The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
March 27, 2012 Session
STATE OF TENNESSEE v. ROBERT BLAKE BALL
Direct Appeal from the Criminal Court for Greene County
No. 10-CR-043 John F. Dugger, Jr., Judge
No. E2011-01618-CCA-R3-CD - Filed September 26, 2012
The Defendant-Appellant, Robert Blake Ball, was convicted by a Greene County jury of
attempted second degree murder and sentenced to eleven years’ imprisonment. In this
appeal, Ball challenges the sufficiency of the evidence supporting his conviction and the
sentence imposed by the trial court. Upon our review, we affirm the judgment of the trial
court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and T HOMAS T. W OODALL, J., joined.
Brent Hensley, (on appeal); Lindsey Wise-Lane, (at trial), Greenville, Tennessee for the
Defendant-Appellant, Robert Blake Ball.
Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel;
C. Berkeley Bell, Jr., District Attorney General; Cecil Mills and Ritchie Collins, Assistant
District Attorneys General, for the Appellee, State of Tennessee.
OPINION
In this case, there is no dispute that Ball shot the victim, Michael Davis, while at a
nightclub in Greene County, Tennessee. Ball immediately confessed to the shooting but
said that it was an accident. Ball was later indicted for attempted first degree premeditated
murder and the following proof was adduced at trial.
Trial. Jeff Johnson, a paramedic with the Greene County Emergency Medical
Service, responded to the Houston Valley Club (“the club”) in the early morning hours of
December 13, 2009. Upon arrival, the victim was lying on the floor with what appeared to
be a gunshot wound to his abdominal area. Johnson said the victim had lost a significant
amount of blood, had an exit wound to the right hip, and was transported by helicopter to
a trauma center. On cross-examination, Johnson said the entry wound was in the abdominal
area, directly below the naval. Johnson also agreed that he entered the club through an
unlocked side door.
Michael Davis, the victim, testified that he was a life-long resident of Greene County.
He and his girlfriend, Haley Cureton, had gone to the club on December 12, 2009, the night
of the offense, to socialize with friends. The club was separated into two areas, a sports bar
and the dance floor. The victim said that he had not had any problems with anyone that
night. He agreed that he had been drinking through the night because it was free after 9 p.m.
The victim did not have any weapons in his possession at the club. The victim knew Ball
and Taylor Atenia and believed that they were romantically involved on the night of the
offense. The victim said that he had a previous relationship with Atenia. He explained that
a few months prior to the offense, Atenia stayed at his house for a few weeks. He was
unsure if Atenia was involved with Ball during this time.
Prior to the shooting, the victim approached the bar to get a beer. As he was walking
back to his table, the victim saw Ball and stopped to talk. The victim did not recall the
specifics of the conversation but said they were “goofing off[.]” The victim said, “[N]ext
thing I [knew Ball] said, ‘I’m going to shoot you.’ And I said, “Well, shoot me then.” The
victim then felt something hard, and said, “No you’re not[.]” Immediately thereafter, Ball
shot the victim. The victim said that Ball did not have any expression and did not appear
to be joking before he shot the victim. The victim said he did not know why Ball shot him.
After he was shot, the victim fell to the floor. People at the club rendered aid by
placing ice on his wounds. The victim was taken to Johnson City Medical Center and
remained there for seven days. The victim explained the extent of his injuries to the jury
and confirmed that the entry wound was under his naval. The victim was 6'3" tall and
weighed 280 pounds at the time of the offense. He agreed that he was much taller than Ball.
On cross-examination, the victim said that he saw Ball after 1:00 a.m. He clarified
his previous testimony and said that they approached each other. The victim had known
Ball since the seventh grade and had never had a problem with him prior to the offense. The
victim agreed that he had not seen Ball for a few months prior to the shooting. Prior to the
offense, the victim went to the club every weekend but rarely saw Ball. The victim said
there were three exits in the sports bar area. Two doors led directly to the outside, while the
third door went through the dance area to get outside. The victim said that he never saw the
gun come out of Ball’s pocket when he was shot. Asked if there was any reason Ball would
want to shoot him, the victim replied, “Not unless it had to do with Taylor Atenia or Holly
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Ricker. I mean he had no reason.” On re-direct examination, the victim confirmed that he
had a sexual relationship with Taylor Atenia. He said that the night of the offense was the
first time the had seen Ball since his sexual relationship with Atenia had ended.
