The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs April 9, 2013
STATE OF TENNESSEE v. JAMES DANIEL VAUGHN
Appeal from the Circuit Court for Henderson County
No. 10-105-1 Roy B. Morgan, Jr., Judge
No. W2012-01728-CCA-R3-CD - Filed July 17, 2013
James Daniel Vaughn (“the Defendant”) was convicted by a jury of one count of second
degree murder and three counts of reckless endangerment with a deadly weapon. Following
a sentencing hearing, the trial court sentenced the Defendant to an effective sentence of
twenty years’ incarceration. On appeal, the Defendant argues that the evidence presented at
trial was insufficient to support his convictions. After a thorough review of the record and
the applicable law, we affirm the Defendant’s convictions.
Tenn. R. App. P. 3 Appeal as of Right; Judgments
of the Circuit Court Affirmed
J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which J OHN E VERETT W ILLIAMS
and D. K ELLY T HOMAS, J R., JJ., joined.
Carthel L. Smith, Lexington, Tennessee, for the appellant, James Daniel Vaughn.
Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; James
G. Woodall, District Attorney General; and Angel R. Scott, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
Factual and Procedural Background
A Henderson County Grand Jury indicted the Defendant on one count of second
degree murder and three counts of reckless endangerment with a deadly weapon. The
Defendant proceeded to a jury trial held on February 22-23, 2012.
Tammy Renee Middleton, the Defendant’s ex-wife, testified that she was married to
the Defendant approximately thirty days. The two of them divorced, and, as part of their
settlement, Middleton paid money to the Defendant for a vehicle on April 30, 2011.1 Her
divorce attorney was to deliver the money to the Defendant.
On cross-examination, Middleton denied knowing during the course of their
relationship that the Defendant used drugs, although she “had suspicions.” She was not
aware that the Defendant moved in with a “Ms. Cohen” before their divorce was final. She
acknowledged that she married the Defendant before her divorce was final with a man named
Rocky Smith. However, she stated that she entered into the marriage with the Defendant
“out of fear of death of me or my daughter. I was threatened by him.”
Nakia Lewis, a general manager at Burger King, testified that Sean Cohen (“the
victim”) was an employee there in 2010. She identified records indicating that the victim
reported to work on May 1, 2010, at 1:57 p.m. and left just after 8:00 p.m. On cross-
examination, Lewis was surprised to learn that the deceased victim had tested positive for
marijuana and alcohol.
Atia White Cohen, the victim’s sister, testified that she had been dating the Defendant
for approximately one month prior to the victim’s death. During the time that Atia 2 dated the
Defendant, she lived with the victim; the victim’s girlfriend, Candace Jowers; and the
victim’s two children.3 At some point, the victim allowed the Defendant to live with them
as well because he was not working. She denied ever witnessing the victim engage in drug
activity of any kind, although she acknowledged that he had been convicted of a drug offense
in the past.
On April 30, 2010, Atia accompanied the Defendant to an attorney’s office to retrieve
some money. They returned to the house of her sister, Akita Cohen, and the Defendant then
left with another man and returned with “some Xanax pills and some cocaine.” Atia denied
seeing a gun on the Defendant. She and the Defendant spent that evening at the victim’s
house, and, the next morning, they returned to Akita’s house. At some point, the Defendant
“opened a can of biscuits. . . . Well when the biscuits got done, he threw the pan in the sink
real hard and real loud and my sister told him, ‘Don’t do that.’” Atia stated that this
1
Although Middleton testified that this event occurred on April 30, 2011, it is apparent from the
record that she meant April 30, 2010.
2
Because some witnesses share a common surname, we will use their given names. We intend no
disrespect.
3
Atia testified that the victim’s younger child was two weeks old at the time of the victim’s death.
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encounter erupted into the Defendant “talking crazy like [he] called [Akita] a b***h and told
her she can’t tell him what the f**k to do, you know.” Sometime thereafter, Atia and the
Defendant returned to the victim’s house.
Later in the day, Akita called Atia and told her that, in light of the incident that
morning, the victim did not want the Defendant to stay with them anymore. Furthermore,
he wanted the Defendant gone by the time he returned home from work that evening. Atia
relayed this information to the Defendant, and “he got mad and decided he wanted to fight,
he wanted to pick a fight.” The Defendant left, and, at approximately 8:00 p.m., he returned
to the victim’s house and got into an argument with Atia.
According to Atia, the Defendant left once again and returned at approximately 11:00
p.m. The Defendant woke her up and asked her whether she thought the victim would
reconsider making him leave. When she told him “no” and that she did not see them staying
“together,” “he got mad and he showed [her] a gun.” He then pointed the gun at her and told
her to get out of the bed and to call the victim. She complied and handed him the phone. She
heard the Defendant say to the victim, “‘B***h, you want me to leave your house[.]’ . . .
