State v. Joseph McDaniel

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
AUGUST SESSION, 1998 FILED
October 26, 1998
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9801-CC-00016
) Cecil Crowson, Jr.
Appellee, ) Appellate C ourt Clerk
)
) DECATUR COUNTY
VS. )
) HON. JULIAN P. GUINN
JOS EPH LEE M CDAN IEL, JR .) JUDGE
)
Appe llant. ) (Direct Ap peal)
FOR THE APPELLANT: FOR THE APPELLEE:
JOSEPH LEE MCDANIEL, JR. JOHN KNOX WALKUP
Pro Se Attorney General and Reporter
Harde man C ounty C orr. Facility
P. O. Box 549 GEORGIA BLYTHE FELNER
Wh iteville, TN 3 8075 Assistant Attorney General
425 Fifth Avenu e North
Nashville, TN 37243-0493
ROBERT RADFORD
District Attorney General
JERRY WALLACE
Assistant District Attorney
Decaturville, TN 38329
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE
OPINION
The Appellant, Joseph Lee McDaniel, Jr., was convicted by a Decatur
County jury of one count of reckless endangerment, a Class E felony. The trial
court sentenced him as a Range I offender to two (2) years incarceration. On
appe al, Appellant cha llenges the sufficienc y of the convicting evidence and
argues that his sentence is excessive. After a review of the record befo re this
Court, w e find no e rror and a ffirm the trial co urt’s judgm ent.
FACTS
At appro ximate ly 10:00 p.m. on September 7, 1993, Owen Jimmy Keefus
was traveling ea stboun d on Inter state 40, s everal m iles west o f Exit 126 in
Decatur County. Keefus was driving his tractor trailer in the right lane of I-40
East when a red pick-up truck passed him on the right shoulder traveling at
appro ximate ly 75 to 80 miles per hour. When the truck pulled in front of him,
Keefus noted that the license plate number on the truck read “YKK-200.” The
truck then passed a U-Haul which was traveling in front of Keefus and proceeded
eastbound in the right lane. Keefus also passed the U-Haul, and when he pulled
alongside the pick-up in the left lane, he saw the driver’s arm extended out of the
window, saw “a flash” and then heard something hitting his truck. Although he
did not hear gunshots, Keefus saw that the driver was holding a small firearm.
During the inc ident, h e was able to fully observe the person in the pick-up truck
and ide ntified him at trial as the A ppellant.
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After the altercation, Keefus pulled his vehicle to the side of the road and
radioed for ass istanc e. He o bserv ed m arks o n his vehicle resembling bullet
holes w hich had not bee n prese nt prior to this in cident.
Shor tly thereafter, Tennessee Highway Patrolman James Blackmon
arrived at the scene. Keefus gave him the vehicle’s license plate number and a
description of the vehicle and the driver. Upon his inquiry as to the license plate
numbe r, Trooper Blackmon learned that the pick-up was registered to the
Appe llant. Blackmon later spoke with Appellant, who conceded that Keefus’
description of the driver a nd pick-u p was a “pretty close” desc ription o f him and
his vehicle .
Appellant was subsequently indicted on one (1) count of aggravated
assa ult with a dea dly weap on. At trial, Troopers Blackmon and Roy Kent
Yoquelet testified that the marking s on the victim’s veh icle appeared to have
been caused b y gunfire. Further, Tro oper Yoquelet stated that he saw a bullet
lodged in the radia tor of Kee fus’ vehicle .
Appellant presen ted an a libi defense at trial through the testimony of
Patric ia Crum . Crum , a Mississ ippi reside nt and b usiness associa te of Appe llant,
testified that she was with the Appellant on September 7, 1993. She and
Appellant had a busin ess m eeting in Mem phis a t appro ximate ly 2:00 p.m ., and
Appellant later joined her and her husband for dinner in Mem phis. Crum testified
that after dinner, Appellant followed her and her husband to their hom e in
Mississip pi and did not leave until after 1:00 a.m. on Septem ber 8.
Appellant also prese nted th e testim ony of S teven Russ ell, an investigator
with the Tennessee Department of Safety. Russell stated that no bullets or bullet
fragments were recovered from the victim’s vehicle. However, even though no
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ballistics exper t exam ined th e victim ’s vehic le, Rus sell test ified tha t, in his
opinion, a bullet proje ctile cause d the da mage to Keefu s’ truck.
