Full Opinion (html_with_citations)

        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs November 4, 2014

                STATE OF TENNESSEE v. ALBERT JACKSON

                  Appeal from the Criminal Court for Shelby County
                      No. 12-05328     W. Mark Ward, Judge


              No. W2014-00050-CCA-R3-CD - Filed December 30, 2014


The defendant, Albert Jackson, was convicted by a Shelby County Criminal Court jury of
attempted voluntary manslaughter, a Class D felony; aggravated assault, a Class C felony;
employing a firearm during the commission of a felony, a Class C felony; reckless
endangerment with a deadly weapon, a Class E felony; and felon in possession of a handgun,
a Class E felony. He was sentenced to an effective term of twenty-four years in the
Tennessee Department of Correction. On appeal, he challenges the sufficiency of the
convicting evidence. After review, we affirm the judgments of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

A LAN E. G LENN, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL, P.J.,
and R OBERT L. H OLLOWAY, J R., J., joined.

Stephen C. Bush, District Public Defender; Tony N. Brayton (on appeal), Amy G. Mayne and
Jane Sturdivant Tillman (at trial), Assistant Public Defenders, for the appellant, Albert
Jackson.

Robert E. Cooper, Jr., Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Joshua Corman and Meghan
Fowler, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                        OPINION

                                         FACTS

      The defendant was indicted for attempted second degree murder, aggravated assault,
employing a firearm during the commission of a felony, reckless endangerment with a deadly
weapon, and felon in possession of a handgun, as a result of his pulling a gun on the driver
and front seat passenger of a car in which he was riding.

                                       State’s Proof

       Marquita Lee testified that, on April 7, 2012, she was at her house with her friends,
“Red” and “Amber,” as well as her two-year-old son, Marjavius. Red had asked Lashun
Peete to drive the women to the nail salon, and Peete arrived to pick them up. When Peete
arrived, Keunshay Cooper was with him. Lee had known Peete for approximately ten years
and was familiar with Cooper through Peete. Lee, her friends, and son got into the car with
Peete and Cooper, and Peete drove Red and Amber to the nail salon. Lee asked Peete to
drive her to a bail bondsman because she needed to deposit money for her sister’s bond.

       Lee testified that Cooper became angry at Peete because he gave Red $20 to get her
nails done, and she hit Peete on the back of the head. Peete and Cooper continued to argue,
and Cooper told Peete to drop her off somewhere. Cooper texted with someone who was
supposed to meet her at University Cabana, but Peete wanted to meet at a gas station instead.
They stopped at a gas station convenience store, but whoever was picking up Cooper did not
show up so Peete drove her to the Tillman Cove Apartments.

       Lee testified that, when they pulled into the Tillman Cove Apartments, the defendant
exited a small black car, and Cooper, who exited Peete’s vehicle, hugged and kissed the
defendant. The defendant then got into the backseat of Peete’s vehicle and spoke with Peete,
while another man, who was with the defendant, asked for a ride to go pick up his child. Lee
became suspicious of the other man’s need for a ride considering he just got out of a car.
However, Cooper told Peete that the man was “okay,” and Peete agreed to give him a ride.
At that point, the defendant said that he was not going to join them, but the other man
instructed him to come. The defendant and the other man were in the backseat with Lee’s
son, and Lee was in the front passenger seat.

       Lee testified that, as they pulled away, she noticed one of the men in the backseat
motion “come on” to a burgundy Dodge Charger partially painted with primer that was
parked across the street. In order to avoid detection, Lee texted Peete that they were being
followed by the Charger. The defendant’s companion gave directions to Peete, and Peete
asked the men if they knew they were being followed. The men denied that they were being
followed, and Peete pretended to call his cousin who lived in the area. Peete pulled up to a
house and acted like he knew the people who lived there, although he did not. He got out of
the car and, again, pretended to call his cousin.

