                                                                                       12/22/2017
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                          Assigned on Briefs May 17, 2017

            STATE OF TENNESSEE v. SHELTON STONE GOSS

                  Appeal from the Circuit Court for Tipton County
                      No. 8460     Joe H. Walker, III, Judge
                     ___________________________________

                          No. W2016-01227-CCA-R3-CD
                      ___________________________________


Defendant, Shelton Stone Goss, was convicted by a Tipton County Jury of attempted
second degree murder, aggravated burglary, five counts of burglary of a vehicle, two
counts of theft under $500, one count of theft over $500, one count of theft over $1,000,
employment of a firearm during the commission of a dangerous felony to wit: attempted
second degree murder of Joshua Halleron, and possession of a firearm during the
commission of a dangerous felony: to wit: aggravated burglary of the Halleron residence.
He received an effective fourteen-year sentence to be served in confinement. On appeal,
Defendant argues that the evidence was insufficient to support his convictions. After a
thorough review of the record, we affirm the judgments of the trial court.

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

THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and ROBERT W. WEDEMEYER, JJ., joined.

Bryan R. Huffman, Covington, Tennessee, for the appellant, Shelton Stone Goss.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant
Attorney General; D. Michael Dunavant, District Attorney General; and James Walter
Freeland, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

      Background

        Phillip Jackson testified that he lived on Margaret Cove in June 2015, and
Defendant lived across the street from him with Defendant’s mother, stepfather, and
sisters. He had seen Defendant driving a white Dodge Caravan. On June 23, 2015, Mr.
Jackson, who worked as a plumber, awoke at 6:00 a.m., got dressed, and walked out of
the house at 6:15 a.m. He opened the passenger door to his work truck and noticed that
the glove box was open. Mr. Jackson then discovered that his loaded black Walther
PK380 pistol was missing from the driver’s door compartment. He also discovered that
his DeWalt cordless tool set, sewer snake drill, Milwaukee fix flaring tool, pistol holder,
Garmin GPS, Cobalt drill bit set, and Rigid pipe wrenches were missing. Mr. Jackson
checked his personal vehicle and found that his cell phone and floor jack were missing.
He found that a sander was taken from his back porch, and his vitamins, which he stored
in a cooler, were sitting on the porch. Mr. Jackson later discovered a bullet from the
Walther PK380 on the floorboard of his work truck. He testified that the first bullet
would have fallen out from the magazine and “slid[ ] down the receiver and fall[en] out”
if someone removed the magazine from the gun while it was fully loaded with a bullet
chambered.

        Mr. Jackson testified that he noticed his DeWalt tool bag sitting across the street
on Defendant’s driveway. The bag was thirty feet from the road and sixty to eighty feet
from Defendant’s white Caravan. Mr. Jackson knocked on the front door of Defendant’s
residence and spoke to Defendant’s step-father who allowed him to look inside the van.
Mr. Jackson personally observed some of his property inside the van, which included the
floor jack, Milwaukee hex tool, and copper tubing scraps. He estimated that his property
was worth more than $1,000 and that it would have taken the average person “maybe
three” trips to move the items taken from his vehicles. Mr. Jackson did not give
Defendant permission to enter his vehicles or take his property.

        Laura Brown testified that she lived on Shannon Lane in June 2015. At
approximately 7:00 a.m. on June 23, 2015, Ms. Brown walked outside to her vehicle to
leave for work when she noticed that the vehicle had been ransacked. She said: “The
glove compartment was opened, whatever, papers and things I had put over, strolled [sic]
everywhere.” Ms. Brown also discovered that her loaded Smith and Wesson .38 caliber
handgun that had been in the console of her car was missing, and she immediately called
police. She thought that she had paid more than $500 for the gun. Ms. Brown testified
that all of the loose change that she had in the car was also missing. She did not give
Defendant permission to enter her vehicle or take her property.

       Brett Kirk testified that he lived on Shannon Lane in June 2015, next door to the
Halleron residence. Mr. Kirk, who is a fireman, kept a backpack in the tool box of his
truck that contained medical supplies including a first aid kit, surgical masks, a knife, and
gloves. He was present on June 23, 2015, when law enforcement officers recovered a
surgical mask from between his home and the Halleron residence. Mr. Kirk testified that
he did not keep a Smith and Wesson handgun, medicine bottles, or money in the
backpack. He estimated that the backpack and its contents were worth less than $500.00.
Mr. Kirk did not give Defendant permission to enter his truck or take the backpack.


