1 For other charges incurred during the defe ndant’s confront ation with the Taylo r family, he also re ceived thirty days for disorderl

y conduct and eleven

months and twenty-nine days for assau lt. All were impo sed conc urrently, with seven days confinement and the remainder on Co mmunity Corrections. 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE July 2000 Session
STATE OF TENNESSEE v. RALPH DEWAYNE MOORE
Direct Appeal from the Criminal Court for Roane County No. 11679 E. Eugene Eblen, Trial Judge

No. E1999-02743-CCA-R3-CD October 30, 2000

The defendant was convicted of re ckless endangerment with a deadly weapon, a shotg un. The defendant assertsthat insufficient evidence supported the verdict against him. We affirm, holding that the defendant’s loading the weapon and recklessly pointing

it at the victim while angry, in such
a manner that death or serious bodily injury was imminent, wer e actions sufficient to constitute the offense of rec

kless endanger

ment whether said

weapon was fire

d or not. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

J OHN E VERETT W ILLI AMS , J., delivered the opinion of the court, in which J OSEPH M. T IPT ON and R OBERT W. W EDEMEYER , JJ., joined.

Joe Walk er, Di stric t Pub lic De fende r, and Walt er B. J ohnso n, II, Harriman, Tennessee (on appeal); Rowland Cowden, Assistant Public Defender (at trial), for the appellant, Ralph Dewayne Moore.

Pau l G . Summers, Attorney General & Repo

rter; Mark A. Fu

lks, Assistant Attor

ney Gener

al; J. Scott McCluen, District

Attorney General; and Roger Delp, Assistant District Attorney , for the appellee, State of Tennessee.

OPINION

Introduction

The defendant, Ralph Dewayne Moore, was convicted by a Roane County

Criminal Court jury of reckless endangerment with a weapon, a Class E felony

. See Tenn. Code Ann . § 39-13- 103(b). He was sentenced as a Range I standard offender to one year, with seven day s in jail and the remainder on Commu nity Correc

tions. 1 He asserts that insufficient evidence supported the-2-

v erdict because the e vidence est ablished n either the d irection o f the weapon ’s discharge nor th e identity of the actual shooter. After careful review, we affirm the conviction. Background According to the trial testimony, Lakisha Tay lor is the daughter of the victim, Irvin Taylor. Lakisha testified that, in September 1996, when she, Nikita Taylor, and a friend were standing under
a tree in the rain a t the Taylors’ residence, the defendant, next door at his uncle’s house, beg an cursing at the girls. The girls entered the Taylor residence, and Lakisha c alled her mother to inquire about the defend

ant. Qui ckl y, Lakisha Taylor’s mother, Sandra Taylor, and her father, the victim, arrived, in that order, at the house. After the victim arrived, he stood on his porch, as the defenda nt entered the victim’s driveway and threatened him. Lakisha testified that the defendant pretended to pull a gun, andthe victim responded by picking up a baseball bat from the ground. Further, she stated that, at the defendant’s request, John Russell, a friend of the defendant, brought the defendant a shotgun. The defendant loaded the weapon and pointed it at Lakisha.

Lakisha testified that when the defen dant pointed a shotgun at her, the victim stepped betweenher and the weapon. She entered her home and then heard a gunshot. She did not see the weapon discharge.

The victim then testified. He statedthat the defenda nt began to curs

e and threaten him when he arrived home. The defendant simulated drawing a weapon and shooting the victim. The victim then picked up a ball bat from the yard and began appr oaching the defendant. He testified that the defendant yelled for John, who brought the defendant a shotgun from a ca r trunk. The defendant loaded it and pointed it at Lakisha. The victim stepped between Lakisha and the weapon and to

ld his daughter to leave. The victim then retreated into his house because he feared being shot. Like Lakisha, the victim did not see the subsequent discharge. On cross-examination, the victim stated that the investig

ating officer

s found neither a s

pent shell casing

nor any shot

gun pellets.

Sandra Taylor, the

victim’s wife, tes

tified that she ar

rived home befor

e the victim. As she exited her car in the driveway, the defendant called her several obscenities and threatened her. She too k her children into the house and left to find her husband. When passing the defendant, she concluded that he had been drinking intoxican

ts. After the defendant brandished the shotgun, she fled to a neighbor’s house to call the police and heard, but did not see, the shotgun discharge.

