             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE                  FILED
                          MARCH 1998 SESSION
                                                             June 19, 1998

                                                          Cecil W. Crowson
STATE OF TENNESSEE,           )                          Appellate Court Clerk
                              )
             Appellee,        )    No. 01C01-9706-CR-00206
                              )
                              )    Davidson County
v.                            )
                              )    Honorable J. Randall Wyatt, Jr., Judge
                              )
OHMAR DESHAWN BRADEN,         )    (Reckless homicide)
                              )
             Appellant.       )


For the Appellant:                 For the Appellee:

Lionel R. Barrett, Jr.             John Knox Walkup
Washington Square Two              Attorney General of Tennessee
222 2nd Avenue, North                     and
Nashville, TN 37201                Elizabeth B. Marney
                                   Assistant Attorney General of Tennessee
                                   425 Fifth Avenue North
                                   Nashville, TN 37243-0493

                                   Victor S. Johnson, III
                                   District Attorney General
                                           and
                                   Paul DeWitt
                                   Assistant District Attorney General
                                   Washington Square
                                   222 2nd Avenue, North
                                   Nashville, TN 37201-1649




OPINION FILED:____________________


AFFIRMED

Joseph M. Tipton
Judge
                                                  OPINION



                  The defendant, Ohmar Deshawn Braden, appeals as of right from his

conviction1 by a jury in the Davidson County Criminal Court for reckless homicide, a

Class D felony. He received a three-year sentence as a Range I, standard offender to

be served in the Davidson County Workhouse. The defendant presents one issue for

review: whether the evidence was sufficient to support the jury's verdict that the

defendant's conduct in shooting the victim constituted reckless homicide. We hold that

the evidence was sufficient to support the conviction for reckless homicide.



                  This case involves the shooting death of nineteen-year-old Marcel Price

on July 16, 1995, inside the house of Al Batson, a friend of both the victim and the

defendant. At trial, Mr. Batson testified that on this date, he, the victim, the defendant,

Vernon Bush (Mr. Batson’s roommate), and some other high school friends were at Mr.

Batson’s house drinking and reminiscing over their high school days. He stated that

they planned to go to a friend’s birthday party. He said that he saw the defendant with

a .38 revolver before leaving for the party. Mr. Batson testified that he and the victim

returned to his house after leaving the party approximately two hours later. He said that

about five to ten minutes later, the defendant came back. Mr. Batson said that

someone had driven the defendant and Mr. Bush to his house. Mr. Batson said that he

thought that the defendant was going to get his car and leave. He said that the

defendant began talking to him and the victim. Mr. Batson described the defendant as

being hyper. He stated that while he and the victim were sitting in the living room, the

defendant took the .38 revolver out of his pocket and tossed it onto the couch where he

was sitting. Mr. Batson said that he jumped out of the way, fearing that the gun would



                  1
                  The defendant was also convicted for unlawful possession of a weapon, a Class A
mis dem ean or, an d rec kles s driv ing, a Clas s B m isde me ano r. He rece ived c onc urre nt se nten ces of six
months for the unlawful possession of a weapon conviction and three months for the reckless driving
conviction, also to be served in the Davidson County Workhouse. The defendant is not appealing these
two convictions.

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discharge, and then said, "what are you doing" or "stop." He said that the defendant

sat down beside Mr. Batson, opened the chamber of the gun, and showed that it was

empty.



              Mr. Batson testified that the defendant stood up and continued talking.

He said that the defendant then pulled a .357 revolver out of his right back pocket and

fired it. Mr. Batson testified that he did not see the defendant pointing the gun at

anyone or waving it, because he was walking out of the living room when he heard the

shot. He then saw the victim raise up and heard the victim say, "Oh, Bill," referring to

the defendant's high school nickname. Mr. Batson then realized that the victim, who

was sitting in a chair, had been shot. He stated that the victim did not have a gun and

that the victim did not make a sudden movement to cause the defendant to react as he

did. Mr. Batson said that he had not seen the defendant with the .357 revolver earlier.



              Mr. Batson said that he and the defendant put the victim in Mr. Batson's

truck, and he drove speedily to Baptist Hospital, where the victim died. Mr. Batson

testified that he heard the defendant say, “I’m on my way,” and he believed that the

defendant would try to follow him. He testified that there had been no disagreement

between the victim and the defendant that night, and that he had never observed a

serious quarrel between them. Mr. Batson said that the defendant did not smoke

anything and that he did not appear to be intoxicated when he came into the house. In

a tape-recorded interview with Joe Jones, the investigator for the district attorney's

office, Mr. Batson said, "I think it was an accident." Mr. Batson estimated that he and

the defendant drank approximately one can of beer that night. He said that the victim

had more to drink than him. Mr. Batson stated that he had smoked some marijuana

also, but that the defendant had not used any. He testified that he did not believe that

the defendant was under the influence of alcohol or drugs.




