# FILED
June 3, 1996 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

STATE OF TENNESSEE, ) FOR PUBLICATION ) Appellant, ) Filed: June 3, 1996 ) vs. ) Madison County ) MARIO LAMONT WILSON, ) Hon. J. Franklin Murchison, Judge ) Appellee. ) No. 02S01-9505-CC -00045 )
For the Appellee : For the Appellant : Hughie Ragan Charles W. Bur son Jackson, TN Attorney General & Reporter Michael E. Moore Solicitor General Michael W. Ca

talano Associate Solicitor General Nashville, TN James G. W

oodall District Attorney General Donald H. Allen Asst. District Attorney General Jackson, TN

O P I N I ON

COURT OF CRIMINAL APPEALS AFFIRMED White, J.1 The state does not challenge, on d

ouble jeopardy

grounds, the dism

issal of Wilson’s conviction for possession of a deadly weapon. Neither the state nor defe ndant briefed or argued any of the issues raised in defendant’s Rule 11 applica tion.
2 A person commits assault who: (1) Intentionally

, knowingly

or recklessly

causes bodily injury to another; (2) Intentionally

or knowingly

causes another

to reasonably fear imminent bodily injury; or (3) Intentionally or knowingly causes physical contact with another and a reasonable person would regard the contact as extremely offensive or provocative. Tenn. Code Ann. § 39-13-101(a)(1991 Repl.). 2 A jury convic

ted defendant, Ma

rio Lamont W

ilson, of three coun

ts of aggravated assault and of felony reckless endangerment and possession of a deadly weapon with the intent to commit a felony.The Court of Criminal Appeals affirm

ed Wilson’s fe

lony reckless e

ndangerment co

nviction and sentence, but reve

rsed and dismisse

d the convictions for a

ggravated assault and possession of a dea

dly weapon. W

e granted perm

ission to appeal to consider whether the Court of Criminal Appeals erred when it dismissed Wilson’s convic

tions for aggravate

d assault. 1 Although we conclude that Wilson’s convic

tions for aggravate

d assault may

not stand, we do not a

dopt entirely the reasoning of the Court of Criminal Appeals. Rather, we aff irm the dismissal of

the aggravated assa

ult charges because

the evidence is insufficient to prove that Wilson intentionally and knowingly caused another to reasonab ly fear imminent bodily injury.
An aggravated assa

ult conviction requir

es proof beyond a

reasonable doubt that an accused committed an assault as define

d in Tennessee Code Annotated Section 3 9-13-101 2 and either (a) int entionally, know

ingly, or recklessly ca

used serious bodily

injury to anothe

r or (b) used or displ

ayed a deadly weapon. Tenn. Code Ann. § 39-13-102(a)(1)(A), (B)( 1995 Supp.).3

The aggravated as sault charges against Wilson were ba sed on accusations that Wilson unlawf

ully, intentiona

lly, or knowingl

y assaulted the vi

ctims by displaying or using a

deadly weapon “

causing [the victim

] to reasonably fear imminent bodily injury. " To establish these charges, the state was required to prove be

yond a reasonabl

e doubt that Wilson in

tentionally or knowingly caused

the victims to f

ear immi nent bodily injur

y by his use or display of a we

apon.
In determining the sufficiency of the evidence on appeal, we are guided by well-established principles . As an appellate court, we m

ust consider the evidenc

e in the light most

favorable to the pr

osecution in determining whether a rational trier of fact could have found the essential elements of the crime beyond a reason able doubt. Jackson v. Virginia , 443 U.S. 307 (1979); State v. Duncan , 698 S.W.2d 63, 67 (Tenn. 1985); T

enn. R. App. P. Rule

13(e). The cre

dibility of the w

itnesses, the wei

ght to be given their testimony, and the reconciliation of conflicts in the proof are matters entru sted to the jury as triers of fact. We cannot subst itute our findings for theirs on

appeal.
These principles a

pply to findings of g

uilt based on direct, circumstantial, or both direct and circumstantia l evidence. State v. Brown , 551 S.W.2d 329,

331 (Tenn. 1977); Farmer v. S tate , 343 S.W.2d 895 , 897 (Tenn. 1961). However, before an accused may be convicted of a criminal offense based upon ci

rcumstantial e

vidence alone, the

facts and circumstances "must be so strong and cogent as to exclude every other reasonable hypothesis save the guilt of the defendant." State v. Crawford ,3 Aris Jones, a frien d of Lamont Johnso

n, testified that he

was also in the hous

e. He was not named as a victim in the indictment. 4 470 S.W.2d 610 (T

enn. 1971). "[A] web of guilt mus t be woven around the defendant from

which [the defenda

nt] cannot escape

and from whic

h facts and circumstan

ces the jury c

ould draw no other re

asonable inferenc

e save the guilt of the defendant beyond a reasonable doubt." Id . at 613. We now apply those long-est ablished princip les to the facts before us.
Two days befo

re defendant fire

d shots at the residenc

e of Kenneth Hodges, Hodges and de fendant had an angry, verb al confrontation. Although the pol ice were called to the scen e, no charges were filed. Two days later, on the day of the shooting at issue here, defendant was involved in an argument w

ith Lamont Johnso

n, Hodges’ close

friend and next door neighbor. Following this argument, Lamont Johnson shot at defendant as defendant drove down Whitehall Street in Jackson, the street on which Hodges’ residenc

e was located.