[T]hen he started beating the gun against the side of the house and he was like, ‘B***h, you
hear this. You hear this, b***h? . . . Come make me leave. Come make me leave.’” At that
point, the Defendant left the house with the house phone and his gun.
Atia stayed in the house and, at some point thereafter, she heard two gunshots. She
did not see what happened and stayed in the house until she heard Akita and Jowers
screaming. Atia then ran toward a vehicle down the street and observed the victim in the
driver’s seat and noticed that “his tongue was hanging out of his mouth.”
On cross-examination, Atia acknowledged using some of the Defendant’s cocaine on
the evening of April 30, 2010. She denied that the victim possessed a gun or that she locked
the Defendant in the bedroom on the night of the shooting. Atia acknowledged that she was
out of state at the time of the preliminary hearing and in violation of her probation at that
time for possession of drug paraphernalia.
Akita Shontelle White Cohen, another sister of the victim and twin sisters with Atia,
testified that the Defendant arrived at her residence at approximately 9:00 to 10:00 a.m. on
May 1, 2010. She continued, “We were just sitting around . . . while we were making
breakfast, and then I . . . went to my room to attend to the baby, and I heard a big bang in the
kitchen, and that’s when I went back to the front and told him he was making too much
noise, to calm it down.” At that point, the Defendant “started calling me [sic] out my name
and start saying all kind of stuff to me, threw my biscuits in the trash.” Accordingly, Akita
stated that she asked him to leave but that the Defendant “was arguing and fighting with me,
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trying to run up in my face and stuff, and I went over to my neighbors and told her and asked
her can I use her phone to call the police.” Before Akita called the police, however, the
Defendant left, and she did not see him until later that afternoon. When she next saw the
Defendant, he “flagged [her] down and told [her] that he was sorry about earlier.”
Akita testified that when the victim finished his shift at Burger King at approximately
8:00 p.m., he went to her residence. She had explained to the victim about the incident that
morning, and the victim told her that he no longer wanted the Defendant to live with him.
Accordingly, Akita called Atia and told her “that [the victim] said [the Defendant] had to
go.” Akita spoke with the Defendant over the phone at approximately 10:00 p.m. To her
knowledge, the Defendant had not spoken to the victim at that point. Later, the Defendant
called the victim’s cell phone, and she “just heard [the victim] saying that [the Defendant]
had to go, and then [she] heard [the victim] say, ‘Well I’m on my way over there.’” She
described the victim’s demeanor at that time as “a little upset but not raging mad.” Akita
denied hearing the victim threaten the Defendant or ever seeing the victim with a weapon.
Within approximately three to five minutes of this phone call, she got in a vehicle with the
victim, Jowers, and the victim and Jowers’ infant4 to drive to the victim’s residence.
Once they turned onto the street of the victim’s residence, Akita observed the
Defendant “walking toward[] the car with his hand like on his belt area.” The victim stopped
the vehicle because the Defendant was in the middle of the road. She did not see his gun
until he “started hitting on the window with it.” Akita did not remember the Defendant or
the victim saying anything while the Defendant hit the window. Next, the Defendant walked
to the driver’s side of the vehicle, and the victim opened his door. Akita agreed that the
victim was approximately six feet, three inches and 380 pounds. She stated that, in order to
get out of his vehicle, the victim routinely held the steering wheel to support himself. Thus,
when the victim opened the door, he held the steering wheel to support himself and placed
one foot outside the vehicle. Right at that time, however, the Defendant shot him. She never
saw the victim stand up out of the vehicle. Akita could not recall how many gunshots she
heard, although she confirmed stating in a previous statement that she heard three gunshots.
As soon as she heard the gunshots, Akita put her head down. During this incident,
Jowers was screaming, and the Defendant “was waving his gun in the car. He was like, ‘Shut
up. Shut up.’” Once the Defendant fled, she told Jowers to get out of the car. She did not
see the Defendant again until she later saw the police apprehend him.
4
The indictment lists the three victims of the reckless endangerment as Akita, Jowers, and Akita’s
infant. However, the proof established at trial that the infant in the vehicle was the child of Jowers and the
victim.
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Akita remembered that, as soon as the victim was shot, he said, “Oh, I been shot.
Baby, call the police,” and that she never heard him say anything else. Jowers called the
police to report the shooting. Akita believed that the victim still was breathing when others
responded to the scene to help. A man named Melvin Teague helped prop the victim up in
his seat until emergency personnel arrived.
Akita confirmed that she observed the Defendant take “some Xanaxes” at her
residence that morning but denied seeing the Defendant with any other drugs. On cross-
examination, she also denied having any awareness that Atia had used drugs that morning.
