        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs July 8, 2014

                  STATE OF TENNESSEE v. ANDRE WILSON

                  Appeal from the Criminal Court for Shelby County
                        No. 12-01044   Lee V. Coffee, Judge


              No. W2013-02012-CCA-R3-CD - Filed September 19, 2014


The Defendant, Andre Wilson, was convicted by a Shelby County jury of aggravated robbery
and felony reckless endangerment, for which he received an effective sentence of twelve
years’ incarceration. The sole issue presented for our review is whether the evidence is
sufficient to support the conviction of felony reckless endangerment. Upon review, we
affirm the judgments of the trial court.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J OHN E VERETT
W ILLIAMS, J., joined. J ERRY L. S MITH, J., Not Participating.

James E. Thomas, Memphis, Tennessee, for the Defendant-Appellant, Andre Wilson.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;
Amy P. Weirich, District Attorney General; and Lessie Rainey, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                         OPINION

       This case arises from a robbery at the B-52 Market in Memphis on July 3, 2011. The
Defendant, Andre Wilson, was subsequently indicted by the Shelby County Grand Jury for
one count of aggravated robbery of Lawrence Granderson, a Class B felony, and one count
of reckless endangerment with a deadly weapon against Romello Brooks, a Class E felony.
See T.C.A. §§ 39-13-402, -103. The following proof, in pertinent part, was presented at trial.

       Trial. David Huggins, store manager of the B-52 Market in Memphis, testified that
he was working on July 3, 2011. He explained that the store had four surveillance cameras
outside that never stopped recording. He identified a surveillance video from the day in
question, which was time stamped at 6:51 a.m. He also identified the Defendant in the video,
whom he knew as “NuNu.” Mr. Huggins, who had been working at the counter that
morning, said that an older man came to the store with a small child, bought some items, and
then left. He recalled that the man then returned, “upset and holding his face” and still
holding the child’s hand. The man reported that he had been hit and robbed. Mr. Huggins
stated that the man was bleeding and asked to use the phone to call the police. He did not
observe the events outside the store because he had been serving customers at the time.

        Lawrence Granderson, the named victim in the aggravated robbery count, testified that
he was hard of hearing. The victim said that on July 3, 2011, he returned home at 6:00 a.m.
after working the night shift. He then brought his four-year-old grandson, Romello Brooks,
to the B-52 Market to get some breakfast. As he was approaching the store, a man who was
sitting outside asked him, “Man, you got a dollar?” The victim told the man, later identified
as the Defendant, that he did not have any money and entered the store. Because the store
was not yet serving food, he used a ten dollar bill to purchase nine one-dollar lottery tickets
and received one dollar in change. As he left the store and headed toward his van, the victim
said that the Defendant quickly “jumped up” and demanded his money. After the victim told
the Defendant that he did not have any money, he observed a gun, which he described as a
shiny, dark revolver. He said that the Defendant “had [the gun] on [him]” and “was holding
it low” as if to hide it from passersby. He testified that he was afraid because the Defendant
pointed the gun at him and “waved it a few times” toward the ground and toward his
grandson, who was standing beside him. The victim stated that if the gun had discharged,
it would have struck his grandson. He testified that the incident “was just a messed up
thing[.]” As he tried to leave, the Defendant pushed him and held the gun on him,
demanding money. The Defendant then took the dollar and lottery tickets that were in the
victim’s hand. As the victim walked toward the store, the Defendant came up behind him
and hit him on the side of the face with the gun, drawing blood. The victim then entered the
store and called the police. At trial, he was unable to identify the Defendant.

       Lashonia Brooks testified that the victim is her stepfather and that her son, Romello
Brooks, was four years old in July 2011. After the incident at the B-52 Market, Ms. Brooks
said that the victim’s face was “messed up” and swollen. She stated that, prior to July 3,
2011, her stepfather did not have a scar on his face. She identified her son and stepfather in
the store’s surveillance video. Although she could not recognize anyone else in the video,
she said that she had known the Defendant and his family all her life.

       Sergeant Tim Goodroe of the Memphis Police Department (MPD) took a victim
statement and showed a photographic lineup to the victim on July 18, 2011. He said that the
victim almost immediately identified the Defendant. The victim signed the bottom of the
form and wrote, “This person robbed me at gunpoint.”

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        MPD Sergeant Velynda Thayer testified that she was the lead investigator in the
instant case. She obtained the surveillance video from the B-52 Market and developed the
Defendant as a suspect. She said that the victim’s identification of the Defendant from the
photographic lineup “was pretty immediate.” After filing a warrant for the Defendant’s
arrest, Sergeant Thayer was no longer involved in the case.

       Sharon Baker testified as the keeper of the records for the Shelby County General
Sessions Court Clerk’s Office. She authenticated an audio recording from a preliminary
hearing in September 2011 where the victim identified the Defendant as the man who robbed
him.

      Based on the above proof, the jury found the Defendant guilty as charged of
aggravated robbery and reckless endangerment with a deadly weapon. The trial court
subsequently sentenced the Defendant as a Range I, standard offender to consecutive terms
of ten years’ imprisonment for the aggravated robbery conviction and two years’
imprisonment for the felony reckless endangerment conviction. After the court denied the
Defendant’s motion for new trial, this timely appeal followed.

