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State v. Johnson

Court of Criminal Appeals of Tennessee, Jackson

January 30, 2018

STATE OF TENNESSEE
v.
ANTONIO JOHNSON

          Assigned on Briefs September 7, 2017

         Appeal from the Criminal Court for Shelby County No. 15-05615 W. Mark Ward, Judge

         The 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.

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

          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.

          Thomas T. Woodall, P.J., delivered the opinion of the court, in which Norma McGee Ogle and J. Ross Dyer, JJ., joined.

          OPINION

          THOMAS T. WOODALL, PRESIDING JUDGE.

         Background

         Jury Trial

         Kyerra 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.

         On 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.

         Officer 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.

         Sergeant 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.

         Sergeant 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."

         On 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.

         Larry 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.

         Mr. 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.

         On 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.

         After a 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.

         Sentencing Hearing

         At a 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.

         The 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."

         Regarding 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 twenty-three years.

         Regarding 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 . . . ."

         Defendant filed a motion for new trial, which the trial court denied. Defendant timely appeals the trial court's judgments.

         Analysis

         Sufficiency of the Evidence

         Defendant 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."

         The 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. 2011).

         On 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. 2011)).

         Second 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)).

         The 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 ...


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