        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs June 7, 2011

                STATE OF TENNESSEE v. STANLEY BUTLER

                  Appeal from the Criminal Court for Shelby County
                         No. 08-03862   Mark Ward, Judge


                 No. W2010-01514-CCA-R3-CD - Filed July 20, 2011


A Shelby County Criminal Court jury convicted the defendant, Stanley Butler, of three
counts of aggravated assault, see T.C.A. § 39-13-102(a)(1)(B)(2006), for which he received
a total effective sentence of five years to be served on split confinement consisting of 12
months’ confinement in the local workhouse followed by probation. On appeal, the
defendant contends that the evidence is insufficient to support his conviction for aggravated
assault only in count two. Discerning no infirmity in the evidence, we affirm the judgments
of the trial court.

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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which N ORMA M CG EE
O GLE and A LAN E. G LENN, JJ., joined.

Charles Waldman, Memphis, Tennessee, for the appellant, Stanley Butler.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Summer Morgan and Nicole
Germain, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                        OPINION

               On November 4, 2006, Robert Caston struck the defendant’s vehicle while
traveling through the parking lot of the New Horizon apartment complex in Memphis.
Following a brief verbal exchange between the defendant and Mr. Caston outside their
vehicles, Mr. Caston returned to his vehicle, backed up approximately one foot, and began
to move away from the accident scene. The defendant, an off-duty security guard, drew his
.45 caliber automatic handgun and fired two shots into the front windshield of the vehicle.
As Mr. Caston passed, the defendant fired one more shot into the rear window of Mr.
Caston’s vehicle. Both Mr. Caston and one of his passengers, ten-year-old J.D.,1 were struck
by bullets and received treatment at local hospitals within minutes of the shooting. Another
passenger, Dakota Dunlap, was not injured.

              Robert Caston drove a friend, Dakota Dunlap, and her son, J.D., to their new
apartment on the morning of November 4, 2006. After Ms. Dunlap spent a brief amount of
time “straighten[ing] up,” she asked Mr. Caston to drive them around the parking lot to show
J.D. where he could “cut through” to a walkway leading to his school. Mr. Caston drove,
with Ms. Dunlap seated in the front passenger seat and J.D. seated behind her on the
passenger side in the backseat. As he rounded a corner in the parking lot, Mr. Caston “struck
[the defendant’s] vehicle.”

               Mr. Caston recalled that the defendant got out of his vehicle and immediately
became “kind of hostile.” Mr. Caston told the defendant that he was going to move his
vehicle because traffic had begun to back up near the accident. He said, “As I was getting
back in the car, shots rang out and I just tried to get away.” He backed up the vehicle and
then turned to the left, away from the defendant, to leave the parking lot. Ms. Dunlap told
him to stop, but he kept driving to escape the shooting. Mr. Caston and Ms. Dunlap soon
realized that J.D. had been shot on his left shoulder and left side, so Mr. Caston drove to the
nearby home of Ms. Dunlap’s mother, where Ms. Dunlap called an ambulance. Ms. Dunlap
became impatient with the ambulance service and ultimately drove J.D. to LeBonheur
Children’s Hospital, where he was treated for his wounds. After delivering Ms. Dunlap and
her son safely to Ms. Dunlap’s mother’s home, Mr. Caston realized that he had also received
a gunshot wound to his arm. He went to the home of his brother who drove him to Methodist
South Medical Center.

               Mr. Caston said that he never threatened the defendant, that he did not have a
gun, and that he did not attempt to strike the defendant with his vehicle. The front
windshield of his vehicle had two bullet holes, and the back window was “completely
shattered.” On cross-examination, Mr. Caston admitted that he was driving without a valid
driver’s license, but he contended that the only reason he left the scene was to escape the
shooting.

