### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs Jul y

1, 200 8

STA TE OF TENNES SEE v . MARIO W ARD

Direc t Appeal from the Cr im inal Cou rt for Shelby Coun ty No. 05-08628 Car olyn Wad e Blackett , Judge

No. W2007-00672-C CA-R 3-CD - F iled October 27, 2008

Th e de fe nd a nt, Mari o War d, wa s con vic te d by a She lby County jur y of c ri min a l atte mpt

to c omm it

v o lu n ta r y ma n s la u g h te r , a Cl a s s D f

e lo n y , a n d a g g r a v a te d a s s a u lt
, a Cl a s s C f

e lo n y , and wa s subsequently

sentenc ed to conc urre nt six -y ear sentenc es as a

Range I Ioffe nder. O n appea l, the de fe nd ant r a ise s th e sin g le iss ue of wh e the r t

he evid e nc e is s uf

fi c ie nt t o s up po rt

the c on vic tio ns

. Following revie w of the r ecor d, we a ffirm the judg ments of conviction as e ntere d.

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

the Cr im inal Cou rt A ff irm ed

J OHN E VE R E TT W I L L I AMS , J
., delivere d the opinion of the cour t, in which A L AN E. G L EN N a nd J.C. M C L IN , J J ., joined.

Mark Me sle r, Me mph is, Te nn e sse e (o n a pp e a l)
, a nd Ed

wa rd B ro ns te n a nd Pa

ul S pr ing e r, Me mph is, Tenne ssee ( at trial), f

or the a ppellant, Mario Ward.

Rob e rt E

. C o o p e r , Jr
., At tor

ne y Ge ne ra l and

Re po rt e r; Re ne e W. T ur

ne r, As sis tant A tto rn e y

Ge ne ra l; Wil liam L . Gibbons, District Attorney Gene ral; and Paul H ag erma n and Dea n Dec andia, Assistant District Attorney s Gene ral, for the appe llee, State of Te nnessee

.

OP IN ION

F ac tu al B ac kgr ound

Th e tw o v ic tim s in

the c a se , F re dr ic k Pink ins (“ vic tim on e ” ), a nd De a un g e los Ar

tis (“ vic tim
tw o” ), we re sh oo tin g dic e wi th the de fe nd a nt an d sev e ra l othe r pe op le on the nig ht o f t he inc ide nt, and victim one won a substantial a mount of money in the g ame. The victims a nd the def endant ha d known ea ch other

for more than a y ear , often play ed dice, a nd had no pre vious problems with eac h other. Af ter the g ame, the two victims lef t in victim two’s Chevy

Tahoe and proc eede d to a par king lot at Third Street and B roadw ay , which wa s located be twee n a n ightc lub and a “ cra p house.” Victim one, who wa s driving, remaine d in the car t o count his winnings, while vic tim two got out of the car and went toward the re ar of the club to use the bathroom. The def endant, who ha d arr ived-2-

in a sma ll g r e e n c a r , a

p p r o a c h e d v ic ti m tw o a n d d e ma n d e d to kn o w th e lo c a ti o n o f v ic tim one. Victim two observed that a passeng er, whom he did not rec og nize, remained in the de fenda nt’s car

. The de fenda

nt, holding a pistol and spea king in a loud tone of voice , informe d victim two that he wanted his money

back f rom victim one.

Victim one, who wa s talking on the cel l p h o n e in the vehicle, he ard the defe ndant asking wher e he w as. B oth victim one and victim two observed the defe ndant fumbling w ith the gun, a s if it h a d ja mme d, a nd

the n r e tur nin g to h is c a r. Af

te rw a rd s, vic tim tw o o bs e rv e d th e de fe nd a nt w a lk toward the driver’ s side of the Tahoe
, but he lost sig ht of the defe ndant at that p o i n t

. However, victim two heard the defe ndant y el l i n g at victim one to g ive him his money and then he ard two
g unshots. Victim two approac hed the dr iver’s side of the vehicle and sawt h at t h e d ef endant wa s standing beside the ve hicle with a gun, that victim one had been shot in the face , and that ther e wa s a bullet hole in the windshield. At this point, victim two ran toward the back of the “c rap house ,” and, as he was running , two shots were fired at him. The shots were fired from the are a in w hich he had last see n the def

endant. Victim two hid be hind the building for a short time bef ore pr ocee ding back to his vehic le and c alli n g 9-1-1. When he r eturne d to the vehicle, he noticed that the de fe nd ant’ s c a r w a s st ill in the pa rk ing lot bu t nei the r the de fe nd a nt nor the pa sse ng e r w a s p re se nt. Vict i m two later saw

the def endant r eturn to his car

and drive awa

y . Both victims identified the defe ndant, in photogr aphic lineups, a s the shooter.