Mark McClain, a deputy with the Greene County Sheriff’s Department, was on
regular patrol the night of the offense. Upon his arrival, he assisted security by handcuffing
an unknown individual who had struck Ball while he was restrained. Deputy McClain also
took possession of the gun that was recovered from the scene and identified it at trial. On
cross-examination, Deputy McClain said that prior to placing the gun in the trunk of his car,
he cleared it to ensure that no rounds were in the chamber. Deputy McClain also removed
the clip from the gun. During his testimony, Deputy McClain examined the gun, which was
similar to his service weapon, and said that it had “an external safety of a sort.” He
explained that the gun would not discharge unless the trigger was pulled. He later agreed
that a person could pull the trigger on the gun, deactivate the safety, and fire the gun in one
motion.
Brandon Lawler, the manager of the club, testified that he was on the sports bar side
of the club before the shooting. He said the club was crowded that night with a relaxed
atmosphere. He said it was a normal evening until he heard a “loud pop” and saw Doug
Havens emerge from the crowd with Ball. Lawler began to assist Havens in securing Ball.
Lawler did not hear Ball express concern for the victim. Lawler asked Ball what happened,
and Ball replied, “it was an accident.” Lawler realized that Ball had a loaded gun in his
possession and retrieved the gun from inside the left pocket of Ball’s jacket. Lawler took
the gun to his bartender, Sarah Murphy, to secure it until the police arrived. Lawler then
helped to place ice on the victim’s wounds.
Haley Cureton, the victim’s girlfriend, testified and corroborated the testimony of the
victim. She additionally testified that they arrived at the club between 9:30 and 10 p.m. on
December 12, 2009. Cureton observed Ball sitting at a table in front of them at 11:00 or
11:30 p.m. Sometime later that evening, Cureton heard a gunshot, looked down, and saw
the victim on the floor. She simultaneously observed Ball “trying to run out that back door.”
However, Doug Havens, security for the club, grabbed Ball and slammed him on top of a
pool table. Cureton described the situation as “chaotic” with people scattered throughout
the club. Ultimately, Cureton went outside the club to catch her breath because someone
had sprayed mace. On cross-examination, Cureton said that she was dating the victim at the
time of the shooting. She did not know Ball and had never dated him. Cureton
acknowledged that the victim and Ball spoke to each other but then went their separate
ways. She confirmed that Ball sat at the bar of the club for an hour to an hour and a half,
then left. Cureton said Ball returned to the club; however, she did not observe anything
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unusual until she heard the gunshot. Prior to the shooting, Cureton did not observe Ball and
the victim argue, push, shove or fight each other.
Nicholas Davis was three or four yards from the shooting when it occurred. After
he heard a “pop,” he saw the victim begin to fall. He further observed Ball headed toward
a side door, but someone grabbed Ball and put him on a table. Davis heard Ball tell the
person who grabbed him that he had a gun in his pocket. Davis said that, at this point, Ball’s
hands were in his pockets. Davis observed Ball struggle to break free, and then an unknown
individual struck Ball while he was restrained on the table. Davis testified that Ball said,
“I’m sorry” a number of times.
Sarah Murphy, the bartender at the club on the night of the offense, knew the victim
as a regular patron of the bar and a friend. Murphy said the victim was “happy” that night.
She recalled seeing someone, later determined to be Ball, with a black hood covering his
face. She was going to explain the club’s prohibition against hoods to him but was unable
to do so. Murphy heard a “balloon popping” sound and then observed the victim’s head
with a little blood on it. She also saw security taking someone away. She said Brandon
Lawler, the owner of the club, brought her a gun, which she identified at trial as the same
gun she gave to the police the night of the offense. On cross-examination, Murphy
acknowledged that the first time she saw Ball was when he spoke with the victim.
Chris Green, age twenty-four, testified that he had known Ball for eight or nine years.
At trial, Green confirmed that he was serving a federal sentence and had a lengthy criminal
history. Green testified that he and Amy Johnston, the mother of his two-year old son, met
Ball at another nightclub, the Hyperion, on the night of the offense. Green, Johnston, and
Ball shared a pitcher of beer at the Hyperion. Green testified that Ball discussed a “problem
that [Ball] and Michael Davis had and he was just – he pretty much had a bad girlfriend, .
. . and she caused him a lot of s**t[.]” Green said that Ball was referring to Taylor Atenia.
