        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs August 21, 2001

                 STATE OF TENNESSEE v. MELVIN WATERS

               Direct Appeal from the Criminal Court for Davidson County
                        No. 2000-A-18    Steve R. Dozier, Judge



                  No. M2000-03224-CCA-R3-CD - Filed December 5, 2001


The defendant appeals from his convictions for facilitation of aggravated robbery, aggravated
assault, resisting arrest and criminal impersonation. The only issue raised by the defendant is
whether the evidence was sufficient to support his conviction for aggravated assault. Based on
our review of the evidence, we conclude that the co-defendant’s conduct amounted to aggravated
assault and that the defendant, as a party to the offense, was criminally responsible for that
conduct. The judgments of the trial court are affirmed.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
JAMES CURWOOD WITT, JR., JJ., joined.

Daniel L. McMurtry, Nashville, Tennessee, for the appellant, Melvin Waters.

Paul G. Summers, Attorney General and Reporter; Laura McMullen Ford, Assistant Attorney
General; Victor S. (Torry) Johnson III, District Attorney General; and Brian K. Holmgren,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                          OPINION

       The defendant, Melvin Waters, was indicted for the aggravated robbery of Dalton Pitts,
Count One; the aggravated assault of Fatima Jones, Count Two; disorderly conduct, Count
Three; resisting arrest, Count Four; and criminal impersonation, Count Five. A co-defendant,
Quawn Lillard, was also named in the indictment for Counts One and Two.

         The defendant was tried by a jury and found guilty of the lesser included offense of
facilitation of aggravated robbery on Count One, not guilty of Count Three and guilty as charged
in the indictments on Counts Two, Four and Five. The defendant is a Range II multiple
offender. The trial court sentenced the defendant to twelve (12) years for the facilitation of
aggravated robbery conviction, six (6) years for the aggravated assault conviction, and six (6)
months each for the resisting arrest and criminal impersonation convictions. The trial court
ordered the sentences to be served concurrently.

        The trial court denied the defendant’s timely motion for judgment of acquittal and motion
for a new trial and a timely notice of appeal followed. The defendant raises a single issue on
appeal: whether there was sufficient evidence to support his conviction for the aggravated
assault of Fatima Jones, Count Two.

                                             Facts

        The defendant and a co-defendant were tried jointly for the aggravated robbery of Dalton
Pitts and the aggravated assault of Fatima Jones based on events that occurred in August of
1999. Both Mr. Pitts and Ms. Jones, the victim, testified at the trial. Mr. Pitts was at the
victim’s home on the evening of August 20, 1999. Early in the evening, Mr. Pitts told the victim
that he needed change for a one-hundred-dollar bill in order to pay for bus fare to work in the
morning. The victim left the house to get change for Mr. Pitts but returned without success
because the store was closed. Later, the victim and Mr. Pitts were in her bedroom and she was
lying on her bed. Mr. Pitts was sitting on the bed playing video games when the defendant and
the co-defendant entered the bedroom. The co-defendant asked if Mr. Pitts wanted to go to the
store with him and the defendant to get change. Mr. Pitts declined to go to the store with the
defendant and the co-defendant because he did not know them.

       A short time later, the defendant and the co-defendant returned to the victim’s bedroom.
Mr. Pitts noticed that the defendant had a sawed off shotgun in his pants. The co-defendant
demanded that Mr. Pitts give him money. Mr. Pitts refused the co-defendant’s repeated requests
for money at which point the co-defendant asked the defendant to give him the gun. The
defendant gave the gun to the co-defendant and the co-defendant asked once again for Mr. Pitt’s
money. Mr. Pitts refused and the co-defendant fired the shotgun into the mattress of the bed.
Mr. Pitts then gave the co-defendant the one-hundred-dollar bill in his pocket. The co-defendant
handed the money to the defendant and the two men left. Both men ran out of the house, nearly
knocking down the victim’s mother as they left.

