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State v. Burress

Court of Criminal Appeals of Tennessee, Knoxville

December 4, 2014

STATE OF TENNESSEE
v.
LONTA MONTRELL BURRESS, JR., AND DARIUS JEREL GUSTUS

Session Date August 19, 2014

Appeal from the Criminal Court for Hamilton County Nos. 279579, 279580, 279581, 279605 Honorable Don W. Poole, Judge

The Defendant-Appellant, Lonta Montrell Burress, Jr., was convicted as charged by a Hamilton County jury of three counts of aggravated assault, one count of possession of a deadly weapon during the commission of an offense not defined as a dangerous offense, one count of theft of property, one count of felony evading arrest, and one count of misdemeanor evading arrest.[1] The trial court sentenced Burress to an effective sentence of six years. The other Defendant-Appellant, Darius Jerel Gustus, who was tried jointly with Burress, was convicted as charged of three counts of aggravated assault, one count of possession of a deadly weapon during the commission of an offense not defined as a dangerous offense, one count of felony reckless endangerment, and one count of misdemeanor evading arrest. The trial court also sentenced Gustus to an effective sentence of six years. On appeal, Burress argues: (1) the evidence is insufficient to sustain his aggravated assault convictions and his theft conviction; (2) the trial court erred in denying a mistrial based on the admission of gang testimony; (3) the trial court erred in denying a mistrial based on a Bruton violation; and (4) the trial court erred in determining that LaJuana Woods was an unavailable witness pursuant to Tennessee Rule of Evidence 804 and erred in allowing the State to have Woods read her testimony from the juvenile court transfer hearing transcript at trial. On appeal, Gustus contends: (1) the evidence is insufficient to sustain his aggravated assault conviction regarding victim Frederick Jones, Jr.; (2) the trial court erred in denying a mistrial based on the admission of gang testimony; and (3) the trial court erred in admitting two bandanas because there was an improper chain of custody. Upon review, we affirm the judgments of the trial court.

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

John G. McDougal, Chattanooga, Tennessee, for Defendant-Appellant, Lonta Montrell Burress, Jr., and Galen P. Pickard, Chattanooga, Tennessee, for the Defendant-Appellant, Darius Jerel Gustus.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel; William H. Cox, III, District Attorney General; and Cameron B. Williams and Bret Alexander, Assistant District Attorneys General, for the Appellee, State of Tennessee.

Camille R. McMullen, J., delivered the opinion of the court, in which John Everett Williams, J., and Robert L. Jones, Sp. J., joined.

OPINION

CAMILLE R. McMULLEN, JUDGE

Trial. Rodney Billingsley, a salesman for M & J Shoes in Chattanooga, Tennessee, testified that his truck was stolen from his job on December 4, 2010. That day, he went outside and cranked his truck to warm it up at 7:15 p.m. because the shop closed at 7:30 p.m. When he returned to the store to close it for the day, he heard someone driving his truck down the road. At the time, he was not overly concerned because he thought one of his friends was playing a trick on him. Approximately fifteen minutes later, when it was time for Billingsley to leave work, he discovered that his truck had not been returned and immediately called the police to report it stolen. Billingsley[2] said he never saw the person who took his truck. However, he asserted that he did not know Lonta Burress and had never given Burress permission to take his truck.

Billingsley had purchased the truck, a red Ford F-150, six months earlier for $4500 and stated that it was in excellent condition at the time it was stolen. Three days after his truck was taken, the police notified him that it had been totaled in a wreck at Third Street.

Florida Wynn, an officer with Chattanooga Police Department, testified that on December 7, 2010, at 2:35 p.m. she was dispatched to the intersection of Through Street and Greenwood Road in Hamilton County, Tennessee. When she arrived at that location, she talked to Ronald Madden, Frederick Jones, Jr., Jamichael Eubanks, and Tramelvin Simmons, who told her that two African-American males had fired shots from a red F-150 pickup truck. Madden also told her that these two men were wearing either blue or black bandanas over their faces when the shots were fired from the truck. Officer Wynn issued a statement for other officers to be on the lookout (BOLO) for two African-American males driving a red F-150 truck.