       Lee testified that the defendant and the other man also got out of the car when Peete
exited the vehicle. The defendant asked Peete why they had stopped and said, “I don’t want

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to be in no shoot-out.” Lee said that Peete did not have a gun, and she had not seen the
defendant or the other man with a gun at that point in time. All three men got back into the
car, and Lee brought her son into the front seat with her because she felt uneasy about what
was going on. The defendant’s companion instructed Peete to turn right, but Peete said that
he would not turn right because it was a dead-end. Peete turned left instead, and the
defendant said, “fuck this shit” and pulled out a gun. As the defendant tried to insert the clip
into the gun, he and Peete started “tussling over the gun” and Peete eventually “pull[ed] the
clip out.” During the ordeal, the car was still moving at a “normal speed,” and the gun was
pointed at Lee and her son. Lee, who was nervous and scared, tried to open the car door to
jump out, but it was locked. The men were still struggling over the gun when Lee heard two
clicking sounds, but the gun was jammed. Lee then jumped from the moving car with her
son in her arms, just as the car hit a pole and the door swung back and hit her son on the
head.

        Lee testified that, after she jumped from the car, she looked back and saw the
defendant holding the gun and walking to the red Charger that had been following them. She
also saw Peete fighting with the other man. Lee said that she sustained abrasions all over her
leg and hurt her back jumping from the car. Her son sustained a gash to his forehead from
the door hitting him, as well as a big knot on the back of his head. After she was transported
to the hospital, Lee spoke with Sergeant Perry and provided a written statement. She
identified the defendant from a photographic array as the man who held the gun.

      On cross-examination, Lee recalled that the defendant’s gun did not have a clip in it
when he pulled it but that he tried to put it in the gun. She also recalled that it was the
defendant’s companion who motioned to the Charger and not the defendant.

        Lashun Peete testified that he previously dated Keunshay Cooper and that, at the time
of the crimes, they had been broken up for approximately one month. On April 7, 2012, he
picked up Lee and two of her friends to take them to a nail salon, when Cooper called asking
him for a ride. Because he was nearby, he agreed to pick her up as well. He dropped off
Lee’s two friends at the nail salon, and one of them asked for money to get her nails done.
Peete gave her $15, which angered Cooper and she pushed him in the back of his head. They
proceeded to argue, and Peete told her that he was going to take her back to where he had
picked her up.

        Peete testified that he proceeded to drive back to where he had picked up Cooper, but
no one was home. Cooper called and texted someone, but no one arrived. Peete told Cooper
that he would take her close to her house, but he would not take her all the way there. En
route, they stopped at a gas station where they waited for someone to meet Cooper, but no
one arrived. Cooper calmed down, and Peete agreed to take her to the Tillman Cove

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Apartments. When he pulled up to the curb at the apartment complex, the defendant and
another man approached the car while Cooper held the door to the car open as though she
was stalling for time. The defendant asked for a ride, claiming that it was an emergency
because he needed to pick up his baby. Peete had met the defendant on one prior occasion
about a month before when Peete showed up at Cooper’s house late at night and the
defendant opened the door and told him that she was not at home. Peete also knew the
defendant’s brothers.

        Peete testified that he agreed to give the defendant a ride, although he thought it was
going to be the defendant and Cooper, not the defendant and the other man. Peete told the
men that he was familiar with the area and asked where they needed to go, but they refused
to tell him and instead gave him step-by-step directions. As they were driving, Peete
received a text message from Lee telling him that a red car was following them, which he
also noticed. He described the vehicle as a red Charger with black paint as though it had
been wrecked. Peete made a left turn and pulled over to see what the red car would do, and
it pulled over approximately four car lengths behind him.

       Peete testified that the defendant and his companion “start[ed] acting real paranoid
[and] hostile,” so he pretended to know the person who lived in the house where he had
stopped. He thought that they would not do anything to him if they believed people were
around. He got out of the car and pretended to talk on the phone to whoever lived in the
house, and he heard the defendant and his companion say they did not want to be in a
“shootout.” Peete did not have a gun. When he asked the men if they knew who was
following them, they acted “real paranoid” and told him to get back into the car.

