IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED APRIL 1998 SESSION March 12, 1999
Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE ) ) NO. 02C01-9709-CR-00368 Appellee, ) ) SHELBY COUNTY v. ) ) Hon. Joseph B. Dailey, Judge GARY CARR ) ) (Attempted Murder) Appellant. ) (Attempted Robbery) )
For the Appellant: For the Appellee:
Walker Gwinn John Knox Walkup Assistant Public Defender Attorney General & Reporter 201 Poplar Avenue Memphis, TN. 38103 Douglas D. Himes (on appeal) Assistant Attorney General 425 Fifth Avenue North Ronald S. Johnson Nashville, TN. 37243 Assistant Public Defender 201 Poplar Avenue, 2nd Floor William L. Gibbons Memphis, TN. 38103 District Attorney General (at trial) David C. Henry Assistant District Attorney 201 Poplar Avenue, 3rd Floor Memphis, TN. 38103
OPINION:________________________
AFFIRMED IN PART; REVERSED IN PART
WILLIAM M. BARKER, SPECIAL JUDGE OPINION
The appellant, Gary Carr, appeals as of right from the convictions he received
in the Criminal Court of Shelby County. After a jury trial, the appellant was convicted
of attempted first degree murder and attempted especially aggravated robbery. 1 The
trial court sentenced him as a Range I standard offender to twenty four (24) years for
the attempted murder and to twenty two (22) years for the attempted robbery. The
sentences were ordered to run concurrently to each other for a total effective sentence
of twenty four (24) years.
On appeal, the appellant contends that the dual convictions were based upon
the same criminal episode in violation of the principles of double jeopardy. He also
challenges the sufficiency of the convicting evidence, specifically claiming that the
evidence of identity was insufficient to prove that he was the shooter.
After a careful review of the record, we conclude that the appellant is entitled to
partial relief on evidentiary grounds different from those argued on appeal. The
evidence was insufficient as a matter of law to sustain the conviction of attempted
especially aggravated robbery. We, therefore, reverse that conviction and affirm the
remaining conviction of attempted first degree murder and the sentence of twenty four
(24) years.
BACKGROUND
On November 16, 1995, a man, later identified as the appellant, entered a
Parkway Food Mart in Shelby County. The appellant approached the store’s cash
register where the victim, Khaled Ateyyat, was working. After the two men exchanged
greetings, the appellant brandished a pistol and began cursing at the victim. The
victim turned away and was shot in the back by the appellant. The victim fell to the
1 The appellant was originally indicted on three counts: (1) attempted first degree premeditated mur der; (2) atte mpte d felony m urder; an d (3) attem pted es pecially aggr avated ro bbery. Th e State dism issed the charge of attem pted felon y murd er befor e the cas e was s ubm itted to the jury.
2 floor and pushed the store security alarm. The appellant fired five additional shots at
the victim, striking him with two bullets while he was on the floor.2
The appellant left the store when his pistol ran out of ammunition. The victim
thereafter climbed to his feet and managed to retrieve a gun from behind the store
counter. As the victim approached the front door, he observed the appellant reenter
the store. The victim immediately dropped to his knees and fired two shots in the
direction of the appellant. The appellant then fled, without injury, from the store.
Officer Bridgett White of the Memphis Police Department testified at trial that
she responded to the emergency call and found the victim lying on the floor. Both the
victim and a fellow employee, Roger Linwood, told Officer White that the culprit was a
regular customer who had been in the store a few hours before the shooting. Mr.
Linwood testified that he was working in the back of the store when the shooting
occurred. He stated that he observed the appellant enter the front door and approach
the cash register. When shots were fired, Mr. Linwood got down on the floor and
looked towards the register. He testified that he witnessed the incident, but remained
in the back of the store until the victim yelled for assistance.