Police arr ived and secur ed the crime scene. After vic tim one was re moved by ambulance
, Offic er K eith Crosby

interviewe d victim two, who informed him what had occ urre d. Offic er Crosby observe d other pe ople g ather ing at the scene but did not int ervie w them base d o n victim two’s statement. Crime sc en e investi g ators also re sponded to the sce ne. F our 9mm shell casing s were found in the par

king lot. Two of the shell casing s were located be tween the Tahoe and a pa rked c ar, and the r emaining two casing s wer e found on opposite ends of the par king lot. Howe ver, ba sed on wher e the she ll casing s were found, the c rime sce ne o ffice r stated that he could not say wher e the shooter had be en standing when the shots we re f ired.

After a war

rant was issued for his arr est, the defe ndant called the police s t at i o n and made

arr ang ements to turn himself in. He m i s s ed the f irst scheduled time but did come into the station fo ur da y s late r. Whil e the re , h e wa s Mirandized and g ave an ora l statement in which he a dmitted being prese nt at the cr ime scene . Acc ording to the statement, the de fenda n t , the victims, and two individuals known as BigL ee a nd Red had be en g ambling that night. Af ter the vic tims l eft, the others re alized that the dice use d in the g ame ha d been switched, which ang ere d them beca use they felt they had bee n hustled. The de fenda nt said that he proc eede d to the parkinglot where the two victims were know n to hang out and first spoke wit h victim two. The defenda nt stated t hat B ig L ee

was a lrea dy

there and wa s speaking with victim two. The defe ndant asked for $100 of his money back, but victim two was not c ooperative. He then a pproac hed victim one, who ignor ed him . The defe ndant contende d that, while he wa s standing be side the driver ’s side of the T ahoe, he hear d four shots fired fr om be hind him. The defe ndant proce eded to f lee the scene on foot only to return late r to ge t his car.-3-

Following his indictment for one c ount of attempted fir st deg ree murder a nd one count of
ag g ravated assault, t h e d ef endant was tried bef

ore a Shelby County jury . Despite their pr ior ide nti fi c a tio n o f the de fe nd a nt as the sh oo te r, bo th vic tim s tes tif ie d at tri a l th a t th e y

did no t a c tua lly

see the defe ndant fire the wea pon. Nonethele ss, both were clea r in their testimony

that the def

endant

wa s th e on ly pe rs on the y ob se rv e d in the pa rk ing lot that nig ht wit

h a g un wh o wa s ask ing fo r v ic tim one. In fac t, victim two testified that, despite the prese nce of car s in the parking lot, he did not se e any one else outside until after the shots we re f ir ed

. Testimony

was a lso give n by

victim one
reg ardingan incident se vera l months after the shootin g i n which he ha d been a pproac hed in the barbe rshop by

someone who claimed to have been present on the ni g ht of the shooting a nd told that the def endant wa s not the one who shot him. After hear ing this, victim one went to the office of the de fe nd ant’ s atto rn e y

a nd inf or me d h im that, de sp ite his pr e vio us ide nti fi c a tio n, he did no t a c tua lly see the defe ndant shoot him.

Following the pre sentation of proof , the def en dant was c onvicted of the lesser inc luded off en s e o f a t t em p t edv o l u n t ary m an s l au gh t er

an d t h e i n d i ct edo ff

en s e o f a ggra v at edas s au l t . The trial court subseque ntly

sentenc ed him to concur rent six-y ear

sentenc es, as a

Rang e I Ioffe nder, to be

serve d in the Shelby

County workhouse. T he def

endant f iled a timely

motion for new trial, which the trial cour

t denied. This appe al followed.

Ana lys is

On appe al, the def

endant r aises the sing le issue of sufficie ncy of the e vidence . I n considering this issue, we apply the rule that wher e the sufficie ncy of the evidenc e is c halleng ed, the r el evant qu e sti on fo r t he re vie wi ngc ourt

is “ wh e the r, a ft e r v ie wi ngthe e vid e nc e in t he light m os t f

a vo ra ble to the [S tate], anyrational trier of fa ct could have found the e ssential elements of the crime be y ond

a re asonable doubt.” J

ac k so n v . V irg ini a , 443 U. S. 307 , 319 , 99 S. Ct. 27 81 , 2 78 9 ( 19 79 ); se e als o Tenn. R. App. P. 13(e) . Moreove r, the Stat e i s entitled to the strong est leg itimate view of the evidenc e and a ll reasona

ble infer ence s which may be dra wn there from. Sta te v . H

arris
, 839 S.W .2d 54 , 7 5 ( Te nn . 1 99 2)

