IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs July 9, 2019

STATE OF TENNESSEE V. ERIK STANDBACK

Appeal from the Criminal Court for Shelby County

No. 17-02161 James M. Lammey, Judge

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No. W2018-01804-CCA-R3-CD

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A Shelby County jury convicted the Defendant, Erik Standback, of attempted second 

degree murder, aggravated assault, employing a firearm during the commission of a 

dangerous felony, and reckless endangerment. The trial court imposed an effective 

sentence of eighteen years in the Tennessee Department of Correction. On appeal, the 

Defendant asserts that the evidence is insufficient to support his convictions. After 

review, we affirm the trial court’s judgments.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which JAMES 

CURWOOD WITT, JR., and J. ROSS DYER, JJ., joined.

Phyllis Aluko, Shelby County Public Defender, and Tony N. Brayton, Assistant Shelby 

County Public Defender, Nashville, Tennessee, for the appellant, Erik Standback.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Assistant 

Attorney General; Amy P. Weirich, District Attorney General; and Jamie B. Kidd, 

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

OPINION

I. Facts

This case arises from a physical fight in the Defendant’s yard that quickly 

escalated into a shooting. A Shelby County grand jury indicted the Defendant for 

attempted second degree murder, aggravated assault, employing a firearm during the 

commission of a dangerous felony, and reckless endangerment. At trial, the parties 

presented the following proof: Jasmine Flagg testified that, on January 21, 2017, she 

went to the Defendant’s residence with Chevy Smith, Michael Tellis, Solomon Campbell, 

David Dancy, Kalon Mull, and Darius Brown. According to Ms. Flagg, the Defendant 

08/30/2019
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wanted to fight with Chevy Smith. When they arrived, the Defendant exited his 

residence through the garage. Initially, Mr. Smith did not want to fight the Defendant but 

ultimately agreed.

Ms. Flagg testified that the Defendant ushered the group to the backyard to avoid a 

disturbance in front of the house. Ms. Flagg video-recorded the fight on her phone and 

posted the fight “live” on Facebook. At some point, Mr. Smith dislocated the 

Defendant’s shoulder, and the fight stopped. Mr. Smith and the group began walking 

back to the car while someone helped the Defendant put his shoulder back in place, and 

then the Defendant ran toward the front of the house and began firing a gun at Mr. Smith. 

Mr. Smith ran, as did the others, but one of the bullets hit Mr. Smith in the back. Mr. 

Smith hit the ground, and the Defendant told Ms. Flagg to, “Get your nigga up off my

street” before walking back into his house. 

Michael Tellis, the driver of the car, testified that he did not know he was driving 

to the Defendant’s residence that day. He explained that he was driving people to various 

addresses. The addresses were put into his phone for navigation purposes, and he merely 

followed the directions without knowing to whose residence he was driving. When he 

spoke with the police on the day of the incident, however, he acknowledged knowing that

he was going to the Defendant’s residence although he did not know the Defendant. 

When they arrived, the Defendant approached the vehicle aggressively, and the group 

moved to the backyard for a fight. Mr. Tellis did not observe anyone with a gun at this 

point.

Mr. Tellis testified that the fight ended quickly, and he began walking back to his 

car. As he walked through a gate, he saw the Defendant run to the garage and then fire

his gun three times. He recalled the Defendant’s running past him and said that he felt

surprised and fearful. Mr. Tellis stated that everyone who had been in his car on the 

drive over was in the Defendant’s front yard and began running from the gunfire. One of 

the bullets hit Mr. Smith in the back as he ran from the gunfire. After shooting Mr. 

Smith, the Defendant said, “I could have killed you but I didn’t.” Mr. Tellis

acknowledged that he had not reported that statement to the police at the time of the 

incident and that this was his first mention of the Defendant’s post-shooting statement. 

Solomon Campbell testified that he had no idea why the group went to the 

Defendant’s house on the day of the shooting. When he asked the others in the car why 

they were at the Defendant’s residence, he was told there was going to be a fight. Mr. 

Campbell listed the names of the people in the car consistently with Ms. Flagg. At the 

Defendant’s house, Mr. Campbell said that he attempted to dissuade the others from 

engaging in a fight, but “everybody” began walking to the back of the house. Mr. 

Campbell recounted the events surrounding the fight consistently with the other witnesses
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at trial. About the actual shooting, Mr. Campbell stated that the group was walking from 

the backyard toward the car parked in front of the house to leave when he heard a 

gunshot and began running. Up until this time, Mr. Campbell had not seen anyone with a 

gun. In his statement to the police, Mr. Campbell reported that, as they were leaving, the 

Defendant ran to his garage and retrieved a gun. When Mr. Campbell saw Mr. Smith on 

the ground, he went to Mr. Smith to provide assistance.