Ball told Green that he was “tired of people messing with him and her and . . . thinking they
could get away with it.” Ball further said that the victim was “the main one because he was
. . . going to the Valley and fighting him.” Green recalled that Ball showed him a black, 9
millimeter pistol. Green testified that he was not promised anything from the State in
exchange for his testimony.
Amy Johnston testified and corroborated the testimony of Chris Green. In addition,
Johnston said that Ball was upset because his girlfriend had been cheating on him. Johnston
said Ball asked them to go to the Houston Valley Club with him that night. Johnston
declined to go because she did not want any “drama.” At this point, Ball told Johnston
“don’t worry I’ve got this” and pointed to a dark handgun in his belt on the left side.
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Johnston did not hear Ball threaten to harm the victim or Ball’s intent to go to the Houston
Valley Club to fight the victim.
Angie Weems, an evidence technician with the Greene County Sheriff’s Department,
was responsible for taking the evidence retrieved from the crime scene to the lab. She
collected two nine millimeter rounds. She also collected the victim’s jeans, belt, jacket, and
shirt. Finally, she collected the defendant’s jacket, shirt, pants, a gunshot residue kit, and
a spent shell casing. The evidence collected from the scene did not contain a black hood.
Laura Hodge, a special agent with the Tennessee Bureau of Investigation (TBI),
analyzed the gunshot residue kit, which contained the swabs collected from Ball’s hands.
She testified that elements of gunshot residue were not present. On cross-examination,
Special Agent Hodge explained that if a gun was fired from inside a pocket, then she would
expect gunshot residue to be confined in that area. In this case, however, she did not
analyze any of Ball’s clothes.
Don Carmen, a recently retired special agent with the TBI, testified as an expert in
the area of forensic firearms identification. Special Agent Carmen examined the gun
recovered from the crime scene, identified it as a Glock 9 millimeter, semi-automatic, and
determined that it was in operable condition. The gun was also fully functional with safety
features. Agent Carmen explained that
The Glock itself has three safety features. You notice this particular
pistol does not have any outside external manual safeties. They’re all what
we call passive safeties.
...
Passive safeties means that mentally . . . you do not have to be
conscious to actually disengage the safety itself. It’s basically combat ready.
So the main safety is this little device here, right in the center, called the
trigger safety. If this particular trigger was to actually - - something on the
side, like I’m pushing on the very side of it, like we say you dropped it,
whatever and something hit just on the side of it, it would not discharge. It
would not release the firing pin. You actually have to have force applied
directly in the middle here in order for the particular firing pin to go off like
that.
Agent Carmen continued and said the Glock 9 millimeter had two other safety features, a
drop pin and another passive safety, similar to the above described safety.
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Based on his examination of the weapon, Agent Carmen opined that six pounds of
force must be exerted on the trigger guard in order for the gun to discharge. He examined
the 9 millimeter cartridge cases recovered from the crime scene and determined they were
fired from the 9 millimeter Glock recovered from the crime scene. He also examined Ball’s
jacket and shirt recovered from the crime scene and determined there was no gunshot
residue. On cross-examination, Agent Carmen agreed that gunshot residue should be
present if a gun was fired and the muzzle was placed directly against an article of clothing.
He further agreed that the spread of gunshot residue would be prevented if a gun were
placed in a pocket and fired through the material.
James Russell Davis, a veteran forensic scientist of the TBI, testified that he
performed gunshot residue analysis in this case. He examined Ball’s jacket on the left side,
including the left sleeve, left front, and left side of the front pocket. He found gunshot
residue on the inside of the left side of Ball’s jacket and on the left front side of Ball’s pants.
Gunshot residue was not found on Ball’s shirt or belt. Special Agent Davis confirmed that
a hole or tear was on the left front side of Ball’s jacket.
Dr. Kristopher Kaufmann, the Chief of Trauma at Johnson City Medical, testified
that the victim received two puncture wounds, consistent with gunshot wounds, one on the
right side of the abdomen and the other on the buttock. The wound adjacent to the
umbilicus button had some burn marks around it. Dr. Kaufmann provided the medical
records and history detailing the victim’s surgery, and he considered the victim’s wounds
life-threatening. On cross-examination, Dr. Kaufmann said that he was unable to provide
a definitive angle of the gunshot or bullet because “bullets don’t necessarily go in a straight
line and you can’t be sure which way a person is turned when they’re shot.”
