State of Tennessee v. Bryant C. Overton

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs September 22, 2010

STATE OF TENNESSEE v. BRYANT C. OVERTON

Direct Appeal from the Circuit Court for Rutherford County

No. F-61909C David Bragg, Judge

No. M2009-01977-CCA-R3-CD - Filed February 15, 2011

A Rutherford County jury convicted the Defendant, Bryant C. Overton, of aggravated

kidnapping, aggravated robbery, attempted first degree murder, and conspiracy to commit

kidnapping. The trial court ordered the Defendant to serve an effective sentence of sixty

years in the Tennessee Department of Correction. On appeal, the Defendant contends that

the evidence is insufficient to support his convictions. After a thorough review of the record

and the applicable law, we affirm the trial court’s judgments in part, but we reverse them in

part based upon a sentencing error.

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

Part and Reversed in Part

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which D AVID H. W ELLES

and J ERRY L. S MITH, JJ., joined.

R. Wilford Fraley, III, Murfreesboro, Tennessee, for the Appellant, Bryant C. Overton.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;

Lindsy Paduch Stempel, Assistant Attorney General; William C. Whitesell, Jr., District

Attorney General; J. Paul Newman, Assistant District Attorney General, for the Appellee,

State of Tennessee.

OPINION

I. Facts

This case arises from events that occurred on December 15, 2007, when the victim was

taken to a ditch and shot multiple times. Based on these events, a Rutherford County grand

jury indicted the Defendant for conspiracy to commit kidnapping, especially aggravated

kidnapping, especially aggravated robbery, and attempted first degree murder. The following

evidence was presented at the Defendant’s trial: Darice Brown, the victim in this case,

testified that on December 15, 2007, she had a conversation with one of the co-defendants,

Robert Adams (“P.T.”), who was seeking to purchase cocaine. The victim said that P.T.

asked the victim to “call somebody for him,” so she called “B.I.,” a man she knew supplied

cocaine. The victim said that she had “been around” B.I. before, but had never purchased

drugs from him. The victim arranged a meeting with B.I. at Wal-Mart at 7:30 p.m., and B.I.

instructed her to come alone because he “didn’t deal with men.”

The victim testified that the Defendant and his three co-defendants, P.T., Kesha Adams

(“Cash”), and Kristie Ray (“Michelle”) picked the victim up at her house. The victim recalled

that Michelle was driving, Cash was in the passenger seat, and the victim was seated in the

back between the Defendant and P.T. When they arrived at Wal-Mart the victim exited the

vehicle and the Defendant and P.T. followed her but remained outside of the Wal-Mart while

the victim went inside and spoke with B.I. B.I. asked the victim who the two men were, and

the victim told B.I. the men’s identities. B.I. said, “[N]ever mind,” indicating he would not

proceed with the drug transaction, so the victim returned to the car and informed the others.

P.T. instructed the victim to try again and, this time, to take Cash with her. The victim called

B.I. and arranged to meet B.I. at his car with Cash, while P.T. and the Defendant remained

in Michelle’s car. P.T. gave Cash the money to purchase the cocaine and Cash completed the

exchange with B.I.

The victim testified that, upon returning to the car, the Defendant said, in reference to

B.I., “I know that nigger. I had a beef with him last summer.” The Defendant asked the

victim if she knew where B.I. lived and asked P.T. to give him a gun. P.T. passed the

Defendant the gun across where the victim was seated in the car. The victim testified that,

up until this gun was produced, she was unaware of a weapon in the car. The Defendant then

instructed the victim to call B.I. and to show them where B.I. lived. The victim agreed to call

B.I. but told the Defendant she did not know where B.I. lived, but the Defendant did not

believe her. Michelle pulled over and waited, while the victim attempted to call B.I. with no

success. The victim said she then called her cousin and asked where B.I. lived. Her cousin

responded by asking whether the victim was in trouble, and the Defendant instructed the

victim to disconnect the phone call so she complied. Michelle indicated that she knew where

B.I. lived and began driving, but the Defendant told her to stop and take the ramp to “get back

on the interstate.”

