         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs December 12, 2006

                   STATE OF TENNESSEE v. MARIO L. SMITH

                Direct Appeal from the Criminal Court for Davidson County
                         No. 2004-C-2264    Seth Norman, Judge



                   No. M2006-00402-CCA-R3-CD - Filed Janaury 29, 2007


The defendant, Mario L. Smith, was convicted by a Davidson County Criminal Court jury of
attempted second degree murder, a Class B felony, and vandalism over $1000, a Class D felony, and
was sentenced by the trial court as a Range I, standard offender to concurrent sentences of nine years
and two years, respectively, in the Department of Correction. The sole issue the defendant raises on
appeal is whether the evidence was sufficient to sustain his attempted second degree murder
conviction. We conclude that the evidence was sufficient to sustain the conviction and, accordingly,
affirm the judgments of the trial court.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which NORMA MCGEE OGLE and D. KELLY
THOMAS, JR., JJ., joined.

William A. Lane, Murfreesboro, Tennessee, for the appellant, Mario L. Smith.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Dan Hamm and Sharon Reddick,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                             OPINION

                                              FACTS

         On August 24, 2004, the Davidson County Grand Jury indicted the defendant on one count
of attempted first degree murder and one count of vandalism over $1000 based on his role in two
shooting incidents that occurred on June 4, 2004, in North Nashville. In the first incident, a
pedestrian was walking down the street when the backseat passengers of an approaching vehicle
opened fire on him. In the second incident, which occurred in the same neighborhood moments
later, passengers of the same vehicle fired shotgun blasts into an unoccupied Ford Mustang that was
parked on the street.
        Jeremy Owens,1 the victim of the attempted murder, testified at the defendant’s trial that on
June 4, 2004, he was walking down the sidewalk on Sixth Avenue toward Buchanan Street when he
saw a small dark car coming toward him. As he looked toward the vehicle, the driver’s side rear
window lowered and a juvenile he recognized, Kelando Webster, fired a gunshot that struck him in
the leg. Webster got out of the vehicle from the driver’s side rear door, followed by the defendant,
who exited from the passenger’s side rear door. As Owens fled, both men fired several shots at him.
Owens said he heard the sound of the defendant’s gun being cocked and believed that it was a rifle.
He also said that he distinctly heard the sounds of two different guns being fired at him as he fled
from the area.

       Owens testified that he ran between two buildings, down an alley, and into a neighbor’s home
where he telephoned the police. He made a positive courtroom identification of the defendant as the
adult who had shot at him and testified that he and the defendant had known each other since they
were in the fifth grade, or approximately ten years. Owens stated that he was unarmed when the
incident occurred and that he received a gunshot wound to his knee from a bullet which passed
completely through his leg. On cross-examination, he acknowledged that he was not hit by any
shotgun pellets. He further acknowledged that he had been convicted in 2003 for selling drugs and
possessing a gun.

        Jesse Lee Woodson, Jr., testified that he was returning home from work at approximately
12:00 p.m. on June 4, 2004, when he heard gunshots and saw Owens, whose mother lived in his
neighborhood, running down the street and then hiding behind the next apartment. He said that
when Owens told him what was happening, he invited Owens into his apartment, wrapped his
bleeding leg with a towel, and instructed him to call the police. In the meantime, he stood at his
apartment door and saw a small, dark-colored car move slowly down the street, stop, and then take
off again.

        Carlos Milam testified that on June 4, 2004, he lived at 1816 Fourth Avenue North,
Apartment B, and drove a 1999 red Ford Mustang. Sometime between 11:00 a.m. and 12:00 p.m.
that day, he and his girlfriend heard gunshots, looked out the window, and saw the defendant
standing outside a black car with tinted windows and shooting a long gun at Milam’s Ford Mustang,
which was parked in front of his apartment. The defendant then got back in the vehicle and the
vehicle pulled off. Milam testified that he did not know the defendant prior to the incident but was
able to identify him later that same day after the police had stopped the occupants of the black
vehicle. He also made a positive courtroom identification of the defendant as the man he had seen
shooting at his Mustang. He estimated that the defendant caused over $3500 in damage to his
Mustang.

      Anthony Ashley testified that he was painting a house on Fourth Avenue on June 4, 2004,
when he heard multiple gunshots in the distance. A few seconds later, he heard gunfire two doors


        1
         This witness testified that his name was Jeremy Alan North. However, the prosecutor and defense counsel
addressed him as “M r. Owens,” and his name is listed as “Jeremy Owens” throughout the trial transcript.

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down, looked out, and saw two men, one of whom was armed with a shotgun, shooting from a
compact black car at a red Mustang on the street. Ashley identified the defendant in the courtroom
as the man who had been armed with the shotgun.

