        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs August 3, 2010

                 STATE OF TENNESSEE v. DEREDIOUS OTIS

              Direct Appeal from the Criminal Court for Shelby County
                        No. 08-03503    Chris Craft, Judge




               No. W2009-02187-CCA-R3-CD - Filed December 7, 2010


The defendant, Deredious Otis, stands convicted of aggravated assault, a Class C felony. The
trial court sentenced him as a Range I, standard offender to four and a half years in the
workhouse. On appeal, the defendant presents seven issues for our review: (1) whether the
trial court erred in denying the defendant’s motion for judgment of acquittal; (2) whether the
trial court erred by not allowing the defendant to enter his own statement to police as
evidence; (3) whether the trial court erred by refusing to instruct the jury on the affirmative
defenses of self-defense and defense of a third party; (4) whether the trial court erred by
restricting defense counsel’s cross-examination; (5) whether the trial court erred by
threatening defense counsel with contempt; (6) whether the trial court committed a Batson
error in the composition of the final jury; and (7) whether the trial court improperly applied
sentencing factors. Finding no reversible error, we affirm the judgment of the trial court.

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

J.C. M CL IN, J., delivered the opinion of the court, in which J AMES C URWOOD W ITT, J R. and
J OHN E VERETT W ILLIAMS, JJ., joined.

Gerald S. Green (on appeal) and Andre Wharton (at trial), Memphis, Tennessee, for the
appellant, Deredious Otis.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Greg Gilbert, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                        Background
       This case concerns the February 16, 2008, shooting of the victim, Darron Mosley,
during an alleged robbery. On May 29, 2008, a Shelby County grand jury indicted the
defendant, Deredious Otis, for the especially aggravated robbery of the victim, a Class A
felony. The matter proceeded to trial in June 2009, and the parties presented the following
evidence.

        Porchia Banks testified that on February 16, 2008, she was spending the night at her
sister’s house near the intersection of Crump Boulevard and Latham Street in Memphis,
Tennessee. She said that she went to bed just after midnight, but she could not go to sleep
because of a commotion outside. She looked out her window and saw three men, who
appeared to be arguing, standing in between two cars in the parking lot adjacent to an
apartment complex. She watched them for a few minutes and went back to bed.
Approximately five minutes later, she heard gunshots. She looked out her window again and
saw two men standing over a man on the ground. Ms. Banks testified that “they were
fumbling . . . with him[,] . . . [a]nd then they walked off.” She went outside to check on the
victim, whom she later learned was Darron Mosley. Ms. Banks said that she did not see any
weapon at that point, nor did she see any weapons earlier when she observed the three men.
She asked the victim how he was and observed that he had been shot in the leg. He said that
he was okay and would drive himself to the emergency room, but she volunteered to drive
him. Before they left the parking lot, a black female, approximately eighteen or nineteen
years old, came outside and spoke with the victim, but he did not respond to her. Ms. Banks
testified that she was unable to see the faces of the men she had observed with the victim, but
she saw that they were both wearing dark-colored hoodies. Ms. Banks said that she called
911, but the victim did not want to wait for the ambulance, so she drove the victim to the
Regional Medical Center. She flagged down a police officer on the way, who followed them
to the hospital. After she and the officer helped the victim into the emergency room, she
went to 201 Poplar Avenue to give her statement to police.

       On cross-examination, Ms. Banks admitted that she exchanged cell phone numbers
with the victim and that they sent text messages to each other a few times. She recalled that
she sent him a text message while she was giving her statement to police asking whether the
female who spoke with him was his girlfriend. Ms. Banks said that the last time they had
communicated was the summer before the trial and that she no longer had the victim’s phone
number.




