### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON Jul y 11, 200 6 S es sio n STA TE OF TEN NES SEE v. RO BER T SM ITH
Direc t Appeal from the Cr im inal Cou rt for Shelby Coun ty No. 02-09026 Joseph B. Dailey, Jud ge

No. W2005-00015-C CA-R 3-CD - F iled Novem ber 3, 2006

Robert Smith, t he def

endant, a ppeals fr om a Shelby

Count y jury conviction for se cond deg ree murder ( Class A felony ). The de fendant was sentenc ed to sixty y ear s as a c are er violent off ender

. I n h is s ole iss ue the de fe nd a nt m a int a ins that th e e vid e nc e do e s not sup po rt his c on vic tio n inthat it was insuffic ient to prove a knowing killing. Afte r re view, we aff irm the judg ment of convic tion. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed
J OHN E VE R E TT W I L L I AMS , J ., delivere d the opinion of the court, in which J ER R Y L. S MI TH and J AM ES C UR WO OD W I TT , J R ., J J ., joined. Robert K. Guibao ( on appea l) and L arry E. Copeland, Jr. (at t ri al), Memphis, Tenne ssee, f or the appellant, Robert Smi th.
Paul G. Sum me rs , Attorne y Ge ne ra l a nd Re po rt e r; Da vid H. F ind le y , A ssi stant A tto rn e y Ge ne ra l; Wil liam L . Gibbons, District Attorney Gene ral; and A my

Weirich, Assist an t District Attorney Gene ral, for

the appe llee, State of Te nnessee
. OP IN ION
The de fendant was indicted on a s i n gl e co u n t of sec ond deg ree murder f or the killing of Anthony Dorsey , Sr. on October

4, 2002. A jury

convicted the defe ndant as c harg ed, and he was later se ntence d to six ty

y ear s imprisonment as a c ar ee r o ff en der. Thedefe ndant’s brothe r, Albert Smit h, was tried jointly

for f acilitation of sec on d d egr ee m u rder and wa s found not g uilty . On appea l, the defe ndant conc edes that the evidenc e could justify a lesser included offense but doe s not support the convicte d offe nse. S pecif ically , the defendant asserts that the evidenc e did not prove the m en s re a o f ak n o wi n g k i l l i n g. When review ing a

sufficie ncy

challeng e on appea l, the standard is “ whether , considering the evidenc e most favor able to the pr osecution, any rational trier

of fa ct could havefound the e ssential elements of the crime bey ond a rea sonable doubt.” State v. Reid, 91 S.W .3d 247, 276 (Tenn. 2002)

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Af te r a ve rd ic t of

g uil t, the bu rd e n s hif

ts t o th e de fe nd a nt to dem on st rat e wh y thee vid e nc e is insufficient to support the ve rdict. Sta t e v. Carruthe rs, 35 S.W.3d 516, 557-58 (Tenn. 2000). On appea l, the State is entitled to the stronge st leg itimate view of the e vidence and to all re asonable and leg itimate infere nces that may be dra wn there from. State v. Smith, 2 4 S.W .3d 274, 279 (Tenn. 2000). Que stions concerning the cre dibilit y of witnesses, the w eig ht and value of the evidenc e, and all fac tual issues raised by the evidenc e ar e re solved by the t rier of fac t, and the re viewing court doe s not re-w eig h or re -eva luate the e vidence . State v. Bla nd, 958 S.W .2d 651, 659 (Tenn. 1997)

. Fa ctual B ackg round
As noted above , on appeal we m u s t v iew the e vidence in the light most favor able to the prevailing party . The State pre sented witnesse s who were present at the t ime when Anthony Dorsey Sr ., wa s f a ta lly sh ot by the de fe nd a nt. Th e ir a c c ou nts we re , inthe ma in, c on sis te nt a s to the e ve nts conce rning the shooting on O ctober 4, 2 0 0 2

. T h o s e individuals present during the offe nse and t e s t i f yi n g f o r t h e S t a t e w e r e : A n t h o n y D o r s e y, J r
. , L a c o tr a B l a i r , T a n e k a

B l a i r , A n t o i n e t t e D o r s e y, Marc us Stephen, Reg inald Sanders, a nd Christine Sanders. Reg inald Sanders wa s the victim’s ne ph e w. Christ ine Sa nd e rs wa s a ne ig hb or wh o li ve d inthea djo ini ng du ple x to th e vic tim a ndhis family . The re maining w itnesses wer e the victim’s childre n. On Octobe r 3, 2002, two eleve n-y ear -old boy s eng ag ed in a f ight. The y

wer e Anthony D o r s e y, J r
. , t h e v i c t i m ’ s s o n , a n d T r a v i s W a t t , t h e s o n o f t h e d e f e n d a n t

