        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                       Assigned on Briefs December 15, 2015


              STATE OF TENNESSEE v. CARLOS CAMPBELL

                  Appeal from the Criminal Court for Knox County
                    No. 101406     Steven Wayne Sword, Judge




                No. E2015-00730-CCA-R3-CD – Filed March 3, 2016
                        ____________________________

Appellant, Carlos Campbell, stands convicted of two counts of aggravated assault, for
which the trial court sentenced him to an effective term of six years‟ incarceration. On
appeal, appellant argues that the evidence was insufficient to support his convictions and
that his statement to the police should have been suppressed. Following our review, we
affirm the judgments of the trial court.

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

ROGER A. PAGE, SP. J., delivered the opinion of the Court, in which JOHN EVERETT
WILLIAMS and D. KELLY THOMAS, JR., JJ., joined.

Leslie M. Jeffress (on appeal); and Bruce Poston (at trial), Knoxville, Tennessee, for the
Appellant, Carlos Campbell.

Herbert H. Slatery III, Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; Charme P. Allen, District Attorney General; and Ta Kisha M.
Fitzgerald, Assistant District Attorney General, for the Appellee, State of Tennessee.


                                       OPINION

       This case concerns a shooting near Austin East High School in Knoxville,
Tennessee, involving multiple parties and victims. One person was injured but survived.
Appellant, Laquinton Brown, Lajuan Harbison, and Arterious North were charged by
presentment for various offenses related to the shooting:
Count Defendant(s)               Offense                                                  Victim
1     Laquinton Brown            Attempted Especially Aggravated Robbery                  L.P.1
      Carlos Campbell            (by violence)
2     Laquinton Brown            Attempted Especially Aggravated Robbery                  L.P.
      Carlos Campbell            (by putting in fear)
3     Laquinton Brown            Attempted Aggravated Robbery                             Q.T.
      Carlos Campbell            (by violence)
4     Laquinton Brown            Attempted Aggravated Robbery                             Q.T.
      Carlos Campbell            (by putting in fear)
5     Laquinton Brown            Attempted First Degree Murder                            Lajuan
      Carlos Campbell                                                                     Harbison
6     Laquinton Brown            Attempted First Degree Murder                            Arterious
      Carlos Campbell                                                                     North
7     Laquinton Brown            Attempted First Degree Murder                            Montiere
      Carlos Campbell                                                                     King
8     Laquinton Brown            Employing a firearm during the commission
      Carlos Campbell            of a dangerous felony
9     Laquinton Brown            Employing a firearm during the commission
      Carlos Campbell            of a dangerous felony
10    Laquinton Brown            Employing a firearm during the commission
      Carlos Campbell            of a dangerous felony
11    Arterious North            Attempted First Degree Murder                            L.P.
      Lajuan Harbison
12    Arterious North            Attempted First Degree Murder                            Laquinton
      Lajuan Harbison                                                                     Brown
13    Arterious North            Attempted First Degree Murder                            Carlos
      Lajuan Harbison                                                                     Campbell
14    Arterious North            Attempted First Degree Murder                            M.W.
      Lajuan Harbison
15    Arterious North            Employing a firearm during the commission
      Lajuan Harbison            of a dangerous felony
16    Arterious North            Employing a firearm during the commission
      Lajuan Harbison            of a dangerous felony
17    Arterious North            Employing a firearm during the commission
      Lajuan Harbison            of a dangerous felony
18    Arterious North            Employing a firearm during the commission
      Lajuan Harbison            of a dangerous felony



        1
          It is the policy of this court to protect the identity of minor victims and witnesses. Therefore,
we will use initials for each minor involved in this case.
                                                   -2-
       The State dismissed counts seven and ten prior to trial. The trial judge granted
appellant‟s motion for a judgment of acquittal on counts one and three and partially
granted the motion on counts two and four by lowering the charges to aggravated assault.
The jury convicted appellant of aggravated assault for counts two and four and acquitted
him of the remaining charges. The trial court sentenced appellant to six years for each
conviction, to be served concurrently.

                                         I. Facts

      Because appellant was acquitted of many of the charges against him, we will limit
our summary of the trial testimony to facts pertinent to his convictions.

      Michael Allen Mays, the records keeper for the Knox County Emergency
Communications District (“9-1-1”), testified that 9-1-1 received a call from 2800 Martin
Luther King Jr. Avenue at 4:31 p.m. on September 7, 2012.