Ronald Madden testified that on December 7, 2010, he called the police because he saw two African-American teenagers in a truck, one of whom was firing gunshots at several unarmed students at the intersection of Greenwood Road and Through Street. Madden saw a school bus stop and then saw eight or nine students exit the bus and begin walking down Through Street. At the time, a red F-150 pickup truck was parked behind the bus, and when the bus pulled away from the bus stop, the person on the passenger side of the truck hoisted himself up on the window ledge and fired with a single gun three or four shots over the truck at a group of eight or nine unarmed students. Madden said the shooter had a blue bandana covering his mouth. When the shots began, the students started running toward Through Street. The truck backed up onto Greenwood Road, and then proceeded up Through Street, and the passenger fired four or five more shots from a single gun at the fleeing students, who were by that time on the opposite side of the street. Madden said it was obvious that the shooter was aiming at a "certain individual" because when that person ran toward Through Street, the truck backed up and followed him. He said he was able to get a good look at the shooter because the shooter was on his side as the truck drove up Through Street. During the shooting incident, Madden said he "actually felt helpless" and was upset and fearful because the victims in this case could have been his own children. Madden said he called 9-1-1 during the shooting incident. After reviewing the video recording of the police chase, Madden said the red truck from the shooting incident was the same red truck involved in the police chase.

Tramelvin Simmons testified that in 2010, he attended Brainerd High School and rode the school bus every day to school. On December 7, 2010, as he was getting ready to exit the school bus, he heard ten to fifteen gunshots but could not determine their origin. He ran a long way down Through Street before taking cover behind some trees. Simmons could tell that shots were being fired behind him as he ran because the bullets were passing him and hitting homes in front of him. He said there were seven students with him who were running for cover, including his brother Frederick Jones, Jr., and another student named Jamichael Eubanks, and that they all ran in different directions when the shooting began. Simmons said that at the time of the shooting he was scared and afraid that he would be injured because he knew he was in a dangerous situation. He did not know where Jones was when the shots were fired, although he saw him exit the bus. He said Jones was walking when he first got off the bus; however, when the shooting began, everyone began running, although he did not specifically see Jones running. Simmons said Jones knew Burress and Gustus because they all attended the same high school, but he was unsure whether Jones had ever had problems with Burress or Gustus.

Justin Allen, an officer with the Chattanooga Police Department, testified that he was assigned to the crime suppression unit, which "respond[s] to shootings, major activities, crimes, gang-related activities and things of that nature." On December 7, 2010, at around 3:00 p.m., he was dispatched to the area of Greenwood Road and Through Street because shots had been fired by a passenger inside a red F-150 truck. After patrolling the area for five to ten minutes, Officer Allen found a vehicle matching that description in the 1000 block of Dodson Avenue, which was approximately two miles from the intersection of Greenwood Road and Through Street. He said the truck was traveling south on Dodson Avenue with three occupants. Officer Allen identified Burress as the individual driving the truck. He also said a male and a female were passengers in the truck. When he saw the truck, he made a U-turn and initiated a traffic stop. When Officer Allen was about to exit his patrol car, Burress drove away from the scene. Officer Allen notified dispatch that the truck had fled and began pursuing the truck. He explained the manner in which Burress tried to avoid capture:

The vehicle turned left onto Arlington Avenue through Willow Housing Development, got down to Wilson Street where it blew a stop sign, almost causing a wreck with a vehicle, where it turned back east onto Wilson Street, ran through another stop sign at Wilson and North Chamberlain and continued traveling [at] a high rate of speed going towards Memorial Hospital where it was weaving in and out of traffic, driving erratically, went through another light, continued to travel on Greenwood . . . still driving erratically at high rates of speed and in and out of traffic, in and out of its lane, turned right onto McCallie where it blew a red light at McCallie and continued to go west on McCallie to North Willow.
After that time, [Burress] was going [at] high rates of speed going around other cars, dodging traffic, and when it turned right onto North Willow, it caused a traffic accident with a red vehicle and continued to travel back on North Willow until it lost control of the vehicle after running a red light at Third Street and North Willow, hit a pole and flipped over several times.

Officer Allen stated that his entire pursuit of Burress, which occurred at approximately 3:00 p.m. in heavy traffic, lasted less than five minutes, although he reached speeds of over eighty miles per hour during the chase. He stated that his pursuit of the truck was recorded by his in-car video recording system.

