State of Tennessee v. Billy Lebron Burson ( 2013 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs March 26, 2013
STATE OF TENNESSEE v. BILLY LEBRON BURSON
Direct Appeal from the Criminal Court for Hamilton County
No. 273398 Don W. Poole, Judge
No. E2012-01289-CCA-R3-CD - Filed August 20, 2013
A Hamilton County Criminal Court Jury convicted the appellant, Billy Lebron Burson, of
three counts of misdemeanor reckless endangerment, three counts of aggravated assault, and
felony reckless endangerment. The trial court merged the misdemeanor reckless
endangerment convictions into the aggravated assault convictions and imposed a total
effective sentence of six years in the Tennessee Department of Correction, which was to be
served consecutively to a federal sentence. On appeal, the appellant challenges the
sufficiency of the evidence sustaining his aggravated assault convictions, the sentences
imposed, and the trial court’s admission of testimony from the State’s “firearms expert.”
Upon review, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court are
Affirmed.
N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which T HOMAS T. W OODALL
and R OBERT W. W EDEMEYER, JJ., joined.
Hannah C. Stokes, Chattanooga, Tennessee, for the appellant, Billy Lebron Burson.
Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel;
William H. Cox, III, District Attorney General; and Bates Bryan, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
The appellant’s charges stemmed from his involvement in the events that occurred on
July 21, 2009, at 2006 Ivy Street in Chattanooga, which resulted in the death of Justin
Crutcher. The Hamilton County Grand Jury originally indicted the appellant for the
attempted first degree murders of Davorius Appleberry, Kamilah Smartt, and Terkeria
Owens; the aggravated assaults of Davorius Appleberry, Kamilah Smartt, and Terkeria
Owens; and felony reckless endangerment.
At trial, Davorius Appleberry testified that he lived at 2006 Ivy Street with his father,
Tracy Appleberry; his stepmother, Tameka Wooten; several younger siblings; and Terkeria
Owens. The appellant occasionally visited his relatives who lived across the street from the
Appleberrys.
Davorius1 said that on the night of July 21, 2009, he and three friends were sitting
outside at a friend’s house which was located across the street from Davorius’s house. The
appellant arrived in a truck with Justin Crutcher, whom Davorius knew as “Mad Face” or
“Mad Dog.” The appellant and Crutcher got out of the truck and sat on the hood. The
appellant pulled out a gun, began playing with it, and asked Davorius, “[W]here [is] the
money?” Davorius thought the appellant was “just playing” because he never pointed the
gun at anyone.
Davorius stated that he went home when a bondsman came to the Appleberry
residence to look for someone they thought stayed at the house. The other individuals who
were outside also left, including the appellant. After the bondsman departed, Davorius went
back outside and saw that the appellant had returned and was “bumping” his truck against
a car owned by the appellant’s cousin, Sheba Chapple. Davorius sat outside with his hands
in his pockets because it was cold. Crutcher walked past Davorius and asked Davorius,
“What’s cracking?” Davorius responded, “[A]in’t nothing cracking with me.” Crutcher then
asked why Davorius had his hands in his pockets, and Davorius replied that, “I can do it [if]
I want to.” Despite Davorius asking Crutcher to leave, he would not and kept “talking
crazy,” insisting that Davorius remove his hands from his pockets. Davorius thought that
Crutcher suspected Davorius had a weapon in his pocket.
Davorius said that he felt “like something was about to happen” because the appellant
had “pulled out that gun and asked where the money. . . . I ain’t never had no problem with
[the appellant] . . . but I just feel like why would you out the blue say something that he had
said.” Therefore, Davorius knocked on the back door of his house to try to wake Tracy.
When Tracy did not answer the door, Davorius returned to the front of the home and found
Crutcher arguing with Owens and Owens’s cousin, Kamilah Smartt. Davorius again knocked
on the back door and managed to wake Tracy, who staggered to the back door. Davorius told
Tracy that some people were outside “talking crazy.” Davorius did not see Tracy in
possession of a gun. Davorius stepped into the house and thought Tracy went outside. As
1
Some of the witnesses in this case share a surname. Therefore, for clarity, we have chosen to utilize
their first names. We mean no disrespect to these individuals.
-2-
Davorius walked toward the living room, he heard shots being fired. He felt “[u]nsafe” and
worried about his siblings. He and his sister gathered their siblings and hid in the bathroom.
When the gunfire stopped, Davorius stepped out of the bathroom and saw broken glass
everywhere and bullet holes throughout the house. Davorius said that when Tracy returned
to the house, the police placed Tracy in a patrol car while they investigated and spoke with
Davorius. Davorius stated that he did not see any of the shots being fired but reiterated that
he had seen the appellant earlier that evening in possession of a weapon.
On cross-examination, Davorius said that he thought the events began around
midnight or 1:00 a.m. and that the bondsman arrived five or ten minutes prior to the shooting.
Davorius acknowledged that initially he had not felt threatened when he saw the appellant
with a gun. He explained that he had no previous problems with the appellant, that the
appellant had not threatened him, and that the argument earlier that day had been between
him and Crutcher, not the appellant. Davorius recalled that in addition to him, the appellant,
and Crutcher, the following people were present in the street that night: “Weezie,” Owens,
Smartt, and Chapple. Davorius acknowledged that in a statement to the police, he said that
at one point, the appellant “‘was holding [Crutcher] back.’” Davorius stated that Crutcher
was killed during the shooting.
