### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE May 2000 Session
STATE OF TENNESSEE v. CHRISTOP HER BENGTSON Direct Appeal from the Criminal Court for McMinn County Nos. 97-612, 97-613, 97-614 R. Steven Bebb, Judge

No. E1999-01190-CCA-R3-CD October 2, 2000 The defendant, Christopher Bengtson, was convicted by a McMinn County jury of three counts of reckless endangerment committed with a deadly weapon, a Class E felony . In this appeal

as of right, the defendant raises two issues: (1) whether the evidence was sufficient as a matter of law to support the verdict; and (2) whether the trial court erred in failing

to merge th

e three c ounts into o

ne. We conclude that the evidence was sufficient a

s a matte r of law for the jury to conclude beyond a reasonable

doubt that the defendant was guilty of felony reckle ss endangerment. We agree with the defendant and the State that the threecounts constituted a single course of conduct and should have been merged i

nto one. We

thereforeaffirm the felony reckless endangerme nt conviction for count one of the indictment but vacate the convictions for counts two and three. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed in Part, Vacated in Part
A L AN E. G LENN , J ., delivered the opinion of the court, in which T HOMAS T. W OODALL and J OHN E VERETT W ILLI

AMS , JJ., joined.
Julie A. Rice, Contract Appellate Defender (on appeal); Charles M. Corn, District Public Defender; and William C. Donaldson, A ssistant Public

Def ender (at trial) for the appellant, Christopher Bengtson.
Paul G. Summers, Attorney General and Reporter; R. Stephen Jobe, Assistant Attorne y General; Jerry N. Estes, District A

ttorney Ge

neral; and Ri

chard C. Ne wman, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
The defendant, Christopher Bengtson, was indicted by a McM i nn County Gra

nd Jury in October 1997 on three counts of

aggravated

assault. A jury convicted him on January 12, 1999, of three counts o f

the lesser-inclu

ded offense of r

eckless endang

erment committed w

ith a deadly1 Bounty hunting in Tennessee is defined a nd regula

ted by Tennes see Code Annota ted Secti on 40-11-318. The law went into ef fect on May 18,

1998, and therefo re does no t apply here. T he defend ant’s offens e was commit ted on September 16, 1997. According to this new law, “[n]o person who has been ‘convicted of a felony’ s hall serve as a bounty hunter in the stat e of Tennessee.” Tenn. Code Ann. § 40-11-318 (b) (Supp. 1999). -2- weapon, a Class

E fel ony. He was sentenced as a Range I, standard offe nder to two years on each count, with senten

ces to be served

concurrently

, on probation, af

ter sixty day

s in jail. The defendant, in this appeal as of right, raises two issues for our review:
I. Whe therthe evidence was sufficient as a matter of law to support the verdict; and
II. W hether

the trial court er

red in refusing

to dismiss co unt s two and three of the indictment as they were

part and parcel of one act.
Ha ving reviewed the entire record, we conclude that the evidence adduced a ttrial wa s sufficient as a matter of law

to convict the def

endant of felony

reckless endan

germe nt. As to t he defendant’s second issue, we agree that the three convictions should have been merged into one. Therefore, we affirm the co nviction for rec

kless endangerment with a deadly weapon of Katherine Martin in count one but vacate the convictions for counts two and three.
FACTS
The evidence presented at trial shows that the defendant, a

then thirty-five-year-

old former Marine from Minnesota, mo ved in May of

1996 to Riceville, T

ennessee, and w

as emplo ye d as a factory worker in Etowah. Thedefendant testified that he was also a bounty hunter as a “pasttime [sic], as a hobby.” 1 He lived in a trailer home off County Road 701 not far from the resid ence of James Wyatt,

one of the three victims. Thedefendant received a bounty hunting assignment fr om Bill Henry of Bill Henry B onding to apprehend Vance Martin, a friend of Jam es Wyatt. The defendant’s contact with Bill Henry was through Chad Swafford, who was associated with Henry in the bonding busi

ness.
On the evening of September 15, 1997, based on information that Vance Martin was stay ing at the residence of James Wyatt, the defendant set out for the Wy

att home. He did not approach the residence immediately but used his standard technique of starting at another nearby residence and loudly claiming to be hunting for h is lost dog, e mpty dog ch ain in hand. Wy

att apparently

came outside of his residence and the defendant assumed

that Wyatt wa

s Martin because

the two men fit similarphysical descriptions. The defendant proceeded to follow his practice of shaking hands and then putting a hold on that “pinches their finger and it hurts very bad.” The defendant then twisted Wyatt’s arm into an elbow lock, and after securing both of his hands behind his back, put them in handcuffs. The dog chain then was hooked through the handcuffs and wrapped around Wya tt’s left-3-

thigh with the leather handle in the defendant’s hand. In this way , the defendant

walked Wyat

t to a Mr. Zip store some quarter of a mile a way, onl y to discover, after calling Swafford, that he had apprehended

the w rong person. The defendant testified that Wyatt was fine about what had happened and evenoffered him a beer. Apparently Wy att was not “fine,” and later in the evening stopped the defendant, w

ho had returned t

o Mr. Zip’s, thre

atening him and te

lling the defend

ant to stay away from him and that he now kne w where the defendant lived.
On the following morning , September 16, 199

