           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                          April 12, 2005 Session

             STATE OF TENNESSEE v. KENNETH BUFORD, ALIAS

                     Direct Appeal from the Criminal Court for Knox County
                            No. 78521    Richard Baumgartner, Judge



                         No. E2004-01780-CCA-R3-CD - Filed June 23, 2005


The defendant appeals his conviction for reckless endangerment, contending specifically that the
evidence was insufficient to prove that he placed anyone in imminent danger of death or serious
bodily injury. Upon review, we conclude that because the defendant fired the gun in the air, away
from any person or potentially occupied building, the evidence is insufficient to sustain his
conviction. Therefore, we reverse the conviction and dismiss the charges.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Reversed and
                                        Dismissed

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

Tony McGuire, Knoxville, Tennessee, for the appellant, Kenneth Buford, Alias.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General;
Randall E. Nichols, District Attorney General; Ta Kisha Fitzgerald, Assistant District Attorney
General; and Jennifer Beyland, Special Prosecuting Attorney, for the appellee, State of Tennessee.

                                                    OPINION

                                         Facts and Procedural History

        The defendant, Kenneth Buford, was indicted by the Knox County Grand Jury on two counts
of reckless endangerment with a deadly weapon (a Class E felony); two counts of possession of a
firearm where alcoholic beverages are served (a Class A misdemeanor); and one count of unlawful
possession of a weapon (a Class A misdemeanor). Following a jury trial, he was convicted of both
counts of reckless endangerment with a deadly weapon and found not guilty of both counts of
possession of a firearm where alcoholic beverages are served.1 The two convictions were merged,
and the defendant was sentenced to one year of probation. He now appeals to this court, contending
       1
           The record reflects that the trial court dismissed the remaining count of unlawful possession of a weapon.
that the evidence was insufficient to prove that his actions posed an imminent danger of death or
serious bodily injury to others, as the statute requires.

        At trial, Officer J.D. Hopkins testified that he was employed with the Knoxville Police
Department and had occasion to respond to a disturbance at Club Temptations between 3:30 and
4:00 a.m. on February 1, 2003. Although initially dispatched to a fight call at the subject location,
while en route he was additionally informed that gunshots had been fired. Hopkins stated that when
he arrived, approximately fifty to seventy-five people were either standing in the parking lot adjacent
to the club or attempting to leave. He further described the parking area as “[e]xtremely crowded.”
Shortly after he arrived, Hopkins spoke with Connie Tate about what had occurred, and Tate directed
him to question the defendant.

         Upon so doing, the defendant admitted that he had indeed fired the shots. Hopkins testified
that the defendant explained that he was inside the establishment when someone informed him that
a fight had broken out. In an attempt to break up the altercation, the defendant took a revolver from
an unidentified man and proceeded outside. The defendant told Hopkins that he fired shots into the
air to disperse the crowd and then went back into the club. Hopkins testified that the gun was
confiscated by police following a consensual search of the building.

        Hopkins explained that the club is between 250 and 300 feet from Austin Homes and that
shots fired from Club Temptations could “absolutely” be heard from Austin Homes.2 Additionally,
Hopkins explained that the club’s parking lot is between fifty and seventy-five feet from McCalla
Avenue, a public thoroughfare. He stated that, in his experience, after a weapon is fired, people
nearby become fearful and nervous. He further stated that gunshots increase the possibility that other
armed individuals may draw a weapon in defense of themselves. In sum, he stated that such
circumstances “make[] for an extremely unsafe situation.” On cross-examination, Hopkins
explained that he had responded to many calls to Club Temptations for “disorder type issues.” He
further acknowledged that gunshots are an effective way to disperse a crowd. Finally, Hopkins
reiterated that the defendant stated that he fired the gun in the air.

         Connie Tate then testified that, on the night of the incident, she was present at the club with
her cousin and his girlfriend. She further stated that, shortly after paying to get into the club, her
companions decided that they did not want to stay and asked for their money to be returned. Tate
testified that, when their request was refused, the fight broke out and she phoned the police to report
the disturbance. She further testified that, before the police arrived, the fight was broken up inside
and that many of the patrons were leaving.