At the request of the State and without objection by the defense, the trial court took
judicial notice of information from the National Weather Service’s web site that revealed the
temperature was 67 degrees at 1:00 a.m., which was around the time of the shooting. The
trial court instructed the jury that it was “not required to accept as conclusive any facts
judicially noticed.”
Tracy Lebron Appleberry, Davorius’s father, testified that he lived at 2006 Ivy Street
with Wooten and nine of their children. On the night of July 21, 2009, he and Wooten went
to bed around midnight. He was later awakened by Davorius knocking on the back door of
the house, saying, “Pops, somebody [is] shooting.” Tracy heard two shots and then went out
the back door, armed with his .357 caliber gun. He saw the appellant standing by “the
neighbor’s bush.” Crutcher “ran up on” Tracy, Tracy heard two more shots, felt a bullet
graze his leg, and bent down to look at his leg. When he looked up, he saw Crutcher raise
his hands. Believing Crutcher to be armed and preparing to shoot, Tracy fired his gun.
Tracy said that he was scared, that he had never shot anyone, and that he jumped over a fence
and fled. As he fled, he heard more shots. Tracy ran to his sister’s home and called Wooten,
who informed him that the police wanted to speak with him. He returned home and turned
himself in to the police. He showed them where he had hidden the gun used to shoot
Crutcher.
On cross-examination, Tracy said that he did not hear the appellant make any threats
on the evening of the shooting and that he did not see the appellant with a gun. He also said
-3-
that he had no prior problems with the appellant. Tracy said that he did not know Crutcher
before that night.
Wooten’s daughter, Terkeria Nicole Owens, who lived at 2006 Ivy Street, testified
that in the early morning hours of July 21, 2009, several people were present in the residence,
including Owens’s cousins, Smartt and Rakita Ware. Around midnight, Owens walked
Smartt to Smartt’s car, and the two women sat in the car, talking. The appellant’s cousin,
Chapple, arrived in her car, and Owens got out of Smartt’s car and began speaking with
Chapple. The appellant arrived and hit the back of Chapple’s car with his vehicle, pushing
it “halfway down the street.” Chapple put the car in drive and parked in front of another car.
The appellant parked beside her, and Chapple began cursing the appellant. Crutcher got out
of the appellant’s vehicle, and the appellant backed up and parked behind Smartt’s car.
Owens heard Crutcher repeatedly ask Davorius, “[W]hat’s cracking?” Smartt got out
of her car, and she and Owens walked towards the men. Owens asked Crutcher to leave
because “you don’t come to nobody’s house starting problems.” Crutcher began cursing, told
her to shut up, and warned her that he “knock[s] b[*]tches out too.” Smartt tried to talk with
Crutcher, but he began cursing her, and the arguing continued.
As the arguing continued, Owens saw the appellant talk to Smartt, walk to his car,
return to the driveway, and “flash[]” his gun at the group without removing the gun from his
pocket. Owens stepped back, and the appellant tried to pull Crutcher away from the others.
Crutcher escaped from the appellant and ran up the driveway. Owens and Smartt ran into
the house to warn those inside that “they was going to shoot up the house.” After they were
inside the house, the shooting began. Owens heard at least five shots, one of which hit the
couch where her two-year-old brother had been moments earlier. Owens said that she was
in fear for her life. Following the shooting, the police arrived, and Owens gave a statement.
On cross-examination, Owens said that earlier that night, she was in the house asleep
but was awakened by a bondsman. Soon thereafter, Owens walked Smartt to her car. Owens
and Smartt were talking in the car for less than five minutes when Chapple arrived. Owens
got out of Smartt’s car and stood at the passenger side of Chapple’s car, “hanging in her
window, talking to her.” Owens said that the appellant never threatened her or Smartt and
that he and Chapple tried to “diffuse th[e] situation” between Crutcher, Owens, and Smartt.
Owens recalled that the appellant and Crutcher both drank beer that night. Owens
acknowledged that she did not see anyone shooting that night. She told the police that after
the shooting stopped, she heard a car drive away. Owens stated that she felt threatened by
the appellant’s lifting his shirt to show he had a gun in his pocket.
Tameka Wooten testified that on July 21, 2009, she was living at 2006 Ivy Street with
Tracy and their children. Smartt brought Wooten home at approximately 2:00 a.m., and
-4-
Smartt went inside the house to use the bathroom. Davorius went across the street to a
friend’s house. Eventually, Wooten went to bed, but she was awakened when a bondsman
came to the house searching for someone. Afterward, Wooten started to return to bed and
heard Davorius knock on the back door, calling for Tracy with “fear in his voice.” Tracy
went to check the situation then returned to bed. Wooten then heard gunshots and saw Tracy
run out the back door. Tracy later called Wooten, and she told him to come home, explaining
that the police were there and that “there’s a boy laying out here in the street dead.”
On cross-examination, Wooten said that the shooting began approximately fifteen to
twenty minutes after the bondsman left. Wooten did not witness any shooting that evening
and was not sure who was outside. She stated that she had no prior problems with the
appellant.
Kamilah Smartt testified that in the early morning hours of July 21, 2009, she took
Wooten home and went inside with her. A bondsman came to the house to look for someone.
After the bondsman left, Owens walked Smartt to her car and they sat inside the car, talking.