Officer Allen stated that following the crash, all three occupants of the truck crawled out of the vehicle and fled on foot. He followed the suspects in his patrol car and finally exited his vehicle and followed them on foot. Officer Allen saw Burress in the alley and ordered him to stop, but Burress ran, and Officer Allen continued to pursue him on foot. He eventually caught Burress at the corner of Cleveland Avenue and North Kelly Street. After restraining Burress, Officer Allen returned to the scene of the accident. He observed that the red truck had sustained such serious damage that it had "split in half."

Rusty Morrison, an officer with the Chattanooga Police Department, testified that he was assigned to the crime suppression unit, which was "more of a support unit for the entire department for different divisions, for either working homicides, shootings, robberies and so forth." On December 7, 2010, Officer Morrison was in his office when he overheard a call come in over the radio regarding the shots that were fired at the bus stop. He said that he did not immediately respond to this first call because there were other officers in the field. However, when he overheard Officer Allen advising dispatch that he was in pursuit of the truck that matched the description of the vehicle the suspects were driving during the shooting incident, Officer Morrison drove to the general location of the wreck. As he was in route, he learned that the truck the suspects were in had been involved in a crash and that Officer Allen had detained one of the suspects in an alley.

Officer Morrison knew there were two suspects, a male and a female, that had not yet been detained. He began looking for these two suspects in an apartment complex nearby. When he got to the front of the complex, he saw Gustus walking across Dodson Avenue. Officer Morrison said that there were several officers in the area because of the crash, and a crowd had gathered to watch what the officers were doing. Despite this chaos, Gustus walked across the road and never looked at the officers. Gustus, who was carrying an Oreo racing jacket, then walked into a recycling center. Officer Morrison immediately became suspicious of Gustus's behavior because he did not appear to be an employee at the recycling center.

When Officer Morrison pulled into the area and tried to contact Gustus, he immediately ran from him. As he pursued him, Officer Morrison identified himself multiple times as a police officer, but Gustus did not stop. Instead, Gustus ran around a dumpster before exiting the recycling center and running back across Dodson Avenue and into the apartment complex. Right before Gustus ran around a building, he dropped his jacket, and jumped over a fence. Sergeant Royval, who was on the other side of the fence, ultimately took Gustus into custody. When Officer Morrison returned to examine the jacket Gustus had dropped, he found two fully-loaded .38 caliber revolvers in the outside pockets of the jacket, and he found a medical insurance card in the name of Rodney Billingsley inside the jacket.

During an interview at the hospital, Gustus initially denied knowing anything about a shooting. Gustus said that Burress picked him up and later fled from an officer during a traffic stop. Eventually, Gustus admitted to Officer Morrison that he was involved in the shooting. He said that he saw Frederick Jones, Jr., and when Jones displayed a weapon, he got scared and pulled out his weapon and fired it to scare Jones. Gustus acknowledged that he was sitting in the passenger seat of the truck Burress was driving when he fired his gun. When they fled the area in the truck, Gustus reloaded his gun in case he had to shoot again and tossed the spent shell casings out the window of the truck.

Jamichael Eubanks testified that he was seventeen years old, attended Brainerd High School, and regularly rode the bus to and from school. On December 7, 2010, Eubanks exited the school bus at the intersection of Greenwood Road and Through Street. He said Frederick Jones, Jr., and Tramelvin Simmons, along with some other students, got off the bus with him, and they began walking up the street when they heard several gunshots. Eubanks could not tell the origin of the shots, although he saw a red truck parked behind the bus. He was unable to see the occupants of the red truck. Eubanks said he, Jones, Simmons, and the other students all ran in different directions, although it did not appear that a particular person was the target of the gunshots. He ran to his house because he was scared that he might get shot. Eubanks said he knew Burress and Gustus from school and acknowledged that he had testified at the juvenile court transfer hearing that the gunshots had been fired at them from the red truck. Eubanks said that when he arrived home, he did not tell his mother about the shooting. He could not recall what he said to the police during his interview following the shooting. Specifically, he did not recall telling the police that Lonta Burress and two other individuals were inside the truck, that the truck had been following the bus, that he thought a shooting was about to take place, and that the passenger in the truck opened fire a short time later. He also did not remember telling the police that Jones and Burress had an ongoing dispute over a girl.

