# FILED
October 26, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON AUGUST SESSION, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9801- CC-00016 ) Appellee, ) ) ) DECATUR COUNTY VS. ) ) HON. JULI AN P. GUINN JOS EPH LEE M CDAN IEL, JR .) JUDGE ) Appe llant. ) (Direct Ap peal)

FOR THE APPELLANT : FOR THE APPELLEE : JOSEPH LEE MCD ANIEL, JR. JOHN KNOX WALKUP Pro Se Attorney Generaland Reporter Harde man C ounty C orr. Facility P. O. Box 549 GEORGIA BLYTHE FELNER Wh iteville, TN 3 8075 Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243-0493 ROBERT RADFORD Distri ct Attorney General JERRY WALLACE Assistant Distri ct Attorney Decaturvil le, TN 38329

OPINION FILED ________________________ AFFIRMED JERRY L . SMI TH, J UDGE-2- 

## OPINION

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

of one count of rec kless endangerment, a Class E felony . The trial court sentence d hi m as a Ra nge I offende r t o tw o (2)year s in carcerati on. On appe al, Appellant cha llenges the sufficienc y of the convicti ng evidence and argues that his

sentence is excessive. After a review of t he r ecor d befo re this Court, w e find no e rror and a ffirm the trial co urt’s judgm ent.

FACTS

At appro ximate ly 10: 00 p. m. on September 7, 1 993, Owen Ji mmy Keefus
w as traveling ea stboun d on Inter state 40, s everal m iles west o f Exit 126 i n DecaturCounty. Keefus was drivi ng his trac tor tr ailer i n t h e right l ane of I-40 East when a red pick-up truck passe d hi m o n the right shoulder t raveli ng at appro ximate ly 75 to 80 miles per hour. When the truck pulle d in front of h im, Keefus n oted that

the l icen se pl ate n umber o n thetru ck re ad “Y KK-200 .” Th e truckthen passed a U-Haul whi ch was travel ing in f ront of Keef us and proceeded eastbound in the ri ght lane. Keefus also passed the U-Haul, and when he pulled alongsidethe pick- up in the l eft lane, he saw the driver’ s arm extended out of the window, saw “a flash” andthen heard somethi ng hitti ng his truc k. Altho ugh he did not hear guns hots, Keef us s aw t hat thedriver

was hol din g a s mallfi rea rm. During the inc ident, h e was able to fully observe the person in the pick-up t ruck and ide ntified him at trial as the A ppellant.-3- After the alter

cation, Keefus pulledhis vehic le to theside of t he road and radioed for ass istanc e. He o bserv ed m arks o n his vehicle resembling bul let holes w hich had not bee n prese nt prior to this in cident. Shor tly thereafter, Tennessee H ig hway Patrolman James Blackmon arrivedat the scene. Keef us gave him the veh icle’ s license pl ate numberand a descripti on of the vehicle and the driver. Upon his inquiry as to the license plate numbe r, Trooper Blackmon learned that the pick-up was registered t o th e Appe llant. Bla ck mon later spoke with Appellant, who conceded that Keefus’ descripti on of the driver a nd pick-u p was a “pretty close” desc ription o f him and his vehicle
. Appellant

was subsequently

indicted on one (1) count of aggravated
assa ult with a dea dly weap on. At trial , Troopers Blac kmon and Roy Kent Yoquelettestified that th e marking s on the victim’s veh icle appeared to have been caused b y gunfire. Further, Tro oper Y o quelet stated that he saw a bullet lodged in the radia tor of Kee fus’ vehicle
. Appellant

presen ted an a libi defense at t ria l through t he testi mony of Patric ia Crum

. Crum , a Mississ ippi reside nt and b usiness associa te of Appe llant, testif ied that s he wa s with theAppellant on September 7, 1993. She and Appellant

had a busin ess m eeting in Mem phis a t appro ximate ly 2:00 p.m ., and Appellant

later j oined her and her husband for di nnerin Mem phis. Crum testif ied thatafter di nner, Appell ant foll owed her and her husband to the ir hom e in Mississip pi and did not leave until after 1:00 a.m. on Septem ber 8. Appellant

also prese nted th e testim ony of S teven Russ ell, an investi gator with the Tennessee Departmentof Safety . Russell stated that no bullets or bull et fragments were r

ecovered from the vi ctim’s ve hicle. However, even though no1 Appellant concedes that no moti on for new trial was f iled “ withi n thirt

y (30) day

s of the date the orde r of se nten ce is e ntere d” as ma nda ted b y Ten n. R. C rim . P. 33 (b). T hus , all issu es w hich 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 i s apparent fr om our review of the record.

