Assigned on Briefs December 2, 2014
Appeal from the Circuit Court for Tipton County No. 7567 Joseph H. Walker, III, Judge
Charles A. Brasfield, Covington, Tennessee (at trial); and Lyle A. Jones, Covington, Tennessee (on appeal), for the appellant, Jeremy Leniel Middlebrooks.
Herbert H. Slatery, III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; D. Michael Dunavant, District Attorney General; and James Walter Freeland, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.
D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Roger A. Page, JJ., joined.
D. KELLY THOMAS, JR., JUDGE
Kenitha McCain testified that on the evening of October 12, 2012, she had a family barbeque at her house in Covington, Tennessee. Ms. McCain testified that her friend, Eddie Muex, Sr., and his son, Eddie Muex, Jr., were both guests at the party. According to Ms. McCain, she was standing in her yard when a woman named Catrina Davis "pull[ed] up with several people in [her] car." Ms. Davis got out of the car, walked up to Mr. Muex's son, and started "fussing with [him] about something or another." Ms. McCain testified that two men then got out of the backseat of Ms. Davis's car and walked up to Ms. Davis and Mr. Muex's son.
Ms. McCain identified the Defendant as one of the men that got out of Ms. Davis's car, testifying that he got out on the driver's side of the car. Ms. McCain further testified that the Defendant and the other man each had a gun in their hand. Ms. McCain recalled that the men said, "Let's get this. Let's kill him." Ms. McCain testified that she heard the Defendant say, "Lets' kill this M-F [sic]." According to Ms. McCain, Mr. Muex got between the men and his son to protect him. Ms. McCain and several other people called 911 to report the altercation.
Ms. McCain testified that as people started to call 911, the Defendant and the other man walked back to Ms. Davis's car. Ms. Davis told the men not to get in the car, and they started to run away. As they were running away, the Defendant turned around and shot at the crowd and up in the air. Ms. McCain testified that her guests were ducking for cover and running away as the shots were fired. When asked if she was afraid, Ms. McCain testified that she was afraid when the men "pulled out those guns and said, 'Let's kill this M-F [sic], ' and when they ran up the street and shot."
Mr. Muex testified that he was at Ms. McCain's house with his son for a barbeque on October 12, 2012. Mr. Muex testified that there were between twenty and thirty people at the house that night, including infants and "little kids." According to Mr. Muex, Ms. Davis drove up to the house and got out of her car. Ms. Davis walked up to Mr. Muex's son and "said a few words" to him. Mr. Muex testified that Ms. Davis "was kind of upset about something." Mr. Muex testified that he saw the Defendant and another man get out of the backseat of Ms. Davis's car.
Mr. Muex testified that he saw that one of the men had a gun but that he could not see if the Defendant had a gun. When he saw the gun, Mr. Muex said "something about the gun" to his son and made him back up. Mr. Muex recalled that when Ms. McCain saw the gun, she "hollered about calling the police." When Ms. McCain said that, the Defendant and the other man started to walk away. Mr. Muex testified that as they were walking away, "they turned around and . . . just started shooting." Mr. Muex testified that he heard "[t]wo different shots" and saw "the fire coming from the gun." According to Mr. Muex, the men then ran away and were gone by the time the police arrived.
Officers from the Covington Police Department arrived at Ms. McCain's house at approximately 8:00 p.m. that night. They found a car, with Ms. Davis in the driver's seat, "two driveways down" from Ms. McCain's house. In the center of the floorboard of the backseat, officers found a box of .380 ammunition "with some rounds missing out of the box." The officers also found three .380 spent shell casings, grouped together, in an area of the street where the witnesses had told them the men were when they were shooting. The gun used to shoot at Ms. McCain and her guests was never recovered.
Based upon the foregoing, the jury convicted the Defendant of the lesser-included offenses of facilitation of aggravated assault and facilitation of reckless endangerment. The Defendant also pled guilty to being a felon in possession of a firearm. The trial court sentenced the Defendant as a Range II, multiple offender to five years for the facilitation of aggravated assault conviction, four years for the felon in possession of a firearm conviction, and eleven months and twenty-nine days for the facilitation of reckless ...