State of Tennessee v. Calvin Ellison ( 2014 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs October 21, 2014 at Knoxville
STATE OF TENNESSEE v. CALVIN ELLISON
Appeal from the Circuit Court for Madison County
No. 13-292 Roy B. Morgan, Jr., Judge
No. W2013-02786-CCA-R3-CD - Filed December 10, 2014
Calvin Ellison (“Defendant”) was indicted on one count of attempted first degree murder,
two counts of aggravated assault, and one count of employing a firearm during the
commission of or attempt to commit a dangerous felony - attempted first degree murder. A
jury returned verdicts convicting the Defendant of misdemeanor reckless endangerment as
a lesser-included charge of attempted first degree murder, one count of aggravated assault,
and employing a firearm during the commission of or attempt to commit a dangerous felony.
On appeal, the Defendant challenges the trial court’s ruling excluding a portion of his expert
witness’s testimony; argues that his conviction for employing a firearm during the
commission of or attempt to commit a dangerous felony should be overturned in light of the
jury’s verdict in the first count of the indictment; and challenges the sufficiency of the
evidence supporting his convictions. After a thorough review of the record and the
applicable law, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment
of the Circuit Court Affirmed
R OBERT L. H OLLOWAY, J R., J., delivered the opinion of the Court, in which J AMES C URWOOD
W ITT, J R., and D. K ELLY T HOMAS, J R., JJ., joined.
George Morton Googe, District Public Defender; Jeremy B. Epperson, Assistant Public
Defender, Jackson, Tennessee, for the appellant, Calvin Ellison.
Robert E. Cooper, Jr., Attorney General and Reporter and Tracy L. Alcock, Assistant
Attorney General; Jerry Woodall, District Attorney General and Al Earls, Assistant District
Attorney General, for the appellee, State of Tennessee.
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OPINION
Factual and Procedural Background
A Madison County Grand Jury indicted the Defendant, Calvin Ellison, for the
following charges:
Count Charge Victim
1 Attempted First Degree Murder Joshua Cathey
2 Aggravated Assault Joshua Cathey
3 Aggravated Assault Princess Cathey
4 Employing a Firearm During the Joshua Cathey
Commission of or Attempt to
Commit a Dangerous Felony:
Attempted First Degree Murder
After a trial, the petit jury returned a verdict finding the Defendant guilty of the lesser-
included offense of misdemeanor reckless endangerment in count one; guilty of aggravated
assault in count two; not guilty of aggravated assault in count three; and guilty of employing
a firearm during the commission of a felony in count four. The Defendant raises three issues
on appeal: (1) whether the trial court erred in excluding a portion of the defense expert’s
testimony; (2) whether the conviction for employing a firearm during the commission of or
attempt to commit a dangerous felony should be overturned; (3) whether there is sufficient
evidence to sustain the Defendant’s convictions. We affirm the judgments of the trial court.
Prior to trial, the State moved to prohibit the defense’s expert witness from giving any
testimony that commented on or evaluated evidence or testimony provided by another
witness. At a hearing, the State argued that the defense’s witness was an expert in the field
of ballistics, not videography, and as such, he should be precluded from judging the
credibility of witnesses by comparing his findings to a video of the incident. The Defendant
argued that he did not intend to ask the expert witness if he believed other witnesses were
telling the truth; he simply wanted to ask whether the other witnesses’ prior statements were
consistent with the expert’s findings. We note, however, that the Defendant did not give an
offer of proof as to what his expert witness’s response would be.
The trial court held that defense’s expert witness could comment on ballistic evidence.
However, unless the Defendant could demonstrate that the witness had expertise in
videography such that he would be providing the jury with information that they could not
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otherwise get by watching the video themselves, the defense’s expert witness could not give
his opinion on what he saw in the video. Further, the trial court held that the defense’s expert
witness could not comment on the credibility of any other witness, because such comments
would invade the province of the jury to weigh the witnesses’ credibility.
