### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs N ovembe

r 7, 2001
STATE OF TENN ESSEE 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 especia lly aggravated robbe

ry. The trial c ourt imposed a Range I sente

nce of 20 ye ars for facilitation of first de gr ee mu rd er an d a co nc ur re nt se nt en ce of 23 yea rs fo r e sp ec ia ll y ag gr av at ed ro bb er y. In this appeal of right, the defendant cha llenges the sufficiency

of the evidence. The j udgments are affirmed. Tenn. R. App. P. 3; Judgments of the Trial Court Affirmed
G A RY R. W ADE , P.J., delivered the opinion of the court, in which J OE G. R ILEY and T HOM AS T

. W OODA LL , JJ., joined.
A.C. Wharton, District Public Defender (of counsel); Garland Er güden, Assistant Public Defender (on appeal); and William L. Johnson, Assistant Public Defender (at tria l), for th e appell ant, Mario A. Johnson.
Paul G. Summers, Attorney Genera l & Reporter; John H. Bledsoe, Assistant Attorney General; and P.T. Hoover, Assistant District Attorney Ge neral, for the appellee, State of Tennessee.

OPINION
At approxima

tely 9:30 P.M. on September 20, 1997, the victim, Os car Ba

rnes, wa s shot to death at his residence in Memphis. His body w as discovered by a neighbor, John Spee r. A few minutes earlier, Spee r had walked by the vict im's residen ce and had seen "a heavy -set, ba lding" male in what he believed to be a Buick automobile which was pa rked in the vic tim' s driveway. Spee r heard "moderately

loud" voi ces coming from the victim's residence , voices of the victim and two others. He stated that "[i]t sounded like they we re arguing." Within three or four minutes af ter arriving at his own r

esidenc e, Speer , who live d next door t o the vict im, hear d six to eight gunsh ots in "pretty quic

k succession." In hisopinion, th e shots we re fire d from two

differe nt calibe rs of gu ns. According to Speer, who is 6' 2" tall, he ran to his front p orch, wh

ich was lo cated tw o and one -half-2-

feeta bove ground level, and peered ove r a six-foot wooden fence separating his y ard from th e victim's

. Because the victim's porch lig ht was on, Speer was able t o see three m en run from the victi m's residence and get inside the car parked in the driveway . After returning to his residence and wat ching televisio n for ten to twenty

minutes (e

xplaining that "the re's a lway s gunshots in [his ] neighborhood"), Speer walked to the front door

of the victim's residence, discovered the body , and called911. Speer provided to police the descriptions of each of the individua ls involved. He de sc ribedthe first person leaving the victim's residenc e as having hair "cut into like a V into the back, and it was real ly bushy and curly." Speer described the second person as a "blur" and the third as having a V-sty

led haircut with one protruding ear, diffe rent 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 g old lion's head pendant with ruby eyes. Speer

also knew that the victim

owned a Rolex watch

withRoman numerals. He described the watch as having two silver stripes on the outside and one gold stripe through the cente r. He provided the police with a statement and, about

a month later, was asked to review a series of photog raphs. Speer, who testified at trial tha t he had e ight or t en seconds to view t

he three individua

ls running

from the r

esid e nce, identified the defendant as the first of the three per petrators. He identified the defendant based in partup on his V-line haircut but stated that he was also "able to see pr etty much of his fac e in the light on the front porch." Speer expressed ce rtainty in his identification of the defe ndant.
Se rgeant Brya nt Jennings of the Memphis Police Department found several shell casing s inside the resid

ence of the victim . There

was a bullet hole in

a sofa. T

he offic er testif

ied that h e identified a .9 mm shell casing . It w as his opin ion that a weapon u sed in the

murder w as semi

automatic. Nikeesha Cunningham, who was 19 years old a tthe time of the trial, testified that she was dating Frank lin Carter at the time of the shooting and was a friend of the defendant. She recalled that on the day of the mur

der, she went to the victim's reside nce acc ompanied by her boy friend Carter, the defe

ndant, and "Meaty ," who was the driver of a two-door Cutlass automobile. She later identified "Meaty " as Demetrius La y. Accor ding 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 reside nce. Ms. Cunningham recalled that she, Carter, and the defendant knocked on the victim's door. She insisted, howeve r, that only Carter a

nd the defendant went inside. Ms. Cunn ingham explai ned 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

sequenc e. She tes tified tha t Carter and the de

fendant , who wer

e armed with weapo ns, returned to the ve hicle immediately

after th e shots ha

d been fi red. Ac cording

to Ms

. Cunningh am, the defe nda nt admitted that he "had to hit [the victim] across the head because he didn 'tact right." Cunningham testified that the defendant had in his possession a necklace with an eagle having red ey

