         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs December 16, 2008

                    STATE OF TENNESSEE v. CRIS R. WOODS

                       Appeal from the Criminal Court for Union County
                            No. 3400    E. Shayne Sexton, Judge



                      No. E2008-01545-CCA-R3-CD - Filed July 20, 2009


The defendant, Cris R. Woods, appeals his conviction by a jury in the Criminal Court for Union
County for reckless endangerment, a Class E felony. He contends that the evidence was insufficient
to convict and that the trial court improperly denied his motion for acquittal. We agree and reverse
the judgment of the trial court, and we vacate the conviction.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed;
                                    Conviction Vacated

JOSEPH M. TIPTON , P.J., delivered the opinion of the court, in which THOMAS T. WOODALL and
NORMA MCGEE OGLE, JJ., joined.

Martha J. Yoakum, District Public Defender, and Tina L. Sloan (on appeal) and Larry G. Bryant (at
trial), Assistant Public Defenders, for the appellant, Cris R. Woods.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney
General; William Paul Phillips, District Attorney General; and Tracy Tipton Jenkins, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                              OPINION

         This case relates to the discharge of a .22 caliber rifle inside a mobile home. At the trial,
Joyce Stevens testified that she lived with the defendant for twenty-eight years and that they had a
daughter, who was asleep on the other side of the home when she and the defendant had a heated
argument in their bedroom on March 12, 2007. She said that two guns were hanging on the wall and
that a .22 caliber rifle was stored between the bed mattresses. She said that the rifle was loaded, that
it was her gun, and that she used it to shoot snakes. She said the defendant pulled the rifle from
underneath the mattress and was leaving. She said she was sitting on the side of the bed, about
fifteen feet away from the defendant, who had entered the washroom. She said that the rifle
discharged and that it was pointed “in the opposite direction,” toward the hall, and downward. She
said the bullet hit the dryer, hit the floor, and then continued, but she said she did not remember in
which direction.

         Ms. Stevens testified that although she thought the discharge had been intentional, the
defendant told her that the firing had been accidental and that the safety had not been on. She said
the defendant’s claims could have been true, although she acknowledged testifying at the preliminary
hearing that the shooting had been intentional. She said that she called 9-1-1 after the firing, that she
hung up, that the 9-1-1 service called her, and that the defendant answered the telephone call. She
said she did not know what he said. She said the police arrived later. She said that she again called
9-1-1 later that night because the defendant was angry that she had called them the first time. She
said the defendant was not there when the police arrived a second time. She said she called 9-1-1
a third time when the defendant returned after claiming to have cut the telephone lines. She said he
cut the lines to prevent her from calling 9-1-1 again. She identified the defendant as the person who
had fired the rifle.

        On cross-examination, Ms. Stevens testified that she had not been afraid of the defendant.
Rather, she said that she was afraid that she might hurt the defendant, that he wanted to leave, and
that she was afraid for him. She said this was the reason she called 9-1-1. She said the defendant
told her that the safety had not been on and that the gun had discharged. She said she kept the gun
loaded to shoot snakes and acknowledged that she may not have engaged the safety. She said,
however, that she and the defendant had been having an argument when the gun discharged. She
repeated that the gun had not been pointed at her. She said the defendant did not threaten to shoot
or to harm her. She said she had threatened him. She said the defendant had been fifteen feet away
from her at an angle when the gun discharged. She said the projectile from the gun hit the bottom
of the dryer, ricocheted, and at no point came toward her. She said she was not in fear for herself.

        On redirect examination, Ms. Stevens testified that the defendant had been angry and
threatened to harm someone other than her in their argument. She said she and the defendant had
“good” arguments. She said she did not know if she had turned off the safety. She said that she did
not have a gun or knife on her person during their argument.

        Union County Sheriff’s Deputy Larry Dykes testified that he responded to a 9-1-1 call on
March 12 at the defendant and Ms. Stevens’ address. He said that when he arrived, the victim was
inside the trailer and was upset. He said she had tears in her eyes. He said he determined through
his investigation that a shot had been fired, that it ricocheted off the dryer, and that it went into the
floor. He said that although he found the rifle at the residence, the defendant was not there. He said
he returned to the area later to see if the defendant had returned. He said the defendant was not there
and was not there again when he responded to a second 9-1-1 call from this residence. He said that
when he responded to the third 9-1-1 call, the trailer door was ajar and that Ms. Stevens told them
the defendant was in the trailer with a gun. He said he saw the defendant’s silhouette coming up the
hallway while he and the other officer were speaking with Ms. Stevens. He said he and the other
officer drew their weapons and told the defendant to show his hands. He said the defendant
complied and had no weapon. He said they arrested the defendant.