        Linda Detienne, a bus operator for Knoxville Area Transit, testified that she was
driving on Martin Luther King Jr. Avenue just past Austin East High School around 4:30
p.m. when she had to stop because a car ahead of her had stopped in the lane of traffic.
She said that there was one car between her bus and the stopped car, which she recalled
was gold in color. A young black man exited the gold car and approached two boys on
the sidewalk. Ms. Detienne explained that the young man said something to the boys and
that the boys turned out their pockets. She testified that the boys did not have anything in
their pockets and that the young man returned to the gold car, retrieved a gun, and began
firing. She recalled that the gold car‟s door had remained open.

       On cross-examination, Ms. Detienne testified that the driver of the gold car drove
away as soon as the shooting began. She agreed that there were girls on the sidewalk.
She said that the young man initially aimed at and fired on the boys on the sidewalk but
that he then ran away, firing more shots into the air.

       Malaika Rhonda Guthrie testified that she was a teacher at Austin East High
School. On September 7, 2012, she said that she was on her way to Vine Middle School
from Austin East High School around 4:30 p.m. and that she had her daughter and her
daughter‟s friend in the car with her. Ms. Guthrie said that she had to stop on Martin
Luther King Jr. Avenue because the dark-colored car in front of her had stopped. She
explained that there was no stop sign or any other reason for the car to have stopped. Ms.
Guthrie said that a man got out of the car in front of her and approached two male
students on the sidewalk. She testified that the car‟s door remained open. Ms. Guthrie
described the man‟s demeanor as “aggressive . . . not cordial.” The man confronted the
students, who pulled their pockets out. She testified that when the man turned back
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towards the car, she began hearing gunfire that she described as “tow, tow, tow-tow-tow-
tow-tow.” Ms. Guthrie said that she did not see any guns and that she ducked down in
her car. She testified that “when the car [in front of her] pulled off . . . [Q.T.] started
screaming and yelling, and they‟re shooting. They‟re shooting, and then [L.P.] fell—
well, he was standing at first, and he kept saying, „I been hit. I been hit,‟ and so he
couldn‟t move.” She clarified that the shooting had stopped when the car in front of her
drove away.

       On cross-examination, Ms. Guthrie testified that the car in front of her potentially
could have driven away during the shooting. She said that she was sure that the man who
had exited the car was on the sidewalk with the students when the shooting began and
that he got back into the car.

        A.G., Ms. Guthrie‟s daughter, testified that she knew L.P. because they were in the
same grade at Vine Middle School. She remembered a man getting out of the front
passenger seat of the car that had stopped in front of her mother‟s car. The man
approached the students on the sidewalk, and the students turned out their pockets. A.G.
said that she saw a dark car drive by in the other lane of traffic and that the shooting
began from the dark car. The people in the car in front of her mother‟s car began
returning fire. On cross-examination, A.G. agreed that she told police that the man who
had exited the car pulled out a gun and began firing back at the dark car. She was not
sure where he was when he began firing. She further agreed that she never said anything
to the police about anyone firing from the gold car.

        S.W. testified that L.P. was her cousin. On the day that L.P. was shot, she recalled
sitting outside with a group of freshman near Austin East High School. She said that she
saw a car drive by twice with several people inside who were listening to loud music.
S.W. testified that on the third pass, the car stopped in front of her group, and one man
exited. She said, “He stepped up to [L.P.] and [Q.T.] and tried to rob them.” According
to her, the man told them his name, where he was from, and that he was with the Crips or
Bloods, and then, the man “stepped back and pulled a gun out and started shooting.”
After that, another passenger from the car exited and began shooting. S.W. recalled that
the driver watched from the car while the man who had exited talked to L.P. and Q.T.
She recognized one of the passengers in the car as M.W. (the named victim in the
fourteenth count of the indictment in this case). S.W. testified that the second time that
the car had driven by, the passengers were “throwing Crip signs.”

       Q.T. testified that the day that L.P. was shot, he saw a car drive by twice. The
second time, he made a hand signal toward the car because he believed his brother was in
the back seat. The car stopped, and the front passenger exited. The front passenger
asked his group, „“Which one of y‟all threw a Blood?‟” They responded, „“We don‟t
bang.‟” Q.T. noticed that the man had a gun in his waistband. The man told him to
                                            -4-
empty his pockets. As Q.T. was complying, people started shooting from another car. He
and L.P. tried to run away, but L.P. fell. Q.T. recalled seeing the man who had
approached them running away, returning fire at the people shooting at him.

