         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                       July 1, 2008 Session

           STATE OF TENNESSEE v. ANTHONY PHILLIP GEANES

                 Direct Appeal from the Circuit Court for Hardeman County
                         No. 06-01-0215    J. Weber McCraw, Judge



                  No. W2007-02223-CCA-R3-CD - Filed November 24, 2008



ALAN E. GLENN , J., dissenting.


        I respectfully dissent from the majority opinion in this matter. As I will explain, I believe that
the cases relied upon by the majority are distinguishable upon the facts from those presented by the
present appeal.

        Although the facts have been fully set out in the majority opinion, I will repeat those which
are salient to this dissenting opinion.

         Mike Kennamore, an investigator for the Hardeman County Sheriff’s Department, testified
that the defendant’s home was directly across the street from that of the victims. He described that
area as “highly populated, just house after house,” on “[b]oth sides of the road, and also on the next
street over, on . . . old Highway 125 it’s steady houses.” During his testimony, he identified a
photograph of the area showing the street and the victims’ house. The photograph shows that the
street is narrow, the yards small, and the houses close together. He said that the houses of the
defendant and the victims were “pretty much straight across from each other and the driveways are
close to matching up.” One of the victims, Tameka Woods, testified that she saw the defendant
“shooting in the air . . . [m]aybe two or three times.” Thus, the State’s proof established that the
defendant fired a pistol at least once in a “highly populated” area.

         The majority relies upon State v. Fox, 947 S.W.2d 865, 865 (Tenn. Crim. App. 1996),
wherein the indictment stemmed from the defendant’s acts of “discharging a pistol into the air or up
into a tree.” There was no testimony that anyone was either in the tree being fired upon or outside
the apartment building in the immediate vicinity of the defendant:

                 We find the [defendant’s] mere discharge of a weapon into the air or up into
        a tree top did not “place another person in imminent danger of death or serious bodily
        injury.” Merely discharging a gun, standing alone, is not sufficient to constitute
        commission of reckless endangerment. See People v. Richardson, 97 A.D.2d 693,
        468 N.Y.S.2d 114 (1983) (holding discharge of gun into air does not constitute
        reckless endangerment). The discharge must create an imminent risk of death or
        serious bodily injury to some person or class of persons.

Id. at 866. The court in Fox concluded that the facts did not support a reckless endangerment
conviction. Id.

        In State v. Payne, 7 S.W.3d 25, 26 (Tenn. 1999), another case relied upon by the majority,
the defendant, in his vehicle, fled from a police officer who sought to question him as to why the
license tag on his car was registered to another vehicle. During the chase, the defendant made a
U-turn and drove his car into the path of the officer’s patrol car. The officer managed to avoid a
collision and pursued the defendant through a residential area until the defendant turned off his
headlights and successfully eluded capture. Id.

         Four days later, the defendant was spotted in the same neighborhood by other officers.
Refusing to get out of his vehicle although ordered to do so, the defendant drove away as an officer
tried to reach into the vehicle to prevent his leaving. The officer held “onto the car for a brief time
before letting go.” Id. The officers then pursued the defendant’s vehicle through a residential
neighborhood, as he ignored both the speed limit and stop signs. Officers testified that people were
present on the sidewalk during the chase and that twice the defendant made a U-turn, driving directly
at them and causing them to swerve to avoid being struck by his vehicle. The defendant drove
around a car which had stopped for a traffic light and, although being pursued by officers driving
between 55 and 60 miles per hour, evaded the officers. A witness testified that he pulled his vehicle
to the side of the road to avoid being struck by the defendant and saw the defendant pull his vehicle
into the opposite lane, striking another car, killing one passenger and injuring the other three people
in the vehicle. Id. at 27. An issue on appeal was “whether the offense of reckless endangerment can
be committed against the public at large.” Id. Our supreme court decided this issue in the
affirmative, explaining the “zone of danger”:

                We hold that the term “zone of danger” may be employed to define that area
        in which a reasonable probability exists that the defendant’s conduct would place
        others in imminent danger of death or serious bodily injury if others were present in
        that zone or area. We further hold that the term “public at large” may be used in an
        indictment for reckless endangerment to designate that class of persons occupying
        the “zone of danger.” Accordingly, the indictment in the case now before us was not
        erroneous for employing the term “public at large.”

Id. at 28.

        Concluding that the State had failed to prove that any members of the public at large were
endangered during the first chase, the court explained how the State might have met its burden of
proof in this regard:




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        The State could have met its burden by showing that at the time of the chase another
        motorist was driving on the street or that an individual was walking down the
        sidewalk. The State simply failed to show that anyone other than [the police officer]
        was located in the area in which a reasonable probability of death or serious[] bodily
        injury existed.

Id. at 29.

       The “zone of danger”concept set out in Payne later was applied by this court in State v.
Kenneth Buford, No. E2004-01780-CCA-R3-CD, 2005 WL 1488578 (Tenn. Crim. App. June 23,
2005), where the defendant fired a pistol into the air, away from the street or occupied buildings:

                [Officer] Hopkins explained that the club is between 250 and 300 feet from
        Austin Homes and that shots fired from Club Temptations could “absolutely” be
        heard from Austin Homes. Additionally, Hopkins explained that the club’s parking
        lot is between fifty and seventy-five feet from McCalla Avenue, a public
        thoroughfare. He stated that, in his experience, after a weapon is fired, people nearby
        become fearful and nervous. He further stated that gunshots increase the possibility
        that other armed individuals may draw a weapon in defense of themselves. In sum,
        he stated that such circumstances “make[ ] for an extremely unsafe situation.”

Id. at *1.

      The Buford court concluded that the facts could not sustain a conviction for reckless
endangerment:

        [T]he testimony established that the defendant fired the gun into the air, away from
        both the street and any buildings in the vicinity that could have been occupied.
        Therefore, the instant facts are analogous to Fox and are distinguishable from other
        cases in which we have sustained convictions for reckless endangerment.

Id. at *4 (citations omitted).

        In my opinion, the facts presented by this appeal are easily distinguished from the holdings
in Buford and Fox. In Buford, the defendant fired his weapon “into the air, away from both the
street and any buildings in the vicinity that could have been occupied,” 2005 WL 1488578, at *4;
and, in Fox, the pistol was fired “into the air or up into a tree,” with “no testimony that anyone was
either in the tree being fired upon or outside the apartment building in the immediate vicinity of the
appellant,” 947 S.W.2d at 865. In the present case, the defendant fired a pistol into the air at least
once during the evening hours in a “highly populated” area, where the street was narrow and the
houses close together. His shot sent scattering the people on the front porch of the house across the
street. In my opinion, this evidence clearly was sufficient to show that others were in the “zone of
danger” created by the defendant’s firing his pistol into the air, and, for reasons explained by our
supreme court in Payne, I would affirm the conviction.

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_____________________________________________
ALAN E. GLENN, JUDGE




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