                                                  -2-
        On cross-examination, Deputy Dykes testified that he found no evidence showing that the
bullet had traveled anywhere other than the washroom and hallway area. He said the bullet was
found close to the dryer and not in the bedroom. He agreed that people could become upset for
various reasons, including fear for other people.

        Officer Chris Carden testified that he was a Union County Sheriff’s Deputy on March 12,
2007, and that he and another officer responded to the first 9-1-1 call at Ms. Stevens and the
defendant’s home. He said the defendant was not home. He said Ms. Stevens was very distraught.
He said Ms. Stevens brought the rifle to the officers. He said that he found the bullet in the floor but
that he did not recover it. He said that the gun discharged and that the bullet struck the dryer and
ricocheted into the floor. He said he returned to the home a second time and that the defendant was
not there. He said the bedroom was approximately ten feet from the dryer. On cross-examination,
he said he returned to the home a third time. He said the bedroom had a door. He said that a
washing machine and a wall were between the dryer and the bedroom. The State rested.

       The jury convicted the defendant of reckless endangerment. The trial court imposed a two-
year sentence. He ordered the defendant to spend 100 days in confinement, with five years of
probation. Before submitting the case to the jury, the trial court granted the defendant’s motion for
judgment of acquittal on count one, aggravated assault, involving the same conduct.

        Relying on State v. Thomas R. Baldwin, No. 01C01-9612-CR-00530, Davidson County, slip
op. at 7 (Tenn. Crim. App. July 29, 1998), the defendant claims that insufficient evidence exists to
convict him and that the mere fact of a cramped space and presence of metal appliances did not
create an imminent danger of death or serious bodily injury from a possible ricochet of the
discharged bullet. The defendant also contends that the trial court improperly denied the motion for
judgment of acquittal by improperly defining “imminent danger” as the “mere possibility of danger”
in view of the trial court’s statement that “many, many types of scenarios” could result from the
discharge of a gun inside a home and thereby place someone in imminent danger of death or serious
bodily injury. The State asserts that the evidence was legally sufficient to convict the defendant of
reckless endangerment. The State claims that because Ms. Stevens was within fifteen feet of the
defendant when the gun discharged, the defendant’s conduct necessarily created an imminent fear
of death or bodily injury. See State v. Steven Willard Self, No. 03C01-9807-CR-00227, Knox
County, slip op. at 4 (Tenn. Crim. App. July 30, 1999) (stating the court had “no pause” in
concluding that when the victim stood fifteen to twenty feet away from the defendant’s target, the
defendant created an “imminent risk of death or serious bodily injury” for the victim).1

        Our standard of review when the sufficiency of the evidence is questioned on appeal 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


         1
          The State also claims that the “inherent danger of discharging firearms” in a residence was demonstrated when
the defendant was subsequently shot inside the home by his pet, a cat, who was playing with the gun. This evidence was
presented at the sentencing hearing.

                                                         -3-
v. Virginia, 443 U.S. 307, 319 (1979). This means that we may not reweigh the evidence, but must
presume that the jury has resolved all conflicts in the testimony and drawn all reasonable inferences
from the evidence in favor of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984);
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

        Tennessee Code Annotated section 39-13-103 (2006) defines “reckless endangerment” as
recklessly engaging in conduct that places or may place another person in imminent danger of death
or serious bodily injury. “Recklessness” is shown when a defendant is “aware of, but consciously
disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur.”
T.C.A. § 39-11-106(a)(31) (2006). To demonstrate an imminent threat of death or serious bodily
injury, the State must prove that a person or class of persons “must be placed in reasonable
probability of danger as opposed to a mere possibility of danger.” State v. Payne, 7 S.W.2d 25, 28
(Tenn. 1999). This “zone of danger” is “that area in which a reasonable probability exists that the
defendant’s conduct would place others in imminent danger of death or serious bodily injury if others
were present in that zone or area.” State v. Goodwin, 143 S.W.3d 771, 778 (Tenn. 2004); State v.
Payne, 7 S.W.2d at 28. A person must be present in this zone of danger. State v. Goodwin, 143
S.W.3d at 778; State v. Payne, 7 S.W.3d at 28.

