### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Februar y 12, 2 002 Session
STATE OF TENNESSEE v. ALLEN LEE DOTSON, SR.
Direct Appeal from the Circuit Court for Marion County

No. 4897 Thomas A. Greer, Judge

No. M2001-01970-CCA-R3-CD - F iled October 21, 2002

The defendant challenges the suf ficiency of

evidence, the trial court’s failure to decla re a mistr ial, and the “knowing” jur

y in struction

as it rela tes to his second deg

ree mu rder con viction. We

hold
no rever sible err

or occur red at tr ial and a ffirm the judgmen t from the trial cou rt. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

J OHN E VER ETT W IL LI AMS , J., delivered the opinion of the court, in which J OSEPH M. T IPT ON an d A LAN E. G LENN , JJ., joined. William H. Ortwein, Chattanooga, Tennessee, for the appe llant, Allen Lee Dotson, Sr.

Paul G. Summers, Attorney Gene ral & Reporter; Michael E. Moore, Solicitor Gener al; Michael W. Catalano, Associate Solicitor General; James Michael Tay lor, District Attorney

General; and Steven M. Blount, Assistant District Attorney Gene ral, for the appellee, State of Tennessee

.

OPINION

The defenda

nt, Allen L

ee Dotso n, Sr., an d his son, Allen Lee Dotson, Jr., were indicted for the first degree murder of Cec il Bolton. The father and son were tried tog ether. At the close of the proof, the trial court

granted the son’s motion for judgment of acquittal, ther eby removing

from the jury’s consideration the guilt of the son. After deliberations, the jury returne d a guilt

y ve rdict ag ainst the defendant for second degr ee murder, a

lesser-included offense of first deg ree murder. La

ter the trial court se

ntenced the defe ndant, as a Range I

standard offender, to the

Department of Correction for twen ty- two y ears. I

n this appe al, the de

fendant contends : (1) there wa s insuff

icient evidence to support the conviction for second deg ree murder; (2) the trial court erred in failing to declar e a mistrial; and (3) the “knowing ” jury

instructi on as it re

lates to th

e second degree murder w as erroneous and lessened the State’s burden of pr oof.-2- Facts

Allen Dotson, Jr. and Mark Stevens w ere atte

mpting to haul lumbe

r and othe r materi als on a trailer when the vehicle jackknifed on Hig hway 156 on South Pittsburg Mountain. Both lane s of traffic were blo cked for

approxima

tely thir ty minutes . The victim, Cecil Bolton, drove up to the point of blockage. Words were exchang ed betwe en the vic tim and Dotson, Sr., who was then attempting to render assistance to his son. A scuffle ensue d betwee n the def endant a nd the vic tim in the inte rior of th e victim’ s truck, a

nd some damage was done to the vic tim’s vehi cle as a result. The victim pro ceeded

back dow n th e mounta

in to the South Pittsburg Police Station. He made a complaint to the dispatcher on duty, who notified the Marion County Sheriff’s De part ment. A sheriff’s deputy was dispatched to the scene of the original alterc ation. While at the police station, the victim stated his intent was to go home, get his deer rifle, and “ take care of it my self.”

The victim took a different route to his residence, got his 30-30 deer rifle and ammunition, and then left after telling his wife he was going to initiate a warrant for the damage he had suffer ed.
Meanwhile, Dotson, Jr. and a companion had moved the trailer containing the lumber to an off-road location at the intersection of Highway 156 and Orme Mountain Road. The defendant had gone to his residen ce, go tten a sho tgun an d ammunitio n, and g one to this intersection. His presence in the woo ds on the si de of the road wa s appare

ntly unknown to

Dotson, Jr. a

nd his comp anions.

The victim ar

rived at the inter section a

nd slid his v ehicle to

a stop. He

exited with

the rifle to his shoulder, pointing it in the direction of the defenda nt, but als o toward

Dotson, Jr. a

nd his companions who were generally between the two armed men. The defenda nt fired th e shotgun, striking the victim who turned a nd started to r etreat. The defendant fired a second shot, and the victim dropped the rifle and continued retreating toward the edge of the road. A third, a nd possibly a fourth, shot were fired by the defendant, and the victim clutched his leg and fe ll into a ditch.
Dotson, Jr. ran to the victim, rolled him over, and began y elling and pummeling the victim’s chest. The defendant came to the victim and

poked him

with the shotgun. Dotson, Jr. rose and, as he was walking away , said, “[D]addy, let[‘]s go.” The def endan t fired once more at close rang e, discharging a fatal shot to the victim’s head. Analysis