Detective Vincent Tweed of the Greene County Sheriff’s Department was on call the
night of the offense and responded to the club. Prior to his arrival, he was advised that the
suspect was in custody and that a gun had been recovered. He spoke with potential
witnesses at the club, took crime scene photographs, and instructed officers to retrieve the
victim’s clothing from the hospital. He further instructed officers to transport Ball to the
jail. Detective Tweed determined that Ball did not have a gun permit on file and read Ball
his rights under Miranda. Ball acknowledged his rights, signed a form waiving his rights,
and agreed to an interview with Detective Tweed. The statement taken during the interview
was audio recorded and admitted at trial. The statement provided, in pertinent part, as
follows:
DETECTIVE: Tell me from start to finish what happened[.]
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BALL: Well, I drove up there and got out the car and realized I locked myself
out of the car, so I couldn’t leave the gun in the car. I took the gun from my
mom without her knowing, because I had some threats made to me by some
people over a girl I was seeing.
DETECTIVE: That gun right there?
BALL: Yes sir.
DETECTIVE: OK.
BALL: Glock 9 with a comperated (sic) barrel[.]
DETECTIVE: Yep, That’s the one they took from you. Just initial that right
there. That’s a picture of it.
DETECTIVE: Ok, then what happened?
BALL: So, I realized that I locked myself out. So, I told the guy at the Valley
that I was going to go in and get me a ride out of there. And I went in and
was trying to find a ride[.]
....
BALL: Michael walked over there to me. I nudged him and he nudged me
just playing around cause I’ve know[n] him since I was in grade school.
DETECTIVE: Michael who?
BALL: Davis, Yea, We’ve been friends since grade school and Ah, I was just
playing around.
....
BALL: He’s a good guy. He got two kids and stuff. I reached.
DETECTIVE: Ok, you went over to him and what happened?
BALL: No, [h]e, [h]e walked over to me. We were there and I stuck my hand
in there just playing. I was like . . . “Be careful be careful or something like
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that” and I accidentally and I was just playing. I wasn’t, I didn’t mean and the
gun went off. Then I looked and he was falling. So, I grabbed him I said
Michael are you OK? Are you OK? Are you OK man? Then I got up turned
around to get some help by that time the bouncer done grabbed me by the
throat and they slammed me over there. I said man just let me go I just want
to see if he is OK. But.
....
BALL: I was just playing around and the damn thing went off. It freaked me
out cause I didn’t. It was like bam I was like. I stalled for just a second.
Then I seen Michael start falling. I went to help him. I shot him.
DETECTIVE: OK, but you didn’t mean to shoot him?
BALL: No sir, [i]f I . . .
DETECTIVE: Did you have your finger on the trigger?
BALL: No, I tried to put it. I thought I was putting it on the trigger guard just
playing around. But I was being a dumb a[–] excuse my language but there’s
no other way to say it. I shot my buddy.
Detective Tweed continued the investigation and interviewed other witnesses,
including the victim, and determined that he needed to talk to Ball again. In his second
statement, which was also recorded and played for the jury, Ball agreed that he told the
victim, “I’m going to shoot you,” before he shot the victim. Ball explained that he was
joking with the victim and did not intend to shoot him. Ball said officers would find a bullet
hole in his jacket and denied pulling the gun out of his pocket to shoot the victim. Detective
Tweed said that Ball was fully cooperative with the investigation.
Detective Tweed described the condition of the gun when it was recovered and said
that it contained two live rounds. Detective Tweed further noted that an expended round
shell casing was jammed within the gun. Detective Tweed agreed that when a projectile is
not properly ejected something on the gun has either malfunctioned or prohibited a round
from ejecting properly. Detective Tweed said that there were three holes found on Ball’s
jacket; however, only one hole went through the interior to the exterior of the jacket.
Detective Tweed agreed that the gun discharged inside of Ball’s pocket and that a person
could pull the trigger with the safety on this particular gun. Finally, Detective Tweed
confirmed that no black hood was recovered from the crime scene.
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Doug Havens was working security at the club on the night of the offense. After
hearing a loud “pop,” Havens proceeded toward a wooden door separating the sports bar
from the main bar area. As Havens went through the doorway, Ball was exiting and
“hunkered down like he was trying to get away from something.” Havens then grabbed Ball
by his right arm and “took him to the pool table.” Upon realizing that Ball had a gun,
Havens choked Ball until Ball was unconscious. Havens said Ball was unconscious for ten
or fifteen seconds and was restrained until the police arrived. Havens said when Ball
awoke, Ball struggled with him. Haven further agreed that he testified at a previous hearing
that he grabbed Ball because Ball was wearing a hood. Havens agreed that once Ball was
detained on the pool table, Ball was upset and said that he was sorry.
