# FILED

April 21, 1998
Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON MARCH 1998 SESSION
STATE OF TENNESSEE, * C.C.A. # 02C01-9703-CC- 00125 Appellee, * MADISON CO UNTY VS. * Hon. Franklin Murc hison, Judge JAMES BYRON TRANSOU, * (Attempted First Degree Murder and

Appellant. * Aggravated Assault)

For Appellant : For Appellee : Daniel J. Taylor John Knox Walkup Assistant Public Defender Attorney General and Repor ter 227 West Baltimore Street Jackson, TN 38301 Deborah A. Tullis (on appeal) Assistant Attorney Gener al 450 James Robertson Parkwa y Pamela J. Drewery Nashville, TN 37243-0493 Assistant Public Defender 227 West Baltimore Street Donald H. Allen Jackson, TN 38301 Assistant District A ttorney General (at trial) P.O. Box 2825 Jackson, TN 38302

OPINION FILED:__________________________

AFFIRMED IN PART; REV ERSED AND D ISMISSED IN PART

GARY R. WADE, JUDGE2 OPINION The defendant, James Byron Transou, w as convicted of attempted first degree murder and agg ravated assault. The tri al court imposed concurrent, Range II sentences of thirty -five years and eig ht years.
In this appeal of right, the defendant claims tha t the evidence is insufficient to support the conv iction of attempted first degree murder and that convictions for both attempted fir st degree murder and agg ravated assault viol ate double jeopardy principles.

We affirm the conviction for attempted first degree murder. The conviction for aggr

avated assault must be rev ersed and dismissed.
The defendant and his former girlfrien d, Tammy Curry, have a fiveyear-old son, Brison.The victim, Terrance Woods, had been dating Ms. Curry for approximately four and one-half years at the time of the trial in 199 6. Ms. Curry also has another child, Triston.

On the afternoon of August 18, 1995, the v ictim was washing

his car at a carwash on Whitehall Street in Jackson when he obse rved the defendant and his brother, Keith Transou, in a gray four-door Celebrity automobile. The victim described the men as looking in his direction "shaki ng their heads and callin g in a wild, crazy way." The defendant remarked to hi m, "Bitch, we need to stop pl aying." The victim testifie d that af ter he got in his Chevr olet aut omobile and began to drive away, the defendant, who w as driving the Cel ebrity, pulled alongs ide, aimed a pistol through the open window on the passenger's side, and fired three or four shots. One bullet struck a tire on the victim's automobil e and three others graz ed the3 passenger side door. Woods recalled that he then lost control of his ca r and spun into a vacant lot. Althoug h frightened, the victim w as not injured by any of the shots.

Vanessa Robertson lived nearby. At trial, she testified that she saw the defendant, who was driv ing a Celebrity, fir

e several shots out of the pass enger window of his vehi cle towards a green Chevrolet driven b y the victim. She r

ecalled that the defendant's brother, who was sitting in th e passenger's seat at the ti me of the shooting, leaned back as the shots were being fir ed.
Kentry Burris, a cousin to Ms. Curry, was at a convenient market just prior to the shooting. A s he walked away from the market, he heard squeali ng tires and saw the victim i n his Chevrolet being chased by a white Cel ebrity automobile. Burris testified that he hear d four to five shots just as the automobiles were driv en out of his sight. When he arrived at the scene , he observed .32 or .38 caliber shell casings in the street. Burris observed another person in the car with the defendant. He was unable to say w ho fired the shots.
William Goodman, who was with Bur ris at the time of this inci dent, testified tha

t he also hear

d gunshots a nd saw a gr een car, dri

ven by the

victim, spinning out of control in a vacant lot. Goodman recall ed hearing four shots and seeing a white car speed away from the scene after the shots were fired. He also observed the spent shells

.

Police recovered three

.38 caliber bullet casi ngs at the location described by Burris and Goodman. The bullets were from a gun with an automat ic cartridge. Officer Dav

id Russell of the Jackson Pol ice Department, intervi ewed the victim and several other witnesses. He es timated that the distance betw een the car4 wash area and where the shell casing were found was about seventy- five yards.
There was testimony that in July of 1995, about one month before th e incident leading to these convictions, the victim drove Brison to the defendant's residence for child vi sitation. As Brison got out of the car, the defendant pointed a .38 revolver to his head, called him names, and threatened to kill him. The victim sought a warrant. Two or three days later, the defendant approached Ms. Curry while she was at work and threatened to kill her and the victim. Again, the police were contacted.

The defendant claimed self-defense. He testified that he and his son drove by the carw

ash just after leaving a doctor's office. The defendant claimed that the victim, armed with a gun, attempted to get him to stop. He contended that he left the area and went to a friend's house where he obtained a .38 pistol. He explained that he had been joined by his brother, Keith, just bef ore the victim blocked him with his v

ehicle. The defendant insisted that hi s brother fired the shots out of fear of the victim. He claimed that the victim lost control of his vehicle just before the shots were fired. The defendant also denied having poi nted a gun at the victim in the July

1995 incident and insisted that he had never made any threat s against him. On cross-examination, the defendant acknow ledged that between 1990 and 1995, he had been convicted for robbery, aggrav

ated assault, felony reckless endangerment, forg ery, and supplying false information to a police officer.
Keith Transou, who testified on rebuttal for the state, confirmed that he was in the passenger's seat of the defendant's vehicle a t the time of the shooting. He denied having fired any of the shots and contended that the defendant had attempted to shoot the victim. He also stated that the vi ctim displayed a pistol at the5 carwash. He testified that the victim was foll owing them in his v ehicle just before the shots were fired; howe ver, he did not see the v ictim in possession of a gun at that time.

