credibility determinations or its weighing of

the evidence, as such matters are entrusted to the jury as finder of fact. See Bland, 958

S.W.2d at 659. We therefore conclude the evidence was sufficient to establish, beyond a

reasonable doubt, that Defendant knowingly acted without the owner’s effective consent

at the time he vandalized the Wendy’s restaurant. He is not entitled to relief.

III. Conclusion

In consideration of the foregoing and the record as a whole, the judgments of the

trial court are affirmed.

_________________________________

MATTHEW J. WILSON, JUDGE

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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