The defendant was originally charged with

disorderly conduct, a Class A misdemeanor, and two counts

of aggravated assault, a Class C felony. He wa s found guilty of disorderly conduct, of misdemeanor

assault as a lesser- included offense of one aggravated assa ult charge, and of the

instant reckless endangerment as a lesser-included offense of the rema ining aggravated assault charge. Analysis Sufficiency of the evidence-3-

The defendant w

as convicted of r

eckless endang

erment: (a) A person commits

an offense who recklessly engag es in conduct which places or may place a

nother person in

imminent danger of death or ser iou s bo dil y inj ury. (b) Recklessendangerment is a Class A misdemea nor; however, re

ckless end ange rme nt c omm itt ed w ith a dea dly w eapo n is a Cl ass E fel ony. Tenn. Code Ann. § 39-13-103(a)-(b). The defendant asserts that insufficient evidence supported the verdict against him

because none of

the witnesses testified that they saw the shotgun being fired and because the state did not prove that he fired the weapon. Further, the defendant assert s th at, even if he fired the weapon, no evidence establishes that the shotgun was fired at the victim.

When a defendant challenges the sufficiency of the evidence suppor

ting the verdict

against him, our standard of review is whether, after reviewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential ele

ments of the crime beyond
a reasonable doubt. See Jackson v. Virgini a , 99 S.Ct. 2781, 2789 (1979). Questions concerning the credibility

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

factual issues raisedby the evide

nce, are reso

lved by the tri er of fact, not this Court. See State v. Tuttle , 914 S.W.2d 926, 932 (Tenn. Cri m. App. 1995). Nor ma

y this Court re

weigh or re-e

valuate the evidence. See State v. C abbage , 571 S.W.2d 832, 835 (Tenn. 1978). On appeal, the state is entitled to the strongest legitimate view of

the evidence and all inferences therefrom. Id. Because a verdict of guilt
removes the presumption of innocence and replaces it with a presumption of guilt, the accused has the burden of illustra

ting tothis Court why the evidence is insufficient to support the verdict returned by the trier of fact. See State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982).

In part, the defendant alleges that his conviction can not stand because neither ey ewitnes s testimonynor physical evidence established the direction of the discharg e. We disagree . If such evidence established that t he we apon was fired at the victim and not in the air or some other direction, then that evidenc e clearly would support a

reckle ss endang

erment co

nviction. We conclude, however, that the defendant’s fir

ing the weapon w

as not necessari

ly requisite

to conviction.

The statute requires that a defendant’s actions constitute a reas ona ble pro bab ili ty of inj ury, beyond firing a weapo

n into the air

or into a tree top. See State v. Fox , 947 S.W.2d 865, 866 (Tenn. Crim. App. 1996) (“Merely disch arging a weapon , standing alone, i s not sufficient to c onstitute commission of reckless

endangerment

.”); see also Statev. Culbertson , No. 03C01-9412-CR-00449 (Tenn. Crim. App. filed Aug. 30, 1995, at Knoxville) (similar holding when defendant fired weapon into ceiling). Thus, to constitute the offense of reckless endangerment, those actions must endanger
a person or persons in a particular defined area, a “zone of danger.” See State v. Payne , 7 S.W.3d 25, 28 (Tenn. 1999). F

or example, this Cour

t has determined th

at a defendant’ s sh ootin g a dog
across a st reet at n ight , wh en t hat dog w as f ift een t o tw ent y feet from t he victim, was within the vicinity of the victim and constituted the requisite danger. Se e Sta te. v. Steven Willar d Self , No. 03C01-9807-CR-002 (Tenn. Crim. App. filed July 30, 1999, at Knoxville).

The issue of

our statute’s imminence requirement, crucial to this analysis, is demonstrated by contrast with the analogous Model Penal Code section:-4-

A person commits

a misdemeanor

if he recklessly engages in conduct which pla ces or may place another

in danger of death or

serious bodily injury. Recklessness and danger shall be presu

med where a

person knowingly points a firearm at or in the direction of another, whether or not the actor believed the firearm to be loaded. Model Penal Code § 211.2. As noted by the Supreme Court in the Payne

opinion, the relevant Code requires something above the mere possibil ity of danger, and the state must establish imminent threat. See Payne , 7 S.W.3d at 28. For p urposes of the sta

tute, “imminent” is

that which is: Near at hand; mediate rather than immediate; . . . impending; on the point of happening; threatening; menacing; perilous. Som ething which is threaten ing to happen at once, something close at hand, something to happen upon on the instant, close alth ough not yet tou ching, and o n the point of happenin g. Black’s Law Dictionary 750 (6 th ed. 1990), quoted in Payne , 7 S.W.3d at 28).