        Fourteen-year-old Shatika Clay testified that on June 4, 2004, her cousin, Terry Stuart, came
to her home to borrow her father’s black car. She said she rode in the front passenger seat as he
drove to pick up Kelando Webster, whom she knew as “Key Key”; Terrance Demoss, whom she
knew as “T”; and the defendant, whom she knew as “Mario.” She stated that when they picked up
the defendant at his home, he placed a long object wrapped in a sheet, which she later learned was
a long gun, in the trunk before getting into the rear seat of the vehicle with Webster and Demoss.
Inside the vehicle, the men discussed driving to “Salem Town,” an area near the water company
around Fourth Avenue and Buchanan Street. Clay said that she did not know why the men wanted
to go to “Salem Town,” but agreed that they had enemies who lived in that area.

        Clay testified that the defendant took his gun out of the trunk at some point prior to their
arrival in “Salem Town.” She said she believed that they drove first to Fourth Avenue where the
defendant got out, “shot up” the red Mustang, and then got back into their vehicle. They then drove
to Sixth Avenue where they saw Jeremy Owens, or “Worm,” walking down the street. Clay said that
she did not know the victim prior to the incident but heard the men in her vehicle mention his name.
She stated that she ducked her head down as the defendant, using his long gun, and Webster, using
what she guessed was a smaller gun, fired several times at the victim. Afterwards, Stuart drove to
his home where he and the defendant, who was carrying the long gun, got out of the vehicle, went
inside, and returned several minutes later without the gun. Because Webster realized he had lost his
cell phone, the group next returned to the Fourth Avenue location where the red Mustang was
parked. However, when Stuart saw the police, he began backing up, struck another car, and then
pulled over.

       On cross-examination, Clay acknowledged that, although she saw the defendant shoot at the
Mustang, she did not actually witness either him or Webster shoot at the victim because she had her
head down at the time. She said she did not recall having told the police in her original statement
that Webster was the only person she saw shoot the victim.

         Metro Police Officer Tim Matthews testified that he recovered two spent .12 gauge shotgun
shells from the street at the corner of Sixth Avenue and Buchanan Street and three .12 gauge shotgun
shells, a .32 caliber cartridge, a .32 caliber cartridge casing, and a cell phone from the street at 1816
Fourth Avenue North where the Ford Mustang was parked. He said that three shotgun blasts had
been fired at the Ford Mustang: two into the driver’s side window and one into the driver’s door.
Officer Matthews testified that he also collected an H and R .32 caliber revolver, which had been
found in the front yard of a vacant house on the corner, approximately half a block from the Ford
Mustang. On cross-examination, Officer Matthews acknowledged that he did not conduct any
gunshot residue tests on the suspects arrested in the case and did not process the recovered shells for
fingerprints.



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        Metro Officer Ernest Cecil testified that he was at the Fourth Avenue location talking with
the owner of the Ford Mustang and his girlfriend when a black, four-door vehicle drove by and the
girlfriend said, “[T]here they go right there.” In response, he and some of his fellow officers pursued
and stopped the vehicle, a four-door, dark-colored Geo Prism containing four men and one woman.
Officer Cecil stated that Stuart was the driver of the vehicle and the defendant, whom he identified
in the courtroom, was one of three backseat passengers. He said that he later recovered a .12 gauge
shotgun and .12 gauge shotgun shells from Stuart’s bedroom closet at Stuart’s mother’s residence.

         Detective Robert Swisher of the Metro Police Department, the lead detective assigned to the
case, testified that he ultimately charged two individuals in connection with the shooting: Kelando
Webster, who was charged in juvenile court, and the defendant. He said he personally interviewed
the occupants of the black vehicle and, from one of those interviews, obtained the information that
led to the recovery of the shotgun from Stuart’s home. He acknowledged that no fingerprint analysis
or ballistics testing had been performed on the weapon. He explained, however, that all of the
information he had received indicated that the defendant was the only person who had handled the
shotgun at the crime scenes.

        The defendant, testifying in his own behalf, provided the following account of the shootings.
During the two weeks that had elapsed since his and Stuart’s graduation, Stuart had regularly picked
him up from his home each morning so that the two could spend the day “hanging out.” When Stuart
arrived on the morning of June 4, he had his cousin, Shatika Clay, in the front passenger seat of his
vehicle and Kelando Webster and Terrance Demoss in the backseat. Demoss showed the defendant
the shotgun as the defendant got into the backseat and told the defendant that he was taking the gun
home. En route to Stuart’s house, Stuart asked the defendant if he wanted to ride to “Salem Town.”
He answered that he did not care but then suggested that they first drop off the gun. Stuart, however,
replied that they were only going to ride through the area.