Joshua Cathey testified that on the night of December 22, 2011, he lived one block
away from the convenience store where the shooting took place. Around 7:00 or 7:30 that
evening he and his wife drove to the convenience store to pick up a loaf of bread and parked
on the side of the curb opposite the store. Mr. Cathey went into the store, and while inside
he saw the Defendant. Mr. Cathey made his purchase and left the store, and the Defendant
followed him outside. As Mr. Cathey was walking to his vehicle, the Defendant stated,
“[w]hat’s up with that s***?” Mr. Cathey testified that he believed the Defendant’s comment
was referencing a previous disagreement they had regarding the Defendant communicating
with Mr. Cathey’s wife. Mr. Cathey got into his vehicle, but the Defendant walked toward
the car, pulled out a gun, and pointed it at Mr. Cathey. At that time, Mr. Cathey’s wife, who
was in the front seat, ducked down into the floorboard, and Mr. Cathey put his head down
and drove away. As he was driving away, he heard “several” gunshots – some of which
struck the vehicle. Mr. Cathey described the damage to his vehicle stating that the driver-
side rear window had been shattered, a bullet was lodged in the driver-side rear window
frame, and the front passenger-side tire was flat.
Mr. Cathey confirmed that he heard the gunshots as he was driving away. He further
admitted that his wife had a cell phone with her in the vehicle when the shooting occurred,
but they waited until they had returned home to call the police – “a couple of minutes after
[the shooting] happened.” Mr. Cathey further testified that the Defendant was three to five
feet away from the driver-side window when he saw the gun.
Through Mr. Cathey, the State introduced a copy of a surveillance video from the
convenience store taken on the evening in question. The video shows Mr. Cathey inside the
store with the Defendant and other individuals. Additionally, the video shows footage from
an outside camera, which appears to show the parking area in front of the convenience store
as well as a portion of the street. Footage from this angle shows an individual, later
identified by Mr. Cathey as the Defendant, come into the frame at the top of the screen. He
appears to be running toward the convenience store from across the street. A car passes
immediately behind him and turns away from him. The Defendant turns around and raises
his arm toward the vehicle. The vehicle then exits the screen on the upper left corner, and
the Defendant exits the screen to the upper right corner.
Princess Cathey testified that she accompanied her husband to the store on the night
of the shooting around 7:00 or 7:30 p.m. While Mr. Cathey was in the store, Mrs. Cathey
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remained in the vehicle. She observed Mr. Cathey leave the store and the Defendant follow
him. She stated that the Defendant said something to Mr. Cathey, and Mr. Cathey got into
the vehicle. Once Mr. Cathey was inside the vehicle, Mrs. Cathey saw the Defendant
standing “about three to five feet [from the vehicle]” holding a gun. At this point, Mrs.
Cathey ducked down onto the floorboard of the vehicle as Mr. Cathey drove away. She
heard about five or six gunshots but admitted that she was not counting them. Mrs. Cathey
said that she called law enforcement once they had returned home.
On cross-examination, Mrs. Cathey admitted that the Defendant could have been
standing as close as two feet from the vehicle but maintained that “he was close” and
standing on the driver-side of the vehicle. She maintained that their vehicle was parked on
the side of the street opposite the store at the time the shooting occurred.
Officer Corey Insalaco with the Jackson Police Department testified that he responded
to a call of a shooting around 7:30 p.m. on December 22, 2011. When he arrived at the
Catheys’ residence, he spoke with Mr. and Mrs. Cathey and took photographs of their
vehicle. He described the damage to the vehicle’s window frame and stated that he pulled
a bullet from the frame. He further stated that he had been given the Defendant’s name as
a possible suspect, but he did not speak to him that evening.
On cross-examination, Officer Insalaco stated that Mr. Cathey told him that the
Defendant “displayed a handgun and pointed it at him through the window.” He further
stated that Mr. Cathey did not describe the Defendant as standing three to five feet away.
Officer Insalaco also stated that it was his understanding that the Defendant was standing on
the driver-side of the vehicle.
Officer Kevin Speck of the Jackson Police Department testified that he also responded
to reports of a shooting around 7:30 or 8:00 p.m. on December 22, 2011. He first responded
to the Catheys’ home and then went to the location of the shooting. At the scene, Officer
Speck recovered four spent shell casings. Three were collected across the street from the
convenience store and one was collected by the dumpster, closer to the convenience store.