She further denied observing the victim drink alcohol or smoke marijuana on the evening of
the shooting. To Akita’s knowledge, the victim did not possess a gun.
On further cross-examination, Akita acknowledged her testimony from the
preliminary hearing that, when the victim left her residence to confront the Defendant at the
victim’s residence, she “thought that they were probably going to end up fighting.” She also
confirmed that, when the Defendant began hitting the back passenger window, she became
scared and asked the victim to drive away. According to Akita, she never heard the
Defendant or victim say anything to each other during this incident.
Akita acknowledged that a police station was only a couple of blocks away but that
the victim decided to confront the Defendant rather than go to the police. She could not
explain why the victim attempted to get out of the vehicle. She stated that, after the shooting
occurred, “a lot of people” had access to the vehicle prior to the police officers’ arrival.
Candace Nicole Jowers testified that the victim was the father of her children and that,
prior to his death, she had been in a relationship with him for approximately five years.
Jowers confirmed that the Defendant was living with them for free. She never observed the
Defendant or the victim deal drugs. On the day of the shooting, she spent the morning at her
shared residence with the victim and then took the victim to work at Burger King shortly
before 2:00 p.m. Jowers next went to Akita’s residence, so she did not see the Defendant at
all during the day. During the victim’s break at work, she and Akita went to Burger King to
tell him about the altercation that had occurred at Akita’s residence earlier in the day. At that
time, the victim indicated that he wanted the Defendant to leave his residence. She picked
up the victim after his shift and then returned to Akita’s apartment. Jowers did not recall the
victim having a beer or using drugs there. At some point, the Defendant called the victim,
and Jowers “heard [the Defendant] call [the victim] a b***h.” Jowers recalled that it
sounded as though the Defendant was “breaking items in [her] house” and that “[h]e sounded
very furious and angry.”
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About twenty minutes after speaking with the Defendant on the phone, the victim,
Jowers, Jowers’ infant, and Akita left to drive to the victim’s residence. As they turned onto
the street of the residence, Jowers observed the Defendant on the right side of the street with
their house phone in his back pocket and “something . . . in the front of his pants.”
Eventually, the Defendant walked behind the car to the driver’s side and tapped on the
victim’s window with his gun. No one said anything to the Defendant while he was hitting
the windows. Jowers called out her infant’s name, and the victim said, “I got to get out.”
Then, the victim “goes to open the door, starts to put his feet out of the door, and [Jowers]
heard a gunshot.” In total, she heard two gunshots. At that point, she “put [her] hands over
[her] face and started praying.” She continued, “I was very scared. I was afraid to call 911.
I had my cell phone in my hand, but I was afraid to call 911 because I was afraid that he
would shoot me. So I sat there with my hands on my face.”
The Defendant eventually walked away from the rear of the vehicle toward the
intersection. Once Akita told her that the Defendant was gone, Jowers called 911 on her cell
phone. She never heard the victim say anything after he was shot.
On cross-examination, Jowers stated that she first observed the victim use marijuana
early in their dating relationship. She was not aware that the victim had marijuana and
alcohol in his system at the time of his death. Jowers stated that she accompanied the victim
with their infant to confront the Defendant because the victim “was not furious enough that
he was going to hurt anyone.” She confirmed that the victim had called their landlord to
inform him that they were asking the Defendant to leave, but she denied knowing that the
landlord had instructed the victim to “[g]et the law to help.”
Defense counsel asked Jowers why the victim did not contact police when he realized
that the Defendant had a gun, rather than trying to step out of the car. Jowers responded,
“Sir, at that point it was too late when someone is standing there with a gun.”
Mandy Maness, a neighbor of the victim, testified that, approximately two to three
months before the shooting, she allowed the Defendant to stay with her for a few weeks after
he got out of jail. After leaving her residence, the Defendant moved in “a couple of houses
down with his girlfriend, [At]ia.”
On the night of May 1, 2010, she recalled that it was raining so hard that it was
flooding. She first saw the Defendant at approximately 8:00 to 9:00 p.m. when he was at her
residence “throwing marijuana all over the floor, . . . and . . . [she] could see the pistol. He
had a pistol tucked into . . . the right side of his pants, and his words were kind of slurred.”
She and her boyfriend, Fletcher Howard, asked him to leave, and the Defendant “got ill about
it but he went ahead and left.” At approximately 11:40 p.m., she and Howard were sitting
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on her front porch smoking cigarettes. Maness observed the Defendant walk past their
residence while talking on a “house phone” with a gun in his hand. She noted that he was
on the side of the road walking away from the victim’s residence.
