### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs D ec em be r 12, 200 6

STA TE OF TEN NES SEE v. MA RIO L . S MITH

Direc t Appeal from the Cr im inal Cou rt for Davidson Coun ty

No. 2004-C- 2264 Seth Norm an, Jud ge

No. M2006- 00402-CCA -R3-C D - F iled Janau ry 29, 2007

The de fenda nt, Mario L . Smit h, was c onvicted by a Da vidson CountyC ri m inal Court jury of attempted sec ond deg ree murder, a Class B fe lony , and vandalism over $1000, a Class D felony , and
was sente nced by

the trial court as a Rang e I , standard of fende r to concur

rent sente nces of

nine y ear s and two y ear s, respe ctively
, in the Depa rtment of Corre ction. The sole issue the de fenda nt raises on
appea l is whether the e vidence was suff icient to sustain his attempted sec ond deg ree murder

c o n v i c t i o n

. W e c o n c l u d e t h a tt h e e v i d e n c e w a s s u f f i c i e n t t o s u s t a i n t h e c o n v i c t i o n a n d
, a c c o r d i n g l y, aff irm the judg ments of the trial c ourt.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Cr im inal Cou rt A ff irm ed

A L AN E. G L EN N , J ., delivere d the opinion of the court, in which N OR MA M C G EE O G LE and D. K ELLY T HOMAS , J R ., J J ., joined.

Wil liam A. L ane, Mur fre esboro, Te nnessee , for the a ppellant, Mario L . Smit h.

Rob e r t E

. Co o p e r , Jr

. , A tt o r n e y G e n e r a l a n d Re p o r te r ; E li za b e thB

. M ar n e y , A s s is ta n t A ttorney Gene ral; Victor S. Johnson, I I I , District Attorney Gene ral; and D an Ha m m an d S h aron Reddick, Assistant District Attorney s Gene ral, for the appe llee, State of Te nnessee

.

OP IN ION

F AC TS

On Aug ust 24, 2004, the Davidson County Gra nd J ury

indicted the def

endant on one count

o f at t em p t ed first de g ree murder a nd one count of vandalism over $1000 ba sed on his role in two shooting incide nts that o cc u rr ed o n J u ne 4, 2004, in North Na shville. I n the first incident, a
pe de stria n wa s wa lki ng do wn the str e e t wh e n the ba c ks e a t pa sse ng e rs of a n app ro a c hi ng veh ic le
op e n e d f i r e o n h i m

. I n t h e s e c o n d i n c i d e n t , w h i c h o c c u rr e d i n t h e s a m e n e i g h b o rho od mom e nts later, pa sseng ers of

the same ve hicle fire d shotgun bla sts into an unoccupied F ord Mustang that was
pa rk e d o n th e str e e t.T hi s wi t nes s t es t i f i ed t hat hi s na me was Jer emy Al an N ort h. H owever , t he p ro secut or a nd defens e c ouns el 1

a d d re sse d him a s “M r. O w e n s,” a n d his n a m e is l isted a s “J e re m y O w e n s” thr o u g h o u t t h e trial tra n sc rip t.

-2- J ere my Owens, the vi ctim of t he attempted murder, testified at the defe ndant’s trial that on 1 J une 4, 2004, he was wa lking down the sidewalk on Six th Avenue towa rd B uchana n Street whe n he

saw a s ma ll d ark c ar c o mi n g to w ar d h im

. A s h e lo o k e d to w ar d th e v e h ic le
, th e d r iv e r ’ s s id e re ar wi nd ow low e re d a nda

juv e nil e he re c og nize d, Ke la nd o We bs te r, fi re d a g un sh ot tha t stru c k h im i n the le g

. Web ste r g ot ou t of the ve hic le fr om the dr ive r’ s si de re ar d oo r, fo llo we d b y the de fe nd a nt, wh o e xite d f

ro m th e pa sse ng e r’ s side re ar doo r. As Ow e ns fl e d, bo th m e n f ir e d s e ve ra l sh ots a t hi m. Owens sa id he hea

rd the sound of the defe ndant’s g un being cocke d and believed that it was a rif le. He a lso said that he distinctlyhear d the sounds of two diffe rent g uns being fired at him as he fled from the a

rea

.

