State of Tennessee v. Anthony Phillip Geanes - Concurring

• Court: Court of Criminal Appeals of Tennessee
• Decided: November 24, 2008
• Docket: W2007-02223-CCA-R3-CD
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON July 1, 2008 Session

STATE OF TENNESSEE v. ANTHONY PHILLIP GEANES

Direct Appeal from the Circuit Court for Hardeman County No. 06-01-0215 J. Weber McCraw, Judge

No. W2007-02223-CCA-R3-CD - Filed November 24, 2008

JOHN EVERETT WILLIAMS, J., separate concurring opinion.

I write separately to set out unique factors used in my analysis concluding insufficient evidence exists upon this record to support the defendant’s conviction of reckless endangerment. A notion widely held is that whenever people are arguing, participating in fisticuffs, or engaged in fights involving knives, bats, or chairs, the discharging of a firearm into the air has the immediate effect of alerting all participants that a higher and more powerful authority has been introduced into the situation and, therefore, the holder of the firearm is deserving of respect and attention. I feel this notion is misguided and outdated, and although I have found for this defendant, I do not wish to suggest that firing a weapon into the air is not reckless or is safe. Common sense tells us that what goes up must come down. I simply do not know where or with what force the bullet returns.

What this case reveals is two witnesses testified that the defendant fired a gun into the air. One witness opined it was a warning shot to try and stop the “commotion” that was going on. The State had the burden of proving beyond a reasonable doubt that the defendant’s firing of a .9 mm pistol into the air in a “highly populated” area placed another in imminent danger of death or serious bodily injury. However, on the record, I simply do not know whether the bullet, when falling to the earth, would have any potential for causing death or serious bodily injury. I do not know the probability that a projectile the size of a pencil eraser would hit anyone. I do not know with any degree of confidence whether the bullet fired would be expected to land back to earth within a few yards of the shooter or as far away as half a mile. Because the State has not offered any proof as to the reasonable probability of danger, as opposed to the mere possibility of danger, I conclude there is insufficient evidence.

___________________________________ JOHN EVERETT WILLIAMS, JUDGE