The victim testified that, once they were on the ramp, P.T. stuck his finger in the

cocaine, tasted it, and said it “wasn’t real.” P.T. then passed the cocaine to Cash who also

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tasted it and agreed that the cocaine “wasn’t real.” The victim recalled that the situation then

escalated with the Defendant insisting that she knew where B.I. lived. The victim testified

that she did not feel free to leave and that P.T. had told the victim that she “wasn’t going

anywhere unless he got his money or [his] drugs.” The victim asked the Defendant if “this

[was] about money” and offered to help recover his money. Cash said “put the bitch out and

make her walk or we could tie her up.” The victim, who had been pushing “send” on her

phone in hopes of someone overhearing the conversation, reached for her phone that was

between her legs, and the Defendant “snatched the phone” from her. The victim said that she

was fearful and relinquished her cell phone because the Defendant “had a gun and he wanted

it.”

The victim testified that the Defendant instructed Michelle where to drive, leading the

group to a remote location. During the drive, Cash continued to suggest to P.T. things they

could do to the victim. The victim recalled that the Defendant told the victim that she

“thought [she] was too good for him.” and that P.T. told her that “somebody was going to die

tonight.” The Defendant finally told Michelle to stop the car in an unlit location. The

Defendant opened the car door, took the victim’s purse, and then pulled the victim out of the

car with her back facing him. The victim recalled feeling the first gunshot to her leg and

hitting the ground. The victim was facing Michelle’s car and could see the Defendant’s feet

but nothing else. The victim testified, “I felt the first one and I held my mouth because I

didn’t want [the Defendant] to hear me scream. And I just waited for it to hit my head. I

waited to die. I thought [the Defendant] was going to kill me.” The victim said that she heard

“a lot” of shots until the gun “clicked” indicating there were no more bullets. The Defendant

then instructed Michelle to “go,” a car door shut, and the four co-defendants drove away.

The victim explained she could not call for help because the Defendant drove away

with her cell phone. The victim recounted what occurred after the shooting:

I laid there because it was warm and I couldn’t move my leg. I just laid there

and I prayed. And I guess I had laid there so long that the temperature had

dropped and it started to mist. And [it] got to where I could slide. So I took

my elbows and stuck them in the mud and pulled myself until I got to the

highway.

The victim explained that she could not walk because her femur was shattered from the gun

shots. The victim said that she pulled herself into the middle of the road and laid there hoping

someone would find her. A car finally did stop, and the victim asked its occupants to call her

family. An ambulance arrived and took the victim to Middle Tennessee Medical Center

where she was stabilized. She later was air-lifted to Vanderbilt Hospital and treated in the

trauma unit.

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The victim testified that, when she woke up in the hospital, she had a colostomy bag,

a rod in her left leg, liver damage, a fractured pelvis, four bullets in her body and her elbows

were damaged. The victim said that she could not initially speak because she was “breathing

through a tube.” The victim said that she wore the colostomy bag for six months until doctors

were able to reconnect her intestines after she sustained injuries to her rectum. The victim

testified that she has had “no less than seven” surgeries related to the injuries resulting from

this shooting. The victim acknowledged that she used a cane in court that day as a result of

the injuries from the shooting.

The victim testified that, while inside Michelle’s car, she did not feel she had any

control over what happened, explaining, “Once the gun came out, I felt trapped.” Likewise,

she said that when the Defendant took her phone she did not feel she had any choice but to

relinquish it because he had a gun.

The victim testified that, while at Vanderbilt hospital, detectives showed her

photographic line-ups, and she positively identified the Defendant and the three co-

defendants.

The victim acknowledged that she had two prior felony convictions, explaining that

she was with “someone” who sold drugs to an informant. As a result, she was charged and

convicted of conspiracy to sell drugs for being present during the drug sale.

