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State v. Cole-Pugh

Court of Criminal Appeals of Tennessee, Jackson

February 15, 2018

STATE OF TENNESSEE
v.
BRANDON COLE-PUGH

          Assigned on Briefs December 5, 2017

          Appeal from the Circuit Court for Madison County No. W2017-00469-CCA-R3-CD

         Following a jury trial, the defendant, Brandon Cole-Pugh, was convicted of being a felon in possession of a handgun and sentenced to eight years. On appeal, the defendant challenges the trial court's denial of his request for an instruction on the defense of necessity. Having thoroughly reviewed the record, we conclude the trial court did not err in denying the defendant's request on the defense of necessity.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          Daniel J. Taylor, Jackson, Tennessee, for the appellant, Brandon Cole-Pugh.

          Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Jody Pickens, District Attorney General; and Aaron Chaplin, Assistant District Attorney General, for the appellee, State of Tennessee.

          J. Ross Dyer, J., delivered the opinion of the court, in which John Everett Williams and Alan E. Glenn, JJ., joined.

          OPINION

          J. ROSS DYER, JUDGE

         FACTS

         On November 22, 2015, the defendant engaged in a fight at the Gold Line gas station in Madison County, Tennessee. Subsequent to the fight, a shooting occurred on the Gold Line premises, leaving two people injured. Video footage from the store captured the defendant participating in the fight and then exiting the store holding a gun. As a result, the defendant was charged and convicted of being a felon in possession of a handgun under Tennessee Code Annotated section 39-17-1307.[1]

          At trial, the State relied heavily on the video footage of the fight entered into evidence by Zaid Alshaif, the owner of the Gold Line. Mr. Alshaif stated he was called to the store in the early morning hours after the fight and shooting occurred. When Mr. Alshaif arrived at the store, he saw "everything destroyed from the fight." He provided law enforcement with copies of the video footage depicting both the inside and outside of the store. This footage was then played for the jury at trial. Mr. Alshaif explained that while the time-stamp on the videos noted the correct time, the date was labeled one day ahead.

         Officer Paul Bozza of the Jackson Police Department obtained copies of the video footage from Mr. Alshaif after he responded to "a shots fired call" at the Gold Line at approximately 1:45 a.m. on November 22, 2015. When he arrived at the scene, Officer Bozza learned "a girl" was shot in the leg "or hip area" and was laying in the backseat of a vehicle on the north side of the Gold Line property. While treating the female victim, Officer Bozza spoke with the defendant who stated the victim was his girlfriend.

         Officer Bozza "knew the Gold Line had video, " and he reviewed the footage in order to determine what happened prior to his arrival. In reviewing the video footage, Officer Bozza identified the defendant in the video wearing "goldish color pants, copper color pants and a black like a zip-up jacket-type deal and white hat." According to Officer Bozza, the video footage depicted the fight that occurred inside the store, the defendant's participation in the same, the defendant outside of the store carrying a handgun, and the shooting that occurred outside of the store. Though Officer Bozza admitted the video footage did not capture everything that happened inside or outside of the store, he affirmed "there's no doubt [the defendant] had a gun in his hand period."

         Officer Bozza testified he "had prior knowledge that [the defendant] was a convicted felon." He "checked [the] crime portal just to verify that[, ]" and then began questioning the defendant on the scene. Specifically, Officer Bozza asked the defendant "where he put the gun." The defendant denied having a gun, and Officer Bozza arrested the defendant. Officer Bozza stated the defendant is seen holding a gun in the video footage "showing right at the outside door." Upon ...


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