According to Maness, right as the Defendant approached the end of the street, the
victim’s vehicle turned onto the street. The Defendant “walked like he was going to walk
up to the passenger side door, but he went ahead and went around the back of the car and
came to the driver’s side.” She could hear him screaming but could not remember at trial
what he was saying. The Defendant still had the gun in his hand and banged the driver’s side
window with it. Maness stated, “And then I saw the driver’s side door open just a few
inches, and then I heard gunshots.” She remembered hearing two gunshots and saw “a flash
of fire or something.” This incident occurred in front of the lot right next to her residence,
so she saw all of it “very clearly.” Immediately, Maness ran toward the vehicle as the
Defendant walked down another street. Maness took the infant out of the vehicle and kept
her while Jowers was at the hospital with the victim.
On cross-examination, Maness acknowledged that she had been convicted of criminal
conspiracy to commit forgery, forgery, disorderly conduct, shoplifting, domestic assault, and
theft. She denied, however, receiving any money from the victim to assist with her bonds
related to those charges.
Maness did not observe the victim attempt to get out of the vehicle but only saw the
door open. On redirect examination, Maness stated that the Defendant, prior to seeing the
victim’s vehicle, had “tucked [the gun] into his pants” because a police car drove by. Once
the victim drove up, the Defendant retrieved his gun from his pants.
Wayne Faulkner testified that he was the landlord for the victim and Jowers at the
time of the shooting. On the night of the shooting, the victim called Faulkner and told him,
“I’m going to get this boy out of my house.” Faulkner responded to the victim that “he
needed to take the law with him when he went.” He confirmed that he also told the victim
that “he could do whatever he wanted to because it was his house.” Faulkner recalled that
the victim seemed calm over the phone.
Fletcher Calvin Howard, Jr., testified that he had known the victim since childhood
and that they were first cousins. On the night of the victim’s death, he was living with
Maness and home with her that evening. He had seen the Defendant earlier in the day when
the Defendant came to their residence to ask for a ride somewhere. They told the Defendant
that they could not give him a ride, and the Defendant left. Later that evening, at
approximately 11:40 p.m., Howard and Maness were sitting on their front porch smoking
cigarettes when they observed the Defendant “walking up the street with a house phone in
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his hand and a gun in his other hand.” Howard then saw the victim’s car drive onto the street
and stop when the Defendant was beside the passenger’s side of the vehicle. The Defendant
walked to the driver’s side of the vehicle and knocked on the window with his gun. The
victim opened his door, and the Defendant “reached in and shot him twice.” Immediately
after hearing the gunshots, Howard called 911. The Defendant walked up another street out
of sight, and Howard approached the vehicle. Howard recalled that the victim “was laying
lifeless in the front seat.” A neighbor, Melvin Teague, was already in the front seat with the
victim attempting to administer CPR.
On cross-examination, Howard denied hearing the Defendant say anything when he
approached the victim’s vehicle. He also denied ever having bought drugs from the victim.
He acknowledged, however, that he previously had been convicted of possession of a
Schedule IV controlled substance. He also acknowledged making a previous statement that,
when the Defendant approached the victim’s vehicle, the Defendant “had a few words” with
the victim. He explained that he could not hear what was said. Howard recalled that he
observed a gunshot wound on the victim’s left shoulder below the collarbone.
Mark Hayes testified that on May 1, 2010, he was employed as a paramedic in
Henderson County. He was called to the scene of the shooting and arrived at approximately
11:50 p.m. Upon arriving, he found the victim “sitting in the driver’s seat of the car slumped
over . . . toward the passenger side.” The victim was “unresponsive” and not breathing at
that time, but Hayes confirmed that the victim had a pulse. Hayes continued,
We got the patient out . . . . I went and reassessed him again right quick. He
wasn’t breathing, and I intubated him, took over his breathing for him, and we
got him packaged real quick and saw it was a dire situation, so we got en route
as soon as we could.
Hayes observed two gunshot wounds to the victim’s left arm.
Patrolman Kevin Bruce Wise with the Lexington Police Department (“LPD ”) testified
that on May 1, 2010, he was the first officer to respond to the scene. When he arrived, he
observed the victim “inside a vehicle . . . in the driver’s seat slumped over on the passenger
side.” No other people were in the vehicle at that time. He noticed that the victim had a
wound on the left side of his shoulder and did not appear to be breathing. Accordingly,
Patrolman Wise called Emergency Medical Services (“EMS”) and was present when EMS
arrived.
Patrolman Wise stated that Howard was the first individual to approach him, and
Howard informed him that “the suspect that had shot the victim had run down Holly Street.”
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He then advised another officer regarding the suspect’s description and last seen
whereabouts. Atia next approached Patrolman Wise and informed him that the suspect was
her boyfriend. At some point thereafter, an individual “pointed down the street and said, ‘I
believe that’s him there,’” indicating that it was the Defendant. The Defendant was moving
“at a brisk pace” as he crossed the street several houses away and entered a residence.
