        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                  July 20, 2010 Session

                STATE OF TENNESSEE v. KEVIN E. SHEPARD

              Direct Appeal from the Circuit Court for Hickman County
                      No. 08-5104CR      Timothy Easter, Judge


              No. M2009-02131-CCA-R3-CD - Filed December 22, 2010


The defendant, Kevin E. Shepard, was convicted after a bench trial of reckless
endangerment involving a deadly weapon, a Class E felony, and was sentenced to two years,
suspended to supervised probation. On appeal, he argues that the evidence is insufficient
to sustain his conviction. After review, we affirm the judgment of the trial court.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which J ERRY L. S MITH and R OBERT
W. W EDEMEYER, JJ., joined.

Michael J. Flanagan, Nashville, Tennessee, for the appellant, Kevin E. Shepard.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant
Attorney General; Kim R. Helper, District Attorney General; and Joseph Fahey, II, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                          FACTS

      This case arises out of the defendant’s, a bail bondsman, attempt to arrest Matthew
Haddock, who failed to appear in court. As a result of his actions during the pursuit, the
defendant was indicted on one count of reckless endangerment with a deadly weapon.

                                       State’s Proof

      At trial, Patricia Prock testified that she lived on Betty Bell Lane in rural Hickman
County. On June 4, 2008, just after 9:00 p.m., Prock was sitting on her front porch waiting
for her son to return home from church with his grandmother. She said that her son had
spina bifida and walked with crutches, so she routinely waited on him to assist him into the
house. Prock said that Kelly and Melissa Cunningham lived in the home next to her. Terry
and Jessica lived in the home next to the Cunninghams, but Prock did not know their last
name. Prock said she could see the Cunninghams’ home from her porch, and she estimated
that their houses were about the same distance apart as the distance from the witness stand
to the back of the courtroom.

         Prock testified that she saw a truck, without its headlights on, pull into the driveway
of the house two doors down from hers, where Terry and Jessica lived. Prock saw the front
door of the house open, and within “a few seconds,” she heard male voices. She could not
tell if the men were arguing, but then she heard that the men had come outside and “[y]ou
[could] tell that it wasn’t no friendly conversation.” Prock heard a girl start screaming and
recognized the voice as Jessica’s. Jessica was screaming, “‘[S]omeone call 9-1-1, please call
9-1-1.’” Prock immediately called 9-1-1.

      Prock testified that the two people who were arguing had come up a path that ran
between all of the homes and were in the Cunninghams’ driveway. By that time, Kelly
Cunningham turned his porch light on and was outside on his porch. Prock said that the
younger of the two men was closer to her and that the other man was “out across the
driveway[.]”

        Prock testified that when she turned to see if her family was driving up the road yet,
a shot was fired. She fell to her knees, crawled to the front door, turned the porch light off,
and went inside. Realizing that her family was on the way home, Prock turned the light back
on in time to see her mother-in-law and son driving down the road toward her house. Prock
ran to the end of her driveway to intercept her family, but by that time, the two men had
entered her yard. The men did not announce their names or what they were doing, but she
kept hearing one of them say, “‘Get down on the ground[.]’” Prock’s mother-in-law pulled
into the driveway, and the headlights shone on one of the men and she could tell that it was
“Matt, the boy who had lived down there in that trailer.” She verified that the man was Matt
Haddock and said that he “had blood all over his face, all down his shirt.”

       Prock testified that the other man kept saying, “‘[G]et on the ground, don’t -- he’s got
a gun, don’t get -- get away from him, get on the ground.’” She recalled that Haddock kept
saying, “‘I haven’t done anything. . . . Just let me get to my mom’s and get my papers and
I can show you I haven’t done anything.’” The other man told him to “‘[g]et on the
ground,’” and he was holding a “big” gun like a rifle.



                                              -2-
        Prock testified that Haddock walked toward her mother-in-law’s car, while Prock
screamed for her mother-in-law to drive away. The armed man told Prock’s mother-in-law
not to open the door for Haddock because he had a gun. Prock noted that Haddock did not
touch the car; it appeared as if “he was trying to put distance between him and that man.”
The armed man kept his gun pointed at Haddock the entire time. Prock was within one step
of the armed man and close enough to Haddock that she could have touched him. She said
that the armed man never identified himself.