       L.P. testified that the day he was shot, he had not attended school. After school
was over, however, he met Q.T. and S.W. on Martin Luther King Jr. Avenue. He
recalled seeing a car drive by two or three times. He testified that the car stopped,
someone exited, and that person began talking to Q.T. L.P. described what followed:

      He like [sic], “Which one of y‟all threw up that Blood?” And he was like,
      “Didn‟t nobody throw up that Blood.” He was like, “Empty your pockets.”
      So [Q.T.] emptied his pockets. I was standing there. Another car pulled
      up, start shooting, and we were standing there. A bullet hit the wall. We
      looked at each other. I tried to take off[;] I fell.

L.P. recalled that the passenger who had approached them had a gun in his waistband.
When the shooting began, the passenger crossed the street and started shooting
“[t]owards Austin East.” L.P. testified that he was shot in the arm and stomach. Because
a bullet hit a nerve, he had to learn to walk again.

        Testimony from evidence technicians and a firearms examiner showed that a
Chevrolet Malibu and a Chevrolet Cobalt had each been hit multiple times by bullets. At
least three separate weapons were used. L.P. was shot by a .45 caliber bullet that bore
markings consistent with having been fired by a Hi Point gun. The .45 caliber bullet
from L.P. was also consistent with a .45 caliber bullet taken from the Chevrolet Malibu,
but the technician could not say with one hundred percent accuracy that they were fired
from the same gun.

       Knoxville Police Officer Bryan Wardlaw testified that he participated in an
interview of Laquinton Brown, appellant‟s codefendant. Parts of codefendant Brown‟s
interview were played for the jury. During his interview, codefendant Brown said that
the boys on the sidewalk had “thrown” gang signs. He approached them and made them
pull out their pockets to see whether they were carrying weapons. Codefendant Brown
said that another car, a Chevrolet Cobalt, drove up and shots were fired. He said that he
“hit the deck” and that the people he was with left him to die. He said that he did not
have a gun and that he took a bicycle to return to his neighborhood.

       Knoxville Police Investigator Chas Terry testified that he interviewed appellant on
October 21, 2012. In the interview, appellant said he had driven to a street near Austin
East High School and had stopped near a group of students. A car pulled up next to him,
and gunshots came from that car. He did not see who was in the car. Appellant said that
the next thing he knew, he was at a stop sign.
                                           -5-
        Knoxville Police Investigator Amy Jinks testified that she interviewed
codefendants Lajuan Harbison and Arterious North. Codefendant Harbison admitted to
firing a weapon during the Austin East incident. He told her that he had disposed of the
gun he used. Codefendant North told Investigator Jinks that he had a .357, that “Monte”
had a nine millimeter, that codefendant Harbison might have had a nine millimeter, and
that the people in the backseat (“Monte” and “Little Paul”) had a Glock and a Hi Point,
but he wasn‟t sure which person had which gun. On cross-examination, Investigator
Jinks testified that her investigation made clear that appellant had driven the gold car.

        Following Investigator Jinks‟s testimony, the State rested its case-in-chief.
Appellant and his codefendants moved for judgments of acquittal. The trial court
partially granted appellant and codefendant Brown‟s motion as to counts one through
four insofar as the trial court determined that there was no evidence upon which a
reasonable person could determine that codefendant Brown intended to rob the victims.
The trial court stated that it would submit counts two and four to the jury as aggravated
assault charges and would dismiss counts one and three. The trial court denied appellant
and his codefendants‟ motions for judgments of acquittal for each of the other counts of
the indictment.

       Codefendant Harbison testified in his own defense. He agreed that he had been
carrying a nine millimeter and that he had used it during the incident. He stated that
when he was driving on Martin Luther King Jr. Avenue that day, he thought he had to
stop because of a stop sign on the side of a bus. As he was stopping, he saw a child being
robbed, and he recognized L.P. and Q.T. Codefendant Harbison said that he never had
“beef” with L.P. and Q.T. He claimed that he only shot after the person robbing L.P. and
Q.T. shot. He also said that he was close enough to appellant‟s car that he “could have
killed” the people in the other car “if [he] wanted to.” He confirmed that appellant was
driving the other car. He did not know whether appellant had a gun. Codefendant
Harbison testified that the bullet hole on the hood of his Cobalt and one of the broken
windows occurred when people shot at his car and house sometime before the Austin
East shooting.

