        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs July 10, 2012

                STATE OF TENNESSEE v. ANTHONY BENTON

                  Appeal from the Criminal Court for Shelby County
                         No. 10-00853   Chris Craft, Judge


              No. W2011-02671-CCA-R3-CD - Filed December 13, 2012


A jury convicted the defendant, Anthony Benton, of reckless endangerment, a Class E felony;
aggravated assault, a Class C felony; and possessing a handgun after having been convicted
of a felony, a Class C felony. The reckless endangerment count was merged into the
aggravated assault conviction. The defendant received an effective sentence of nineteen
years. On appeal, the defendant asserts that the evidence at trial was insufficient to support
the verdicts. After a thorough review of the record, we affirm the judgment of the trial court,
but remand for a corrected judgment.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which A LAN E. G LENN
and C AMILLE R. M CM ULLEN, JJ., joined.

Stephen Bush, District Public Defender; and Trent Hall (at trial) and Barry W. Kuhn (on
appeal), Assistant District Public Defenders, for the appellant, Anthony Benton.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Marianne Bell and Alanda Dwyer,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                         OPINION

                             Factual and Procedural History

       The defendant’s convictions are the result of the August 22, 2009 shooting of the
victim, Jerry Bradley, after an argument between the parties regarding the defendant’s dog.
The defendant was indicted for attempted second degree murder, aggravated assault,
employing a firearm during the commission of a dangerous felony, and possession of a
firearm after having been convicted of a felony. The trial court decided that the count
charging the defendant with being a felon in possession of a handgun should be tried
separately from the other three counts in order to avoid prejudicing the jury with introduction
of evidence of any of the defendant’s prior convictions.

       At trial, the victim testified that on August 22, 2009, he was visiting a friend named
Roy Townsel, who lived in the neighborhood in which the victim had grown up. The victim
drove to Mr. Townsel’s home for a cookout and, later, told Mr. Townsel he was going to
walk around the area to visit other friends.

       At around 6:00 p.m., while it was still daylight, the victim walked to an adjacent street
and stood on the sidewalk to speak with Emanuel Brooks, Orlandus Benton, and Calvin
Brooks. The defendant was walking his pit bull and stood next to the victim to talk. The
victim was acquainted with the defendant and knew him from the neighborhood as “Lil’
Anthony.” The victim testified that the dog was standing between himself and the defendant
and that because the victim could hear the dog growling, he asked the defendant calmly and
quietly if he could please move his dog. The victim testified that at that point the defendant
“just went off” and “started to cussing.” According to the victim, the defendant said that
“[h]e was tired of folks telling him . . . what to do with his dog, and he was going to make
a name for his self or something like that.” The victim testified that he did not hit or threaten
the defendant or his dog, that he had no weapon, and that the defendant was angry. The
defendant then left.

        The victim then moved to a neighboring yard, which had a wooden fence surrounding
it. The fence had a gate across a driveway, and the gate had what the victim described as a
“swag” or dip in it. Three or four minutes later, the victim saw the defendant come up to the
fence and look over the fence. He testified that the defendant was five feet eight or nine
inches tall, and that the fence was five to six feet tall. The defendant reached over the dip
in the fence with a revolver, pointed it at the victim, and pulled the trigger twice. The gun
clicked both times, and, unsurprisingly, the victim feared for his life. The defendant then ran
away.

       The victim started to return to Mr. Townsel’s home to retrieve his car and go home.
As he was turning to walk up Mr. Townsel’s street, the defendant ran up behind him. The
victim testified that the defendant said, “I’m not bullshitting with you.” The victim testified
he did not respond but kept walking straight and began to pray. The victim could not run
because he had a bad hip, but he walked fast. He heard three shots fired and felt a sting and
saw he had been shot in the legs. About six or seven minutes had elapsed since the defendant
had “clicked” the gun at him over the fence. The victim testified he did not turn to look at

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the defendant and did not see him but recognized his voice. The victim saw the defendant
run away across a field, but could not describe his clothing. The victim testified he continued
to walk to Mr. Townsel’s home and waited there until the paramedics arrived. He testified
that the bullet had gone through one leg and lodged in the other, where it remained, as it was
not extracted by medical personnel. The victim had no permanent pain or difficulty walking.
The victim testified that there had not been any alcohol at the cookout at the time he left.
However, he did testify he had had two twenty-four ounce beers at approximately 3:00 or
4:00 p.m.

        The victim identified the defendant from a lineup on September 7, 2009. The victim
testified that he made the identification and gave the statement at the time he did because that
was when the police asked him to come to the station. He testified that he also spoke to the
police at the hospital. He testified that it did not take him long to make the identification and
that, although Sanford Swayzer rode to the station with him, he was alone when he made the
identification.