7, the defendant

thought he saw Ma

rtinriding
a motorcycle and called Swafford to let him know and to get Swafford to call the sheriff’s deput ies. The defendant also a

sked Swafford to

lend him a police dog, which Swafford refused to do, and then to lend him a shotgun, which Swafford agreed to do. The defendant claimed to need protection from Wyatt.
Later

that same day, around noon, the defendant retur

ned to the Wya

tt residence, this

time witha loaded shotgun. The defendant claimed

that he was returning to Wyatt’s house just to identify the motorcycle he had seen, a nd that he had given up the hunt for Martin. Nevertheless, the defendant parked his truck down the road from Wyatt’s residence and walked up the road, not only withthe shotgun but wit

h the bounty

papers for Martin. The defendant was sitting on the porch of a neighbor’s residence, talking, when he saw a car pull into the driveway at Wyatt’s residence.
Whathappened next is highly disputed. Nevertheless, it is undisputed that the passengers in the car included

Wyatt and Mr. and Mrs. Martin, the parents of Vance Martin. The elder Martins were taking Wyat

tto retrieve clothes from his house because Wyatt, himself in trouble with law, no longer felt safe there.
The defendant’s version of the events is one in whi

ch he seeks to

calm Mrs. Martin, assuring h er that he is not there to cause any trouble, while holding the shotgun in a benig n, “port arms ” position. The elder Martins re lated a dramatically different version, one in which the defenda nt waved the shotgun at them, profanely shouted at them to get out of the car, and demanded, “Where’s he at, I want him.” Corporal Joe Guy with the McMinn County Sheriff’s Department testified that he was c alled to the Wyatt residence at the time the above events were taking place. Guy arrived alone, in uniform and in a squ ad car. He tes tified furt her to the fo llowing:

As I turned

up on County Road 701 off of 725 I could see there was
a field that was behind that trailer, and I could [see] up to the residence there where the parties were standing, and I could se e then that there was a ge

ntleman there wit

h a sh otgun, or w ith a weapon, and so I turned my vehicle up and pulled up in the driveway. I parked at an angle. I wasn’t sure

what I had

exactly and I

parked at an ang

le to protect myself from

anything that might go on, I re ally didn’t know what was happening. The gentleman still had the weapon pointed at-4- the other three subjects that were standing in the area there between the car and the house . I ordered t he su bject to drop his weapon. I drew my weapon. A

gain I didn’ t know exactly what w as going on. The first two or three times I ordered him to d rop the shotgun he didn’tdo anything. Finally the third time he dropped the weapon and I approached him and secured the weapon.
ANALYSIS I. Sufficiency of the Evidence
The defendant argues that the evidence presented in its entirety and as containedin the record is insufficient to support the verdict of the jury , finding h im guilty of reckless endangerment committed with a deadly weapon.
In considering this issue, weapply the rule that where sufficiency of the convicting evidence is challenged, the

relevant question of the reviewing court is “whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the esse ntial elementsof the offense charged beyond a rea sonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). See also State v. Evans , 838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson , 835 S.W.2d 600, 604 (Tenn. Crim. App.), perm
. app
. denied(Tenn. 1992); Ten n. R. App. P . 13(e) (“Findings of guilt in criminal actions whether by the tria l court or jury shall be set aside

if the evidence i

s insufficient to

support the findings by the trier of fact of guilt beyond a reasonable doubt.”). All questions involving the credibility of witnesses, the weight and value to be given the evidence, and all factua l i ssues are resolved by the trier of fact. See State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App.), perm
. app
. denied(Tenn. 1987). “A guilty verdict by the jury, ap

proved by th

e trial judge, a

ccredits the test

im ony 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). Our 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 fac e to face, hear their testimony and observe their demeanor

on the stand. Thus the trial judge and jury are the primary inst

rumentality

of justice to dete

rmine t he weight and credibility

to be g iven t o the t estim ony of w itnes ses. In the tri al forum alone is there human atmosphere and the totality of the evidence canno

t be reproduced

with a written rec

ord in this Court.
Bolin v. State

, 405 S.W.2d 76 8, 771 (Tenn . 1966) (cit ing Carroll v. State , 370 S.W.2d 523 (Tenn. 1963)). A jury conviction removes the presumption of innocence with which a defendant is ini

tially cloaked and replaces it with one of guilt, so that, on appeal, a convicted de fendant has the burden of demonstrating that the evidence is insufficient. See State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982).-5-