                                            -2-
       Joshua Halleron testified that he lived on Shannon Lane in June 2015 with his wife
Christina and their infant daughter. Brett Kirk was his neighbor. At approximately 3:30
to 4:00 a.m. on June 23, 2015, Mr. Halleron was awakened by his wife to investigate a
noise that she heard in the house. He testified:

        So I walked out of our bedroom, down the hallway. At that point, I was
        entering the kitchen, and I saw a couple of our kitchen drawers wide
        open. From that perspective, I have a direct line of sight to the back
        door, and at that point, I noticed that it was open between 6 inches and a
        foot. And at that point, that’s when [Defendant] came out of the living
        room, which was directly adjacent to my left, and that’s when I
        encountered him that morning.

Mr. Halleron said that he felt terror, and Defendant told him that “he had a gun and that it
was loaded.” He did not notice anything strange about Defendant, and Defendant’s
speech was not slurred or “difficult.” Defendant said that he was homeless and looking
for food. At that point, Mr. Halleron could not see the weapon because it was dark.
However, as he and Defendant made their way into the dining room where the light was
on, Mr. Halleron saw the gun in Defendant’s hand, and it was pointed at Mr. Halleron.

       Mr. Halleron testified that he and Defendant made their way through the house to
the back door. He said, “I opened it the rest of the way, I was just going to let him out of
the house. He’s standing no more than three to five feet away [from] me at this point.
Gun point[ed] at my middle of my torso, and that’s when he pulled the trigger.” Mr.
Halleron testified that he heard a “click” but the gun did not fire. He said that Defendant
was standing less than five feet when he pulled the trigger. At that point, Mr. Halleron
attempted to disarm Defendant, and Defendant pulled the trigger a “minimum of six”
times during the struggle. He then directed Mrs. Halleron to get his firearm and call 9-1-
1. Mr. Halleron testified that he eventually sat on Defendant and wrestled the gun away
from him and placed it on the dining room table. By that time, Mrs. Halleron had a 9-1-1
dispatcher on the phone, and she brought her handgun into the room. Defendant said that
he was homeless, that his back hurt, and that police were not going to help him. Two
police officers arrived at their house within five minutes.

       Mr. Halleron noted that Defendant had been wearing a backpack that fell off
during the struggle. He saw officers remove a silver revolver from the backpack along
with the Halleron’s cell phone, gold jewelry case, Conair Shaver, flip cell phone, radar
detector, pack of Extra bubble gum, stun gun, and three bottles of medicine. He noted
that the radar detector had been in Mrs. Halleron’s car. Mr. Halleron did not notice that
any coins had been taken from him but there were $30 missing from his wallet. He later
received his property, including the $30, back from police. The revolver did not belong
to him. Mr. Halleron estimated that the value of his property was less than $500.00. Mr.
Halleron testified that he did not give Defendant permission to take any of his property.

                                           -3-
       Christina Halleron testified that during the early morning hours of June 23, 2015,
she was awakened by a noise that she thought was her mother-in-law’s cat. She woke her
husband, Joshua, and he started looking around for the noise. Mrs. Halleron then heard
another voice that she did not recognize, and she heard Mr. Halleron say, “get the [     ]
out of my house.” She also heard the other voice say, “[T]he gun is loaded, the gun is
loaded.” At that point, Mrs. Halleron began looking for either her pistol or her husband’s
pistol. She heard Mr. Halleron yelling “put the gun down, put the gun down.” Mrs.
Halleron “snuck” into the living room to get her gun as she was dialing 9-1-1. She heard
Mr. Halleron yell, “Get my 40, get my 40.” She could see Mr. Halleron with his hands
on Defendant’s hands and holding him down. She also heard the “click, click, click” of a
gun. Mrs. Halleron got her gun and pointed it at Defendant while Mr. Halleron wrestled
the gun away from Defendant and placed it on the dining room table. She said that
Defendant told them that he was homeless and had no food. However, Mrs. Halleron
noted that their pantry was full, and Defendant had not taken any food.