Ow e ns te sti fi e d th a t he ra n b e tw e e n tw o b uil din g s, do wn a n a lle y , a ndint o a nei g hb or ’s ho me wher e he telephoned the police. He made a positive c ourtroom identification of the defe ndant as the adult who had shot at him and testified that he and the defendant ha d known ea ch other since they

wer e in the fifth g rade , or appr ox imately ten y ear s. Owens state d that he wa s unarme d when the incident occ urre d and that he r ece ived a g unshot wound to his kn ee from a bullet which pa ssed completely

throug h his leg . On cr oss-examination, he acknow ledg ed that he w as not hit by any shotgun pe llets. H e further acknow ledg ed that he had been convicted in 2003 f or selling drug s and possessing a

g un.

Jess e L e e Woo ds on , Jr. , te sti fi e d th a t he wa s r e turnin g ho me fro m wo rk a t app ro xima te ly 12 :00 p. m. o n J un e 4, 20 04
, wh e n h e he ardg un sh ots a ndsa w O we ns , w ho se mothe r l ive d in his neig hborhood, ru n n i n g d o wn the stree t and then hiding behind the next apartment. He said that wh e n O we ns tol d h im wha t was ha pp e nin g , h e inv ite d O we ns int o h is a pa rt me nt, wr app e d h is ble e din g le g wi th a

tow e l, a ndins truc te d h im t o cal l the po lic e . I n th e me a nti me , h e sto oda t hi s apartment door and saw a small, dark- colore d car move s lowly down t he st ree t, stop, and then take off a g ain.

Carlos Milam testified that on J une 4, 2004, he lived at 1816 Fourth Ave nue North, Ap art me nt B , an d dro ve a 19 99 re d F or d M us ta ng . So me tim e be tw e e n 1 1:0 0 a .m. a nd12 :00 p. m. that day , he and his g irl fr i en d h ea rd g unshots, looked out the window, and saw the def endant

s t an d i n g o u t s i d e a b l ac k ca r wi t h t i n t ed wi n d o ws an d s h o o t i n g a lo n g gu n at M i l am ’s Fo rd M u s t an g, which wa s park ed in front of his apa rtment. The de fenda nt then g ot back in the ve hicle and the vehicle pulled of

f. Milam testified that he did not know the de fenda nt prior to the incident but was able t o i d en t i fy him later that same day afte r the police had stopped the oc cupants of the black vehicle. H e also made a positive c ourtroom identification of the defe ndant as the man he had see n sh o o t i n g a t h i s M u s t a n g

. H e e s t i m a t e d t h a t t h e d e f e n d a n t c a u s e d o v e r $ 3 5 0 0 i n d a m a g e t o his Mustang

. Anthony Ashley testified that he wa s painting a house on F ourth Avenue on J une 4, 2004, when he hear d multipl e g unshots in the dist ance

. A few seconds later, he hear d g unfire two door s-3-

do wn , lo ok e d o ut, a ndsa w t wo me n, on e of wh om w a s a

rm e d w ith a sh ot gun, shoo tin g fr om a compac t black car at a red Mustang on the street. Ashley identified the defe ndant in the courtroom as the man w ho had bee n arme d with the shotgun.

