FILED

October 26, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

AUGUST SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9801-CC-00016

)

Appellee, )

)

) DECATUR COUNTY

VS. )

) HON. JULIAN P. GUINN

JOSEPH LEE M CDANIEL, JR.) JUDGE

)

Appellant. ) (Direct Appeal)

FOR THE APPELLANT: FOR THE APPELLEE:

JOSEPH LEE MCDANIEL, JR. JOHN KNOX WALKUP

Pro Se Attorney General and Reporter

Hardeman County Corr. Facility

P. O. Box 549 GEORGIA BLYTHE FELNER

Whiteville, TN 38075 Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243-0493

ROBERT RADFORD

District Attorney General

JERRY WALLACE

Assistant District Attorney

Decaturville, TN 38329

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
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OPINION

The Appellant, Joseph Lee McDaniel, Jr., was convicted by a Decatur

County jury of one count of reckless endangerment, a Class E felony. The trial

court sentenced him as a Range I offender to two (2) years incarceration. On

appeal, Appellant challenges the sufficiency of the convicting evidence and

argues that his sentence is excessive. After a review of the record before this

Court, we find no error and affirm the trial court’s judgm ent.

FACTS

At approximately 10:00 p.m. on September 7, 1993, Owen Jimmy Keefus

was traveling eastbound on Interstate 40, several miles west of Exit 126 in

Decatur County. Keefus was driving his tractor trailer in the right lane of I-40

East when a red pick-up truck passed him on the right shoulder traveling at

approximately 75 to 80 miles per hour. When the truck pulled in front of him,

Keefus noted that the license plate number on the truck read “YKK-200.” The

truck then passed a U-Haul which was traveling in front of Keefus and proceeded

eastbound in the right lane. Keefus also passed the U-Haul, and when he pulled

alongside the pick-up in the left lane, he saw the driver’s arm extended out of the

window, saw “a flash” and then heard something hitting his truck. Although he

did not hear gunshots, Keefus saw that the driver was holding a small firearm.

During the incident, he was able to fully observe the person in the pick-up truck

and identified him at trial as the Appellant. 
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After the altercation, Keefus pulled his vehicle to the side of the road and

radioed for assistance. He observed marks on his vehicle resembling bullet

holes which had not been present prior to this incident.

Shortly thereafter, Tennessee Highway Patrolman James Blackmon

arrived at the scene. Keefus gave him the vehicle’s license plate number and a

description of the vehicle and the driver. Upon his inquiry as to the license plate

number, Trooper Blackmon learned that the pick-up was registered to the

Appellant. Blackmon later spoke with Appellant, who conceded that Keefus’

description of the driver and pick-up was a “pretty close” description of him and

his vehicle. 

Appellant was subsequently indicted on one (1) count of aggravated

assault with a deadly weapon. At trial, Troopers Blackmon and Roy Kent

Yoquelet testified that the markings on the victim’s vehicle appeared to have

been caused by gunfire. Further, Trooper Yoquelet stated that he saw a bullet

lodged in the radiator of Keefus’ vehicle. 

Appellant presented an alibi defense at trial through the testimony of

Patricia Crum. Crum, a Mississippi resident and business associate of Appellant,

testified that she was with the Appellant on September 7, 1993. She and

Appellant had a business meeting in Mem phis at approximately 2:00 p.m., and

Appellant later joined her and her husband for dinner in Memphis. Crum testified

that after dinner, Appellant followed her and her husband to their home in

Mississippi and did not leave until after 1:00 a.m. on Septem ber 8. 

Appellant also presented the testimony of Steven Russell, an investigator

with the Tennessee Department of Safety. Russell stated that no bullets or bullet

fragments were recovered from the victim’s vehicle. However, even though no
1

 Appellant concedes that no motion for new trial was filed “within thirty (30) days of the date the

orde r of se nten ce is e ntere d” as ma ndated by Ten n. R. C rim. P. 33 (b). T hus , all issu es which ma y resu lt

in the gran ting of a ne w trial are wa ived. Ten n. R. App . P. 3(e); State v. Sowder, 826 S.W.2d 924, 926

(Tenn. Crim. App . 1991). Wh ile Appellant correctly notes that this Court may review the record for errors

which af fect the s ubstan tial rights of the accus ed, see State v. Ma rtin, 940 S.W .2d 567, 569 (Tenn. 1997 ),

no such error is apparent from our review of the record.

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ballistics expert examined the victim’s vehicle, Russell testified that, in his

opinion, a bullet projectile caused the damage to Keefus’ truck. 

At the conclusion of the proof, the jury returned a guilty verdict for the

lesser offense of felony reckless endangerment. A date for sentencing was set,

but Appellant failed to appear. He was eventually apprehended in Arkansas in

April 1997. The trial court thereafter sentenced him as a Range I offender to two

(2) years incarceration. From his conviction and sentence, Appellant brings this

appeal.

SUFFICIENCY OF THE EVIDENCE

In his first issue, Appellant contends that the evidence is insufficient for a

reasonable trier of fact to conclude that he is guilty beyond a reasonable doubt.1

He argues that the victim’s testimony is contradictory in several respects, and

therefore, this Court should disregard his testimony in its entirety. He further

claims that because the state failed to present a weapon, a bullet or expert

ballistics testimony at trial, the jury was allowed to speculate as to whether the

crime was committed with a deadly weapon.

A.

When an accused challenges the sufficiency of the evidence, this Court

must review the record to determine if the evidence adduced during the trial was

sufficient “to support the findings by the trier of fact of guilt beyond a reasonable

doubt.” Tenn. R. App. P. 13(e). This rule is applicable to findings of guilt
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predicated upon direct evidence, circumstantial evidence or a combination of

direct and circumstantial evidence. State v. Brewer, 932 S.W .2d 1, 19 (Tenn.

