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
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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.
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MATTHEW J. WILSON, JUDGE
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