       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                         Assigned on Briefs May 10, 2016

         STATE OF TENNESSEE v. SHIEMA MONIQUEKE REID

               Appeal from the Criminal Court for Davidson County
                    No. 2014-A-546    Steve R. Dozier, Judge



             No. M2015-00434-CCA-R3-CD – Filed September 21, 2016



A Davidson County Criminal Court Jury convicted the appellant, Shiema Moniqueke
Reid, of perjury, a Class A misdemeanor, and the trial court sentenced her to eleven
months, twenty-nine days to be served on supervised probation. On appeal, the appellant
contends that the evidence is insufficient to support the conviction. Based upon the
record and the parties‟ briefs, we affirm the judgment of the trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and TIMOTHY L. EASTER, JJ., joined.

Richard C. Strong, Nashville, Tennessee, for the appellant, Shiema Moniqueke Reid.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Glenn R. Funk, District Attorney General; and Nathan McGregor, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                      OPINION

                               I. Factual Background

       On August 23, 2012, the appellant was working as a waitress at the Hard Times
Bar and Grill on Dickerson Road in Nashville when a customer, Phillip Morton, shot and
killed another customer, Keith Gaston. On September 6, 2012, the appellant testified at
Morton‟s preliminary hearing. In January 2014, the Davidson County Grand Jury
indicted the appellant for aggravated perjury based upon her giving false testimony
during the hearing. Specifically, the indictment alleged that the appellant
              did intentionally make a false statement under oath, to wit:
              that, on August 23, 2012, at the time that Keith Gaston
              was shot and killed . . . she was very close to both Keith
              Gaston and Phillip Morton in that Phillip Morton had to
              move to let her pass by to get to the bar . . . .

       At the appellant‟s trial, Bret Gunn, an assistant district attorney general for Putnam
County, testified that he was a prosecutor in Davidson County at the time of Gaston‟s
death and in charge of the State‟s first degree murder case against Morton, including
Morton‟s preliminary hearing. Nine surveillance cameras were recording in different
areas of the Hard Times Bar and Grill at the time of the shooting, but General Gunn did
not watch the video of the shooting prior to the preliminary hearing. Three witnesses,
one of whom was the appellant, testified at the hearing. General Gunn said that he had a
“hurried first meeting” with the appellant before the hearing began and that he had a
summary of what she had told the police,

              which was that she had been near both the victim and the
              defendant at the time of the shooting; that she had been up at
              the bar picking up a drink order and gotten very close to the
              defendant; had turned and walked away for a brief time, like a
              couple seconds, and then she heard the shot.

The statements the appellant made to General Gunn before Morton‟s preliminary hearing
were consistent with what she had told the police.

       General Gunn testified that Gaston was shot in the head and received a contact
wound, “meaning the gun was pressed up against his head.” Therefore, “the only people
that could have done it were people that were within the distance to have touched him.
So it was critical as to when that shot was fired who could have been within that range.”
General Gunn called the appellant to testify at the hearing to establish that Morton was
the only person close enough to Gaston “to have done that.”

       General Gunn testified that after Morton‟s preliminary hearing, he watched the
video recording of the shooting. At that time, he was concerned about Morton‟s
movements and did not pay attention to the appellant in the video. Later, in preparation
for Morton‟s trial, General Gunn met with the appellant in her home “so she could show
[him] where she was on the video.” General Gunn played the video for the appellant on a
laptop computer. He did not see her in the video and tried to get her to explain to him
where she was located.

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        General Gunn testified the he replayed the video for the appellant and that she
identified herself in the video a few minutes before the shooting. The video showed the
appellant leaving the bar area where Morton and Gaston were located and going into a
room with pool tables. The appellant did not reappear in the bar area until several
minutes later, after the shooting. The video then showed her going to Gaston, who was
lying on the dance floor, and staying with him until the police arrived. The only way to
get to the dance floor from the pool tables was through the bar area.