When we contrast the relevant subsections of the agg ravated assault statute, the original charge, and the reckless endangerment statute, see Tenn. Code Ann. §§ 39-13-102(a)(1)(B), -103(a)- (b), we discern

three signi ficant diff erences. Fir st, the men s rea is “int entional” or “knowing” for the former and

“reckless” und

er the latter. Se

cond, the state

legislature has classified the relevant aggravated

assault as a Class C felony, whereas the instant reckless e

ndangerment c

onstitutes a Class E felony. Fi

nally, one ma

y commit rec

kless endanger

ment without the vic

tim realizing the threat, whereas,under the relevant subsections of the aggravated

assault statute

the victim must apprehend andfear the imminent harm. The reckless endangerment statute therefore forbids and punishe s activities that society

views as dange

rous, independen

t from a victim' s cha racterization or even perceptionof the th

reat. We conclude that th e defendant’s w

ielding the shotg

un in this case
con sti tut ed s uch an ac tiv ity. Comparable with r

ecklessendangerment

, certain simple as saults and agg ravated assault

s requ ire imm ine nce, in t he co nte xt o f th e vi cti m’s reas ona ble fear of b odi ly in jur y, seeTenn. Code Ann. §§ 39-13-101(a) (2), –102. Display of a firearm in

a threateni ng context, even without the weapon actually

being pointed at

a victim, has been

found sufficient

ly indicative of immin

ence to support a conviction for aggravated assault. See State v. Christophe r Max Hall , No. M1998-00180- CCA-R3-CD

(Tenn. Crim. App. filed March 23, 2000, at

Nashville); State v. Gregor y Whitfield

, No. 02C01-9706-CR-00226 (Tenn. Crim. App. filed May 8, 1998, at Jackson). In the instant case, the testimonyestablished that the defendant, in a heated argument and apparently after co nsuming intoxicants, loaded a firearm and pointed it at a minor. He kept the weapon pointed at her father, the victim, when that victim put himself between the muzzle of the weapon and his daughter. Then, as the victim

fled, the weapon was discharged. Further, the weapon was a shotgun, a f irearm that generally fires multiple pro

jectiles in a roughly ci

rcular pattern at short distances, like the short distance involved

in the instant case. At short range, this weapon requires a less precise targeting than other

conventional firearms and is especially lethal. One short stroke of a trigger, in anger or in accident,would have sent the projectiles at the victim. Such a situation and its dire consequences
were imminent and on the very edge of occurrence

. Under these cir cumstances,

such threat can not2 Our prior di scussi on regarding immin

ence notes the significance o f our statute’s com prising that req uirement, contrasted

with the Model

Penal Code ’s omi ssion of suc h requi rement . In a simil

ar vei n, th e Model Pena

l Co d e expressly states

that t he element

s of the offens e may be constituted by pointing a fire arm, l oaded or u

nloaded , at a

vict im. This definitio n of the offense is somewha t broader than our statute, a nd our ho lding does not extend t o unloade d weapon ery. We also note that in State v. Thom as R. Bald win , No. 01C 01-961 2-CR-00 530 (T enn. Crim. A pp. filed July 29, 1998, at Nashv

ille) , this Court did n

ot fin d reckles s endanger

ment est ablishe d by the defe

ndant’s firi ng a weapon
a moment before at an other victim in a nother dire ction. That opinion did not address the defendant's subsequent pointing of the firearm, w ithout firing, at the first victim

. See id.
-5- be condoned in our society and, we conclude, falls under the breadth of this statute. Therefore, the evidence was suf

ficient to prove th

e offense bey

ond a reasonable

doubt. 2

The defendant’s ar

guments also imply

that Jo hn Russell, his friend who brought him the shotgun, actually fired that weapon. Since firing of the weapon was not requisite to conviction, our analysis disposes of this particular concern, but we note the evidence i n the record: After making gestures of firing an imaginary weapon at the Taylors, the defendant requested the we apon, loaded it himself, pointed it a

t Lakisha and I

rving Tay lo r, and, as the family members fled, the weapon discharged. A rational

trier of fact co

uld conclude, bey

ond a reasonable

doubt, that the defendant fired the weapon.
CONCLUSION

We affirm the conv

iction from the tria

l court.

___________________________________ JOHN EVERETT WILLIAMS, JUDGE