Assigned on Briefs September 7, 2017
from the Criminal Court for Shelby County No. 15-05615 W.
Mark Ward, Judge
Shelby County Grand Jury indicted Defendant, Antonio Johnson,
on charges of attempted first degree murder, employing a
firearm in the commission of a dangerous felony, reckless
endangerment with a deadly weapon, and three counts of
aggravated assault; the State later dismissed two of the
aggravated assault counts. The jury convicted Defendant of
attempted second degree murder, employment of a firearm in
the commission of a dangerous felony, aggravated assault, and
reckless endangerment with a deadly weapon. The trial court
sentenced Defendant to eleven years for the attempted second
degree murder conviction, six years for the aggravated
assault conviction, six years for the employment of a firearm
during the commission of a dangerous felony conviction, and
two years for the reckless endangerment conviction. The trial
court ordered the sentences for aggravated assault and
reckless endangerment to run concurrently with each other and
ordered the remaining sentences to run consecutively, for an
effective sentence of twenty-three years. On appeal,
Defendant argues that (1) the evidence was insufficient for a
rational juror to have found him guilty of attempted second
degree murder beyond a reasonable doubt; (2) the trial court
erred in allowing the admission of testimony regarding
Defendant's past fight with one of the victims; (3) the
trial court erred in allowing the admission of a surveillance
video; and (4) the trial court erred in ordering partial
consecutive sentencing. After a thorough review of the facts
and law, we affirm.
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
Jennifer D. Fitzgerald, Memphis, Tennessee, for the
appellant, Antonio Johnson.
Herbert H. Slatery III, Attorney General and Reporter;
Alexander C. Vey, Assistant Attorney General; Amy P. Weirich,
District Attorney General; and Sarah Poe, Assistant District
Attorney General, for the appellee, State of Tennessee.
T. Woodall, P.J., delivered the opinion of the court, in
which Norma McGee Ogle and J. Ross Dyer, JJ., joined.
T. WOODALL, PRESIDING JUDGE.
Floyd testified that June 14, 2015, was her ex-boyfriend,
Larry Campbell's, birthday. She stated that she and Mr.
Campbell were "just chilling" and later went to the
Yellow Store. As Ms. Floyd and Mr. Campbell were leaving the
Yellow Store, a man appeared and said, "[W]hat's up,
b***h." She and Mr. Campbell turned around, and the man
"pulled a gun" on them. Ms. Floyd stated that she
was scared and that Mr. Campbell grabbed her and moved her to
the side. She stated that Mr. Campbell was speaking to the
man with the gun, who was circling them. Ms. Floyd and Mr.
Campbell fell, and the man shot Mr. Campbell. Ms. Floyd
testified that Mr. Campbell was shot in the shoulder.
cross-examination, Ms. Campbell agreed that she gave a
statement to police and that she could not identify the
individual who shot Mr. Campbell at trial. She agreed that
she described the shooter to the police as a 5' 7"
man wearing a white shirt with a Nike symbol on it. She
testified that, when she and Mr. Campbell fell, she did not
try to push the shooter out of the way. Ms. Floyd then agreed
that her statement disclosed that, while she attempted to
push the shooter off of Mr. Campbell, the shooter shot Mr.
Campbell in the chest.
Richard Griffin testified that he had worked as a police
officer for the Memphis Police Department for approximately
five and one-half years. On June 14, 2015, Officer Griffin
was stationed at the North Main Station and responded to a
shooting on Mississippi Street. When he arrived, Officer
Griffin observed a man lying in the median who had been shot
in the neck area. On cross-examination, Officer Griffin
stated that the scene was "fairly crowded, " but he
did not observe anyone running from the scene. He stated that
he found one shell casing at the scene and that he spoke with
four witnesses. These witnesses informed Officer Griffin that
the shooter walked with Ms. Floyd and Mr. Campbell on the
sidewalk and then attempted to pistol whip Mr. Campbell.
John Stone testified that he was assigned to the Crime Scene
Investigative Unit with the Memphis Police Department. On
June 14, 2015, Sergeant Stone responded to the scene of the
offense and observed "several items of interest" in
the middle of the street, including a shell casing and
"a red substance which appeared to be blood."