Josh May, another officer with the Chattanooga Police Department, testified that he worked in the crime suppression unit, which he stated was the "de facto gang unit within the city" that identified "gang members, ke[pt] track of them" and had "a myriad of other responsibilities." He said his unit also assisted federal agencies, helped with warrant roundups, and supported other divisions within the police department. Officer May interviewed Jamichael Eubanks at his home after the shooting. During the interview, Eubanks said that he, Frederick Jones, Jr., and Tramelvin Simmons were riding the school bus when they realized that a red pickup truck was following them. Eubanks knew something was going to happen and identified Burress as one of the people inside the truck. He explained that Burress and Jones had been fighting over a girl and that the dispute between them was getting worse. Eubanks told Officer May that the passenger in the red truck actually fired the shots from the passenger side of the vehicle.

Officer May said he was present at the crash scene when officers collected two bandanas, a light blue one and a dark blue one, from the red truck. He then identified two bandanas at trial as the ones collected from the red truck. He stated that he was certain that these were the two bandanas he saw inside the red truck at the scene, although he did not personally see them being collected, and the court allowed them to be entered into evidence. Officer May acknowledged that bandanas like the ones in this case could have been bought in any store. He further acknowledged that he was not present when the truck wrecked and that he did not know when the bandanas were put into the truck.

James Russell Davis, II, a special agent forensic scientist with the Tennessee Bureau of Investigation, was declared an expert in the field of gunshot primer residue analysis. Agent Davis stated that the gunshot residue kits taken from Burress and Gustus were negative for gunshot residue. However, he explained that negative results did not mean that Burress and Gustus had not fired, handled, or been near a gun when it was fired. He stated that gunshot residue could be removed through activity or washing one's hands. He also said that a person could fire a gun while wearing gloves and then throw the gloves away, which could cause a negative result.

LaJuana Woods testified that she knew Burress and Gustus but did not remember anything that happened on December 7, 2010. When Woods said that she could not remember anything about a shooting incident involving a red truck on December 7, 2010, the State presented her with a copy of the transcript from the juvenile court transfer hearing to refresh her recollection. She then testified that she could not recall being picked up by Burress in a red truck on December 7, 2010. She acknowledged that she had talked to the State about this case within the last week but asserted that her answers to the State's questions during that meeting had come from the juvenile court transfer hearing transcript and not from her independent recollection of those events. At that point, the State requested that it be allowed to treat Woods as an adverse witness, which the court granted. Woods again stated she did not remember Burress picking her up in a red truck on December 7, 2010, and did not remember giving prior testimony about the December 7, 2010 incident. She denied that she was feigning memory loss because she had been threatened.

The State requested that Woods review the transcript from the prior hearing and then asked if she could remember testifying about why she left her home on December 7, 2010. When Woods said she could not recall her testimony in response to that question, the State asked her to read her answer from the transcript. She then read that Burress had picked her up. When Woods said that she no longer remembered her testimony from the prior hearing, the court told her to "[a]nswer his questions as best you can." At that point, the State asked Woods the same questions that she had been asked at the prior hearing and then had Woods read her response from the transcript. By having Woods read her responses from the prior hearing, the State was able to present evidence that Burress had picked up Woods in a red pickup truck, and she had sat between Burress, who was driving, and Gustus, who was in the passenger seat. When Woods first got in the truck, a small gun was lying in the middle seat where she was going to sit, and she moved it to the floorboard of the truck. She said that the truck ended up behind a bus, and when some of the teenagers in the bus began staring at them, Gustus fired four shots at a boy, although she did not know the boy's name. When Gustus began shooting, the boy ran. Woods said that there were other teenagers around when Gustus started shooting at the boy and that Gustus used the gun that she moved to the floorboard of the truck. After the shooting incident, Burress drove them through the Wilcox Tunnel, and they got stopped by an officer. When the officer never got out of his patrol car, Burress drove off and wrecked the truck following a high-speed police chase. Following the wreck, Woods, Burress, and Gustus ran in different directions. After reading her prior testimony, Woods said that the transcript did not refresh her recollection about what had happened on December 7, 2010.

