                                                                                       12/13/2018
          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT JACKSON
                         Assigned on Briefs October 2, 2018

               STATE OF TENNESSEE v. JOSEPH PROFFITT

                 Appeal from the Criminal Court for Shelby County
                   No. 14-03792       Glenn Ivy Wright, Judge
                     ___________________________________

                          No. W2017-01958-CCA-R3-CD
                      ___________________________________

The Defendant, Joseph Proffitt, was convicted of two counts of attempted second degree
murder, three counts of aggravated assault, and two counts of employing a firearm during
the attempted murders. He received an effective sentence of fourteen years. On appeal,
the Defendant challenges only his convictions for attempted second degree murder,
arguing that the evidence is insufficient to support the verdicts. Upon reviewing the
record and applicable law, we affirm the Defendant’s convictions.


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

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which NORMA
MCGEE OGLE and ALAN E. GLENN, JJ., joined.

Patrick Stegall (on appeal) and Mark McDaniel (at trial), Memphis, Tennessee, for the
appellant, Joseph Proffitt.

Herbert H. Slatery III, Attorney General and Reporter; Johnathan H. Wardle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Muriel Malone,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                       OPINION

                 FACTUAL AND PROCEDURAL BACKGROUND

        On October 3, 2012, the Defendant and his brother, Mr. David Proffitt,1 were
visiting friends at an apartment complex in Memphis, Tennessee, when they were alerted
      1
        For clarity, throughout this opinion we will refer to Mr. Joseph Proffitt as “the
Defendant” and to Mr. David Proffitt, the Defendant’s brother, as “Mr. Proffitt.”
to the fact that Mr. Proffitt’s Ford F150 truck was being towed. In the dispute that
followed, the Defendant ultimately fired multiple shots at two of the men towing the
vehicles, permanently paralyzing one of them. At trial, the defense attempted to establish
that the Defendant fired in self-defense after the driver of the tow truck attempted to
assault him with the vehicle.

       Mr. Scott Arnold, Mr. Jonathan Cook, and Mr. David Yates were employees of
901 Tow, a tow truck company that had a contract with the apartment complex to tow
any vehicles that did not have a permit to park there. The tow truck workers arrived at
the apartment complex around 8:00 pm. Mr. Arnold and Mr. Cook were in one tow
truck, and Mr. Yates was in another. Mr. Yates was the first one to find a vehicle that
was parked illegally, a Ford F150 truck. Initially, Mr. Yates started to load the Ford truck
onto his tow truck. However, while in the process of loading the Ford onto his truck, a
part on his tow truck had stopped working. Mr. Yates informed Mr. Arnold and Mr.
Cook that he needed assistance, and they met him on the road outside of the apartment
complex.

       Mr. Yates transferred the Ford truck from his tow truck to the tow truck driven by
Mr. Arnold. While Mr. Yates was in the process of transferring the truck, a silver
Cadillac Deville, driven by the Defendant, pulled up beside Mr. Arnold’s tow truck.

        Mr. Arnold identified the Defendant as the driver of the Cadillac. He recalled that
the Defendant and another man exited the Defendant’s car. The Defendant walked to the
front of the tow truck and looked inside. The Defendant then walked to the passenger
side of the tow truck and tried to open the door. Mr. Arnold said he and Mr. Cook never
spoke with the Defendant. When Mr. Cook refused to open the door, the Defendant
angrily started beating on the passenger side window with the butt of a gun. Mr. Arnold
testified that Mr. Cook shouted that he saw a gun and told Mr. Arnold to drive away.
When Mr. Arnold started to pull away, he could hear shots being fired. Mr. Arnold
testified that the Defendant was facing the passenger side door and shooting toward the
passenger side of the tow truck. As he was pulling away, Mr. Arnold could see that Mr.
Yates was still standing beside the other tow truck.

        While Mr. Arnold was driving away from the Defendant, his body went numb. He
testified that he turned to Mr. Cook and told him, “I’ve been hit, Man. I can’t feel my
legs. Stop the truck.” He experienced a lapse in memory but remembered talking to the
police when they arrived on the scene. The bullet that hit Mr. Arnold caused him to be
permanently paralyzed from the armpits down. The bullet passed through the right side
of his back and permanently lodged on the left side of his spine behind his heart.



                                           -2-
       Mr. Cook, who was in the tow truck with Mr. Arnold, testified that when the
Defendant first drove to where the tow trucks were parked, he parked at an angle in front
of Mr. Arnold’s truck, blocking the tow truck from leaving. Mr. Cook testified that while
the Defendant was standing in front of Mr. Arnold’s tow truck, the Defendant started
yelling. Mr. Cook also remembered the Defendant banging on the passenger side
window with the butt of his gun. Mr. Cook heard shots being fired as Mr. Arnold started
to accelerate. Mr. Cook recalled that the Defendant was standing on the passenger side
of Mr. Arnold’s tow truck when he began firing his weapon. While the Defendant was
shooting in the direction of the tow truck, Mr. Cook hid on the passenger-side floorboard
to avoid getting shot. He realized that Mr. Arnold had been shot when the tow truck
veered off the road. Mr. Cook grabbed the steering wheel and put his foot on the brake
so that he could stop the tow truck. He was able to stop the tow truck in the center lane
of Shelby Drive.

