IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs July 1, 2008

STATE OF TENNESSEE v. MARIO WARD

Direct Appeal from the Criminal Court for Shelby County

No. 05-08628 Carolyn Wade Blackett, Judge

No. W2007-00672-CCA-R3-CD - Filed October 27, 2008

The defendant, Mario Ward, was convicted by a Shelby County jury of criminal attempt to commit

voluntary manslaughter, a Class D felony, and aggravated assault, a Class C felony, and was

subsequently sentenced to concurrent six-year sentences as a Range II offender. On appeal, the

defendant raises the single issue of whether the evidence is sufficient to support the convictions.

Following review of the record, we affirm the judgments of conviction as entered. 

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

JOHN EVERETT WILLIAMS,J., delivered the opinion of the court, in which ALAN E. GLENN and J.C.

MCLIN, JJ., joined.

Mark Mesler, Memphis, Tennessee (on appeal), and EdwardBronsten and Paul Springer, Memphis,

Tennessee (at trial), for the appellant, Mario Ward.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;

William L. Gibbons, District Attorney General; and Paul Hagerman and Dean Decandia, Assistant

District Attorneys General, for the appellee, State of Tennessee.

OPINION

Factual Background

The two victims in the case, Fredrick Pinkins(“victim one”), and Deaungelos Artis (“victim

two”), were shooting dice with the defendant and several other people on the night of the incident,

and victim one won a substantial amount of money in the game. The victims and the defendant had

known each other for more than a year, often played dice, and had no previous problems with each

other. After the game, the two victims left in victim two’s Chevy Tahoe and proceeded to a parking

lot at Third Street and Broadway, which was located between a nightclub and a “crap house.”

Victim one, who was driving, remained in the car to count his winnings, while victim two got out

of the car and went toward the rear of the club to use the bathroom. The defendant, who had arrived
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in a small green car, approached victim two and demanded to know the location of victim one.

Victim two observed that a passenger, whom he did not recognize, remained in the defendant’s car.

The defendant, holding a pistol and speaking in a loud tone of voice, informed victim two that he

wanted his money back from victim one. 

Victim one, who was talking on the cell phone in the vehicle, heard the defendant asking

where he was. Both victim one and victim two observed the defendant fumbling with the gun, as

if it had jammed, and then returning to his car. Afterwards, victim two observed the defendant walk

toward the driver’s side of the Tahoe, but he lost sight of the defendant at that point. However,

victim two heard the defendant yelling at victim one to give him his money and then heard two

gunshots. Victim two approached the driver’s side of the vehicle and saw that the defendant was

standing beside the vehicle with a gun, that victim one had been shot in the face, and that there was

a bullet hole in the windshield. At this point, victim two ran toward the back of the “crap house,”

and, as he was running, two shots were fired at him. The shots were fired from the area in which he

had last seen the defendant. Victim two hid behind the building for a short time before proceeding

back to his vehicle and calling 9-1-1. When he returned to the vehicle, he noticed that the

defendant’s car was still in the parking lot but neither the defendant nor the passenger was present.

Victim two later saw the defendant return to his car and drive away. Both victims identified the

defendant, in photographic lineups, as the shooter. 

Police arrived and secured the crime scene. After victim one was removed by ambulance,

Officer Keith Crosby interviewed victim two, who informed him what had occurred. Officer Crosby

observed other people gathering at the scene but did not interview them based on victim two’s

statement. Crime scene investigators also responded to the scene. Four 9mm shell casings were

found in the parking lot. Two of the shell casings were located between the Tahoe and a parked car,

and the remaining two casings were found on opposite ends of the parking lot. However, based on

where the shell casings were found, the crime scene officer stated that he could not say where the

shooter had been standing when the shots were fired. 

After a warrant was issued for his arrest, the defendant called the police station and made

arrangements to turn himself in. He missed the first scheduled time but did come into the station

four days later. While there, he was Mirandized and gave an oral statement in which he admitted

being present at the crime scene. According to the statement, the defendant, the victims, and two

individuals known as Big Lee and Red had been gambling that night. After the victims left, the

others realized that the dice used in the game had been switched, which angered them because they

felt they had been hustled. The defendant said that he proceeded to the parking lot where the two

victims were known to hang out and first spoke with victim two. The defendant stated that Big Lee

was already there and was speaking with victim two. The defendant asked for $100 of his money

back, but victim two was not cooperative. He then approached victim one, who ignored him. The

defendant contended that, while he was standing beside the driver’s side of the Tahoe, he heard four

shots fired from behind him. The defendant proceeded to flee the scene on foot only to return later

to get his car. 
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Following his indictment for one count of attempted first degree murder and one count of

aggravated assault, the defendant was tried before a Shelby County jury. Despite their prior

identification of the defendant as the shooter, both victims testified at trial that they did not actually

see the defendant fire the weapon. Nonetheless, both were clear in their testimony that the defendant

was the only person they observed in the parking lot that night with a gun who was asking for victim

one. In fact, victim two testified that, despite the presence of cars in the parking lot, he did not see

anyone else outside until after the shots were fired. Testimony was also given by victim one

regarding an incident several months after the shooting in which he had been approached in the

barbershop by someone who claimed to have been present on the night of the shooting and told that

the defendant was not the one who shot him. After hearing this, victim one went to the office of the

defendant’s attorney and informed him that, despite his previous identification, he did not actually

see the defendant shoot him. 