No weapon was recovered from the scene. Officer Speck agreed that passing cars possibly
could have scattered the shell casings from their original location. He further stated that the
shell casing near the dumpster was “a pretty good distance” from the others.
Investigator Daniel Long of the Jackson Police Department testified that he took Mr.
and Mrs. Catheys’ statements. He also spoke with the Defendant several days after the
shooting. During that conversation, the Defendant stated that he knew the Catheys and that
he had a disagreement with Mr. Cathey over Facebook. The Defendant denied being at the
convenience store on the night of the shooting, claimed that he did not own a firearm, and
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claimed that he had not shot at Mr. Cathey. Investigator Long attempted to get an adopted
statement from the Defendant, but the Defendant refused to sign it.
Cervinia Braswell of the Tennessee Bureau of Investigation (“TBI”) testified as an
expert in ballistics, firearms, and ammunition identification. Braswell stated that she
received one bullet and four shell casings in connection with the case. She was able to
determine that the bullet could have been fired from a .45 caliber gun. She also identified
the shell casings as .45 automatic cartridge cases, but she stated that without the gun it was
impossible to determine whether the bullet she received matched any of the shell casings she
received. However, she could determine that all the shell casings were fired from the same
weapon.
David Brundage testified for the defense as an expert in the field of ballistics,
trajectory analysis, and shooting scene reconstruction. Brundage said that, other than
reviewing videos in connection with his cases, he had no training in videography or video
enhancement. Brundage testified that he reviewed statements made by Mr. and Mrs. Cathey,
photographic evidence, video surveillance, and the TBI report to form his opinion about this
case. He described the surveillance video as showing an individual running across the street
outside the convenience store. As the individual is running across the street, a vehicle comes
across the screen immediately behind him, moving “rapidly.” The individual turns and faces
the vehicle, and the vehicle narrowly avoids hitting the individual. Then the individual steps
out of the screen to the upper right, and the vehicle leaves the screen to the upper left.
Brundage also stated that the video showed the individual raise his arm as he turned toward
the vehicle, but he could not determine if the individual had anything in his hand or see any
indication that shots were fired. Had shots been fired, Brundage said that he would expect
to see flashes of light on the video.
Brundage also reviewed photographs of the victims’ vehicle. He testified that he
could clearly see damage to the vehicle’s window frame, but without examining the damage
himself, he could not determine whether the damage was caused by a bullet. Additionally,
he concluded that it would not be plausible for a bullet to damage the front passenger-side
tire if the shooter had been standing five feet from the driver-side window. In order for such
damage to occur, the shooter would have to be standing on the passenger-side of the car.
At the end of the defense’s direct examination, counsel asked whether, based on the
ballistic evidence, Brundage thought Mrs. Cathey’s account was consistent with his findings.
The State objected, and the trial court sustained the objection. Nothing in the record
indicates that the Defendant made an offer of proof as to what Brundage’s testimony would
be had he been allowed to answer the question.
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On cross-examination, Brundage admitted that he was being paid for his services as
an expert. He further admitted that he was neither provided a crime scene diagram, nor did
he travel to the crime scene to make one. He also stated that he reviewed the photographs
and video, but he did not examine any of the physical evidence in the case. However,
Brundage stated that it was the responsibility of the police investigating the crime to conduct
the crime scene investigation and take the measurements that he relied upon in making his
report.
Lewis Grimes, III testified that he was with the Defendant when the shooting took
place. They were at the convenience store when Mr. Cathey came in and spoke with the
Defendant. Mr. Grimes and the Defendant left the store and started walking toward Mr.
Grimes’s residence. Mr. Cathey followed them outside, saying something about Facebook.
According to Mr. Grimes, Mr. Cathey told the Defendant “quit calling my woman” and
called the Defendant “a b**** a** n*****.” Mr. Grimes testified that the Defendant did not
respond.
Mr. Grimes stated that Mr. Cathey got into his vehicle and then drove toward the
Defendant as if he was going to strike the Defendant with his vehicle. At that point, the
Defendant discharged his weapon. Mr. Cathey drove away, and the Defendant and Mr.
Grimes continued walking to Mr. Grimes’s residence. Mr. Grimes did not see the Defendant
draw his gun until Mr. Cathey’s vehicle approached him.