Sergeant Stone stated that he did not recover a gun at the
offense scene. On cross-examination, Sergeant Stone testified
that he searched "[t]he immediate area" and
"both sides of the street" for a gun. He also noted
that other officers secured the offense scene with yellow
barrier tape and searched for evidence.
Alyssa Macon-Moore testified that she was currently employed
in the Internal Affairs Bureau of the Memphis Police
Department, but on June 14, 2015, she was assigned to the
North Main Station General Investigative Bureau. On that day
she was advised that a shooting had occurred on Mississippi
Street, and she became the lead investigator for the case.
Sergeant Macon-Moore explained that she "reviewed the
case and then [she] began to try to call witnesses and try to
talk to [the] victim of that particular case." She
stated that she spoke with Mr. Campbell several days later
because he was unable to speak with her while he was
hospitalized. Sergeant Macon-Moore testified that she
investigated whether any nearby video surveillance recorded
the offense and found that two businesses and the Realtime
Crime Center recorded the offense. Sergeant Macon-Moore
collected the video recordings. She also created a
photographic identification spread to show Mr. Campbell, who
identified Defendant as the shooter in "probably less
than [ten] seconds."
cross-examination, Sergeant Macon-Moore testified that she
did not interview Defendant during her investigation. She
explained that she "made an attempt to locate
[Defendant]" but that she and other officers helping
in the search were unable to locate him. Sergeant Macon-Moore
agreed that, when she attempted to interview Mr. Campbell in
the hospital, he told her that he had never seen the shooter
before. She noted that she asked Mr. Campbell one question,
but she stopped questioning him after the nurse informed her
that Mr. Campbell was heavily sedated. Sergeant Macon-Moore
also agreed that another officer had received information
that an individual named Marcus Johnson was the shooter; she
was unable to locate Mr. Johnson. Sergeant Macon-Moore also
agreed that, in her investigation, she learned that a black
semi-automatic handgun was involved in the offense, but she
was also unable to locate the handgun.
Campbell testified that on June 14, 2015, he celebrated his
birthday by watching a sports game; later, he walked to the
Yellow Store, with Ms. Floyd. Mr. Campbell stated that, as he
was walking to the Yellow Store, people wished him a happy
birthday. He saw Defendant standing outside the Yellow Store,
and he said "[W]hat's up[?]" to Defendant.
After exiting the Yellow Store, Mr. Campbell was walking when
he heard someone say his name. He turned around and saw
Defendant "standing down the street." Defendant
walked up to Mr. Campbell and Ms. Floyd and said
"What's up now, b***h." At this point, Mr.
Campbell did not recognize Defendant, but he knew Defendant
was speaking to him. When Defendant walked past the Yellow
Store, he pulled "a big black gun" on Mr. Campbell.
Mr. Campbell stated that Ms. Floyd was standing in front of
him, and they both began to walk backwards down the street as
Defendant said, "It's over. It's over now.
It's over now." As he walked backwards, Mr. Campbell
told Defendant that he could have everything in Mr.
Campbell's pockets, and Ms. Floyd informed Defendant that
Mr. Campbell was a father and that it was his birthday.
Defendant told Ms. Floyd to move, but she did not, so
Defendant picked up a glass bottle and tried to hit her with
it. Mr. Campbell attempted to keep Ms. Floyd from being hit
by the bottle, and they both fell to the ground. Mr. Campbell
stood up and attempted to reach for the gun when Defendant
shot him in his collar bone. Mr. Campbell testified that the
gunshot wound paralyzed his whole right side. He stated that,
due to therapy, he can walk again. He explained that he
worked as a barber and that he was trying to relearn his
skills using his left hand.
Campbell identified the Yellow Store and Mike's Store on
a surveillance video recording. Mr. Campbell then identified
himself and Ms. Floyd on video surveillance recording. He
also identified the individual who walked up to him, spoke to
him, and later shot him. The State produced a second video of
surveillance footage from the Yellow Store, and Mr. Campbell
again identified himself, Ms. Floyd, and the shooter. Mr.