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        Darron Mosley testified that on February 15, 2008, he made plans with a woman
named Kierra Tunstall1 to pick her up from a party. He said that Ms. Tunstall was a cousin
of one of his cousins. He picked Ms. Tunstall and her child up from the party between 10:30
p.m. and 11:00 p.m. and took them to her apartment, which was in a complex near Crump
Boulevard and Latham Street. They stopped at a gas station on the way, and it was near
midnight when they arrived at her apartment. Ms. Tunstall and her child went into their
apartment while Mr. Mosley waited outside for Ms. Tunstall to return. After five to ten
minutes, he called her, but she did not come out right away. He left because he did not want
to wait for her any longer. As he was leaving, he saw two black teenage males flagging him
down, but he did not stop for them. Mr. Mosley testified that Ms. Tunstall called him after
he had driven for two to three minutes and asked him to come back. He returned to the
apartment complex, parked, and called her to let her know he was outside. Ms. Tunstall
came outside and got into his car. He had to move over to the passenger side so that she
could enter from the driver’s side because the passenger side door did not work. Mr. Mosley
said that two men approached his car at that point. He said that they looked like the men who
had flagged him down earlier based on their skin tone. Mr. Mosley testified that one of the
men pointed a gun at him, and the other man followed. The gunman told him to get out of
the car and demanded money. Mr. Mosley identified the defendant as the gunman. Mr.
Mosley said that one of the men grabbed Ms. Tunstall and told her to get out of the car.
When Ms. Tunstall was out of the car, Mr. Mosley climbed over to the driver’s side and got
out. He testified that as soon as he put a foot on the ground, the defendant fired three shots.
Two bullets hit Mr. Mosley, one in the right knee and another in the left shin. He fell to the
ground, and one of the men removed his money from one of his pockets. Mr. Mosley said
that he had just been paid that day and had between $250 and $300. He did not know which
man took his money nor did he know where Ms. Tunstall had gone. He saw the men run
away, and Ms. Banks came to him, asking whether he was okay. She took him to the
Regional Medical Center, where he stayed for four days and had surgery on his right knee.

        Officer Michael Coburn, a patrol officer with the Memphis Police Department,
testified that he responded to a shooting at 946 Gathers Park Lane, near the intersection of
Crump Boulevard and Latham Street. He said that the victim was not present at the scene
when he arrived. Officer Coburn located two shell casings and a bullet fragment in an empty
parking space. He secured the scene until a crime scene investigator arrived.

        Defense Proof. Sergeant Roderick Robinson, of the Memphis Police Department,
testified that he was the case officer who supervised the investigation in this case. He said



        1
            Mr. Mosley referred to Ms. Tunstall as “Kierra” throughout his testimony. However, Sergeant Robinson later
testified that her surname was Tunstall.

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that he interviewed the victim and Ms. Tunstall. The victim told him that he left parking lot
and returned. The victim also told him that he had picked Ms. Tunstall up from a party.

        Following the close of proof and deliberations, the jury found the defendant guilty of
the lesser included offense of aggravated assault, a Class C felony. The trial court sentenced
him as a Range I, standard offender to four and a half years in the workhouse.

                                            Analysis

        The defendant presents seven issues for our review: (1) whether the trial court erred
in denying the defendant’s motion for judgment of acquittal; (2) whether the trial court erred
by not allowing the defendant to enter his own statement to police as evidence; (3) whether
the trial court erred by refusing to instruct the jury on the affirmative defenses of self-defense
and defense of a third party; (4) whether the trial court erred by restricting defense counsel’s
cross-examination; (5) whether the trial court erred by threatening defense counsel with
contempt; (6) whether the trial court committed a Batson error in the composition of the final
jury; and (7) whether the trial court improperly applied sentencing factors.

        Initially, we note that in his brief, the defendant failed to make any reference to the
record. Generally, such failure results in waiver of the issue. Tenn. Ct. Crim. App. R. 10(b);
State v. Schaller, 975 S.W.2d 313, 318 (Tenn. Crim. App. 1997); State v. Turner, 919 S.W.2d
346, 358 (Tenn. Crim. App. 1995); see also Tenn. R. App. P. 27(a)(7) and (g). However, we
will review the defendant’s first issue - denial of his motion for judgment of acquittal - and
his last issue - improper application of sentencing factors.