              Dakota Dunlap recalled that Mr. Caston drove her and her son to her new
apartment, where she “[p]ut some stuff in [the] apartment,” and that Mr. Caston “was going
to show [her] a short-cut [for J.D.] . . . to get to school.” She recalled that Mr. Caston “ran
into the back of the [defendant’s] truck” and that they “never made it to the spot.” The men
talked outside their vehicles, but Ms. Dunlap did not hear them arguing. Mr. Caston returned

       1
           It is the policy of this court to refer to child victims only by their initials.

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to his vehicle to move it out of the way of traffic. Ms. Dunlap recalled seeing that “the guy
pulled the gun from the holster” and “just started shooting” before Mr. Caston even put the
vehicle in gear. Mr. Caston pulled away while the defendant continued to shoot.

              They soon realized that J.D. was injured. Although J.D. did not require
surgery, the doctors told him that he was “lucky” because one bullet struck him in his back
and exited his chest approximately four inches from his heart. Ms. Dunlap was not injured
in the shooting.

              Ms. Dunlap said that Mr. Caston did not try to hit the defendant with his
vehicle and that he was actually turned to the left, away from the defendant, when he began
to move forward. She said that she “never understood why anything happened” because the
men did not argue and Mr. Caston did not threaten the defendant in any way. She testified
that the defendant “just pull[ed] out a gun . . . and just sh[ot] for no reason at all.”

               J.D. recalled that Mr. Caston had driven him and his mother to their new
apartment and was driving through the parking lot to show them a short-cut to school when
he hit the defendant’s vehicle on the passenger-side rear bumper. J.D. stayed inside Mr.
Caston’s vehicle while the men talked for approximately three minutes. Mr. Caston returned
to the vehicle and told J.D. and Ms. Dunlap that the defendant had started cursing. As Mr.
Caston backed up to let other drivers through the intersection, the defendant “jumped in front
of the truck and started shooting.” The defendant shot through the front windshield and, as
Mr. Caston turned to the left, the defendant shot through the back window. Two bullets
struck J.D. on his left side and left arm. J.D. testified that Mr. Caston did not drive toward
the defendant at any time.

              Angelesa Holmes, an apartment resident, was out walking with her son when
she saw “the little fender bender and the shooting.” She described the defendant as “teed
off” because the accident was Mr. Caston’s fault. It was clear to Ms. Holmes that the
defendant “was very upset” by Mr. Caston’s “nonchalant attitude.” As Mr. Caston began to
drive away from the defendant, the defendant began shooting. Ms. Holmes was surprised
that someone would shoot because there were “kids out [t]here” in the apartment complex
parking lot. She reiterated several times during her testimony that Mr. Caston never drove
toward the defendant and that the defendant was not in danger at any time.

                Memphis Police Department (MPD) patrol officer Darryl Mattison responded
to the call of a shooting at New Horizon apartment complex on the morning of November
4, 2006. He arrived to a “chaotic”scene of multiple individuals out in the parking lot wanting
to report what had occurred. While he secured the scene, his partner located the defendant,
who was waiting near the apartment complex leasing office for the officers’ arrival. Mr.

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Caston’s vehicle was not at the scene. Officer Mattison found no debris on the road from the
accident. He explained the MPD’s use of force policy at trial and said that a progressive
escalation of force must occur before deadly force may be used. He also noted that when
others may be harmed by the use of deadly force, officers were trained to “de-escalate” their
use of force. He said, however, that he would fire on a moving vehicle if he felt threatened.

               MPD Sergeant Barnabus Bradley spoke to the defendant at the scene. He
recalled that the defendant was dressed in a security guard uniform and had a holstered
weapon at his side. The weapon was registered to the defendant via a properly issued permit.
The defendant admitted firing his weapon at Mr. Caston. He told Sergeant Bradley that when
Mr. Caston tried to leave the scene of the accident, Mr. Caston’s vehicle grazed his leg so
he shot at the vehicle out of fear for his life. Sergeant Bradley discerned no injury to the
defendant’s leg, and the defendant did not request medical treatment at the scene.