Crim. App. 1996).

In determining the sufficiency of the evidence, this Court does not reweigh

or reevaluate the evidence. State v. Cabbage, 571 S.W .2d 832, 835 (Tenn.

1978). Nor may this Court substitute its inferences for those drawn by the trier

of fact from circumstantial evidence. Liakas v. State, 286 S.W.2d 856, 859

(Tenn. 1956). To the contrary, this Court is required to afford the state the

strongest legitimate view of the evidence contained in the record as well as all

reasonable and legitimate inferences which may be drawn from the evidence.

State v. Tuttle, 914 S.W.2d 926, 932 (Tenn. Crim. App. 1995).

Questions concerning the credibility of the witnesses, the weight and value

to be given the evidence as well as all factual issues raised by the evidence are

resolved by the trier of fact, not this Court. Id. Indeed, “[a] guilty verdict by the

jury, approved by the trial judge, accredits the testimony of the witnesses for the

State and resolves all conflicts in favor of the theory of the State.” State v. Grace,

493 S.W .2d 474, 476 (Tenn. 1973).

Because a verdict of guilt removes the presumption of innocence and

replaces it with a presumption of guilt, the accused has the burden in this Court

of illustrating why the evidence is insufficient to support the verdict returned by

the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

B.

Appellant claims that several aspects of Keefus’ testimony were

inconsistent; therefore, his testimony should be disregarded in its entirety. First,

he complains that Keefus’ testimony concerning the time of the incident was

contradictory. During his direct testimony, Keefus stated that the altercation
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occurred between 10:00 and 10:30 p.m. However, on cross examination, he was

confronted with a report to his employer whereby he related the time of the

incident as 9:00 p.m. Although Keefus initially denied making the statement, he

eventually conceded that he gave his employer the wrong time. Keefus testified

that at the time he reported to his employer he was possibly confused as a result

of the stress of having a weapon fired at him. Furthermore, Keefus’ testimony

concerning the time of the incident was corroborated by the testimony of

Troopers Blackmon and Yoquelet, who testified that the incident occurred shortly

after 10:00 p.m. 

Appellant also claims that other portions of Keefus’ testimony were

conflicting. However, any trivial inconsistencies were resolved by the trier of fact.

This issue is without merit.

C.

Appellant also contends that because the state did not present a weapon,

a bullet or expert ballistics testimony at trial, the jury was allowed to speculate

whether the crime was committed with a deadly weapon.

Reckless endangerment is defined as “recklessly engag[ing] in conduct

which places or may place another person in imminent danger of death or serious

bodily injury.” Tenn. Code Ann. 39-13-103(a) (1991). Reckless endangerment

that is committed with a deadly weapon is a Class E felony. Tenn. Code Ann. 39-

13-103(b) (1991).

Keefus testified that when he pulled alongside the Appellant, he saw the

Appellant pointing a small firearm at him, saw “a flash” and then heard something

hitting his truck. Although he did not hear gunshots, Keefus examined his vehicle

and observed marks which resem bled bullet holes. Additionally, Troopers

Blackmon and Yoquelet testified at trial that the markings on the victim ’s vehicle
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appeared to have been caused by gunfire, and Trooper Yoquelet saw a bullet

lodged in the radiator of Keefus’ vehicle. Furthermore, Investigator Russell, a

defense witness, opined that the damage to the victim ’s vehicle was caused by

a bullet projectile. 

In light of the foregoing, we conclude that a rational juror could conclude

that the crime was committed with a deadly weapon. Certainly, firing a weapon

at a vehicle while traveling at high speeds on a public roadway constitutes

“conduct which places or may place another person in imminent danger of death

or serious bodily injury.” Tenn. Code Ann. 39-13-103(a) (1991). Moreover, there

is overwhelming evidence that Appellant was the perpetrator of the crime. The

victim identified Appellant at trial, and the license plate “YKK-200" was registered

in Appellant’s name. 

The evidence is more than sufficient to support Appellant’s conviction for

felony reckless endangerment. 

SENTENCING

In his next issue, Appellant asserts that the trial court imposed an

excessive sentence of two (2) years for felony reckless endangerment. However,

Appellant failed to include the transcript of the sentencing hearing in the record

for this Court’s review. It is the duty of the Appellant to prepare an adequate

record for appellate review. Tenn. R. App. P. 24(b). “When a party seeks

appellate review there is a duty to prepare a record which conveys a fair,

accurate and complete account of what transpired with respect to the issues

forming the basis of the appeal.” State v. Ballard, 855 S.W.2d 557, 560 (Tenn.

1993). In the absence of an adequate record on appeal, this Court must
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presume that the trial court's rulings are supported by sufficient evidence. State

v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991).

Because Appellant failed to submit the sentencing hearing transcript in the

record, we must presume that the trial court sentenced him correctly. See State

v. Carey, 914 S.W .2d 93, 97 (Tenn. Crim. App. 1995); State v. Ivy, 868 S.W.2d

724, 728 (Tenn. Crim. App. 1993). This issue is without merit.

CONCLUSION

We conclude that the evidence is sufficient for a rational trier of fact to find

Appellant guilty of felony reckless endangerment beyond a reasonable doubt.

Moreover, Appellant’s failure to submit the sentencing hearing transcript results

in a waiver of his sentencing issue. Accordingly, we affirm the judgment of the

trial court.

____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

DAVID H. WELLES, JUDGE

___________________________________

JOHN K. BYERS, SENIOR JUDGE