Clayton Babb had known Ball for five or six years. They had gone to school
together, and Babb had worked for Ball. Babb knew the victim but had “just seen him
around.” Babb had gone to the club on the night of the offense to celebrate a friend’s going
to the Army. Around 11 p.m. or midnight, Ball asked Babb if he could give him a ride home
because Ball had locked his keys in his car. Babb said he had to get his mother’s permission
because he was driving her car. Babb said that Ball appeared normal and did not seem
upset. Babb said he observed the victim and Ball talking. He was unable to hear exactly
what was said because the music was loud, and he was busy texting his girlfriend. When
Babb heard the gunshot, he jumped up and saw the victim fall to the ground. Babb said Ball
“grabbed [the victim’s] shoulders and helped [the victim] to the ground.” Ball appeared
“panicked” and was then restrained by security. On cross-examination, Babb denied telling
Ball to “quit playing around” on the night of the offense. Babb further conceded that he was
drunk on the night of the offense and that his perception may have been affected.
Christopher Grizzle had known Ball for five or six years. Grizzle recalled that on the
night of the offense he was at the Hyperion nightclub. He said he remembered that night
because the Hyperion was showing an ultimate fighting championship pay per view event.
Grizzle met Ball at the Hyperion that night around 9:00 p.m. He and Ball sat and ate in the
same booth for about forty-five minutes. They were talking about a friend who had gotten
into trouble. Grizzle said that this was the first time he encountered Chris Green. He said
Green came over and sat down in a booth close to theirs. He said Green spoke with Ball but
that Ball never left their booth. He said Ball did not appear upset and did not show Green
a gun. On cross-examination, Grizzle confirmed that the ultimate fighting championship
started at 10:00 p.m., eastern standard time. He agreed that he left the Hyperion at 10:30
or 10:45 p.m. He insisted that he arrived at 9:00 p.m. but was only able to watch the
preliminary fights because he had gotten into an argument with his ex-girlfriend and went
home. Grizzle confirmed that he was previously convicted of theft of property under $500
and robbery.
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Ball testified on his own behalf. He explained that on the night of the offense he had
gone to the Hyperion club twice. His first visit to the Hyperion was “early,” with a female
friend, and lasted thirty minutes to an hour. Ball said he returned to the Hyperion alone that
night to watch the pay per view event. He sat down, spoke with Grizzle, and had one shot
of alcohol. Ball said he also spoke with Green, who sat at a booth near them. Ball said that
he had not seen Green in over a year. Ball denied having a gun inside the Hyperion and
claimed that the gun was in his car. Ball acknowledged that Amy Johnston was with Green,
and said that they were drinking. When Ball left the Hyperion, he intended to go home. He
removed the gun from underneath his seat and placed it in his pocket. However, instead of
going home, Ball said, “[f]or some reason[,] I just decided to go up to the . . . Houston
Valley Club.” Asked why he was carrying the gun, Ball said
I was being threatened. I was with a girl. [T]hat I guess she ripped some
people off while I was out of town or, yeah, I was out of town; they had called
and was threatening her and I started answering the phone one time and they
started threatening me and they told me they were going to kill me and they
told me where she lived and then they told me who I was and where I lived.
Ball said he did not know the person who was threatening him. He was certain,
however, that it was not the victim. When he arrived at the Houston Valley Club, he parked
and exited his car. Before entering the club, Ball realized that he had the gun and returned
to his car. At this point, he realized that he had locked his keys in his car. He said he knew
that taking the gun into the club was wrong and went inside the club in search of a ride
home. He saw Babb, who could not give him a ride without his mother’s permission. Ball
continued to look for another ride and saw the victim. He said the victim approached him,
and they were “kind of joking around a little bit[.]” Ball decided to show the victim the gun
to express how urgently Ball needed “to get out of the bar[.]” Ball showed the victim the
butt of the gun and attempted to twist the gun. Ball said he tried to “pull just a little bit to
show him the butt again, and [the gun] fired.” He said he knew the gun was loaded but he
did not know that a bullet was in the chamber. Ball said that he did not argue with the
victim that night, had no reason to be upset with the victim, and had never had any problems
with the victim.
During his testimony, Ball put on the jacket he wore the night of the shooting,
demonstrated where the gun was positioned, and said the gun discharged through his jacket.