On cross-examination, the victim testified that she did not intend to use any of the half-

ounce of cocaine Cash purchased from B.I. for $450. The victim said that, at the location

where she was shot, she could see a house in the distance, but it was so dark she “couldn’t see

[her] hand in front of [her] face.” The victim recalled that the Defendant immediately shot

her upon her exit from the vehicle and that, as she was lying on the ground, she saw the

Defendant’s white Nike Air Force One shoes. The Defendant got back into the car, and

instructed Michelle to drive away.

Stevie Trotter testified that as her husband Ryan Trotter was driving herself, Phillips,

and Michael Glossop home from a Christmas party, the group saw a woman in the road as

they drove down Beasley Road. Trotter’s husband stopped the car and went with Glossop to

try to speak with the victim. Trotter said she was able to communicate with the victim

although the victim’s voice was “faint.” The victim told Trotter her name, said someone she

knew had shot her, and said “something about drugs.”

Ryan Trotter testified that he saw the victim lying in the street as he drove down

Beasley Road. He parked his car and approached the victim, initially unable to tell she was

shot, and asked why she was in the road. The victim indicated that she had been shot. Ryan

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asked the victim, multiple times, who shot her, but the victim’s responses were difficult to

understand. Ryan said, “[T]he only thing I could make out was like D or Debo.” Upon being

asked, Ryan said that he had never seen the Defendant before and did not know his name or

nickname.

David Hailey, a Rutherford County Sheriff’s Department lieutenant, testified that,

when he arrived at the scene, emergency responders were loading the victim into the

ambulance. Based upon the seriousness of her injuries and his concern that she might not

survive the injuries, Lieutenant Hailey got into the ambulance and spoke with the victim

before the ambulance transported her to the hospital. Lieutenant Hailey said it was difficult

to understand the victim, but he “got down real close to her face.” The victim repeatedly told

Lieutenant Hailey that Debo shot her. The Lieutenant, thinking the victim was trying to say

something else, asked her repeatedly for the name of the shooter and the victim repeated

Debo. The victim also provided the names of three other individuals: Cash, P.T., and

Michelle. Lieutenant Hailey said that he “stayed out of the scene” to preserve the evidence

but that he saw a purse lying in the road and what appeared to be marks left from the victim

dragging her body across the road.

Duane Jackson, a Rutherford County Sheriff’s Department detective, testified that,

later on the day of the shooting, he interviewed the victim at Vanderbilt hospital. The victim

was unable to talk at that time, but she wrote down the answers to the detective’s questions.

When he asked the victim who shot her, she responded by writing “Debo.” The victim further

indicated that fake drugs were sold during a drug transaction and that Debo was upset due to

her involvement in the drug transaction. The detective showed the victim a photographic line-

up that included the Defendant’s photograph. The victim indicated that the Defendant was

the shooter and showed no hesitation in identifying him.

Dr. Richard Miller testified that he treated the victim upon her admission to Vanderbilt

hospital trauma unit and continued to treat the victim at the time of the trial. Dr. Miller

testified that the victim sustained multiple gunshot wounds, which caused major liver damage,

a fractured femur bone, and a hole in the victim’s rectum. All of these injuries required major

operative intervention and were “life threatening injuries.”

James Martin, a Rutherford County Sheriff’s Department deputy, testified that he

recovered shell casings and a white purse at the crime scene. At a later point, Deputy Martin

collected from Middle Tennessee Medical Center the victim’s blood-stained clothing, which

contained bullet holes.

Based upon this evidence, the jury convicted the Defendant of conspiracy to commit

kidnapping, aggravated kidnapping, aggravated robbery, and attempted first-degree murder.

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The trial court ordered the Defendant to serve an effective sentence of sixty years in the

Tennessee Department of Correction.

II. Analysis

The Defendant asserts that the evidence is insufficient to sustain his convictions. The

State responds that a reasonable juror could conclude from the evidence that the Defendant

committed each of the offenses for which he was convicted. The State, however, draws this

Court’s attention to the fact that the judgment entered for the Defendant’s conviction for

aggravated robbery, a Class B felony, incorrectly reflects a conviction for especially

aggravated robbery, a Class A felony, and a sentence commiserate with a Class A felony.