        Peete testified that he got back into the car, and the defendant told him to make a right
turn. Instead, Peete turned left because there was a dead-end to the right. The defendant “got
real mad and said, ‘fuck this.’” Peete saw the defendant pull “a big automatic weapon with
a long extended clip” out of his pants, which he put to the back of Peete’s head and told him
to “‘drive straight, don’t turn til I say turn.’” Peete went to pull on his seatbelt and, as he did
so, reached around and grabbed the defendant’s gun. Peete and the defendant began to
“tussle,” and Peete let go of the steering wheel. As he and the defendant struggled over the
gun, Peete heard the gun click two or three times without firing. The defendant pointed the
gun at Lee and her son, and the defendant, his companion, and Peete all struggled over the
weapon. Peete recalled that the defendant said, “I’m going to shoot, I’m going to shoot”
during the struggle. Peete “snatched the clip out” of the gun and, at virtually the same time,
Lee and her son jumped out of the car, and the car hit a curb and ran into a pole. The
defendant hit Peete two or three times on the head, then ran to the red Charger. The
defendant’s companion fought briefly with Peete, looked for something in Peete’s car, and
then also ran to the red Charger.

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        Peete testified that he later gave a statement to the police and identified the defendant
out of a photographic array. Peete said that he suffered injuries to his neck, back, and hand
as a result of the incident. He identified the extended clip with extra bullets that he took out
of the defendant’s gun. He reiterated that, during his and the defendant’s struggle over the
gun, he “heard it click . . . a couple of times like he tried to shoot,” and the defendant was
saying, “I’m going to shoot” as they were fighting over the gun.

        Scott Sturgeon was visiting his girlfriend on April 7, 2012. He was mowing the lawn
when he heard a big crash, so he left the mower running and went to look around the corner
to see what had happened. Upon seeing that a car had struck a telephone pole, he ran back
to his lawnmower to shut it off and then returned to the crashed vehicle. Back at the crash
site, Sturgeon saw “a guy on top of another guy hitting him on the top of the head.” He also
saw a woman walking away from the car with a baby. He ran inside to get a piece of paper
in order to take down the license plate number and, when he returned, he saw a burgundy
Dodge Charger with primer on the fender speeding away. He wrote down the license plate
number of the Charger and provided it to the police.

        Alan Rogers testified that he was driving on April 7, 2012, when he saw “a small car
that’s crashed into a telephone pole, and at the back of that car there’s a guy getting his head
slammed on the trunk.” He also saw a red Dodge Charger with the hood and front quarter
panels “blacked out.” Rogers blew his car horn and started to exit his vehicle, when two men
standing near the Charger gestured like they had a gun. The man who was slamming the
other man’s head on the trunk walked to the Charger, all three men got into the car, and they
sped away. Rogers called 911 and followed the Charger. The car eventually stopped in front
of a house, the men raised the hood of the vehicle to examine something, and then got into
a different vehicle and drove away.

       Sergeant Ron Perry with the Memphis Police Department testified concerning his
investigation of the case. Gail Rankins, the keeper of records with the Shelby County
Criminal Court Clerk’s Office, testified concerning the defendant’s history of convictions.

                                      Defendant’s Proof

        The defendant testified that he previously dated Keunshay Cooper and spoke to her
on the day of the incident around 11:00 a.m. and noon. He claimed that he called her to see
if she knew where he could buy some high-grade marijuana, and she told him that Peete had
some. The defendant elaborated that the marijuana was for an acquaintance, “Pooh,” who
was in the car with him at the time, and that he told Pooh a higher price than that requested
by Peete in order to make a profit from the transaction. They agreed to meet at the Tillman

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Cove Apartments.