         The victim’s perception of the events differed slightly from that of Mr. Pitts. She
testified that she was lying on her bed while Mr. Pitts played video games. She noticed that
someone entered the room but was not concerned when she saw that it was the co-defendant
because she knew him. At first the victim did not pay attention to the conversation between Mr.
Pitts and the two defendants. Upon hearing the co-defendant say, “give me your money” and
“I’m not playing with you,” the victim turned to look at the co-defendant and the defendant. The
victim saw the co-defendant pull out a gun and hold it pointing toward the floor. Scared that the
co-defendant was going to shoot, the victim jumped from the bed and ran out of the bedroom.
The victim heard a gunshot after she went outside the house to tell her mother what was
happening inside. The victim testified that she never saw the defendant with a gun, nor did she
hear him say anything in her presence. She did, however, observe the defendant run from the
home with the co-defendant.


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        The victim’s mother reported the incident to the police. When the police arrived at the
scene, the co-defendant’s sister made a statement to police, which implicated the co-defendant.
In addition, the victim identified both the defendant and the co-defendant from a photographic
lineup. Mr. Pitts only identified the defendant from the photographic lineup. Mr. Pitts explained
during his trial testimony that the co-defendant was bald on the night of the crime but had hair in
the photograph, which was why he was not able to identify the co-defendant from the
photographic lineup. The defendant and the co-defendant were both charged with the aggravated
robbery of Mr. Pitts and the aggravated assault of the victim.

                                             Analysis

        The defendant contends that the evidence was insufficient to support his conviction for
the aggravated assault of Fatima Jones. When an accused challenges the sufficiency of the
convicting evidence, the standard 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. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S.
307, 322-25, 99 S. Ct. 2781 (1979), 61 L. Ed. 2d 560. Questions concerning the credibility of
the witnesses, the weight and value to be given the evidence, as well as all factual issues raised
by the evidence, are resolved by the trier of fact, not this court. State v. Pappas, 754 S.W.2d 620,
623 (Tenn. Crim. App. 1987).

        On appeal, the state is entitled to the strongest legitimate view of the evidence and all
reasonable inferences therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). This
court may not substitute its own inferences for those drawn by the trier of fact from
circumstantial evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).
Because a verdict of guilt removes the presumption of innocence and replaces it with a
presumption of guilt, the accused has the burden in this court of illustrating why the evidence is
insufficient to support the jury verdict returned by the trier of fact. State v. Tuggle, 639 S.W.2d
913, 914 (Tenn. 1982).

         The defendant claims that the evidence adduced at trial is insufficient to support his
conviction for aggravated assault because the victim’s testimony did not indicate that the
defendant’s conduct caused her to fear imminent bodily injury. We disagree. The victim
testified that she was lying on her bed when the defendant and the co-defendant entered her
bedroom. She testified that her boyfriend was also in the room and that he was sitting on the bed
playing a video game. The victim stated that when she first noticed the co-defendant she was
not concerned because she knew him. The victim did become concerned, however, when she
heard the co-defendant yell to her boyfriend, “Give me your money!” At this point the victim
turned to look in the direction of the defendant and the co-defendant, and saw the co-defendant
pull out a gun. The victim testified that she immediately jumped up and ran from the room
because she was scared that they would shoot.

        In order to support a conviction for aggravated assault the state must prove that the
defendant committed a knowing or intentional assault, as defined in Tennessee Code Annotated
section 39-13-101, and caused serious bodily injury or used or displayed a deadly weapon. Tenn.

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Code Ann. § 39-13-102(a)(1)(A)-(B). A person commits an assault if he intentionally or
knowingly causes bodily injury or causes another to reasonably fear imminent bodily injury.
Tenn. Code Ann. § 39-13-101(a)(1) - (2). A person acts intentionally “with respect to the nature
of the conduct or to a result of the conduct when it is the person's conscious objective or desire to
engage in the conduct or cause the result.” Tenn. Code Ann. § 39-11-302(a). One acts
knowingly when “with respect to a result of the person's conduct when the person is aware that
the conduct is reasonably certain to cause the result.” Tenn. Code Ann. § 39-11-302(b).