The defendant was convicted by a jury of reckless endan

germent committe

d with a deadly weapon. Reckless endangerment is defined in Tennessee Code Annotated Section 39-13-103 in the fol low ing w ay:
Reckless

endangerment. — (a) A perso n commits an offense who recklessly engages in conduct

whi ch places or may place another pers on i n im min ent dan ger o f dea th o r se rio us b odi ly in jur y. (b) Reckless endangerment is a Class A misdemeanor; however, reckless endangerment

committed with a de

adly weapo

n is a Class E fel ony.
The defendant argues that the State failed to prove that he recklessly engaged in conduct that “places or may

place another person in imminent danger of death or serious bodily injury

,” because what he did only involved “handling or pointing a loaded gun with the safety on in the v icinity of three peo ple ” and did not crea te a ny d anger o f death or seriou s bodily injur

y. In sup port of his argument, the defendant re

lies on two Tenness

ee cases. He ci

tes State v. Fox , 947 S.W.2d 865 (Tenn. Crim. App. 1996), pointing to the fact that in Fox the defendant actually fired a weapon and this court dismissed the conviction, while the defendant here only held a weapon with the safety on. The analogy to Fox is misplaced. The reckless endangerment with a deadly weapon charge in Fox was dismissed beca

use there were no people anywhere near at the time of the discharge of the gun “into the air or up into a tree top.” 947 S.W.2d at 866. The Fox opinion turned on the fact that the statute required that the offe nder e ngage in conduct which places or may plac e another person in imminent danger of death or serious bodily injury and there was no “person.” Tha

t is not the case here, where the defendant pointed a loaded shotgun at a group of three people. In State v. Payne , 7 S.W.3d 25, 28 (Tenn. 1999), our suprem e court, conside

ring “imminent”

as it applied to a re

ckless endangerment

charged, looked to Black’s Law Dictionary 750 (6 th ed. 1990), which defines the term
as “. . . impendin g; on the point of happening; threatening; menacing; perilous.” Referring to the holding of this court in Fox , the court then noted that “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.” Payne , 7 S.W.3d at 28. Taken in the light most favorable to the State, the victims in the case at hand cl early were within the zon

e of danger as

set forth and def

ined in Payne

. The defendant also relies on State v. Wilson , 924 S.W.2d 648 (Tenn . 1996), where the defendant had fired shots int

o a house, not knowing whether anyone was inside.The reckless felony endangerment

conviction in Wilson was sustained both by this court and on appeal to our supr

eme court. The aggravated assault convictions in Wilson were dismissedon appeal becau se the State

had failedto prove that the defendant acted knowingly and intentionally . The State here was not required to prove that the defendant acted knowingly, only recklessly. The defendant’s reliance on Wilson is misplaced. Viewed in a light

most favorable

to the State, the defendant was still determined to capture Martin when he returned, on September 16, 1997, to the Wyatt residence. The defendant had taken-6-

care to hide his presence, had bounty papers with him, and carri ed a loaded shotgun. The three individuals

he ordered out of

the car th at day did no

t include Vance Martin but, instead, included Wyatt, a man he had already mistakenly h

andcuffed and f

orced to accomp

any him, and

the parents of the man he was hunting . It w as t hes e in div idu als he co nfr ont ed w ith a sh otgu n, a ngri ly, aggr ess ive ly, demanding and threatening, asserting that he knew they could lea d him to the elusive Martin. Corporal Guy saw the defendant pointing a shotgun at this gr oup of three individuals and gained control of

the situation only after repeatedly or dering thedefenda

nt to drop h

is weapon . We conclude that the evidence was sufficient for the jury to conclude beyond a reasonable doubt that the defendant created a “re

asonable probability of danger” for the victims and, thus, was guilty of felony reckless endan

germent.
II. Consolidation of Counts
The State agrees that the three convictions for felony re ckless endangerment

s hould be merged into one. In State v. Da vis , 654 S.W.2 d 688, 696 (Tenn. Crim. App.), perm
. app
. denied (Tenn. 1983), this court st ated that, where

a statute prohibits

a “course of co

nduct” as opposed

to individual acts, there can be only one conviction. I

n specifically

addressing reckless endangerment offenses,this court has note d that “the fact th

at the reckless e

ndangerment sta

tute speaks in

terms of a person reckle

ssly engaging in conduct indicates that a course of conduct, comprised of several acts, would constitute the offense.” State v. Ramsey , 903 S.W.2d 709, 713 (Tenn. Crim. App. 1995) (finding only one re

ckless endangerment

offense where defendant’s reckless speeding endang ered passengers in two other vehicles).
We conclude that the evidence was sufficient

for the jury

to conclude bey

ond a reasonable doubtthat the defendant recklessly pointed a loaded shotgun, ang rily and aggr ess ive ly, demanding and threatening, at these victims and in such a manner that there

was an imminent dan

ger of death or serious bodily

injury to thos

e victims.
CONCLUSION
Our review of the entire record leads us to conclude that the ev idence was sufficient a

s a matter of law to convict

the defendant of felony reckless endange rment of Katherine Martin, and we, therefore, affirm the conviction. Having also concluded that the defendant could legally be convictedof o nly one coun t of felony reckless endangerment, the remaining two convictions are vacated.

___________________________________ ALAN E. GLENN, JUDGE