       Officer Daryl Smith of the Atoka Police Department testified that on June 23,
2015, at approximately 3:58 a.m., he responded to a call at the home of Joshua and
Christina Halleron on Shannon Lane. Officer Mark Newson was already on the scene
attempting to handcuff an intruder. Officer Smith saw Mrs. Halleron holding a handgun.
Officer Smith took the gun and assisted Officer Newsom with handcuffing the intruder,
who was identified as Defendant. Officer Smith later observed a black automatic weapon
lying on a table in the residence. Mr. Halleron had indicated that he took the gun from
Defendant. He noted that the magazine was loaded backwards in the gun. When Officer
Smith took the magazine out of the gun he noticed that “it had a shell casing inside of it
that was kind of cocked up the wrong way.” He placed the items into an evidence bag.

       Officer Smith testified that he found a silver revolver in a black backpack that
Defendant was carrying. The backpack also contained a first aid kit, a knife, and a light
stick. Officer Smith recovered from the backpack the Halleron’s cell phone, jewelry
case, Conair shaver, a flip cell phone, a radar detector, a pack of gum, a stun gun, and
three bottles of medicine.

       Detective Chris Ellwood of the Atoka Police Department testified that on the
morning of June 23, 2015, he met Officer Smith at the police station and learned that
there had been an incident at the Halleron residence located on Shannon Lane. He then
helped Officer Smith process evidence including two loaded weapons and a backpack
recovered from the scene. At approximately 6:30 a.m., he and Officer Strickland
received a call about property that had been taken from a truck on Margaret Cove
belonging to Phillip Jackson who reported that his Walther PK380 had been stolen.
Detective Ellwood testified that he also met with Laura Brown, Brett Kirk, and Joshua
and Christina Halleron who lived on Shannon Lane. He explained that Shannon Lane
loops over Margaret Cove. He also said that Defendant lived in a residence on Margaret

                                          -4-
Cove directly across from Mr. Jackson’s residence. Detective Ellwood and Officer
Strickland processed the scene at Mr. Jackson’s house, and he noticed a bag full of tools
sitting in the driveway of the home that Defendant shared with his mother and stepfather.
Detective Ellwood testified that he found a blue and white surgical mask in the grass
between Mr. Kirk’s house and the Halleron’s property. There was also a similar mask
found by Officer Smith inside the Halleron’s home. Detective Ellwood testified that Ms.
Brown had reported that her .38 caliber Smith and Wesson handgun had been stolen from
her house.

       Detective Ellwood testified that the Smith and Weapon handgun was recovered,
and he verified that the weapon was functional. He said that the Walther PK380 handgun
was also recovered. Detective Ellwood noted that a Walther PK380 is a semiautomatic
handgun that is “double action” and almost acted as a revolver. He testified that the
weapon was tested, and he verified that it was functional. Detective Ellwood testified
that a Walther PK380 is unusual in that it is easy to load the magazine in backwards, and
even if loaded backwards, the magazine will lock and stay in place. He further testified
that when the magazine is loaded backwards and the trigger is pulled, the double action
will move forward, cock back, and move forward again. Detective Ellwood said that the
rounds will not fire, and the gun makes a “click, click” sound. He agreed that the gun
will not fire unless there is a round in the chamber, and a round cannot be loaded into the
chamber if the clip is in backwards.

        Shirley Adams, Defendant’s mother, testified that Defendant was living with her
and her husband on Margaret Cove on June 23, 2015. She said that Defendant had been
“upset a lot” a few days prior to that because he was “going through some things.” Mrs.
Adams testified that she tried to talk to Defendant but he would not tell her anything. She
saw that he had posted on Facebook about committing suicide. She said that the white
van parked in her driveway belonged to her daughter, Shelby. Mrs. Adams also noted
that anyone in the home had access to drive the van and that it was an extra vehicle. She
said that the driver’s side window of the van would not roll up, and anyone walking down
the street could open the vehicle.

