State v. Roy Green ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
FEBRUARY 1999 SESSION
May 5, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, ) C.C.A. No. 02C01-9803-CR-00086
)
Appellee, ) Shelby County
)
v. ) Honorable Chris Craft, Judge
)
ROY GREEN, ) (Attempt to Commit Second Degree
) Murder, Aggravated Assault, Assault,
Appellant. ) Theft of Property under $500)
FOR THE APPELLANT: FOR THE APPELLEE:
Gerald Stanley Green John Knox Walkup
147 Jefferson Avenue Attorney General & Reporter
Suite 1115 425 Fifth Avenue North
Memphis, TN 38103 Nashville, TN 37243-0493
(On Appeal)
Peter M. Coughlan
David Hooper Assistant Attorney General
1870 Union Avenue 425 Fifth Avenue North
Memphis, TN 38104 Nashville, TN 37243-0493
(At Trial)
William L. Gibbons
District Attorney General
201 Poplar Avenue, Suite 301
Memphis, TN 38103-1947
Lorraine Craig
Assistant District Attorney General
201 Poplar Avenue, Suite 301
Memphis, TN 38103-1947
OPINION FILED: ________________________________
AFFIRMED AND REMANDED FOR
CORRECTED JUDGMENT ON AGGRAVATED ASSAULT
JAMES C. BEASLEY, SR., SPECIAL JUDGE
OPINION
The appellant, Roy Green, was convicted by a Shelby County jury of attempt to
commit second degree murder, aggravated assault, assault, and theft of property under
the value of $500. The trial court imposed concurrent sentences of ten years, seven
years,1 nine months, and eleven months and twenty-nine days, along with fines totaling
$40,000. In this appeal as of right, the appellant challenges the sufficiency of the evidence
and contends his sentence for attempted second degree murder was improperly
enhanced. For the reasons stated herein, we find no reversible error, but remand for the
entry of a corrected judgment on the aggravated assault in No. 97-05410.
The appellant and an unidentified man entered a Blockbuster Video store in Shelby
County shortly before 5 p.m. on January 15, 1997. A few minutes later as the appellant
started to walk out the exit door, the sensor alarm sounded. Each time the appellant
sought to leave, the alarm sounded until he removed his jacket and “gently” laid it on the
floor. The appellant was then able to walk past the sensor without the alarm sounding.
As the appellant was putting his coat back on, a store employee, Darrell Brewer, Jr.,
noticed a bulge in the sleeve similar in size and shape to a videotape. When he asked the
appellant to remove the object from his coat, the appellant struck Brewer in the face with
his fist and left the store.
Employees Stefan Gilbreath, Greg Rogers, and Patricia Johnson followed the
appellant who ran toward a nearby church and hid behind some bushes. The store
employees backed away when the appellant pulled a knife from his pocket.
Donald Miller, the store manager, was in his office when he was called to the front
and told that a shoplifter had just left the store. While trying to get information from a man
identified as a friend of the alleged shoplifter, Miller saw two store employees chasing the
appellant outside. Miller went to assist his employees and tackled the appellant in a grassy
area between the street and the parking lot. Miller testified that, as they fell to the ground,
1
The transcript reflects the trial court imposed a sentence of seven years for
aggravated assault. However, the judgment sheet erroneously reflects a four-year
sentence.
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he rolled off the appellant and was in an “upside-down crab walk” position on all fours when
the appellant stabbed him in the side. Miller described the look on the appellant’s face as
if he were saying, “I tagged you guy . . . got you good.” As a result of the stabbing, Miller
suffered a punctured lung and was classified in critical condition. To inflate his lung, a
large tube was painfully inserted into his chest. Miller spent a week in the hospital and two
weeks convalescing at home.
Stefan Gilbreath testified that, after the stabbing, he ran up and kicked the appellant
off Donald Miller. The appellant then approached Gilbreath and swung at him with the
knife before running from the scene. Within a few minutes, the appellant was arrested
approximately three blocks from the scene. The knife was never recovered. Empty boxes
for the videotapes, The Frighteners and The Crow, City of Angels, were found on the floor
of the store and the broken tapes were discovered on the paved area outside the video
store.
When an appellant challenges the sufficiency of the evidence, this Court must
determine whether, after viewing the evidence in a light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of a crime beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979); Tenn. R. App. P. 13(e); State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985). The
weight and credibility of a witness’s testimony are matters entrusted exclusively to the jury
as the trier of fact. State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); Byrge v. State,
575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). On appeal, the State is entitled to both the
strongest legitimate view of the evidence and all reasonable inferences which may be
drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Moreover, guilty
verdicts remove the presumption of innocence, enjoyed by defendants at trial, and replace
it with a presumption of guilt. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).
Appellants carry the burden of overcoming a presumption of guilt when appealing jury
convictions. Id.-3-
The appellant does not include his convictions for theft and simple assault in
challenging the sufficiency of the evidence to convict. He states the issue thusly:
It is improper to find a defendant guilty of the felonies of
aggravated assault and attempt to commit a felony, to wit,
second degree murder, when the state’s proof showed that the
appellant was a fleeing person who had committed
misdemeanor offenses and had escaped apprehension by the
store employees but, was pursued by a store employee who
tackled the defendant and was the first aggressor.
He cites as authority and relies on the first sentence of Tenn. Code Ann. § 39-11-611(a)
which provides, “A person is justified in threatening or using force against another person
when and to the degree the person reasonably believes the force is immediately necessary
to protect against the other’s use or attempted use of unlawful force.” However, the
section goes on to say:
The person must have a reasonable belief that there is an
imminent danger of death or serious bodily injury. The danger
creating the belief of imminent death or serious bodily injury
must be real, or honestly believed to be real at the time, and
must be founded upon reasonable grounds. There is no duty
to retreat before a person threatens or uses force.
