         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT JACKSON

                           AUGUST SESSION, 1998                    FILED
                                                              October 26, 1998
STATE OF TENNESSEE,         )          C.C.A. NO. 02C01-9801-CC-00016
                            )                                Cecil Crowson, Jr.
     Appellee,              )                                      Appellate C ourt Clerk

                            )
                            )          DECATUR COUNTY
VS.                         )
                            )          HON. JULIAN P. GUINN
JOS EPH LEE M CDAN IEL, JR .)          JUDGE
                            )
     Appe llant.            )          (Direct Ap peal)




FOR THE APPELLANT:                     FOR THE APPELLEE:

JOSEPH LEE MCDANIEL, JR.               JOHN KNOX WALKUP
Pro Se                                 Attorney General and Reporter
Harde man C ounty C orr. Facility
P. O. Box 549                          GEORGIA BLYTHE FELNER
Wh iteville, TN 3 8075                 Assistant Attorney General
                                       425 Fifth Avenu e North
                                       Nashville, TN 37243-0493

                                       ROBERT RADFORD
                                       District Attorney General

                                       JERRY WALLACE
                                       Assistant District Attorney
                                       Decaturville, TN 38329




OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                     OPINION


       The Appellant, Joseph Lee McDaniel, Jr., was convicted by a Decatur

County jury of one count of reckless endangerment, a Class E felony. The trial

court sentenced him as a Range I offender to two (2) years incarceration. On

appe al, Appellant cha llenges the sufficienc y of the convicting evidence and

argues that his sentence is excessive. After a review of the record befo re this

Court, w e find no e rror and a ffirm the trial co urt’s judgm ent.



                                        FACTS




       At appro ximate ly 10:00 p.m. on September 7, 1993, Owen Jimmy Keefus

was traveling ea stboun d on Inter state 40, s everal m iles west o f Exit 126 in

Decatur County. Keefus was driving his tractor trailer in the right lane of I-40

East when a red pick-up truck passed him on the right shoulder traveling at

appro ximate ly 75 to 80 miles per hour. When the truck pulled in front of him,

Keefus noted that the license plate number on the truck read “YKK-200.” The

truck then passed a U-Haul which was traveling in front of Keefus and proceeded

eastbound in the right lane. Keefus also passed the U-Haul, and when he pulled

alongside the pick-up in the left lane, he saw the driver’s arm extended out of the

window, saw “a flash” and then heard something hitting his truck.     Although he

did not hear gunshots, Keefus saw that the driver was holding a small firearm.

During the inc ident, h e was able to fully observe the person in the pick-up truck

and ide ntified him at trial as the A ppellant.




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       After the altercation, Keefus pulled his vehicle to the side of the road and

radioed for ass istanc e. He o bserv ed m arks o n his vehicle resembling bullet

holes w hich had not bee n prese nt prior to this in cident.

       Shor tly thereafter, Tennessee Highway Patrolman James Blackmon

arrived at the scene. Keefus gave him the vehicle’s license plate number and a

description of the vehicle and the driver. Upon his inquiry as to the license plate

numbe r, Trooper Blackmon learned that the pick-up was registered to the

Appe llant. Blackmon later spoke with Appellant, who conceded that Keefus’

description of the driver a nd pick-u p was a “pretty close” desc ription o f him and

his vehicle .

       Appellant was subsequently indicted on one (1) count of aggravated

assa ult with a dea dly weap on.      At trial, Troopers Blackmon and Roy Kent

Yoquelet testified that the marking s on the victim’s veh icle appeared to have

been caused b y gunfire. Further, Tro oper Yoquelet stated that he saw a bullet

lodged in the radia tor of Kee fus’ vehicle .

       Appellant presen ted an a libi defense at trial through the testimony of

Patric ia Crum . Crum , a Mississ ippi reside nt and b usiness associa te of Appe llant,

testified that she was with the Appellant on September 7, 1993.               She and

Appellant had a busin ess m eeting in Mem phis a t appro ximate ly 2:00 p.m ., and

Appellant later joined her and her husband for dinner in Mem phis. Crum testified

that after dinner, Appellant followed her and her husband to their hom e in

Mississip pi and did not leave until after 1:00 a.m. on Septem ber 8.