                                             3
              Officer Richard Moore of the Metro Nashville Police Department testified

that he saw the defendant traveling at an extremely high rate of speed, weaving in and

out of traffic. Officer Moore said that he could not pursue the defendant’s car because

he had a prisoner with him, so he broadcast a description over the police radio. After

dropping the prisoner off, he searched and found the defendant’s car with two or three

police cars surrounding it. He arrested the defendant for reckless driving. Officer

Moore also testified that the defendant told them that he was trying to get to the hospital

because one of his friends had been shot. Officer Moore said that during the search of

the vehicle, Officer Garret found two pistols: the .38 was unloaded, but the .357 had two

live rounds in the cylinder and one spent round in the cylinder. Officer Moore said that

the defendant did not appear to be intoxicated and that he did not smell alcohol on the

defendant.



              Officer Freddie Garrett of the Metro Nashville Police Department heard

over the radio Officer Moore’s description, saw the defendant’s car, and stopped it.

Officer Garrett said that the defendant jumped out of the car and said that he was

looking for Vanderbilt Hospital. He said that the defendant was excited and had blood

on his clothing. Officer Garrett said that he found the two guns under the front driver’s

seat.



              Vernon Bush, Jr., Mr. Batson’s roommate, testified that he was standing

outside talking to a neighbor when he heard a loud noise like a gunshot and then saw

the victim and Mr. Batson come out of the house. He said that he saw blood coming

from the victim’s shoulder. Mr. Bush testified that Mr. Batson drove the victim to the

hospital in Mr. Batson’s truck and that he and the defendant got into the defendant's car

to try to follow. He testified that they lost sight of Mr. Batson’s truck and decided to go

to Vanderbilt Hospital. Mr. Bush said that he was there to look for Mr. Batson and the

victim and was unaware of the guns in the car. He testified that shortly thereafter, the



                                             4
defendant’s car was pulled over by the police. Mr. Bush said that he was arrested for

possession of a weapon and aggravated assault but that the charges were dropped

after meeting with the prosecutor and agreeing to testify truthfully.



              Homicide Detective Johnny Lawrence identified the guns discovered

inside the car and testified that the .357 Cobra is a double-action weapon requiring

eight to fifteen pounds of pressure to pull the trigger when the hammer is down. Mr.

Lawrence also testified that the victim’s wound was fairly large and that the angle of the

shot showed that it went towards the center of the chest.



              The parties stipulated to the autopsy report prepared by Dr. Ann Bucholtz,

the Davidson County Medical Examiner. The report states that the bullet entered the

victim's left upper chest near the shoulder. It also states that the victim died as a result

of the gunshot wound to the chest.



              The defendant challenges his conviction for reckless homicide, arguing

that the killing was accidental and not a result of his reckless conduct. The state

responds that the evidence is sufficient to support the jury’s verdict of guilt beyond a

reasonable doubt. We agree.



              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 v. Virginia, 443 U.S. 307, 319, 99 S. Ct.

2781, 2789 (1979). We do not reweigh the evidence, but presume that the jury has

resolved all conflicts in the testimony and drawn all rational 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).



                                             5
              Pursuant to T.C.A. § 39-13-215(a), "Reckless homicide is a reckless

killing of another." Under T.C.A. § 39-11-106(a)(31), "reckless" is defined as:

              act[ing] recklessly with respect to circumstances surrounding
              the conduct or the result of the conduct when the person is
              aware of but consciously disregards a substantial and
              unjustifiable risk that the circumstances exist or the result will
              occur. The risk must be of such a nature and degree that its
              disregard constitutes a gross deviation from the standard of
              care that an ordinary person would exercise under all the
              circumstances as viewed from the accused person's
              standpoint.



              When viewed in the light most favorable to the state, the proof establishes

that the defendant recklessly killed the victim. While talking to the victim and Mr.

Batson, the defendant pulled out a gun and threw it onto the couch. The defendant

then sat down on the couch, opened the barrel, and showed Mr. Batson that it was

empty. He stood up again, pulled out another gun that was loaded, and shot the victim.



              Shooting a gun in a room with two persons present and failing to ensure

that it is pointed in a safe direction are substantial and unjustifiable risks that death will

occur. The defendant was aware of the risk of death because he first threw another

gun onto the couch, scaring Mr. Batson who was sitting there, and then showed him

that the gun was empty. The defendant then jumped up and pulled out another gun,

shooting the fatal blow to the victim. Although the defendant may not have intended to

hurt the victim, he deliberately used eight to fifteen pounds of pressure to pull the

trigger. He consciously disregarded the risks of hurting or killing one of the other

persons in the room. Shooting a gun in a room with occupants is a gross deviation from

the standard of care that an ordinary person would exercise. Under these

circumstances, we conclude that a rational juror could have found the defendant guilty

of reckless homicide beyond a reasonable doubt.




                                               6
              In consideration of the foregoing and the record as a whole, we affirm the

trial court’s judgment of conviction.




                                         Joseph M. Tipton, Judge



CONCUR:

_____________________________
David H. Welles, Judge




Joe G. Riley, Judge




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