Accordingly, the State asks this Court to remand this case for the trial court to enter an

amended judgment of conviction and a correct sentence.

A. Sufficiency of the Evidence

When an accused challenges the sufficiency of the evidence, this Court’s standard of

review is whether, after considering the evidence in the light most favorable to the State, “any

rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Tenn. R. App. P. 13(e), State v.

Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d 247, 276 (Tenn.

2002)). This rule applies to findings of guilt based upon direct evidence, circumstantial

evidence, or a combination of both direct and circumstantial evidence. State v. Pendergrass,

13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). A conviction may be based entirely on

circumstantial evidence where the facts are “so clearly interwoven and connected that the

finger of guilt is pointed unerringly at the Defendant and the Defendant alone.” State v.

Smith, 868 S.W.2d 561, 569 (Tenn. 1993). The 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) (citations

omitted). In determining the sufficiency of the evidence, this Court should not re-weigh or re-

evaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).

Nor may this Court substitute its inferences for those drawn by the trier of fact from the

evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d

856, 859 (Tenn. 1956). “Questions concerning the credibility of the witnesses, the weight and

value of the evidence, as well as all factual issues raised by the evidence are resolved by the

trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); Liakas, 286 S.W.2d at 859.

“A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the

witnesses for the State and resolves all conflicts in favor of the theory of the State.” State v.

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Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978); State v. Grace, 493 S.W.2d 474, 479 (Tenn.

1973). The Tennessee Supreme Court stated the rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge and the jury

see the witnesses face to face, hear their testimony and observe their demeanor

on the stand. Thus the trial judge and jury are the primary instrumentality of

justice to determine the weight and credibility to be given to the testimony of

witnesses. In the trial forum alone is there human atmosphere and the totality

of the evidence cannot be reproduced with a written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1996) (citing Carroll v. State, 370 S.W.2d 523

(Tenn. 1963)). This Court must afford the State of Tennessee the strongest legitimate view

of the evidence contained in the record, as well as all reasonable inferences which may be

drawn from the evidence. Goodwin, 143 S.W.3d at 775 (citing State v. Smith, 24 S.W.3d 274,

279 (Tenn. 2000)). Because a verdict of guilt against a defendant removes the presumption

of innocence and raises a presumption of guilt, the convicted criminal defendant bears the

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

v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).

The Defendant challenges the credibility of the testimony of witnesses as the basis of

his sufficiency argument. We note that it is the jury’s prerogative evaluate and weigh the

evidence. Any alleged inconsistent statements and credibility issues were brought out on

direct or cross-examination. The weight and credibility of the testimony of a witness and the

reconciliation of conflicts in testimony, if any, are matters entrusted exclusively to the jury.

By its verdict, the jury exercised its prerogative and chose to accredit the testimony of the

State’s witnesses. Nonetheless, we will review the Defendant’s case in its entirety for the

sufficiency of the evidence.

A. Conspiracy to Commit Kidnapping

In this case, the Defendant was convicted of conspiracy to commit kidnapping, which

requires proof beyond a reasonable doubt that “two (2) or more people, each having the

culpable mental state required for the offense that is the object of the conspiracy, and each

acting for the purpose of promoting or facilitating commission of an offense, agree that one

(1) or more of them will engage in conduct that constitutes the offense.” T.C.A. § 39-12-103

(2009). Further, the State must prove an overt act in pursuance of the conspiracy. T.C.A. §

39-12-103(d). As applicable to this case, a person commits kidnapping when he/she

knowingly removes or confines another unlawfully so as to interfere substantially with the

other’s liberty and under circumstances that exposed the other to a substantial risk of bodily

injury. T.C.A. § 39-13-302(a)(1) (2009); see also, T.C.A. § 39-13-302 (2009).