      On the morning of June 23, 2015, Phillip Jackson visited her house and spoke to
her husband. She said that Mr. Jackson had noticed a bag of tools sitting on their
driveway. Mrs. Adams saw the bag of tools and noticed that the sliding door to the van
was open, and the interior light was on. She later spoke with police and learned that
Defendant had been arrested on Shannon Lane.

        Defendant testified that on the night of June 22, 2015, he picked up some Xanax
and Lortab pills from someone that he knew. He said that things were falling apart in his
life, and he “started falling in drugs to ease the pain, to take the pain away.” Defendant
noted that he had lost his job, and he and his biological father were not speaking to each
other much. Defendant thought that he took six or seven Xanax pills and one or two

                                           -5-
Lortabs. He could not recall the effect that the pills had on him. Defendant said that
before taking all of the pills, he remembered pulling into the driveway and going inside
the house to take a shower. He took the pills before leaving the house, got into his
vehicle, and drove away. Defendant said that he drove to the stop sign at the end of
Margaret Cove and discovered that he had a flat tire. He then turned around and drove
back home. Defendant said that he asked his mother about using another vehicle and she
said, “[N]o.” He testified that he looked for a spare tire and could not find one.
Defendant said, “By then, I don’t really remember much, but I remember walking across
the street breaking into somebody’s truck.” He also remembered “grabbing a pistol[.]”
Defendant testified that he did not remember going to the Halleron’s house or breaking
into Ms. Brown’s vehicle. Defendant claimed that the next thing he remembered was
waking up in the jail. He said that he did not remember meeting with Professional Care
Services, and he “slightly” recalled the interview with police two days after the offenses
took place.

        On cross-examination, Defendant admitted that he was not homeless on June 23,
2015, and he did not recall telling anyone that. Defendant agreed that he had a home and
food, and even though he was unemployed, he had everything that he needed. His sister
allowed him to drive the white Caravan. Defendant testified that he did not know that
Mr. Jackson had the gun in his truck, and he did not recall taking the magazine out of the
gun and putting it back in the wrong way or the bullet that fell out of it. Concerning the
theft at Mr. Jackson’s house, Defendant testified: “I remember grabbing a gun and seeing
stuff in the back and I started unloading it, and then I don’t remember anything after
that.” He did not recall taking vitamins from Mr. Jackson’s cooler and leaving them on
the porch. Defendant said that he did not know Laura Brown, and he did not recall taking
the silver Smith and Wesson handgun from her vehicle. He also did not recall being
inside the Halleron’s house or pointing the gun at Mr. Halleron and pulling the trigger.
Defendant could not explain why he rummaged through the medicine cabinet at the
Halleron home. He did not remember Brett Kirk or taking the backpack from Mr. Kirk’s
vehicle.

      Analysis

       Defendant argues that the evidence is insufficient to sustain his convictions for
attempted second degree murder of Joshua Halleron, aggravated burglary of the
Halleron’s home, five counts of burglary of a vehicle, two counts of theft under $500, one
count of theft over $500, one count of theft over $1,000, employment of a firearm during
the commission of a dangerous felony to wit: attempted second degree murder of Joshua
Halleron, and possession of a firearm during the commission of a dangerous felony to
wit: aggravated burglary of the Halleron residence. More specifically, he contends: “The
Jury Failed to Properly Consider Appellant’s Voluntary Intoxication Defense to the
Requisite Mens Rea,” and also asserts that his intoxication “negated the mens rea
required” for the offenses for which he was charged with and convicted of committing.

                                          -6-
       We review Defendant’s claim of insufficient evidence mindful that our standard of
review is whether, after considering 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,
319 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This
standard applies to findings of guilt based upon direct evidence, circumstantial evidence,
or a combination of direct and circumstantial evidence. State v. Dorantes, 331 S.W.3d
370, 379 (Tenn. 2011).

       When examining the sufficiency of the evidence, this court should neither re-
weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id.
Questions concerning the credibility of the witnesses, the weight and value of the
evidence, as well as all factual issues raised by the evidence are resolved by the trier of
fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must
afford the State the strongest legitimate view of the evidence contained in the record as
well as all reasonable and legitimate inferences which may be drawn from the evidence.
Id.

