### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs D ecember

18, 2001
STATE OF TENN ESSEE v. JOEL M. PUENTES
Appeal from the Criminal Court for Davidson County No. 2000-A-364 J. Randall Wyatt, Jr., Judge

No. M2001-01115-CCA-R3-CD - Filed February 1, 2002

The defenda

nt, Joel M. Puentes, appeals his conviction by a jury in the Davidson County Criminal Courtfor facilitating second degree murder, a Class B felony, for which he re ceived a nine- year sentence. He contends that (1) the indictment is deficient in its allegations regarding homicide, (2) the p roof is insufficient to convict him, and (3) the trial court should have instruct ed the jur y regarding accessory after the fac t as a lesser included offense to homicide. We conc lude that no
error e xists and th at the evidence i s suffici ent. We a ffirm the judgment o f the tria

l court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

J OSEPH M. T IPT ON , J., delivered the op inion of the court, in which T HOM AS T. W OODALL and R OBERT W. W EDEMEYER , JJ., joined.

Ross E. Alderman, D istrict Public Defender; Jeffrey A. DeVa sher, Assistant Public Defender (on appeal); and Amy D. Harwell and Richard Tennent, Assistant Public Defende rs (at trial), f

or th e appella nt, Joel M. Puentes.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney Genera l; Victor S. Johnson, III, District Attorney General; and Dan Hamm and Ana L. Escobar, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

The defendant was convicted for fac ilitating the second degree murder of Jose Folgar Sanchez, who was shot in the pa rking lot o f the Ivy

Woods Apa

rtments in Davidson County on the afternoon of September 20, 1997. Both the vi ctim and the d efendant resided in the apartment complex. The defe ndant’s sufficie ncy argu ment is bas ed upon hi s view of t he eyew itnesses’ testimony about the events. The proof established that the defendant and three others arrived in a
car in the parking lot, went to the defendant’s apartment, and re turned five to ten minutes later. They entered the car, and the defendant was in the driver ’s seat when a shot was fired. The defendant then sped out of the parking lot.-2-

At this point, w e note

that the standard by which we review the evidenc e is in the light most favora ble to the prosecution, and if we conclude that any rational trier of fact could have found the essential elements of the crime beyond re asonabl e doubt, th e evidence is dee

med suff icient to convict. See Jackson v . Virginia , 443 U.S. 3 07, 319, 99S. Ct. 2781, 2789 (1979). This means that the evidence favoring the

state is accredited, and all testimonial conflicts are resolved in favor of the state’s theory. State v. W

illiams , 657 S.W.2d 405, 410 (Ten n. 1983); Statev. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). We, therefore, will rec ountthe evidence that is germane to our standard of review.
Three witnesses testified about what they saw and hea rd in the par

king lot: Os car and

Jose Perez, the victim’s cousins, and Carlos Quintinia, a good friend of the victim. Initially, we note that the witnesses testified through interpreters and that the trial court viewed the tra nslations to be less than ideal. The record supports the trial court’s view.

Oscar Perez testified that he lived in the Ivy Woods Apartments and had known the defenda nt for approximately two years. On September 20, 1997, shortly before 3:00 p.m., he and about

five of hi s friends were standing by the dumpster in the parking lot. He saw the defenda nt in the defendant’s small black car with three men. The car pulled into the par king lot and parked. The men in the car we

nt to the de

fendant ’s apar

tment. In a

pproxima tely ten minutes, the four men came back to the park

ing lot. Mr. Perez testified that one of them was carrying something. Mr. Perez said that the four got into the defendant’s car and he heard someone say “come” or “come on.” Hesaid he then saw something come out of the window and heard a shot. He said that the defendant left right away. He said the victim was going toward the victim’s truck when he got shot. Mr. Perez testified that he saw Carlos Quintinia and his cousin, Jose Perez, on balconies of the apa rtment complex when the shooting occurred.