        The defendant testified that they met as planned, and Pooh got into the car with Peete.
Pooh told the defendant to get into the car as well because Peete did not want to conduct the
transaction in front of the cameras at the apartments. The defendant got into the car, and they
drove away. The defendant recalled that Pooh tried to pay Peete with counterfeit money and
the men began to argue. During the fight that ensued, Peete let go of the steering wheel and
the car jumped the curb. The defendant claimed that he told Lee to grab the steering wheel
but she, instead, grabbed her son and jumped out of the car. The car hit a pole, but Pooh and
Peete continued to fight. The defendant grabbed the marijuana and ran to a red car that had
been following them, driven by Pooh’s girlfriend. Pooh stopped fighting with Peete and ran
to the red car as well, and they left quickly. The defendant denied that he or Pooh had a gun.
He said that the marijuana he stole weighed about a pound and was worth $4,800.

       The defendant claimed that his mother told him that the police were looking for him,
and he went to the police station voluntarily. He admitted that he lied to Sergeant Perry
about his involvement in the incident because of his parole status. However, he said that had
he known Peete “was going to concoct such a preposterous story,” he would have been
truthful with the police despite the risk of a parole violation.

       Following the conclusion of the proof, the jury convicted the defendant of attempted
voluntary manslaughter, aggravated assault, employing a firearm during the commission of
a felony, reckless endangerment with a deadly weapon, and felon in possession of a handgun.
The trial court merged the aggravated assault conviction into the attempted voluntary
manslaughter conviction for purposes of sentencing, and sentenced the defendant to an
effective term of twenty-four years.

                                        ANALYSIS

       The defendant challenges the sufficiency of the convicting evidence. He specifically
argues that: the evidence is insufficient to establish the element of adequate provocation for
the offense of attempted voluntary manslaughter, the proofs fails to establish the existence
of a predicate offense for the offense of employing a firearm during the commission of a
dangerous felony, and the evidence fails to establish that the victims were placed in imminent
danger of death or serious bodily injury pertinent to the offense of reckless endangerment.

       In considering this issue, we apply the rule that where sufficiency of the convicting
evidence is challenged, the relevant question of the reviewing court 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.” Jackson

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v. Virginia,
443 U.S. 307, 319
 (1979); see also Tenn. R. App. P. 13(e) (“Findings of guilt in
criminal actions whether by the trial court or jury shall be set aside if the evidence is
insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt.”);
State v. Evans,
838 S.W.2d 185, 190-92
 (Tenn. 1992); State v. Anderson,
835 S.W.2d 600, 604
 (Tenn. Crim. App. 1992).

        All questions involving the credibility of witnesses, the weight and value to be given
the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas,
754 S.W.2d 620, 623
 (Tenn. Crim. App. 1987). “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 theory of the State.” State v. Grace,
493 S.W.2d 474, 476
 (Tenn. 1973). Our
supreme court stated the rationale for this rule:

       This well-settled rule rests on a sound foundation. The trial judge and the jury
       see the witnesses face to face, hear their testimony and observe their demeanor
       on the stand. Thus the trial judge and jury are the primary instrumentality of
       justice to determine the weight and credibility to be given to the testimony of
       witnesses. In the trial forum alone is there human atmosphere and the totality
       of the evidence cannot be reproduced with a written record in this Court.

Bolin v. State,
219 Tenn. 4, 11
,
405 S.W.2d 768, 771
 (1966) (citing Carroll v. State,
212 Tenn. 464
,
370 S.W.2d 523
 (1963)). “A jury conviction removes the presumption of
innocence with which a defendant is initially cloaked and replaces it with one of guilt, so that
on appeal a convicted defendant has the burden of demonstrating that the evidence is
insufficient.” State v. Tuggle,
639 S.W.2d 913, 914
 (Tenn. 1982).

       The defendant first argues that the evidence is insufficient to establish the element of
adequate provocation for the attempted voluntary manslaughter of Lashun Peete. Voluntary
manslaughter is “the intentional or knowing killing of another in a state of passion produced
by adequate provocation sufficient to lead a reasonable person to act in an irrational manner.”
Tenn. Code Ann. § 39-13-211
(a). “A person commits criminal attempt who, acting with the
kind of culpability otherwise required for the offense”:

              (1) Intentionally engages in action or causes a result that would
       constitute an offense, if the circumstances surrounding the conduct were as the
       person believes them to be;

             (2) Acts 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; or

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               (3) Acts with intent to complete a course of action or cause a result that
       would constitute the offense, under the circumstances surrounding the conduct
       as the person believes them to be, and the conduct constitutes a substantial step
       toward the commission of the offense.
Id.
 § 39-12-101(a). The jury is responsible for reviewing the evidence to determine whether
it supports a finding of adequate provocation. State v. Williams,
38 S.W.3d 532, 539
 (Tenn.
2001).