        The State’s next witness, Calvin Brooks, testified he grew up in the neighborhood
with the victim. The defendant lived behind Mr. Brooks at the time of the shooting. Mr.
Brooks testified that on August 22, 2009, he was sitting by the sidewalk near his home about
fifteen yards away from the defendant and the victim, and he heard them arguing about the
dog and whether the defendant had control of the dog. Mr. Brooks testified that the
defendant left and headed towards a shortcut to the defendant’s house. Mr. Brooks was also
present on the same sidewalk when the defendant returned. He testified that the defendant
came up to the fence and “he had a weapon in his hand and he couldn’t get over the fence
so he just held it over the fence and clicked the gun twice. I think it was two times, but it
wasn’t no bullets in it at that time.” The victim was inside the fence, but Mr. Brooks could
not see him. The defendant left, again going towards the shortcut. Mr. Brooks stated that
afterwards, he tried to get the victim to leave because the defendant had said that he was
going to do something to the victim. The defendant returned a third time, coming out of the
shortcut, and asked which way the victim had gone. Another man in Mr. Brooks’s yard told
him where the victim had gone. Mr. Brooks heard three shots. He went to the corner and
saw the victim walking. Not realizing that the victim had been shot, Mr. Brooks returned to
his house.

       On cross-examination, Mr. Brooks stated he had had two twenty-four ounce beers that
day. He confirmed he heard the victim and defendant arguing about the dog, that there was
no fighting, and that the defendant did not sic the dog on anybody. He stated he did not call
the police when the defendant returned after clicking the gun because he didn’t know what
the defendant planned to do with the gun and because it was “the[ir] argument.” He did not
volunteer the information to the police at the time because he did not see the actual shooting

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and it was not his business. He denied avoiding the police because he was drunk. He
testified that his brother, Emanuel Brooks, and Orlandus Benton also were in his yard during
these events. He stated that at the time of trial, Emanuel Brooks had just gotten off life
support and “his mind is back like in 2005.” He testified that he knew the defendant from
having seen him around the neighborhood over the course of a year or two.

        Sanford Swayzer, a friend of the victim, testified he had known the defendant from
around the neighborhood for three or four years. He testified that he and the victim had gone
to Roy Townsel’s home for a barbeque, and that the three decided to go to another barbeque
in the neighborhood. The victim left first. About ten minutes later, Mr. Swayzer and Mr.
Townsel were preparing to follow when he saw the victim come around the corner. Mr.
Swayzer asked what was the matter and then saw the defendant come up behind the victim
with a gun. He heard the defendant say something but could not hear what he said. The
defendant was four or five feet from the victim when Mr. Swayzer saw the defendant shoot
three times with a silver revolver. The defendant was aiming the gun down. The victim
never turned his head but kept walking. Mr. Swayzer did not see the victim with any
weapon. The defendant went across a field that led to his street, walking fast. The victim’s
friends called an ambulance. Mr. Swayzer picked the defendant from a photographic lineup
as the shooter. He testified that he rode to the police station with the victim but that no one
told him to pick the defendant.

        On cross-examination, Mr. Swayzer confirmed there was no alcohol consumed at the
barbeque. He testified that he did discuss the events with the victim between the time they
happened and the time he picked the defendant out of a lineup and also prior to trial. He also
testified that the defendant shot in the air three times as he ran through the field after he had
shot the victim.

       Roy Townsel testified that he was acquainted with the defendant because the
defendant’s father grew up around the corner from him and that the defendant lived in his
neighborhood at the defendant’s girlfriend’s house. He also witnessed the shooting and
corroborated Mr. Swayzer’s testimony that the defendant approached the victim, said
something to him, shot three times, and went across a vacant lot, firing three shots into the
air. Mr. Townsel testified the defendant shot with a “snub-nose .38.” He also testified that
the victim was unarmed, did not throw any punches, and that he saw no injuries other than
the gunshot wounds. Mr. Townsel called 911. Mr. Townsel testified there were also
children playing in the street, and one little girl’s mother was outside during the shooting.
On cross-examination, Mr. Townsel testified that he had had “a beer or so,” and Mr. Swayzer
may have had a beer. He testified he had not discussed the events with the victim or anyone
since they happened.