F ou rt e e n- y e ar- oldSha tik a Cla y te sti fi e d th a t on June 4, 20 04 , he r co us in, Te rry Stu art , c a me to her home to borr ow he r fa t h er ’s b l ack c ar. She sa id she rode in the f ront passeng er se at as he drove to pick up K elando Webster, w hom she knew a s “Ke y Key ”; Ter

ranc e De moss, whom she knew a s “T”; a nd the def

endant, whom she knew a s “Mario.” S he st ated that when they picked up the def endant a t his home, he place d a long object wr apped in a sheet, whic h she later

learned wa s

a long gun, in th e trun k b e fo re g e tti ng int o th e re ar s e a t of the ve hic le wi th We bs te r a ndDe mos s. I nside the vehic le, the men discusse d driving to “Salem To wn , ” an ar ea near the wate r compa ny around F ourth Avenue and B uchana n Street. Clay said that she did not know why the men wa nted to go to “ Salem Town,” but a g ree d that they had ene mies who lived in that are a.
Clayte sti fi e d th a t th e de fe nd a nt t oo k h is g un ou t of the trun k a t so me po int

pr ior to the ir

arr ival in “ Sa le m T o w n

. ” Sh e s a id s h e b e li e v e d th a t th e y d r o v e f ir s t to F o u r th A v e n u e w here the defe ndant g ot out, “shot up” the re d Mustang , and then got back i nto their vehicle. They then drove to Six th Avenue w here they saw Jeremy

Owens, or

“Worm,” wa lking down the street. Clay said that she did not know the victim prior to the i ncident but hear d the m en in her vehicle mention hi s name. She stated that she ducked her head down as the de fenda nt, using his long g un, and Webster, using wh a t sh e g ue sse d w a s a

sma lle r g un , f

ir e d s e ve ra l ti me s a t th e vic tim

. Af te rw ard s, Stu art dr ov e to his home where he and the defe ndant, who wa s car ry ing the long g un, g ot out of the ve hicle, we nt ins ide , a ndre turne d se ve ra l min ute s late r w ith ou t th e g un . B e c a us e Web ste r r e a lize d h e ha d lo st h is cell p h o n e, t he g roup next returned to the F ourth Avenue location wher e the r ed Mustang was parke d. Howeve r, whe n Stuart saw the polic e, he beg an bac king up, struc k another car , and then pulled over.

On cr oss-examination, Cl ay acknow ledg ed that, althoug h she saw the defe ndant shoot at the Mustang , she did not actua lly witness either him or Webster shoot at the victim because she ha d her head dow n at the time. She said she di d not rec all having told the police in her origina l statement that We bs te r w a s th e on ly pe rs on sh e sa w s ho ot the vic tim

.

Metro Police Offic er Tim Matthews testified that he rec overe d two spent .12 g aug e shotg un shells from t he st ree t at the corner of Six th Avenue a nd Buc hanan Stre et and thre e .12 g aug e shotg un shells, a .32 ca liber ca

rtridg e, a .32 c aliber c artridg e ca sing, a nd a ce ll phone from the stree t at 1816 Fourth Avenue N orth wher e the F ord Mustang was parke d. He said that three shotgun bla sts had been f ired a t the For d Mustang : two into the driver’ s side window and one into the driver’s door

. Offic er Matthews testified that he a l s o co l l ecte d an H a nd R .32 caliber r evolver , which had be en found in the fr ont y ard of a vac ant house on the c orner , ap p ro x i m ately half a block from the F ord Mustang . On cr oss-exam ination, Office r Matthews a cknowledg ed that he did not conduc t any g unshot residue tests on the suspec ts arre sted in the ca se and did not proc ess the rec overe d shells for fing erprints.-4-

Me tr o O ff

ic e r E rn e st C e c il t e sti fi e d th a t he wa s a t th e F ou rth A ve nu e loc a tio n ta lki ng wi th the owner of the For d Mustang and his g irlfriend w hen a bla ck, four -door ve hicle drove by and the
g irlfriend said, “[T] here they g o rig ht the re.” I n response , he and some of his f ellow offic ers pur sued and stopped the ve hicle, a f our-door , dark- colore d Geo Prism containing four men a nd one woman. Offic er Cec il stated that Stuart was the driver of the vehicle and the defe ndant, whom he identifie d i n t h e c o u rt ro o m , wa s o n e o f t h re e b ac k s ea t p as s en ger s

. He s ai d t h at h e l at erre co v er ed a . 1 2 gau ge shotgun and .12 g aug e shotgun shells f rom Stuart’s bedroom closet at Stuart’s mother ’s re sidence

.