The defendant’s first issue is that theevidenc e was insufficien t to suppor

t a conviction for murder in the second degree. When an ac cused challenges the sufficienc y of the evidence, this Court must review the record to determine if the evide nce adduced during the trial was suff icient “t o support the finding by the

trier of fact of

guilt be yon d a reas onable

doubt.” Tenn. R. App. P. 13(e). This rule is ap

plicable to findings of guilt predicated upon direct evidence, circumstantial evidence, or a combination of direct and circumstantial evidence. State v. Brewer , 932 S.W.2d 1, 18 (Tenn. Crim. App. 1996).-3-

In determining the sufficiency of the evidence, this Court does not reweigh or reevaluate the evidence. Stat e v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978). No r may this Court s ubstitute its inferences for those drawn by the trier of fa ct from circu mstantial evidence. Liak as v. State , 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956). To the co nt ra ry, this Court is required to afford the Statethe strongest legitimate view of the evidence containe d in the re cord, aswell as a ll reason able and legitimate inferences which may be drawn from the evidence. State v. Tuttle , 914 S.W.2d 926, 932 (Tenn. Crim. App. 1995).

The trier of fact, not this Court, resolves questions concerning the c redibility of the witn esses, the weight

and value

to be giv en the ev

idence, as well a s all factual issues raised by the evidence. Id. In State v. Grace , the Tennessee Supreme Court stated, “A guilty

verdict by the

jury, approve d by the trial judge, accredits the testimony of the witnesse s for the

Stateand reso lves all c onflicts i n favor of the theory

of the State.” 493 S.W.2d 474, 476 (Tenn. 1973).

Becau se a verdict of guilt removes the presumption of innocence and replace s it with a presumption of guilt, the accuse d has t he burde n in this Cour

t of illustr

ating why t

he evide nce is insufficient

to support the verdict returned by the trier of fact. State v. Tu ggle , 639 S.W.2d 913, 914 (Tenn. 1 982); Grace , 493 S.W.2d at 476.

The defendant argued that the killing wa s in the heat of passion and thus, voluntary manslaughter. The tria

l ju dge g ave the j ury

instructi ons ranging fro m first de gree m urder to criminal ly

negligent homicide. The jury heard and rejected the def e ndant’s theory of

voluntary manslaughter. We will not gain say their fin dings. T

he evide nce suff iciently supports the verd

ict. This issue

is without me

rit.

The defe ndan t next contendsthat a mist

rial shou ld have be

en gra nted due t o an outbu

rst by the co-defendant and responsive participat i on from the audience. The defendant fur ther contends that the error was agg

ravated by

the trial judge’s actions and statements following the disturbance. During cross-examination of the defend ant by the State, the co- defendant, Dotson, Jr., proclaimed, “Here

let me lea

ve the co urtroom so

I don ’t have t

o listen to t

his shit. ” Th is was answered by a spectator in the audience, “We’re having to listen to it, too, Allen. We lost someone, you didn’t.” The de

fendant immediately moved f or a mistrial, which was overruled.

At the conc lusion of D otson, Sr.’ s testimony , the judg e call e d for a lunch break and addressed the juror s as follow s: THE COURT: All right, it’s the lunch hour. What I wa nt y ’all to do, I want

the Dotsons to go in th

e jury room a mome

nt while w e clear the courtro om, and the jury, they ’ll take y’a ll straight on out to lunch. We’re going to be reassembling here at 10 minute s after 1 :00, so bothDotsons just stay here a moment. I don’t think y ’all need to be commingled with various and sundry people. Defend ant then r

enewed his motion f

or mistria l due to the

judge’ s stateme

nts.-4-

The decision of whether to grant a mistrial is within the sound discretion of the tri al court

. See Statev. McKinney , 929 S.W.2d 404, 405 (Tenn. Crim. App. 1996). This Court will not disturb that decis ion absent a fi nding of an abuse of discretion. State v. Adkins , 786 S.W.2d 642, 644 (Tenn. 1990). “Generally a mistrial will be declared in a criminal case only when the re is a ‘manifest
ne ce ss it y’ requiring such action by the trial judge.” State v. Millbrooks , 819 S.W.2d 441, 443 (Tenn. Crim. App. 1991 ). “The

purpose f

or decla ring a m istrial is t o correct damage done

to the judicial process when some event has occurred which pre cludes an impartial verdict.” State v. Will iams , 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996). I n determ ining whether there is a

“manife st

ne ce ss it y” for a m istrial, “‘no abs tract fo rmula sho uld be mec

hanical ly a

pplied an d all circ

umstance s should be taken into account.’” Statev. Mounce , 85 9 S.W .2d 31 9, 322 (Tenn . 1993 ) (quo ting State v. Jones , 218 Tenn. 378, 384; 403 S.W.2d 750, 753 (1966). citation omitted).