        General Gunn testified that the appellant‟s preliminary hearing testimony did not
match the video and that the appellant was “clearly not where she said she was” at the
time of the shooting. He stated that when he confronted her about the inconsistency, she
“balled up” her subpoena for Morton‟s trial, threw it down, and said she was not coming
to court. General Gunn told her the subpoena required her to appear in court. The
appellant never offered any explanation for why the video did not corroborate her
preliminary hearing testimony, never said she had made a mistake, and “just seemed
mad.” General Gunn stated that the situation with her “just kind of deteriorated” and that
he left her home. The appellant had given “pretty damning” testimony against Morton at
Morton‟s preliminary hearing, and the grand jury indicted Morton for first degree murder.
However, General Gunn did not call the appellant to testify at Morton‟s trial “because she
clearly lied” at the hearing.

       The State played an audio-recording of the appellant‟s testimony at Morton‟s
preliminary hearing for the jury. During the hearing, the appellant testified that she had
never met Gaston before the shooting but that Morton was a regular customer at the Hard
Times Bar and Grill. General Gunn asked her, “Just prior to the shooting, were you
positioned close to where the victim was seated?” The appellant answered, “Yes sir, I
was getting an order [at the bar].” The appellant acknowledged that while she was at the
bar, both Morton and Gaston were on one side of her and were close to each other. The
appellant said that after she filled her drink orders at the bar, she asked Morton to “let
[her] by” and began walking away from the bar in order to deliver the drinks. About four
seconds later, she heard a “pop” and saw that Gaston had fallen out of his chair and onto
the dance floor.

       The State also played the video recording for the jury, which showed different
areas of the Hard Times Bar and Grill on August 23, 2012. The video showed that in the
minutes before the shooting, Gaston was sitting at a table at one end of the bar, near the
dance floor, and that the appellant was filling drink orders at the other end of the bar. At
35 minutes, 28 seconds on the video, the appellant left the bar and went into the pool
table room. The shooting occurred at 38 minutes, 40 seconds. The appellant reentered
the bar area from the pool table room at 39 minutes, 29 seconds and walked through the

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bar area toward the dance floor. She reached Gaston, who was lying on the floor, at 39
minutes, 39 seconds.

       On cross-examination, General Gunn testified that while he was playing the video
for the appellant, she “kept affirming that she was at that corner of the bar where she said
she was just prior to the shooting.” General Gunn asked the appellant if she was
positioned close to the victim “[j]ust prior” to the shooting but did not define “just prior”
for her. He acknowledged that the video showed the appellant at the bar near Gaston and
Morton at 33 minutes, 29 seconds. However, the shooting occurred more than five
minutes later and after the appellant had left the bar area and gone into the pool table
room. General Gunn said that based upon the appellant‟s preliminary hearing testimony,
he had “expected to see her up to the corner of the bar moments before the shooting.”
Defense counsel asked, “And five minutes doesn‟t encompass moments?” General Gunn
answered, “Not to me, no.” He said that he did not threaten to charge the appellant with
aggravated perjury while he was at her home but that he told her she had a subpoena for
Morton‟s trial and, therefore, could be arrested if she did not come to court.

        At the conclusion of General Gunn‟s testimony, the jury convicted the appellant of
perjury, a Class A misdemeanor, as a lesser-included offense of aggravated perjury. The
trial court sentenced her to eleven months, twenty-nine days to be served on supervised
probation.

                                       II. Analysis

        The appellant claims that the evidence is insufficient to support the conviction.
First, she contends that the evidence fails to show that her “misstatements were intended
to deceive.” She also contends that General Gunn‟s question about where she was “just
prior” to the shooting was insufficiently specific to allow a conviction for perjury because
her subjective interpretation of the phrase differed from his; thus, the evidence fails to
show that she gave a false statement. The State argues that the evidence is sufficient.
We agree with the State.