Detec tive Robert Swisher of the Metro Police Depa rtment, the lead detec tive assig ned to the

case , testified that he ultimately char g ed two individuals in connec tion with the shooting: Ke lando Webster, who wa s char g ed in juvenile court, and the def endant. He said he personally interviewe d the occ upants of the black vehicle and, from one of t hose i nterview s, obtained the information that le d to the re c ov e ry

of the sh otg un fr om S tua

rt ’s ho me . H e a c kn ow le dg e d th a t no fi ng e rp ri nt a na ly sis or ballistics testing ha d been pe rformed on the we apon. Heexplained, how ev er , t h at all of the information he had rec eived indicated t hat t he def endant wa s the only

person who ha d handled the shotgun at the crime sc enes.

Th e de fe nd a nt, te sti fying in h is o wn be ha lf , p ro vid e d th e fo llo wi ng a c c ou nt of the sh oo tin g s. During the two wee ks that had ela psed since his a nd Stuart’s g raduation, St uart had reg ularly picked him up from his home eac h morning so that the two could spend the day “hang ing out.” When Stuart

arrive d o n the mornin g of June 4, he ha d h is c ou sin , Sh a tik a Cla y , in thefr on t pa sse ng e r s e a t of his vehicle a nd Kelando Webster and Terra nce Demoss in the backse at. Demoss showe d the def endant the shotg un as the defe ndant g ot into the backse at and told the defe ndant that he was taking the g un home. En route to Stuart’s house , Stuart asked the de fenda nt if he wanted to ride to “Salem Town.” He a nswere d that he did not car e but then sug g ested that they first drop off

the g un. Stuart, howeve r, replied tha t they

wer e only

g oing to ride throug h the ar ea.

The defe ndant testified that they wer e driving down Six th Avenue w hen they passed a g roup of men a nd then saw the victim and his br other crossing the stree t. Upon seeing the victim, Webster said, “[T]here g oes the nig g er tha t been trying to kill us,” lowe red his window, f ired two shots, and beg an exiting the vehic le. At that point, the crowd of men started towa

rd their ve hicle and the defe ndant, i n order to protec t himself and his friends, g rabbe d the shotg un and fire d twice into the air. The defe ndant claimed tha t he neve r aimed the shotgun at any one and f ired only so that he and his frie nd s c ou ld e sc ape the are a . H e de sc ri be d th e inc ide nt:

Th e c ar w a s in a sto p, he [Web ste r] w a s g e tti ng ou t of the c ar. I t w a s a

lot of pe op le coming towards the c ar, so I g rabbe d the s hotgun and s hot once in the a ir. Then we nt on th e o th e r s id e o f th e c ar , I n e v e r p o in te d my g u n a t n o b o d y

. T h e g un that Ihad used that wa s in the car

I never pointed at nobody . I

shot ag ain bec ause his [the victim’s] brother w as coming towards us. At that point I ran ba ck in the, I

ran a nd
g ot in the car . As we r an and g ot in the car I told [ Stuart], get us out of her e.-5-

The de fe n d an t testified that they wer e lea ving the are a whe n he saw the re d Mustang on Fourth Avenue. He said he tol d Stuart to stop because “that wa s the dude who se t [ them] up,” got out of the ca

r, “le t shots up off in [ the Mustang ],” and then got back in the car . Stuart then drove
t h em t o S t u ar t ’s h o m e, wh er e S t u ar td ep o s i t ed t h e s h o t gu n

