            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT JACKSON               FILED
                            MARCH 1998 SESSION



STATE OF TENNESSEE,           *      C.C.A. # 02C01-9703-CC-00125
                                                          April 21, 1998
             Appellee,        *      MADISON COUNTY

VS.                           *      Hon. Franklin Murchison, Judge
                                                          Cecil Crowson, Jr.
JAMES BYRON TRANSOU,          *      (Attempted First Degree Murder and
                                                           Appellate C ourt Clerk

             Appellant.       *      Aggravated Assault)




For Appellant:                       For Appellee:

Daniel J. Taylor                     John Knox Walkup
Assistant Public Defender            Attorney General and Reporter
227 West Baltimore Street
Jackson, TN 38301                    Deborah A. Tullis
(on appeal)                          Assistant Attorney General
                                     450 James Robertson Parkway
Pamela J. Drewery                    Nashville, TN 37243-0493
Assistant Public Defender
227 West Baltimore Street            Donald H. Allen
Jackson, TN 38301                    Assistant District Attorney General
(at trial)                           P.O. Box 2825
                                     Jackson, TN 38302




OPINION FILED:__________________________




AFFIRMED IN PART; REVERSED AND DISMISSED IN PART




GARY R. WADE, JUDGE
                                      OPINION

             The defendant, James Byron Transou, was convicted of attempted

first degree murder and aggravated assault. The trial court imposed concurrent,

Range II sentences of thirty-five years and eight years.



             In this appeal of right, the defendant claims that the evidence is

insufficient to support the conviction of attempted first degree murder and that

convictions for both attempted first degree murder and aggravated assault violate

double jeopardy principles.



             We affirm the conviction for attempted first degree murder. The

conviction for aggravated assault must be reversed and dismissed.



             The defendant and his former girlfriend, Tammy Curry, have a five-

year-old son, Brison. The victim, Terrance Woods, had been dating Ms. Curry for

approximately four and one-half years at the time of the trial in 1996. Ms. Curry also

has another child, Triston.



             On the afternoon of August 18, 1995, the victim was washing his car at

a carwash on Whitehall Street in Jackson when he observed the defendant and his

brother, Keith Transou, in a gray four-door Celebrity automobile. The victim

described the men as looking in his direction "shaking their heads and calling in a

wild, crazy way." The defendant remarked to him, "Bitch, we need to stop playing."

The victim testified that after he got in his Chevrolet automobile and began to drive

away, the defendant, who was driving the Celebrity, pulled alongside, aimed a pistol

through the open window on the passenger's side, and fired three or four shots.

One bullet struck a tire on the victim's automobile and three others grazed the


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passenger side door. Woods recalled that he then lost control of his car and spun

into a vacant lot. Although frightened, the victim was not injured by any of the shots.



              Vanessa Robertson lived nearby. At trial, she testified that she saw

the defendant, who was driving a Celebrity, fire several shots out of the passenger

window of his vehicle towards a green Chevrolet driven by the victim. She recalled

that the defendant's brother, who was sitting in the passenger's seat at the time of

the shooting, leaned back as the shots were being fired.



              Kentry Burris, a cousin to Ms. Curry, was at a convenient market just

prior to the shooting. As he walked away from the market, he heard squealing tires

and saw the victim in his Chevrolet being chased by a white Celebrity automobile.

Burris testified that he heard four to five shots just as the automobiles were driven

out of his sight. When he arrived at the scene, he observed .32 or .38 caliber shell

casings in the street. Burris observed another person in the car with the defendant.

He was unable to say who fired the shots.



              William Goodman, who was with Burris at the time of this incident,

testified that he also heard gunshots and saw a green car, driven by the victim,

spinning out of control in a vacant lot. Goodman recalled hearing four shots and

seeing a white car speed away from the scene after the shots were fired. He also

observed the spent shells.



              Police recovered three .38 caliber bullet casings at the location

described by Burris and Goodman. The bullets were from a gun with an automatic

cartridge. Officer David Russell of the Jackson Police Department, interviewed the

victim and several other witnesses. He estimated that the distance between the car


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wash area and where the shell casing were found was about seventy-five yards.



              There was testimony that in July of 1995, about one month before the

incident leading to these convictions, the victim drove Brison to the defendant's

residence for child visitation. As Brison got out of the car, the defendant pointed a

.38 revolver to his head, called him names, and threatened to kill him. The victim

sought a warrant. Two or three days later, the defendant approached Ms. Curry

while she was at work and threatened to kill her and the victim. Again, the police

were contacted.



              The defendant claimed self-defense. He testified that he and his son

drove by the carwash just after leaving a doctor's office. The defendant claimed that

the victim, armed with a gun, attempted to get him to stop. He contended that he

left the area and went to a friend's house where he obtained a .38 pistol. He

explained that he had been joined by his brother, Keith, just before the victim

blocked him with his vehicle. The defendant insisted that his brother fired the shots

out of fear of the victim. He claimed that the victim lost control of his vehicle just

before the shots were fired. The defendant also denied having pointed a gun at the

victim in the July 1995 incident and insisted that he had never made any threats

against him. On cross-examination, the defendant acknowledged that between

1990 and 1995, he had been convicted for robbery, aggravated assault, felony

reckless endangerment, forgery, and supplying false information to a police officer.



              Keith Transou, who testified on rebuttal for the state, confirmed that he

was in the passenger's seat of the defendant's vehicle at the time of the shooting.