On cross-examination, Mr. Campbell testified that after Mr. Smith dislocated the 

Defendant’s shoulder, Mr. Campbell held Mr. Smith back from “going at” the Defendant. 

Mr. Campbell agreed that Mr. Smith did not want to stop fighting and that the Defendant 

was “extremely emotional.” On redirect examination, Mr. Campbell agreed that in his 

statement to the police he said that, as everyone was leaving, the Defendant went inside 

his car, retrieved the gun, and began shooting. Mr. Campbell denied that he ran away out 

of fear. He stated, “The only reason why I was running away because I heard the shot.” 

He explained that he was not fearful because the shooter “really wasn’t pointing my

way.” Mr. Campbell agreed that the group was “close” in proximity to one another when 

the shooting began. 

Mr. Smith testified that the Defendant shot him on January 21, 2017. He recalled 

arriving at the Defendant’s house where the Defendant was waiting in the front yard. The 

Defendant ordered him to “[g]et out the car,” and Mr. Smith complied. Mr. Smith stated 

that he did not want to fight, but he believed that he had to fight the Defendant “cause 

[he] was there.” Mr. Smith stated that he did not have a gun and, initially, did not see the 

Defendant with a gun. The group moved to the backyard where the Defendant and Mr. 

Smith began to fight. After a few minutes, the others present tried to “break it up.” 

Mr. Smith testified that, while the others gathered to help the Defendant put his 

shoulder back in place, he began walking to the car to leave. As he walked toward the 

car, he heard “everybody saying . . . don’t shoot him.” The others began running to the 

right, leaving Mr. Smith alone standing near the car. Mr. Smith began running to the left 

and heard a bullet whizz past his right ear. In a panic, Mr. Smith thought of falling to the 

ground so that the Defendant might believe he had been shot. A second bullet went past 

him and then the third bullet hit him in the back, and he fell to the ground. Mr. Smith 

tried to push himself up off the ground but was unable to do so because the bullet had hit 

his spine leaving him paralyzed. 

Mr. Smith looked over to see if the Defendant was approaching to shoot him 

again, but the Defendant did not fire his gun again. Instead, the Defendant went back 

inside the garage. Ms. Flagg ran over to Mr. Smith to offer assistance and called Mr. 

Smith’s mother at his request. Mr. Smith described learning that he was permanently 

paralyzed at the hospital and the ensuing depression. He explained that he was an active 
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twenty-year-old at the time of the shooting and now has had to learn to adapt his life 

around his inability to walk. Mr. Smith said that he attended therapy three times a week 

and had a monthly appointment with his physician. He explained his “bowel training” to 

the jury and said that he was more susceptible to “UTIs” since the injury. He testified 

that his life had changed significantly due to his injuries but that he was “learn[ing] how 

to deal with it better.” 

On cross-examination, Mr. Smith agreed that he had three convictions for theft. 

He denied being under the influence of an intoxicant at the time of the fight although he 

agreed that he had been “partying” the night before the shooting. 

Samuel Crews, a Shelby County Sheriff’s Office detective, testified that he spoke 

with the Defendant at the scene. The Defendant indicated where inside the house the 

gun, a .380 caliber handgun, was located, and officers found the gun underneath some 

insulation in an unfinished closet in the Defendant’s bedroom. A shell casing was also 

collected from the western side of the driveway approximately ten-feet behind a vehicle 

parked in front of the Defendant’s residence.

Erika Watson, the Defendant’s mother, testified for the defense. She recalled that, 

at around noon on the day of the shooting, she was leaving the house when the Defendant 

told her he did not feel well. He asked her to take him to the emergency room. Ms. 

Watson told her son to rest and if he did not feel better when she returned, she would take 

him to the emergency room. The Defendant’s sister, Ambria Standback, testified that she 

was home with the Defendant on the day of the shooting. She was in the kitchen when 

she saw a car outside and five people walking up to their front yard. Ms. Standback went 

upstairs and asked the Defendant if he knew the people outside in the front yard, and the 

Defendant went outside. Later, Ms. Standback observed the Defendant and Mr. Smith 

fighting in the backyard. When they finished, she went to her room. Shortly thereafter, 

she heard gunfire, looked out the Defendant’s bedroom window, and saw “the boy laying 

on the ground.” She called her mother. 

After hearing the evidence, the jury convicted the Defendant of attempted second 

degree murder, aggravated assault, employing a firearm during the commission of a 

dangerous felony, and reckless endangerment. At a subsequent sentencing hearing, the 

trial court merged the Defendant’s convictions for attempted second degree murder and 

aggravated assault and imposed an effective sentence of eighteen years in the Tennessee 

Department of Correction. It is from these judgments that the Defendant appeals.
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II. Analysis

On appeal, the Defendant contends that the evidence is insufficient to sustain his 

convictions. When an accused challenges the sufficiency of the evidence, this Court’s 

standard of review is whether, after considering the evidence in the light most favorable 

to the State, “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); see

Tenn. R. App. P. 13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing 

State v. Reid, 91 S.W.3d 247, 276 (Tenn. 2002)). This standard applies to findings of 

guilt based upon direct evidence, circumstantial evidence, or a combination of both direct 

and circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. 

