         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs April 13, 2004

                   STATE OF TENNESSEE v. KEWAN JACKSON

                  Direct Appeal from the Criminal Court for Shelby County
                             No. 02-07016    J.C. McLin, Judge



                     No. W2003-01917-CCA-R3-CD - Filed June 25, 2004


The appellant, Kewan Jackson, was found guilty by a jury in the Shelby County Criminal Court of
criminally negligent homicide and reckless aggravated assault. The appellant received a total
effective sentence of three years in the Shelby County Workhouse. On appeal, the appellant
challenges the sufficiency of the evidence supporting his convictions and the refusal of the trial court
to remove a juror. Upon our review of the record and the parties’ briefs, we affirm the judgments
of the trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which DAVID G. HAYES and JAMES
CURWOOD WITT , JR., JJ., joined.

Kevin E. Childress, Memphis, Tennessee, for the appellant, Kewan Jackson.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Patience Branham and Vanessa King, Assistant
District Attorneys General, for the appellee, State of Tennessee.

                                              OPINION

                                      I. Factual Background

        The appellant was indicted by the Shelby County Grand Jury for the voluntary manslaughter
of Eric Burks and for the aggravated assault of Corinthiaus Daniels. In the light most favorable to
the State, the proof adduced at trial revealed that a party was held on July 7, 2001, at the After Dark
Club on Austin Peay Highway in Memphis. To prevent anyone from bringing drugs or weapons into
the club, security personnel searched attendees prior to admittance. Burks was the disk jockey (DJ)
for the party. Therefore, he arrived at the club early. Daniels and Kevin Denton, friends of Burks,
arrived at the club shortly after Burks. Later in the evening, the appellant, another friend of Burks,
arrived at the club. Burks told security to let the appellant into the party without paying admission.

        Daniels spent most of the evening on the dance floor, dancing by himself. Denton sat at a
table near the DJ booth. The appellant entered the DJ booth with Burks. Daniels shouted at Burks,
requesting that he change songs. However, because Burks was wearing a headset and the music was
loud, he was unable to hear Daniels’ request. Daniels then walked toward the DJ booth to personally
make his request. The appellant was standing on the steps of the DJ booth. When Daniels reached
the booth, the appellant walked off the steps and shoved or bumped Daniels with his right arm.

        After the contact, the appellant reached into the waistband of his pants and withdrew a High
Point ACP .45 caliber pistol. When Daniels attempted to grab the pistol, the appellant began firing
multiple shots. Daniels was struck several times. Security personnel approached the men and
attempted to stop the altercation. Both Daniels and the appellant fled outside. Daniels sought cover
in an attempt to avoid further shots. The appellant fired again outside the club.

        By the conclusion of the incident, Daniels had suffered a total of five gunshot wounds: one
wound in his arm, one in his leg, one in his back, and two in his stomach. Daniels was hospitalized
for three days as the result of his wounds. Additionally, Burks was killed by a gunshot wound inside
the club.

       Several attendees at the party, namely Daniels, Denton, Oderrial Moore, and Charlie
Patterson, stated that the appellant was the only person at the club in possession of a gun.
Consistently, the attendees maintained that the appellant “bumped” Daniels, then drew his weapon.
Additionally, the attendees uniformly identified the appellant as the shooter.

        Police at the scene discovered a High Point ACP .45 caliber pistol, spent rounds and
cartridges, and live rounds. One of the bullets and one of the cartridges were identified as being fired
from the High Point pistol. Moreover, the Medical Examiner retrieved a bullet from Burks’ body,
which bullet had been fired from the High Point pistol.

       Contrastingly, at trial the appellant asserted that he came to the party at Burks’ invitation.
Daniels was “acting erratic” on the dance floor, swinging his arms and dancing wildly. Daniels
looked toward the DJ booth and began cursing. Daniels approached the booth, uttered a racial slur
toward the appellant, and moved his hand toward his waistband as if to reach for a weapon. The
appellant withdrew his High Point ACP .45 caliber pistol to intimidate Daniels into retreating.
Daniels grabbed the pistol and the appellant’s hair. At that point, the appellant shot Daniels.