       Prock testified that her mother-in-law was able to drive away from the scene. Once
she drove away, Prock ran back into her house and turned to see that the two men were
walking on the main road toward the house where the altercation started. She noted that
Haddock was in front with the armed man walking behind him. The armed man kept
ordering Haddock to “‘[g]et on the ground.’”

       Kelly Cunningham1 testified that he lived in the house between Prock’s house and
Terry Minor’s house. He said that his house was approximately 200 feet from Minor’s
house, with a path coming through the tree-line that separates the houses, and that he could
see the Minors’ front porch from his house. Kelly said that he and his wife were awakened
on the night of the incident by the sound of their dogs barking. Cunningham opened the
front door and “heard people screaming and hollering[.]”

       Kelly testified that he saw Matt Haddock coming toward his house. Kelly estimated
that his driveway was “maybe 50 or 60 feet” from the tree-line at the edge of his yard.
Haddock was walking across his yard toward the driveway, and the defendant was “walking
up the hill with a shotgun” pointed at Haddock. Neither man was running. Kelly called 9-1-
1 and told the dispatcher what was happening.

       Kelly told the defendant that he was trespassing, needed to put his gun down, and that
he had “called the law for Matt.” Kelly recalled that “Matt started up the hill towards [his]
next neighbors, and then the gun was fired and then they went on up the hill and then they
come back down the hill.” Kelly stated that the men were standing in his driveway when
the shot was fired, and he was approximately thirty feet away on his porch. Kelly described
that when the shot was fired, the defendant was standing at the edge of the driveway, and
Haddock “was standing in the yard above the driveway.” The defendant was “[n]o more
than ten feet” from Haddock when he fired his gun. The shot hit on the side of the driveway
where Haddock was standing. After the shot, the two men “started on up the hill” in the
direction of Prock’s home.

       1
         Because some of the witnesses have the same last name, we refer to them by first name only as
necessary.

                                                 -3-
        Kelly testified that he stayed on his porch for five or ten minutes, until the two men
came back past his house. The men “walked right beside [Kelly’s] porch” and continued
on toward Minor’s house. They passed so close to his house that Kelly “could have reached
off [his] porch and touched either one of them.” He noted that Haddock was in front of the
defendant, and the defendant had his gun to Haddock’s back. As the men went down the
path to Minor’s house, Kelly came off his porch and watched their progress. He saw
Haddock go into Minor’s house and shut the door, then the defendant pushed the door open
and hit Haddock in the mouth with the butt of the shotgun. About that time, Kelly saw
police cars approaching, so he “started down the driveway pointing them down the hill.”
Kelly stated that he did not know the defendant prior to this incident and that “[a] man in
[his] yard with a shotgun pointing and waving it around kind of had [him] scared.”

         Melissa Cunningham testified that on the night of the incident, she was preparing to
go to sleep when Prock called “frantic” about something. Kelly told her to stay inside the
house while he investigated, but she went outside when he was on the phone with the 9-1-1
dispatcher. When she came outside, Melissa saw Matt Haddock and another man walk by
their porch, and the other man had a gun pointed in Haddock’s back. The men were walking
toward Minor’s house. Melissa related that she could almost touch the men from where she
stood on the porch as they walked by. Melissa testified that Kelly told the armed man that
he was calling the police, and the armed man responded that he did not care because he was
“‘the law.’” Melissa said that she heard a shot fired that night, but it occurred while she was
still inside the house.

       Deputy Mary Capintog with the Hickman County Sheriff’s Department testified that
she received a “shots fired” call and responded to the scene in this case. En route, the
dispatcher informed Deputy Capintog that an individual was firing a shotgun outside the
home and that a bail bondsman might be on the scene. Deputy Capintog pulled her patrol
car diagonally into a driveway, and a “young man ran out from the side of [the] trailer and
he was screaming, ‘help me, help me.’” As the young man got closer, Deputy Capintog
noticed that he had blood on his face. Deputy Capintog saw another man exit the house,
holding a shotgun “pointed in the upward motion.” Deputy Capintog initially drew her
weapon and pointed it at the man with the shotgun. However, she heard the defendant say
“‘handcuff that mother-fucker,’” and realizing he was the bondsman, she holstered her
weapon and handcuffed Haddock. Haddock was not armed when he was taken into custody.

