State v. Joseph McDaniel

Opinion

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

1 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.

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JERRY L. SMITH, JUDGE

CONCUR:

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DAVID H. WELLES, JUDGE

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JOHN K. BYERS, SENIOR JUDGE