       When an appellant challenges the sufficiency of the convicting evidence, the
standard for review by an appellate court is “whether, after viewing 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.” Jackson v. Virginia, 443
U.S. 307, 319 (1979); Tenn. R. App. P. 13(e). The State is entitled to the strongest
legitimate view of the evidence and all reasonable or legitimate inferences which may be
drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions
concerning the credibility of witnesses and the weight and value to be afforded the
evidence, as well as all factual issues raised by the evidence, are resolved by the trier of
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fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This court will not reweigh or
reevaluate the evidence, nor will this court substitute its inferences drawn from the
circumstantial evidence for those inferences drawn by the jury. Id. Because a jury
conviction removes the presumption of innocence with which a defendant is initially
cloaked at trial and replaces it on appeal with one of guilt, a convicted defendant has the
burden of demonstrating to this court that the evidence is insufficient. State v. Tuggle,
639 S.W.2d 913, 914 (Tenn. 1982).

       A guilty verdict can be based upon direct evidence, circumstantial evidence, or a
combination of direct and circumstantial evidence. State v. Hall, 976 S.W.2d 121, 140
(Tenn. 1998). “The jury decides the weight to be given to circumstantial evidence, and
„[t]he inferences to be drawn from such evidence, and the extent to which the
circumstances are consistent with guilt and inconsistent with innocence, are questions
primarily for the jury.‟” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting
Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958)). “The standard of review „is the
same whether the conviction is based upon direct or circumstantial evidence.‟” State v.
Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265,
275 (Tenn. 2009)). The jury convicted the appellant of perjury, which occurs when a
person, with intent to deceive, makes a false statement under oath. Tenn. Code Ann. §
39-16-702(a)(1).1

       The appellant testified that she went to the bar before the shooting to fill drink
orders and that Morton and Gaston were on one side of her and near each other. She then
stated that after she obtained the drink orders, she turned to leave the bar in order to
deliver the drinks. About four seconds later, she heard a gunshot. However, the video
shows that the appellant left the bar area several minutes before the shooting, that she was
in the pool table room when Gaston was killed, and that she was nowhere near Gaston
and Morton at the time of the shooting.

       Regarding the appellant‟s claim that the State failed to show she intended to
deceive, General Gunn testified that the appellant never offered an explanation for the
discrepancies between her testimony and the video, never claimed that she had made a
mistake, and “just got mad” when he confronted her. The State argued during closing
arguments that the appellant‟s testimony was “not even close” to what was depicted in
the video and was too different from the video for her testimony to have been an “honest
mistake.” The jury resolved this issue against the appellant, and we shall not reweigh the
evidence.

        1
         We note that the appellant was charged with aggravated perjury, which occurs when a person
commits perjury, the false statement is committed in connection with an official proceeding, and the false
statement is material. Tenn. Code Ann. § 39-16-703(a)(1)-(3).

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       As to the appellant‟s claim that General Gunn‟s question about where she was
“just prior” to the shooting was insufficiently specific to allow a conviction, the appellant
cites State v. Forbes, 918 S.W.2d 431, 444 (Tenn. Crim. App. 1995), in which this court
held that “a „half-truth‟ is not legally sufficient evidence to support a conviction for
making a false representation of fact.” However, we see nothing in the appellant‟s
preliminary hearing testimony that could be consider a “half-truth.” The appellant stated
that she was in the bar area with Morton and Gaston at the time of the shooting and that
she heard the gunshot within seconds of leaving the bar to deliver drinks. The video,
though, shows that the appellant left the bar area several minutes before the shooting, that
she was in the pool room at the time of the shooting, and that she could not have heard
the gunshot within seconds of leaving the bar. In other words, the appellant‟s statements
were completely false. Thus, we conclude that the evidence is sufficient to support the
conviction.

                                      III. Conclusion

         Based upon the record and the parties‟ briefs, we affirm the judgment of the trial
court.

                                                  _________________________________
                                                  NORMA MCGEE OGLE, JUDGE




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