He denied having fired any of the shots and contended that the defendant had

attempted to shoot the victim. He also stated that the victim displayed a pistol at the


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carwash. He testified that the victim was following them in his vehicle just before the

shots were fired; however, he did not see the victim in possession of a gun at that

time.



                                            I

              The defendant insists that the state was unable to prove that he

actually intended to cause the death of the victim. He points out that the shots

struck the left front tire and the passenger door of the victim's vehicle. He argued

that the evidence showed nothing more than an attempt to scare the victim or cause

damage to his vehicle.



              On appeal, the state is entitled to the strongest legitimate view of the

evidence and all reasonable inferences which might be drawn therefrom. State v.

Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses, the

weight to be given their testimony, and the reconciliation of conflicts in the evidence

are matters entrusted exclusively to the jury as the trier of fact. Byrge v. State, 575

S.W.2d 292, 295 (Tenn. Crim. App. 1978). A conviction may be set aside only when

the reviewing court finds that the "evidence is insufficient to support the finding by

the trier of fact of guilt beyond a reasonable doubt." Tenn. R. App. P. 13(e). A

guilty verdict, approved by the trial judge, accredits the testimony of the witnesses

for the state. State v. Hatchett, 560 S.W.2d 627, 630 (Tenn. 1978).



              First degree murder is defined as the premeditated and intentional

killing of another. Tenn. Code Ann. § 39-13-202(a)(1). Criminal attempt is defined

as follows:

              (a) A person commits criminal attempt who, acting with
              the culpability otherwise required for the offense:
                (1) Intentionally engages in action or causes a result
              that would constitute an offense if the circumstances

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              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.

              (b) Conduct does not constitute a substantial step under
              subdivision (a)(3) unless the person's entire course of
              action is corroborative of the intent to commit the
              offense.

              (c) It is no defense to prosecution for criminal attempt
              that the offense attempted was actually committed.

Tenn. Code Ann. § 39-12-101.



              The state introduced proof that the defendant had on at least one prior

occasion threatened to kill the victim. Within a month thereafter, he observed the

victim, borrowed a pistol, returned to where he had seen the victim, and then fired

several shots at the victim, causing his vehicle to spin out of control in an empty

field. The defendant's brother testified that the defendant shot at the victim. Bullets

struck a tire on the driver's side and the door on the passenger's side. In our view,

the jury acted within its prerogative in determining that the conduct of the defendant

was a substantial step towards the commission of first degree murder. The

evidence of guilt satisfies the standard prescribed in Tenn. R. App. P. 13(e); see

Jackson v. Virginia, 443 U.S. 307 (1979).



                                            II

              Next, the defendant contends that convictions for both attempted first

degree murder and aggravated assault would violate double jeopardy principles.

Tenn. Const., art. I, § 10. The trial judge acknowledged that the two offenses

                                            6
should have merged but was uncertain of which should remain. The state concedes

that the lesser offense of aggravated assault should be reversed and dismissed.



             In State v. Denton, 938 S.W.2d 373, 381 (Tenn. 1996), our supreme

court established a four-prong analysis in an effort to provide guidance on whether

two convictions arising out of the same facts are proper:

             (1) An analysis under Blockburger v. United States, 284
             U.S. 299, 304 (1932):

                    [W]here the same act or transaction
                    constitutes a violation of two distinct
                    statutory provisions, the test to be applied
                    to determine whether they are two offenses
                    or only one is whether each provision
                    requires proof of an additional fact which
                    the other does not.

             (2) An analysis of the evidence used to prove the
             offenses guided by the principles of Duchac v. State, 505
             S.W.2d 237, 239 (Tenn. 1973):

                    One test of identity of offenses is whether
                    the same evidence is required to prove
                    them. If the same evidence is not required,
                    then the fact that both charges relate to,
                    and grow out of, one transaction, does not
                    make a single offense where two are
                    defined by the statutes.

             (3) A consideration of whether there were multiple
             victims or discrete acts; and

             (4) A comparison of the purposes of the respective
             statutes.

Denton, 938 S.W.2d at 379-81. The supreme court pointed out that none of the

prongs of the test were determinative and that "the results of each must be weighed

and considered in relation to each other." Id.



             Recently, this court applied the Denton test in an effort to determine

whether convictions for attempt to commit second degree murder and aggravated

assault violated double jeopardy principles. State v. Hall, 947 S.W.2d 181 (Tenn.

                                          7
Crim. App. 1997). While acknowledging that the two convictions "passed" the

Blockburger test, this court determined that because the evidence used to prove

both offenses was the same, the rationale of Duchac would preclude an aggravated

assault conviction. Id.



              In this case, there were neither discrete acts nor multiple victims. A

comparison of the respective statutes suggest that, as in Denton, "it is unreasonable

to assume that the legislature intended that a defendant who commits one assault

on a single victim be convicted of both aggravated assault and attempted homicide."

Denton, 938 S.W.2d at 382. That view is buttressed by the following statute:

              When the same conduct may be defined under two (2) or
              more specific statutes, the person may be prosecuted
              under either statute unless one (1) specific statute
              precludes prosecution under another.

Tenn. Code Ann. § 39-11-109(b) (1991). The word "either" rather than "both"

suggests a legislative intent of a single prosecution.



              The conviction for aggravated assault must be reversed and

dismissed. Otherwise the judgment is affirmed.



                                          ________________________________
                                          Gary R. Wade, Judge

CONCUR:



_____________________________
Joe B. Jones, Presiding Judge



_____________________________
Jerry L. Smith, Judge




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