We decl ine to hold

that the unsolicite d outburst s or the tr ial judg e’s rema

rks, either sepa

rately or in comb ination, r

ose to the level of prejudic e resulti ng in a “ manifest necessity”for a mist

rial.

The def endant’ s final iss ue is that the trial judge erroneously charged the jury

as to second degree murder and lessened the State’s burden of proof. A defendant has the constitutional right to complete and acc urate jury instructions on the law; the failure to do so deprives a defendant of the constitutional right to

a jury trial. State v. Teel , 793 S.W.2d 236, 249 (Tenn. 1990). The omission in jury instructi ons of an e

lement of the offe nse is subj ect to constituti onal har mless err or analy sis,
na me ly, whether the State can prove harmless err or beyond a r

easonable doubt. State v. Walker , 29 S.W.3d 885, 893 (Tenn. Crim. App. 1999). The per tinent jur y c harge given in this case is as follo ws: A person acts know ingly

if that pe rson act s with an a

warene ss either that his or her conduct is of a particular nature, or that a pa rticular circumstance exists.

The State concedes that the charge was in error but contends it was harmless error. Our supreme court in State v. Ducker , 27 S.W.3d 889, 896 (Tenn. 2000), proclaimed second degr ee murder to be strictly a “re sult of conduct” offense. However, Duc kerwas not a s econd degree murder case. In a late

r murder case, reversible error wa s found for failure to charge second degree murder as a “result of conduct” only

offense. State v. Keith T. Dupree , No. W1999-01019-CCA-R3- CD, 2001 T enn. Crim. App. LEXI S 65, at *11 (Tenn. Crim. App., Jan. 30, 2001, at Jackson), no applic. for

perm. to app. filed . The trial court in Dupree omitted entirely the result of the c onduct element.

The defendant places his reliance on State v. Page , 81 S.W.3d 781 (Tenn. Crim. App. 2002). Page was convicted fo

r second degre e murder

after st riking t he victim once with a baseball bat. Page’s counsel argued

that the defenda

nt was into xicated to s uch an extent that he did not app

reciate his conduct and did not think the blow was tha t severe. Counsel suggested the offense wa s criminally neg ligent homicide. The State responded by emphasizing specifically the nature of the conduct and circumstances surrounding the conduc t elements in the instruction. The charge later given by the trial judge

gave credence

and confirmation to the State’s erroneous contention that the-5-

jury could find the defendant gui lty based upon “the nature of the conduct” or “ the circumstances surrounding the conduct.” It is important to note that the court in Page said, “We recog nize that in
ma ny, if not most, homicide trials, the mens rea jury instructions utilized in this case would be harmless error.” Id. at 789. Following the guidance set forth in Dupree and later in Page , it is clea

r, as the State concedes, the only element of the knowing instruction applicable to second degree murde r is the “result of conduct element.” The defendant’s correct contention that the instruction as given was error and the State’s concession do not, however, conclude our inquiry as to reversible error.

The State contends that the error was harmless. There fore, we must examine w he ther the State has proven harmless error bey ond a reasonable doubt.

The def endant’ s counsel

in the insta

nt case did make r

efere nces tothe defendant’s state of mind and offered alternative defe nses, defense of others and self- defense . Counsel argued specific ally

that the facts were appropriate for either voluntar y manslaughter or self defense. The State, in its rebuttal argum ent, unlike in Page , made no reference to the nature of the defendant’s conduct or the ci rcumstan ces surr ounding his conduct . The defendant’s voluntary manslaughter defense does not deny that he intentionally killed the victim. Instead, it is an attempted justification for an intentional killing. Voluntary manslaughter is defined in Tennessee Code Annota ted section 39-13-211 as “the intention al or knowing killing of another in a state of passion produce d by adequate provocation sufficient to lead a re asonable person to act in an irrational manner.”

We conclude

the instan

t facts a re disting uishable from Page , in that the defen dant did not de ny the inten tional killing of th

e victim a

nd the Stat

e focuse d, and its p

roof show ed, that t

h e defendant fired a shotgun at close rang e into the head of an unarmed victim who was lying on the ground. The defendant’s conduct and defen ses did not call into question whether the defendant’s conduct was likel y to produce death. T he State i s theref

ore cor rect, and they have

proven the error was har mless bey ond a rea sonable d

oubt. Acc ordingl

y, w e affir

m the judg ment of the

trial cou rt.

___________________________________ JOHN EVERETT WILL

IAMS, JUDGE