Chapple drove by and stopped her car beside Smartt’s car. Owens and Smartt got out to
speak with Chapple. As they were talking, the appellant drove up behind Chapple’s car and
repeatedly “shoved the back of her car” with his vehicle. To stop the appellant, Chapple
parked in front of Wooten’s van. The appellant stopped his vehicle beside Chapple’s car,
and they began “passing words to each other.” Crutcher got out of the appellant’s vehicle
and walked up the Appleberrys’ driveway. The appellant parked behind Smartt then
followed Crutcher.
Smartt said that she and Owens stayed by Chapple’s car until they heard arguing.
They then walked up the driveway and saw Davorius and Crutcher arguing. Smartt told
Crutcher that “you can’t come to people’s house arguing and, you know, trying to start
something.” Crutcher cursed at Smartt, “saying he fight girls and he hit women and all this.”
Smartt told him that he would not hit her, and he left her alone. Owens told Crutcher to
leave, and he cursed her. Crutcher started walking back to the appellant’s vehicle, and
Owens “started arguing.” Crutcher came “flying like a crazy man” towards Owens. Smartt
and Owens ran inside the house, looked out the living room window, and saw the appellant
approaching the house with a gun in his hand. Smartt shouted a warning, and everyone ran
to the back of the house. As Smartt left the window, she heard shots being fired, several of
which hit the house. Smartt never saw Crutcher with a gun. Smartt reiterated that she saw
the appellant “with a gun, . . . and he let that thing rip.”
On cross-examination, Smartt said that Davorius and Crutcher argued for about five
minutes before she and Owens intervened. The appellant did not say anything during the
argument, and he and Chapple tried to get Crutcher to leave. After the shooting, Smartt said
she saw a Bronco speed away from the scene. Although she could not see who was driving,
-5-
she assumed it was the appellant because it was his vehicle. Smartt estimated that the entire
incident lasted less than thirty minutes.
Chattanooga Police Detective Adam Emery testified that on July 21, 2009, a 911 call
regarding this incident was received at 1:58 a.m. Two minutes later, a second call was placed
saying that the suspect had fled in a Bronco. As Detective Emery was en route to 2006 Ivy
Street, he called an officer on the scene and was informed that a person had been shot in the
chest and “it did not look good.” When Detective Emery arrived at the scene, he was
informed that the victim had died at the hospital. Detective Emery learned that an altercation
had occurred and that Chapple was a witness. Chapple told Detective Emery that Tracy had
shot Crutcher, and she identified Wooten as Tracy’s girlfriend. Because Chapple was
uncomfortable speaking where she could be overheard, Detective Emery had her transported
to the service center to be interviewed by Detective Mercado.
After Chapple left, Detective Emery spoke with Wooten, who acknowledged that
Tracy had been involved in the incident. At the request of the police, Wooten called Tracy
and arranged for him to turn himself in. Tracy complied and informed the police, “I shot in
defense of my family and others because somebody was shooting up my house.” At the
scene, Detective Emery and another officer interviewed the witnesses. Thereafter, the police
began searching for the appellant. Detectives Emery and Mercado asked Chapple where the
appellant was, but she refused to disclose his location.
Detective Emery stated that a .357 caliber shell casing was found at the crime scene,
about midway down the driveway. Additionally, a .357 caliber bullet was retrieved from
Crutcher’s body during the autopsy. Tracy and Davorius led officers to the location of
Tracy’s .357 magnum revolver, and ballistics testing revealed that the bullet that killed
Crutcher was fired from Tracy’s gun. Detective Emery said that officers performed gunshot
residue tests on Tracy and Crutcher; however, the testing kits were faulty, and the results
were not valid. Detective Emery stated that a .357 magnum is a type of revolver that holds
five or six bullets. The police found a single shell casing, and the other chambers of the gun
were empty. Tracy later told Detective Emery that only one bullet had been in the gun.
Detective Emery acknowledged that he did not attend the autopsy of Crutcher but that
the results revealed Crutcher died as a result of a gunshot wound to the chest. The autopsy
report also revealed the presence of stippling around the gunshot wound, indicating that the
gun was fired from a relatively close distance.
On cross-examination, Detective Emery testified that a request was submitted to the
Tennessee Bureau of Investigation (TBI) for DNA and fingerprint testing to be performed
on a .38 caliber bullet that was recovered near the street. However, the TBI report revealed
that neither test was performed, and Detective Emery speculated that the scientists had
-6-
concluded “there was no way to perform those tests on that cartridge.” Detective Emery
stated that most of the evidence came from witness statements, explaining that Tracy and his
family all gave statements and cooperated with the investigation but that the appellant and
Chapple did not.
Greg Mardis, a crime scene investigator with the Chattanooga Police Department,
testified that on July 21, 2009, he and other members of the crime scene unit, namely
Investigator McGhee, Investigator Mance, and Sergeant Whitfield, responded to the scene
at 2006 Ivy Street. Investigator Mardis found multiple .45 caliber bullet fragments and one
unfired .45 caliber cartridge. Testing revealed that all of the .45 caliber bullets had been fired
from the same .45 caliber weapon. Investigator Mardis said that the rifling on the bullets was
“common to a variety of .45 caliber weapons, some of the more commonly encountered
brands included High Point and others.” Investigator Mardis saw that several bullets had hit
the windows and doors of the residence and that some of those bullets had traveled into the
living areas of the residence. Davorius told the crime scene investigators that a .357 magnum
revolver was located behind a house “the next street over.” The investigators retrieved the
revolver and later obtained an expended .357 caliber bullet found in Crutcher’s body during
the autopsy.