Carlos Quintinia testified that he had lived in the same apartmen t complex a s the victi m, whom he had known for years. He also knew the de fendant, who was a neighbor of his. He said that on the day and time in question, he was on the balcony of his first-floor apartment. He stated that he saw the d

efenda nt and thr ee other s arrive

in the def

endant’ s black c ar, go to the defendan t’s apartment for about five minutes, a

nd come outside “with something covered” being carried by one of the three men. He said that the defendant and the three men entered the defendant’s ca r when a shot was fired out of a window of the car. The r ecord reflects that he placed the dr iver beside the shooter. He said that the defendant was driving and left the pa rking lot.

Jose Perez te stified th at he live d in the apartment complex and was the defendant’ s neighbor. He was on his balcony when he saw the defendant a nd thr ee men get out

of the car and go to the defendant’s apartme

nt. He said they came out about five minutes later and one person was covering something big that he was carrying. Mr. Perez testified that one person we nt toward a fence but

then returned to the car. All four entered the car, with the d efendant driving. Mr. Perez said that the person beside the defendant did theshooting. He said that before the shooting, the defendant “ca lled them to come where he was,” speaking in the direction of th

e victim. He said that after the shooting, the defendant left right away “smoking the tires.”-3- I. SUFFICIENCY OF THE INDICTMENT

The defendant contends that theindictment upon which he was tried for first degree murder and ultimately convicted of facilitation of second degree murder d i d not allege any degree of homicide, only aggravated assault. The state responds that the indictment sufficiently charged the defendant with first degree murder.

The indic tment cha

rges the defenda nt as follo ws:
JOEL M. PUENTES on the 20th d ay of September , 1997 , in Davidson County, Tennessee and before the find i ng of this indictmen t, intentionally and with premeditation did a ssault the person of Jose F. Sanchez , and said Jose F. Sanchez did theref ore ling er, lan guish and die on November 7, 1997 , in violation of Tennessee Code Annotated §39-13-202, and against the peace and dignity of the State of Tennessee.

The defendant

focuses upon the allegation that he committed an assault upon the victim and argues that such an a

llegation does not st

ate fac ts that con stitute the offense of first deg ree mur der as is required pursuant to Tenn. Code Ann. § 40-13-202. He notes that the indictment r efers to the first degree murder statute, but he argues that refere nce to a statute does not suffice when suf ficient f acts constituting the offense are not alleged in the indictment. Given the recent evolution of ca se la w regarding the sufficiency of indictments in Tennessee, we respectfully disagree with the defendant’s contenti ons.
The defendant

relies upon Tenn. Code Ann. § 40-13-202, which provides that an indictmen

t:

must state the facts constituting the offe nse i n ordinar y and concise language, without pr

olixity or r

epetitio n, in su ch a mann er as to enable a person of common understanding to know what is intended, and with that d egree of certainty which will enable the c ourt, on conviction, to pronounce the proper judgment . . . .

In this respect, our supreme court has concluded that an indictment will be deemed valid so long as it provides sufficient information to enable the def endant to kno w the ac cusation to defen d, to furnish the trial court an adequa te basis for entry of a proper judgment, and to protect the def endant from double jeopardy. See State v. H

ill , 954 S.W.2d 725, 727 (Tenn. 1997). It has also stated that “indictme nts which achieve the overriding purpos e of not ice to the accused will be considered sufficient to satisfy both constitutional and statutory requirements.” State v. Hammonds , 30 S.W.3d 294, 300 (Tenn. 2000). To this end, “specific refer ence to a statute within the indictme nt may be sufficient to place the accused on noticeof the charged offense.” State v. Sledge , 15 S.W.3d 93, 95 (Tenn. 2000).-4-

Although the allegations in the present indictment do not track the wording of the first degree murder statu te, w e believe that it sufficiently apprises the defendant of the c harge of first degree murder. First degree murder is the unlawful “premeditated and intentional killing of another .” Tenn. Code Ann. § 39-13-202(a)(1). Th e indictme nt allege s that the d

efenda nt “inten tionally a nd with premeditation did assault” the victim who “did therefore linger, languish and di e” at a l ater date. From the defendant’s perspective, we ac k nowledge that alleging that an assault was committed intentiona

lly and with premeditation, takenby itself, does not allege that the killing was committed intentiona

lly and with p

remedita tion. Howe

ver, we believe that esse ntially al leging tha

t the assa ult caused the victim’s death and referring to the first degree murder statute provided adequate notice to the defendant that he was charged with killing the victim intentionally and with premeditat ion

. We conclude that the indictment sufficiently charges first de gree murder.