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The evidence, considered in the light most favorable to the State, proves that the

Defendant, a passenger in Michelle’s car, picked up the victim at her home and drove to a

location where the victim had arranged for P.T. to buy drugs. The victim was seated between

the Defendant and P.T. in the back seat of the car. After P.T. completed the drug transaction,

he determined that the drugs were not real. He told the victim she “wasn’t going anywhere”

unless he got his money or the drugs. The Defendant was holding a gun, which was visible

to the victim. The victim was in fear and could not flee the vehicle because she was seated

between the two men in the backseat and did not feel she could leave. The Defendant

instructed Michelle where to drive and ultimately where to stop the vehicle. During the drive,

Cash suggested they abandon the victim or “tie her up.” Upon arriving at an unlit location,

the Defendant pulled the victim from the vehicle and shot her repeatedly. The Defendant then

instructed Michelle to drive away, leaving the victim injured and alone.

This evidence shows that the victim was physically confined between the Defendant

and P.T. in the backseat, which prevented her from exiting the vehicle. Moreover, she did not

feel free to exit the vehicle based upon P.T.’s statement to her that she “wasn’t going

anywhere” and the Defendant’s possession of a gun. The Defendant, Michelle, and Cash

collaborated to accomplish the victim’s confinement: Michelle drove to a remote, dark

location as instructed by the Defendant and later drove the group away from this location,

leaving the injured victim in an isolated location. Cash suggested abandoning the victim and

tying the victim up, while P.T. told the victim that she was not free to leave. The Defendant

orchestrated these events and shot the victim repeatedly until he ran out of bullets. The

evidence shows, therefore, that the Defendant, Michelle, and cash, “each having the culpable

mental state required for the offense that is the object of the conspiracy, and each acting for

the purpose of promoting or facilitating commission of an offense,” agreed to kidnap the

victim and that the Defendant took an overt act toward doing so. T.C.A. § 39-12-103.

Accordingly, we conclude that the evidence is sufficient to support the jury’s finding

the Defendant guilty of conspiracy to commit kidnapping beyond a reasonable doubt. As

such, the Defendant is not entitled to relief on this issue.

B. Aggravated Kidnapping

The Defendant was convicted of aggravated kidnapping, which required the State to

prove beyond a reasonable doubt that the Defendant knowingly removed or confined the

victim unlawfully so as to interfere substantially with her liberty, and either that the victim

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suffered bodily injury or that the Defendant was in possession of a deadly weapon. T.C.A.

§ 39-13-304(a)(3) & (4) (2009); see also, T.C.A. § 39-13-302 (2009).

The evidence in this case proves that the victim was confined in the backseat of a car

between the Defendant and P.T. The victim was told that she “wasn’t going anywhere,” and

the Defendant instructed Michelle to drive to a location that proved to be remote and dark.

The Defendant prevented the victim from making any phone calls by taking her cell phone

from her. The Defendant requested a gun, and P.T. handed the Defendant a gun by passing

it over the victim who sat between them. Further, the victim suffered life-threatening injuries,

which required major operative intervention as a result of the Defendant’s shooting her

repeatedly.

Accordingly, we conclude that the evidence is sufficient to support the jury’s finding

the Defendant guilty of aggravated kidnapping beyond a reasonable doubt. As such, the

Defendant is not entitled to relief on this issue.

C. Aggravated Robbery

As relevant to this case, a conviction for aggravated robbery requires the “intentional

or knowing theft of property from the person of another by violence or putting the person in

fear” and is “accomplished with a deadly weapon.” T.C.A. § 39-13-401 and 402 (2009).

The evidence, in the light most favorable to the State, proves that, while riding in the

car, the Defendant asked P.T. for a gun. P.T. passed the Defendant the gun in front of the

victim who was seated between the two men, and then the Defendant held the gun on his lap,

visible to the victim. While the victim was attempting to use her phone to call for help, the

Defendant took the victim’s phone from her and kept it. The victim relinquished the phone

because she was fearful and the Defendant possessed a gun.