. T h e d ef en d a n ts ai d h e w an t ed t o go home at that point , but Webster, who had r ealized he ha d lost his cell phone, asked tha t the others

a c c omp a ny

him ba c k to the are a

aro un d th e Mu sta ng to s e arc h f or it. B e c a us e Web ste r w a s h is friend, he ag ree d and the gr oup returne d to the are a, whe re the y wer e surr ounded by

the police. The defe ndant denied tha t he and his friends discussed shooting the victim be fore the incident tra nspired. He voluntee red, how ever , that the victim and his friends ha d been shooting at him a nd his friends “for over two months.” On cr oss-examination, the defenda nt testified that the victim and his friends had shot at him five to seve n times but a cknowledg ed that he had never reported the shootings to the police. He further acknow ledg ed that, to his knowledg e, the victim wa s unarme d on J une 4, 2004.

AN AL YSI S

Suf fi ciency of the Evidence

The de fenda nt challeng es the suff iciency of the e vidence in support of hi s attempted sec ond deg ree murder c onvic tion. I n considering this iss ue, we apply the fa miliar rule that whe re suf ficienc y of the c onvicting e vidence is challeng ed, the r eleva nt question of the re viewing court is “whe ther, afte r viewing the ev i d en ce i n t he lig ht most favorable to the prosec ution, any rational trier of fa ct

co u l d h av e fo u nd the essential e lements of the c rime bey ond a re asonable doubt.” J ackson v. Vi rgi n i a, 4 4 3 U. S

. 3 0 7
, 3 1 9
, 9 9 S

. C t

. 2 7 8 1
, 2 7 8 9 (1 9 7 9 ); s ee al s o T en n

. R

. Ap p

. P

. 1 3 (e ) ( “F i n d i n gs of g uil t in c ri min a l a c tio ns wh e the r b y the tr ia l c ou rt

or jury sh a ll be se t a sid e if

the e vid e nc e is ins uf fi c ie nt t o s up po rt

the fi nd ing s b y

the tr ie r o f f

a c t of g uil t be y on d a

re a so na ble do ub t.” ); Sta te v. Evans, 838 S

. W

. 2d 185, 190-92 (Te nn. 1992); State v. Ander son, 835 S.W .2d 600, 604 (Tenn. Crim. App. 1992). All questions involvi ng the cr edibilityof witnesses, the weig ht a nd value to be
g iven the evide nce, a nd all fac tual issues are resolved by the t rier of fac t. See State v. Pappas, 754 S.W .2d 620, 623 (Tenn. Crim. App. 1987) . “A g uilty verdic t by the jury , approve d by

the trial judg e,

acc redits the testi mony of t he witnesses for the State and re solves all conflicts in fa vor of the the ory of the S tate

. ” St a te v

. G r a c e , 4 9 3 S. W. 2 d 4 7 4
, 4 7 6 ( T e n n

. 1 9 7 3 )

. O u r s u p r e me c o u r t sta ted the rationale for this rule:

This well-settled rule re s t s o n a sound foundation. The trial judg e and the jury see the witnesses fa ce to f ace , hear their testimony

and obser ve their de meanor on the stand. Thus the trial judge and j ury are the primary

instrumentality

of justice
t o d e t e r m i n e t h e w e i g h t a n d c r e d i b i l i t y t o b e g i v e n t o t h e t e s t i m o n y o f w i t n e s s e s

. In the trial for

um alone is there human atmos p h er e an d the totality of the e vidence

c a nn ot b e re pr od uc e d w ith a writt e n r e c or d in thi s Co urt.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212 Tenn. 464, 370 S.W .2d 523 (1963)) . A jury conviction re moves the pre sum p t i o n of innoce nce w ith which a defe ndant i s initiallycloake d and re place s it with one of g uilt, so t hat on appe al, a c onvicted-6-

defe ndant has the bur den of de monstrating that the evidenc e is insufficient. See State v. Tug g le, 639 S.W .2d 913, 914 (Tenn. 1982)

.