Short ly afte r 3:00 p.m. on that d ay, Ken neth Hodge s left his h ome leaving his brother, James Hodges, his cousin, Gregory Hodges, and three others, Linda Sa

in, Chandara Hal

ey, and Chequit

a Sampson at the residence. 3 At approximat ely 3:30 p.m ., Chandara Ha ley and Chequita Sampson left with their two children to walk to a nearby store. As they were walking bac

k towards the Hodge s’ home, an older yellow C

utlass Supreme stoppe

d directly in fr

ont of the Hodges’ residence on the oppos ite side of the street.One passenger lea ned across in front of

the driver and4 Witnesses testified that at least eight shots were fired into the house.
5 Neither David Fenner or Turell Robinson were charged. 5 began firing shots at the house. 4 The passenger in the rear seat also fired at the house. Haley identifi ed defendant as the p assenger in the fron t seat, David Fenner as the

driver, and Ture

ll Robinson as the passe

nger in the back seat. 5

When the first sho

ts were fired,

James Hodges w

as in the rear of th

e house. Linda Sain was in the bedroom . Greg Hodges was in the living room. Just bef

ore the first shots w

ere fired, Gr

eg Hodges looked out the front door. The st

ate relies on these

facts to establish th

at defendant committed

aggravated assault
. The state has proved beyond a reasonable doubt that defendant fired the shots and that the victims reasonably feared imminent bodily injury. That, however,

does not end the inquiry . In addition to those two elements of the offense, known in common-law parlance as the actus reus, or crim inal act, the aggravat

ed assault statute r

equires proof of cr

iminal intent,

or mens rea. That crim

inal intent requires

that defendant act either intentionally or knowingly. By

requiring that the a

ct be either intenti

onally or knowingl

y committed, the legislature h as required the sta

te to prove an elem

ent in addition to the mere vol untary commission of the criminal act.

One acts intentiona

lly “with r

espect to the nature

of the conduct or to a result of the conduct when it is the person’s conscious objective or desire to engage in the conduc

t or cause the resul

t.” Tenn. Code A

nn. § 39-11-6

302(a)(1991 Repl.) . A person acts kno wingly when, with respect to a r esult of the person’s co

nduct, “the per

son is aware that th

e conduct is reasona

bly certain to cause the result.” Id . at (b). The i ssue for our determ ination is whether the facts support a conclusion beyond a reasonable doubt that defendant intentiona

lly or knowingly

caused the victim

s to fear imm

inent bodil y injury.
The state’s argument in this case demonstrates some confusion. T hey vehemently argue that aggrav ated assault is not a “specific intent” crime. Commentat

ors have noted the conf

usion engendered by

the use of the phrase “specific intent” since “[a]ny specif ically required actual intent other than to do the deed which constitutes the actus reusof the particular crime, is unquestionably a special mental element; but not every special m ental element is a specific intent in the true sense of the word ‘intent’.” R. Perkins, Criminal Law 751 (19 69)(hereafter Perkins , supra , at _____). Nonetheless, we

have generally

used the general inte

nt - specific intent nomenclature i

n Tennessee. Th

e aggravated assau

lt statute, howeve

r, is
more correc

tly character

ized as a statute r

equiring proof of a sp

ecial mens rea, since it re

quires proof of a m

ental element

beyond the m

ere doing of the criminal act.
The state’s argument seems to m erge the separate concept of mens rea (or special mental element) with t he issue of specifica lly intended victims. For example, the state, in suggesting that the aggravated assault statute does not require a finding

of specific intent,

observes:7 that is to say it is

not necessary f

or the state to prove that the defen

dant intended to assaul

t a specific person wh

o was assaulted. While the state’s contention that they are not required to prove that defendant intended to

assault “a spec

ific person who wa

s assaulted” is correct, its contention that aggravated assault does not require proof of a special mental element is not
.

The subsection of the

aggravated assault

statute at issue in thi s case requir es proo f of eit her of t wo spec ified men tal ele ments. St ated di fferent ly, in addition to establishi

ng that defendant volun

tarily did the cr

iminal act, the statute requires proof of one of two mental elem

ents, either intent

ionally or knowingly. I

n offenses requirin

g proof of a special

mental elem

ent, the intent is an essential

element of the

offense which m

ust be alleged and proved by the prosecut ion. Perkins, supra , at 762-64. Whe n the definition of a crime re

quires that a defend

ant act knowingly

or intentionally,

the burden of proof is on th

e prosecution to prove

the mental ele

ment of knowledge beyond a reaso nable doubt. See J. Miller, Criminal Law § 17, at 57 (1934).
The aggravated as sault statute under w hich the state seeks conviction of defendant requir