-4- ballisti cs exper t exam ined th e victim ’s vehic le, Rus sell test ified tha t, in his opinion, a bullet proje ctile cause d the da mage to Keefu s’ truck. At the conc lusion of th e proof, t he jury re turned a guilty verdi ct for t he lesser offense of

felony reckless endan germe nt. A date fo r senten cing wa s set, but Appellant

failed to appe ar. He was e ventu ally app rehen ded in Arkan sas in April 1997. The tri al court thereafter sentenced him as a Range I offende r to t wo (2) years incarcerat ion. From his con viction a nd se ntenc e, App ellant b rings th is appe al.

SUFFICI ENCY OF THE EVI DENCE

In his fi rst iss ue, Appellant contends that the evidence is i nsuffic ientfor a
reaso nable trier of fact to conclude that he is guil ty beyond areason able do ubt. 1 He argues that the vict im’s test imony is cont radictor y in several resp ects, and therefor e, this Cou rt should d isregard hi s testi mony in its entiret y. He furt her
c lai ms that b ecause the state failed to presen t a weapon , a bullet or expert ballisti cs testimony at tri al, the jury was allowed to speculate as t o whether the crime was committed with a deadly weapon. A. When an accused chall enges the suff iciency of the evi dence, thi s Cour t must review

the record t

o determine i f the evi dence adduced during the tri al was suffic ient“to support the findings by the trier o f fact of g uilt beyo nd a re ason able doubt.” Tenn. R. App. P. 13( e). This ru le is app licable to findin gs of g uilt-5-

predicatedupon direct evidence, c ircumstanti al evidence or a combinati on o f directand circu mstan tial evidenc e. State v. Brewer , 932 S.W

. 2d 1, 19 (T enn. Crim. App . 1996). In determiningthe sufficiency of the evide nce, this Cou rt does not rewei gh
or reevalua te the evide nce. State v. Cabbage , 571 S.W .2d 8 32, 835 (Tenn. 1978). Nor may this Court substit ute i t s inferences for thos e drawn by the t rier of fac t f rom c ircum stantial evid ence. Liakas v. S tate , 286 S.W.2d 856, 859 (Tenn. 1956). To the contrary, t his Court is requ ired to af ford the state the strongest legiti mate view of the e videnc e con tained in the re cord a s well a s all
re ason able and legit imate inferences which may be dr awn from the ev idence
. State v. Tuttle , 914 S.W .2d 926, 932 (Tenn. Crim . App. 1995 ). Questions conce rning the credibility of the witnesses, the wei ght and value to be given the evidence as well as al l factua l issues raised b y the evidence a re resolved by

the trier of fact, not th is Court. Id. Indeed, “[a] guilty verdict by the jury, approved by t he trialjudge, accredits the test imony of the witnesses for t he State and resolves all conflicts in favor of the the ory of the State.” State v. Grace , 493 S.W .2d 474, 476 (Tenn. 197 3). Because a verdict

of guil t removes the pr esumption o f inno cence and replacesit with a presu mption of gui lt, t he accused has theburden in this C ourt of ill ustrati ng why the eviden ce is insuffi cient to support the verdict

returned by the trier of fac t. State v. Tug gle , 639 S.W .2d 913, 914 (Tenn. 198 2). B. Appellant

claims th at severa l aspects of K eef us’ testimony w ere inconsis tent; therefo re, his testim ony sh ould be disreg arded in its entirety. First, he comp lains that K eefus’ tes timony c oncern ing the tim e of th e incid ent was contradictory. During h is direct t esti mony, Keefus stated that the altercat ion-6-

occurred between 10: 00 an d 10: 30 p. m. However, on cross examination, he was confronted with a report to his em ployer whereb y h e related t he time of t he incident as 9:00 p.m. Al though Keefus i nitial ly deniedmaking the state ment, he event ually conc eded that he gave h is employerthe wrong ti me. Keefus test ified thatat the time he r