         In the present case, the evidence showed that a .22 caliber rifle discharged in a mobile home.
The testimony reflected that three people, including the defendant, were inside the home. Ms.
Stevens said the defendant had left the bedroom, where she and the defendant had been arguing, and
had entered the adjacent washroom, where the gun discharged. The third person was sleeping in a
room at the other end of the home when the gun discharged. Law enforcement testimony also
confirmed that the bullet was found in the washroom, where it had struck the dryer and ricocheted
into the floor. Ms. Stevens testified that she had not been in fear of the defendant and that he had
not threatened her with her gun. On the contrary, she testified that she had threatened the defendant.
She testified that the gun had not been pointed at her or even toward the bedroom in which she sat
when the gun discharged. Ms. Stevens also testified that she did not call 9-1-1 because she was in
fear of the defendant. Rather, she telephoned because she was concerned for him. She also testified
that she owned the gun and that she did not know whether she had engaged the safety when she
placed it underneath the mattress.

        The issue in this case is whether Ms. Stevens was in the zone of danger, such that a
reasonable probability of imminent danger to her existed. From the facts before us, we conclude that
she was not. Officer Carden testified that the bedroom had a door and that in the approximately ten
feet between the washroom and the bedroom were a dryer, a washing machine and a wall. Ms.
Stevens said that she was fifteen feet away from the defendant in another room when the gun
discharged. Deputy Dykes said there was no evidence that the bullet had traveled anywhere other
than the hallway and washroom area closest to the dryer. Ms. Stevens testified that the gun fired in
a direction opposite from her. No reasonable probability existed that the defendant’s conduct would
place her in imminent danger of death or serious bodily injury. See State v. Goodwin, 143 S.W.3d
at 778; State v. Payne,7 S.W.3d at 28. Rather, there was only a “mere possibility of danger” for her.
State v. Payne, 7 S.W.3d at 28. The present case resembles the situation in Thomas R. Baldwin, in


                                                 -4-
which the State argued that the narrowness of the space containing metal appliances created a risk
of a ricocheting bullet that would place someone in imminent danger of death when the assailant shot
another person. See Thomas R. Baldwin, slip op. at 7. The facts in Thomas R. Baldwin placed the
potential victim behind the shooter, such that a mere possibility that the bullet would strike him was
insufficient to convict the defendant of reckless endangerment. In the present case, Ms. Stevens
testified that the gun was not pointed at her and that the defendant was not even in the same room
as her when it discharged. The evidence also showed that two large metal appliances and a wall
were between her and the defendant when the gun discharged. The evidence is insufficient to show
that Ms. Stevens was within the zone of danger and that she was placed in imminent danger of death
or bodily injury.

        The State’s blanket claim that anyone within fifteen feet of a shooter is within the zone of
danger is unsupported by case law. The cases cited in Steven Willard Self lacked evidence showing
that a potential victim was actually within the zone of danger. See State v. Fox, 947 S.W.2d 865,
866 (Tenn. Crim. App. 1996) (where a defendant shot a pistol into the air and no proof showed that
anyone was in the vicinity of the shooter); State v. Michael David Culbertson, No. 03C01-9412-CR-
00449, Sullivan County, slip op. (Tenn Crim. App. Aug. 30, 1995) (reflecting no proof that anyone
other than the shooter, who was attempting suicide, was in the house or nearby apartment building
when the shooter fired two shots into the house’s ceiling). Furthermore, the language of Steven
Willard Self that the State cites reveals that the victim in that case was standing within
approximately fifteen to twenty feet of the shooter’s target. This is unlike the present case, where
Ms. Stevens testified that the gun was pointed in a direction away from her. Cf. State v. Alder, 71
S.W.3d 299, 305 (Tenn. Crim. App. 2001) (where the potential victim was in front of shooter and
“more than a mere possibility” existed that the bullet might have struck the potential victim).

       The defendant contends that the trial court erred in denying his motion for acquittal. On
appellate review of a denial of a motion for judgment of acquittal, we apply the same standard as a
question of the sufficiency of the evidence. See, e.g., State v. Brewer, 945 S.W.2d 803, 805 n.2
(Tenn. Crim. App. 1997). In view of our concluding that the evidence was insufficient to convict,
we hold that the trial court improperly denied the defendant’s motion for judgment of acquittal.

       Based on the foregoing and the record as a whole, we reverse the judgment of the trial court,
and we vacate the conviction.



                                                       ___________________________________
                                                       JOSEPH M. TIPTON, PRESIDING JUDGE




                                                 -5-