He did not intend to shoot the victim. As the victim began to fall, Ball asked if the victim
was okay and told him that he was sorry.
Ball confirmed that security for the club grabbed him, threw him on the pool table,
and choked him until he was unconscious. He said he struggled with security only to avoid
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getting hit. Ball said he was sprayed with mace and “beat[en]-up.” Ball also testified that
he began dating Taylor Atenia at the end of August or beginning of September. He was
unaware of any sexual relationship between Taylor Atenia and the victim. Ball said Taylor
Atenia was not at the Houston Valley Club on the night of the offense.
On cross-examination, Ball said that he was threatened “about a week” prior to the
offense. He said he handled the gun three times prior to the offense. He agreed that Holly
Ricker, the victim’s ex-wife, “stayed at his house,” but that the victim was not involved
with Ricker at that time. On re-direct examination, Ball explained that he and the victim had
discussed Holly Ricker in August 2009. Ball told the victim that he knew what Ricker had
done to the victim and “just didn’t want no part of her.” The jury was permitted to examine
the safety and trigger mechanism of the gun.
The jury convicted Ball of attempted second degree murder and fixed a $25,000 fine.
Following a sentencing hearing, the trial court ordered Ball to serve eleven years’
imprisonment and imposed a $25,000 fine. The instant appeal followed.
ANALYSIS
I. Sufficiency of the Evidence. In challenging the evidence supporting his
conviction, Ball specifically contends that the State failed to prove that he “knowingly” shot
the victim. Although he concedes that he shot the victim, he claims, as he did at trial, that
it was an accident and that he did not possess the requisite mens rea to support a conviction
of attempted second degree murder. In response, the State contends that the jury rejected
Ball’s defense theory, and therefore, the proof was sufficient to support his conviction. We
agree with the State.
The State, on appeal, is entitled to the strongest legitimate view of the evidence and
all reasonable inferences which may be drawn from that evidence. State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997). When a defendant challenges the sufficiency of the
evidence, the standard of review applied by this court is “whether, after viewing the
evidence in the light most favorable to the prosecution, 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). Similarly, Rule 13(e) of the Tennessee
Rules of Appellate Procedure states, “Findings of guilt in criminal actions whether by the
trial court or jury shall be set aside if the evidence is insufficient to support the findings by
the trier of fact of guilt beyond a reasonable doubt.” Guilt may be found beyond a
reasonable doubt in a case where there is direct evidence, circumstantial evidence, or a
combination of the two. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990)
(citing State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977); Farmer v. State, 343 S.W.2d
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895, 897 (Tenn. 1961)). The trier of fact must evaluate the credibility of the witnesses,
determine the weight given to witnesses’ testimony, and must reconcile all conflicts in the
evidence. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). When reviewing issues
regarding the sufficiency of the evidence, this court shall not “reweigh or reevaluate the
evidence.” Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997). This court has often
stated that “[a] guilty verdict by the jury, approved by the trial court, accredits the testimony
of the witnesses for the State and resolves all conflicts in favor of the prosecution’s theory.”
Bland, 958 S.W.2d at 659. A guilty verdict also “removes the presumption of innocence and
replaces it with a presumption of guilt, and the defendant has the burden of illustrating why
the evidence is insufficient to support the jury’s verdict.” Id. (citing State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982)).
“In the absence of direct evidence, a criminal offense may be established exclusively
by circumstantial evidence.” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (citing
Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973); Marable v. State, 313 S.W.2d 451,
456-58 (Tenn. 1958)). However, “[t]he jury decides the weight to be given to circumstantial
evidence, and ‘[t]he 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.’” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting Marable,
313 S.W.2d at 457). This court may not substitute its inferences for those drawn by the trier
of fact in cases involving circumstantial evidence. State v. Lewter, 313 S.W.3d 745, 748
(Tenn. 2010) (citing Liakas v. State, 286 S.W.2d 856, 859 (Tenn. 1956)). We note that the
standard of review “‘is the same whether the conviction is based upon direct or
circumstantial evidence.’” State v. Hanson, 279 S.W.3d 265, 275 (quoting State v. Sutton,
166 S.W.3d 686, 689 (Tenn. 2005)); State v. Carruthers, 35 S.W.3d 516, 557 (Tenn. 2000).
Second degree murder, a Class A Felony, is the “knowing killing of another.” T.C.A.