          Detective Scott Smith with the Hickman County Sheriff’s Department testified that
he visited Haddock in the hospital later the night of the incident and took a photograph of
his injuries. Detective Smith also spoke with the defendant that night at the scene and
obtained the defendant’s shotgun. The defendant reported that he had attempted to “serve
. . . a failure to appear warrant or capias on Mr. Haddock.” The defendant was aware that

                                              -4-
Haddock’s girlfriend resided at that address, so the defendant knocked on the door and was
met by a white male. The male was hesitant to identify himself to the defendant, but the
defendant identified him as Matt Haddock by his tattoos. The defendant related to Detective
Smith that he seized Haddock by the arm and a struggle ensued.

       Detective Smith testified that the defendant further told him that he informed
Haddock that he had a warrant for his arrest, but they continued to struggle. The defendant
was armed with a handgun and drew it during the struggle. Haddock grabbed at the
defendant’s handgun, but the defendant retained it. Haddock then retreated from the house,
and the defendant chased him. The defendant told Detective Smith that he reholstered his
handgun, retrieved the shotgun from his vehicle, and continued to chase Haddock. The
defendant admitted to Detective Smith that he fired a round from his shotgun in an effort to
get Haddock to stop, but the pursuit continued. Detective Smith later found unfired shotgun
shells in the Minors’ house consistent with the shells recovered with the defendant’s
shotgun. The next morning, he also found a spent shotgun shell “midway” in the
Cunninghams’ driveway.

                                   Defendant’s Proof

       Roger Mays, a dispatcher at the Centerville Police Department, testified that the
defendant called to inform them that he was going to Betty Bell Lane in an attempt to
apprehend someone. Mays said that was the normal procedure in Hickman County when
a bondsman was going out to look for an individual. On cross-examination, Mays stated that
the defendant never called to let the police know that he was having trouble and needed
backup.

       The defendant testified that he talked to Haddock’s mother the afternoon of the
incident, and she informed him that the defendant was living with Jessica Minor at Minor’s
home on Betty Bell Lane. The defendant testified that he went to the Minor residence, and
a male answered the door. Although the male denied being Matt Haddock, the defendant
recognized him from photographs and his tattoo, and the defendant informed him that he had
a warrant for his arrest for failure to appear in court.

       The defendant attempted to take Haddock into custody but was met with physical
resistance, and a fight ensued between the two men. Haddock went into a bedroom, and the
defendant drew his handgun out of concern that Haddock might be retrieving a weapon.
When Haddock exited the bedroom, the defendant pointed his gun at the ground between
them. The defendant yelled for Jessica Minor to call 9-1-1 because he wanted to get law
enforcement involved, but she said that they did not have a phone.


                                            -5-
       The defendant testified that Haddock grabbed at his handgun, but the defendant
retained it and Haddock retreated out the back door of the house. The defendant went to his
vehicle to retrieve a flashlight, and he noticed a shotgun and took it to pursue Haddock. The
defendant headed down the path he had seen Haddock traveling and caught up with him at
the Cunningham residence. The defendant saw Haddock heading up to the porch where
Kelly Cunningham was standing, and the defendant yelled for Kelly to not let Haddock
inside the house.

        The defendant testified that Haddock entered the Cunningham house for a couple of
seconds, then exited and headed back down the driveway. The defendant “ratcheted” his
shotgun, hoping the sound might stop Haddock, but Haddock kept moving. The defendant
stated that he was “worn out” and “tired” from their struggle, so he pointed his gun to the
left and fired into the ground about four feet away in an effort to stop Haddock. The
defendant said that he shot into the ground instead of the air because “[he] knew exactly
where that round was going.”

       The defendant testified that after the discharge of his weapon, Haddock proceeded
toward Prock’s house and headed toward a car that was running in her driveway. The
defendant yelled that Haddock was under arrest and not to let him into the car, and the car
drove away. The defendant said that he then followed Haddock down the road back toward
the Minors’ house with his gun pointed toward Haddock’s feet. The defendant stated that
Haddock attempted to abscond back into the Minors’ house, and the two had a further
confrontation. A deputy from the sheriff’s department eventually arrived, and Haddock was
taken into custody.