         She stated that she first saw the defendant with the gun inside the club and that the defendant
began shooting as she walked outside. Tate testified that there were “quite a few” people in the
parking lot and further described the parking lot as “packed.” She stated that when the defendant
fired the shots, some people ducked and others ran to their cars. She testified that after the shots were
fired, the defendant went back to the club and that the police arrived shortly thereafter. Finally, she
        2
            Although not expressly stated, it appears from the record that Austin Homes is an apartment complex.

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stated that she told the police what happened and then left. On cross-examination, Tate
acknowledged that she did not see the defendant shoot the gun and did not know where the gun was
pointed. However, she stated that she knew the defendant was the one who fired the shots because
he was the only person in the parking lot who had a gun.

         The State’s final witness, Officer Aaron Bowman, testified that he was employed with the
Knoxville Police Department and was one of the officers who responded to the subject incident. He
recalled that the defendant stated that he was an employee of the club and gave consent to search the
establishment. Bowman testified that he confiscated a .22 caliber revolver from behind the bar and
that the revolver was fully loaded, with two spent rounds. He stated that the smell of gunpowder and
the revolver itself indicated that the spent rounds were “freshly fired.” Bowman testified that the
defendant indicated that he “had control of the establishment” but did not state that he was in charge
of security.

        As the sole witness for the defense, Diana Howell testified that she was present on the night
of the subject incident because she was working as a disc jockey in the club. She testified that the
fight began in the hallway of the club, broke up shortly thereafter, and started again in the parking
lot. She stated that she saw the defendant shoot the gun “up in the air, away from the crowd.”
Howell further testified that the defendant shot “away from McCalla [Avenue]” and “away from
Austin Homes.” She stated that the defendant fired the gun toward empty warehouses and that there
were no people in that area. Howell testified that when the defendant fired the gun, it dispersed the
crowd. When asked to describe the people involved in the altercation, Howell responded that two
“big guys” were fighting and that there was a risk of injury.

        On cross-examination, Howell admitted that she did not see where the defendant got the gun
and that she was behind the defendant when the shots were fired. She further indicated that she was
somewhat shocked that the defendant fired the gun but that the defendant did it “to scare the crowd
off, [and] that’s what it did.” Finally, she admitted that she did not see where the shots landed.

                                               Analysis

        When an appellant challenges the sufficiency of the evidence, the standard of review is
whether, after viewing the evidence in the light most favorable to the state, 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); State v. Evans, 838 S.W.2d 185, 190-91
(Tenn. 1992); Tenn. R. App. P. 13(e). On appeal, the state is entitled to the strongest legitimate view
of the evidence and all reasonable or legitimate inferences that may be drawn therefrom. State v.
Elkins, 102 S.W.3d 578, 581 (Tenn. 2003). This court will not reweigh the evidence, reevaluate the
evidence, or substitute its evidentiary inferences for those reached by the jury. State v. Carey, 914
S.W.2d 93, 95 (Tenn. Crim. App. 1995). Furthermore, in a criminal trial, great weight is given to
the result reached by the jury. State v. Johnson, 910 S.W.2d 897, 899 (Tenn. Crim. App. 1995).

       Upon approval by the trial court, a jury verdict accredits the witnesses presented by the state
and resolves all conflicts in favor of the state. State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983).

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The credibility of witnesses, the weight to be given their testimony, and the reconciliation of
conflicts in the proof are matters entrusted exclusively to the jury as trier of fact. State v. Sheffield,
676 S.W.2d 542, 547 (Tenn. 1984); State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996).
A jury’s guilty verdict removes the presumption of innocence enjoyed by the defendant at trial and
raises a presumption of guilt. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The defendant
then bears the burden of overcoming this presumption of guilt on appeal. State v. Black, 815 S.W.2d
166, 175 (Tenn. 1991).