es that the state pro

ve either that defe

ndant shot into the Hodges’ home

(a) for the purpose

of causing the victim

s to fear imm

inent bodily injury

(intentionally)

or that defendant w

as (b) aware tha

t the shooting would cause the victims to fear imminent bodily injury (knowingly). Proving one or the othe r of these alterna

tive mental ele

ments6 The evidence establishes that Ken Hodges’ automobile was not present at his residence.
7 A further example

is present within th

e facts of this ca

se. When Lamon

t Johnson shot at defendant as he drove down Whitehall Street, evidence of each of the elements of aggravated assault was present. If Johnson had fired into defe ndant’s house not knowing whether he was inside, and had not actually injured any one, sufficient evidence would not be present to sustain an aggravated assault conviction. 8 is not the same a

s proving that defenda

nt intended to assault a

specific person that was assa

ulted.
Turning to the fact

s of this case, we

find that the state f

ailed to establish the requisi

te mental elem

ent of this crim

e beyond a reas onable doubt . In orde r to est ablish that de fendan t acted knowin gly or in tentio nally, the proof would have to establish that defe ndant was aware

that persons were ins ide the Hodges ’ reside nce at t he time o f the sh ootin g. Obvi ously, defendant could not shoo t for the purpose of causing fear or shoot w ith the reasonable certainty that fear would be caused absent an awareness that someone was inside.
The state poses tw

o arguments for

the purpose of satisf

ying their proof requirem

ent of mens rea. First, the stat e argues that the pr

evious altercations with Kenneth Hodges and L amont Johnson esta

blish an intent to harm these tw

o individuals. Defe

ndant’s intent to ha

rm these individu

als, however, does not establish the mens rea for aggravated assault since there is no proof that defen

dant thought either of the two were in the Hodges’ residence 6 at the time of t he shooting. 7
The state’s second argument focuses on the presence of Gregory Hodges at the time of the shooting. The state contends that since he was8 The photograph s show that the windo

w in the interior do

or and the glass

in the storm door are both completely shattered. 9 “right in the fr

ont door,” defendan

t must have seen him, thereby making defendant aware that a potential victim was inside. If the evidence established that defendant saw Gregory Hodges (or anyone, for that matter ) inside or around the house, the state would be correct. The evidence, however, does not establish that fact.
Gregory Hodges testified that he w as standing “righ

t in the front door” of the house between the closed glass storm door and the half-open wooden door. As he

turned to leave, H

odges testified that h

e heard shots and breaking glass. Gregory Hodges saw Chandara H aley approachi

ng the house, but he did not see

the yellow Cutl

ass. He was a “

couple of feet” from the door when he heard the first shots. Fortunately, he was not injured in any way and was not struck by flying glass. T he demonstrative evidence in the record - photographs - support a conclusion that the interior and storm doors were closed w

hen the shots were f

ired. 8 Had Hodges been sta nding between or at the t

wo doors at the m

oment of the shots , he could not have escape d injur y.

The shots were fi

red on a Tuesday

afternoon. Neit

her Lamont Johnson nor Ken Hodges , defendant’s a ssumed targets,

were present in t

he area. Ken Hodg

es’ automobil

e was gone as well . No testimony pointed to any facts - lig

hts, noises, or othe

r signs - which woul

d indicate to a passer

by that the house was oc cupied.9 Wilson was sentence d to two year

s for felony

reckless endan

germent. The tr

ial court ordered him to serve eleven months and twenty-nine day s with the remainder to be served on intensive probation. 10 Without question, de

fendant acted rec

klessly and crim

inally. Had t

he destructive shots str

uck anyone, def

endant could have bee

n convicted of aggravated assault under Tennessee Code Annotated Section 39-13-101(a) (1)(1991 Repl.) w

hich includes the m

ens rea of reckle ssness. Tenn. Cod e Ann. §§ 39-13-101( a)(1) & 39-13-102(a)(1 )(A)(1991 Repl. & 1995 Supp.). Additionally, a

s this opinion and that of

the Court of Crim

inal Appeals recognizes, defe

ndant’s conduct cons

titutes the offense of felony reck less endangerment. Tenn. Code Ann. § 39-13-103(b)(19 91 Repl.).

The statute under w

hich the state opted to

prosecute defenda

nt required t he state to establis h beyond a rea sonable d oubt that defendant ’s conduct was intention

al or knowing, as de

fined by the cri

minal code. T

he proof that the occupa

nts were justifi

ably fearful for their lives, w hile essential to establis

hing the actus reus of

the offense, does not establish in any way the

requisite mens

rea. For these r

easons, we affi

rm the rever

sal of defendant’s thre

e convictions for agg

ravated assault and

dismiss those charges. The re

mainder of the

Court of Crim

inal Appeals’ de

cision, including the affirm

ance of the reckless endangermen t conviction and sentence 9 and the dismissal of th e weapons charge, is no t altered.

__________________________________ Penny J. White, Justice

CONCUR:11

Birch, C.J. Drowota, Ander

son, Reid, J.J.