      Mr. Cook then called 911. While he was on hold for 911, the Cadillac, driven by
the Defendant, stopped beside the tow truck. Mr. Cook testified that he believed the
Defendant had followed them so that “they could shoot at us again.” At that point, Mr.
Yates pulled his tow truck up behind the Defendant’s car. The Defendant sped off, and
Mr. Yates followed him.

        Mr. Yates testified that there was another individual with the Defendant and Mr.
Proffitt that night. Mr. Yates also testified that the Defendant approached the driver’s
side window instead of the passenger side window of Mr. Arnold’s tow truck. He
recalled that the driver’s side window was down and that once Mr. Arnold rolled the
window up, the Defendant began banging on the window. The Defendant fired the shots
when the tow truck started to move. Mr. Yates was standing behind Mr. Arnold’s tow
truck on the passenger side of his own tow truck when the shooting happened. Mr. Yates
saw the Defendant shoot his gun while Mr. Yates was speaking with Mr. Proffitt about
towing the Ford truck.

        After the Defendant fired the shots, Mr. Yates saw the three men return to the
Cadillac. Mr. Yates followed the Defendant’s car in his tow truck. When he drove onto
Shelby Drive, he noticed that the Cadillac had stopped beside Mr. Arnold’s tow truck.
When the Defendant saw Mr. Yates, he sped away from Mr. Arnold’s tow truck. Mr.
Yates stopped beside Mr. Arnold’s tow truck, and Mr. Arnold said that he had been hit
and that he could not feel his legs. Mr. Yates followed the Cadillac driven by the
Defendant through a neighborhood and hit the Defendant’s car at numerous points while
chasing him. The Cadillac pulled back onto Shelby Drive where it parked in front of Mr.
Arnold’s tow truck. Mr. Yates again hit the Cadillac with his tow truck. He then got out
of his truck and ran to the Cadillac where he sprayed the Defendant, Mr. Proffitt, and an
unknown third male with mace.
                                          -3-
        After Mr. Yates sprayed mace on the men in the car, Mr. Proffitt and the other
male took off on foot in one direction and the Defendant in the other. Mr. Yates chased
the Defendant on foot spraying him with mace multiple times. Mr. Yates testified that he
used an entire can of mace during the encounter. Eventually, they came to a church
parking lot where Mr. Yates sprayed the Defendant with mace again and detained him
until the police arrived.

        Mr. Proffitt, the Defendant’s brother, owned the truck that was the subject of the
dispute. Neither Mr. Proffitt nor the Defendant lived at the apartment complex. Mr.
Proffitt testified on behalf of the State that he heard the car alarm on the Defendant’s
Cadillac going off. At that point, Mr. Proffitt and the Defendant went outside to the
parking lot. Mr. Proffitt saw Mr. Arnold and Mr. Yates transferring his Ford truck from
one tow truck to the other on the road outside of the apartment complex. Mr. Proffitt
stated that he ran outside the apartment complex where the tow trucks were located and
questioned Mr. Yates about whether Mr. Proffitt could pay him to have his truck back.
While Mr. Proffitt and Mr. Yates were talking, Mr. Proffitt heard the gun shots. He
testified did not see the shooting because his back was turned. He had previously given
the police a statement that the Defendant shot the gun, but at trial he insisted that he did
not actually see the Defendant fire his weapon because his back was turned.

       After Mr. Proffitt heard the shots, he ran toward the Defendant. He got into the
Defendant’s car, and the Defendant drove onto Shelby Drive where he pulled up next to
Mr. Arnold’s tow truck. Mr. Proffitt testified that Mr. Yates pulled behind the
Defendant’s car and started to ram the car with his tow truck. Mr. Proffitt said that Mr.
Yates rammed the Defendant’s car through a neighborhood and eventually they were
back on Shelby Drive in between Mr. Arnold’s and Mr. Yates’s tow trucks. At that point,
Mr. Proffitt climbed out of the window of the Defendant’s car because the car door was
jammed. Mr. Proffitt testified that Mr. Yates came up to the car and identified himself as
a police officer. The Defendant put his gun on the ground, and Mr. Yates sprayed both
the Defendant and Mr. Proffitt with mace.