Patrolman Wise and another officer later entered that residence and observed “wet, muddy
footprints.” They, however, did not find the Defendant or anyone else inside the residence.
As they exited the residence, they observed other officers arresting an individual who
identified himself as the Defendant. During the course of that arrest, a pat down search
revealed a firearm on the Defendant. The Defendant was asking for his girlfriend and stated
that he did not mean to shoot the victim. On the way to the Henderson County Jail, the
Defendant “was making extreme utterances,” but Patrolman Wise was unable to understand
most of what the Defendant said.
Sergeant Mark Wood with the Henderson County Sheriff’s Department testified that
on May 1, 2010, he was employed with the LPD. When he arrived at the scene of the
shooting, Patrolman Wise informed him of where the suspect had fled. Sergeant Wood
called for assistance from the county. He accompanied Patrolman Wise to a residence and
then heard other officers apprehending an individual he identified at trial as the Defendant.
He recalled that the officers retrieved a handgun from the Defendant’s “left pants boot area.”
After the Defendant was placed under arrest, Sergeant Wood photographed the gun and the
Defendant. Later, Sergeant Wood took a written statement from Atia at the police station.
He then went to the hospital at approximately 2:00 to 2:30 a.m., and, while he was there, the
victim was pronounced dead.
On cross-examination, Sergeant Wood acknowledged that the residence he and
Patrolman Wise entered was the victim’s residence. He recalled that, in addition to muddy
tracks, he observed “clothes scattered about the floor.”
Officer Brad Reeves with the Henderson County Sheriff’s Department testified that
he arrived at the scene of the shooting at approximately 12:30 to 12:45 a.m. on May 2, 2010.
He and Investigator Kenneth Thompson went to assist two other officers who were searching
a residence. Before they reached the residence, however, he observed what he thought was
“somebody peeking around the corner” of some vacant house. He began looking around the
house until he saw “the silhouette of a person.” Officer Reeves continued,
Then I started demanding, “Let me see your hands,” you know, “Come off the
porch,” and, you know, “what are you doing there,” and about the time he
started stepping off the porch, that’s when I noticed his pants was [sic] wet.
So I’d radioed in. I said, “I got a suspect over here.” I said, “I don’t know it’s
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the one we’re looking for, but I got one.” And when I seen his pants wet, it
kind of alarmed me. Then he started hollering, “Reeves, it’s me. Reeves, it’s
me.”
Officer Reeves confirmed that he had had prior contact with this individual, whom
he identified at trial as the Defendant. The Defendant told Officer Reeves that he “messed
up” and motioned to something on his leg. When Officer Reeves tried to take the Defendant
into custody, the Defendant “broke and r[a]n.” Officer Reeves chased him and eventually
apprehended him “at gunpoint” on the ground, with backup arriving around this time. He
believed that the Defendant lost his balance because the ground was wet from the storm.
Officer Reeves warned the other officers, “The gun’s on his leg. It’s on his leg. Y’all be
careful.” Investigator Thompson used a taser on the Defendant, and a handgun was
recovered from the Defendant’s left leg.
Deputy Jeremy Jackson with the Henderson County Sheriff’s Department testified
that, when he arrived at the scene, he observed Officer Reeves talking with and then chasing
after the Defendant. By the time Deputy Jackson caught up with them, “Investigator
Thompson had already tased the gentleman.” Deputy Jackson helped handcuff the Defendant
and proceeded to search him. During the search, he obtained “a semi-automatic black in
color weapon” from the Defendant’s left leg. Another officer instructed him to drop the gun,
so Deputy Jackson complied and left the gun there on the ground.
Investigator Kenneth Dewayne Thompson with the Henderson County Sheriff’s
Department testified that he arrived on the scene of the shooting with Deputy Reeves.
Deputy Reeves heard a noise, and Investigator Thompson followed him to survey the area.
Investigator Thompson had walked around the other side of a house from Deputy Reeves,
and soon after he observed a man running. This man was identified at trial as the Defendant.
Investigator Thompson began chasing the Defendant, and the Defendant eventually
“stumbled to a [sic] front and fell face first into the ground.” The officers instructed the
Defendant to “get his hands up,” but the Defendant resisted, so Investigator Thompson
eventually used a taser on him.
Deputy John James with the Henderson County Sheriff’s Department testified that on
May 2, 2010, he served as a corrections officer at the jail where the Defendant was
transported. While in his cell, the Defendant began “rattling the cell door” and asking for
a more experienced corrections officer. When Deputy James told the Defendant that there
was no one else, the Defendant threatened to beat him up. The Defendant eventually calmed
down and requested to make a phone call, which Deputy James denied, given that the
Defendant was under investigation. Later in the day, the Defendant asked Deputy James
whether the victim had died.