Mr. Grimes said that he had not spoken to the police or given a statement regarding
his observations of the shooting because he did not want to get involved with the case. He
further admitted that neither he nor the Defendant called 911 after they left the scene. The
Defendant left Mr. Grimes’s residence later in the evening. They did not discuss the
shooting, and Mr. Grimes did not know what the Defendant did with the gun. Mr. Grimes
maintained the Defendant was never near the Catheys’ vehicle until it approached him;
instead, he was near the dumpster located next to the store throughout the entire incident.
The Defendant testified that on the night of the shooting he was at the convenience
store with Mr. Grimes when Mr. Cathey came in. While in the store, Mr. Cathey said
something to the Defendant. The Defendant could not recall what was said but stated that
he stepped away to avoid a confrontation. The Defendant said that he wished to avoid Mr.
Cathey “because he had made some threats . . . on Facebook to me.” As the Defendant was
walking away from the store, Mr. Cathey exited the store, told the Defendant “I got you
b**** a** n*****,” got into his vehicle, and drove toward the Defendant. The Defendant
stated that he believed Mr. Cathey’s vehicle would have hit him had the Defendant not drawn
his weapon and fired. The Defendant maintained that he did not draw his weapon until Mr.
Cathey’s vehicle approached him and only did so in self-defense. He also stated that he was
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standing in front of Mr. Cathey’s vehicle when he drew his weapon, and his weapon was
pointed toward the ground when he fired the first shot. He further admitted that he was
intoxicated at the time of the shooting.
The Defendant denied telling the investigator that he was not at the convenience store
on the evening in question. He further claimed that he was drunk at the time of his interview.
The Defendant also admitted that he did not call 911 after the shooting because he knew he
was not supposed to have a firearm due to previous convictions. He further stated that he did
not tell the police he had acted in self-defense when they questioned him because the warrant
for his arrest had already been issued. Instead, he believed it was better to wait until he had
been appointed counsel to assert a claim of self-defense.
Investigator Frank Cagle, with the Jackson Police Department testified that he
interviewed the Defendant several days after the shooting. In that interview, the Defendant
admitted that he knew the victims but denied being at the scene on the night in question. The
Defendant also stated that he did not own a gun and did not remember where he was on the
night of the shooting. Investigator Cagle further testified that the Defendant was given an
opportunity to sign his statement, but he refused to put anything in writing or to sign
anything.
The jury returned a verdict of guilty on the lesser-included charge of reckless
endangerment for count one; guilty of aggravated assault for count two; not guilty of
aggravated assault for count three; and guilty of unlawful employment of a firearm during
the commission of or attempt to commit attempted first degree murder for count four. The
Defendant’s motion for a new trial or verdict of acquittal was denied following a hearing.
This timely appeal followed.
Analysis
I. Expert Testimony
The Defendant argues that, by precluding his expert from commenting on Mrs.
Cathey’s prior statement in relation to his findings, Brundage was unable to testify as to his
complete opinion in the field of ballistics. While Mrs. Cathey’s testimony may have been
impeached, the Defendant contends that his expert should have been allowed to explain how
her prior statement related to the ballistic evidence. The State argues that the trial court acted
within its discretion when it prohibited such testimony. The State asserts that Brundage’s
opinions regarding the surveillance video and evidence were enough for the jury to draw its
own conclusions, and allowing Brundage to comment on the credibility of Mrs. Cathey’s
testimony would invade the province of the jury as fact-finder. We agree with the State.
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The admissibility of expert testimony is governed by Tennessee Rules of Evidence
702 and 703. State v. Copeland, 226 S.W.3d 287, 301 (Tenn. 2007); Brown v. Crown Equip.
Corp., 181 S.W.3d 268, 273 (Tenn. 2005). Tennessee Rule of Evidence 702 states, “If
scientific, technical, or other specialized knowledge will substantially assist the trier of fact
to understand the evidence or determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education may testify in the form of an opinion or
otherwise.” (emphasis added). Tennessee Rule of Evidence 703 instructs the courts to
“disallow testimony in the form of an opinion or inference if the underlying facts or data
indicate lack of trustworthiness.”