At the conc lusion of th e proof, the jury returned a guilty verdict for the
lesser offense of felony reckless endan germe nt. A date fo r senten cing wa s set,
but Appellant failed to appe ar. He was e ventu ally app rehen ded in Arkan sas in
April 1997. The trial court thereafter sentenced him as a Range I offender to two
(2) years incarceration. From his con viction a nd se ntenc e, App ellant b rings th is
appe al.
SUFFICIENCY OF THE EVIDENCE
In his first issue, Appellant contends that the evidence is insufficient for a
reaso nable trier of fact to conclude that he is guilty beyond a reason able do ubt. 1
He argues that the victim’s testimony is contradictory in several respects, and
therefore, this Court should disregard his testimony in its entirety. He further
claims that because the state failed to presen t a weapon , a bullet or expert
ballistics testimony at trial, the jury was allowed to speculate as to whether the
crime was committed with a deadly weapon.
A.
When an accused challenges the sufficiency of the evidence, this Court
must review the record to determine if the evidence adduced during the trial was
sufficient “to support the findings by the trier o f fact of g uilt beyo nd a re ason able
doubt.” Tenn. R. App. P. 13(e). This ru le is app licable to findin gs of g uilt
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Appellant concedes that no motion for new trial was filed “within thirty (30) days of the date the
orde r of se nten ce is e ntere d” as ma nda ted b y Ten n. R. C rim . P. 33 (b). T hus , all issu es w hich ma y resu lt
in the gran ting of a ne w trial are wa ived. Ten n. R. App . P. 3(e); State v. Sowder, 826 S.W.2d 924, 926
(Tenn. Crim. App . 1991). Wh ile Appellant correctly notes that this Court may review the record for errors
which af fect the s ubstan tial rights of the accus ed, see State v. Ma rtin, 940 S.W .2d 567, 569 (Tenn. 1997 ),
no such error is apparent from our review of the record.
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predicated upon direct evidence, circumstantial evidence or a combination of
direct and circu mstan tial evidenc e. State v. Brewer, 932 S.W .2d 1, 19 (T enn.
Crim. App . 1996).
In determining the sufficiency of the evide nce, this Cou rt does not reweigh
or reevalua te the evide nce. State v. Cabbage, 571 S.W .2d 832, 835 (Tenn.
1978). Nor may this Court substitute its inferences for those drawn by the trier
of fact from circumstantial evid ence. Liakas v. S tate, 286 S.W.2d 856, 859
(Tenn. 1956). To the contrary, this Court is required to afford the state the
strongest legitimate view of the e videnc e con tained in the re cord a s well a s all
reason able and legitimate inferences which may be drawn from the evidence.
State v. Tuttle , 914 S.W .2d 926, 932 (Tenn. Crim . App. 1995 ).
Questions conce rning the credibility of the witnesses, the weight and value
to be given the evidence as well as all factual issues raised b y the evidence a re
resolved by the trier of fact, not th is Court. Id. Indeed, “[a] guilty verdict by the
jury, approved by the trial judge, accredits the testimony of the witnesses for the
State and resolves all conflicts in favor of the the ory of the State.” State v. Grace,
493 S.W .2d 474, 476 (Tenn. 197 3).
Because a verdict of guilt removes the presumption of innocence and
replaces it with a presumption of guilt, the accused has the burden in this C ourt
of illustrating why the eviden ce is insufficient to support the verdict returned by
the trier of fac t. State v. Tug gle, 639 S.W .2d 913, 914 (Tenn. 198 2).
B.
Appellant claims th at severa l aspects of Keefus’ testimony w ere
inconsis tent; therefo re, his testim ony sh ould be disreg arded in its entirety. First,
he comp lains that K eefus’ tes timony c oncern ing the tim e of the incid ent was
contradictory. During h is direct testimony, Keefus stated that the altercation
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occurred between 10:00 and 10:30 p.m. However, on cross examination, he was
confronted with a report to his em ployer whereb y he related the time of the
incident as 9:00 p.m. Although Keefus initially denied making the statement, he
event ually conc eded that he gave h is employer the wrong time. Keefus testified
that at the time he reported to his employer he was possibly confused as a resu lt
of the stress of having a weapon fired at him. Furthermore, Keefus’ testimony
concerning the time of the incident was corroborated by the testimony of
Troopers Black mon and Y oque let, who testified that the incide nt occ urred shortly
after 10:0 0 p.m.