. Al l qu e sti on s in vo lvi ngthe c re dib ili ty of wi tne sse s, the we ig ht a

nd va lue to be g iven the evidenc e, and all fa ctual issues ar e re solved by the trier of

fac t. State v. Pappas , 754 S.W .2d 620, 623 (Tenn. Crim. App. 1987) . This court will not rewe igh or ree valuate the evidenc e prese nted. State v. Cabbage , 571 S.W .2d 832, 835 (Tenn. 1978)

. “A guilty verdic t by

the jury , approve d by

the trial judg e, ac cr ed i t s t h e t est imony of the witnesses for

the S tate and resolves a ll conflicts in favor of the theory

of the State.” State v. Grac e , 49 3 S. W.2 d 4 74 , 4 76 (T e nn . 1 97 3) . A jur y c on vic tio n re mov e s the pr e su mpt ion of inn oc e nc e wi th which a de fenda

nt is initially cloake d and replace s it with one of g uilt so that, on appea l, a convicte d d e f e n d an t h a s th e b u r d e n o f

d e mo n s tr a ti n g th a t t

h e e v id e n c e is in s u f

f ic ie n t. St atev . Tu

gg le , 639 S.W .2d 913, 914 (Tenn. 1982). These rules are applicable to f indings of g uilt predicate d upon direc t evidenc e, cir cumstantial evidenc e, or a combination of both. Sta te v . M att he ws , 805 S.W .2d 776, 779 (Tenn. Crim. App. 1990)

.-4-

Although a

conviction may

be base d entirely

upon circ umstantial evidence
, Du c ha c v

. Sta te , 505 S.W .2d 237, 24 1 (Tenn. 1974) , in such ca ses, the fa cts must be “so cle arly interwove n and

connec ted that the fing er of g uilt is pointed unerr ingly at the De fenda

nt and the De fenda

nt alone.” State v. Black

, 815 S.W .2d 166, 175 (Tenn. 1991) (ci t i n g State v. Dunc an , 698 S.W .2d 63 (Tenn. 1985)). How ever , as in the case of dire ct evidenc e, the we ight to be g iven circ umstantial evidence and “the infere nces to be drawn from such evidence, and the ex tent to which the cir cumstance s are consistent with guilt and inconsistent w ith innocence , are questions primarily for the jur

y .” Ma ra ble

v . S tat e , 203 Tenn. 440, 313 S.W.2d 451, 457 (Tenn. 1958) ( citations omitt ed).

Th e de fe nd a nt wa s c on vic te d of a tte mpt e d vo lun tary mans la ug hte r a nd a g g ra

vate d a ssa

ult
, and, on appe al, he c halleng es the suff iciency of the e vidence supporting both c onvictions. He specific ally

contends that, e ven take n in the light most favor able to the S tate, the victims’ testimony was insuffic ient to support the convictions bec ause b oth acknowle dg ed that they did not see the de fe nd ant a c tua lly

fi re the g un a nd that the y did se e a se c on d pe rs on in the de fe nd a nt’ s car. He a lso

re lie s u po n th e ir te sti mony that th e y ha d k no wn the de fe nd a nt f

or mor e tha n a y e a r, ha d p re vio us ly shot dice with him, and we re not a fra id when they saw him approa ch with a gun. He f urther contends that the phy sical evide nce f ound at the sce ne did not support the victims’ testimony based upon the location of the shell casing s and the fa ct that a pa rked c ar ha d a gu n s h ot in the back window. He also points to the fac t that police failed to inter view any of the other witnesses at the

scene and failed to searc h for B ig L ee, w hom the defe ndant, in his statement, contends wa s there at the time of the shooting. Fr om his arg ument, we g lean that the de fenda nt is arg uing that the evidenc e is i ns uf fi c ie nt t o e sta

bli sh , b e y on d a

re a so na ble do ub t, his ide nti ty a s the pe rp e tr a tor of the c ri me s.