               MPD Detective Byron Braxton provided the defendant with Miranda warnings
and, following the defendant’s waiver of his rights, interviewed the defendant. The
defendant told Detective Braxton that he and Mr. Caston engaged in a “heated exchange”
concerning the accident. Although he first “thought maybe [Mr. Caston] was just going to
move his vehicle,” the defendant “got a funny feeling” and “drew his weapon.” The
defendant said that Mr. Caston “accelerated” toward him as he shot two times. Mr. Caston
“grazed [the defendant’s] knee” with his vehicle. The defendant fired one more shot as Mr.
Caston drove away from the parking lot. He said that he fired his gun to stop Mr. Caston
from leaving the scene. The defendant told Detective Braxton that he saw only two people
in the vehicle and that he would not have drawn his weapon had he known a child was in the
backseat.

               Detective Braxton testified that the law does not allow someone to draw a
weapon to prevent another person from leaving the scene of an accident. He also said that
the defendant’s weapon, a “Heckler and Kotch” automatic handgun, held nine rounds when
fully loaded. He opined that, assuming Mr. Caston drove toward the defendant, the first two
shots fired by the defendant could have been in self-defense. He further testified, however,
that the third shot fired as Mr. Caston exited the parking lot was not shot in self-defense.
Detective Braxton said that the defendant did not appear to be injured.

                The defendant presented the testimony of his fiancée, Lilian Hernandez. She
testified that the defendant had given her a ride to work on the morning of November 4,
2006. As they drove near the apartment complex leasing office where she worked, someone
struck the rear passenger side of the defendant’s vehicle. She said that as the men spoke
briefly, the other driver “pac[ed] back and forth.” The other driver then hurried to his truck
and drove away quickly. Although Ms. Hernandez did not see the vehicle strike the

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defendant, she did see the defendant holding his leg because he had been hit. Furthermore,
although she did not see any gunshots, she heard three gunshots as the other driver left the
scene. Ms. Hernandez admitted telling the police that she wished the defendant had not fired
his gun and that they had just called the insurance company and paid the deductible.

              The defendant testified that in November 2006 he was employed as a security
guard with Dynamic Security. In the course of his employment, he completed “high risk
environment training,” which he described as “personal body guard” training, and also
“regular security training.” As a consequence, the defendant was licensed to carry a handgun
and had a valid permit to do so.

               On November 4, 2006, the defendant worked the 11 p.m. to 7 a.m. shift as
security at a local Pilot gas station. He then picked up his girlfriend, Lilian Hernandez, to
give her a ride to work at the New Horizon apartment complex. As the defendant drove
toward the leasing office of the apartment complex, another man hit his vehicle. The
defendant, who had the right of way, approached the other man and said, “‘Doc, did you not
see us coming?’” to which the other man replied, “Yeah.” The defendant testified that the
other man then went back to his vehicle and “didn’t look like . . . he wanted to even talk to
[him].” When the other man returned to his vehicle, it appeared to the defendant that the man
began “fussing” with a lady in the passenger seat. The other man then backed up his vehicle
and pulled forward. The defendant pulled his weapon because the man was “turned straight
at [him].” The defendant shot two rounds. As the other man moved the vehicle forward and
turned to the left, his right front bumper grazed the defendant’s leg and caused the defendant
to fire another shot. The other man then drove away.

                 The defendant testified that he telephoned 9-1-1 and waited for the officers to
arrive. He said that he only fired his gun because he “thought that [Mr. Caston] was going
to run over [him].” Because Mr. Caston’s windows were tinted, he could not see in the
backseat of the vehicle and did not know that a child was in the vehicle. The defendant said
that he would never have “[p]ut a kid’s life in danger.” He also said that he did not intend
to hurt or kill anyone but that he “was in fear of [his] life.” He received treatment for muscle
spasms in his leg the following day. He also surrendered his handgun permit and license.