       Mr. Proffitt stated that Mr. Yates told him, “You can leave the scene … you have
nothing to do with this.” Mr. Proffitt testified that he remained on Shelby Drive until the
police arrived. He said that when the police arrived on the scene they told him he could
leave, but a few minutes later, officers stopped him as he was walking down the street
and asked him to give a statement. The officers removed a gun that Mr. Proffitt was
carrying, and they drove him to Shelby Drive where they asked Mr. Yates if Mr. Proffitt
was present at the time of the shooting.

       Memphis Police Officer Adam Pickering processed Mr. Arnold’s tow truck.
Officer Pickering testified that the back window of the tow truck was broken. Officer
                                           -4-
Pickering believed one bullet entered the truck from behind, passed through the cab of
the truck, passed through the rearview mirror, and exited through the front windshield.
He also stated that another bullet passed through the rear window and through the
driver’s side headrest.

        In Officer Pickering’s opinion, the Defendant was standing behind the truck on the
passenger side when he was shooting. He believed that the shots could not have been
fired from in front of the truck, but on cross examination, he testified, “I cannot state that
[with] one hundred percent certainty.” The only damage to the front of Mr. Arnold’s tow
truck was the hole in the front windshield.

       Sergeant Demar Wells, a crime scene investigator, found five .40 caliber spent
casings and one bullet fragment at the scene. Four of the casings were “R.P. S&W” and
one of the casings was a “Winchester S&W” casing. Sergeant Wells explained that the
only difference in the casings was that they were two different brand names. Sergeant
Wells testified that there were at least seven shots fired.

       Mr. Spencer Hampton testified at trial on behalf of the Defendant. He was a guest
at the apartment that the Defendant and Mr. Proffitt were visiting that night. He was in
the apartment when four women knocked on the door and told Mr. Proffitt that his car
was being towed. Mr. Hampton testified that the Defendant’s car was also being towed.
He stated that Mr. Proffitt ran toward the tow trucks and tried to convince Mr. Yates to
return his truck. The Defendant pulled up to the left side of the tow truck in his Cadillac.
Mr. Hampton testified that while Mr. Proffitt was talking to Mr. Yates, the Defendant
was standing in front of Mr. Arnold’s tow truck “holding his hand up asking him where
he was going with his brother’s truck.”

       According to Mr. Hampton, Mr. Arnold responded by saying, “F*** you, n****r.
I’m taking your truck to the yard.” Mr. Hampton testified that Mr. Arnold was revving
the tow truck and that “[y]ou could hear him smashing on the gas.” Mr. Hampton said
that the Defendant was directly in front of the truck when the tow truck started to move
forward. Mr. Hampton testified that “it happened so fast like that. When it moved you
heard shots immediately.” Mr. Hampton returned to his house that night and did not
speak with the police.

       The Defendant testified that when he saw his brother’s truck being towed, he got
into his car and pulled up beside Mr. Arnold’s tow truck. He stood in front of the truck
and put his hands up. He stated that he asked Mr. Arnold, “Where are you taking my
brother’s truck?” and that Mr. Arnold replied, “F*** you n*****r.” Mr. Arnold then told
the Defendant that he would have to go to the impound lot to retrieve the truck. The
Defendant said Mr. Arnold began revving the truck while the Defendant was still
                                            -5-
standing in front of the truck. The Defendant testified that he “jumped out of the way. I
reached for my weapon and I fired for the safety of my own life.” He said he fired four
rounds from his Smith and Wesson .40 caliber hand pistol.

        The Defendant testified that after the shooting, he got into his car and followed
Mr. Arnold’s tow truck because he was going to call an ambulance for him. He testified
that in obtaining his concealed carry permit, he was trained to call 911 in the event that he
shot someone. When he stopped beside Mr. Arnold’s tow truck, Mr. Yates started
ramming him from behind. The Defendant testified that he did not try to speed away
from Mr. Yates but that he was trying to regain control of his car after Mr. Yates
“rammed” his car repeatedly. The Defendant asserted that Mr. Yates’s tow truck forced
him through the neighborhood and back onto Shelby Drive.

       Once back on Shelby Drive, the Defendant got out of his car. He testified that Mr.
Yates identified himself as a police officer by presenting a badge and that he instructed
the Defendant to lay down his weapon. The Defendant put his weapon on the ground, and
Mr. Yates sprayed him with mace. The Defendant denied ever running away or that Mr.
Yates sprayed him with mace multiple times.

       The jury convicted the Defendant of two counts of attempted second degree
murder, three counts of aggravated assault, and two counts of employing a firearm during
the attempted murder. The trial court merged the two convictions for the aggravated
assault of Mr. Arnold. The trial court later sentenced the Defendant to a fourteen-year
effective sentence. The Defendant filed a motion for new trial, which the trial court
denied. This appeal follows.

