IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs November 7, 2001

STATE OF TENNESSEE v. MARIO A. JOHNSON

Direct Appeal from the Criminal Court for Shelby County

No. 98-01761-62 John P. Colton, Jr., Judge

No. W2001-00372-CCA-R3-CD - Filed December 17, 2001

The defendant, Mario A. Johnson, was convicted of facilitation to commit first degree murder and

especially aggravated robbery. The trial court imposed a Range I sentence of 20 years for facilitation

of first degree murder and a concurrent sentence of 23 years for especially aggravated robbery. In

this appeal of right, the defendant challenges the sufficiency of the evidence. The judgments are

affirmed. 

Tenn. R. App. P. 3; Judgments of the Trial Court Affirmed

GARY R. WADE, P.J., delivered the opinion of the court, in which JOE G. RILEY and THOMAS T.

WOODALL, JJ., joined.

A.C. Wharton, District Public Defender (of counsel); Garland Ergüden, Assistant Public Defender

(on appeal); and William L. Johnson, Assistant Public Defender (at trial), for the appellant, Mario

A. Johnson.

Paul G. Summers, Attorney General & Reporter; John H. Bledsoe, Assistant Attorney General; and

P.T. Hoover, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

At approximately 9:30 P.M. on September 20, 1997, the victim, Oscar Barnes, was shot to

death at his residence in Memphis. His body was discovered by a neighbor, John Speer. A few

minutes earlier, Speer had walked by the victim's residence and had seen "a heavy-set, balding" male

in what he believed to be a Buick automobile which was parked in the victim's driveway. Speer

heard "moderately loud" voices coming from the victim's residence, voices of the victim and two

others. He stated that "[i]t sounded like they were arguing." Within three or four minutes after

arriving at his own residence, Speer, who lived next door to the victim, heard six to eight gunshots

in "pretty quick succession." In his opinion, the shots were fired from two different calibers of guns.

According to Speer, who is 6'2" tall, he ran to his front porch, which was located two and one-half
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feet above ground level, and peered over a six-foot wooden fence separating his yard from the

victim's. Because the victim's porch light was on, Speer was able to see three men run from the

victim's residence and get inside the car parked in the driveway. After returning to his residence and

watching television for ten to twenty minutes (explaining that "there's always gunshots in [his]

neighborhood"), Speer walked to the front door of the victim's residence, discovered the body, and

called 911. Speer provided to police the descriptions of each of the individuals involved. He

described the first person leaving the victim's residence as having hair "cut into like a V into the

back, and it was really bushy and curly." Speer described the second person as a "blur" and the third

as having a V-styled haircut with one protruding ear, different from the other one.

At trial, Speer testified that the victim had two beeper shops and made jewelry. He recalled

that the victim owned a three- or four-inch gold lion's head pendant with ruby eyes. Speer also knew

that the victim owned a Rolex watch with Roman numerals. He described the watch as having two

silver stripes on the outside and one gold stripe through the center. He provided the police with a

statement and, about a month later, was asked to review a series of photographs. Speer, who testified

at trial that he had eight or ten seconds to view the three individuals running from the residence,

identified the defendant as the first of the three perpetrators. He identified the defendant based in

part upon his V-line haircut but stated that he was also "able to see pretty much of his face in the

light on the front porch." Speer expressed certainty in his identification of the defendant. 

Sergeant Bryant Jennings of the Memphis Police Department found several shell casings

inside the residence of the victim. There was a bullet hole in a sofa. The officer testified that he

identified a .9 mm shell casing. It was his opinion that a weapon used in the murder was semiautomatic. 

Nikeesha Cunningham, who was 19 years old at the time of the trial, testified that she was

dating Franklin Carter at the time of the shooting and was a friend of the defendant. She recalled

that on the day of the murder, she went to the victim's residence accompanied by her boyfriend

Carter, the defendant, and "Meaty," who was the driver of a two-door Cutlass automobile. She later

identified "Meaty" as Demetrius Lay. According to Ms. Cunningham, Carter asked her to telephone

the victim to determine whether he had any marijuana to sell. Even though the victim answered that

he had none, the four decided to drive to the victim's residence. Ms. Cunningham recalled that she,

Carter, and the defendant knocked on the victim's door. She insisted, however, that only Carter and

the defendant went inside. Ms. Cunningham explained that when the victim answered the door,

Carter instructed her to return to the vehicle. She stated that about five minutes later, she heard nine

or ten gunshots in quick sequence. She testified that Carter and the defendant, who were armed with

weapons, returned to the vehicle immediately after the shots had been fired. According to Ms.

Cunningham, the defendant admitted that he "had to hit [the victim] across the head because he

didn't act right." Cunningham testified that the defendant had in his possession a necklace with an

eagle having red eyes, a gold Rolex watch, some beepers, and keys owned by the victim. Ms.