Three days after the shooting, both the victim and Mr. Linwood were shown a
photographic lineup consisting of six pictures. Outside the presence of each other,
they viewed the photographs and each positively identified the appellant as the
shooter. At trial, the two men again identified the appellant as the shooter.
Based upon the above evidence, the jury convicted appellant of attempted first
degree murder and attempted especially aggravated robbery. The appellant
challenges those convictions on appeal.
DISCUSSION
The appellant first challenges the sufficiency of the convicting evidence. He
contends that the evidence of identity was insufficient to prove beyond a reasonable
2 The victim testified that the five shots were fired in the direction of his head. He stated that he mov ed his he ad from side to side to avoid be ing struck by the bullets.
3 doubt that he was the shooter. Although we find that the identification evidence was
sufficient in this case, we conclude that there was no evidence that the appellant
intended to commit robbery.
When an accused challenges the sufficiency of the convicting evidence, we
must review the evidence in the light most favorable to the State to determine whether
a rational trier of fact could have found the essential elements of the offenses beyond
a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61
L.Ed.2d 560 (1979); State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985). We do not
reweigh the evidence and are required to afford the State the strongest legitimate view
of the proof contained in the record as well as all reasonable and legitimate inferences
which may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.
1978).
Questions concerning the credibility of the witnesses, 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, not this court. Cabbage, 571 S.W.2d at 835. We will not
disturb a verdict of guilt for lack of sufficient evidence unless the facts contained in the
record and any inferences which may be drawn from the facts are insufficient, as a
matter of law, for a rational trier of fact to find the defendant guilty beyond a
reasonable doubt. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
In this case, the record shows that two eyewitnesses, the victim and Mr.
Linwood, recognized the shooter as a customer who shopped at the convenient store.
Based upon their observations, they positively identified the appellant as the shooter
both before trial and during trial. We conclude that the identification was sufficient for
a rationale trier of fact to find that the appellant was the shooter. Jackson, 443 U.S. at
319, 99 S.Ct. at 2789; Duncan, 698 S.W.2d at 67.
Upon further review of the record, however, we must address whether the
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED APRIL 1998 SESSION March 12, 1999
Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE ) ) NO. 02C01-9709-CR-00368 Appellee, ) ) SHELBY COUNTY v. ) ) Hon. Joseph B. Dailey, Judge GARY CARR ) ) (Attempted Murder) Appellant. ) (Attempted Robbery) )
For the Appellant: For the Appellee:
Walker Gwinn John Knox Walkup Assistant Public Defender Attorney General & Reporter 201 Poplar Avenue Memphis, TN. 38103 Douglas D. Himes (on appeal) Assistant Attorney General 425 Fifth Avenue North Ronald S. Johnson Nashville, TN. 37243 Assistant Public Defender 201 Poplar Avenue, 2nd Floor William L. Gibbons Memphis, TN. 38103 District Attorney General (at trial) David C. Henry Assistant District Attorney 201 Poplar Avenue, 3rd Floor Memphis, TN. 38103
OPINION:________________________
AFFIRMED IN PART; REVERSED IN PART
WILLIAM M. BARKER, SPECIAL JUDGE OPINION
The appellant, Gary Carr, appeals as of right from the convictions he received
in the Criminal Court of Shelby County. After a jury trial, the appellant was convicted
of attempted first degree murder and attempted especially aggravated robbery. 1 The
trial court sentenced him as a Range I standard offender to twenty four (24) years for
the attempted murder and to twenty two (22) years for the attempted robbery. The
sentences were ordered to run concurrently to each other for a total effective sentence
of twenty four (24) years.
On appeal, the appellant contends that the dual convictions were based upon
the same criminal episode in violation of the principles of double jeopardy. He also
challenges the sufficiency of the convicting evidence, specifically claiming that the
evidence of identity was insufficient to prove that he was the shooter.