Campbell also identified a third recording of video
surveillance from Mike's Store; he stated that Mike's
Store was next to the Yellow Store. Mr. Campbell identified
Defendant on the video as the individual who shot him. After
he was shot, Mr. Campbell was taken to the hospital for
treatment. He later gave a statement to police after he was
discharged from the hospital and identified Defendant as the
shooter from a photographic identification spread.
cross-examination, Mr. Campbell stated that, while he saw the
face of the individual who shot him during the offense, he
did not know the individual's name until his family
showed him a picture of Defendant, and he recognized
Defendant as the shooter. Mr. Campbell did not recall seeing
Sergeant Macon-Moore at the hospital or telling her that he
had never seen the shooter before. He explained that the
police showed him a photographic identification spread
approximately two days after he was discharged from the
hospital. He also stated that he was attempting to reach for
the gun when Defendant shot him.
Momon hearing, Defendant decided against testifying.
The jury found Defendant guilty of attempted second degree
murder, employment of a firearm in the commission of a
dangerous felony, aggravated assault, and reckless
endangerment with a deadly weapon.
subsequent sentencing hearing, Shawanda Jones testified that
she is Defendant's mother. She stated that Defendant was
the oldest of her children and that he "help[ed] [her]
with [her] other kids no matter what the situation
[wa]s." She stated that Defendant was "ready to get
out here and make a change to show the world he's got
kids he want[s] to take care of." Ms. Jones stated that,
prior to the offense, Defendant worked at Cooper Moving
Company and for Federal Express. She testified that Defendant
had a good relationship with his two children and that he
talked to them frequently on the phone. Ms. Jones believed
that Defendant started getting into trouble as a child
because Defendant was very close to his grandfather, and when
his grandfather passed away, Defendant "just
couldn't accept it that he was gone." She explained
that her father, Defendant's grandfather, was disabled
and that Defendant helped take care of his grandfather as a
child. On cross-examination, Ms. Jones stated that her father
passed away in 2005, when Defendant was ten or eleven. She
agreed that Defendant had previously been convicted of four
counts of aggravated robbery.
trial court found that Defendant was a Range I standard
offender and that the trial court was required to sentence
Defendant to six years at 100% for the conviction of
employing a firearm during a dangerous felony. The trial
court stated that it had considered "the evidence
presented, both at the trial and at the sentencing hearing
the pre-sentence report and the principles of sentencing
established by the 1989 Act and arguments relative to
possible alternatives to incarceration" as well as
"the nature and characteristics of the criminal conduct
involved, any enhancement and mitigation factors that apply
to the case, any statistical information provided by the
Administrative Office of the Courts and any statement
[Defendant] wishe[d] to make on his . . . behalf." The
trial court also noted that Defendant's sentences
"should be consistent with the general purposes and
principles of sentencing set forth in the 1989 Act[, ]"
such as "the imposition of a sentence justly deserved in
relation to the seriousness of the offense, a punishment
sufficient to prevent crime and promote respect for the law
and consideration of the [D]efendant's potential or lack
of potential for rehabilitation."