         The two men struggled over the gun. Daniels had both hands on the appellant’s gun. He
turned the gun and shot the appellant in the arm. Eventually, security intervened. Daniels ran
outside while the appellant stayed in the club. The appellant explained to security that he had a
permit to carry the pistol. After the incident, the appellant went to his girlfriend’s house. He was
later taken by ambulance to the hospital where he was arrested.



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       Based upon the foregoing evidence, the jury convicted the appellant of the lesser-included
offenses of criminally negligent homicide and reckless aggravated assault. At the sentencing
hearing, the trial court found the appellant to be a standard Range I offender. The court imposed
sentences of two years for the criminally negligent homicide conviction and three years for the
reckless aggravated assault conviction. The trial court further ordered the sentences to be served
concurrently. On appeal, the appellant challenges the sufficiency of the evidence supporting his
convictions and the trial court’s refusal “to excuse a juror who was familiar with a member of the
victim’s family.”

                                            II. Analysis

                                  A. Sufficiency of the Evidence

        On appeal, a jury conviction removes the presumption of the appellant’s innocence and
replaces it with one of guilt, so that the appellant carries the burden of demonstrating to this court
why the evidence will not support the jury’s findings. See State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). The appellant must establish that no “reasonable trier of fact” could have found the
essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307,
319, 99 S. Ct. 2781, 2789 (1979); Tenn. R. App. P. 13(e).

        Accordingly, on appeal, the State is entitled to the strongest legitimate view of the evidence
and all reasonable inferences which may be drawn therefrom. See State v. Williams, 657 S.W.2d
405, 410 (Tenn. 1983). In other words, questions concerning the credibility of witnesses and the
weight and value to be given the evidence, as well as all factual issues raised by the evidence, are
resolved by the trier of fact, and not the appellate courts. See State v. Pruett, 788 S.W.2d 559, 561
(Tenn. 1990).

        In order to prove that the appellant committed the criminally negligent homicide of Burks,
the State was required to prove that the appellant engaged in criminally negligent conduct which
resulted in Burks’ death. See Tenn. Code Ann. § 39-13-212(a) (1997). Tennessee Code Annotated
section 39-11-302(d) (1997) provides:

               “Criminal negligence” refers to a person who acts with criminal
               negligence with respect to the circumstances surrounding that
               person’s conduct or the result of that conduct when the person ought
               to be aware of 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 the failure to perceive it 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.




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“In other words, the accused must know, or should know, that his or her conduct, or the result of that
conduct, will imperil the life of another given the circumstances that exist when the conduct takes
place.” State v. Adams, 916 S.W.2d 471, 474 (Tenn. Crim. App. 1995).

        In the instant case, in the light most favorable to the State, the facts adduced at trial reveal
that the appellant brandished a loaded .45 caliber pistol in a nightclub filled with other people. The
appellant fired repeatedly into the small space, and one of the bullets struck Burks, killing him. The
State’s witnesses testified that the appellant was the only person in the club that night with a gun.
Moreover, the State’s witnesses also stated that the appellant was the only person in the club
shooting a gun. We conclude that the appellant knew or should have known that his actions would
“imperil the life of another given the circumstances that exist[ed] when the conduct [took] place.”
Adams, 916 S.W.2d at 474. Accordingly, this evidence is sufficient to support the appellant’s
conviction for criminally negligent homicide. See State v. Oneal Sanford, No. E1999-02089-CCA-
R3-CD, 2001 WL 681312, at *4 (Tenn. Crim. App. at Knoxville, June 18, 2001).

        In order to prove that the appellant committed the reckless aggravated assault of Daniels, the
State was required to prove that the appellant recklessly caused bodily injury to Daniels while using
or displaying a deadly weapon. See Tenn. Code Ann. §§ 39-13-101(a)(1) and 39-13-102(a)(2)
(1997). Tennessee Code Annotated section 39-13-302(c) provides:

               “Reckless” refers to a person who acts 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.

