                                                                                       10/09/2017
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                         Assigned on Briefs August 1, 2017

        STATE OF TENNESSEE v. MONTREKUS LAMON TILLER

                Appeal from the Circuit Court for Hardeman County
                   No. 16-CR-30        J. Weber McCraw, Judge
                     ___________________________________

                          No. W2017-00093-CCA-R3-CD
                      ___________________________________


Defendant, Montrekus Lamon Tiller, was convicted of aggravated assault. He received a
sentence of six years’ incarceration to be suspended after 350 days. On appeal, he argues
that the evidence was insufficient to support his conviction. After review, we find that
the evidence was sufficient to support his conviction. The judgment of the trial court is
affirmed.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and ROBERT W. WEDEMEYER, JJ., joined.

Billy G. Burk, District Public Defender; Periann Houghton (on appeal), Assistant Public
Defender; and George D. Norton, Jr. (at trial), Selmer, Tennessee, for the appellant,
Montrekus Lamon Tiller.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;
D. Michael Dunavant, District Attorney General; and Joe Van Dyke, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                       OPINION

                            Factual and Procedural History

       A Hardeman County grand jury indicted Defendant with one count of aggravated
assault. The following facts were adduced at trial.
       On April 26, 2014, Troy Turner, the victim, drove to a BP gas station in
Whiteville, Tennessee, with his friend, Jerron Warren, and the victim’s son as passengers.
Once at the gas station, the victim got out of the vehicle and began filling it with gas. Mr.
Warren went inside the gas station to pay for the gas. During this time, Defendant, his
two sons, and a man named “Jerome” approached the victim. The victim is married to
the mother of Defendant’s two sons, and it appears that one of Defendant’s sons was the
topic of a discussion between Defendant and the victim. After a brief exchange of words,
Defendant punched the victim in the face.

        Mr. Warren witnessed Defendant punch the victim, and Mr. Warren retrieved his
Glock 17 pistol from the glove compartment of the car. According to Mr. Warren, he
was unable to cock the pistol or point it at anyone before he received a strike to the
temple and fought with one of the men who had approached the victim. During this
tussle, Mr. Warren received a second strike to the temple and lost consciousness. Once
Defendant emerged with possession of the Glock 17, Defendant returned to his truck, and
the victim returned to the vehicle that he was filling with gas. As they left the gas station
in their respective vehicles, the victim turned and headed west while Defendant turned
and headed east. When their paths crossed, the victim claims Defendant had the gun in
his hand, held the gun out the window of the vehicle, and fired a shot. Even though the
shot did not hit the victim or his vehicle, he feared for both his life and the life of his
child.

       Upon regaining consciousness, Mr. Warren stood up and attempted to get away,
but he was hit by a pick-up truck in the parking lot of the gas station. After getting hit by
a truck and picking himself up from the ground for a second time, Mr. Warren heard a
gunshot as he ran to safety. Eventually, he was able to run across the highway in front of
the gas station and hide in the woods until the police arrived. While waiting in the
woods, Mr. Warren heard a second gunshot.

       Defendant gave inconsistent statements to police. Defendant’s first statement
depicted the events as resulting from a harshly worded conversation between Defendant
and the victim. As that conversation progressed, the victim approached one of
Defendant’s sons with “his hand down like he was finna [sic] hit him.” At this point,
Defendant hit the victim. Subsequently, Defendant heard one of his sons say, “[D]on’t
shoot me.” Then, Defendant fought Mr. Warren for possession of the Glock 17. As
Defendant made his way back to his vehicle with the Glock 17, the victim “ran him
over.” Defendant told his sons to leave and “was finna [sic] kill him, but [Defendant]
turned around and got in the car.”

       Defendant’s two statements to the police, which were presented at trial, differ with
regard to what happened when the Glock 17 was in his possession. In his first statement,
Defendant states that he only heard the shot. In his second statement, Defendant recounts
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that the gun was on the seat beside him in his vehicle. When he thought that the victim
was going to run into him, he grabbed the gun, and “the gun went off after [Defendant]
started turning.” Then, at a later point, Defendant “started trying to figure out how to use
the gun.” He did not think that the gun was loaded because he moved the slide rearward
and “did not see a bullet go in.” However, he claimed “it went off again.”