       Appellant also prese nted th e testim ony of S teven Russ ell, an investigator

with the Tennessee Department of Safety. Russell stated that no bullets or bullet

fragments were recovered from the victim’s vehicle. However, even though no




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ballistics exper t exam ined th e victim ’s vehic le, Rus sell test ified tha t, in his

opinion, a bullet proje ctile cause d the da mage to Keefu s’ truck.

         At the conc lusion of th e proof, the jury returned a guilty verdict for the

lesser offense of felony reckless endan germe nt. A date fo r senten cing wa s set,

but Appellant failed to appe ar. He was e ventu ally app rehen ded in Arkan sas in

April 1997. The trial court thereafter sentenced him as a Range I offender to two

(2) years incarceration. From his con viction a nd se ntenc e, App ellant b rings th is

appe al.



                               SUFFICIENCY OF THE EVIDENCE




         In his first issue, Appellant contends that the evidence is insufficient for a

reaso nable trier of fact to conclude that he is guilty beyond a reason able do ubt. 1

He argues that the victim’s testimony is contradictory in several respects, and

therefore, this Court should disregard his testimony in its entirety. He further

claims that because the state failed to presen t a weapon , a bullet or expert

ballistics testimony at trial, the jury was allowed to speculate as to whether the

crime was committed with a deadly weapon.

                                                         A.

         When an accused challenges the sufficiency of the evidence, this Court

must review the record to determine if the evidence adduced during the trial was

sufficient “to support the findings by the trier o f fact of g uilt beyo nd a re ason able

doubt.”      Tenn. R. App. P. 13(e).                 This ru le is app licable to findin gs of g uilt

         1
           Appellant concedes that no motion for new trial was filed “within thirty (30) days of the date the
orde r of se nten ce is e ntere d” as ma nda ted b y Ten n. R. C rim . P. 33 (b). T hus , all issu es w hich ma y resu lt
in the gran ting of a ne w trial are wa ived. Ten n. R. App . P. 3(e); State v. Sowder, 826 S.W.2d 924, 926
(Tenn. Crim. App . 1991). Wh ile Appellant correctly notes that this Court may review the record for errors
which af fect the s ubstan tial rights of the accus ed, see State v. Ma rtin, 940 S.W .2d 567, 569 (Tenn. 1997 ),
no such error is apparent from our review of the record.

                                                        -4-
predicated upon direct evidence, circumstantial evidence or a combination of

direct and circu mstan tial evidenc e. State v. Brewer, 932 S.W .2d 1, 19 (T enn.

Crim. App . 1996).

       In determining the sufficiency of the evide nce, this Cou rt does not reweigh

or reevalua te the evide nce. State v. Cabbage, 571 S.W .2d 832, 835 (Tenn.

1978). Nor may this Court substitute its inferences for those drawn by the trier

of fact from circumstantial evid ence. Liakas v. S tate, 286 S.W.2d 856, 859

(Tenn. 1956). To the contrary, this Court is required to afford the state the

strongest legitimate view of the e videnc e con tained in the re cord a s well a s all

reason able and legitimate inferences which may be drawn from the evidence.

State v. Tuttle , 914 S.W .2d 926, 932 (Tenn. Crim . App. 1995 ).

       Questions conce rning the credibility of the witnesses, the weight and value

to be given the evidence as well as all factual issues raised b y the evidence a re

resolved by the trier of fact, not th is Court. Id. Indeed, “[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 the ory of the State.” State v. Grace,

493 S.W .2d 474, 476 (Tenn. 197 3).

       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 C ourt

of illustrating why the eviden ce is insufficient to support the verdict returned by

the trier of fac t. State v. Tug gle, 639 S.W .2d 913, 914 (Tenn. 198 2).

                                           B.

       Appellant claims th at severa l aspects of Keefus’ testimony w ere

inconsis tent; therefo re, his testim ony sh ould be disreg arded in its entirety. First,

he comp lains that K eefus’ tes timony c oncern ing the tim e of the incid ent was

contradictory. During h is direct testimony, Keefus stated that the altercation

                                           -5-
occurred between 10:00 and 10:30 p.m. However, on cross examination, he was

confronted with a report to his em ployer whereb y he related the time of the

incident as 9:00 p.m. Although Keefus initially denied making the statement, he

event ually conc eded that he gave h is employer the wrong time. Keefus testified

that at the time he reported to his employer he was possibly confused as a resu lt

of the stress of having a weapon fired at him. Furthermore, Keefus’ testimony

concerning the time of the incident was corroborated by the testimony of

Troopers Black mon and Y oque let, who testified that the incide nt occ urred shortly

after 10:0 0 p.m.

