State v. Owens

• Decision Date: 07 December 2022
• Docket Number: W2022-00353-CCA-R3-CD
• Parties: STATE OF TENNESSEE v. KEVIN OWENS
• Court: Tennessee Court of Criminal Appeals

STATE OF TENNESSEE
v.
KEVIN OWENS

No. W2022-00353-CCA-R3-CD

Court of Criminal Appeals of Tennessee, Jackson

December 7, 2022

Assigned on Briefs November 1, 2022

Appeal from the Criminal Court of Shelby County No. 20-02099 Chris Craft, Judge

The Defendant, Kevin Owens, was convicted by a Shelby County jury of attempted first degree murder, a class A felony, and employing a firearm during the commission of a dangerous felony, a class C felony. See Tenn. Code Ann. §§ 39-12-101(a)(2), 39-13-202(a)(1), 39-17-1324(b)(1). On appeal, the Defendant argues that the evidence is insufficient to support his convictions Specifically, he contends that the State's evidence was inadequate to establish his identity as the perpetrator beyond a reasonable doubt. After review, we affirm the judgments of the trial court.

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

Phyllis L. Aluko, District Public Defender; Harry E. Sayle III (on appeal) and Robert Felkner (at trial), Assistant District Public Defenders, for the appellant, Kevin Owens.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Assistant Attorney General; Amy P. Weirich, District Attorney General; Jamie Kidd and Abby Wallace, Assistant District Attorneys General, for the appellee, State of Tennessee.

Kyle A. Hixson, J., delivered the opinion of the court, in which Robert L. Holloway, Jr., and J. Ross Dyer, JJ., joined.

OPINION

KYLE A. HIXSON, JUDGE

I. Factual and Procedural History

This case arises from an April 30, 2020 shooting at Meadow Glade Lane Apartments in Memphis, Tennessee. From this incident, a Shelby County grand jury charged the Defendant with attempted first degree murder of the victim, Derionta Brandon, and employing a firearm during the commission of a dangerous felony.

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At trial, the victim testified that in early 2020, he hired the Defendant as a Burger King cook. Despite having to discipline the Defendant a few times, he and the Defendant had a good working relationship. Along with giving the Defendant rides home and socializing outside of work with other employees, the two also engaged in a casual sexual relationship, notwithstanding the victim being in a relationship with someone else.

The victim and the Defendant were both working on April 30, 2020, an especially busy day at this Burger King. When the victim rushed the crew, the Defendant appeared offended and gave the victim "a weird look" but never said anything disrespectful. Later in that shift, the Defendant went missing and did not respond to the victim's multiple calls or text messages. Finally, the victim left a message telling the Defendant that he was fired and not to contact him moving forward.

At approximately 8:30 p.m. that evening, after taking a shower and beginning to drink a pint of tequila, the victim heard a knock at his door and saw the Defendant outside dressed in all black. He asked why the Defendant was at his apartment and the Defendant answered that they needed to talk. The victim repeatedly told the Defendant to leave and that the two would talk tomorrow. After about five to six minutes, the Defendant still refused to leave. The victim was fearful but "didn't call the police because . . . [he] didn't think that [the Defendant] would come to shoot [him]." The victim opened the door and let the Defendant inside. The victim noticed something in the Defendant's pocket, and when he asked what it was, the Defendant said it was his cell phone. The victim led the Defendant into his apartment with his back facing the Defendant. The Defendant stood in the kitchen area, near the front door, and the victim stood in the living room. The victim kept his attention on the television and was not looking at the Defendant while the Defendant talked about what happened at work that day. The Defendant seemed "really nice," "like nothing had really happened."

After about two to three minutes, the victim turned back towards the Defendant and saw the Defendant pointing a gun at him. The victim testified that, without saying a word, the Defendant smiled and opened fire. The victim circled around his living room, knocking items and furniture around and shielding his face with his right hand. The victim said the only thing that stopped the Defendant from shooting was his pretending to lose consciousness. That was when the Defendant dropped the gun magazine, grabbed the victim's bag, and ran out of the apartment. The victim started praying, believing he would die. The victim started to feel pain but, still having energy, staggered out of his apartment to get help. Once outside, the victim saw the Defendant beside the victim's car removing items from the victim's bag. The victim returned to his apartment and yelled to the Defendant, "[Y]ou know you're gonna go to jail." The Defendant rushed towards him, so he quickly shut the door, locked it, and pretended to call 9-1-1. The Defendant left.

The victim first called his mother because he thought he was dying, and he wanted her to know it was the Defendant who shot him. The victim then called his boss because

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she knew the Defendant and the trouble the victim had with the Defendant at work. The victim stated he wanted to make sure that they knew the Defendant "did it." The victim then called the police and was taken to the hospital. When officers arrived at the hospital, they showed him a six-photograph line-up. The victim could not identify the Defendant but testified that he was on heavy medication and that he did not remember being questioned at that time. The next morning, the victim was shown another six-photograph line-up, and he identified the Defendant as the person who shot him.

The victim testified that he was treated for six injuries: a broken hip, a broken arm, and gunshot wounds to his torso, right hand, arm, and buttocks. He said that he suffered from PTSD, attended therapy, and had trouble holding items in his right hand.

On cross-examination, the victim acknowledged that the Defendant was hired during the COVID-19 pandemic and believed that the Burger King staff wore masks during this time. He stated, however, that he had seen the Defendant "many times" without a mask and identified the Defendant as the person who shot him.

Denise Donaldson, the victim's mother, testified that she received a call from him sometime between 8:35 and 8:40 p.m. on April 30, 2020. She testified that the victim said the Defendant shot him and then hung up the phone. She attempted to call back several times, but the victim did not answer. Mrs. Donaldson said that she then called her husband, told him about the phone call, and the two immediately drove to Memphis.

Memphis Police Department ("MPD") Officer Nigel Payne testified that he arrived on the scene and observed the victim receiving emergency medical care, bleeding, and "screaming in pain." Officer Payne said that he asked the victim who shot him and that the victim identified the Defendant and said that the two worked together at Burger King. This interaction was recorded on Officer Payne's body camera and played for the jury.

MPD Sergeant Vonzell Bibbs of the Felony Response Team testified that he arrived at the scene after the victim was transported to the hospital. In the parking lot of the victim's apartment complex, he observed debris beside the victim's car, "like someone had threw something down from some type of . . . pack." While walking on the breezeway, Sergeant Bibbs noticed blood spatter leading towards the victim's...