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Investigator Scottie Kizer with the LPD testified that he arrived at the scene of the
shooting at approximately 12:18 a.m. on May 2, 2010. The Defendant was already in custody
when he arrived. Investigator Kizer identified at trial photographs that he took at the scene.
One of the pictures depicted the handgun found on the Defendant, which he described as a
“Keltec,” a nine millimeter, semi-automatic weapon. He stated that the particular cartridge
in the handgun would hold ten bullets and that two bullets were still in the magazine when
recovered.
Investigator Kizer requested that the victim’s vehicle be towed to the LPD, and then
he went from the scene to the emergency room. Upon arriving, he learned that the victim had
died. According to the medical examiner’s records, the victim died at approximately 12:58
a.m. from gunshot wounds. Investigator Kizer photographed the victim at the hospital and
identified photographs at trial of the victim’s wounds and his hands. He explained the
importance of looking at a victim’s hands to determine whether the victim “was in an
altercation.” He confirmed that the victim had no injuries or marks on his hands.
Investigator Kizer discussed a forensic report admitted into evidence. In this report,
both bullets found within the victim were determined to have been fired from the same
weapon. Additionally, gunshot residue was found on the victim’s t-shirt, and the report
indicated that the weapon was within two feet of the victim when the shots were fired.
On cross-examination, Investigator Kizer denied that anyone other than law
enforcement was near the victim’s vehicle when he arrived at the scene. He identified
affidavits of Jowers and Akita stating that, when the victim opened the vehicle door, the
Defendant fired three shots, hitting the victim twice. He confirmed, however, that he never
found a third casing or a third bullet hole. Jowers requested to retrieve her cordless house
phone, and Investigator Kizer eventually returned it to her.
Investigator Kizer agreed that a page in the medical examiner’s report stated,
“Decedent shot twice left shoulder after arguments with the alleged . . . assailant.
Resuscitation efforts not effective.” He acknowledged that, although the Defendant was
charged with reckless endangerment with a deadly weapon as to the three other passengers
in the vehicle, “there was no pointing a gun at them, or they did not tell [Investigator Kizer]
that he made any verbal threats toward them.”
Investigator Kizer denied requesting a drug test on the Defendant, even though, when
he attempted to interview the Defendant on May 2, the Defendant “was talking very
randomly.” He also identified a report indicating that a shell casing was found in the victim’s
vehicle but denied having that casing or knowing where it was at the time of trial.
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Dr. Thomas Deering, a medical examiner, testified as an expert in forensic medicine
and medical pathology. He performed an autopsy on the victim and removed one bullet “in
the right hip area” and a second bullet “in the lower left back.” He explained that the first
bullet entered through the front of the left shoulder and traveled across the body, left to right,
down to the right hip area. In the course of its trajectory, the bullet
went into [the victim’s] chest cavity. It grazed the top of his left lung, and it
actually went all the way through the bottom of his left lung. . . . It goes
through the diaphragm on that left side. It went through his stomach . . . . It
hits that aorta and goes over and ends at . . . what’s called the right pelvic
retroperitoneal soft tissue.
Dr. Deering found, as a result of this wound, slightly less than one liter of blood in the chest
cavity near the lung and that same amount in the victim’s stomach. The other bullet entered
the left shoulder area, struck a rib, and was found “in the left part of the back.” He stated that
this bullet never entered a major cavity of the victim’s body. Dr. Deering stated that both of
these wounds could have originated from “a weapon pointed down from above.”
Dr. Deering also performed a toxicology test on the victim, and this test revealed that
the victim had a blood alcohol level of .03 or .031. From this test, he also confirmed that the
victim “probably smoked marijuana” sometime that evening. Dr. Deering determined that
the manner of the victim’s death was homicide caused by multiple gunshot wounds.
The State rested its proof. The Defendant chose not to testify, and the defense
presented no proof. The jury deliberated and found the Defendant guilty of second degree
murder and three counts of reckless endangerment with a deadly weapon.
At the sentencing hearing held later, the trial court sentenced the Defendant to twenty
years for his second degree murder conviction and two years for each reckless endangerment
conviction, to be served concurrently, for an effective sentence of twenty years’
incarceration. The Defendant filed a motion for new trial, which the trial court subsequently
denied. He now appeals, arguing that the evidence presented at trial is insufficient to support
his convictions.