Appellant also claims that oth er portions of Ke efus’ testimony w ere
conflicting. Howeve r, any trivial inconsistencies we re resolved by the trier of fa ct.
This issu e is withou t merit.
C.
Appellant also contends that becau se the sta te did not p resent a weapon,
a bullet or expert ballistics testimony at trial, the jury w as allowe d to spec ulate
whether the crime was committed with a deadly weapon.
Reckless endangerment is defined as “reckle ssly engag[ing] in conduct
which places or may place another person in imminent danger of death or serious
bodily injury.” Tenn. Code Ann. 39-13-103(a) (1991). Reckless endangerment
that is committed with a deadly weapon is a Class E felony. Tenn. Code Ann. 39-
13-103(b) (19 91).
Keefus testified that when he pulled alongside the Appellant, he saw the
Appellant pointin g a sm all firearm at him, sa w “a flash” and then heard something
hitting his truc k. Altho ugh h e did n ot hea r guns hots, K eefus exam ined h is vehic le
and observed marks which resem bled bullet holes. Add itionally, Troopers
Blackmon and Yoquelet testified at trial that the markings on the victim ’s vehic le
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appeared to have been caused by gunfire, and Trooper Yoquelet saw a bullet
lodged in the radia tor of Kee fus’ vehicle . Furthermore , Investigato r Russe ll, a
defense witness, opined that the dam age to the victim ’s vehic le was caused by
a bullet pro jectile.
In light of the foregoing, we conclude that a rational juror could conclude
that the crim e was com mitted with a d eadly weapo n. Certainly, firing a weapon
at a vehicle while traveling at high speeds on a public roadway constitutes
“conduct which places or may place another person in imminent danger of death
or serious bodily injury.” Ten n. Code A nn. 39-13-10 3(a) (1991). Moreover, there
is overwhelming evidence that Appellant was the perpetrator of the crime. The
victim identified Appellant at trial, and the license plate “YKK-200" was registered
in Appe llant’s nam e.
The evidence is m ore than sufficient to su pport Appe llant’s conviction for
felony rec kless en dange rment.
SENTENCING
In his next issue, Appellant asserts that the trial court imposed an
excessive sentence of two (2) years for felony reckless end angerm ent. Howeve r,
Appellant failed to include the transcript of the sentencing hearing in the record
for this Court’s review. It is the duty of the Appella nt to prep are an a dequa te
record for app ellate review. Tenn. R. App. P. 24(b). “When a party seeks
appellate review there is a du ty to prepare a record which conveys a fair,
accura te and co mplete accou nt of wha t transpired with respect to the issues
forming the ba sis of the appea l.” State v. Ballard, 855 S.W.2d 557, 560 (Tenn.
1993). In the absence of an adequate record on appeal, this Court must
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presume that the trial court's rulings are sup ported b y sufficient ev idence . State
v. Oody, 823 S.W .2d 554, 559 (Tenn. Crim . App. 1991 ).
Because Appella nt failed to submit the sentencing hearing transcript in the
record, we must presume that the trial court senten ced him correctly. See State
v. Carey, 914 S.W .2d 93, 97 (Tenn . Crim. A pp. 199 5); State v. Ivy, 868 S.W.2d
724, 72 8 (Ten n. Crim. A pp. 199 3). This iss ue is witho ut merit.
CONCLUSION
W e conclude that the eviden ce is sufficient for a rational trier of fact to find
Appellant guilty of felony reckless endan germe nt beyon d a reas onable doubt.
Moreover, Appellant’s failure to submit the sentencing hearing transcript re sults
in a waiver of his sentencing issue. Accordingly, we affirm the judgment of the
trial court.
____________________________________
JERRY L. SMITH, JUDGE
CONCUR:
___________________________________
DAVID H. WELLES, JUDGE
___________________________________
JOHN K. BYERS, SENIOR JUDGE
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