App. 1999) (citing State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990)). In the 

absence of direct evidence, a criminal offense may be established exclusively by 

circumstantial evidence. Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973). “The jury 

decides the weight to be given to circumstantial evidence, and ‘[t]he inferences to be 

drawn from such evidence, and the extent to which the circumstances are consistent with 

guilt and inconsistent with innocence, are questions primarily for the jury.’” State v. 

Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting Marable v. State, 313 S.W.2d 451, 457 

(Tenn. 1958)). “The standard of review [for sufficiency of the evidence] ‘is the same 

whether the conviction is based upon direct or circumstantial evidence.’” State v. 

Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 

275 (Tenn. 2009)). 

In determining the sufficiency of the evidence, this Court should not re-weigh or 

reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 

1990). Nor may this Court substitute its inferences for those drawn by the trier of fact 

from the evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999) (citing Liakas v. 

State, 286 S.W.2d 856, 859 (Tenn. 1956)). “Questions concerning the credibility of 

witnesses, the weight and value to be given the evidence, as well as all factual issues 

raised by the evidence are resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 

659 (Tenn. 1997). “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). The Tennessee 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 
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atmosphere and the totality of the evidence cannot be reproduced with a 

written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 

523, 527 (Tenn. 1963)). This Court must afford the State of Tennessee the “‘strongest 

legitimate view of the evidence’” contained in the record, as well as “‘all reasonable and 

legitimate inferences’” that may be drawn from the evidence. Goodwin, 143 S.W.3d at 

775 (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of 

guilt against a defendant removes the presumption of innocence and raises a presumption 

of guilt, the convicted criminal defendant bears the burden of showing that the evidence 

was legally insufficient to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516, 

557-58 (Tenn. 2000) (citations omitted).

A. Attempted Second Degree Murder

The Defendant asserts that the evidence is insufficient to support his conviction for 

attempted second degree murder because of Mr. Tellis’s testimony that, after shooting 

Mr. Smith, the Defendant stated, “I could have killed you but I didn’t.” The State 

responds that the evidence showed that the Defendant was aware that firing a gun 

multiple times at Mr. Smith was reasonably certain to kill him. We agree with the State.

Second degree murder is defined as “the knowing killing of another.” T.C.A. § 

39-13-210(a)(1). “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.” T.C.A. § 39-11-302(b). A person attempts to commit second degree murder 

when he or she acts with intent to knowingly “cause a result that is an element of the 

offense, and believes the conduct will cause the result without further conduct on the 

person’s part” or acts knowingly “to complete a course of action or cause a result that 

would constitute the offense, under the circumstances surrounding the conduct as the 

person believes them to be, and the conduct constitutes a substantial step toward the 

commission of the offense.” T.C.A. § 39-12-101(a)(2)-(3).

The evidence, viewed in the light most favorable to the State, showed that the 

Defendant instigated a fight with Mr. Smith at his residence. The Defendant hostily 

approached Mr. Smith and ordered him out of the car. In the Defendant’s back yard, Mr. 

Smith beat up the Defendant, resulting in the dislocation of the Defendant’s shoulder. 

Humiliated by the loss, the Defendant obtained a gun from his car and began firing it as

the group returned to Mr. Tellis’s car to leave. The group scattered, leaving Mr. Smith 

alone by the car. Mr. Smith, who was unarmed, began to run from the gun fire. Two 

bullets came close to hitting him with the third striking him in the spine, leaving him 

permanently paralyzed. This evidence is sufficient to show that the Defendant fired his 
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gun at Mr. Smith repeatedly until Mr. Smith was hit, a substantial step toward the 

knowing killing of Mr. Smith and then ordered Ms. Flagg to remove Mr. Smith “off [his] 

street.” From this evidence, a rational jury could conclude that the Defendant 

intentionally engaged in conduct that could have resulted in the knowing killing of Mr. 

Smith.

As to Mr. Tellis’s testimony about the Defendant’s post-shooting statement, “I 

could have killed you but I didn’t,” we note that it is the jury’s prerogative to evaluate 

and weigh the evidence. Any alleged inconsistent statements and credibility issues were 

brought out on direct examination and underwent cross-examination. The weight and 

credibility of the testimony of a witness and the reconciliation of conflicts in testimony 

are matters entrusted exclusively to the jury. By its verdict, the jury exercised its 

prerogative and chose to accredit the testimony of the other State witnesses and Mr. 