                              Motion for Judgment of Acquittal
      The defendant asserts that the trial court erred by denying the defendant’s motion for
judgment of acquittal at the close of the state’s proof because the state did not present proof
beyond a reasonable doubt as to the indicted offense of especially aggravated robbery.

       The defendant presented proof in his defense at trial and thereby waived his motion
for acquittal at the conclusion of the state’s proof. “[A] defendant waives his or her right to
appeal from a trial court’s refusal to grant a motion for judgment of acquittal if the defendant
continues to participate in the trial after the close of the [s]tate’s proof.” Finch v. State, 226
S.W.3d 307, 316 (Tenn. 2007)(citing Mathis v. State, 590 S.W.2d 449, 453 (Tenn. 1979)).
To preserve the record for appellate review at the point he made the motion, “the defendant
must stand upon his motion, and rest his case without offering proof.” State v. Thompson,
549 S.W.2d 943, 945 (Tenn. 1977). If the defendant offers evidence and does not stand upon
his motion, then the defendant must renew the motion at the end of all of the proof to have
the issue considered on appeal. See id. If the defendant renews the motion, the trial and

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appellate courts will determine whether the motion should be granted based on a review of
the entire record. See id.

        At the close of the state’s proof, the defendant made a motion for judgment of
acquittal, which the trial court denied. After the trial court’s denial, the defendant continued
to participate in the trial by calling witnesses. The defendant did not stand on his motion for
judgment of acquittal nor did he renew his motion at the close of all the proof. Therefore,
we conclude that the defendant has waived his motion for judgment of acquittal.

       However, the state has addressed the defendant’s argument as challenging the
sufficiency of the convicting evidence. Because “[t]he standard by which the trial court
determines a motion for judgment of acquittal at the end of all the proof is, in essence, the
same standard which applies on appeal in determining the sufficiency of the evidence after
a conviction,” State v. Thompson, 88 S.W.3d 611, 614-15 (Tenn. Crim. App. 2000), we will
review the defendant’s claim as a sufficiency of the evidence challenge. Our review begins
with the well-established rule that once a jury finds a defendant guilty, his or her presumption
of innocence is removed and replaced with a presumption of guilt. State v. Evans, 838
S.W.2d 185, 191 (Tenn. 1992). Therefore, on appeal, the convicted defendant has the burden
of demonstrating to this court why the evidence will not support the jury’s verdict. State v.
Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). To meet this burden, the defendant must establish that no “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); State v. Evans, 108 S.W.3d 231, 236 (Tenn.
2003); Tenn. R. App. P. 13(e). In contrast, the jury’s verdict approved by the trial judge
accredits the state’s witnesses and resolves all conflicts in favor of the state. State v. Harris,
839 S.W.2d 54, 75 (Tenn. 1992). The state is entitled to the strongest legitimate view of the
evidence and all reasonable inferences which may be drawn from that evidence. Carruthers,
35 S.W.3d at 558; Tuggle, 639 S.W.2d at 914. Questions concerning the credibility of the
witnesses, conflicts in trial testimony, the weight and value to be given the evidence, and all
factual issues raised by the evidence are resolved by the trier of fact and not this court. State
v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). We do not attempt to re-weigh or re-evaluate
the evidence. State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002); Bland, 958 S.W.2d at 659.
Likewise, we do not replace the jury’s inferences drawn from the circumstantial evidence
with our own inferences. See State v. Elkins, 102 S.W.3d 581, 582 (Tenn. 2003); Reid, 91
S.W.3d at 277.