Second d e g r e e mu r d e r is d e f in e d a s “ [a ] k n o w in g k il li n g o f a n o th e r

. ” T e n n

. Co d e A nn. § 39-13-210( a) ( 2003 & 2006) . “‘K nowing ’ re fer s to a person who ac ts knowingly with respec t to the conduct or

to circumstanc es surrounding the conduc t when the pe rson i s awa re of the nature of the conduct or

that the circ umstances e x ist. A person ac ts knowingl y wi t h re s p ect to a r esult of the person’ s conduct whe n the per son is awar e that the c onduct is rea sonably cer t ai n to cause the

re su lt[. ]” I d. § 3 9- 11 -1 06 (a )( 20 ) ( 20 03 & 20 06 ). Cr imi na l a tte mpt is d e fi ne d a s f

oll ow s:

(a) A per son commits criminal att empt who, ac ting with the kind of culpability

otherwise r equire d for the of fense :

(1) I ntentionally

eng ag es in action or cause s a result that would constitut e an offe nse if the c ircumstance s surrounding the con d u ct wer e as the person be lieves them to be;

(2) Ac ts with int ent to cause a re sult that is an element of the offense , and believes the conduct will cau se the re sult without further conduct on the pe rson’s part; or

(3 ) A c ts w ith int e nt t o c omp le te a c ou rs e of a c tio n or c a us e a re su lt tha t w ou ld constitute the offe nse, under the circ umstances surr ounding the conduct a s the per son believes the m to be
, an d the conduc t constitutes a substantial step toward the commission of the offe nse.

Tenn. Code Ann. § 39- 12-101(a ) (2003 & 2006).

I n ar g uin g that the e vid e nc e wa s in su ff ic ie nt t o s us ta in h is c on vic tio n, the de fe nd a nt p oin ts out that Clay

ackn o wl ed ged s he had he r hea d down during the shooting a nd that the victim never testified that he sa w the def endant a iming the shotgun at him. Howeve r, whe n viewed in the lig ht most favora

ble to the State, the evidenc e was more than sufficie nt for the jury to find the defe ndant
g uil ty of the a tte mpt e d sec on d d e g re e mur de r o f t he vic tim . A ft e r b e ing sh ot b y Web ste r, the vic tim saw bo th We b s te r a n d th e d e f e n d a n t g e t o u t o f th e r e ar s e a t o f th e v e h ic le

. H e s a id th a t e a ch wa s

arme d and that he hear d the distinct sound of two differ ent g uns being fired at him as he fled f rom the sce ne. Clay

saw the de fenda nt load the shotg un in the t runk of the vehicle when he joined the
g ro up , tak e i to u to f

t h e t ru n k

p r i o r t o t h e i r arr i v a l a tt h e s h o o t i n g l o c a t i o n , a n d h a v e i ti n h is possession when the g roup spotted the victim walking down the street. She testified that the men dis c u s s e d d r iv in g to “ Sa le m T o w n ” a n d a c k n o w le d g e d th a t th e y h a d e n e mi e s w h o li v e d there

. No ta bly , s he sai d no thi ng abo ut a c ro wdof

me n h a vin g app ro a c he d o r thr e a te ne d th e ir ve hic le be fo re , d ur ing , o r a ft e r the sh oo tin g. Th e defend a nt v olu nte e re d a t tria l th a t th e vic tim a ndhis friends ha d been shooting at him before the incident, thus offe ring a motive for why he might have-7-

wanted to k i ll the victim. W e conc lude, there fore , that the evidenc e wa s sufficient to sustain the defe ndant’s attempted se cond deg ree murder c onviction.

CO NC LU SION

B a se d o n th e fo re g oin g a uth or iti e s and re a so nin g , we a ff ir m th e jud g me nts of

the tr ia l c ou rt

.

___________________________________ ALAN E. GL

ENN, JUDGE