### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON Jul y 12, 200 6 Se ss io n

STA TE OF TEN NES SEE v. AN DR E D OTSON

Crim inal Cou rt for Shelby Coun ty Nos. 04-00868; 04- 00869; 04-00870; & 04-00871 Jose ph B . Dailey, Judge

No. W2005-01594-C CA-R 3-CD - F iled Novem ber 29, 2006

J OHN E VE R E TT W I L L I AMS , J
., d i s s en t i n g.

Th e ma jority c on c lud e s th a t th e re wa s in su ff ic ie nt e vid e nc e that vi c tim Cr a in w a s “ pu t in fe ar. ” Th e ma

jority c on c lud e s that Mr

. Cr a in dis a vo we d be ing “ in fe ar. ” I simply dis a g re e . Wit ne ss Ke vin Yo un g , M r. Cr a in’ s a ssi sta nt w ho c a me fr om i ns ide the sto re , te sti fi e d th a t Mr . Cr a in t oldhim he wa s being robbed a nd to call the police, w hich M r. Young did. Mr. Crain desc ribed how a man jumped into his t ru ck and orde red him to the fr ont of the truck. Mr . Crain desc ribed that he was

“ a ng ry ” thi s w a s h app e nin g to h im. He didno t li ke be ing “ ba c ke d in to a c or ne r at a ll. ” Mr . Cr a in offe red n o r e s is ta n c e a n d s o me h o w e xit e d th e tr u c k

. St il l a n g r y ab o u t w h a t w a s h ap p e n in g , Mr. Crain attempted to close the door and loc k the def endant inside. When the de fenda nt saw Mr. Crain’s attempt or “ca

ug ht him,” the defe ndant threa tened to shoot Mr. Crain. Mr. Crain believe d the def endant wa s arme d and saw the defe ndant rea ch for his pocket or be lt line. Mr. Crain testified “the re was too m uch thing s g oing thr oug h my mind at the time to actually mentally g et a g ood pic tur e .” Mr . Cr a in c ou ld n ot i de nti fy the de fe nd a nt.

Th e ma jority c on c lud e s that “ [i]f a vic tim is pu t in f e ar b y the a c tio n o f a

de fe nd a nt, a t so me point the victim’s testimony should e stablish that he was afr aid.” I conclude that the victim’s actions
sp ok e lou de r tha n h is w or ds

.
First, he de serted a

truck full of mercha ndise that he was char g ed with delivering . Second, he wa s mad at wha t was happe ning to him. Third, Mr. Cra in w as as k ed if he wa s in fear of the defe ndant’s ac tions and his answe r was: “I rea lly wasn’t afra id. I was more conce rned – the fac t that if something ha

ppened to me, my

kids would be without a fathe r.” This stateme nt can only be i nterpre ted as one of conte mplation of his death. Even if it is not an admission of fe ar, it is the
pr e c ise e vil wh ic h o ur

sta tut e se e ks to for bi d; to t a ke pr op e rt y by thr e a te nin g c a ta str op hic
conseque nces f

or noncomplianc e with the unlawful demand. Fourth, he rec eived a direc t threat fr om the def endant that h e wo u l d be shot. Fifth, he told his assist ant he wa s being robbed a nd call the police.-2-

Clearly , any

rea sonable man w ould be in fea r under these circumstance s. Mr. Crain appe ars to be a rea sonable man, eve n though his testimony was somewha

t equivocal whe n asked point blank if he was afr aid. Nonethe less, I conclude the jury

possessed enoug h testimonyto properly conclude that the victim was plac ed in fe ar. F ear is the o n l y rational e x planation for Mr . Crain’s stateme nt to his assistant, deserting the truck, be ing a ng ry , and conte mplating de ath.

____________________________________ J OHN EV ERETT WI L L I AMS, J UDGE