       Voluntary intoxication is not in itself a defense to prosecution, but it “is admissible
in evidence, if it is relevant to negate a culpable mental state.” T.C.A. § 39-11-503(a). In
Harrell v. State, 593 S.W.2d 664 (Tenn. Crim. App. 1979), this Court set forth the rule as
to when the proof requires a voluntary intoxication instruction:

        Proof of intoxication alone is not a defense to a charge of committing a
        specific intent crime nor does it entitle the accused to jury instructions ...;
        there must be evidence that the intoxication deprived the accused of the
        mental capacity to form specific intent. . . . The determinative question is
        not whether the accused was intoxicated, but what was his mental
        capacity.

Id. at 672 (citations omitted). The weight to place on such evidence and “the
determination of whether the voluntary intoxication negated the culpable mental
elements” are issues to be resolved by the jury. State v. Morris, 24 S.W.3d 788, 796
(Tenn. 2000).

       “A person commits theft of property if, with intent to deprive the owner of
property, the person knowingly obtains or exercises control over the property without the
owner’s effective consent.” T.C.A. § 39-14-103. Tennessee Code Annotated section 39-
14-402(a)(4) (2003) states, in relevant part, that: “[a] person commits burglary who,
without the effective consent of the property owner: . . . (4)[e]nters any . . . passenger car,
automobile, or truck . . . with intent to commit a felony, theft or assault or commits or
attempts to commit a felony, theft or assault.” Aggravated burglary is defined as

                                             -7-
“burglary of a habitation.” T.C.A. § 39-14-403(a). “Habitation” means “any structure,
including buildings, module units, mobile homes, trailers, and tents, which is designed or
adapted for the overnight accommodation of persons.” T.C.A. § 39-14-401(1)(A).
“‘Habitation’ also includes garages and other outbuildings that are ‘separately secured
and occupied portions’ of a habitation.” T.C.A. § 39-14-403, Sentencing Comm’n Cmts.

        Second degree murder is defined as “[a] knowing killing of another.” T.C.A. §
39-13-210(a)(1), and is a “result of conduct” knowing offense. State v. Page, 81 S.W.3d
781, 788 (Tenn. Crim. App. 2002). A person acts “knowingly” with respect to the result
of the person’s conduct when the person is aware that the conduct is reasonably certain to
cause the result. Id. § 39-13-302(b). Criminal attempt occurs when a person “acting with
the kind of culpability otherwise required for the offense . . . [a]cts 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.” T.C.A. § 39-12-101(a)(2). The offense of
employing a firearm during the commission of a dangerous felony requires proof of the
following three elements: (1) that defendant employed a firearm; (2) that employment
was during the commission or attempted commission of a dangerous felony; and (3) that
defendant acted intentionally, knowingly, or recklessly. T.C.A. §§ 39-11-301(c), 39-17-
1324(b). Possession of a firearm during the commission of a dangerous felony requires
proof that: (1) the defendant possessed a firearm; (2) the possession was with the “intent
to go armed; and (3) the first two elements occurred during the commission or attempted
commission of a “dangerous felony.” T.C.A. § 39-17-1324(a); See also State v. Fayne,
451 S.W.3d 362, 369-70 (Tenn. 2014). Aggravated burglary and attempted second
degree murder are defined as a “dangerous felony.” T.C.A. § 39-17-1324(i)(1)(B) and
(H).

        In this case, Defendant does not contest that the sufficiency of the convicting
evidence as to the non-mens rea elements of the offenses. Defendant argues that he could
not form the requisite specific intent to commit the offenses due to his alleged
intoxication. However, the jury rejected Defendant’s claim of voluntary intoxication, as
was its prerogative. The Defendant is entitled to no relief on this basis. We conclude that
there was sufficient evidence beyond a reasonable doubt to support Defendant’s
convictions for attempted second degree murder, aggravated burglary, five counts of
burglary of a vehicle, two counts of theft, theft over $500, theft over $1,000, employment
of a firearm during the commission of a dangerous felony, and possession of a firearm
during the commission of a dangerous felony. Defendant is not entitled to relief on this
issue.

                                      CONCLUSION

       For the foregoing reasons, the judgment of the trial court is affirmed.

                                    ____________________________________________
                                    THOMAS T. WOODALL, PRESIDING JUDGE

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