Th e ide nti ty

of the pe rp e tr a tor

is r e qu ir e d to be e sta

bli sh e d, as ide nti ty

is a n in dis pe ns a

ble element of

the cr ime. Se e W

hit e v . S tat e , 533 S.W .2d 735, 744 (Tenn. Crim. App. 1 9 7 5 ). The identity of an a ccuse d may

be es t abli shed by

either dire ct evidenc e, cir cumstantial evidenc e, or a combination of the two. S ta tev

. Th o m

pson , 51 9 S .W.2d

78 9, 79 3 ( Te nn . 1 97 5) . “ Th e c re dib le testimony of one ide ntification witness is sufficient to support a c onviction if the witness viewed the

acc used under

such circ umstances a s woul d p er mit a positi ve identification to be made.” State v. Radley, 29 S.W. 3d

53 2, 53 7 (T e nn

. Cr im. Ap p. 19 99 ). I de nti ty is a qu e sti on of fa c t fo r the jur y to deter mine afte r consider ation of all the e vidence

. State v. Strickland, 885 S.W .2 d 85, 87 (Tenn. Crim. App. 1993).

I n addition to his gene ral a rg ument that the testimony of the witnesse s and the plac ement of the e vidence at the sce ne fa ils to support the conviction for attempted voluntary manslaug hter, the de fe nd ant a lso c on te nd s th a t th e re wa s n o e vid e nce p res ent ed by any Sta te wi tne ss w ithre g a rd to “provoc ation . . . to cre ate a state of pa ssion” which “w o u l d ca u s e a reasonable pe rson to do ir ratio na l th ing s. ” Th e de fe nd a nt c on te nd s that, a c c or din g to the te sti mony of the Sta te ’s wi tne sse s, he ar rived on the sc ene in se arc h of victim one and the n shot him wit hout any conver sation.

Voluntary

manslaug hter is “the intentional or knowing killing of a

nother in a state of passion produce d by

adequate provoc ation sufficie nt to lead a re asonable person to ac t in an irrational manne r.” T.C.A. § 39- 13-211(a ) (2006) . One a cts intentionally “whe n it is the pe rson’s-5-

conscious objec tive or desire to eng ag e in the conduct or cause the result.” T.C.A. § 39-11-302( a) (2006). A pe rson ac ts knowingly with respec t to the results of his or her conduct “ when the pe rson is a war e that the conduct is r easona bly cer tain to c ause the result.” T.C.A. § 39-11-302( b). A pe rson commits criminal attempt when he or she, “acting with the ki nd of culpabilit y otherwise r equire d for the of fe ns e ,” e ng a g e s in

on e of the fo llo wi nga c tiv iti e s:

(1 ) I nte nti on a lly

e ng a g e s in

a c tio n o r c a

us e s a re su lt that wou ld co ns tit

ute a n o ff e ns e if the circ umstances surrounding the conduct wer e as the pe rson believe d them to be;

(2) Ac t s wi t h i n tent to cause a re sult that is an element of the of fense if the circ umstances surr ounding the conduct we re a s the person be lieved them to be;

or

(3 ) Ac ts w ithint e nt t o c omp le te a c ours e of

a c tio n o r c a

use a res ul t that w ou ld
const i tute the offe nse, under the circ umstances surr ounding the conduct a s the person be lieves them to be, a nd the conduc t constitutes a substantial step toward the commission of the offe nse.

T.C.A. § 39-12-101( a) (2006). Whil e the defe ndant was indicted for attempted first deg ree murder, the law i s settle d tha t atte mpt e d volu nta ry mans la ug hte r is a le sse r i nc lud e d o ff e ns e of a tte mpt e d f

ir st deg ree murder unde r par

t (b) of the Burns test. State v. Dominy , 6 S.W .3d 472, 477 (Tenn. 1999) ; State v. W illiam Binkley , No. M2001-00404-CCA-R3- CD (T enn. Crim. App., at Na shville, Apr. 5, 20 02 ); State v. Jake Chri stopher Rey nolds , No. M2000-00210-CCA-R3-CD (T enn. Crim. App., at Nashville, May

23, 2001).

A person commits ag g ravated assault who i ntentionally or knowing ly

commits an assault as de fi ne d in

Te nn ess ee Co de Anno ta te d s e c tio n 3 9- 13 -1 01 and , a s r e le va nt h e re , u se s o r d isp lay s a de a d ly w e a p o n

. T

. C. A

. § 3 9

- 1 3

- 1 0 2 ( a ) ( 2 0 0 6 )

. Pur s u a n t t o s e c ti o n 3 9

- 1 3

- 1 0 1
, an a s s a u lt
, as committed in this case , occur s if a person intentionally or knowing ly cause s another to f

ear imminent bodily injury . T.C.A. § 39-13-101( a)( 2) (2006)

.