Tellis’s initial statement to the police. It is the jury who is charged with making 

credibility determinations, not this court. Smith, 24 S.W.3d at 278. The proof was 

sufficient for a jury to conclude beyond a reasonable doubt that the Defendant, by 

repeatedly firing a gun at Mr. Smith, knew that his actions were reasonably certain to 

cause the victim’s death. Accordingly, we conclude that the evidence is sufficient to 

support the Defendant’s conviction for attempted second degree murder. The Defendant 

is not entitled to relief. 

B. Employing a Firearm During the Commission of a Dangerous Felony

The Defendant’s conviction for employing a firearm during the commission of, or 

attempt to commit a dangerous felony relied upon the attempted second degree murder of 

Mr. Smith for the dangerous felony element. As such, the Defendant argues that if this 

court finds the evidence insufficient for his attempted second degree murder conviction, 

absent the requisite dangerous felony, the evidence will also be insufficient as to the 

employing a firearm during the commission of dangerous felony conviction. Based upon 

our conclusion that there was sufficient evidence to support the attempted second degree 

murder conviction, we also conclude that there was sufficient evidence to support the 

employing a firearm during the commission of a dangerous felony conviction. The 

Defendant is not entitled to relief.

C. Reckless Endangerment

The Defendant asserts that the evidence is insufficient to support his conviction for 

reckless endangerment because there was no proof that any of the named victims “were 

standing within the [D]efendant’s line of fire.” The State responds that the Defendant’s 

act of firing his gun multiple times at Mr. Smith in the front yard of his house created an 
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imminent risk of death or serious bodily injury to Mr. Tellis, Mr. Campbell, Mr. Dancy, 

Mr. Brown, and Mr. Mull. We agree with the State. 

A person commits reckless endangerment “who recklessly engages in conduct 

which places or may place another person in imminent danger of death or serious bodily 

injury.” T.C.A. § 39-13-103(a). Reckless endangerment committed with a deadly 

weapon is a Class E felony. T.C.A. § 39-13-103(b). “Reckless” refers to a person “who 

acts recklessly with respect to circumstances surrounding the conduct or the result of the 

conduct when the person is aware of but consciously disregards a substantial and 

unjustifiable risk that the circumstances exist or the result will occur.” T.C.A. § 39-11-

106(a)(31). For the threat of death or serious bodily injury to be “imminent,” the person 

must be placed in a reasonable probability of danger as opposed to a mere possibility of 

danger. See State v. Fox, 947 S.W.2d 865, 866 (Tenn. Crim. App. 1996). The “zone of 

danger” is defined as the area in which a reasonable probability exists that the 

defendant’s conduct would place others in imminent danger of death or serious bodily 

injury if others were present in that zone or area. State v. Payne, 7 S.W.3d 25, 28 (Tenn. 

1999).

The Defendant cites State v. Fox, in support of his contention that the State failed 

to prove the named victims in the indictment were within the zone of danger. Fox, 947 

S.W.2d 865. In State v. Fox, the Court of Criminal Appeals considered a defendant’s 

discharge of a weapon into a tree and noted the importance of distinguishing the area in 

which a reasonable probability of harm exists from an area in which a mere possibility of 

harm exists. “This Court has previously recognized the potentially ‘absurd’ and 

‘unreasonable’ results that may arise from permitting prosecution of one discharging ‘a 

weapon under any circumstances where any other human being might possibly be present 

or where a stray bullet might possibly strike another person.’” Id. at 866. The court 

found that simply discharging a gun into the air absent a showing that someone was 

threatened did not constitute reckless endangerment. Id. “The discharge must create an 

imminent risk of death or serious bodily injury to some person or class of persons.” Id.

In the present case, the named victims were walking out to Mr. Tellis’s vehicle to 

leave with Mr. Smith. When the Defendant began firing his gun at Mr. Smith, the others 

fled from the gunfire in differing direction but all were in the front yard with Mr. Smith at 

the time the Defendant opened fire. This is not a case where the Defendant was 

discharging his weapon into the air as in Fox. The Defendant was aiming and shooting at 

Mr. Smith who, along with the named victims, was walking through the front yard to Mr. 

Tellis’s car. Ms. Flagg and Mr. Tellis testified that they were fearful as the Defendant 

fired the gun toward Mr. Smith and that they ran from the gunfire. This evidence 

supports the jury’s findings that Mr. Tellis, Mr. Campbell, Mr. Dancy, Mr. Brown, and 

Mr. Mull were present in the area where the Defendant opened gunfire on Mr. Smith and 
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that the Defendant’s conduct of repeatedly firing his gun at Mr. Smith in the front yard 

created an imminent risk of death or serious bodily injury for these men. The Defendant 

is not entitled to relief.

 

III. Conclusion

For the foregoing reasons, we affirm the trial court’s judgments.

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ROBERT W. WEDEMEYER, JUDGE