1 The record reflects that the tri al court dismis sed the remaining count of unl awful possessi on of a weapon.



### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE April 12, 2005 Session

STATE OF TENNESSEE v. KENNETH BUFORD, ALIAS

Direct Appeal from the Criminal Court for K nox County No. 78521 Richard Baumgartner, Judge

No. E2004-01780-CCA-R3-CD - Filed June 23, 2005

The defendant appeals his conviction for reckless e ndangerment, contending spec ifi cally th at the evidence was insuf

ficient t o prove that h e placed a

nyone in imminent dange r of death or serious bodily injury. Upon review , we conclude that because the defenda nt fired the gun

in the air, away fromany person or

potentially occupied building , the evidence i s in sufficie nt to sustai

n his convicti on. Ther

efore, we reve

rse the c onviction

and dismiss

the char ges.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Reversed and Dismissed

J OHN E VERE TT W IL LI AMS , J., delivered the opinion of the court, in which T HOMAS T. W OODA LL and R OBER T W. W EDEMEYER , JJ., joined.

Tony McGuire, K

noxville, Tennessee, for the appellant, Kenneth Buford, Alias.

Paul G. Summers , Attorne y G eneral and Repor

ter; Br ent C. Cher

ry , Assistan

t Attorne y G eneral ; Randall E. Nichols, District Attorney Ge neral; Ta Kisha Fitzgerald, Assistant Di s trict Attorney Genera l; and Jennifer Bey

land, Special Prosecuting Attorney , for the appellee, State of Tennessee.

OPINION
Facts and Procedural History

The defenda

nt, Kenneth Buford, was indicted by t he Knox Coun

ty G rand Jury on two cou

nts of reckless endangerment with a de adly wea pon (a Class E felony) ; two co unts of possession of a firearm where alcoholic beverag es are served (a Class A misdemeanor); a nd one count of unlawful possession of a weapon (a Class A misdemeanor). Followin g a jury trial, he was conv icted of both counts of reck

less enda ngerme nt with a d eadly we apon and found not guilty of both counts of possession of a firearm where alcoholic be verages are serve d. 1 The two convictions were merged, and the defendant was sentenced to one y ear of probation . He now a ppeals to this court, contending2 Although not expressly stated, i t appears from the record that Austi n Hom es is an apartment complex.

-2- that the evidence was insufficien t to prove tha t his actions posed an imminent danger of death or serious bodily injury

to others, as the statute requires.

At trial, Officer J.D. Hopkins tes tified t hat he was employe d with the Knoxville Police Department

and had oc casion to respond to a disturbance at Club Temptations between 3:30 and 4:00 a.m. onFebruary

1, 2003. Although initially dispatched to a f ight call at

the subject location, while en route

he was additionally informe d that gunshots had been fired. Hopkins stated that when he arrive d, appro ximately fifty to sevent y- five peo ple were either standing

in the parking lot adjacent to the club or attempting to leave. He further described the parking area as “[e]xtremely crowded.” Shortly after he arri ved, Hopk

ins spoke w

ith Connie

Tate about what had occurred, and Ta te directed him to question the defendant.

Uponso doing, the defendant admitted that he had indeed fired the shots. Hopkins testified that the defendant explained that he was inside the establishment when someone informed him that

a fight had broken out. In an attempt to brea k up the altercation, the defendant took a revolver from

anunidentified man and

proceeded outside. The defendant told Hopkins that he fired shots into the air to disper se the cr

owd and th en went b ack in to the club. H opkins testified that the gun was confiscated by

police following a consensual search of the building.

Hopkins explained that the club is between 250 and 3 00 feet from Austin Homes and that shots fired

from Club Temptations could “a bsolutely ” be hea rd from A ustin Home s. 2 Ad di ti on al ly, Hopkins explained that the club’s parking lot is between fifty a

nd seventy-five

feet from McCalla Avenue, a public thoroughfare. He stated that, in his experience , a fter a wea pon is fire d, people nearby become fearful and

nervous. He further stated that gunshots increa se the possibility that other armed individua

ls may draw a w eapon in d

efense of themse lves. I

n sum, he st

ated thatsuch circumstances “make[ ] for a n extremely unsafe situation.” On c ross-examination, Hopkins explained that he had responded to many calls to Club Temptations for “disorder ty pe issues.” He further acknowl edged

that gun shots are

an effe ctive wa

y to dis perse a crowd. Finally , Hopkins reiterated that the defendant stated that he fir ed the gun in the air.