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         Quentin Smith, a firefighter and paramedic with the Memphis Fire Department,
testified that he treated the victim for a gunshot wound that had entered and exited one calf
and entered the other. He found no other injuries. The victim was in pain but calm. The
victim reported he had been shot with a revolver. Mr. Smith did not see any weapon on or
near the victim. He stated that the victim did not appear intoxicated and that he would have
put it in his report if he had smelled alcohol on the victim. On cross-examination, Mr. Smith
initially testified that he had concluded the same bullet had caused all of the injuries because
the victim had reported only hearing one gunshot. However, after the prosecution on redirect
examination questioned him regarding the fact that his report referred to a single wound and
did not mention the victim hearing a single shot, Mr. Smith testified that if he had stated the
victim only heard one shot, it was a mistake.

       Jeffrey Garey, an officer with the Memphis Police Department, arrived after the victim
had been removed in an ambulance and testified that he took photographs of the crime scene.
He testified regarding blood at the scene in the street, on the victim’s abandoned shoes, and
on the victim’s car. Officer Garey testified he looked for, but was unable to locate, any spent
casings. He testified that a revolver has a closed cylinder and that a spent bullet casing
would remain inside, so he would not expect to find casings if a revolver had been used.

        Another officer with the Memphis Police Department, William Burdett, testified that
he arrived at the scene at approximately 7:00 p.m. and observed the victim, who had blood
on his hands and legs, leaning on a car. He stated that he had asked someone to bring the
victim a chair because the victim had been shot in both calves. He stated the victim had no
weapon on or near him. He stated that the victim told him that he and the defendant had
gotten into an argument over a dog and shots were fired. Another bystander had stated it had
been four shots. Officer Burdett sent other police cars to the defendant’s address, but they
did not find the defendant. Officer Burdett parked his car so that it was blocking the street
in order to secure the scene. He testified he found no casings or weapons at the scene.
Officer Burdett confirmed that if a revolver were used, no casings would be found. Officer
Burdett testified that a revolver might click and not fire a bullet if it were totally empty, if
there was something wrong with the ammunition, or if a spent shell was in it. He testified
that the crime scene officers photographed the scene and the Felony Response Unit officers
interviewed witnesses. Someone at the defendant’s house gave the police the name Anthony
Benson.

        Detective Robert Blair of the Memphis Police Department Felony Assault Unit
testified that he was assigned to the victim’s case. He testified that on the day after the
August 22 shooting, he attempted to contact a witness who did not return his call. He also
attempted to contact the victim but was unable to do so through the telephone because there
was no answer and no way to leave a message. Two days later, he alerted local patrol

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officers to search for the defendant. In the time between his initial attempts and September
6, Detective Blair did not attempt to contact witnesses due to his caseload. On September
6, he again attempted to contact the victim and a witness, and the following day, Detective
Blair asked a patrol officer to try to make face-to-face contact with the victim. The victim
called the office that day and agreed to give a statement. The victim gave a statement and
reviewed and signed it, and then the victim picked the defendant out of a photographic lineup
prepared by Detective Blair. Detective Blair also spoke with Mr. Swayzer, who also
identified the defendant from a photographic lineup. Detective Blair testified he spoke with
a female witness who did not give a statement. He also contacted Mr. Townsel. Detective
Blair contacted the Investigative Services Unit to attempt to pick up the defendant, and they
did. Detective Blair interviewed the defendant, who denied shooting the victim and denied
being in the neighborhood.

       Officer Curtis Allen of the Memphis Police Department was an investigator in the
Investigative Support Unit at the time of the defendant’s arrest. Detective Blair gave Officer
Allen the defendant’s name, and Officer Allen went to the address where the defendant lived
with his girlfriend. The defendant was at home, was cooperative, and was taken into custody.

       The State also introduced the victim’s medical records. The defendant did not testify
and offered no evidence at trial. After deliberating on the first three counts, the jury
acquitted the defendant of attempted second degree murder but found him guilty of the lesser
included offense of misdemeanor reckless endangerment in count one; found the defendant
guilty of aggravated assault as charged in count two; and acquitted the defendant of
employing a firearm during the commission of a statutorily defined dangerous felony in count
three.

       The same jury then heard the additional proof presented by the State as evidence in
count four charging the defendant with possessing a handgun after having been convicted of
a felony. Ross Herrin, the official keeper of the records for the criminal court, testified that
the defendant had been assigned a records and identification number by the criminal court,
and that his name and records and identification number also matched that for a prior
conviction for aggravated assault in 2001, in which the defendant pled guilty to an assault
with a deadly weapon, and prior convictions for aggravated robbery and attempted
aggravated robbery in 2004, in which the defendant pled guilty to an indictment charging him
with aggravated robbery and attempted aggravated robbery accomplished by violence or fear
using a deadly weapon or article fashioned to reasonably appear to be a deadly weapon. The
jury found the defendant guilty in count four of possession of a handgun after having been
convicted of aggravated assault and aggravated robbery.

