Session July 8, 2014
Appeal from the Criminal Court for Shelby County No. 09-04551 Mark Ward, Judge
Ruchie Patel (trial) and Samuel Rodriguez, III (appeal), Memphis, Tennessee, for the Appellant, Dannaer Beard.
Robert E. Cooper, Jr., Attorney General & Reporter; Sophia S. Lee, Senior Counsel; Amy P. Weirich, District Attorney General; and Marlinee Iverson, Assistant District Attorney General, for the Appellee, State of Tennessee.
Robert L. Holloway, Jr., S.J., delivered the opinion of the court, in which John Everett Williams and Camille R. McMullen, JJ., joined.
ROBERT L. HOLLOWAY, JR., SPECIAL JUDGE
I. Procedural History and Facts
At approximately 7:00 a.m. on Sunday, February 1, 2009, Arlene Cunnigan's son went to Jarius Moore's residence to get a food stamp card from Mr. Moore's girlfriend, Keisha Dooley. Mr. Moore told the boy that Ms. Dooley was asleep and that he and Ms. Dooley would come to Ms. Cunnigan's house when she awoke. The boy left, but he returned a few minutes later with a message from Ms. Cunnigan to wake Ms. Dooley. Mr. Moore again told the boy he would bring Ms. Dooley to Ms. Cunnigan's house when she awoke. A short time later, Ms. Cunnigan came to the Moore residence, where she banged on the door and angrily demanded that Ms. Dooley give her the card. After Mr. Moore stopped Ms. Cunnigan from entering the home, she left. Mr. Moore then woke Ms. Dooley. Around 8:00 a.m., Mr. Moore, his brother, and Ms. Dooley were sitting in a truck outside the Moore home when Ms. Cunnigan and Appellant arrived. When Mr. Moore got out of the truck, Appellant accused him of being disrespectful to Ms. Cunnigan. Mr. Moore testified that Appellant then pushed him in the face. In the fight that followed, Appellant pulled Mr. Moore's jacket over his head, pinning his arms and obstructing his vision. Before Mr. Moore could free himself, Appellant stabbed him nine times. Mr. Moore first saw the knife as he tried to put up his hand to protect his face. Mr. Moore was unarmed during the encounter.
Mr. Moore was initially treated at Methodist North Hospital before being flown by helicopter to the Regional Medical Center ("the Med"), where he was treated by Dr. Ben Zarzaur, a general surgeon in the shock trauma center. Dr. Zarzaur's examination revealed wounds to Mr. Moore's right chest, lower left side, left upper back, and left forearm. Dr. Zarzaur was primarily concerned with the wounds he considered potentially life-threatening. Because the chest wound had been stapled and a drain tube inserted before Mr. Moore was transported to the Med, Dr. Zarzaur focused initially on the abdominal wounds. He surgically inserted a small camera below Mr. Moore's navel to check for internal injuries and damage to any organs. Fortunately for Mr. Moore, none of these wounds were deep enough to penetrate into the peritoneal cavity where the organs were located. However, x-rays revealed that the chest tube had not been inserted deeply enough. Dr. Zarzaur inserted a larger tube, allowing blood and air to drain properly. Mr. Moore remained in the hospital for three nights to allow time to remove the chest tube and to ensure his lungs stayed inflated.
A jury found Appellant guilty as charged of attempted second degree murder and two counts of aggravated assault against Mr. Moore. After a sentencing hearing, the trial court sentenced him to twelve years incarceration for the criminal attempt conviction and six years for each aggravated assault conviction, to be served concurrently. This appeal followed.
A. Sufficiency of the Evidence
Appellant now argues that the evidence was insufficient to prove the elements required to support his attempted second degree murder conviction. The applicable standard of review when the sufficiency of the convicting evidence is challenged 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 (1979). A verdict of guilt by a jury "removes the presumption of innocence and replaces it with a presumption of guilt, and on appeal the defendant has the burden of illustrating why the evidence is insufficient to support the verdict rendered by the jury." State v. Evans, 108 S.W.3d 231, 237 (Tenn. 2003).
Second degree murder is the "knowing killing of another." Tenn. Code Ann. § 39-13-210(a)(1). Tennessee Code Annotated section 39-11-106(a)(20) defines "knowing" to mean "that a person acts knowingly with respect to the conduct or to circumstances surrounding the conduct when the person is aware of the nature of the conduct or that the circumstances exist. A person acts knowingly with respect to a result ...