It is well established that questions regarding the admissibility, relevancy, and
competency of expert testimony is left to the broad discretion of the trial court. Brown, 181
S.W.3d at 273; State v. McLeod, 937 S.W.2d 867, 871 (Tenn. 1996). “We may not overturn
the trial court’s ruling admitting or excluding expert testimony unless the trial court abused
its discretion.” Brown, 181 S.W.3d at 273; see also McLeod, 937 S.W.2d at 871. A trial
court abuses its discretion “when it applies incorrect legal standards, reaches an illogical
conclusion, bases its decision on a clearly erroneous assessment of the evidence, or employs
reasoning that causes an injustice to the complaining party.” State v. Scott, 275 S.W.3d 395,
404 (Tenn. 2009). Any abuse of discretion must appear on the face of the record. State v.
Campbell, 904 S.W.2d 608, 616 (Tenn. Crim. App. 1995).
In the context of a criminal trial, expert testimony carries a special danger of undue
prejudice because of its “aura of special reliability.” State v. Ballard, 855 S.W.2d 577, 561
(Tenn. 1993) (citing United Stated v. Green, 548 F.2d 1261, 1268 (6th Cir. 1977)). Expert
testimony “may lead the jury to abandon its responsibility as the fact finder and adopt the
judgment of the expert.” Id. Moreover, Tennessee law clearly states, “Comment upon the
credibility of witnesses is not a proper subject for expert testimony.” State v. Edward H.
Jones, No. 03-C01-9301-CR-00024, 1994 WL 529397, at *4 (Tenn. Crim. App. Sept. 15,
1994) (citations omitted). Determining the credibility of witnesses and the weight to be
given to their testimony “rests exclusively with the jury.” Id. at *5.
In this case, the trial court accepted Brundage as an expert witness in ballistics,
trajectory analysis, and shooting scene reconstruction, and he was allowed to testify as to his
scientific findings based on his examination of the evidence. From that evidence, Brundage
was able to create a narrative of the shooting and conclude that it would not have been
possible for a bullet to damage the front passenger-side tire if the shooter, hypothetically, had
been standing a few feet from the driver-side window. However, the trial court would not
allow Brundage to testify as to whether his findings were consistent with Mrs. Cathey’s prior
statement.
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Under Tennessee Rule of Evidence 702, an expert’s testimony must substantially
assist the jury to determine a fact at issue. Brundage’s scientific findings fall under this
requirement insofar as his findings explain the relative position of the shooter to the damage
on the vehicle. However, any comments he may have had regarding the credibility of other
witnesses invades the province of the jury. Questions of witness credibility are exclusively
resolved by the fact-finder. As such, we hold that the trial court did not abuse its discretion
when it excluded Brundage’s testimony regarding the consistency of his findings with the
testimony of other witnesses.
This issue is without merit.
II. Mutually Exclusive Verdicts
The Defendant contends that his conviction for employing a firearm during the
commission of a dangerous felony should be overturned because the jury failed to convict
him of the underlying felony, attempted first degree murder. Instead the jury convicted him
of the lesser-included offense of misdemeanor reckless endangerment, and the Defendant
asserts that these verdicts are mutually exclusive. The State argues that the verdicts are
simply inconsistent and should not be overturned. We agree with the State and hold that,
even if we were inclined to adopt the mutually exclusive verdict doctrine, it would not apply
to the facts of this case.
The Defendant recognizes that the mutually exclusive verdict doctrine has not been
adopted in Tennessee but nevertheless urges us to do so now. However, just last year this
court explicitly declined to adopt the mutually exclusive verdict doctrine in State v. Marlo
Davis, No. W2011-01548-CCA-R3-CD, 2013 WL 2297131, at *11 (Tenn. Crim. App. May
1, 2013), perm. app. granted (Tenn. Nov. 13, 2013).1 In states that recognize the doctrine,
it applies when “a guilty verdict on one count logically excludes a finding of guilty on the
other.” State v. Chris Jones, No. W2009-01698-CCA-R3-CD, 2011 WL 856375, at *10
(Tenn. Crim. App. March 9, 2011), perm. app. denied (Tenn. Aug. 25, 2011) (quoting
Jackson v. State, 577 S.W.2d 570, 573 (Ga. 2003)). In finding the defendant guilty on both
counts, the jury “necessarily reache[s] two positive findings of fact that cannot logically
mutually exist.” Id.; see also State v. James Snipes, No. W2011-02161-CCA-R3-CD, 2013
WL 1557367, at *8 (Tenn. Crim. App. April 12, 2013), perm. app. denied (Tenn. Sept. 13,
2013). For example, verdicts would be mutually exclusive if the jury returned a guilty
verdict “on two counts arising from the same act where one count requires proof of a
negligent act and the other count requires evidence of an intentional act.” James Snipes,
