State of Tennessee v. Rikealyn L. Fain ( 2022 )

08/25/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs August 23, 2022
STATE OF TENNESSEE v. RIKEALYN L. FAIN
Appeal from the Criminal Court for Knox County
No. 118361 G. Scott Green, Judge
No. E2022-00026-CCA-R3-CD
The Defendant, Rikealyn L. Fain, was convicted by a Knox County Criminal Court jury of
attempted second degree murder, a Class B felony, and employing a firearm during the
commission of a dangerous felony, a Class C felony, for which he is serving an effective
sixteen-year sentence. See T.C.A. §§ 39-13-210 (2018) (second degree murder), 39-12-
101 (2018) (criminal attempt), 39-17-1324(b)(1) (employing a firearm during the
commission of a dangerous felony) (Supp. 2020) (subsequently amended). On appeal, the
Defendant contends that the evidence is insufficient to support his convictions. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and CAMILLE R. MCMULLEN, JJ., joined.
J. Liddell Kirk (on appeal), and Michael Graves (at trial), Knoxville, Tennessee, for the
Appellant, Rikealyn L. Fain.
Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Senior
Assistant Attorney General; Charme P. Allen, District Attorney General; Ta Kisha
Fitzgerald, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
The Defendant’s convictions relate to the November 9, 2020 shooting of Marquis
Ellis. In the months before the shooting, the Defendant and the victim had a disagreement
about the victim’s having posted a photograph on social media which depicted the
Defendant’s cousin lying in a casket after the cousin was killed in a car wreck.
At the trial, the victim testified that the Defendant had approached him at school in
February 2020 and had wanted to fight. The victim declined to fight at school. About a
month later, the victim and a friend saw the Defendant and the Defendant’s brother or
friend at a store. The Defendant wanted to fight the victim’s friend, and the two had a
fistfight. The victim and the person with the Defendant also had a fistfight. No one was
injured in the brief fights.
The Defendant testified that before the fistfighting incident, he had asked the victim
to delete the photograph of the Defendant’s cousin which the victim had posted on social
media and that the victim declined. The Defendant said that other individuals had asked
the victim to delete the photograph and had yelled and cursed at the victim, but that the
victim had stated he had been friends with the deceased cousin and would not delete the
photograph. The Defendant said that “someone” called him “the B word” on the day of
the fistfight and that he had punched the victim’s friend in response before they engaged
in a mutual fight.
Both the victim and the Defendant thought the disagreement was settled after the
fight. They had no other interaction until November 9, 2020, at which time they
encountered one another in a neighborhood. The Defendant was waiting outside for his
uncle to come home, and the victim and a juvenile, D.M., were outside talking to others.
The Defendant stated he overheard the victim say he was going to leave because the “ops”
were there, referring to someone who stood in opposition to him. The Defendant said he
realized the victim had been referring to him as an “op.” According to the victim and D.M.,
the Defendant said something to the victim as the Defendant passed, and the Defendant
and the victim turned to face each other. The victim said that he told the Defendant that
they were not “cool” due to their past, that the victim and D.M. were not going to talk to
the Defendant, and that the victim had heard the Defendant was a “snitch.” The victim
testified that after these words were exchanged, the Defendant pulled a handgun from his
hoodie pocket and showed it to them. The victim said the Defendant stated, “[O]h, that’s
how it is,” as the Defendant produced the gun from the pocket of his hoodie. The victim
said that he offered to fight the Defendant after the Defendant flashed the gun and that he
told the Defendant, “[I]t don’t got to go to gunfire.” The victim said the Defendant stated,
“F that,” took out the gun, and shot the victim in the stomach.
Regarding the events leading up to the shooting, D.M. said the Defendant clutched
something in his pocket and said, “[D]o you want to play with me?” D.M. stated that the
victim had said he did not want anything to do with what the Defendant had “going on”
and that the Defendant pulled out the gun and shot the victim before running away. D.M.
said he had seen the Defendant’s hand on the gun in the Defendant’s pocket as the
Defendant spoke but that the Defendant only took out the gun one time.
The Defendant acknowledged that he had flashed a gun at the victim and D.M. The
Defendant said he had pointed it at the ground. The Defendant stated that he did not
produce the gun until after the victim had said they could fight and that he had not produced
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and fired the gun until the victim twice stated they could fight and after the victim and
D.M. stepped toward him with their fists clenched at their sides. The Defendant said he
had thought the victim and D.M. were going to attack him. The Defendant explained that
he had leukemia, had been weak from chemotherapy, and a fight might prove fatal if he
were struck in the chest, where he had a metal plate with a tube implanted for his
chemotherapy treatments. The Defendant acknowledged shooting the victim in the
stomach but said he had meant to shoot at the victim’s feet. The Defendant said that he
had been strong enough to fight in the prior incident at the market because he had been
taking steroids at the time but that he was no longer taking steroids and was not strong
enough to fight on November 9, 2020.
The victim denied that he and D.M. had walked toward the Defendant immediately
before the shooting. The victim said that he had known the Defendant had leukemia and
was undergoing chemotherapy but that the Defendant had not said he had brittle bones and
was too weak to fight on November 9.
The victim suffered a gunshot wound to the upper abdomen, underwent surgery, and
was hospitalized for a week. He was in a wheelchair for three weeks to one month. An
emergency room nurse testified that the victim could have died from blood loss if he had
not been treated and that he had been taken to surgery within five minutes.
An expert in forensic firearm and toolmark examination testified that a gun
recovered when the Defendant was taken into custody had a heavy, inconsistent trigger
pull and that the heavy trigger pull precluded the possibility of accidental firing.