       The trial court merged the conviction for reckless endangerment with the conviction

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for aggravated assault and sentenced the defendant to serve thirteen years for the aggravated
assault conviction. The court sentenced the defendant to serve six years for the felon in
possession of a handgun conviction and ordered the sentences to be run consecutively for an
effective sentence of nineteen years. The defendant challenged the sufficiency of the
evidence supporting all three convictions in a motion for a new trial, and the trial court
denied the motion.

                                           Analysis

        Tennessee Rule of Appellate Procedure 13(e) requires the reviewing court to set aside
a defendant’s conviction “if the evidence is insufficient to support the finding by the trier of
fact of guilt beyond a reasonable doubt.” The appellate court determines “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). The jury’s guilty verdict replaces the presumption of
innocence with one of guilt, and the defendant bears the burden of showing that the evidence
is insufficient. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000). “A guilty verdict
by the jury, approved by the trial court, accredits the testimony of the witnesses for the State
and resolves all conflicts in favor of the prosecution’s theory.” State v. Bland, 958 S.W.2d
651, 659 (Tenn. 1997). Questions concerning the credibility of witnesses, the weight and
value of the evidence, and factual issues raised by the evidence are resolved by the trier of
fact, and the appellate court does not reweigh or reevaluate the evidence or substitute its
inferences drawn from circumstantial evidence for those drawn by the trier of fact. State v.
Cole, 155 S.W.3d 885, 897 (Tenn. 2005). Instead, on appeal, the State is entitled to the
strongest legitimate view of the evidence and to all reasonable inferences which may be
drawn from the evidence. Id.

       As charged in the indictment, aggravated assault is committed when a defendant
intentionally or knowingly causes bodily injury to another and uses or displays a deadly
weapon. T.C.A. § 39-13-102(a)(1)(A)(ii) (2006); T.C.A. § 39-13-101(a). A person acts
intentionally “when it is the person’s conscious objective or desire to engage in the conduct
or cause the result” and knowingly “when the person is aware that the conduct is reasonably
certain to cause the result.” T.C.A. § 39-11-302(a), (b).

        “A person commits an offense who possesses a firearm” and has a prior felony
conviction for an offense “involving the use or attempted use of force, violence or a deadly
weapon.” T.C.A. § 39-17-1307(b)(1). “‘Firearm’ means any weapon designed, made or
adapted to expel a projectile by the action of an explosive or any device readily convertible
to that use.” T.C.A. § 39-11-106(a)(11).



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       At trial, numerous witnesses testified that they saw the defendant point a gun at the
victim and pull the trigger. The victim testified that the defendant pointed a gun at him over
a fence and pulled the trigger twice. Mr. Brooks also testified that after the argument over
the dog, the defendant held a gun over the fence and “clicked” it while the victim was on the
other side. The victim further testified that as he walked to Mr. Townsel’s home, he heard
the defendant speaking to him and that the defendant then shot him in the legs and ran away.
Mr. Swayzer and Mr. Townsel likewise testified that they saw the defendant shoot the victim,
and they further testified that he then fired three shots into the air as he left. All the eye
witnesses recognized the defendant because they were acquainted with him as a neighbor.
The victim and Mr. Swayzer identified him from a lineup. The testimony of the police
officers and Mr. Smith regarding the physical evidence of the crime corroborated the
testimony of the eye witnesses. Proof was introduced that the defendant had previously been
convicted of aggravated assault and aggravated robbery, both felonies.

        Taking the evidence in the light most favorable to the prosecution, a rational trier of
fact could have found that by aiming a gun at the victim and pulling the trigger, the
defendant, by shooting the victim in the legs, intentionally or knowingly caused bodily injury
to the victim by using a deadly weapon. Furthermore, a rational trier of fact could also have
found that the defendant intentionally, knowingly, or recklessly possessed the weapon, a
firearm, after having been convicted of a felony involving the use or attempted use of force,
violence, or a deadly weapon. The evidence is sufficient to support the verdicts.

        On review, we note that the judgment sheet documenting that the defendant was found
guilty of possession of a firearm after having been convicted of a felony indicates that the
defendant was sentenced as a persistent offender. However, the box indicating release
eligibility has a checkmark next to multiple rather than persistent offender. We, therefore,
remand in order to allow the trial court to correct the judgment sheet.

                                      CONCLUSION

       Because we conclude that the evidence was sufficient to support the verdicts, we
affirm the judgments of the trial court but remand for correction of the judgment sheet in
accordance with this opinion.




                                                    _________________________________
                                                    JOHN EVERETT WILLIAMS, JUDGE




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