       After Defendant left the BP gas station, he took his children to a friend’s house
and left the Glock 17 at that location. At some point in the night, Defendant returned to
the BP gas station and spoke with the police.

       The Whitesville Police Department conducted an investigation and found that
there were no bullets lodged in the car, there were no bullet holes in the car, and the
victim’s body was not hit by a bullet. Lieutenant Ben Davis testified that if the events
occurred in the way that they were described by the victim, then it is likely that a bullet
would have hit the victim or the car driven by the victim. The police also found no bullet
holes in the Defendant’s vehicle, but the windows were down on Defendant’s vehicle at
the time that it was inspected. During the investigation, police discovered video cameras
at the BP gas station. However, on April 26, 2014, the police were unable to retrieve the
video footage because the clerk at the gas station did not have access to the footage.
Because the BP gas station was undergoing a change in ownership, the police never
retrieved the video footage.

        A considerable amount of testimony was devoted to whether Defendant could
have accidently fired the Glock 17. A good portion of that testimony can be adequately
distilled to one line from the testimony of Special Agent Kasia Lynch with the firearms
identification unit of the Tennessee Bureau of Investigation. With regard to the Glock 17
pistol involved in this case, she said, “Nothing can make this gun fire if the trigger is not
being pulled to the rear.” Lieutenant Davis also testified that he had not witnessed an
accidental discharge of a Glock firearm where the trigger had not been pulled. However,
neither Special Agent Lynch nor Lieutenant Davis could rule out the possibility that the
trigger could have been accidentally pulled by Defendant.

      The jury convicted Defendant as charged of aggravated assault. Defendant filed a
motion for a new trial and a judgment of acquittal. The trial court denied Defendant’s
motion, and this timely appeal followed.

                                          Analysis

        On appeal, Defendant argues that the evidence is insufficient to support his
conviction for aggravated assault because “[t]he record is replete with inconsistent
testimony” and “[i]n light of the many inconsistencies, justice requires a trier of fact to
utilize a videotape that would have without bias or prejudice shown the true facts leading
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up to the shooting[.]” The State disagrees and argues that the evidence is sufficient to
support Defendant’s conviction. Further, the State argues that it had no duty to acquire
the videotape footage and that the videotape footage is irrelevant to determining the
sufficiency of the evidence supporting Defendant’s conviction. We agree with the State.

       When a defendant challenges the sufficiency of the evidence, this Court is obliged
to review that claim according to certain well-settled principles. The relevant question is
whether any rational trier of fact could have found the accused guilty of every element of
the offense beyond a reasonable doubt. See Tenn. R. App. P. 13(e); Jackson v. Virginia,
443 U.S. 307, 319 (1979). The jury’s verdict replaces the presumption of innocence with
one of guilt; therefore, the burden is shifted onto the defendant to show that the evidence
introduced at trial was insufficient to support such a verdict. State v. Reid, 91 S.W.3d
247, 277 (Tenn. 2002). The prosecution is entitled to the “‘strongest legitimate view of
the evidence and to all reasonable and legitimate inferences that may be drawn
therefrom.’” State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (quoting State v.
Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Questions concerning the “‘credibility of the
witnesses, the weight to be given their testimony, and the reconciliation of conflicts in the
proof are matters entrusted to the jury as the trier of fact.’” State v. Wagner, 382 S.W.3d
289, 297 (Tenn. 2012) (quoting State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008)).
“‘A guilty verdict by the jury, approved by the trial court, accredits the testimony of the
witnesses for the State and resolves all conflicts in favor of the prosecution’s theory.’”
Reid, 91 S.W.3d at 277 (quoting State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997)). It is
not the role of this Court to reweigh or reevaluate the evidence, nor to substitute our own
inferences for those drawn from the evidence by the trier of fact. Id. The standard of
review is the same whether the conviction is based upon direct evidence, circumstantial
evidence, or a combination of the two. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn.
2011); State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009).