2013 WL 1557367, at *8; see also Chris Jones, 2011 WL 856375, at *10.
1
We note that State v. Marlo Davis is currently pending review by the Tennessee Supreme Court.
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Conversely, inconsistent verdicts “arise when a defendant is convicted of one offense
and acquitted of another offense, although both offenses arose from the same criminal
transaction.” James Snipes, 2013 WL 1557367, at *8. “The key difference between the two
doctrines is that mutually exclusive verdicts involve two positive findings of fact, whereas
inconsistent verdicts involved one positive finding of fact and ‘the failure to make a positive
finding of fact.’” Chris Jones, 2011 WL 856375, at *10 (quoting Jackson, 577 S.W.2d at 57.
Inconsistent verdicts have long been permitted in both the state and federal systems.
Such verdicts were first recognized in Dunn v. United States, 284 U.S. 390, 393 (1932). In
that case, the defendant was convicted of maintaining a common nuisance by keeping
intoxicating liquors for sale at a specified location but was acquitted of the possession and
sale of intoxicating liquors, even though the evidence was the same for all three counts. In
upholding the verdict, the United States Supreme Court stated:
The most that can be said in such cases is that the verdict shows that either in
the acquittal or the conviction the jury did not speak their real conclusions, but
that does not show that they were not convinced of the defendant’s guilt. We
interpret the acquittal as no more than their assumption of a power which they
had no right to exercise, but to which they were disposed through lenity.
That the verdict may have been a result of compromise, or of a mistake on the
part of the jury, is possible. But verdicts cannot be upset by speculation or
inquiry into such matters.
Id. at 393-94 (quotation marks and citations omitted).
Over 50 years later, the same court upheld the Dunn jury lenity rationale to support
inconsistent verdicts in United States v. Powell, 469 U.S. 57 (1984).2 Further, the Powell
Court noted that the Dunn rule “embodies a prudent acknowledgment of a number of
factors.” First, “inconsistent verdicts – even verdicts that acquit on a predicate offense while
convicting on the compound offense – should not be necessarily interpreted as a windfall to
the Government at the defendant’s expense.” Powell, 469 U.S. at 65 (emphasis added). In
such cases, there is no way to tell why the jury returned an inconsistent verdict, but when it
happens the Government is precluded from redressing any perceived error on appeal by
application of the Double Jeopardy Clause. Id. The court reasoned,
2
In Dunn, the U.S. Supreme Court also reasoned that, had separate indictments been presented
for each offense and each was separately tried, an acquittal on one charge would not allow the defendant
to plead res judicata as to the other offenses. Dunn, 284 U.S. 393. However, in Powell the Court noted
that the res judicata element of Dunn could no longer support inconsistent verdicts. Powell, 469 U.S. at
64. However, as we explain, the Powell Court upheld Dunn under the jury lenity rationale.
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Inconsistent verdicts therefore present a situation where ‘error,’ in the sense
that the jury has not followed the court’s instructions, most certainly has
occurred, but it is unclear whose ox has been gored . . . For us, the possibility
that the inconsistent verdict may favor the criminal defendant as well as the
Government militates against review of such convictions at the defendant’s
behest.
Id. Additionally, the court noted that defendants are already protected against irrational jury
verdicts by sufficiency of the evidence review. Id. at 67. However, the court took pains to
note that such “review should be independent of the jury’s determination that evidence on
another count was insufficient.” Id.
Second, the Powell Court reasoned that a defendant misunderstands the nature of
inconsistent verdicts when he argues than an acquittal on a predicate offense necessitates a
finding of insufficient evidence for the compound offense. Id. at 68. Such argument
“necessarily assumes that the acquittal on the predicate offense was proper – the one the jury
‘really meant.’ This, of course, is not necessarily correct; all we know is that the verdicts are
inconsistent.” Id. at 68. Because appellate courts cannot know the jury’s motivations in
reaching their verdicts, inconsistent verdicts are not subject to review. Id. at 68-69.