       According to the indictment, the defendant and his co-defendant “intentionally or
knowingly did cause Fatima Y. Jones to reasonably fear imminent bodily injury . . . and did use
or display a deadly weapon, to-wit: a short-barrel shotgun, in violation of Tennessee Code
Annotated 39-13-102.”

        Viewing the victim’s testimony in the light most favorable to the state, we conclude that
it was sufficient to establish the elements of aggravated assault and support the jury’s finding of
guilt beyond a reasonable doubt. The victim’s testimony that she ran from the room because she
was afraid that the co-defendant would shoot supports a finding that she was in fear of imminent
bodily injury. Additionally, the victim testified that the co-defendant displayed a deadly
weapon, which established that the assault was aggravated.

        With respect to whether the defendant’s conduct constituted aggravated assault of Ms.
Jones, the state points out that the defendant, as a party to the offense, is criminally responsible
for the conduct of the co-defendant. We agree. A defendant may be found criminally
responsible for 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, [he] solicits,
directs, aids, or attempts to aid another person to commit the offense.” Tenn. Code Ann. §
39-11-402(2) (1997). Thus, “‘it is necessary that [the] accused in some sort associate himself
with the venture, act with knowledge that an offense is to be committed, and share in the
criminal intent of the principal in the first degree; the same criminal intent must exist in the
minds of both.’” State v. Carson, 950 S.W.2d 951, 954 (Tenn. 1997) (quoting Jenkins v. State,
509 S.W.2d 240, 245 (Tenn. Crim. App. 1974)).

        Although a defendant's mere presence during the commission of a crime will not render
him criminally responsible for the conduct of another, “[n]o particular act [by the defendant]
need be shown.” State v. Jones, 15 S.W.3d 880, 890 (Tenn. Crim. App. 1999). That is to say, it
is not necessary that the defendant took physical part in the crime; “[e]ncouragement of the
principal is sufficient.” Id. Moreover, “[p]resence and companionship with the perpetrator of a
felony before and after the commission of the offense are circumstances from which one's
participation in the crime may be inferred.” State v. Ball, 973 S.W.2d 288, 293 (Tenn. Crim.
App. 1998).

       The evidence in the instant case was sufficient for the jury to find that the defendant was
criminally responsible for the conduct of the co-defendant. According to the victim’s testimony,
the defendant and the co-defendant entered her bedroom together. The victim testified that the
defendant stood beside the co-defendant while he demanded money from her boyfriend and

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while he displayed the gun. The defendant remained with the co-defendant after the victim ran
from the room. Additionally, the victim testified that the defendant and the co-defendant ran out
of the house together, ran down a hill, and “disappeared in the dark.” Furthermore, the victim’s
boyfriend, Dalton Pitts, testified that the defendant, and not the co-defendant, was the person
who entered the room with the gun in his pants. Mr. Pitts testified that the co-defendant asked
for his money. When Mr. Pitts refused to give it to him, the co-defendant asked the defendant
for the gun. Mr. Pitts testified that the defendant complied and remained with the co-defendant
while he fired the gun into the mattress beside Mr. Pitts and then took his money. Mr. Pitts also
testified that the co-defendant handed the money to the defendant and they both ran from the
room and out of the house.

       We conclude that the evidence was sufficient to support the conviction for the
aggravated assault of Ms. Jones. It is evident from the testimony of Ms. Jones and Mr. Pitts that
the defendant was acting in concert with the co-defendant and thus is criminally responsible for
the conduct of the co-defendant. Accordingly, the judgment of the trial court is affirmed.




                                                    ___________________________________
                                                    JOHN EVERETT WILLIAMS, JUDGE




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