                                         ANALYSIS

        On appeal, the Defendant challenges only the sufficiency of the convicting evidence
with regard to his felony reckless endangerment conviction against four-year-old Romello
Brooks. He does not challenge his aggravated robbery conviction or the sentences imposed.
Specifically, the Defendant argues that the evidence failed to establish that Romello Brooks
was in imminent danger of death or serious bodily injury. He claims that the proof, at best,
reflects “only a mere possibility of danger, not a reasonable probability of danger.” The State
responds that there was sufficient evidence at trial to support the jury’s verdict. We agree
with the State.

        The State, on appeal, is entitled to the strongest legitimate view of the evidence and
all reasonable inferences which may be drawn from that evidence. State v. Davis, 354
S.W.3d 718, 729 (Tenn. 2011) (citing State v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010)).
This court has often stated that “[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.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). A guilty verdict
also “removes the presumption of innocence and replaces it with a presumption of guilt, and
the defendant has the burden of illustrating why the evidence is insufficient to support the
jury’s verdict.” Id. (citing State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982)).




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        When a defendant challenges the sufficiency of the evidence, the standard of review
applied by this court is “whether, after reviewing 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). Similarly, Rule
13(e) of the Tennessee Rules of Appellate Procedure states, “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.” Guilt may be
found beyond a reasonable doubt where there is direct evidence, circumstantial evidence, or
a combination of the two. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990)
(citing State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977); Farmer v. State, 343 S.W.2d 895,
897 (Tenn. 1961)).

       The standard of review for sufficiency of the evidence “‘is the same whether the
conviction is based upon direct or circumstantial evidence.’” State v. Dorantes, 331 S.W.3d
370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). The
jury as the trier of fact must evaluate the credibility of the witnesses, determine the weight
given to witnesses’ testimony, and reconcile all conflicts in the evidence. State v. Campbell,
245 S.W.3d 331, 335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim.
App. 1978)). Moreover, the jury determines the weight to be given to circumstantial
evidence and the inferences to be drawn from this evidence, and the extent to which the
circumstances are consistent with guilt and inconsistent with innocence are questions
primarily for the jury. Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d 646,
662 (Tenn. 2006)). When considering the sufficiency of the evidence, this court shall not
reweigh the evidence or substitute its inferences for those drawn by the trier of fact. Id.

       A person commits the offense of reckless endangerment when he or she “recklessly
engages in conduct that places or may place another person in imminent danger of death or
serious bodily injury.” T.C.A. § 39-13-103(a). When committed with a deadly weapon, the
offense is a Class E felony. Id. § 39-13-103(b)(2). A firearm is a “deadly weapon.” Id. §
39-11-106(a)(5)(A). A person acts recklessly “when the person is aware of but consciously
disregards a substantial and unjustifiable risk that the circumstances exist or the result will
occur.” Id. § 39-11-302(c). “The risk must be of such a nature and degree that its disregard
constitutes a gross deviation from the standard of care that an ordinary person would exercise
under all the circumstances as viewed from the accused person’s standpoint.” Id.

        The Tennessee Supreme Court has held that “for the threat of death or serious bodily
injury to be ‘imminent,’ the person must be 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)
(citing State v. Fox, 947 S.W.2d 865, 866 (Tenn. Crim. App. 1996)). The Court reasoned
that the imminent danger element required the State to show that a person or class of persons

                                              -4-
was in the zone of danger. Id. The term “zone of danger” refers to “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.” Id.

       In this case, the Defendant was convicted as charged of felony reckless endangerment
against four-year-old Romello Brooks. In challenging the sufficiency of the evidence, he
asserts that the proof failed to establish that Romello Brooks was placed in a reasonable
probability of danger. He contends that there was no evidence that the gun was real, loaded,
or ever discharged. We conclude that a rational trier of fact could have found beyond a
reasonable doubt that the Defendant engaged in reckless conduct that placed Romello Brooks
in imminent danger of death or serious bodily injury, and that the Defendant committed the
offense with a deadly weapon.

        The evidence adduced at trial, taken in the light most favorable to the State,
established that the victim and his four-year-old grandson, Romello Brooks, were walking
out of the B-52 Market on the morning of July 3, 2011. As they headed toward the victim’s
van, the Defendant “jumped up” and demanded money from the victim, who was hard of
hearing. The victim testified that Defendant then held a shiny, dark revolver on him and kept
the weapon low to conceal it from passersby. The gun was pointed at the victim and at his
four-year-old grandson, who was standing next to him. He said that he was afraid and that
if the weapon had fired, it would have struck Romello Brooks. The victim testified that the
Defendant was waving the gun around toward the ground in close proximity to his grandson
and that the incident “was just a messed up thing[.]”

       Based on this evidence, the jury could reasonably infer that the gun was real and
loaded and that the life of Romello Brooks was threatened. The facts established that the
Defendant consciously disregarded “a substantial and unjustifiable risk” when he waved a
gun toward the four-year-old boy. Although the Defendant argues that Romello Brooks was
not placed in imminent danger, the jury carefully viewed the surveillance video and chose
to accredit the victim’s testimony that his grandson could have been shot. See State v. Evans,
108 S.W.3d 231, 236-27 (Tenn. 2003) (citing State v. Carruthers, 35 S.W.3d 516, 557-58
(Tenn. 2000)). We conclude that the evidence sufficiently supports the Defendant’s
conviction for felony reckless endangerment. Accordingly, he is not entitled to relief.

                                      CONCLUSION

       Upon review, we affirm the judgments of the Shelby County Criminal Court.

                                                   ___________________________________
                                                   CAMILLE R. McMULLEN, JUDGE

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