I

The defendant insists that the state w as unable to prove that he actually intended to cause the death of the victim. He poi nts out that the shots struck the left front tire and the passenger door of the vic tim's vehicle. He ar

gued that the evidence showed nothing more than an attempt to scare the victim or cause damage to his vehicle.

On appeal, the state is entitl ed to the strongest legi timate view of the evidence and all reasonabl e inferences which might be drawn therefrom. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses, the weight to be given their testimony, and the reconciliation of conflicts in the evidence are matters entrusted excl usively to the jur y as the trier of fact. Byrge v. State , 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). A conv iction may be set aside onl y when the reviewing c

ourt finds that the "evidence i s insufficient to support the finding by the trier of fact of guilt bey ond a reasonable doubt." Tenn. R. App. P. 13(e). A guilty verdic

t, approved by the tri al judge, accredits the testimony of the witnesses for the state. State v. Hatchett , 560 S.W.2d 627, 630 (Tenn. 1978).

First degree murder i s defined as the premeditated and intentional killing of another. Tenn. Cod e Ann. § 39-13-202(a)(1). Criminal attempt is defined as follows: (a) A person commits cri minal attempt who, acting with

the culpability otherw

ise required for the offense: (1) Intentionally engages in action or causes a result that would constitute an offense if the circumstances6 surrounding the conduct w ere as the person believes them to be; (2) Acts with i ntent to cause a result that i s an element of the offense, and believes the conduct w ill cause the result without further conduct on the person's part; or (3) Acts with i ntent to complete a course of action or cause a result that woul d constitute the offense, under the circumstances surroundi ng the conduct as the person believes them to be, an d the conduct constitutes a substantial step towar d the commission of the offense. (b) Conduct does not constitute a substantial step under subdivision (a)(3)

unless the person's entir e course of action is corroborativ

e of the intent to commit the offense. (c) It is no defense to pros ecution for criminal attempt that the offense attempted was actually committed. Tenn. Code Ann. § 39-12-101.

The state introduced proof that the defendant had on at least one prior occasion threatened to kill the victim. Within a month thereafter, he obs erved the victim, borrowed a pistol, returned to wher e he had seen the victim, and then fired several shots at the v

ictim, causing his v

ehicle to spin out of control i n an empty field. The defendant's brother testified that the defendant shot at the victi m. Bullets struck a ti re on the d river's sid e and the door on th e passen ger's side . In our view, the jury acted with in its prerogativ e in determining that the cond uct of the defendant was a substantial step t owards the commission of firs t degree murder. The evidence of guilt satis

fies the standard prescribed i n Tenn. R. App. P. 13(e); see Jackson v. Virginia , 443 U.S. 307 (1979).

II

Next, the defendant contends that convictions fo r both attempted first degree murder and aggra vated assault would v

iolate double jeopardy pr inciples. Tenn. Const., art. I, § 10. The tr ial judge acknowledged that the two offenses7 should have merged but w as uncertain of which shoul d remain. The state concedes that the lesser offense of aggrav ated assault should be reve rsed and dismissed.

In State v. Denton , 938 S.W.2d 373, 381 (Tenn. 1996),our supreme court established a four-prong analysis in an effort to prov ide guidance on whether two convictions arising out of the same facts are proper:

(1) An analysis under Blockburger v. Uni ted States , 284 U.S. 299, 304 (1932): [W]here the same act or transaction constitutes a violation of two distinct statutory provisi ons, the test to be applied to determine whether they are two offenses or only one is whethe r each provision requires proof of an additional fact which the other does not. (2) An analysis of the ev idence used to prove the offenses g uided by

the pri nciples

of Duchac v. State , 505 S.W.2d 237, 239 (T enn. 1973): One test of identity of offenses is w hether the same evidence is required to prove them. If the same evidence is not required, then the fact that both charges r elate to, and grow out of, one transac tion, does not make a single offense where two are defined by the statutes. (3) A consideration of whether there were multiple victims or discret

e acts; and (4) A comp arison of the purpo ses of th e respect ive statutes. Denton , 938 S.W.2d at 379-81. The supreme court pointed out tha t none of the prongs of the test were det erminative and that "the res ults of each must be weighed and considered in relation t o each other." Id.
Recently, this court applied the Denton test in an effort to determine whether convictions

for attempt to commit second degree murder and aggravated assault violated double j eopardy principles. State v. Hall , 947 S.W.2d 181 (Tenn.8 Crim. App. 1997). While acknowledg ing that the two conv ictions "passed" the Blockburger

test, thi s court de termine d that be cause th e evidenc e used to prove both offen ses was

the same , the rationale o f Duchac would preclude an agg ravated assault conviction. Id.

In this case, there wer

e neither discrete acts nor multiple victims. A comparison of the respective statutes suggest that, as in Denton , "it is unreasonable to assume that the legislature intended that a def endant who commits one assault on a single victim be

convicted of both aggrav ated assault and attempted homicide." Denton , 938 S.W.2d at 382. That view is buttres sed by the following statute: When the same conduct may be defined under two (2) or more specific statutes, the per son may be prosecuted under either statute unless on e (1) specific statute precludes prosecution under another. Tenn. Code Ann. § 39-11-109(b) (1 991). The word "either" ra ther than "both" suggests a legisl ative intent of a single prosecution.

The conviction for aggr avated assault must be rev ersed and dismissed. Otherwis

e the judgment is affirmed.

________________________________ Gary R. Wade, Judge CONCUR:

_____________________________ Joe B. Jones, Pre siding Judge

_____________________________ Jerry L. Smith, Judge