Connie Tate then testified that, on the night of the incid ent, she was prese

nt at the c lub with her cous in and hi s girlfriend. She further stated that, shortly after pay ing to get into the club, her companions decided

that they did not wa

nt to stay and aske d for the ir

money to be ret urned. T ate testified that, when the ir

request was refused, the fight broke out and she phoned the police to report the disturbance. She further testified that, before the police arrived, the fight was broken up inside and that many of the pa

trons were leaving.

She stated tha

t she firs tsaw the defendant with the gun inside the club and that the defendant began shooting as she walked outside. Tate testified t hat there were “quite a few” people in the parking lot and fu

rther de scribed

the park ing lot a s “packe d.” She sta ted th at when the de fendant fired the shots, some people ducked and others ran to their cars. She testified that after the shots were fired, the defendant went back to the club and that the police a rrived shortly there after. Finally , she-3-

stated that she told the police what happened and then left. On cross-exam ination, T ate acknowledged

that she d id not see the defendant shoot the gun and did not know where the gun wa s pointed. However, she stated that she knew the defe ndant was the one w

ho fired the shots b ecause he was the only pe

rson in the parking lot who had a gun.

The State’s final witness, Officer Aaron Bowma n, testified

that he was employe d with the Knoxville Police Department

and was one of the officerswho responded to the subject incident. He recalled that the defendant stated that he was an employ ee of the club and gave conse nt to search the establish ment. Bowman testified

that he confiscated a .22 caliber revolve r from behind the bar and that the revolver was fully

loaded, with two spent rounds. He stated that the smell of gunpowder and the revolver itself indicated that the spent rounds were “f reshly fire d.” Bowman t esti fied that the defendant indicate d that he “

had contr ol of the e stablishme

nt” but did not s tate that h e was i n charge of security.

As the sole

witness for the defense, Diana Howell testified that she wa s present on the night of the subject incident because shewas working as a disc jockey in the club. She testified that the fight began in thehallway of the club, broke up shortly ther eafter, and started aga

in in the parking lot. She stated that she saw the defendant shoot the gun “up in the a ir, away f rom the crowd.” Howell further tes tified that the defendant shot “away from McCalla [Avenue]” and “away from Austin Homes.” She state d that the

defenda nt fired t he gun t oward e mpty warehouses and that there

were no people in that area. Howell testified that when the defendant fired the gun, it disperse d the crowd. When asked to describe the peopl e involved in the altercation, Howell responded that two “big guys” were fighting and that ther e was a risk of injury

.
Oncross-e

xamination, Howell

admitted that she did not see where the defendant g ot the gun and that she was behind the defendant when the shots were fired. She further

indicated that she was somewhat

shocked that the defendant fired the g un but that the defenda

nt did it “to

scare the crowd off, [and] that’s what it did.” Finally, she admitted that she did not see where the shots landed.

Analysis

When an appe llant challe nges the sufficie ncy of the ev

idence, the stand

ard of r eview is whether, after

viewing the evidence in thelight most favorable to the state, any rational trier of fact could have fou nd the ess ential el ements of the crime

bey ond a rea sonable

doubt. Jack son v. Virgini a , 443 U.S. 30 7, 319, 99 S. Ct. 2781, 27 89 (1979) ; State v. Evans , 838 S.W.2d 185, 190-91 (Tenn. 1992); Tenn. R. App. P. 13(e). On appeal, the state is entitled to the strongest leg itimate view of the evide nce and all reas onable

or legi t imate inferences that may be drawn therefrom. State v. Elkins
, 102 S.W.3d 57 8, 581 (Te nn. 2003) . This court

will not reweigh the evidence, ree valuate the evidence, or

substitute its evidentiary inferenc es for those reached by the jury. State v. Carey , 914 S.W.2d 93, 95 (Tenn. Crim. App. 1995). Furthermore, in a criminal trial, great

weight is given to the result reached by

the jury. State v. Johnson , 910 S.W.2d 897, 899 (Tenn. Crim. App. 1995).
Upon approval by the tr

ial court, a jury ve

rdict accredits the witnesses presented by the state and resolves all conflicts in favor of the state. State v. Williams , 657 S.W.2d 405, 410 (Tenn. 1983).-4-

The credibility of witnesses, the we ight to be given their te stimony, and the reconc iliation of conflic ts in the pro of are m atters e ntrusted exclusive ly to

the jury as trier of fact. State v. She ffield
, 676 S.W.2d 542, 5 47 (Tenn . 1984); State v. Brewer , 932 S.W

. 2d 1, 19 (Tenn. Crim. App. 1996). A jury’sguilty verdict removes the presumption of innocence enjoy ed by the def

endant at trial and raises a presumption of guilt. State v. Tu ggle , 639 S.W.2d 913, 914 (Tenn. 1982). The defendant thenbears the burden of overcoming this presumption of guilt on appeal. State v. Black , 815 S.W.2d 166, 175 (Tenn. 1991).