                                       ANALYSIS

        The Defendant argues that the evidence was insufficient to support his convictions
for attempted second degree murder and that the proof more accurately supports a
conviction for the lesser charge of attempted voluntary manslaughter. The standard for
appellate review in determining the sufficiency of the evidence is “‘whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of
fact could have the essential elements of the crime beyond a reasonable doubt.’” State v.
Davis, 354 S.W.3d 718, 729 (Tenn. 2011) (quoting Jackson v. Virginia, 443 U.S. 307,
319 (1979)). A defendant “must demonstrate that no reasonable trier of fact could have
found the essential elements of the offense beyond a reasonable doubt” in order to obtain
relief on a claim for insufficient evidence. State v. Perrier, 536 S.W.3d 388, 408 (Tenn.
2017). Further, because a jury conviction removes a defendant’s presumption of
innocence and “replaces it with one of guilt at the appellate level, the burden of proof

                                            -6-
shifts from the State to the convicted defendant,” who must demonstrate that the evidence
is insufficient support the jury’s verdict. Id.

       Appellate courts “will not substitute our own inferences drawn from the evidence
for those drawn by the jury, nor will we reweigh or re-evaluate the evidence.” Id. (citing
State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011)). The determination of “‘[t]he
credibility of witnesses, the weight to be given their testimony, and the reconciliation of
conflicts in the proof are matters entrusted to the jury as the trier of fact.’” Dorantes, 331
S.W.3d at 379 (quoting State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008)).

       Second degree murder is the “knowing killing of another.” T.C.A. § 39-13-
210(a)(1). A person acts knowingly “with respect to a result of the person’s conduct
when the person is aware that the conduct is reasonably certain to cause the result.”
T.C.A. § 39-11-106(a)(20); see also T.C.A. § 39-11-302. Second degree murder is a
result of the conduct offense. State v. Ducker, 27 S.W.3d 889, 896 (Tenn. 2000). The
Tennessee Supreme Court has determined that the “statute focuses purely on the result
and punishes an actor who knowingly causes another’s death. The intent to engage in
conduct is not an explicit element of the state’s case in second degree murder.” Id. This
court has previously stated that an attempted second degree murder occurs when one
‘“[a]cts with intent to cause’ the knowing killing of another and ‘believes the conduct
will cause’ the killing of another ‘without further conduct on the person’s part.’” State v.
Bonds, 502 S.W.3d 118, 145 (Tenn. Crim. App. 2016) (quoting T.C.A. § 39-12-
101(a)(2)). The trial court instructed the jury that to find that the Defendant committed
attempted second degree murder the State must prove beyond a reasonable doubt the
following elements: “(1) that the defendant intended to commit the specific offense of
Second Degree Murder; and (2) that the defendant did some act intending to cause an
essential element of Second Degree Murder to occur, and at the time believed would
cause the element to occur without further action on the defendant’s part.”

       The Defendant claims that watching his brother’s Ford truck being towed put him
“in such a state of passion as to cause him to act in irrational manner” such that he was
not guilty of attempted second degree murder, but that he should have instead been
convicted of attempted voluntary manslaughter. Voluntary manslaughter is defined as
“the intentional or knowing killing of another in a state of passion produced by adequate
provocation sufficient to lead a reasonable person to act in an irrational manner.” T.C.A.
§ 39-13-211. Specifically, the Defendant asserts that the jury “did not give sufficient
weight to just how agitated he had become.” The State responds by arguing that it is a
question for the jury to determine whether there was adequate provocation. See State v.
Williams, 38 S.W.3d 532, 539 (Tenn. 2001). At trial, the Defendant claimed self-defense
and also argued that the victims’ actions constituted adequate provocation such that he

                                            -7-
should be convicted of attempted voluntary manslaughter. However, “[b]y its verdict the
jury obviously rejected both arguments.” Id.

        Viewing the evidence in the light most favorable to the State, we conclude that the
evidence presented at trial was sufficient to support the jury’s conviction of two counts of
attempted second degree murder. It is undisputed that the Defendant knowingly fired at
least four rounds into the tow truck containing the two victims. The evidence presented
at trial established that the Defendant was not standing in front of the tow truck when he
fired his weapon. The jury rightfully rejected the Defendant’s argument that his actions
were justified because he was in state of passion caused by the towing of his brother’s
truck. It is apparent from the record that the jury heard and rejected the Defendant’s self-
defense argument at trial, and this court will not “reweigh or reevaluate the evidence.”
Henley v. State, 960 S.W.2d, 572, 578-79 (Tenn. 1997). Accordingly, the evidence
presented at trial is sufficient to support the Defendant’s convictions.

                                     CONCLUSION

      Based on the foregoing, we affirm the Defendant’s convictions of attempted
second degree murder.




                                    JOHN EVERETT WILLIAMS, PRESIDING JUDGE




                                           -8-