       Tennessee Code Annotated section 39-13-101(a) sets forth the criminal offense of
assault as follows:

       A person commits assault who:

       (1) Intentionally, knowingly or recklessly causes bodily injury to another;

       (2) Intentionally or knowingly causes another to reasonably fear imminent
       bodily injury; or

       (3) Intentionally or knowing causes physical contact with another and a
       reasonable person would regard the contact as extremely offensive or
       provocative.

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An aggravated assault is committed when a defendant intentionally or knowingly
commits an assault that involved the use or display of a deadly weapon. T.C.A. § 39-13-
102(a)(1)(A)(iii).

        Without specifically mentioning an inconsistency, Defendant argues that Mr.
Warren’s testimony is inconsistent with Mr. Warren’s written statement, the victim’s
statement, and Defendant’s written statements. Further, Defendant argues that the
victim’s testimony was inconsistent with Defendant’s written statements. Inconsistencies
in the testimony are to be resolved by the jury. Wagner, 382 S.W.3d at 297. When the
jury in this case issued a guilty verdict, the jury accredited the testimony of the State’s
witnesses, the victim and Mr. Warren, and any conflict or inconsistency in the testimony
of Mr. Warren or the victim was resolved in favor the prosecution’s theory.
“Innumerable cases” have stated that this Court is not free to re-evaluate evidence as it
pleases. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978) (quoting State v. Grace,
493 S.W.2d 474, 476 (Tenn. 1973)). Thus, we decline to re-evaluate the testimony in this
case after the jury has accredited the testimony of the State’s witnesses.

       Next, we turn to the question of whether the evidence was sufficient to support a
conviction for aggravated assault with the inconsistencies resolved in favor of the State.
The victim testified that Defendant had the gun in his hand, held the gun out the window
of the vehicle, and fired a shot. As a result, the victim feared for his life. Mr. Warren
corroborated this testimony when he testified that his gun had been taken from him and
that he heard a shot fired. Based on the testimony of the victim alone, a reasonable juror
could find beyond a reasonable doubt that Defendant intentionally or knowingly caused
the victim to reasonably fear imminent bodily injury by the use or display of a deadly
weapon. See T.C.A. § 39-13-101(a)(2), -102(a)(1)(iii).

       Defendant argues that justice required the jury to rely on a videotape in order to
avoid the bias and inconsistencies in testimony and have a foundation for determining the
truth. Our rules of evidence provide the means for establishing the proper foundation for
determine the truth; it is called impeachment. See Tenn. R. Evid. 607. Defendant, via
counsel, was free to obtain the videotape and introduce it as evidence at trial, but he
declined to do so. Further, Defendant had the many avenues of impeachment set forth by
Article VI of the Tennessee Rules of Evidence available to challenge the veracity of the
State’s witnesses’ testimony. Having found the evidence sufficient to support a
conviction for aggravated assault, we refuse to entertain the argument that a specific
piece of evidence was required for the evidence to be sufficient.

       Defendant also argues that the evidence is insufficient as plain error because a
clear and unequivocal rule of law was breached when the State failed to preserve
exculpatory evidence pursuant to State v. Ferguson, 2 S.W.3d, 912 (Tenn. 1999). We
refuse to allow Defendant to use a sufficiency of the evidence challenge to backdoor a
                                           -5-
preservation of exculpatory evidence issue into the courtroom, especially after Defendant
failed to put this issue in his motion for a new trial. Even if we conducted a plain error
review, Defendant’s argument is meritless because the State must first obtain the
evidence before the State has a duty to preserve it. See State v. Yevette Somerville, No.
W2001-00902-CCA-R3-CD, 2002 WL 1482730, at *4 (Tenn. Crim. App. Feb. 11, 2002)
(citing State v. Marshall, 845 S.W.2d 228, 233 (Tenn. Crim. App. 1992)), no perm. app.
filed. In this case, there is no indication that the State ever possessed the videotape from
the BP gas station.

                                        Conclusion

       For the foregoing reasons, we affirm the judgment of the trial court.


                                          ____________________________________
                                          TIMOTHY L. EASTER, JUDGE




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