§ 39-13-210(a)(1) (2006). “A person acts knowingly ... when the person is aware that the
conduct is reasonably certain to cause the result.” Id. § 39-11-302(b). Criminal attempt
requires, as relevant here, proof that a person “[a]cts with intent to complete a course of
action or cause a result that would constitute the offense . . . and the conduct constitutes a
substantial step toward the commission of the offense.” Id. § 39-12-101(a)(3). Attempted
second degree murder, therefore, requires the State to prove that a defendant acted with the
intent to knowingly kill another and took a substantial step toward doing so. A defendant’s
mental state is a factual question for the jury to resolve. State v. Brown, 311 S .W.3d 422,
432 (Tenn. 2010) (citing State v. Inlow, 52 S.W.3d 101, 104-05 (Tenn. Crim. App. 2000)).
The Tennessee Supreme Court has explained that circumstantial evidence is often the only
means of proving mental state: “[W]hile a defendant’s mental state is rarely subject to proof
by direct evidence, it is within the authority of the jury to infer the defendant’s intent, and,
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therefore, whether the defendant acted ‘knowingly,’ from surrounding facts and
circumstances.” Brown, 311 S.W.3d at 432 (citations and quotations omitted).
Taken in the light most favorable to the State, the evidence in this case is sufficient
to support a conviction of attempted second degree murder. Ball told authorities that the
shooting was an accident and that he was only joking. While the gun was in his pocket, Ball
intended to check the safety, but the gun discharged. Ball’s theory was that he somehow
confused the gun’s safety mechanism with the trigger, or the gun malfunctioned. He fully
developed his defense at trial.
However, the jury also heard the testimony of the victim, who said that Ball told him
he was going to shoot him before Ball, in fact, shot the victim. The victim said that Ball did
not appear to be joking when he shot him. In addition, the proof established that Ball had
been at the Hyperion with Green and Johnston prior to going to the club. While there, Ball
told Green that he had a problem with the victim and showed Johnston his gun to illustrate
how he would handle any “drama” at the club. Ball told Green that he was tired of the
victim “messing” with him and Taylor Atenia and “thinking he could get away with it.” The
victim confirmed that he had been involved in a sexual relationship with Ball’s girlfriend,
Taylor Atenia. Finally, a firearms expert testified that a person must exert six pounds of
pressure on the trigger of the gun in order for it to discharge.
Upon this proof, we conclude that a reasonable juror could find that the shooting was
knowing, not accidental. Accordingly, the proof is sufficient to support a conviction of
attempt to commit second degree murder. Ball is not entitled to relief.
II. Sentence. Ball challenges the trial court’s imposition of an eleven-year sentence
as improper. In response, the State contends that the trial court properly imposed sentence
after considering the applicable enhancement and mitigating factors. We agree with the
State.
On appeal, we must review issues regarding the length and manner of service of a
sentence de novo with a presumption that the trial court’s determinations are correct. T.C.A.
§ 40-35-401(d) (2006). Nevertheless, “the presumption of correctness which accompanies
the trial court’s action is conditioned upon the affirmative showing in the record that the trial
court considered the sentencing principles and all relevant facts and circumstances.” State
v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). Our review is de novo, without a
presumption of correctness, if the trial court applied inappropriate mitigating or
enhancement factors or otherwise failed to follow the principles of the Sentencing Act.
State v. Carter, 254 S.W.3d 335, 345 (Tenn. 2008). The defendant, not the State, has the
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burden of showing the impropriety of the sentence. T.C.A. § 40-35-401(d) (2006),
Sentencing Commission Comments.
The record shows that the trial court considered the applicable sentencing principles,
as well as the relevant facts and circumstances; therefore, our review of sentencing is de
novo with a presumption that the trial court’s determinations are correct. See T.C.A. §
40-35-401(d) (2005); State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
Before a trial court imposes a sentence upon a convicted criminal defendant, it must
consider: (1) the evidence adduced at the trial and the sentencing hearing; (2) the
pre-sentence report; (3) the principles of sentencing and arguments as to sentencing
alternatives; (4) the nature and characteristics of the criminal conduct involved; (5) evidence
and information offered by the parties on the enhancement and mitigating factors set forth
in Tennessee Code Annotated sections 40-35-113 and 40-35-114; (6) any statistical
information provided by the administrative office of the courts as to Tennessee sentencing
practices for similar offenses; and (7) any statement the defendant wishes to make in the
defendant’s own behalf about sentencing. See T.C.A. § 40-35-210(b); see also State v.
Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002); State v. Osborne, 251 S.W.3d 1, 24 (Tenn. Crim.
App. 2007).
The Tennessee Supreme Court has stated that the 2005 Amendments to the
Sentencing Act “deleted as grounds for appeal a claim that the trial court did not weigh
properly the enhancement and mitigating factors.” Carter, 254 S.W.3d at 344. In sentencing
a defendant, the trial court must consider the sentencing guideline that suggests an
adjustment to the defendant’s sentence when enhancement or mitigating factors are present;
however, these factors under the guideline are merely advisory rather than binding upon a
trial court’s sentencing decision. Id.; see also T.C.A. § 40-35-210 (2006). The weight given
to each enhancement or mitigating factor is left to the sound discretion of the trial court. Id.
Thus, this court is “bound by a trial court’s decision as to the length of the sentence imposed
so long as it is imposed in a manner consistent with the purposes and principles set out in
sections -102 and -103 of the Sentencing Act.” Id. at 346.
Ball was convicted as a Range I, standard offender of attempt to commit second
degree murder. Under these circumstances, attempted second degree murder, a Class B
felony, has a sentencing range of eight to twelve years. T.C.A. §§ 39-12-101, -107(a),
40-35-112(a)(2). The trial court applied enhancement factor (6), the personal injuries
inflicted upon the victim were particularly great, and (9), the defendant possessed or
employed a firearm during the commission of this offense. Id. § 40-35-114(6), (9) (2006).
Ball does not contest the application of these enhancement factors. Section 40-35-113
contains a non-exclusive list of mitigating factors that a trial court may apply to a
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defendant’s sentence “[i]f appropriate for the offense.” T.C.A. § 40-35-113 (2006). Ball
argues that the trial court should have applied the following mitigating factors from that list:
(3) Substantial grounds exist tending to excuse or justify the defendant’s
criminal conduct, though failing to establish a defense;
....
(10) The defendant assisted authorities in locating or recovering any property or
person involved in the crime;
....
(11) The defendant, although guilty of the crime, committed the offense under
such unusual circumstances that it is unlikely that a sustained intent to violate
the law motivated the criminal conduct[.]
Id. § 40-35-113 (3), (10), (11) (2006). A defendant has the burden of proving applicable
mitigating factors. State v. Mark Moore, No. 03C01-9403-CR-00098, 1995 WL 548786,
at *6 (Tenn. Crim. App., at Knoxville, Sept. 18, 1995) (citing T.C.A. § 40-35-401(d)).
The trial court found that each of the above mitigating factors proposed by Ball were
inapplicable to his sentence. In rejecting mitigating factor (3), the trial court stated “[t]here
were no substantial grounds to excuse or justify [Ball] taking a loaded Glock into a crowded
bar, [and] showing that Glock before you went there at another bar[.]” The court also
reasoned, based on Cureton’s testimony, that Ball had been staring at the victim “for a long
period of time” prior to shooting him. In rejecting mitigating factor (10), the trial court
stated, “the testimony from Mr. Lawler was that you were pinned down on the pool table
after the shooting and that [Mr. Lawler] removed the gun[.]” The court reasoned that the
weapon was recovered without any assistance from Ball. In rejecting mitigating factor (11),
the court stated that Ball had “a sustained intent” because Ball brandished the gun at two
different bars, stared at the victim prior to the shooting, and had “a problem” with the victim
based on his relationship with a woman with whom Ball was romantically involved.
Upon our review, we hold that the trial court did not err in sentencing Ball to eleven
years for attempt to commit second degree murder. In regard to mitigating factors (3) and
(11), Ball relies entirely upon his claim that the shooting was accidental. T.C.A. 40-35-113
(3), (11). There was more than sufficient proof at trial showing that the shooting was not
an accident, therefore, the trial court properly denied application of mitigating factors (3)
and (11). In regard to mitigating factor (10), Ball’s claim that he assisted the authorities
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with locating the gun, we agree with the trial court and conclude that the gun was taken
from Ball after he was restrained. The record simply does not support Ball’s claim that he
provided assistance to authorities in locating the gun. Accordingly, we believe that Ball’s
sentence is consistent with the principles of the Sentencing Act. The trial court acted within
its discretion in sentencing Ball three years above the statutory minimum. Ball is not
entitled to relief on this issue.
CONCLUSION
The judgment of the trial court is affirmed.
________________________________
CAMILLE R. McMULLEN, JUDGE
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