               On cross-examination, the defendant maintained that he pulled his gun to make
Mr. Caston veer away from him or stop. Although acknowledging that he aimed at the
vehicle each time he fired the gun, the defendant claimed that the third shot was a “reflexive”
shot in response to Mr. Caston’s car grazing his leg. He acknowledged that it was a crime
to pull his gun to prevent someone from leaving the scene of an accident. He also conceded
that he aimed his gun at the car with knowledge that people were in the car and that any
bullets from the gun would go where aimed.

                                              -5-
               Based upon this evidence, the jury convicted the defendant of three counts of
aggravated assault. At sentencing, the trial court imposed concurrent five-year sentences of
split confinement consisting of the service of 12 months’ incarceration in the local
workhouse followed by a term of probation. On appeal, the defendant does not contest the
sufficiency of the evidence to support his convictions in counts one and three, relating to the
aggravated assaults of Mr. Caston and Ms. Dunlap. He does, however, contend that the
evidence is insufficient to support his conviction of the aggravated assault of J.D. because
he did not know J.D. was in the vehicle at the time he fired his weapon.

              We review the defendant’s claim of insufficient evidence mindful that our
standard of review is whether, after considering 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. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324
(1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This standard
applies to findings of guilt based upon direct evidence, circumstantial evidence, or a
combination of direct and circumstantial evidence. Winters, 137 S.W.3d at 654.

                When examining the sufficiency of the evidence, this court should neither re-
weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Winters,
137 S.W.3d at 655. Questions concerning the credibility of the witnesses, the weight and
value of the evidence, as well as all factual issues raised by the evidence are resolved by the
trier of fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court
must afford the State the strongest legitimate view of the evidence contained in the record
as well as all reasonable and legitimate inferences which may be drawn from the evidence.
Id.


               Aggravated assault, as is applicable in this case, occurs when someone
“[i]ntentionally or knowingly commits an assault as defined in § 39-13-101 and . . . [u]ses
or displays a deadly weapon.” T.C.A. § 39-13-102(a)(1)(B). Assault is defined by our Code
as “[i]ntentionally, knowingly or recklessly caus[ing] bodily injury to another” or
“[i]ntentionally or knowingly caus[ing] another to reasonably fear imminent bodily injury.”
Id. § 39-13-101(a)(1) and (2).


              In this case, the defendant knowingly fired his weapon three times into Mr.
Caston’s vehicle. Each time he fired his weapon, the defendant aimed at either the front
windshield or the back window. Bullets from the defendant’s gun struck both Mr. Caston
and J.D., causing bodily injury, and Ms. Dunlap was in fear of imminent bodily injury by the
defendant’s shooting. The jury rejected the defendant’s claim of self-defense. Furthermore,
the defendant admitted that he fired his weapon into the vehicle with a knowledge of Mr.

                                              -6-
Caston and Ms. Dunlap’s presence in the front seat. The defendant’s particular knowledge
of J.D.’s presence in the vehicle is immaterial to his conviction. See State v. Kenneth
Edward Holsapple, No. M2006-01683-CCA-R3-CD, slip op. at 5 (Tenn. Crim. App.,
Nashville, July 5, 2007) (noting that aggravated assault does not require intent to assault a
specific victim so that conduct directed toward an intended victim may support a conviction
regarding that same conduct directed toward unintended or unknown victims); State v. Craig
Bryant, No. 02C01-9707-CR-00286, slip op. at 17 (Tenn. Crim. App., Jackson, Jan. 8, 1999)
(holding evidence sufficient to support the defendant’s conviction of aggravated assault of
drive-thru attendant when defendant “entered his wife’s car with a loaded gun, pointed the
gun at his wife, and fired the gun while the car was beside the drive-thru window”).
Accordingly, we conclude that the evidence is sufficient to support the defendant’s
convictions in this case.


                                        Conclusion


              Discerning no paucity in the evidence to support the defendant’s convictions
of three counts of aggravated assault, we affirm the judgments of the trial court.


                                          _________________________________
                                          JAMES CURWOOD WITT, JR., JUDGE




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