       In the light most favorable to the State, the proof at trial showed that Peete agreed to
give the defendant and his companion a ride, during which he noticed they were being
followed by a red Dodge Charger. When Peete questioned the defendant and his companion
about their being followed, the men “start[ed] acting real paranoid [and] hostile.” Peete
pulled over at a house, pretending to know the person who lived there, in an attempt to
discourage the men from attacking him. While he was out of the car, Peete heard the
defendant and his companion say that they did not want to be in a “shootout,” although Peete
did not have a gun. Peete asked the men if they knew who was following them, and they
acted “real paranoid” and told him to get back into the car. Once Peete was back in the car,
the defendant became angry and frustrated when Peete refused to follow an order to drive
down a dead-end street and instead turned the opposite direction. The defendant pulled out
a gun to force Peete to comply and, when Peete fought with the defendant and struggled for
control over the gun, the defendant attempted to shoot Peete. From the proof, a rational trier
of fact could have found that Peete’s refusal to obey the defendant and the struggle that
ensued between the defendant and Peete over control of the defendant’s gun adequately
provoked the defendant to try to kill Peete.

       The defendant next argues that the proofs fails to establish the existence of a predicate
offense for the offense of employing a firearm during the commission of a dangerous felony.
In Tennessee, it is a crime to employ a firearm during the commission of or attempt to
commit a dangerous felony.
Tenn. Code Ann. § 39-17-1324
(b)(1), (2). Attempted voluntary
manslaughter is defined as a dangerous felony.
Id.
 § 39-17-1324(i)(1)(C), (M). The
defendant asserts that because, as he argues above, there is insufficient proof of the element
of adequate provocation for the predicate offense of attempted voluntary manslaughter, his
conviction for employing a firearm during the commission of a dangerous felony must be
dismissed. In light of our determination that the evidence is sufficient to support the
defendant’s conviction for attempted voluntary manslaughter, this issue is without merit.

     The defendant lastly argues that the evidence fails to establish that the victims,
Marquita and Marjavius Lee, were placed in imminent danger of death or serious bodily

                                              -8-
injury pertinent to the offense of reckless endangerment. A person commits the offense of
reckless endangerment “who recklessly engages in conduct that places or may place another
person in imminent danger of death or serious bodily injury.” Id. § 39-13-103(a). Reckless
endangerment committed with a deadly weapon is a Class E felony. Id. § 39-13-103(b). To
demonstrate an imminent danger of death or serious bodily injury, the State must show that
a person or class of persons was “placed in a reasonable probability of danger as opposed to
a mere possibility of danger.” State v. Payne,
7 S.W.3d 25, 28
 (Tenn. 1999).

        The defendant asserts that, because the gun was unloaded, the victims were not placed
“in a reasonable probability of the imminent danger of death or serious bodily injury by use
of a deadly weapon.” However, Peete’s testimony indicates that he heard the defendant’s
gun click two or three times and saw the defendant point the gun at Lee and her son before
Peete “snatched the clip out” of the gun. In addition, the defendant’s brandishing of a gun
and attempts to shoot it caused Lee to jump out of a moving car with her small child, causing
injuries to both herself and her child. Moreover, a rational trier of fact could reasonably
conclude that the mere act of brandishing a weapon on the driver of a moving vehicle put the
passengers inside the vehicle in a reasonable probability of imminent danger of death or
serious bodily injury.

                                       CONCLUSION

         Based on the foregoing authorities and reasoning, we affirm the judgments of the trial
court.

                                                     _________________________________
                                                     ALAN E. GLENN, JUDGE




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