         The statute proscribing reckless endangerment is codified at Tennessee Code Annotated
section 39-13-103 and states:
         (a) A person commits an offense who recklessly engages in conduct which places or may
             place another person in imminent danger of death or serious bodily injury.
         (b) Reckless endangerment is a Class A misdemeanor; however, reckless endangerment
             committed with a deadly weapon is a Class E felony.
On appeal, the defendant’s sole contention is that the evidence presented was insufficient to establish
that the patrons standing in the parking lot were placed in imminent danger of death or serious bodily
injury by the shots he fired in the air.

        In support, he relies principally on State v. Fox, 947 S.W.2d 865 (Tenn. Crim. App. 1996),
which involved a defendant who fired a gun “into the air or up into a tree.” Id. In analyzing what
the offense of reckless endangerment requires, a panel of this court opined:
        [R]eckless endangerment is couched in terms of risk to another person produced by
        one’s conduct. This court has previously recognized the potentially “absurd” and
        “unreasonable” results that may arise from permitting prosecution of one discharging
        “a weapon under any circumstances where any other human being might possibly be
        present or where a stray bullet might possibly strike another person.” State v.
        Culbertson, 1995 Tenn. Crim. App. LEXIS 729, No. 03C01-9412-CR-00449, slip op.
        at 2 (Tenn. Crim. App. Aug. 30, 1995).

        We find the appellant’s mere discharge of a weapon into the air or up into a tree top
        did not “place another person in imminent danger of death or serious bodily injury.”
        Merely discharging a gun, standing alone, is not sufficient to constitute [the]
        commission of reckless endangerment. See People v. Richardson, 97 A.D.2d 693,
        468 N.Y.S.2d 114 (N.J. Super. Ct. App. Div. 1983) (holding discharge of gun into
        air does not constitute reckless endangerment).
Fox, 947 S.W.2d at 865-66. The defendant also cites State v. Payne, 7 S.W.3d 25 (Tenn. 1999), in
which the highest court of this state noted that “for the threat of death or serious bodily injury to be
‘imminent,’ the person must be placed in a reasonable probability of danger as opposed to a mere
possibility of danger.” Id. at 28.

      We conclude that the above-cited cases are instructive in analyzing the case at hand.
Although the state argues that the defendant’s actions “posed a real and imminent threat” to those
around him, we are of the opinion that any risk of death or serious bodily injury was a mere


                                                   -4-
possibility rather than a reasonable probability. Taken in a light most favorable to the state, the
testimony reveals that the defendant fired two rounds, enough to disperse the crowd, took the
revolver back inside the bar, and put it away. More importantly, the testimony established that the
defendant fired the gun into the air, away from both the street and any buildings in the vicinity that
could have been occupied. Therefore, the instant facts are analogous to Fox and are distinguishable
from other cases in which we have sustained convictions for reckless endangerment. See State v.
Alder, 71 S.W.3d 299 (Tenn. Crim. App. 2001) (reckless endangerment conviction sustained where
the victim was in line of fire and individual next to the victim was shot); State v. Christopher
Bengtson, No. E1999-01190-CCA-R3-CD, 2000 Tenn. Crim. App. LEXIS 760 (Tenn. Crim. App.,
at Knoxville, Oct. 2, 2000) (conviction sustained where the defendant pointed loaded shotgun, with
safety on, at a group of three people); State v. Steven Willard Self, No. 03C01-9807-CR-00227,
1999 Tenn. Crim. App. LEXIS 767 (Tenn. Crim. App., at Knoxville, July 30, 1999) (conviction
sustained where the defendant shot and killed a dog when the owner was fifteen to twenty feet away
from the animal). Upon review, we must conclude that the evidence did not establish that the
defendant’s actions created a reasonable probability of death or serious bodily injury. Therefore, the
element of imminent danger was not satisfied.

                                            Conclusion

       Because the proof established that the defendant pointed the gun in the air, away from any
person or occupied building, we conclude that the evidence was insufficient to prove that any person
was in imminent danger of death or serious bodily injury. As such, we reverse the defendant’s
conviction for reckless endangerment and dismiss the charges.




                                                        ___________________________________
                                                          JOHN EVERETT WILLIAMS, JUDGE




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