        The defendant testified that they were driving down Sixth Avenue when they passed a group
of men and then saw the victim and his brother crossing the street. Upon seeing the victim, Webster
said, “[T]here goes the nigger that been trying to kill us,” lowered his window, fired two shots, and
began exiting the vehicle. At that point, the crowd of men started toward their vehicle and the
defendant, in order to protect himself and his friends, grabbed the shotgun and fired twice into the
air. The defendant claimed that he never aimed the shotgun at anyone and fired only so that he and
his friends could escape the area. He described the incident:

       The car was in a stop, he [Webster] was getting out of the car. It was a lot of people
       coming towards the car, so I grabbed the shotgun and shot once in the air. Then went
       on the other side of the car, I never pointed my gun at nobody. The gun that I had
       used that was in the car I never pointed at nobody. I shot again because his [the
       victim’s] brother was coming towards us. At that point I ran back in the, I ran and
       got in the car. As we ran and got in the car I told [Stuart], get us out of here.




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        The defendant testified that they were leaving the area when he saw the red Mustang on
Fourth Avenue. He said he told Stuart to stop because “that was the dude who set [them] up,” got
out of the car, “let shots up off in [the Mustang],” and then got back in the car. Stuart then drove
them to Stuart’s home, where Stuart deposited the shotgun. The defendant said he wanted to go
home at that point, but Webster, who had realized he had lost his cell phone, asked that the others
accompany him back to the area around the Mustang to search for it. Because Webster was his
friend, he agreed and the group returned to the area, where they were surrounded by the police. The
defendant denied that he and his friends discussed shooting the victim before the incident transpired.
He volunteered, however, that the victim and his friends had been shooting at him and his friends
“for over two months.” On cross-examination, the defendant testified that the victim and his friends
had shot at him five to seven times but acknowledged that he had never reported the shootings to the
police. He further acknowledged that, to his knowledge, the victim was unarmed on June 4, 2004.

                                             ANALYSIS

                                    Sufficiency of the Evidence

        The defendant challenges the sufficiency of the evidence in support of his attempted second
degree murder conviction. In considering this issue, we apply the familiar 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, 99 S. Ct. 2781, 2789 (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). “A guilty verdict by the jury, approved by the trial judge,
accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory
of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). 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


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defendant has the burden of demonstrating that the evidence is insufficient. See State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982).

         Second degree murder is defined as “[a] knowing killing of another.” Tenn. Code Ann. §
39-13-210(a) (2003 & 2006). “‘Knowing’ refers to a person who acts knowingly with respect to the
conduct or to circumstances surrounding the conduct when the person is aware of the nature of the
conduct or that the circumstances exist. A person acts knowingly 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[.]” Id. § 39-11-106(a)(20) (2003 & 2006). Criminal attempt is defined as follows:

              (a) A person commits criminal attempt who, acting with the kind of
       culpability otherwise required for the offense:

              (1) Intentionally engages in action or causes a result that would constitute an
       offense if the circumstances surrounding the conduct were as the person believes
       them to be;

                (2) Acts with intent to cause a result that is an element of the offense, and
       believes the conduct will cause the result without further conduct on the person’s
       part; or

               (3) Acts with intent to complete a course of action or cause a result that would
       constitute the offense, under the circumstances surrounding the conduct as the person
       believes them to be, and the conduct constitutes a substantial step toward the
       commission of the offense.

Tenn. Code Ann. § 39-12-101(a) (2003 & 2006).

         In arguing that the evidence was insufficient to sustain his conviction, the defendant points
out that Clay acknowledged she had her head down during the shooting and that the victim never
testified that he saw the defendant aiming the shotgun at him. However, when viewed in the light
most favorable to the State, the evidence was more than sufficient for the jury to find the defendant
guilty of the attempted second degree murder of the victim. After being shot by Webster, the victim
saw both Webster and the defendant get out of the rear seat of the vehicle. He said that each was
armed and that he heard the distinct sound of two different guns being fired at him as he fled from
the scene. Clay saw the defendant load the shotgun in the trunk of the vehicle when he joined the
group, take it out of the trunk prior to their arrival at the shooting location, and have it in his
possession when the group spotted the victim walking down the street. She testified that the men
discussed driving to “Salem Town” and acknowledged that they had enemies who lived there.
Notably, she said nothing about a crowd of men having approached or threatened their vehicle
before, during, or after the shooting. The defendant volunteered at trial that the victim and his
friends had been shooting at him before the incident, thus offering a motive for why he might have



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wanted to kill the victim. We conclude, therefore, that the evidence was sufficient to sustain the
defendant’s attempted second degree murder conviction.

                                        CONCLUSION

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


                                                      ___________________________________
                                                      ALAN E. GLENN, JUDGE




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