Woods stated that she could not remember what had occurred on December 7, 2010, because she had been hit in the head with a bat when a fight broke out at a concert in Atlanta, and her injuries to her skull required her to be hospitalized for two days. She also stated that she nearly died prior to having her child in 2011. She remembered flipping over in the truck and glass shattering, but she did not remember anything about the shooting. Although she did not remember the things she testified to at the juvenile hearing, Woods acknowledged that if her responses were in the transcript from that hearing, she probably made those statements at the time. Woods agreed that she had previously testified that Burress never fired a weapon during the incident and that neither she nor Burress were wearing a mask during the incident.

Woods admitted that she had previously testified that four shots were fired but that she could not remember if any other shots were fired or if the gun was reloaded. She also could not remember whether Gustus wore anything covering his face, although she acknowledged that she had previously testified Gustus had not worn anything to disguise himself. She said she had previously testified that Gustus stuck his hand out of the side of the truck before firing his gun. She was unable to recall whether Gustus fired his gun at one person or a crowd but acknowledged that she had testified at the transfer hearing that Gustus had shot at one person.

ANALYSIS

I. Sufficiency of the Evidence.

Burress argues that the evidence is insufficient to sustain his convictions for aggravated assault and theft, and Gustus contends that the evidence is insufficient to support his conviction for aggravated assault involving victim Frederick Jones, Jr. We conclude that a rational jury could have found Burress and Gustus guilty beyond a reasonable doubt of these offenses.

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. Davis, 354 S.W.3d 718, 729 (Tenn. 2011) (citing State v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010)). When a defendant challenges the sufficiency of the evidence, the standard of review applied by this court is "whether, after reviewing 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 (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 finding by the trier of fact of guilt beyond a reasonable doubt." Guilt may be found beyond a reasonable doubt 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 895, 897 (Tenn. 1961)).

The standard of review for sufficiency of the evidence "'is the same whether the conviction is based upon direct or circumstantial evidence.'" State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). The jury as the trier of fact must evaluate the credibility of the witnesses, determine the weight given to witnesses' testimony, and reconcile all conflicts in the evidence. State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)). Moreover, the jury determines the weight to be given to circumstantial evidence and the inferences to be drawn from this evidence, and the extent to which the circumstances are consistent with guilt and inconsistent with innocence are questions primarily for the jury. Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)). When considering the sufficiency of the evidence, this court shall not reweigh the evidence or substitute its inferences for those drawn by the trier of fact. Id.

A. Aggravated Assault Offenses Involving Jones.

Burress and Gustus, noting that Jones did not testify at trial, argue that the State presented insufficient evidence that Jones was in reasonable fear of imminent bodily injury for their respective aggravated assault convictions. Gustus specifically asserts that the only evidence showing Jones was afraid was testimony from Tramelvin Simmons and Jamichael Eubanks that Jones ran when the shots were fired. In his brief to this court, Gustus claims that there was "no proof given as to where in the vicinity Frederick Jones[, ] Jr.[, ] was during the shooting, how far away he was from the shooter, where the shooter [was] and in what direction the shooter was firing, whether he was being targeted, or that he even knew that a shooting was occurring outside of other children running."

Burress and Gustus were charged with intentionally or knowingly causing Frederick Jones, Jr., to reasonably fear imminent bodily injury through the use or display of a deadly weapon. See T.C.A. § 39-13-102(a)(1)(B) (2010) (amended July 1, 2011 and July 1, 2013). Aggravated assault based on fear requires the victim to have a "well-grounded apprehension of personal injury or violence." State v. Jones, 789 S.W.2d 545, 550-51 (Tenn. 1990). Circumstantial evidence is sufficient to establish a victim's fear of imminent bodily injury. State v. Jessie James Austin, No. W2001-00120- CCA-R3-CD, 2002 WL 32755555, at *5 (Tenn. Crim. App. Jan. 25, 2002) (citations omitted). "The element of 'fear' is satisfied if the circumstances of the incident, within reason and common experience, are of such a nature as to cause a person to reasonably fear imminent bodily injury." State v. Gregory Whitfield, No. 02C01-9706-CR-00226, 1998 WL 227776, at *2 (Tenn. Crim. App. May 8, 1998) (citing State v. Jamie Lee Pittman, No. 03C01-9701-CR-00013, 1998 WL 128801, at *5 (Tenn. Crim. App. Mar. 24, 1998)).