After receiving the evidence, the jury acquitted the Defendant of attempted first
degree murder and convicted him of the lesser-included offense of attempted second degree
murder. The jury also found the Defendant guilty of employing a firearm during the
commission of a dangerous felony. At a sentencing hearing, the trial court imposed
consecutive sentences of ten years for the attempted second degree murder conviction and
six years for the firearm conviction. This appeal followed.
The Defendant contends that the evidence is insufficient to support his convictions.
He argues that the evidence does not support a finding that he knowingly attempted to kill
the victim and that, instead, the evidence shows that he acted to escape from an imminent
assault by the victim and D.M. The State counters that the evidence is sufficient to show
that the Defendant did not act in self-defense when he shot the victim. We conclude that
the evidence is sufficient to support the convictions.
In determining the sufficiency of the evidence, the standard of review 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.”
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Jackson v. Virginia, 443 U.S. 307, 319 (1979); see State v. Vasques, 221 S.W.3d 514, 521
(Tenn. 2007). The State is “afforded the strongest legitimate view of the evidence and all
reasonable inferences” from that evidence. Vasques, 221 S.W.3d at 521. The appellate
courts do not “reweigh or reevaluate the evidence,” and questions regarding “the credibility
of witnesses [and] the weight and value to be given the evidence . . . are resolved by the
trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); see State v. Sheffield, 676
S.W.2d 542, 547 (Tenn. 1984).
“A crime may be established by direct evidence, circumstantial evidence, or a
combination of the two.” State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998); see State v.
Sutton, 166 S.W.3d 686, 691 (Tenn. 2005). “The 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)).
A. Attempted Second Degree Murder
A defendant commits criminal attempt when he acts “with the kind of culpability
otherwise required for the offense . . . [and] [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[.]” T.C.A. § 39-12-101(a)(2). Second degree murder is
defined as a knowing killing of another. Id. § 39-13-210(a)(1). Second degree murder is
a result-of-conduct offense. State v. Page, 81 S.W.3d 781, 787 (Tenn. Crim. App. 2002).
Therefore, a person acts knowingly “when the person is aware that the conduct is
reasonably certain to cause the result.” T.C.A. § 39-11-302(b) (2018). “[T]he ‘nature of
the conduct’ that causes death is inconsequential.” Page, 81 S.W.3d at 787. Intent is
shown if the defendant acts with an awareness that his conduct is reasonably certain to
cause the victim’s death. See id. at 790-93.
At the time of the offense, the self-defense statute provided:
(b)(1) Notwithstanding § 39-17-1322 [relative to the use of a handgun in
self-defense or defense of another], a person who is not engaged in unlawful
activity and is in a place where the person has a right to be has no duty to
retreat before 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.
(2) Notwithstanding § 39-17-1322, a person who is not engaged in unlawful
activity and is in a place where the person has a right to be has no duty to
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retreat before threatening or using force intended or likely to cause death or
serious bodily injury, if:
(A) The person has a reasonable belief that there is an imminent
danger of death or serious bodily injury;
(B) The danger creating the belief of imminent death or serious
bodily injury is real, or honestly believed to be real at the time; and
(C) The belief of danger is founded upon reasonable grounds.
T.C.A. § 39-11-611(b)(1), (2)(A)-(C) (Supp. 2020) (subsequently amended). Once a
defendant has raised sufficient facts to support a finding he acted in defense of self, “The
state has the burden of proof to negate the defense; the burden is not upon the defendant to
prove the defense exists.” State v. Belser, 945 S.W.2d 776, 782 (Tenn. Crim. App. 1996)
(citing T.C.A. § 39-11-201(a)(3)).
Viewed in the light most favorable to the State, the evidence shows that words were
exchanged between the victim and the Defendant, that the Defendant flashed a gun, and
that the victim tried to deescalate the situation by offering to fight the Defendant, stating
“[I]t don’t got to go to gunfire.” The Defendant responded by stating, “F that,” taking out
the gun a second time, and shooting the victim. The Defendant admitted he shot the victim,
though claiming he meant to fire at the victim’s feet. The victim denied that he and D.M.
had been advancing on the Defendant when the Defendant took out the gun the second
time. The evidence showed that the handgun the Defendant used required heavy trigger
pull, which eliminated the possibility of accidental firing. The Defendant testified that he
was in a fragile medical condition due to his leukemia and chemotherapy treatment and
that he feared the victim and D.M. were going to assault or kill him. The victim and D.M.
testified that the Defendant was the aggressor, thereby negating the Defendant’s self-
defense claim. The jury assessed the Defendant’s credibility regarding the self-defense
claim and found, by its verdict, that the Defendant had not acted in self-defense.
From the evidence, a rational jury could conclude beyond a reasonable doubt that
the Defendant was aware that his conduct – shooting the handgun at the victim – was
reasonably certain to cause a result – the victim’s death. Fortuitously, the victim received
life-saving medical care for what would have otherwise been a fatal injury. The evidence
is sufficient to support the attempted second degree murder conviction.
B. Firearm Offense
The Defendant argues that the evidence is insufficient to support his convictions,
but he has not specifically addressed the conviction for employing a firearm in the
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commission of a dangerous felony. The State argues that the evidence is sufficient to
support the firearm offense conviction.
As relevant here, “It is an offense to employ a firearm . . . during the . . .
[c]ommission of a dangerous felony[.]” T.C.A. § 39-17-1324(b)(1). Attempted second
degree murder is a “dangerous felony.” Id. at (i)(1)(B).
Viewed in the light most favorable to the State, the evidence shows that the
Defendant used a firearm in the commission of a dangerous felony, attempted second
degree murder. The evidence is sufficient to support the conviction.
In consideration of the foregoing and the record as a whole, the judgments of the
trial court are affirmed.
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ROBERT H. MONTGOMERY, JR., JUDGE
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