The Tennessee Supreme Court specifically adopted the Dunn jury lenity rationale in
Wiggins v. State, 498 S.W.2d 92, 93 (Tenn. 1973). In so doing, the court stated,
“Consistency in verdicts for multiple count indictments is unnecessary.” Id. at 94. Under
Wiggins each count is treated as a separate indictment. Id. at 95. Accordingly, in reviewing
the verdict, this Court looks solely to the evidence underlying the convicted offense to
determine whether there is sufficient evidence to permit a rational fact finder to find the
defendant guilty beyond a reasonable doubt. State v. Cynthia J. Finch, No. E2011-02544-
CCA-R3-CD, 2013 WL 6174832, at *13 (Tenn. Crim. App. Nov. 22, 2013). “We will not
attempt to divine some hidden meaning from the jury’s actions regarding a separate count of
the indictment.”
In a case notably similar to the scenario before us, State v. Tony Scott Walker, No.
02C01-9704-CC-00147, 1997 WL 746433 (Tenn. Crim. App. Dec. 3, 1997) perm. app.
denied (Tenn. Sept. 21, 1998), the jury convicted the defendant of felony murder but
acquitted him for the predicate especially aggravated robbery charge. Tony Scott Walker,
1997 WL 746433, at *3. In upholding the jury’s verdict, this Court reasoned, under Wiggins
and Powell, that the Dunn rule permits inconsistent verdicts on the grounds that appellate
courts will not attempt to uncover a jury’s motivation behind a verdict. Id. at *4. As such,
we held that our only determination when reviewing inconsistent verdicts is whether there
is sufficient evidence to support the conviction, even if the jury acquitted on a predicate
offense. Id. at *5.
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The case before us today presents a textbook inconsistent verdict. The jury acquitted
the Defendant for the predicate offense, choosing instead to convict him of the lesser-
included offense of misdemeanor reckless endangerment, and convicted him on the
compound offense. See Powell, 469 U.S. at 65. As such, the mutually exclusive verdict
doctrine would not apply to these facts. Therefore, our only concern is whether there is
sufficient evidence in the record to sustain the Defendant’s conviction of employing a
firearm during the commission of a dangerous felony. We consider this question
independently of the jury’s verdict for any other count in the indictment. See Wiggins, 498
S.W.2d at 93-94; Tony Scott Walker, 1997 WL 746433, at *5.
III. Sufficiency of the Evidence
The Defendant argues that the evidence presented at trial was insufficient to sustain
the jury’s verdict but instead supports the Defendant’s theory that he acted in self-defense.
The State argues that it provided sufficient evidence for any rational trier of fact to convict
the Defendant of reckless endangerment, aggravated assault, and employing a firearm during
the commission of a dangerous felony. Upon review we hold that the record contains
sufficient evidence to sustain the Defendant’s convictions.
Our standard of review for a sufficiency of the evidence challenge 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) (emphasis in original); see also Tenn. R. App. P. 13(e).
Questions of fact, the credibility of witnesses, and weight and value to be given the evidence
are resolved by the fact finder. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978),
superseded on other grounds by Tenn. R. Crim. P. 33 as stated in State v. Moats, 906 S.W.2d
431 (Tenn. 1995). This Court will not reweigh the evidence. Id.
A guilty verdict “removes the presumption of innocence and replaces it with a
presumption of guilt, and the defendant has the burden of illustrating why the evidence is
insufficient to support the jury’s verdict.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997);
State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Our standard of review “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)) (internal quotation marks omitted). On review the “State must be afforded the
strongest legitimate view of the evidence and all reasonable inferences that may be drawn
therefrom.” State v. Vasques, 221 S.W.3d 514, 521 (Tenn. 2007). As noted above, we
review each count in a multi-count indictment separately. See Wiggins, 498 S.W.2d at 93-
941; Tony Scott Walker, 1997 WL 746433, at *5.