On cross-examination, Investigator Mardis stated that the .357 revolver was the only
handgun found at the scene, that the revolver was the weapon that killed Crutcher, and that
Tracy fired the revolver. He noted that there was evidence of two weapons being on the
scene: the .357 revolver and a .45 caliber gun; he stated that there was no evidence of a third
gun. He acknowledged that no fingerprints were collected from any of the shell casings. He
explained that although a person would have had to touch each bullet while loading the gun,
retrieving a print from a casing was “almost impossible.” Investigator Mardis said that
gunshot residue tests were performed on Tracy and Crutcher but that, due to contamination
of the controlled swabs, no analysis was performed. He said that gunshot residue testing was
not performed on the appellant because he did not come to the police station until over
twenty-four hours after the shooting. Investigator Mardis said that “24 hours later, if he’s
washed his hands, changed his clothes, anything, [the gunshot residue would be] gone.”
Defense counsel showed Investigator Mardis a magazine for a semiautomatic pistol
that was similar to the gun that fired the .45 caliber bullets found on the scene. Investigator
Mardis stated that the rounds of the gun were held in a magazine. He explained the term
“semiautomatic” as meaning that after the gun was fired, the fired cartridge was expelled
from the gun, the next round was pulled up from the magazine, and the gun was ready to fire
again. Investigator Mardis stated that some semiautomatic pistols expel the spent cartridge
“to the right, some straight up, some down, some to the side.” He did not know to which side
the .45 caliber gun at the scene expelled its spent cartridges.
-7-
Charles Park, a court security officer employed by the Hamilton County Sheriff’s
Department, testified that he had substantial experience with firearms, that he had been a
firearms instructor since 1967, and that he was familiar with the “standard issue, 1911 .45
caliber [semiautomatic] handgun” that had been issued by the United States Army. He said
that the standard Colt model gun generally held seven rounds in the magazine and one in the
chamber but that certain “after-market magazines” could hold eight rounds in the magazine
and one round in the chamber. He stated that the gun was a single action pistol that could
not be fired by simply pulling the trigger; instead, the hammer had to be “pulled to the rear”
before firing. He explained that “if you have a misfire, the round in the chamber is not fired,
or your chamber is empty,” the gun could be “rack[ed]” by pulling the “slide back and
releas[ing] it to load a round into the chamber from the magazine.” If the gun were racked
with a bullet in the chamber, a live bullet could be ejected from the gun. Deputy Park said
that after the Army stopped issuing the Colt .45 caliber pistol, other manufacturers began
producing guns that were essentially “clones” of that pistol and that those guns
predominantly held seven rounds in the magazine and one in the chamber.
On cross-examination, Deputy Park stated that he did not consider himself to be an
expert and that he had never been certified as such. He also stated that he had no specific
knowledge of the crime and had not been shown a gun that had fired the .45 caliber bullets
at issue. He said that he did not know he was going to testify until that morning. At that
point, the following colloquy occurred:
[Defense counsel:] Which side to the casings normally
eject from the semiautomatic weapons?
[Deputy Park:] Again, you’re going to have to go to
different variations of models. If we want to continue with the
1911 Colt .45 –
[Defense counsel:] No, I don’t want a specific gun, I
want a generalization if that’s what you’re going to give today.
[Deputy Park:] Generally, they eject to the right on a
semiautomatic.
After the State rested its case-in-chief, the defense called Sheba Chapple as its sole
witness. Chapple testified that the appellant was her cousin and that she was at the scene at
the time of the shooting. She denied that the appellant “bump[ed]” her car or that they had
“any issues” that evening. She was present when Crutcher argued with Davorius, Smartt, and
Owens “halfway up” the driveway of the Appleberry residence. She said that Owens and
Smartt were threatening Crutcher and that “he was threatening them back.” Chapple and the
-8-
appellant told Crutcher to stop arguing and tried to pull him to the appellant’s car and away
from the scene. However, when they reached the bottom of the driveway, Crutcher broke
free and charged back up the driveway. The appellant, who was standing on the sidewalk
near the street, chased Crutcher. As Crutcher ran up the driveway, Chapple heard the shot
that killed Crutcher. Chapple and the appellant ran to Crutcher’s side to help, and Chapple
heard other shots being fired. Chapple did not see the appellant with a gun and did not see
him shooting.
On cross-examination, Chapple said that Owens and Smartt had “threatened
[Crutcher] with objects” and that she had tried to intervene to stop the argument. She
maintained that she did not see Crutcher with a gun. Chapple could not discern the location
from where the shots were fired.
The jury found the appellant guilty of three counts of the lesser-included offense of
misdemeanor reckless endangerment, three counts of aggravated assault, and one count of
felony reckless endangerment. At sentencing, the trial court merged the reckless
endangerment convictions with the aggravated assault convictions. The court then sentenced
the appellant to six years for each aggravated assault conviction and to two years for the
felony reckless endangerment conviction. The court further ordered that the sentences be
served concurrently with each other but consecutively to a separate federal sentence.
On appeal, the appellant challenges the sufficiency of the evidence sustaining his
aggravated assault convictions, the sentences imposed, and the trial court’s admission of
testimony from Deputy Park.