        The grand jury indicted the defendant for especially aggravated robbery; however, the
trial jury convicted the defendant of the lesser-included offense of aggravated assault.
Aggravated assault is the intentional, knowing, or reckless commission of an assault that
causes serious bodily injury or is accomplished through the use or display of a deadly

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weapon. Tenn. Code Ann. § 39-13-102. Assault, as relative to this case, is intentionally,
knowingly, or recklessly causing bodily injury to another. Id. § 39-13-101(a)(1). “‘Serious
bodily injury’ means bodily injury which involves: (A) A substantial risk of death; (B)
Protracted unconsciousness; (C) Extreme physical pain; (D) Protracted or obvious
disfigurement; [or] (E) Protracted loss or substantial impairment of a function of a bodily
member, organ or mental faculty . . . .” Id. § 39-11-106(a)(34). “Deadly weapon” means
“[a] firearm or anything manifestly designed, made or adapted for the purpose of inflicting
death or serious bodily injury . . . .” Id. § 39-11-106(a)(5).

        The victim testified that a gunman shot him in his right knee and left shin, and he
identified the defendant as the gunman. Whether the victim’s injuries suffice to meet the
definition of “serious bodily injury,” the defendant accomplished the assault with a deadly
weapon, to wit, a firearm. Therefore, the evidence was sufficient for any rational jury to find
the defendant guilty of aggravated assault.

                                        Sentencing
       The defendant appears to argue that the trial court applied inappropriate enhancement
factors because the factors were not found by a jury or admitted by the defendant, thus
violating Blakely v. Washington, 542 U.S. 296 (2004). While the defendant did not
adequately reference the record and has waived any other argument regarding his sentence,
we will address his specific argument.

        In Blakely v. Washington, the United States Supreme Court held that the Sixth
Amendment right to a jury trial requires that “[o]ther than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” Blakely, 542 U.S. at 301
(quoting Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)). The court emphasized that “the
relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding
additional facts, but the maximum he may impose without any additional findings.” Id.
303-04. The court further noted that the Sixth Amendment right to a jury trial is “no mere
procedural formality, but a fundamental reservation of power in our constitutional structure.”
Id. at 305-06.

       Thereafter, in Cunningham v. California, 549 U.S. 270 (2007), the United States
Supreme Court extended the Blakely analysis to California’s determinate sentencing scheme.
In doing so, the court noted:

       We cautioned in Blakely, however, that broad discretion to decide what facts
       may support an enhanced sentence, or to determine whether an enhanced
       sentence is warranted in any particular case, does not shield a sentencing

                                              -6-
       system from the force of our decisions. If the jury’s verdict alone does not
       authorize the sentence, if, instead, the judge must find an additional fact to
       impose the longer term, the Sixth Amendment requirement is not satisfied.

Cunningham, 549 U.S. at 290 (citing Blakely, 542 U.S. at 305 and n. 8)

       “In order to avoid the constitutional violation arising from a trial court increasing a
presumptive sentence on the basis of judicially-determined enhancement factors,” the
Tennessee General Assembly amended Tennessee Code Annotated sections 40-35-102, -210,
and -401, effective June 7, 2005, to reflect the advisory nature of enhancement factors. State
v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008). The amendment, among other things, removed
the presumptive sentence language from our Sentencing Act and mandated only that the trial
“court shall impose a sentence within the range of punishment . . . .” Compare Tenn. Code.
Ann. § 40-35-210(c) (Supp. 2005) with Tenn. Code Ann. § 40-35-210(c) (2003). The
General Assembly also provided that this amendment would apply to defendants who
committed a criminal offense on or after June 7, 2005. See 2005 Tenn. Pub. Act ch. 353, §
18.

       The defendant in this case committed the offense after the effective date of the 2005
amendments to the Sentencing Act. Therefore, his contention that the trial court erred by
applying sentencing factors that a jury had not found beyond a reasonable doubt or that the
defendant had not admitted is without merit because the General Assembly amended the
Sentencing Act, rendering the enhancement factors advisory, in order to avoid a
constitutional violation under Blakely. The defendant is without relief on this issue.

                                        Conclusion

       Based on the foregoing reasons, we affirm the judgment of the trial court.




                                                   ___________________________________
                                                   J.C. McLIN, JUDGE




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