        Codefendant Brown testified in his own defense. He testified that he did not have
a gun on September 7, 2012. He said that he and appellant and two others were “riding
around chilling” when they saw someone flag them down. He got out of the car to find
out why the people had flagged them down. Codefendant Brown said that he went into
“safety mode” when he realized that he did not know the people and told them to “raise
their shirt up, empty out their pockets, check them for weapons.” He said that he stepped
back, heard a gunshot, and lay down in the street. Appellant drove away without him. On
cross-examination, codefendant Brown said that he, his uncle, and appellant rented a
vehicle the morning of the shooting, the same gold car they were in during the shooting.
                                           -6-
       After all parties rested their cases, the jury deliberated and found appellant guilty
of two counts of aggravated assault and acquitted him of all remaining counts. The jury
found codefendant Brown guilty of two counts of aggravated assault, two counts of
attempted voluntary manslaughter as lesser-included offenses of attempted premeditated
murder, and two counts of employing a firearm during the commission of a dangerous
felony. The jury found codefendants North and Harbison guilty of four counts of
attempted voluntary manslaughter as lesser-included offenses of attempted premeditated
murder and four counts of employing a firearm during the commission of a dangerous
felony.

        Subsequently, the trial court sentenced appellant to concurrent sentences of six
years for his aggravated assault convictions. There is no timely motion for new trial in
the record, only an amended motion for new trial filed on March 20, 2015, nearly a year
after sentencing.2 Because the motion for new trial was not timely filed, the time for
filing of the notice of appeal was not tolled. See Tenn. R. App. P. 4(c). Thus, the notice
of appeal was likewise untimely filed. However, in the interest of justice, we will waive
the untimely filing of the notice of appeal. See Tenn. R. App. P. 4(a).

                                             II. Analysis

                                  A. Sufficiency of the Evidence

       Appellant argues that there was insufficient evidence to support his convictions
and contends that the trial court should have granted his motion for judgment of acquittal
with regard to all charges. Specifically, he states that the only evidence supporting his
convictions was his own acknowledgment that he was driving the car from which
codefendant Brown exited.

        A motion for judgment of acquittal raises a question of law, i.e., the legal
sufficiency of the evidence, for determination by the trial court. State v. Adams, 916
S.W.2d 471, 473 (Tenn. Crim. App. 1995) (citing State v. Hall, 656 S.W.2d 60, 61 (Tenn.
Crim. App. 1983)). Thus, on appeal, this court applies the same standard of review both
to the trial court‟s denial of a motion for a judgment of acquittal and to the sufficiency of
the convicting evidence underlying the jury‟s verdict. State v. Carroll, 36 S.W.3d 854,
869 (Tenn. Crim. App. 1999) (citing State v. Ball, 973 S.W.2d 288, 292 (Tenn. Crim.
App. 1998)).



        2
           We note that appellant‟s trial attorney died several months after the trial; however, his death
occurred long after the time to file a motion for new trial had passed.
                                                   -7-
       The standard for appellate review of a claim challenging the sufficiency of the
State‟s evidence 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) (citing
Johnson v. Louisiana, 406 U.S. 356, 362 (1972)); see Tenn. R. App. P. 13(e); State v.
Davis, 354 S.W.3d 718, 729 (Tenn. 2011). To obtain relief on a claim of insufficient
evidence, appellant must demonstrate that no reasonable trier of fact could have found the
essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at
319. This standard of review is identical whether the conviction is predicated on direct or
circumstantial evidence, or a combination of both. State v. Dorantes, 331 S.W.3d 370,
379 (Tenn. 2011); State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977).

        On appellate review, “„we afford the prosecution the strongest legitimate view of
the evidence as well as all reasonable and legitimate inferences which may be drawn
therefrom.‟” Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857
(Tenn. 2010)); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978). In a jury trial, questions involving the credibility of
witnesses and the weight and value to be given the evidence, as well as all factual
disputes raised by the evidence, are resolved by the jury as trier of fact. State v. Bland,
958 S.W.2d 651, 659 (Tenn. 1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).
This court presumes that the jury has afforded the State all reasonable inferences from the
evidence and resolved all conflicts in the testimony in favor of the State; as such, we will
not substitute our own inferences drawn from the evidence for those drawn by the jury,
nor will we re-weigh or re-evaluate the evidence. Dorantes, 331 S.W.3d at 379;
Cabbage, 571 S.W.2d at 835; see State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).
Because a jury conviction removes the presumption of innocence that appellant enjoyed
at trial and replaces it with one of guilt at the appellate level, the burden of proof shifts
from the State to the convicted appellant, who must demonstrate to this court that the
evidence is insufficient to support the jury‟s findings. Davis, 354 S.W.3d at 729 (citing
State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011)).