II. Analysis
A. Admission of Testimony
The appellant contends that the trial court erred by allowing the State to introduce the
testimony of Deputy Park as a firearms expert without notifying the appellant of the witness
prior to trial. In response, the State maintains that Deputy Park was not offered as a firearms
expert and that his testimony as a lay witness was admissible. The appellant asserts that the
trial court stated that the witness was testifying as an expert and that, if the witness was not
an expert, his “opinion counts for nothing more than inadmissible speculation.”
At trial, the State informed the trial court that it wished to call Deputy Park “for a
simple question or two about .45 handguns.” The State explained that Deputy Park was
“extremely knowledgeable in the area of firearms, and much more than just about anyone
else. I know that my officers all have some experience, but it’s like a big hobby of his.”
Defense counsel objected based upon the State’s failure to disclose prior to trial that it
-9-
planned to call an expert witness. The State asserted, “I’m not submitting him as an expert,
just someone who’s familiar with the .45 handgun.” The trial court said that before the State
called Deputy Park, defense counsel would have an opportunity to speak with him “and see
if there’s any objection at that point.”
Thereafter, defense counsel renewed the objection, again asserting that if Deputy Park
was an expert, the State was required to give advance notice. Further, defense counsel stated
that if Deputy Park was not an expert, “then anything he says is speculation [and] only an
expert can give an opinion on something.” In response, the following colloquy occurred:
[The State]: I’m not submitting him as an expert, I’m
submitting him on his general knowledge, he has a lot of
experience with .45s. He could qualify, probably, as an expert,
but I have no interest in qualifying him as an expert.
[The Court]: Well, I think, probably, based on what both
lawyers have said, I think he is being introduced as an expert, if
you’re giving an opinion.
[The State]: Well, it’s not an opinion, it’s an observation
as to the number of rounds that go into a weapon. That’s not an
expert opinion.
....
[The Court]: Well, and I’m going to allow him to testify
for this reason: There have been a lot of questions asked of the
other police officers. Now, this is a police officer that you
intend to call who is going to testify about the workings of either
a .45 caliber or .357 magnum. Based upon what’s already been
asked of other people, certainly I’ll let him testify as to
generalized knowledge of the workings of one and/or both of
those weapons, based upon what has been gone into on both
sides. So I’ll allow him to do that.
Now, if we get into something about opinions or
something, if he’s going to get up and say how many rounds are
in a .357 or .45 or which side they extract from, all those
questions have been asked, I’ll allow him to testify concerning
those matters, but if he gets into too much opinion stuff, then I’ll
take [the defense’s] objections at that time, okay? So I’ll allow
-10-
[the State] to put him on for that purpose.
There is no dispute that the State did not provide notice of expert testimony.
Therefore, we must determine whether Deputy Park testified as an expert or a lay witness.
Generally, the trial court has broad discretion in determining the qualifications, admissibility,
relevancy, and competency of expert testimony. See State v. Stevens, 78 S.W.3d 817, 832
(Tenn. 2002). As such, this court will not overturn the trial court’s ruling on the admissibility
of expert testimony absent an abuse of that discretion. See State v. Ballard, 855 S.W.2d 557,
562 (Tenn. 1993).
Expert testimony must be both relevant and reliable before it may be admitted.
McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 265 (Tenn. 1997). Tennessee Rule of
Evidence 702 provides:
If scientific, technical, or other specialized knowledge will
substantially assist the trier of fact to understand the evidence or
to 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.
In the instant case, the State asserted that it did not consider Deputy Park to be an
expert. The trial court expressly stated that Deputy Park was to testify only regarding
generalizations and cautioned that if he offered opinion testimony, the court would revisit the
objection. Moreover, during his testimony, Deputy Park denied being an expert and
acknowledged that he had never been certified as a firearms expert. Accordingly, we
conclude that Deputy Park did not testify as an expert witness.
Next, we must determine whether Deputy Park’s testimony as a lay witness was
admissible. Rule 701(a) of the Tennessee Rules of Evidence, which governs the admission
of opinion testimony offered by non-experts, states:
If a witness is not testifying as an expert, the witness’s
testimony in the form of opinions or inferences is limited to
those opinions or inference which are
(1) rationally based on the perception of
the witness and
(2) helpful to a clear understanding of the
witness’s testimony or the determination of a fact
in issue.
-11-
Generally, the testimony of a non-expert witnesses must be confined to a narration of
the facts based on their first-hand knowledge. Blackburn v. Murphy, 737 S.W.2d 529, 531
(Tenn. 1987). The witness must avoid stating their personal opinions, conclusions, or
opinions regarding the facts about which they have testified. Id. “An exception to this
general rule exists where testimony in an opinion form describes the witness’s observations
in the only way in which they can be clearly described, such as testimony that a footprint in
snow looked like someone had slipped or that a substance appeared to be blood.” State v.
Brown, 836 S.W.2d 530, 549-50 (Tenn. 1992) (citations omitted).
In the instant case, Deputy Park testified generally about the operation of a .45 caliber
gun and his experience with the weapon. Deputy Park asserted that he did not consider
himself to be an expert and that he had no specific knowledge of the case. His testimony did
not consist of an opinion and was limited to his general knowledge and experience
concerning a specific type of weapon. Accordingly, we conclude that the trial court did not
abuse its discretion in allowing Deputy Park’s testimony to be admitted.
Regardless, the proof at trial revealed that there were only two guns at the scene, a
.357 magnum and a .45 caliber semiautomatic pistol. The police recovered the .357
magnum, which belonged to Tracy, but never found the .45 caliber semiautomatic pistol.