The statute proscribing reck less en dangerment is codified at Tennessee Code Annotated section 3 9-13-103 and state s: (a) A person commits an off ense who recklessly

engages in conduct which plac es or may pl ac e a no th er pe rs on in im mi ne nt da ng er of de at h o r s er io us bo di ly i nj ur y. (b) Reckless

endangerment is a Class A misdemeanor ; howe ver, reckless endanger ment

co mm it te d w it h a de ad ly w ea po n i s a Cl as s E fe lo ny. Onappeal, the defe

ndant’s s ole conte

ntion is tha

t the evid ence pr esented was insuf ficient t o establish that the patr ons standi ng in the park ing lot we re plac ed in

imminent da

nger o f death or seriou s bodily injury by the shots he fired in the air.

Insupport, he relies principally on State v. Fox , 947 S.W.2d 865 (Ten n. Crim. App. 1996), which inv olved a de fendant who fire d a gun “ into the air or up into a tree.” Id. In analy zing what the offense of reckless endang erment requires, a panel of this court opined: [R]eckless

endang erment is

couche d in

terms of risk to another person produced by one’s conduct. This court has previously recognized the po tential ly “absurd” and “unreasonable” results that may arise f rom permitting prosecution of one discharging “a weapon under any

circumstances where any other human being

might possibly be present or where a stray

bullet might possibly strike another pe rson.” State v. Cul bertson
, 1995 Tenn. Crim. App. LEXI S 729, No. 03C01-9412- CR-00449, slip op

. at 2 (Tenn. Crim. App. Aug. 30, 1995).

We find the appellant’s mere discharge of a weapon into the air or

up into a tree top did not “place another

person in imminent da

nger o f death or seriou s bodily injury.” Merely dischar ging a gun, sta nding a lo ne, is n ot sufficient to constitute [the] commission of reckless endangerment. See People v. Richar dso n , 97 A.D.2d 693, 468 N.Y.S.2d 114 (N.J. Super. Ct. App. Div. 1983 ) (holding dischar ge of g un into air does not constitute reckless endangerme nt). Fox , 947 S.W.2d at 865-66. The defenda nt also cit es State v. Payne , 7 S.W.3d 25 (Tenn. 1 999), in whichthe highest court of this state noted that “for the threat o f death

or serious bodily injury

to be ‘imminent,’ the person must be placed in a reasonable proba bility of danger as opposed to a mere possibility of danger .” Id. at 28.

We co nc lu de th at th e a bo ve -c it ed ca se s a re in st ru ct iv e i n a na lyz ing t he case at hand. Alth ough the state argues that the defendant’s actions “posed a rea l and imminent threat”

to those around him, we are

of the opi

nion that a

ny r isk of dea

th or ser ious bodily

injury was a mer e-5-

possibilit y rather than a reasonable probability . Taken in a light most favorable to the stat e, th e testimony reveals that the defendant fired two rounds, enoug h to disperse the crowd, took the revolver back inside the bar, and put it away. More

importantly, the testimony established that the defendant fired the gun into the air, away from both the street

and any building s in the vicinity that could have been

occupie d. There fore, th e instant f acts ar e analogous to Fox and are distingu ishable fromother cases in which we have sustained convictions for reckless endangerment. See State v. Alder
, 71 S.W.3d 299(Tenn. Cr im. App. 20 01) (re ckless endangerment conviction sustained where the vict im was in line of fire a nd individu

al next to the

victim wa s shot); State v. Christopher Bengtson , No. E1999 -01190-C CA-R3-CD, 2000 Tenn . Crim. App. LEXI S 760 (Tenn. Crim. App., at Knoxville, Oct. 2, 2000) (conviction sustained where the defenda nt pointed loaded sh otgun, w ith safety on, at a group of three

p eople); State v. Ste

ven Willar

d Self , No. 03C01-9807-CR-00227, 1999 Tenn. Cri

m. App. L

EXIS 767 (Ten

n. Crim. App., at Knoxville, July 30, 1999) (conviction sustained where the defendant shot and killed a dog whe n the owne

r was fif teen to twenty fee

t away fromthe animal). Upon review, we mus t conclude that the evidence did not establish that the defendant’s actions created a reasonable probability

of death or serious bodily injury . Therefore, the element of imminent danger was not satisfied.

Conclusion

Because the proof established that the def endant pointed the gun in the air, away from any person or occupied building, we conclude that the evidence was insufficient to prove that any person
was in immin ent danger of death or serious bodily injury . As such, we reverse the defenda nt’s convicti on for re ckless e

ndange rment and dismiss the

charg es.

___________________________________ JOHN EVERETT WILL IAMS, JUDGE