enhancement factors, the trial court found that Defendant
"ha[d] a previous history of criminal convictions or
criminal behavior in addition to those necessary to establish
the appropriate range." The trial court noted that
Defendant had previously been convicted of reckless
endangerment, criminal trespass, and theft. The trial court
also found that "the personal injuries inflicted upon
the victim were particularly great" because the
victim's right side was paralyzed after the offense. The
trial court additionally found that, prior to trial or
sentencing, Defendant "failed to comply with the
conditions of a sentencing involving release into the
community, " that Defendant was on probation at the time
he committed the offense, and that he had previously been
"adjudicated to have committed a delinquent act or acts
as a juvenile that would constitute a felony if committed as
an adult." Regarding mitigating factors, the trial court
noted that Defendant "ha[d] not testified or offered any
apology or remorse or anything." However, the trial
court considered Defendant's childhood experience. The
trial court sentenced Defendant to eleven years for attempted
second degree murder, six years for aggravated assault, six
years for employment of a firearm during the commission of a
dangerous felony, and two years for reckless endangerment
with a deadly weapon. The trial court ordered the aggravated
assault and reckless endangerment convictions to run
concurrently to each other but consecutively to the attempted
second degree murder conviction. The trial court ordered the
employment of a firearm conviction to run consecutively to
the other three sentences for a total effective sentence of
its order of partial consecutive sentencing, the trial court
found that Defendant was a dangerous offender whose behavior
indicated little or no regard for human life and who showed
no hesitation about committing a crime to which the risk to
human life was high. The trial court found that the
circumstances of Defendant's offenses were aggravated
because Defendant "essentially" chased the victims
down and then stood over them and shot Mr. Campbell. The
trial court found that consecutive sentencing was justified
"because confinement for an extended period of time
[wa]s necessary to protect society from [Defendant's]
unwillingness to lead a productive life and
[Defendant's] resort to criminal activity in furtherance
of an anti-societal lifestyle." The trial court also
found that "the aggregate length of the sentences
reasonably relate[d] to the offenses for which [Defendant]
[was] convicted." The trial court noted that Defendant
was adjudicated delinquent for aggravated robbery as a
juvenile and that he was on probation for reckless
endangerment at the time of the offenses; thus, Defendant was
sentenced to an offense that was committed while he was on
probation. Further, the trial court found that Defendant was
"an offender whose record of criminal activities [wa]s
extensive" based on "his juvenile aggravated
robberies, his three prior convictions before this one and
then adding the four convictions in this case to it."
The trial court also considered Defendant's potential for
rehabilitation and noted that Defendant was given
opportunities to rehabilitate by the juvenile court.
Regarding the manner of service, the trial court denied
probation "based upon the fact that he committed these
while he was on probation and based upon his extensive record
. . . ."
filed a motion for new trial, which the trial court denied.
Defendant timely appeals the trial court's judgments.
of the Evidence
argues that the evidence admitted at trial was insufficient
for a rational juror to have found Defendant guilty beyond a
reasonable doubt of attempted second degree murder because
none of the videos entered into evidence depicted the
shooting and because "[i]t is not clear whether the gun
discharged because the victim was reaching for it, or whether
[Defendant] intentionally pulled the trigger." The State
asserts that "[Mr.] Campbell testified that he never
touched [Defendant]'s gun and that [Defendant] pulled the
trigger" and that "the circumstances of the
shooting indicated that [Defendant] called out [Mr.]
Campbell, followed him, and intended to kill him."
standard for appellate review of a claim challenging the
sufficiency of the State's evidence 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
(1979); see Tenn. R. App. P. 13(e); State v.
Davis, 354 S.W.3d 718, 729 (Tenn. 2011). To obtain
relief on a claim of insufficient evidence, appellant must
demonstrate that no reasonable trier of fact could have found
the essential elements of the offense beyond a reasonable
doubt. See Jackson, 443 U.S. at 319. This standard
of review is identical whether the conviction is predicated
on direct or circumstantial evidence, or a combination of
both. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn.
appellate review, "'we afford the prosecution the
strongest legitimate view of the evidence as well as all
reasonable and legitimate inferences which may be drawn
therefrom.'" Davis, 354 S.W.3d at 729
(quoting State v. Majors, 318 S.W.3d 850, 857 (Tenn.
2010)); State v. Williams, 657 S.W.2d 405, 410
(Tenn. 1983); State v. Cabbage, 571 S.W.2d 832, 835
(Tenn. 1978). In a jury trial, questions involving the
credibility of witnesses and the weight and value to be given
the evidence, as well as all factual disputes raised by the
evidence, are resolved by the jury as trier of fact.
State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997);
State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).
This court presumes that the jury has afforded the State all
reasonable inferences from the evidence and resolved all
conflicts in the testimony in favor of the State; as such, we
will not substitute our own inferences drawn from the
evidence for those drawn by the jury, nor will we re-weigh or
re-evaluate the evidence. Dorantes, 331 S.W.3d at
379; Cabbage, 571 S.W.2d at 835; see State v.
Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984). Because a
jury conviction removes the presumption of innocence that
appellant enjoyed at trial and replaces it with one of guilt
at the appellate level, the burden of proof shifts from the
State to the convicted appellant, who must demonstrate to
this court that the evidence is insufficient to support the
jury's findings. Davis, 354 S.W.3d at 729
(citing State v. Sisk, 343 S.W.3d 60, 65 (Tenn.
degree murder is "[a] knowing killing of
another[.]" Tenn. Code Ann. § 39-13-210(a)(1)
(2015). "Second degree murder is a result of conduct
offense and accordingly, [t]he nature of the conduct that
causes death or the manner in which one is killed is
inconsequential under the second degree murder statute."
State v. Brown, 311 S.W.3d 422, 431-32 (Tenn. 2010)
(quoting State v. Ducker, 27 S.W.3d 889, 896 (Tenn.
2000)) (internal quotation marks omitted). Our code states
that "[a] person acts knowingly with respect to a result
of the person's conduct when the person is aware that the
conduct is reasonably certain to cause the result."
Tenn. Code Ann. § 39-11-302(b) (2015). A defendant
attempts to commit an offense when "acting with the kind
of culpability otherwise required for the offense[, ]"
they "[a]ct with intent to cause a result that is an
element of the offense, and believes the conduct will cause
the result without further conduct on the person's
part[.]" Tenn. Code Ann. § 39-12-101(a)(2) (2015).
Whether the appellant "knowingly" attempted to kill
his victim is a question of fact for the jury. Intent, which
can seldom be proven by direct evidence, may be deduced or
inferred by the trier of fact from the character of the
assault, the nature of the act and from all the circumstances
of the case in evidence.
State v. Inlow, 52 S.W.3d 101, 104-05 (Tenn. Crim.
App. 2001) (citing State v. Holland, 860 S.W.2d 53,
59 (Tenn. Crim. App. 1993)).
evidence, when viewed in the light most favorable to the
State, shows that, after Mr. Campbell and Ms. Floyd left the
Yellow Store, Defendant called to them and approached them.
Defendant pulled out his gun, and Mr. Campbell and Ms. Floyd
began walking backwards down the sidewalk. Defendant
attempted to hit Ms. Floyd with a glass bottle to get her to
move away, and Ms. Floyd and Mr. Campbell fell. Mr. Campbell
stood up and reached for the gun, and Defendant shot Mr.
Campbell. Our court has consistently held that the
"deliberate firing of shots at a person constitutes
'knowing' conduct for the purpose of establishing
second degree murder." State v. Tommy Dale
Adams, No. M2013-01080-CCA-R3-CD, 2014 WL 3565987, at
*20 (Tenn. Crim. App. July 21, 2014), perm. app.
denied (Tenn. Dec. 17, 2014); see also State v.
Dontavious Hendrix, No. W2015-01671-CCA-R3-CD, 2016 WL
3922939, at *5 (Tenn. Crim. App. July 15, 2016), perm.
app. denied (Tenn. Nov. 22, 2016); State v. Montez
Davis, No. E2011-02055-CCA-R3-CD, 2012 WL 6213520, at
*11 (Tenn. Crim. App. Dec. 13, 2012), perm. app.
denied (Tenn. Apr. 10, 2013); State v. Chancy
Jones, No.W2010-02424-CCA-R3-CD, 2012 WL 1143583, at *10
(Tenn. Crim. App. Apr. 5, 2012), perm. app denied
(Tenn. Aug. 16, 2012); State v. Antonio Sellers, No.
W2011-00971-CCA-R3CD, 2012 WL 1067213, at *7 (Tenn. Crim.
App. Mar. 27, 2012); State v. Rickie Reed, No.
W2001-02076-CCA-R3-CD, 2002 WL 31443196, at *6 (Tenn. Crim.
App. Oct. 31, 2002), perm. app. denied (Tenn. Mar.
17, 2003). The jury viewed all the evidence, including the
three surveillance videos, and clearly chose to credit the
testimony of Mr. Campbell above that of Defendant, as was its
prerogative. "In the resolution of questions of fact,
such as those presented by evidence of alibi or the identity
of the perpetrator, 'the jury bears the ...