While Tracy thought Crutcher might have had a gun, he did not definitively see him with
one. However, Davorius, Owens, and Smart saw the appellant with a pistol, Smartt said the
shooting started immediately after she saw the appellant approach the house with a gun
pointed at the house, and Chapple and Smartt stated that Crutcher did not have a gun.
Therefore, the proof reveals that only Tracy and the appellant had guns at the scene.
Moreover, Sergeant Darrell Whitfield testified that he could not recall ever seeing a
semiautomatic pistol eject a shell casing to the left. Investigator Mardis testified that some
semiautomatic pistols expel spent cartridges “to the right, some straight up, some down, some
to the side” but that, because the police never found the .45 caliber pistol used in this case,
he did not know to which side the .45 caliber gun at the scene expelled its spent cartridges.
Deputy Park testified that generally semiautomatic weapons ejected cartridges to the right
but that there could be differences in the “variations of models.” Accordingly, the testimony
of Sergeant Whitfield and Investigator Mardis were essentially the same as the testimony of
Deputy Park. Further, none of the witnesses saw the position of the shooter at the time of the
shooting. Therefore, we conclude that if the admission of the testimony of Deputy Park was
error, such error was harmless. See Tenn. R. App. P. 36(b).
B. Sufficiency of the Evidence
The appellant contends that the evidence presented to the jury was not sufficient to
support his convictions for the aggravated assaults of Davorius, Smartt, and Owens. He
specifically asserts that “[t]he testimony at trial showed that none of the three alleged victims
-12-
were actually in fear for their safety from the [appellant], nor were any of the alleged victims
injured or touched in any way by the [appellant]. Therefore, none of the elements of assault
or aggravated assault were met.” (Emphasis omitted).
On appeal, a jury conviction removes the presumption of the appellant’s innocence
and replaces it with one of guilt, so that the appellant carries the burden of demonstrating to
this court why the evidence will not support the jury’s findings. See State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982). The appellant must establish that no reasonable trier of fact
could have found the essential elements of the offense beyond a reasonable doubt. See
Jackson v. Virginia, 443 U.S. 307, 319 (1979); Tenn. R. App. P. 13(e).
Accordingly, on appeal, the State is entitled to the strongest legitimate view of the
evidence and all reasonable inferences which may be drawn therefrom. See State v.
Williams, 657 S.W.2d 405, 410 (Tenn. 1983). In other words, questions concerning the
credibility of witnesses and the weight and value to be given the evidence, as well as all
factual issues raised by the evidence, are resolved by the trier of fact, and not the appellate
courts. See State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).
The guilt of a defendant, including any fact required to be proved, may be predicated
upon direct evidence, circumstantial evidence, or a combination of both direct and
circumstantial evidence. See State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App.
1999). Even though convictions may be established by different forms of evidence, the
standard of review for the sufficiency of that evidence is the same whether the conviction is
based upon direct or circumstantial evidence. See State v. Dorantes, 331 S.W.3d 370, 379
(Tenn. 2011).
The appellant was convicted of aggravated assault. A person commits an aggravated
assault under Tennessee law when he intentionally or knowingly commits an assault and uses
or displays a deadly weapon. Tenn. Code Ann. § 39-13-102(a)(1)(B). An assault is defined
as intentionally or knowingly causing another to reasonably fear imminent bodily injury.
Tenn. Code Ann. § 39-13-101(a)(2).
The appellant specifically argues that Davorius testified he was never afraid of the
appellant and did not feel threatened by him; that Owens testified the appellant did not
threaten her, that he tried to diffuse the situation, that he did not assault her; and that Smartt’s
testimony “should be discredited completely due to her inconsistencies under oath.” He also
contends that there was no credible testimony that he was the shooter.
The proof at trial revealed that the appellant was in possession of a handgun and that
he repeatedly fired the gun at a house inhabited by several people. Although Davorius
testified that initially he was not afraid because he thought the appellant was “just playing,”as
-13-
the evening progressed, he became fearful when the appellant “pulled out that gun and asked
where the money.” Owens testified that she felt threatened when appellant lifted his shirt to
show he had a gun in his pocket, explaining that she feared the appellant would fire the gun.
Smartt said that when she saw the appellant approach the house with his gun drawn, she
shouted a warning, and she and the others headed for the back of the house. She explained,
“I’m not going to stand there and get my head blowed off and I know he got a pistol in his
hand and I know what he fixing to do, too, with it, automatically.” Davorius, Owens, and
Smartt all testified that they were afraid for their lives when the shooting started. The jury,
as was its prerogative, accredited the testimony of the State’s witnesses. See State v.
Millsaps, 30 S.W.3d 364, 368 (Tenn. Crim. App. 2000) (stating that “the weight and
credibility of the witnesses’ testimony are matters entrusted exclusively to the jury as the
trier[ ] of fact”). We conclude that the evidence is sufficient to support the appellant’s
convictions.
C. Sentencing
Finally, the appellant challenges the length, manner of service, and consecutive nature
of the sentences imposed by the trial court.
At the sentencing hearing, Brian Johnson, an officer with the State Board of Probation
and Parole, testified that he prepared the twenty-three-year-old appellant’s presentence
report, which the State introduced as an exhibit. Since 2005, the appellant had been
convicted in Tennessee of multiple misdemeanor offenses, including possession of a weapon,
assault, driving on a revoked license, resisting arrest, false imprisonment, domestic violence,
and misdemeanor theft. The appellant had received probationary sentences for the
misdemeanor theft, domestic violence, and false imprisonment convictions, which were
revoked. Additionally, the appellant was on probation for the assault conviction at the time
the instant offenses were committed. Officer Johnson stated that on October 19, 2009, the
appellant received a federal conviction for possession of a weapon after being convicted of
domestic violence, which resulted in a thirty-six-month federal sentence.