        The State pursued a theory of criminal responsibility in this case. “A person is
criminally responsible as a party to an offense if the offense is committed by the person‟s
own conduct, by the conduct of another for which the person is criminally responsible, or
by both.” Tenn. Code Ann. § 39-11-401(a). Further, a person is criminally responsible
for an offense committed by the conduct of another, if “[a]cting with intent to promote or
assist the commission of the offense, or to benefit in the proceeds or results of the
offense, the person solicits, directs, aids, or attempts to aid another person to commit the
offense[.]” Id. § 39-11-402(2). While not a separate crime, criminal responsibility is a
theory by which the State may alternatively establish guilt based on the conduct of
another. Dorantes, 331 S.W.3d at 386 (citing State v. Lemacks, 996 S.W.2d 166, 170
(Tenn. 1999)). No specific act or deed needs to be demonstrated by the State, and
                                            -8-
furthermore, the presence and companionship of an accused with the offender before and
after the offense are circumstances from which participation in the crime may be inferred.
Ball, 973 S.W.2d at 293. However, to be convicted, “the evidence must establish that the
defendant in some way knowingly and voluntarily shared in the criminal intent of the
crime and promoted its commission.” Dorantes, 331 S.W.3d at 386 (citing State v.
Maxey, 898 S.W.2d 756, 757 (Tenn. Crim. App. 1994); State v. Foster, 755 S.W.2d 846,
848 (Tenn. Crim. App. 1988)).

       In order to sustain appellant‟s convictions, the State had to show that appellant
was criminally responsible for the actions of codefendant Brown and that Brown
committed aggravated assault. Aggravated assault, as charged in this case, is
intentionally or knowingly committing an assault that “involved the use or display of a
deadly weapon.” Tenn. Code Ann. § 39-13-102(a)(1)(A)(iii). “A person commits assault
who . . . [i]ntentionally or knowingly causes another to reasonably fear imminent bodily
injury.” Id. § 39-13-101(a)(2). Aggravated assault is a Class C felony. Id. § 39-13-
102(e)(1)(A)(ii).

       Viewed in the light most favorable to the State, the evidence at trial showed that
appellant was driving with codefendant Brown and at least one other passenger.
Appellant, codefendant Brown, and codefendant Harbison all acknowledged that
appellant was driving the gold-colored car. He drove by a group of students at least twice
and then stopped in the lane of traffic after one or more of the students made hand signals
towards his car. Codefendant Brown exited the car and approached the students. Q.T.
followed codefendant Brown‟s directions to turn out his pockets. At some point,
codefendant Brown displayed a gun—either one he already had on his person or one
retrieved from the car. The jury resolved the question of whether the victims were placed
in fear against appellant and codefendant Brown. See State v. Dotson, 254 S.W.3d 378,
395-96 (Tenn. 2008) (noting that a victim‟s reactions are circumstances the jury can
consider when determining if the victim had been in fear). Regarding criminal
responsibility, the evidence that appellant stopped the vehicle in a traffic lane for
codefendant Brown to exit is sufficient to show that appellant “in some way knowingly
and voluntarily shared in the criminal intent of the crime and promoted its commission.”
Dorantes, 331 S.W.3d at 386 (citing State v. Maxey, 898 S.W.2d 756, 757 (Tenn. Crim.
App. 1994)). Therefore, the evidence is sufficient to support appellant‟s convictions.

                        B. Suppression of Appellant‟s Statement

       Appellant contends that his statement to police should have been suppressed;
however, while the issue was presented in the amended motion for new trial included in
the record, there is no timely-filed original motion for new trial in the record before this
court. “A motion for a new trial which is not timely filed is a nullity.” State v. Dodson,
780 S.W.2d 778, 780 (Tenn. Crim. App. 1989); see Tenn. R. Crim. P. 33(b) (setting time
                                            -9-
limit for filing a motion for new trial). Therefore, this issue is waived. See Tenn. R.
App. P. 3(e) (“in all cases tried by a jury, no issue presented for review shall be
predicated upon error in the admission or exclusion of evidence . . . unless the same was
specifically stated in a motion for a new trial; otherwise such issues will be treated as
waived”).

                                    CONCLUSION

      Based on the record, the briefs of the parties, and the applicable law, we affirm the
judgments of the trial court.


                                                  _________________________________
                                                  ROGER A. PAGE, SPECIAL JUDGE




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