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We turn first to the Defendant’s conviction for misdemeanor reckless endangerment
as a lesser-included offense of attempted first degree murder. A person commits reckless
endangerment when he or she “recklessly engages in conduct that places or may place
another person in imminent danger of death or serious bodily injury.” Tenn. Code Ann. §
39-13-103 (2010). Viewing the evidence in a light most favorable to the State, the Defendant
discharged his firearm in the direction of Mr. Cathey’s vehicle when he knew Mr. Cathey
was inside the vehicle. Two of the bullets struck Mr. Cathey’s rear driver-side window and
window frame respectively. At trial, the Defendant argued he acted in self-defense, but the
jury clearly discredited his testimony and returned a verdict of guilty. Because we will not
reweigh the evidence or question the jury’s credibility determinations upon review, we hold
that the evidence is sufficient to support the Defendant’s conviction for reckless
endangerment.
As to the Defendant’s conviction for aggravated assault, under Tennessee law, “A
person commits assault who . . . (2) [i]ntentionally or knowingly causes another to reasonably
fear imminent bodily injury.” Tenn. Code Ann. § 39-13-101(a)(2) (2010). A person
commits aggravated assault when he “[i]ntentionally or knowingly commits an assault as
defined in § 39-13-101 and . . . (B) [u]ses or displays a deadly weapon.” Tenn. Code Ann.
§ 39-13-102(a)(1)(B) (2011). Viewing the evidence in a light most favorable to the State,
Mr. Cathey saw the Defendant point a gun in his direction, and he drove away in an attempt
to remove himself from danger. The Defendant discharged his weapon, striking Mr.
Cathey’s vehicle. We find that the evidence is sufficient to support the Defendant’s
conviction for aggravated assault.
Finally, we turn to the Defendant’s conviction for employing a firearm during
commission of or attempt to commit a dangerous felony – attempted first degree murder.
Under Tennessee law “[i]t is an offense to employ a firearm during the: (1) [c]ommission of
a dangerous felony; [or] (2)[a]ttempt to commit a dangerous felony.” Tenn. Code Ann. § 39-
17-1324(b)(1)-(2) (2010). Criminal attempt as applied to the facts of this case is defined as:
A person commits criminal attempt who, acting with the kind of culpability
otherwise required for the offense: . . . (2) [a]cts 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; or (3) [a]cts with intent to
complete a course of action or cause a result that would constitute the offense,
under the circumstances surrounding the conduct as the person believes them
to be, and the conduct constitutes a substantial step toward the commission of
the offense.3
3
The trial court charged both Tennessee Code Annotated 39-12-101 (a)(2) and (a)(3).
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Tenn. Code Ann. § 39-12-101(a)(2)-(3) (2010). First degree murder is defined as “[a]
premeditated and intentional killing of another.” Tenn. Code Ann. § 39-13-202(a)(1) (2010).
The evidence presented at trial established that the Defendant had previously had a
disagreement with Mr. Cathey over Facebook. On the night of the shooting, the Defendant
followed Mr. Cathey out of the convenience store to his vehicle, pointed a gun at Mr. Cathey,
and fired the weapon at Mr. Cathey’s vehicle as Mr. Cathey drove away. Two of the bullets
struck the rear driver-side window and window frame of the vehicle respectively – indicating
that the Defendant was aiming at the person inside. Three spent shell casings were found
across the street from the store where the Catheys’ vehicle was parked; one spent shell casing
was found near the dumpster. The Defendant argues that he was acting in self-defense as a
result of Mr. Cathey’s attempting to strike him with his vehicle, and he did not intend to try
to kill Mr. Cathey when he fired the shots. However, the jury credited Mr. Cathey’s version
of events by returning a verdict of guilty for the offense of employing a firearm during the
commission of a dangerous felony. We conclude that the evidence, viewed in a light most
favorable to the State, is sufficient to support that conviction.
Conclusion
For the reasons stated above we conclude that the trial court did not err in excluding
a portion of the defense expert’s testimony; the Defendant’s conviction for employing a
firearm during the commission of a dangerous felony is valid; and the evidence is sufficient
to sustain the Defendant’s convictions. Accordingly, we affirm the judgments of the trial
court.
_____________________________________
ROBERT L. HOLLOWAY, JR., JUDGE
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