On cross-examination, Officer Johnson stated that none of the victims submitted a
victim impact statement.
The appellant’s mother, Deborah Cross Bone, testified that if the appellant were
released on probation, he could live with her. She stated that the appellant had obtained his
high school diploma and that he was enrolled in a “[r]efrigeration, air conditioning” program
at Chattanooga State. The appellant had done well in the program, had attended classes for
one year, and could have obtained a certificate or a license after attending three or four more
months of classes. Bone stated that the appellant had one child, whom he visited every
weekend, and that he paid child support. She also stated that the appellant was a hard worker
-14-
and was employed by her brother’s lawn care service.
On cross-examination, Bone said that the appellant had worked for her brother “off
and on” since he was seventeen years old. The appellant had also worked at Taco Bell and
Ruby Falls. The appellant moved out of her home when he was twenty years old.
The trial court noted that the appellant had been convicted of three counts of reckless
endangerment, a Class A misdemeanor; three counts of aggravated assault, a Class C felony;
and reckless endangerment, a Class E felony. See Tenn. Code Ann. §§ 39-13-102(e)(1), 39-
13-103(b). Because the appellant was a Range I, standard offender, he was subject to a
sentence of eleven months and twenty-nine days for each Class A misdemeanor conviction,
a sentence of three to six years for each Class C felony conviction, and a sentence of one to
two years for the Class E felony conviction. See Tenn. Code Ann. §§ 40-35-111(e)(1), 40-
35-112(a)(3) and (5). The trial court merged the appellant’s misdemeanor reckless
endangerment convictions into the aggravated assault convictions.
To each of the convictions, the trial court applied enhancement factor (1), that the
appellant had a previous history of criminal convictions or criminal behavior in addition to
those necessary to establish the appropriate range; enhancement factor (8), that the appellant,
before trial or sentencing, failed to comply with the conditions of a sentence involving
release into the community; and enhancement factor (13)(C), that the appellant was on
probation at the time of the commission of the felony offenses. See Tenn. Code Ann. § 40-
35-114(1), (8), and (13)(C). To the felony reckless endangerment conviction, the court
applied enhancement factor (10), that the appellant had no hesitation about committing a
crime when the risk to human life was high. Id. at (10). The court applied no mitigating
factors. The trial court imposed concurrent sentences of six years for each aggravated assault
conviction and two years for the felony reckless endangerment conviction, for an effective
sentence of six years.
The court found that the appellant’s potential for rehabilitation was poor, noting that
he had previously been given probation, which was unsuccessful. The court noted that the
appellant was eligible for an alternative sentence and that he was considered to be a favorable
candidate for alternative sentencing. However, the court found that the appellant was not
suitable for an alternative sentence based upon his long history of criminal conduct, the
seriousness of the offenses, and the appellant’s unsuccessful attempts at serving an
alternative sentence. See Tenn. Code Ann. §40-35-103(1).
Additionally, the court found that the sentences imposed in the instant case should be
served consecutively to the previously imposed federal sentence.
On appeal, the appellant asserts that the trial court erred in determining the length of
-15-
his sentences for the aggravated assault convictions,2 denying alternative sentencing, and
ordering the sentences be served consecutively to a federal sentence.
Previously, appellate review of the length, range, or manner of service of a sentence
was de novo with a presumption of correctness. See Tenn. Code Ann. § 40-35-401(d).
However, our supreme court recently announced that “sentences imposed by the trial court
within the appropriate statutory range are to be reviewed under an abuse of discretion
standard with a ‘presumption of reasonableness.’” State v. Bise, 380 S.W.3d 682, 708 (Tenn.
2012). Our supreme court has further explicitly stated that “the abuse of discretion standard,
accompanied by a presumption of reasonableness, applies to within-range sentences that
reflect a decision based upon the purposes and principles of sentencing, including the
questions related to probation or any other alternative sentence.” State v. Caudle, 388
S.W.3d 273, 278-79 (Tenn. 2012). In conducting its review, this court considers the
following factors: (1) the evidence, if any, received at the trial and the sentencing hearing;
(2) the presentence report; (3) the principles of sentencing and arguments as to sentencing
alternatives; (4) the nature and characteristics of the criminal conduct involved; (5) evidence
and information offered by the parties on enhancement and mitigating factors; (6) any
statistical information provided by the administrative office of the courts as to sentencing
practices for similar offenses in Tennessee; (7) any statement by the appellant in his own
behalf; and (8) the potential for rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-
102, -103, -210; see also Bise, 380 S.W.3d at 697-98. The burden is on the appellant to
demonstrate the impropriety of his sentence. See Tenn. Code Ann. § 40-35-401, Sentencing
Comm’n Cmts.
1. Length of Sentence
In determining a specific sentence within a range of punishment, the trial court should
consider, but is not bound by, the following advisory guidelines:
(1) The minimum sentence within the range of punishment is the
sentence that should be imposed, because the general assembly
set the minimum length of sentence for each felony class to
reflect the relative seriousness of each criminal offense in the
felony classifications; and
(2) The sentence length within the range should be adjusted, as
appropriate, by the presence or absence of mitigating and
enhancement factors set out in §§ 40-35-113 and 40-35-114.