Analysis
Sufficiency of the Evidence
Our standard of review regarding sufficiency of the evidence is “whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of fact
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could have found the essential elements of the crime beyond a reasonable doubt.” Jackson
v. Virginia, 443 U.S. 307, 319 (1979); see also Tenn. R. App. P. 13(e). After a jury finds a
defendant guilty, the presumption of innocence is removed and replaced with a presumption
of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Consequently, the defendant
has the burden on appeal of demonstrating why the evidence was insufficient to support the
jury’s verdict. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
The appellate court does not weigh the evidence anew. Rather, “a jury verdict,
approved by the trial judge, accredits the testimony of the witnesses for the State and resolves
all conflicts” in the testimony and all reasonably drawn inferences in favor of the State. State
v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, “the State is entitled to the strongest
legitimate view of the evidence and all reasonable or legitimate inferences which may be
drawn therefrom.” Id. (citation omitted). This standard of review applies to guilty verdicts
based upon direct or circumstantial evidence. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn.
2011) (citing State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). In Dorantes, our
Supreme Court adopted the United States Supreme Court standard that “direct and
circumstantial evidence should be treated the same when weighing the sufficiency of such
evidence.” Id. at 381. Accordingly, the evidence need not exclude every other reasonable
hypothesis except that of the defendant’s guilt, provided the defendant’s guilt is established
beyond a reasonable doubt. Id.
The weight and credibility given to the testimony of witnesses, and the reconciliation
of conflicts in that testimony, are questions of fact. State v. Bland, 958 S.W.2d 651, 659
(Tenn. 1997). Furthermore, it is not the role of this Court to reevaluate the evidence or
substitute its own inferences for those drawn by the jury. State v. Winters, 137 S.W.3d 641,
655 (Tenn. Crim. App. 2003) (citations omitted).
Second Degree Murder
The Defendant contends that the State failed to present sufficient evidence for a jury
to convict the Defendant of second degree murder. Specifically, he argues that he shot the
victim in self-defense. Alternatively, he avers that he should have been convicted of the
lesser-included offense of voluntary manslaughter.
Second degree murder is defined as “[a] knowing killing of another.” Tenn. Code
Ann. § 39-13-210(a)(1) (2006). Our supreme court has determined that second degree
murder is a “result of conduct” offense. See State v. Brown, 311 S.W.3d 422, 431-32 (Tenn.
2010); State v. Ducker, 27 S.W.3d 889, 896 (Tenn. 2000). Accordingly, the appropriate
statutory definition of “knowing” in the context of second degree murder is as follows: “A
person acts knowingly with respect to a result of the person’s conduct when the person is
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aware that the conduct is reasonably certain to cause the result.” Tenn. Code Ann. § 39-11-
302(b) (2006); see Brown, 311 S.W.3d at 431. Whether a defendant acts knowingly in
killing another is a question of fact for the jury. State v. Inlow, 52 S.W.3d 101, 104-05
(Tenn. Crim. App. 2000). The jury may infer a defendant’s mental state from “the character
of the assault, the nature of the act and from all the circumstances of the case in evidence.”
Id. at 105; see also Brown, 311 S.W.3d at 431.
Upon our review of the record, we conclude that the evidence is sufficient to sustain
the Defendant’s conviction for second degree murder. Taken in the light most favorable to
the State, the proof established that the Defendant, standing within two feet of the victim,
knowingly fired two gunshots at the unarmed victim as the victim opened the driver’s side
door, killing him. This Court has recognized on numerous occasions that a jury is entitled to
conclude that a defendant commits a knowing killing when he pulls a gun and fires it at a
person. See, e.g., State v. Bobby L. Looper, No. M2011-01642-CCA-R3-CD, 2012 WL
3358155, at *8-9 (Tenn. Crim. App. Aug. 15, 2012), perm. app. denied (Tenn. Dec. 12, 2012)
(evidence sufficient to support second degree murder where defendant aimed shotgun at
unarmed victim and fired one shot, striking the victim in the chest); State v. Michael Raines,
No. E2007-00840-CCA-R3-CD, 2008 WL 2152495, at *5 (Tenn. Crim. App. May 21, 2008),
perm. app. denied (Tenn. Aug. 25, 2010) (evidence sufficient to support second degree
murder where defendant pulled pistol and fired single shot at unarmed victim after victim
threatened and then approached defendant).