        In the light most favorable to the State, the proof at trial demonstrated that the appellant
pointed his loaded pistol at Daniels, then he fired the weapon at Daniels. In fact, the appellant
conceded that he shot Daniels. Daniels testified that he received five gunshot wounds and still bears
scars from the wounds. Again, the appellant was the only person in the club that night with a gun.
We conclude that this evidence is sufficient to sustain the appellant’s conviction for reckless
aggravated assault. See State v. Michael Lewis, No. W2001-03121-CCA-R3-CD, 2003 WL
1697689, at *4 (Tenn. Crim. App. at Jackson, Mar. 26, 2003).

        The appellant’s main complaint regarding the sufficiency of the evidence is the jury’s
rejection of his claim of self-defense. Tennessee Code Annotated section 39-11-611(a) (1997)
provides:

               A person is justified in threatening or using force against another
               person when and to the degree the person reasonably believes the


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                force is immediately necessary to protect against the other’s use or
                attempted use of unlawful force. The person must have a reasonable
                belief that there is an imminent danger of death or serious bodily
                injury. The danger creating the belief of imminent death or serious
                bodily injury must be real, or honestly believed to be real at the time,
                and must be founded upon reasonable grounds.

Self-defense is essentially a question of fact to be determined by the jury. See State v. Clifton, 880
S.W.2d 737, 743 (Tenn. Crim. App. 1994); State v. Ivy, 868 S.W.2d 724, 727 (Tenn. Crim. App.
1993). As such, “in the context of judicial review of the jury verdict, in order to prevail, the
[appellant] must show that the evidence relative to justification, such as self-defense, raises, as a
matter of law, a reasonable doubt as to his conduct being criminal.” Clifton, 880 S.W.2d at 743.

        The only proof at trial supporting the appellant’s claim of self-defense was his self-serving
testimony. The State’s witnesses uniformly testified that the appellant “bumped” Daniels, then drew
his gun. A struggle for control of the gun began, resulting in the shooting of Daniels and Burks. It
is within the jury’s prerogative to accept or reject a claim of self-defense. See State v. Goode, 956
S.W.2d 521, 527 (Tenn. Crim. App. 1997). We conclude that the jury was well within its purview
to reject the appellant’s claim of self-defense.

                                      B. Juror Disqualification

        As his final issue, the appellant argues that the trial court erred in refusing to excuse a juror
who was familiar with a member of the victim’s family. Generally, “[o]nce a jury is impaneled,
jurors may be discharged from further service prior to deliberations only if found by the trial court
to be ‘unable or disqualified to perform their duties.’” State v. Cleveland, 959 S.W.2d 548, 551
(Tenn. 1997) (quoting Tenn. R. Crim. P. 24(e)(2)). The decision whether to discharge a juror and
impanel an alternate juror rests within the sound discretion of the trial court. Id. As such, we will
not disturb the trial court’s decision absent an abuse of that discretion.

         At trial, Burks’ mother testified concerning Burks’ non-violent nature. At the conclusion of
her testimony, a juror informed the trial court that he recognized Burks’ mother as the mother of his
sister-in-law’s ex-boyfriend. In other words, the juror told the court that he knew Burks’ brother.
The juror stated that he was not close friends with the victim’s family; he simply knew them. The
juror maintained that he did not realize he knew the family until he saw Burks’ mother. He
explained that Burks and his mother had a different surname than Burks’ brother.

         The appellant objected to the juror’s continuing service on the jury. Upon questioning by the
trial court, the juror stated, “I don’t think it would have a bearing on my decision.” Additionally, the
juror repeatedly asserted that he could be fair and impartial, and he maintained that he would base
his decision upon the evidence adduced at trial. The trial court, in its discretion, determined that the
juror could be fair and impartial and refused to remove the juror. See State v. Bates, 804 S.W.2d



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868, 878 (Tenn. 1991). We conclude that the trial court did not abuse its discretion in refusing to
remove the challenged juror.

                                        III. Conclusion

       Finding no error, we affirm the judgments of the trial court.


                                                      ___________________________________
                                                      NORMA McGEE OGLE, JUDGE




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