I nitially
, we addre ss the defe ndant’s contention that the evidenc e fails to e stablish that, whe n th e c r im e s o c c u r

r e d
, h e w a s a c ti n g in

a “ s tate o f p a s s io n ” p r o d

u c e d b y “ a d e qu a te p r o v o c a ti o n

. ” We d i s agr ee wi t h h i s s t at em en tt h at n o ev i d en c e wa s p re s en t edt o es t ab l i s h t h i s el em en t

. T h ro u gh questioning by

the def enda n t ’s counsel, as well as the de fenda nt’s own statement whic h was introduced throug h an investi g ator, there wa s evidenc e pre sented that the de fenda nt was under

the impression that the v i ct i m s h ad cheated him out of money while shooting dic e. The defe ndant’s
state me nt i nd ic a te s th a t up on a sc e rt ain in g th is f

a c t, h e imm e diate ly

le ft the are a and pr oc e e de d to the location he be lieved the victims would be. The de fenda nt was ar med with a we apon and demande d to know wher e victim one was so that he could rec laim his money . Both victims testified that the def

endant a ppear ed ang ry

and that he w as cur sing a

nd speakingin a loud tone of voice . That bo th v ic tim s d e nie d c he a tin g is i rr e le va nt, a s it wa s th e de fe nd a nt’ s b e lie f w hic h is ma te ri a l to-6-

establishing this ele ment. The e vidence prese nted was more than suffic ient to allow a rational jury to conclude that the defe ndant was a cting in a “state of passion.”

The de fenda

nt d o es not dispute that the crimes of attempted voluntary manslaug hter a

nd
ag g ravated assault we re c ommitt ed ag ainst the victims on the night in questi on. Victim one suffe red

a ser ious wound after

being shot in the face , and victim two was shot at t wice while running from the sce ne in fe ar. As noted, the def endant simply

appea rs to argue that his identity as the pe rpetrator of the c ri me s wa s not es ta

bli sh e d. We dis a g re e . Wh ile the e vid e nc e su pp or tin g his c on vic tio ns wi th

re g ard to i de nti ty

is c ir c ums tanti a l a s n o w itn e ss s a w h im a ctua lly fi re the g un , th e fa c ts a

re “ so clea rly interwove n and connec ted that the fing er of g uilt is pointed unerr ingly at the [d] efe ndant and the [d] efe ndant alone.” See B lack, 815 S.W .2d at 175.

Both of the vi ctims testified t hat they saw the de fenda

nt in the parking lot imm ediately prior to the shooting a

nd that he dema

nded to know victim one’s location was so he could g et his money back. E ach vic tim testi fied that the d ef en d an t was ang ry

and that he w as in possession of a gun. Victim two saw t he defenda nt walk to the driver’s side of the ve hicle, whe re he subsequently hear d two shots fired. W hen victim two walked to that side of t he vehicle, he saw the def endant standing with the g u n i n h i s h and. After see ing that victim one had bee n shot, victim t wo fled a nd was subsequently

shot at twic e. Those shots we re fired from the direc tion in which victim two last saw the defe ndant standing

. Both victims spec ifically testified that they saw no one else in the pa rking lot wi th a g un that e ve nin g . M or e ov e r, the de fe nd a nt, a lth ou g h d e nyingc omm itt ingthe sh oo tin g s, did admit to being at t he scene, specifica lly by the driver’s side of the T ahoe w here the shots were fired. T his evidence is mo re t h an s u fficient to support an infere nce that the defe ndant was responsible for

the shootings.

The de fenda

nt’s c o n te n ti o n s w ith reg ard to the pla ceme nt of the phy sical evide nce, the failure of police to intervie w other pote ntial witnesses, t he presence of t he passeng er in the defenda nt’s car
, an d t h e f a c tt h a tn e i t h e r

v i c t i m w a s s c a r e d

o f t h e d e f e n d a n tw e r e a l l i s s u e s p l a c e d b e f o r e t h e j u r

y, whose provinc e it is to determine the we igh t t o b e gi v en to all evidenc e. The jury hear d the testimony pres en t ed , including that neither victim specif ically saw the de fenda

nt fire the w eapon, and we ighe d the cre dibilit y of the testimony . Obviously , from their ve rdict, the jury found that the defe ndant’s stateme nt that he had not committed the shooting s was n o t cre dible. I t is not t he province of this c ourt to r ewe igh or ree valuate the evidenc e pre sented. Cabbage
, 571 S.W .2d at 835. Our re view of the rec ord reve als that the evidenc e pre sented wa s sufficient to allow a rational juror to conclude that the defe ndant was guilty of the c rimes bey ond a re asonable doubt.

CO NC LU SION

Ba sed upon the for eg oing, the judgme nts of conviction ar e af firmed.

___________________________________ J OHN EV ERETT WI L L I AMS, J UDGE