The Defendant claims on appeal that he shot the victim in self-defense. At the time
of the victim’s death, the relevant Tennessee statute on self-defense provided that a person
is justified in using deadly force if: “(A) The person has a reasonable belief that there is an
imminent danger of death or serious bodily injury; (B) The danger creating the belief of
imminent death or serious bodily injury is real, or honestly believed to be real at the time; and
(C) The belief of danger is founded upon reasonable grounds.” Tenn. Code Ann. § 39-11-
611(b)(2) (Supp. 2008). When a defendant relies upon a theory of self-defense, the State
bears the burden of proving that the Defendant did not act in self-defense. State v. Sims, 45
S.W.3d 1, 10 (Tenn. 2001). At trial, none of the witnesses recalled the victim threatening the
Defendant or saying anything to the Defendant as the Defendant approached the victim’s
vehicle. Rather, the proof established that the victim was a large individual who required
holding the steering wheel to steady himself as he attempted to get out of the vehicle, as he
was doing at the time he was shot. Additionally, Atia and Akita did not have any knowledge
of the victim possessing a gun. Whether the Defendant acted in self-defense was a question
of fact for the jury, and it was within the jury’s prerogative to reject the Defendant’s self-
defense claim. State v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997). The jury had
sufficient evidence upon which to reject the Defendant’s claim of self-defense, and we will
not disturb its verdict on appeal. Winters, 137 S.W.3d at 655.
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The Defendant next asserts that the proof establishes that he committed voluntary
manslaughter rather than second degree murder. Our criminal code provides that
“[v]oluntary 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.” Tenn. Code Ann. § 39-13-211(a) (2006). The jury was instructed on the
lesser-included offense of voluntary manslaughter as well as the distinction between
voluntary manslaughter and second degree murder. It is well-settled that it is up to the trier
of fact to determine whether a homicide constitutes second degree murder or voluntary
manslaughter. See State v. Williams, 38 S.W.3d 532, 539 (Tenn. 2001); State v. Sentorya
L. Young, No. M2005-01873-CCA-R3-CD, 2008 WL 2026108, at *6 (Tenn. Crim. App.
May 12, 2008), perm. app. denied (Tenn. Dec. 8, 2008); State v. Johnson, 909 S.W.2d 461,
464 (Tenn. Crim. App. 1995). When the evidence is sufficient to support a second degree
murder conviction, we will not disturb the jury’s decision in this regard.
In sum, we conclude that the evidence is sufficient to sustain the Defendant’s
conviction for second degree murder, and he is not entitled to relief on this issue.
Reckless Endangerment
The Defendant also challenges the sufficiency of the evidence for his convictions of
reckless endangerment with a deadly weapon. A person commits reckless endangerment
“who recklessly engages in conduct that places or may place another person in imminent
danger of death or serious bodily injury.” Tenn. Code Ann. § 39-13-103(a) (2006). When
committed with a deadly weapon, this offense is a Class E felony. Id. § -103(b). Our
supreme court has held that, “for the threat of death or serious bodily injury to be ‘imminent,’
the person must be placed in a reasonable probability of danger as opposed to a mere
possibility of danger.” State v. Payne, 7 S.W.3d 25, 28 (Tenn. 1999) (citing State v. Fox, 947
S.W.2d 865, 866 (Tenn. Crim. App. 1996)). The court further held that “the term ‘zone of
danger’ may be employed to define that area in which a reasonable probability exists that the
defendant’s conduct would place others in imminent danger of death or serious bodily injury
if others were present in that zone or area.” Id.
The Defendant was convicted of reckless endangerment with a deadly weapon as to
Akita, Jowers, and Jowers’ infant. All three of these individuals were in the vehicle with the
victim when the Defendant fired shots into the vehicle, killing the victim. Akita testified
that, after the shooting, the Defendant was “waving his gun in the car. He was like, ‘Shut
up. Shut up,’” as Jowers was screaming. This Court previously has held that an individual
was in the “zone of danger” when that individual was standing approximately eight yards
behind the intended victim when the defendant fired five to seven shots at that victim. State
v. Korey Bradley, No. W2009-02024-CCA-R3-CD, 2011 WL 3689032, at *7 (Tenn. Crim.
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App. Aug. 22, 2011), perm. app. denied (Tenn. Jan. 11, 2012); see also State v. Steven
Willard Self, No. 03C01-9807-CR-002, 1999 WL 553093, at *1-2 (Tenn. Crim. App. July
30, 1999), perm. app. denied (Tenn. Jan. 31, 2000) (affirming defendant’s conviction for
reckless endangerment of victim standing approximately fifteen to twenty feet from a dog
that the defendant shot from across the street at night). Thus, a jury clearly could have found
that all three individuals sitting in the same vehicle in which the victim was shot were within
the “zone of danger.” Thus, viewing these facts with the strongest legitimate view in favor
of the State, see Harris, 839 S.W.2d at 75, the State presented sufficient evidence for a jury
to convict the Defendant on all three counts of reckless endangerment with a deadly weapon.
Accordingly, the Defendant is entitled to no relief on this issue.
CONCLUSION
For the reasons articulated above, we affirm the Defendant’s convictions.
______________________________
JEFFREY S. BIVINS, JUDGE
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