       On cross-examination, the defendant testified that on the return trip back toward the
Minors’ house, he and Haddock walked on the main road, not the path, and they did not pass
by the Cunninghams’ porch. On examination by the court, the defendant estimated that
Haddock was “somewhere inside of 30 feet” away from him when he fired the shot.

        After the conclusion of the proof, the trial court observed that the critical question
was whether there was a reasonable probability that the defendant’s conduct placed “other
people, such as Kelly Cunningham, Matthew Haddock, Patricia Prock, Ms. Prock’s mother-
in-law and her handicapped son” in imminent danger of death or serious bodily injury. The
trial court found that the “proof has been established beyond a reasonable doubt that a
reasonable probability existed that [the defendant’s] conduct reasonably placed others in the
zone of imminent danger of death or serious bodily injury as charged.”




                                             -6-
                                          ANALYSIS

        The defendant argues that the evidence does not support his conviction because no
one was in the zone of danger when he fired his weapon. 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 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). 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 findings of the trial
judge in a bench trial carry the same weight as a jury verdict. State v. Holder, 15 S.W.3d
905, 911 (Tenn. Crim. App. 1999).

        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.” Tenn. Code. Ann. § 39-13-103(a) (2006). 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 “zone of danger”
is “that area in which a reasonable probability exists that the defendant’s conduct would

                                               -7-
place others in imminent danger of death or serious bodily injury if others were present in
that zone or area.” Id.

        We initially note that the indictment did not specify the victim of the reckless
endangerment with a deadly weapon charge. However, such was not necessary because our
supreme court in Payne determined that the offense of reckless endangerment could be
committed against “the public at large” if the proof demonstrated that members of the public
were in imminent danger of death or serious bodily injury due to the defendant’s conduct,
or, in other words, in the zone of danger. Id. at 28-29; see State v. Marques Lanier Bonds,
aka “Mark”, No. W2005-02267-CCA-R3-CD, 2006 WL 2663753, at *10 (Tenn. Crim. App.
Sept. 15, 2006). The question therefore is whether anyone was in the zone of danger when
the defendant discharged his shotgun. The defendant argues that “his action in discharging
a weapon into the ground did not and could not have placed any person in such imminent
danger as would be required to sustain a conviction” and that “the uncontroverted proof is
that the discharge of the weapon was a warning shot.”

      However, in the light most favorable to the State, the evidence shows that when the
defendant discharged his weapon, he was standing on one side of the Cunninghams’
driveway, and Matt Haddock was standing on the other side of the driveway – the side
toward Patricia Prock’s house. Prock’s house was uphill from the Cunninghams’ driveway,
and Prock was on her front porch. When the shot was fired, the two men were standing
approximately ten feet apart, and the shot hit, according to Kelly Cunningham, on
Haddock’s side of the driveway. Thus, a rational trier of fact could have found that both
Haddock and Prock were in the zone of danger created by a gunshot discharge in their
general direction.

        The facts of this case are clearly distinguishable from cases such as State v. Fox, 947
S.W.2d 865, 865-66 (Tenn. Crim. App. 1996), where the defendant shot up in the air into
a tree and there was no proof that any person was in the tree or nearby, and State v. Thomas
R. Baldwin, No. 01C01-9612-CR-00530, 1998 WL 426199, at *4 (Tenn. Crim. App. July
29, 1998), perm. to appeal denied (Tenn. Feb. 16, 1999), where the only potential victim was
behind the defendant when he discharged the weapon. Instead, these facts are closer to
those in State v. Steven Willard Self, No. 03C01-9807-CR-002, 1999 WL 553093, at *1-2
(Tenn. Crim. App. July 30, 1999), perm. to appeal denied (Tenn. Jan. 31, 2000), a case in
which a panel of this court affirmed a conviction for reckless endangerment where the
defendant shot a dog from across the street and the dog’s owner was standing approximately
fifteen to twenty feet away on her front porch.

       The trial court, as the trier of fact, heard the testimony and determined the credibility
of the witnesses. We will not second guess its determinations. The defendant has failed to

                                              -8-
prove that the evidence is insufficient to sustain his conviction.

                                       CONCLUSION

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


                                                    _________________________________
                                                    ALAN E. GLENN, JUDGE




                                              -9-