Following the presentation of proof, the defendant was convicted of the lesser included

offense of attempted voluntary manslaughter and the indicted offense of aggravated assault. The trial

court subsequently sentenced him to concurrent six-year sentences, as a Range II offender, to be

served in the Shelby County workhouse. The defendant filed a timely motion for new trial, which

the trial court denied. This appeal followed.

Analysis

On appeal, the defendant raises the single issue of sufficiency of the evidence. In considering

this issue, we apply the rule that where the sufficiency of the evidence is challenged, the relevant

question for the reviewing court is “whether, after viewing the evidence in the light most favorable

to the [State], any rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); see also

Tenn. R. App. P. 13(e). Moreover, the State is entitled to the strongest legitimate view of the

evidence and all reasonable inferences which may be drawn therefrom. State v. Harris, 839 S.W.2d

54, 75 (Tenn. 1992). All questions involving the credibility of witnesses, the weight and value to

be given the evidence, and all factual issues are resolved by the trier of fact. State v. Pappas, 754

S.W.2d 620, 623 (Tenn. Crim. App. 1987). This court will not reweigh or reevaluate the evidence

presented. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

“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). A jury conviction removes the presumption of innocence with

which a defendant is initially cloaked and replaces it with one of guilt so that, on appeal, a convicted

defendant has the burden of demonstrating that the evidence is insufficient. State v. Tuggle, 639

S.W.2d 913, 914 (Tenn. 1982). These rules are applicable to findings of guilt predicated upon direct

evidence, circumstantial evidence, or a combination of both. State v. Matthews, 805 S.W.2d 776,

779 (Tenn. Crim. App. 1990).
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Although a conviction may be based entirely upon circumstantial evidence, Duchac v. State,

505 S.W.2d 237, 241 (Tenn. 1974), in such cases, the facts must be “so clearly interwoven and

connected that the finger of guilt is pointed unerringly at the Defendant and the Defendant alone.”

State v. Black, 815 S.W.2d 166, 175 (Tenn. 1991) (citing State v. Duncan, 698 S.W.2d 63 (Tenn.

1985)). However, as in the case of direct evidence, the weight to be given circumstantial evidence

and “the inferences to be drawn from such evidence, and the extent to which the circumstances are

consistent with guilt and inconsistent with innocence, are questions primarily for the jury.” Marable

v. State, 203 Tenn. 440, 313 S.W.2d 451, 457 (Tenn. 1958) (citations omitted).

The defendant was convicted of attempted voluntary manslaughter and aggravated assault,

and, on appeal, he challenges the sufficiency of the evidence supporting both convictions. He

specifically contends that, even taken in the light most favorable to the State, the victims’ testimony

was insufficient to support the convictions because both acknowledged that they did not see the

defendant actually fire the gun and that they did see a second person in the defendant’s car. He also

relies upon their testimony that they had known the defendant for more than a year, had previously

shot dice with him, and were not afraid when they saw him approach with a gun. He further

contends that the physical evidence found at the scene did not support the victims’ testimony based

upon the location of the shell casings and the fact that a parked car had a gunshot in the back

window. He also points to the fact that police failed to interview any of the other witnesses at the

scene and failed to search for Big Lee, whom the defendant, in his statement, contends was there at

the time ofthe shooting. From his argument, we glean that the defendant is arguing that the evidence

is insufficient to establish, beyond a reasonable doubt, his identity as the perpetrator of the crimes.

The identity of the perpetrator is required to be established, as identity is an indispensable

element of the crime. See White v. State, 533 S.W.2d 735, 744 (Tenn. Crim. App. 1975). The

identity of an accused may be established by either direct evidence, circumstantial evidence, or a

combination of the two. State v. Thompson, 519 S.W.2d 789, 793 (Tenn. 1975). “The credible

testimony of one identification witness is sufficient to support a conviction ifthe witness viewed the

accused under such circumstances as would permit a positive identification to be made.” State v.

Radley, 29 S.W.3d 532, 537 (Tenn. Crim. App. 1999). Identity is a question of fact for the jury to

determine after consideration of all the evidence. State v. Strickland, 885 S.W.2d 85, 87 (Tenn.

Crim. App. 1993).

 In addition to his general argument that the testimony of the witnesses and the placement

of the evidence at the scene fails to support the conviction for attempted voluntary manslaughter, the

defendant also contends that there was no evidence presented by any State witness with regard to

“provocation . . . to create a state of passion” which “would cause a reasonable person to do

irrational things.” The defendant contends that, according to the testimony of the State’s witnesses,

he arrived on the scene in search of victim one and then shot him without any conversation. 