A victim's fear may be inferred from circumstances surrounding the offense, even if the victim does not testify at trial. See State v. Barry Smith, No. W2011-02122-CCA-R3-CD, 2013 WL 6388588, at *14 (Tenn. Crim. App. Dec. 5, 2013) (concluding that the non-testifying victims were in reasonable fear of imminent bodily injury when witnesses testified that these victims were inside the house at the moment the defendants began shooting and that people were "hollering" and "screaming" and were trying to find a place to hide from the "bullets flying from every angle"); State v. Szumanski Stroud, No. W2006-01945-CCA-R3-CD, 2007 WL 3171158, at *3 (Tenn. Crim. App. Oct. 29, 2007) (holding that two non-testifying victims were in reasonable fear of imminent bodily injury when the evidence showed that they had a violent altercation with the defendant at their home, that the defendant pointed a gun at one of the victims, and that the defendant fired four or five shots at the victims inside the car); State v. Harry Jamieson, No. W2003-02666-CCA-R3-CD, 2004 WL 2996910, at *8 (Tenn. Crim. App. Dec. 23, 2004) (concluding that the non-testifying victims were in reasonable fear of imminent bodily injury when other witnesses testified that the defendant pointed his gun at the victims and that the victims were "hysterical" and "crying"); Jessie James Austin, 2002 WL 32755555, at *6 (finding that the non-testifying victim reasonably feared imminent bodily injury when a witness testified the victim was aware of the defendant's threatening statements and the defendant pointed his gun at the victim).

Gustus argues that the State presented no proof regarding Jones's location during the shooting or his proximity to the gunfire. This is essentially a zone of danger argument, which this court has specifically declined to apply in aggravated assault offenses. State v. Bobby Joe Young, Jr., No. M2010-01531-CCA-R3-CD, 2011 WL 6291813, at *8 (Tenn. Crim. App. Dec.14, 2011) (citing State v. James Paris Johnson, No. E2008-02555-CCA-R3-CD, 2010 WL 3565761, at *6 (Tenn. Crim. App. Sept.15, 2010) (noting that the zone of danger approach is applicable to reckless endangerment cases involving victims who are unaware of danger but is not applicable to aggravated assault cases based on fear because the latter offense requires that the victim have a fear or reasonable apprehension of being harmed)). Instead, the proper inquiry is whether Jones, who did not testify, had a reasonable fear of imminent bodily injury.

At trial, Officer Wynn testified that upon arriving at the scene, she talked to Ronald Madden, Frederick Jones, Jr., Jamichael Eubanks, and Tramelvin Simmons, who told her that two African-American males had fired shots from a red F-150 pickup truck. Madden himself testified that the passenger in the truck, who was wearing a blue bandana over his face, fired three or four gunshots at several unarmed teenagers who had just exited a school bus. He said that when the gunshots were fired, the teenagers scattered and ran for safety, and then the truck backed up onto Greenwood Road and drove up Through Street, where the passenger fired an additional four or five shots at a "certain individual." Madden said that he "actually felt helpless" and was upset and fearful because the victims in this case could have been his own children. Tramelvin Simmons testified that he heard ten to fifteen gunshots and ran for cover. At the time, there were seven students with him who were running in different directions for cover, including Jamichael Eubanks and Frederick Jones, Jr. Simmons further testified that he was scared and was afraid that he was going to be injured because it was a dangerous situation. Jamichael Eubanks testified that he exited the bus with Frederick Jones, Jr., and Tramelvin Simmons when they heard shots fired, and they all ran in different directions. Eubanks said he ran home because he was scared that he might get shot. Officer Morrison stated that Gustus admitted that he fired his gun during the incident to scare Jones. Officer May testified that Eubanks told him that Burress was inside the red truck and that Burress and Jones had been fighting over a girl.

In the light most favorable to the State, the evidence shows that Frederick Jones, Jr., was present at the scene of the shooting, was one of the teenagers fired upon after exiting the bus, and was running because he was fearful he might be shot during the incident. Given this proof, a rational jury could have found that Burress and Gustus intentionally or knowingly caused Frederick Jones, Jr., to reasonably fear bodily injury through the use of a deadly ...


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