When fairly raised in the proof, self-defense becomes an issue for determination by
the jury under proper instructions by the trial court. State v. Ivy, 868 S.W.2d 724, 728
(Tenn. Crim. App. 1993).
In the instant case, the appellant did not testify and did not call any witnesses. From
our careful review of this record, we are unable to find any proof tending to show self-
defense and we have not been shown any evidence that would fairly raise the issue. The
record includes discussions between the trial judge and counsel regarding proposed jury
instructions, but at no time was self-defense mentioned. Thus, self-defense was not
requested or charged, nor do we think it should have been under the facts and
circumstances present in this case.
SUFFICIENCY OF EVIDENCE TO SUPPORT CONVICTION OF CRIMINAL ATTEMPT
TO COMMIT MURDER SECOND DEGREE AGAINST DONALD MILLER
Second degree murder is “[a] knowing killing of another.” Tenn. Code Ann. § 39-13-
210(a)(1). Tennessee Code Annotated § 39-12-101(a)(3) defines criminal attempt as
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follows:
A person commits criminal attempt who, acting with the kind of
culpability otherwise required for the offense, acts 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.
While Miller was on his “all fours” attempting to get up from the ground, the
appellant stabbed him in the side with sufficient force to penetrate Miller’s lung. Paramedic
Mark Cupples listed the victim’s condition as critical and opined that the wound could
cause death. This evidence clearly establishes the essential elements of criminal attempt
to commit murder in the second degree beyond a reasonable doubt and the appellant’s
guilt thereof.
As sub-issues, the appellant contends the State used irrelevant and nonprobative
evidence and argument when the State had Miller exhibit his scar to the jury and when the
State questioned Miller about his hospital experience and the insertion of a large tube into
his body.
The appellant cites no authority but avers the evidence was irrelevant and
nonproductive. Likewise, the appellant has failed to designate where the testimony relating
to the hospital experience can be found. However, in our review of the record, we find that
no objection was made to the introduction of this evidence, nor was this issue stated in the
motion for a new trial. We agree with the State that this issue has been waived. Tenn. R.
App. P. 3(e) and 36(a); State v. Baker, 785 S.W.2d 132, 135 (Tenn. Crim. App. 1989).
Waiver notwithstanding, we view this evidence as relevant and of probative value in
establishing an attempt to kill.
When the prosecution sought to have the victim show his scar to the jury, the
defense objected on the grounds that Miller had already testified that he had been stabbed,
and the exhibition of the scar had no probative value and would inflame the jury.
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The trial court found that the location of the injury was relevant to prove intent.
Since there were no photographs of the wound and the testimony referred only to the
general area of the wound, the trial court ruled that the proposed demonstration was
proper. We find nothing in the record to suggest that the scar was gruesome or of an
inflammatory nature.
The question of whether such evidence is admissible rests within the sound
discretion of the trial court, and this Court will not interfere with the exercise of this
discretion unless clear abuse appears on the face of the record. State v. Hill, 885 S.W.2d
357, 361 (Tenn. Crim. App. 1994). There is no showing of abuse of discretion here.
SUFFICIENCY OF EVIDENCE TO ESTABLISH GUILT IN THE
AGGRAVATED ASSAULT OF STEFAN GILBREATH
A person commits aggravated assault who commits an assault as defined in Tenn.
Code Ann. § 39-13-101 and uses or displays a deadly weapon. Tenn. Code Ann. § 39-13-
102(a)(1)(B). An assault may be committed when one intentionally or knowingly causes
another to reasonably fear imminent bodily injury. Tenn. Code Ann. § 39-13-101(a)(2).
When the appellant approached and swung at him with the knife, Gilbreath testified
that he was scared out of his mind. Again, we find this evidence sufficient for any rational
trier of fact to find the essential elements of aggravated assault and the appellant’s guilt
beyond a reasonable doubt.
SENTENCING ISSUE
The appellant states his sentencing issue as follows:
Whether or not when an enhancement factor is prohibited from
being used to enhance a sentence for one of the charged
offenses in a multiple indictment prosecution arising from a
single set of facts, it must be prohibited from being used to
enhance a sentence in another offense in the same
prosecution.
He specifically avers error on the part of the trial court in enhancing the punishment
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for attempt to commit second degree murder based on appellant’s use of a deadly weapon
pursuant to Tenn. Code Ann. § 40-35-114(9). The appellant argues that since the deadly
weapon factor could not be used in the aggravated assault case, it could not be used in
the attempt to commit second degree murder. He cites no authority for this position and
we know of none.
The trial court did not use Tenn. Code Ann. § 40-35-114(9) to enhance appellant’s
punishment for the aggravated assault because the use of a deadly weapon is an essential
element of the offense as charged here. On the other hand, the murder statute does not
require the use of a deadly weapon. This Court has ruled that enhancing a murder
sentence for the use of a deadly weapon is permissible. State v. Butler, 900 S.W.2d 305,
313 (Tenn. Crim. App. 1994). The conviction of the appellant for aggravated assault and
attempt to commit second degree murder in the same trial does not change that fact.
These convictions resulted from two separate acts committed against two different people.
This issue is without merit.
From our review, we uphold the convictions on each indictment and remand for the
entry of a corrected judgment reflecting the seven-year sentence for the aggravated
assault.
________________________________________
JAMES C. BEASLEY, SR., SPECIAL JUDGE
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CONCUR:
___________________________________
JOHN H. PEAY, JUDGE
___________________________________
JOE G. RILEY, JUDGE
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