 Voluntary manslaughter is “the intentional or knowing killing of another in a state of

passion produced by adequate provocation sufficient to lead a reasonable person to act in an

irrational manner.” T.C.A. § 39-13-211(a) (2006). One acts intentionally “when it is the person’s
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conscious objective or desire to engage in the conduct or cause the result.” T.C.A. § 39-11-302(a)

(2006). A person acts knowingly with respect to the results of his or her conduct “when the person

is aware that the conduct is reasonably certain to cause the result.” T.C.A. § 39-11-302(b). A person

commits criminal attempt when he or she, “acting with the kind of culpability otherwise required for

the offense,” engages in one of the following activities:

(1) Intentionally engages in action or causes a result that would constitute an offense

if the circumstances surrounding the conduct were as the person believed them

to be;

(2) Acts with intent to cause a result that is an element of the offense if the

circumstances surrounding the conduct were as the person believed them to be;

or 

(3) Acts with intent to complete a course of action or cause a result that would

constitute the offense, under the circumstances surrounding the conduct as the

person believes them to be, and the conduct constitutes a substantial step toward

the commission of the offense. 

T.C.A. § 39-12-101(a) (2006). While the defendant was indicted for attempted first degree murder,

the law is settled that attempted voluntarymanslaughter is a lesser included offense of attempted first

degree murder under part (b) of the Burns test. State v. Dominy, 6 S.W.3d 472, 477 (Tenn. 1999);

State v. William Binkley, No. M2001-00404-CCA-R3- CD (Tenn. Crim. App., at Nashville, Apr. 5,

2002); State v. Jake Christopher Reynolds, No. M2000-00210-CCA-R3-CD (Tenn. Crim. App., at

Nashville, May 23, 2001). 

A person commits aggravated assault who intentionally or knowingly commits an assault as

defined in Tennessee Code Annotated section 39-13-101 and, as relevant here, uses or displays a

deadly weapon. T.C.A. § 39-13-102(a) (2006). Pursuant to section 39-13-101, an assault, as

committed in this case, occurs if a person intentionallyor knowingly causes another to fear imminent

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

Initially, we address the defendant’s contention that the evidence fails to establish that, when

the crimes occurred, he was acting in a “state of passion” produced by “adequate provocation.” We

disagree with his statement that no evidence was presented to establish this element. Through

questioning by the defendant’s counsel, as well as the defendant’s own statement which was

introduced through an investigator, there was evidence presented that the defendant was under the

impression that the victims had cheated him out of money while shooting dice. The defendant’s

statement indicates that upon ascertaining this fact, he immediately left the area and proceeded to

the location he believed the victims would be. The defendant was armed with a weapon and

demanded to know where victim one was so that he could reclaim his money. Both victims testified

that the defendant appeared angry and that he was cursing and speaking in a loud tone of voice. That

both victims denied cheating is irrelevant, as it was the defendant’s belief which is material to
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establishing this element. The evidence presented was more than sufficient to allow a rational jury

to conclude that the defendant was acting in a “state of passion.” 

The defendant does not dispute that the crimes of attempted voluntary manslaughter and

aggravated assault were committed against the victims on the night in question. Victim one suffered

a serious wound after being shot in the face, and victim two was shot at twice while running from

the scene in fear. As noted, the defendant simply appears to argue that his identity as the perpetrator

of the crimes was not established. We disagree. While the evidence supporting his convictions with

regard to identity is circumstantial as no witness saw him actually fire the gun, the facts are “so

clearly interwoven and connected that the finger of guilt is pointed unerringly at the [d]efendant and

the [d]efendant alone.” See Black, 815 S.W.2d at 175. 

Both of the victims testified that they saw the defendant in the parking lot immediately prior

to the shooting and that he demanded to know victim one’s location was so he could get his money

back. Each victim testified that the defendant was angry and that he was in possession of a gun.

Victim two saw the defendant walk to the driver’s side of the vehicle, where he subsequently heard

two shots fired. When victim two walked to that side of the vehicle, he saw the defendant standing

with the gun in his hand. After seeing that victim one had been shot, victim two fled and was

subsequently shot at twice. Those shots were fired from the direction in which victim two last saw

the defendant standing. Both victims specifically testified that they saw no one else in the parking

lot with a gun that evening. Moreover, the defendant, although denying committing the shootings,

did admit to being at the scene, specifically by the driver’s side of the Tahoe where the shots were

fired. This evidence is more than sufficient to support an inference that the defendant was

responsible for the shootings. 

The defendant’s contentions with regard to the placement of the physical evidence, the failure

of police to interview other potential witnesses, the presence of the passenger in the defendant’s car,

and the fact that neither victim was scared of the defendant were all issues placed before the jury,

whose province it is to determine the weight to be given to all evidence. The jury heard the

testimony presented, including that neither victim specifically saw the defendant fire the weapon,

and weighed the credibility of the testimony. Obviously, from their verdict, the jury found that the

defendant’s statement that he had not committed the shootings was not credible. It is not the

province of this court to reweigh or reevaluate the evidence presented. Cabbage, 571 S.W.2d at 835.

Our review of the record reveals that the evidence presented was sufficient to allow a rational juror

to conclude that the defendant was guilty of the crimes beyond a reasonable doubt. 

CONCLUSION

Based upon the foregoing, the judgments of conviction are affirmed. 

___________________________________ 

JOHN EVERETT WILLIAMS, JUDGE