II. SUFFICIENCY OF THE EVIDENCE

The defenda

nt conten ds that the

evidenc e is insuff

icie nt to convict him of facilitation of second degree murder. He argues that there is noevidence in the record that the defenda nt knew that the gunman intended to shoot the victim nor any evidence that the defendant “knowingly fur nished substantial assistanc e” to the gunman be

fore the shooting, a s is required for facilitation of a crime. He asserts that

the record instead supports a finding that by driving the gunman away from the sc ene after the shooti ng, the de

fendant provided the gunma

n with a me ans of avoiding arrest, i.e., was guilty of being an accessory after the fac t. See Tenn. Code Ann. § 39-11-411(a)(2).

Under Tenn. Code Ann § 39-11-403(a), facilitation of a felony occurs if a person, “knowing that another intends to

commit a sp ecif

ic fe lony, but without the intent required for criminal responsi bility under § 39-11-4 02(2 ), the person knowingly furnishes substantial assistance in the
com mission of the felony.” Second degree murder is the unla wful “knowing killing of another. ” Tenn. Code Ann. § 39-13-210(a)(1).

In the light mo st favor

able to the state, the evide nce ref lects that the defendant and three associates arrived at the apartment complex, entere d the def endant’ s apartme

nt, and returned to the
car with one of

them carrying something that was covered from view. The victim and others were standing in the parking lot and when the defendant and his associates entere d the defendant’s car, the defendant called for the people standi ng in the lo t to come over to him. Then, the front seat passenger shot through the car window and hit the victim. The defendant drove off hurriedly af ter the shooting. From these facts, the jury could rationally find beyond a reasona ble doubt t

h at the defendant called for the people in order to facilitate the shooting and drove away quickly in

order to evade capture. We believe the facts could justify a finding that the def endant was cri minally responsi ble for the shooting, not just for facilitating it. The evidence justifi es the defendant’s conviction for facilitation of second degree murder

.-5- III. JURY INSTRUCTIONS
Finally, the defe

ndant com

plains ab out th e trial c ourt’s refusing to instruct the jury on the offense of accessory after the fac

t as a lesser included offense. In response, the state correctly notes that this court has previous ly conclu ded that a ccessor y after the fac t is not a

lesser included of

fense to the principal offense charged.
Traditionally, the offense of accessory af ter the fact has been deemed a sepa rate and distinct crime from the substantive offense, not a lesser included offense. See State v. Hoosier , 631 S.W.2d 474, 476 (Ten

n. Crim. Ap

p. 1982). In this re spect, th is court h as r eviewed the issue under the analysis dictated in State v. Burns , 6 S.W.3d 453, 466-67 (Tenn. 1999), and has concluded that the tradit io nal view remains unchanged under Burns

. See State v. Jo n Robert G oodale , No. M2000- 02140-CCA-R3-CD, Davidson County (Tenn. Crim. App. Sept. 14, 200 1); State v. James E. (Junebug) Ligon , No. M1999-02461-CCA-R3-CD, Cheatham County (Tenn. Crim. App. Jan. 12, 2001), app. granted and remanded on other grounds (Tenn. May 29, 2001). The defendant argues that the concepts of facilitation of a felony and acc essory after the fact are c losely related, the primary difference being a factua l one, bas ed upon tim

ing. Howe

ver, we view the d

iffere nce to be telling–the timing of the conduct is material. Moreover, our legislature has adopted comments that express ly note that

facilita tion is a l esser included offense of the crime c harged. See Tenn. Code Ann. § 39-11-403, Sentencing Commission Comments. We see no reason to aba nd on the conclusions reached in Goodale and Ligon . The trial court did not err in refusing to instruct the jury regarding accessory after the fact.
In consideration of the foregoing and the recor d as a whole, we affirm the judgment of the trial cou rt.

___________________________________ JOSEPH M. TIPTON, JUDGE