Accordingly, we conclude that the evidence is sufficient to support the jury’s finding

the Defendant guilty of aggravated robbery beyond a reasonable doubt. As such, the

Defendant is not entitled to relief on this issue.

D. Attempted First Degree Murder

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First degree murder is the premeditated and intentional killing of another. T.C.A. § 39-

13-202(a)(1) (2009). Therefore, to convict the Defendant of attempted first degree murder,

the State was required to prove that the Defendant acted with the kind of culpability otherwise

required for first degree murder. T.C.A. § 39-12-101(a)(2) - (3) (2009). That is, that the

Defendant acted “with intent to cause a result that is an element of the offense, and believe[d]

the conduct [would] cause the result without further conduct on [his] part,” or the Defendant

acted “with intent to complete a course of action or cause a result that would constitute the

offense, under circumstances surrounding the conduct as the person believes them to be, and

the conduct constitutes a substantial step toward the commission of the offense.” Id.

Whether a defendant has acted with premeditation is an issue for the finder of fact to

determine, and it may be inferred from the manner and circumstances of the attempted killing.

State v. Holder, 15 S.W.3d 905 (Tenn. Crim. App. 1999). Facts which may be indicative of

premeditation include: the use of a deadly weapon on an unarmed victim; the shooting of the

victim after the victim has turned to retreat or escape; the lack of provocation on the part of

the victim; the defendant’s declaration of his intent to kill; procurement of a weapon; multiple

wounds; and the defendant’s failure to render aid to the victim. State v. Lewis, 36 S.W.3d 88,

(Tenn. Crim. App. 2000); State v. Evans, No. W2002-02744-CCA-R3-CD, 2004 WL

2439257, at *7 (Tenn. Crim. App., Oct. 29, 2004), no Tenn. R. App. P. 11 application filed.

The evidence, in the light most favorable to the State, proves that the victim arranged

a drug deal at the request of P.T. After the transaction was completed, the Defendant stated

he had an issue with the dealer, B.I., and demanded the victim call B.I. and take him to B.I.’s

residence. The Defendant asked P.T. for a gun, which P.T. handed to the Defendant across

where the victim, who sat between the two men. P.T. stated that “somebody was going to die

tonight” and told the victim she “wasn’t going anywhere.” The victim could not reach B.I.

by phone and told the Defendant she did not know where B.I. lived. The situation escalated

as the victim continued to deny knowing the location of B.I.’s residence and as P.T.

announced that the drugs were fake. The victim offered to help recover the money and

complied with every demand the Defendant made. The victim did not have a weapon and

never provoked the Defendant or any occupant of the car. The Defendant took and kept the

victim’s cell phone, preventing her from summoning help. The Defendant pulled the victim

from the vehicle and immediately began shooting the victim from behind until he ran out of

bullets and then abandoned the injured victim.

Based upon this evidence, we conclude that the evidence is sufficient to support the

jury’s finding the Defendant guilty of attempted first degree murder beyond a reasonable

doubt. As such, the Defendant is not entitled to relief on this issue.

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E. Sentencing

The State raises an error in sentencing. The Defendant was charged with especially

aggravated robbery. The jury, however, convicted the Defendant of the lesser-included

offense of aggravated robbery, a Class B felony. The judgment form, as well as the transcript

from the sentencing hearing, reflect that the trial court incorrectly entered a judgment of

conviction against the Defendant for especially aggravated robbery, a Class A felony, and

sentenced him for this felony.

Accordingly, we remand this case to the trial court to sentence the Defendant

consistent with the jury’s verdict of aggravated robbery and amend the judgment of conviction

form and sentence consistent with a conviction for aggravated robbery rather than especially

aggravated robbery.

III. Conclusion

In accordance with the aforementioned reasoning and authorities, we affirm the

Defendant’s convictions and remand this case for the trial court to enter an amended judgment

of conviction indicating that the Defendant was convicted of aggravated robbery, rather than

especially aggravated robbery, and for the trial court to properly sentence the Defendant on

this conviction.

_________________________________

ROBERT W. WEDEMEYER, JUDGE

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