2
The appellant makes no argument concerning his sentence for the felony reckless endangerment
conviction.
-16-
Tenn. Code Ann. § 40-35-210(c).
Although the trial court should consider enhancement and mitigating factors, the
statutory enhancement factors are advisory only. See Tenn. Code Ann. § 40-35-114; see also
Bise, 380 S.W.3d at 701; State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008). Our supreme
court has stated that “a trial court’s weighing of various mitigating and enhancement factors
[is] left to the trial court’s sound discretion.” Carter, 254 S.W.3d at 345. In other words,
“the trial court is free to select any sentence within the applicable range so long as the length
of the sentence is ‘consistent with the purposes and principles of [the Sentencing Act].’” Id.
at 343. “[A]ppellate courts are therefore left with a narrower set of circumstances in which
they might find that a trial court has abused its discretion in setting the length of a
defendant’s sentence.” Id. at 345-46. “[They are] bound by a trial court’s decision as to the
length of the sentence imposed so long as it is imposed in a manner consistent with the
purposes and principles set out in sections -102 and -103 of the Sentencing Act.” Id. at 346.
The appellant argues that the trial court erred in imposing the maximum sentence for
his aggravated assault convictions because he had no prior felony convictions and that the
court failed to properly consider several sentencing considerations and mitigating factors. We
disagree.
The record establishes that the trial court thoroughly considered the principles of
sentencing, the testimony and exhibits offered at the sentencing hearing, the circumstances
of the offenses, and the arguments presented by counsel. The court clearly considered the
issue of mitigating factors and found none applicable. Moreover, the trial court clearly set
forth its application of specific enhancement factors and the reasoning behind application of
each. The trial court properly applied enhancement factor (1) because the appellant had ten
prior misdemeanor convictions and one prior felony conviction. See Tenn. Code. Ann. § 40-
35-114(1). The trial court properly applied enhancement factor (8) because the record
reflects that at least two of the appellant’s prior probationary sentences had been revoked and
he was on probation for assault when the instant offenses were committed. See Tenn. Code
Ann. § 40-35-114(8). We conclude that the trial court did not abuse its discretion by
imposing a sentence of six years for each aggravated assault conviction.
2. Alternative Sentencing
The appellant summarily contends that the trial court “had the discretion to impose
a suspended sentence of probation, opposed to a sentence to serve. Based on the sentencing
guidelines and the evidence presented at the trial, the [trial court] should have imposed a
probated sentence, or at the very least a shorter sentence within the guidelines.” Generally,
“[i]ssues which are not supported by argument, citation to authorities, or appropriate
references to the record will be treated as waived in this court.” Tenn. Ct. Crim. App. R.
-17-
10(b); see also Tenn. R. App. P. 27(a)(7). Based upon the appellant’s failure to support the
issue with argument, cite to the record, and cite to authority, we conclude that he has waived
this issue.
3. Consecutive Sentencing
The appellant also contends that the trial court erred by ordering that his sentences be
served consecutively to a prior federal sentence pursuant to Rule 32 of the Tennessee Rules
of Criminal Procedure. He acknowledges that the federal sentencing was imposed prior to
the trial in this case, but he contends that it was not a “prior unserved sentence as
contemplated by Rule 32”and that, therefore, consecutive sentencing was not mandated.
Generally, “[w]hether sentences are to be served concurrently or consecutively is a
matter addressed to the sound discretion of the trial court.” State v. Adams, 973 S.W.2d 224,
230-31 (Tenn. Crim. App. 1997). In the instant case, the trial court imposed consecutive
sentencing based on Rule 32(c)(2)(B) of Tennessee Rules of Criminal Procedure, which
provides:
If, as the result of conviction in another state or in federal
court, the defendant has an additional sentence or portion
thereof to serve, the court shall impose a sentence that is
consecutive to any such unserved sentence unless the court
determines in the exercise of its discretion that good cause exists
to run the sentences concurrently and explicitly so orders.
The appellant’s argument focuses wholly on the fact that the federal sentence was not
imposed prior to his being charged in state court with the instant offenses. However, the rule
does not mandate that the other state or federal sentence arise prior to the charges in the
current case, only that the federal sentence be imposed prior to the Tennessee sentence. Cf.
State v. Arnold, 824 S.W.2d 176 (Tenn. Crim. App. 1991) (stating that the last sentencing
court has the responsibility of determining whether a sentence should be served
consecutively). At the time the appellant was sentenced in this case, he was serving an
outstanding federal sentence. Accordingly, Rule 32 mandated that the trial court order the
state sentence to be served consecutively to the federal sentence unless there was “good
cause” to run the sentences concurrently. The court explicitly found no “good cause” for
concurrent sentencing, stating that the appellant “had a weapon two days before this event
occurred[, which was the fact underlying his federal conviction,] and for all of the
circumstances of this event, I don’t find that there [is] any good cause and . . . [therefore, the
sentence] is a mandatory term.” We discern no error by the trial court’s imposition of
consecutive sentencing.
-18-
III. Conclusion
In sum, we conclude that the trial court did not err by allowing Deputy Park to testify,
that there was sufficient evidence to support his aggravated assault convictions, and that the
trial court did not err in sentencing. Accordingly, the judgments of the trial court are
affirmed.
_________________________________
NORMA McGEE OGLE, JUDGE
-19-