After a careful review of the record, we conclude that the appellant is entitled to
partial relief on evidentiary grounds different from those argued on appeal. The
evidence was insufficient as a matter of law to sustain the conviction of attempted
especially aggravated robbery. We, therefore, reverse that conviction and affirm the
remaining conviction of attempted first degree murder and the sentence of twenty four
(24) years.
BACKGROUND
On November 16, 1995, a man, later identified as the appellant, entered a
Parkway Food Mart in Shelby County. The appellant approached the store’s cash
register where the victim, Khaled Ateyyat, was working. After the two men exchanged
greetings, the appellant brandished a pistol and began cursing at the victim. The
victim turned away and was shot in the back by the appellant. The victim fell to the
1 The appellant was originally indicted on three counts: (1) attempted first degree premeditated mur der; (2) atte mpte d felony m urder; an d (3) attem pted es pecially aggr avated ro bbery. Th e State dism issed the charge of attem pted felon y murd er befor e the cas e was s ubm itted to the jury.
2 floor and pushed the store security alarm. The appellant fired five additional shots at
the victim, striking him with two bullets while he was on the floor.2
The appellant left the store when his pistol ran out of ammunition. The victim
thereafter climbed to his feet and managed to retrieve a gun from behind the store
counter. As the victim approached the front door, he observed the appellant reenter
the store. The victim immediately dropped to his knees and fired two shots in the
direction of the appellant. The appellant then fled, without injury, from the store.
Officer Bridgett White of the Memphis Police Department testified at trial that
she responded to the emergency call and found the victim lying on the floor. Both the
victim and a fellow employee, Roger Linwood, told Officer White that the culprit was a
regular customer who had been in the store a few hours before the shooting. Mr.
Linwood testified that he was working in the back of the store when the shooting
occurred. He stated that he observed the appellant enter the front door and approach
the cash register. When shots were fired, Mr. Linwood got down on the floor and
looked towards the register. He testified that he witnessed the incident, but remained
in the back of the store until the victim yelled for assistance.
Three days after the shooting, both the victim and Mr. Linwood were shown a
photographic lineup consisting of six pictures. Outside the presence of each other,
they viewed the photographs and each positively identified the appellant as the
shooter. At trial, the two men again identified the appellant as the shooter.
Based upon the above evidence, the jury convicted appellant of attempted first
degree murder and attempted especially aggravated robbery. The appellant
challenges those convictions on appeal.
DISCUSSION
The appellant first challenges the sufficiency of the convicting evidence. He
contends that the evidence of identity was insufficient to prove beyond a reasonable
2 The victim testified that the five shots were fired in the direction of his head. He stated that he mov ed his he ad from side to side to avoid be ing struck by the bullets.
3 doubt that he was the shooter. Although we find that the identification evidence was
sufficient in this case, we conclude that there was no evidence that the appellant
intended to commit robbery.
When an accused challenges the sufficiency of the convicting evidence, we
must review the evidence in the light most favorable to the State to determine whether
a rational trier of fact could have found the essential elements of the offenses beyond
a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61
L.Ed.2d 560 (1979); State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985). We do not
reweigh the evidence and are required to afford the State the strongest legitimate view
of the proof contained in the record as well as all reasonable and legitimate inferences
which may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.
1978).
Questions concerning the credibility of the witnesses, 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, not this court. Cabbage, 571 S.W.2d at 835. We will not
disturb a verdict of guilt for lack of sufficient evidence unless the facts contained in the
record and any inferences which may be drawn from the facts are insufficient, as a
matter of law, for a rational trier of fact to find the defendant guilty beyond a
reasonable doubt. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
In this case, the record shows that two eyewitnesses, the victim and Mr.
Linwood, recognized the shooter as a customer who shopped at the convenient store.
Based upon their observations, they positively identified the appellant as the shooter
both before trial and during trial. We conclude that the identification was sufficient for
a rationale trier of fact to find that the appellant was the shooter. Jackson, 443 U.S. at
319, 99 S.Ct. at 2789; Duncan, 698 S.W.2d at 67.