eported to hi s employer he was possi bly confusedas a resu lt of the stress

of having a weapo n fired at him. Furthermore, Keefus’ testimony concerning the ti m e of the i ncident was cor roborated by the testi mony of Troopers Black mon and Y oque let, who testified that the incide nt occ urred shortly after 10:0 0 p.m. Appellant

a ls o claims that oth er portions of Ke efus’ testimony w ere confli cting. Howeve r, any trivial inconsistencies we re resolved by the trier of fa ct. This issu e is withou t merit. C. Appellant

also contends t hat becau se the sta te did not p resent a weapon, a bul let or expe rtbal li sti cs test imo n y at trial, the jury w as allowe d to spec ulate whether the crime was committed wit h a deadly weapon. Reckless endangerment is defined as “reckle ssly engag[ing] i n conduct which places or

may place another

person in i mminent danger of deat h or serious bodily injury .” Tenn. Code Ann. 39-13-103( a) (1991). Reckless endangerment thatis committed with a deadly weapon is a Class E felony. Tenn. Code Ann. 39- 13-103(b) (19 91). K eef us testified that when he pulled al ongside the Appel lant, he s aw the Appellant

pointin g a sm all firearm at him, sa w “a flash” andthen heard somethi ng hitti ng his truc k. Altho ugh h e did n ot hea r guns hots, K eefus exam ined h is vehic le and observed marks whi ch resem ble d bullet holes. Add itionally, Troopers Blackmon and Yoquelet testifi ed at tri al that the markings on the victim ’s vehic le-7-

appeared to have been caused by gunfire, and Trooper Yo quelet sa w a bullet lodged in the radia tor of Kee fus’ vehicle . Furth e rmore , Investigato r Russe ll, a defense witness, opined that the dam age to the victim ’s vehic le was caused by a bullet pro jectile. In light of the for

egoing, we concl ude that a rationaljuror coul d conclude thatthe crim e was com mitted with a d eadly weapo n. Certainl y, fi ring a weapon at a vehiclew hile tr

avel ing at hi gh speeds on a publi c roadway constitutes “conduct which places or may pl ace another pers on in imminent danger of death
or serious bodily injury.” Ten n. Code A nn. 39-13-10 3(a) (1991). Moreover, there is overwhel ming evidence t hat Appellant was the perpetr

ator of the crime. The victim identified Appellant at trial , and the license pl ate “YKK-200" was r egistered in Appe llant’s nam e. The evidence is m ore than sufficient to su pport Appe llant’s convicti on for felony rec kless en dange rment.

SENTENCING

In his next issue, Appell ant asse rts that the trial court imposed an excessive sentence of t wo (2) years forfelony reckless end angerm ent. Howeve r, Appellant

failed to incl ude the transc ript of the sentenci ng hearing in the record forthis Court ’s revi ew. It i s the duty of the A ppella nt to prep are an a dequa te record for app ell ate review. Tenn. R. App. P. 24(b). “When a party seeks appellate review there is a du ty to prepare a record which conveys a fair,
accura te and co mplete accou nt of wha t t ranspired wi th respect to the issues forming the ba sis of the appea l.” State v. Ballard , 855 S.W.2d 557, 560 (Tenn. 1993). In the absence of an ad e quate record on appeal, this Court must-8-

pre sumethat the t rial cour t's rul ings are sup ported b y sufficient ev idence
. State v. Oody , 823 S.W .2d 554, 559 (Tenn. Crim . App. 1991 ). Because Appella nt failed to submit the sentencing heari ng transcri pt in the record, we must presume that t he trialcourt senten ced him correctly. See State
v. Carey , 914 S.W .2d 93, 97 (Tenn . Crim. A pp. 199 5); State v. Ivy , 868 S.W.2d 724, 72 8 (Ten n. Crim. A pp. 199 3). This iss ue is witho ut merit.

CONCLUSI ON

We conclude that

the eviden ce is suffic ient for a rationaltrier

of fact to find Appellant

guilty of felony reckless endan germe nt beyon d a reas onable doubt. Moreover, Appellant’ s fail ure to submit the sentencing hearing transcript re sults in a waiver of

his sentenci ng issue. Accor dingly, we affirm the ju dgment of the trial court.

____________________________________ JERRY L . SMI TH, J UDGE

CONCUR:

___________________________________ DAVID H. WELLES , JUD GE

___________________________________ JOHN K. BYERS, SENIORJUDGE