Cunningham testified that less than three weeks after the offense, Carter committed suicide in her

presence, apparently as police came to make an arrest. She was able to identify a shotgun that the
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defendant had in his possession on the night of the murder and remembered that the defendant had

thrown away the keys and beepers. 

Michael Dwayne Lewis, Franklin Carter's cousin, testified that in early October of 1997,

Carter pawned a .9 mm pistol, explaining that he had just purchased a car and needed to pay his car

note. Lewis agreed to loan the money. At the time, the defendant was sitting in the car operated by

Carter. Lewis described the car as a 1988 or '89 Caprice Classic Chevrolet.

Bernadette Carter, the sister of Franklin Carter, testified that she saw her brother and the

defendant together a few days after the shooting. She recalled that the defendant, who had tried to

sell her some jewelry, was in possession of a gold Rolex watch and a gold necklace with an eagle

that had red eyes. She recalled that Ms. Cunningham later showed her a shotgun that had been used

in the robbery. She acknowledged that the shotgun had been hidden at her residence and claimed

that as soon as she discovered its presence, she turned it over to the police. 

Leann Murphy, the mother of the victim, testified that the victim owned and wore a gold

Rolex watch. She stated that a lion pendant with ruby eyes had been a gift to the victim from his

father. 

Dr. Cynthia Gardner, an assistant medical examiner for Shelby County and an associate

professor of pathology at the University of Tennessee College of Medicine, performed an autopsy

on the victim. She stated that her examination revealed that the victim had 14 gunshot wounds, a

number of which would have qualified as fatal.

The defense offered no proof. 

In this appeal, the defendant argues that the evidence is insufficient because the conviction

rested solely upon the identification made by John Speer and the testimony of Nikeesha

Cunningham, an accomplice in the killing. He argues that there were inconsistencies in the evidence

offered by the state but concedes that he cannot argue that "there is no evidence to support his

conviction." 

On appeal, of course, the state is entitled to the strongest legitimate view of the evidence and

all reasonable inferences which might be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835

(Tenn. 1978). The credibility of the witnesses, the weight to be given their testimony, and the

reconciliation of conflicts in the proof are matters entrusted to the jury as the trier of fact. Byrge v.

State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). When the sufficiency of the evidence is

challenged, the relevant question is whether, after reviewing 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. Tenn. R. App. P. 13(e); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983).

Questions concerning the credibility of the witnesses, the weight and value of the evidence, as well

as all factual issues raised by the evidence are resolved by the trier of fact. Liakas v. State, 199 Tenn.

298, 286 S.W.2d 856, 859 (1956). Because a verdict of guilt against a defendant removes the
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presumption of innocence and raises a presumption of guilt, the convicted criminal defendant bears

the burden of showing that the evidence was legally insufficient to sustain a guilty verdict. State v.

Evans, 838 S.W.2d 185, 191 (Tenn. 1992).

As to accomplice testimony, the general rule is that the defendant cannot be convicted upon

the uncorroborated testimony of an accomplice. Prince v. State, 529 S.W.2d 729, 732 (Tenn. Crim.

App. 1975). There must be a fact in evidence, entirely independent of the accomplice's testimony,

which, taken by itself, would lead to an inference not only that a crime has been committed but also

that the defendant is implicated therein. State v. Fowler, 213 Tenn. 239, 373 S.W.2d 460, 463

(1963). Only slight circumstances are required to furnish the necessary corroboration. Garton v.

State, 206 Tenn. 79, 332 S.W.2d 169, 175 (1960). When the facts are in dispute or susceptible to

different inferences, whether a witness is an accomplice is a question of fact for the jury. Conner

v. State, 531 S.W.2d 119, 123 (Tenn. Crim. App. 1975). 

In this instance, John Speer testified that he saw the defendant flee from the residence of the

victim immediately after several gunshots had been fired. Ms. Carter testified that within two days

of the shooting and robbery, the defendant was in possession of a necklace, pendant, and Rolex

watch similar to those owned by the defendant. The victim's mother identified the items in the

defendant's possession as those which the victim possessed prior to his murder. Although Ms.

Cunningham may have qualified as an accomplice, her testimony that the defendant and her former

boyfriend, Franklin Carter, fled from the victim's residence immediately after several gunshots had

been fired and that the defendant was in possession of the victim's jewelry was sufficiently

corroborated by other evidence in the trial. In our view, the evidence is sufficient to support

convictions of facilitation to commit first degree murder and especially aggravated robbery. 

Accordingly, the judgments are affirmed.

 

___________________________________ 

GARY R. WADE, PRESIDING JUDGE