es, a gold Rolex watch, some beepers, and key s owned by the vi ctim. Ms. Cunningham testified that less than three weeks after the offense , Carter

committed

suicide in

her presenc e, appa

rently as police came to ma

ke an ar rest. She was able to identify a shotg

un that the-3-

defendant had in his possession on the night of the murder and remembered tha tthe defendant had thrown away

the keys and beepers.
Michael Dway

ne Le wis, Fra nklin Cart

er's c ousin, tes tified tha

t i n early October of 1997, Carter pawned a .9 mm pistol, explaining that he ha d just purc

hased a c ar and needed to pa y hi s car note. Lew is agreed to loan the money. At the time, the de fendant was sitting in the car operated by Carter. Lew is descr

ibed the c ar as a 1 988 or ' 89 Capric e Classic Chevrole t.
Berna dette Carter, the sister of Fra nklin Carter, testified that she saw her brother and the defendant together a few day s after the shooting. She recalled that the defendant, who had tried to sell her some

jewelry , was in

possession of a

gold Role

x watch an d a gold

necklac e with an e agle 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 moth er of the victim, te stified th at the victim owned a nd wore a gold Rolex watch. Sh

e stated that a lion

pendant with ruby

ey es h ad been

a gift to the victim

from his father.
Dr. Cynthia Gardner , an assistant medical examiner for She lby County and an a ssociate professor of

pathology a

tthe Unive

rsity of Tenne ssee College of Medicine, p erformed an autop sy on the victim. She stated that her examination revealed that the victim had 14 gunshot wounds, a number of

which wou

ld have qu alified a s fatal. The defense offered no proof

. In this appeal, the defendant argues tha t the evidenc e is insuff

icient because

the conviction resteds o lely upon the identification made by John Speer and the testimony of Nikeesha Cunningh am, an accomplice in the killing. He arg ues that there were inconsistencies in the evidence offered by t he st ate but c oncede s that he c annot ar gue tha t "there is no evide

nce to sup

port his convictio n."
On appeal, of cours e, the sta te is entitled to the strongest legitimate view of the evidence and all reasonable inferences which mig ht be drawn therefrom. State v. Cabba ge , 571 S.W.2d 832, 835 (Tenn. 1978). The credibi lity 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). Whe n the suff iciency of the ev idence i s challenged, the relevant questionis whether , after reviewing the e

vidence in the lig ht most fav orable to the state, any r

ational trier of fact could have found the essential e lements of the crime beyond a reason ab le doubt. Te

nn. R. App. P. 13(e); State v. Will iams , 657 S.W.2d 405, 410 (Tenn. 1983). Questions concer

ning the credibi lity

of the wit nesses, the weight and value of the evidence , as well as all factual issues raised by the evidence are resolved by the trier of fact. Liak

as v. State , 199 Tenn. 298, 286 S.W.2d 856, 859 (1956). Because a verdict of g uilt against a defendant remov e s the-4-

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 ve rdict. State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992).
As to accomplice testimony, the gene ral 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. Cr im. App. 1975). There must be a fact in ev id en ce , e nt ir el y in de pe nd en t o f t he ac co mp li ce 's te st im on y, which, taken by itself, would lead to an infe rence not only tha

t a crime has been co mmitted but also that the defendant is implicated therein. State v. Fowler , 213 Tenn. 239, 3 73 S.W.2d 460, 463 (196 3). On ly slight circumstanc es are required to furnish the necessa ry corr oboration. Garton v. State , 206 Tenn. 79, 332 S.W.2d 169, 175 (1960). When the f acts ar e in disput

e or susc eptible to different in fe re nc es , w he th er a w it ne ss is an ac co mp li ce is a q ue st io n o f f ac t f or th e j ur y. Co nner 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 re sidence of the victim immediate

ly a fter sev eral gunshots had been fired. Ms. Carter testified th at wi th in tw o d ays of the shooting and robbery , the defendant was in possession of a necklace, pe nd ant, and Rolex watchsimilar to t

hose owned by

the defe ndant. Th

e victim' s mother id

entified the items in the defend ant's possession as those which the victim possessed prior to hi s mur der. Although Ms. Cunningham

may have qua

lified as an accomplice, her testimony that the defendant and

her former boyfriend, Frankl in Car ter, fled fr om th e vict im's residence immedi ately after se veral g unshots had been fired a

nd that the

defenda nt was in po ssession o f the vic tim's jew elry was suff

iciently corroborated

by other evidenc e in the trial. In o ur view, t he evidence is sufficient to support convictions of facilitation to commit first degree murder and e specially ag gravated robbery

. Accordingly , the judgments are affirmed.

___________________________________ GARY R. WADE, PRESIDING JUDGE