Upon further review of the record, however, we must address whether the
convicting evidence was sufficient as a matter of law to prove that the appellant
perpetrated the shooting with intent to commit first degree murder and robbery. We
4 conclude that the evidence supports the conviction of attempted first degree murder,
but not the conviction of attempted especially aggravated robbery.
First degree premeditated murder is defined as “[a] premeditated and
intentional killing of another.” Tenn. Code Ann. § 39-13-202(a)(1) (Supp. 1995).
Attempted first degree murder is committed when the accused acts with premeditation
and intent to cause the killing of the victim and believes his conduct will cause the
killing without further conduct; or with premeditation, the accused acts with intent to
cause death under the circumstances surrounding the conduct as he believes them to
be, and the conduct constitutes a substantial step toward the commission of the
killing. Tenn. Code Ann. § 39-12-101(a)(2), (3) (Supp. 1995).
The evidence in this case shows that the appellant was a regular customer at
the convenient store and had been in the store earlier before the shooting. When the
appellant entered the store on the evening of November 16, 1995, he approached the
victim and without provocation began shooting his pistol at the victim’s head. The
victim was struck by three bullets at close range, but somehow survived the brutal
attack. The appellant continued to shoot at the victim until his pistol was empty. He
then exited the store, but returned a few moments later. The record is unclear as to
why he reentered the store.3 Nevertheless, the evidence shows that he fled after the
victim attempted to shoot him with a gun found under the store counter.
The above evidence strongly supports the jury’s finding that the appellant shot
the victim with specific intent to kill, and that his actions constituted a substantial step
towards the commission of a killing. Moreover, based upon reasonable inferences
drawn from the entire criminal episode, there was evidence for the jury to find that
appellant’s conduct was premeditated.
3 The State contends that the appellant reentered the store to complete the act of robbery. That argument is speculative at best. There was simply no showing of what the appellant intended to do at that point in the crimina l episode .
5 The State relied upon the same criminal conduct to prove that the appellant
attempted to commit especially aggravated robbery. Especially aggravated robbery is
robbery4 accomplished with a deadly weapon where the victim suffers serious bodily
injury. Tenn. Code Ann. § 39-13-403(a)(1), (2) (Supp. 1995). Attempted especially
aggravated robbery is committed when the accused either intentionally or knowingly
acts with intent to cause the robbery and believes that his conduct will cause the
robbery without further conduct; or intentionally or knowingly acts with intent to commit
the robbery under the circumstances surrounding the conduct as he believes them to
be, and the conduct constitutes a substantial step toward the commission of robbery.
Tenn. Code Ann. § 39-12-101(a)(2), (3) (Supp. 1995).
The appellant’s act of shooting the victim multiple times at close range
established the especially aggravated nature of the crime. Moreover, the acts of
entering the convenient store and shooting the victim may have constituted a
substantial step towards the completion of a robbery. Nevertheless, there was no
evidence that the appellant intended to rob the victim or otherwise remove any
property from the store. Under Tenn. Code Ann. § 39-12-101(a), the prosecution had
the burden of proving beyond a reasonable doubt that the appellant acted with specific
intent to commit robbery. As a matter of law, that burden was not satisfied in this
case.
Having determined that the conviction of attempted especially aggravated
robbery should be reversed, we need not address the alleged double jeopardy
violation.
CONCLUSION
Based upon the foregoing, the conviction of attempted especially aggravated
robbery is reversed. The remaining conviction of attempted first degree murder and
the sentence of twenty four (24) years are affirmed.
4 Robbery is defined in Tenn. Code Ann. § 39-13-401 as “the intentional or knowing theft of property fro m the person of anoth er by violenc e or putting the pers on in fear.”
6 __________________________________ WILLIAM M. BARKER, SPECIAL JUDGE
CONCUR:
______________________________ DAVID G. HAYES, JUDGE
______________________________ JOE G. RILEY, JUDGE