       Appellant also claims that oth er portions of Ke efus’ testimony w ere

conflicting. Howeve r, any trivial inconsistencies we re resolved by the trier of fa ct.

This issu e is withou t merit.

                                            C.

       Appellant also contends that becau se the sta te did not p resent a weapon,

a bullet or expert ballistics testimony at trial, the jury w as allowe d to spec ulate

whether the crime was committed with a deadly weapon.

       Reckless endangerment is defined as “reckle ssly engag[ing] in conduct

which places or may place another person in imminent danger of death or serious

bodily injury.” Tenn. Code Ann. 39-13-103(a) (1991). Reckless endangerment

that is committed with a deadly weapon is a Class E felony. Tenn. Code Ann. 39-

13-103(b) (19 91).

       Keefus testified that when he pulled alongside the Appellant, he saw the

Appellant pointin g a sm all firearm at him, sa w “a flash” and then heard something

hitting his truc k. Altho ugh h e did n ot hea r guns hots, K eefus exam ined h is vehic le

and observed marks which resem bled bullet holes.                Add itionally, Troopers

Blackmon and Yoquelet testified at trial that the markings on the victim ’s vehic le

                                            -6-
appeared to have been caused by gunfire, and Trooper Yoquelet saw a bullet

lodged in the radia tor of Kee fus’ vehicle . Furthermore , Investigato r Russe ll, a

defense witness, opined that the dam age to the victim ’s vehic le was caused by

a bullet pro jectile.

         In light of the foregoing, we conclude that a rational juror could conclude

that the crim e was com mitted with a d eadly weapo n. Certainly, firing a weapon

at a vehicle while traveling at high speeds on a public roadway constitutes

“conduct which places or may place another person in imminent danger of death

or serious bodily injury.” Ten n. Code A nn. 39-13-10 3(a) (1991). Moreover, there

is overwhelming evidence that Appellant was the perpetrator of the crime. The

victim identified Appellant at trial, and the license plate “YKK-200" was registered

in Appe llant’s nam e.

         The evidence is m ore than sufficient to su pport Appe llant’s conviction for

felony rec kless en dange rment.



                                    SENTENCING




         In his next issue, Appellant asserts that the trial court imposed an

excessive sentence of two (2) years for felony reckless end angerm ent. Howeve r,

Appellant failed to include the transcript of the sentencing hearing in the record

for this Court’s review. It is the duty of the Appella nt to prep are an a dequa te

record for app ellate review. Tenn. R. App. P. 24(b). “When a party seeks

appellate review there is a du ty to prepare a record which conveys a fair,

accura te and co mplete accou nt of wha t transpired with respect to the issues

forming the ba sis of the appea l.” State v. Ballard, 855 S.W.2d 557, 560 (Tenn.

1993).     In the absence of an adequate record on appeal, this Court must

                                          -7-
presume that the trial court's rulings are sup ported b y sufficient ev idence . State

v. Oody, 823 S.W .2d 554, 559 (Tenn. Crim . App. 1991 ).

       Because Appella nt failed to submit the sentencing hearing transcript in the

record, we must presume that the trial court senten ced him correctly. See State

v. Carey, 914 S.W .2d 93, 97 (Tenn . Crim. A pp. 199 5); State v. Ivy, 868 S.W.2d

724, 72 8 (Ten n. Crim. A pp. 199 3). This iss ue is witho ut merit.



                                   CONCLUSION




       W e conclude that the eviden ce is sufficient for a rational trier of fact to find

Appellant guilty of felony reckless endan germe nt beyon d a reas onable doubt.

Moreover, Appellant’s failure to submit the sentencing hearing transcript re sults

in a waiver of his sentencing issue. Accordingly, we affirm the judgment of the

trial court.



                                   ____________________________________
                                   JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
DAVID H. WELLES, JUDGE


___________________________________
JOHN K. BYERS, SENIOR JUDGE




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