. O n t h e n e x td a y, t h e b o ys had anothe r enc ounter in which Tr avis Watt struck Anthony Dorsey , J r., wit h a pipe, c ausing a knot and blee ding. The victim , Dorsey , Sr., was informed of t his by his son, and he f irst rea cted by

say ing that they would settle the matter w ith the school principal on the coming M onday . Anthony , J r., had seen the defe ndant pick up Tra vis W att and his y oung er brother after the October 4 fig ht and leave in a black car with a re d stripe. The vic tim and Anthony , J r., we nt in searc h of the de fendant, but the sea rch w as unavailing and the y returne d home. Anthony , J r., left with his cousin, Regina ld, and they wer e later

picked up by

Marc us Stephen and his frie nd Marcu s Ha l l , ak a “Blac k.” Ha ll was driving Marc us Stephen’s ca r. I n the interim, the def endant, a ccompa nied by

his brother , Albert Smit h, and the de fendant’s two sons, Travis Watt and Marc o, had gone to the vic tim’s residence

. Th e vic tim

me t th e de fe nd a nt i n th e vi cti m’ s fro nt y ardwh e rea dis c us sio n e ns ue d. Th e g ro up in Marc us Stephen’s ca

r ar rived a nd walked towa

rd the a ssembly

in the y ard. The d ef

endant then pu lle d a ha nd g un a ndg ra

bb e d M arc us Ste ph e n, thr e a te nin g to b low his he a d o ff . T he de fe nd a nt a lso or de re d th e g ro up no t to mov e . Re g ina ld S a nd e rs ran to the ho us e , a ndthe de fe nd a nt p ur su e d h im. The victim followed a nd, on the porc h, g rabbe d the def endant, r estraining him from entering the residenc e. The victim a nd defe ndant strug g led until the defe ndant fre ed his arm and beg an firing the g un . T he vic tim

c oll aps e d o n th e po rc h. Th e de fe nd a nt the n f e ll b a c kward fro m th e po rc h, sti ll firing the g un. The defe ndant continued to f ire the wea

pon as he r eg ained his fe et and r an to the ca r. The car , driven by Albert Smit h, then sped away
. Travis Watt sustained a bullet wound to the arm as they wer e esc aping . He state d that he saw an indi vidual emer g e from the victim’s house, shooting a we apon. Albert Smit h stated t hat bot h Marc us Hall and Reg inald Sanders were firing at their c ar a s th e de fe nd a nt’ s g ro up le ft the sc e ne . N on e of the State ’s wi tne sse s a dmi tte d to se e ing a ny on e wi th a g un except the def

endant.-3-

Offic er Ricky

Davison of the Memphis Police Depa rtment crime response unit, t estified that a .9 mm casing was found on the porch and another was found near

the foot of the driveway . Three .32 caliber

casing s were found in the lawn in a straig ht line toward the stre et

. No we apons we re rec overe d, and no ballistic tests were perf ormed.
Tara J ones testified that she dated Albert Smi th in October 2002. A lbert Smith had her ca r on October

4. When she saw her car sever al day s later, it ha d bullet holes in the passeng er side and the passen ger wi n dow was br oken out. On Oc tober 5, she ha d borrowe d a ca r and taken the de fe nd a nt andAl be rt

Smith to a tte mpt

to re nt a c ar. Th e y we re un su c c e ssf ul du e to a fa

ulty c re dit c ard . Sh e the n d e liv e re d th e de fe nd a nt andhis g ir lf ri e ndto a mot e l w he rethe y

re nte d a ro om.
Dr. O. C. S mith, an expert in forensic pathology , assisted in the autopsy of the victim. The victim sustained a sing le g unshot wound that entere d the rig ht si d e o f h i s ch est and e x ited on the back side of the left chest. Powder burns and stippli ng on the victim’s skin indicated that the shot wa s f ired fro m a

dis ta nc e of

tw o f e e t or le ss. Th e vic tim ’s de a th w a s a re su lt o f an in te rm e diate g unshot wound to the chest and a bdomen. The jury , afte r being instructed on t h e elements of se cond deg ree murder and the lesser included off

enses of voluntary manslaug hter, re ckless homicide, and criminally neg lige nt homicide, returne d a g uiltyverdic t as to second de g ree murder.
I n his appea l, the defe ndant conc edes that h o m i cide was proven but c ontends that the evidenc e wa s insufficient to support a knowing killing as re quired for second de g ree murder. Sec ond de g re e mur de r i s a

“ kn ow ing kil lin g of

a no the r. ” T. C.A . § 39 -1 3- 21 0( a )( 1) (1 99 7) . “ A p e rs on a c ts knowing ly

with respe ct t o a result of t he person’s conduct when the person is aw are that the conduc t is reasona bly certain to cause the re sult[ .]” T.C.A. § 39-11-106(a )(20) (1997).
Th e def endant c ontends that the evide nce w as only sufficie nt to support voluntary manslaug hter, c riminally

neg lige nt homicide, or re ckless homicide.
“Voluntary

manslaug hter is the intentional or knowing killing of a nother in a state of passion produce d by

ad eq u at e provocation sufficie nt to lead a r easona ble per son to act in an irr ational manner .” T.C.A. § 39-13- 211(a) (2006). Criminallyneg lige nt homicid eis c rimin ally neg lige nt conduct which r esults in death. T.C.A. § 3 9- 13 -2 12 (a ) ( 20 06 ). Th e c ulp able me nta l st a teis d e fi ne d a s f oll ow s:

“ C r i m i n a l n e g l i g e n c e ” r e f e r s t o a p e r s o n w h o a c t s w i t h c r i m i n a l n e g l i g e n c e wi th respe ct to the circ umstances surrounding that person’ s conduct or the re sult of that conduct whe n the person oug ht to be awa re of a substantial and unjustifiable risk that the circumstances ex ist or t he result will occur
. The risk must be of suc h a natur e and deg ree that the failure to pe rce ive it c onstitut es a g ross deviation from the sta ndard of ca re that an ordinary

person would e x erc ise under a ll the c ircumstance s as viewe d fr om the a c c us e d p e rs on ’s stand po int

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T.C.A. § 39-11-302( d) (2006)

. “Rec kless homicide is a re ckless killing of another .” T.C.A. § 39-13- 215(a) (2006). “Rec kless” re fer s to a person w ho acts re cklessly wit h re s p ec t to circumstanc es surrounding the conduc t or the re sult of the conduct whe n the per son is a war e of but c on sc iousl y

di sre gards a su bs tan ti al a nd un ju st if iab le r is k t hatth e ci rcu mst anc e s e xist or the re su lt w ill oc c ur . T he ri sk mus t be of

su c h a natur e a nd de g re e that it s disreg ard c onstitut es a g ross deviation fr o m t h e s t an dard of car e that an or dinary person would e x erc ise under a ll the circ umstances a s viewed f rom the ac cused pe rs on ’s stand po int

. T.C.A. § 39-11-302( c) ( 2006).
Whether the de fendant’s acts c onstitut e a know ing killing (sec ond deg ree m u rder) or, al ternatively , a lesser

offe nse is a question of f act f or the jury . See State v. Johnson, 909 S .W.2d 46 1, 46 4 ( Te nn . Crim. Ap p. 19 95 ). Th e de g re e of ho mic ide is fo r the jury to d e c ide in l ig ht o f a ll of the fa cts in the case
. State v. Kee ls, 753 S.W .2d 140, 143 (Tenn. Crim. App. 1988) . I ntent can seldom be prove n by

direc t evidence but may

be deduc ed or infe rre d by a juryfrom the c hara cter

of the assault, the nature of t he act, and the circ umstances of the case i n evidenc e. State v. Inlow, 52 S.W .3d 101, 105 (Tenn. Crim. App. 2000)

. I n the pre sent ca se, the jury was pre sented with evide nce that the defe ndant stated to t he victim that he would kill on behalf of hi s son. During the i nitial confr ontation, the victim remaine d calm and attempted to communicate with the de fendant. The def endant g rabbe d Marc us, the victim’s son, and place d the g un to his head while thr ea t en i n g to shoot him . The victim was unarme d at all times. The def endant attempted to enter the victim’s residenc e with t h e we apon draw n until he was pulled bac k by the victim. The def

endant shot t h e victim at close rang e and continued firing the wea

pon afte r fa lling fr om the porch and during his retre at to the ca r.
Th e re wa s e vid e nc e wh ic h str on g ly ind ic a te d tha t shot s we re fi re d at the de fe nd a nt’ s v e hic le and its occupants. Howeve r, no witness stated that these shots wer e fire d until after the vic tim was fata lly wounded a nd the def

endant’ s g roup wa s esca

ping the scene
. The de g ree of homicide wa s strictly within the province of

the jury

. The jury

clea rly reje cted the lesser offe nses. Our r eview, the ref ore, is me rely

to determine w hether

the evidenc e pre sented was suff icient to justify

the conviction for

second de g ree murder. We conclude that the evidenc e wa s sufficie nt and af

firm the judg ment of convic tion.

___________________________________ J OHN EV ERETT WI LL I AMS, J UDGE