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Carryout owner, 63, goes on trial for shooting customer

Attempted murder or a mistake? Chinese carryout owner, 63, goes on trial for shooting customer

Avrian Merchant had just gotten off work at a body shop when he stopped into a tiny Chinese food carryout in West Baltimore for some iced tea and cigarillos.

The transaction went off without a hitch and he left, when suddenly the 29-year-old heard three bangs and felt a pain in his leg. He had been shot.

"When I looked back, the only person I saw was the store owner," Merchant testified.

The owner, 63-year-old Fu Tan, is charged with attempted first-degree murder, with prosecutors saying at the opening of his trial Tuesday afternoon that he intentionally tried to kill Merchant.

But Tan's defense attorney told jurors that Tan had no reason to want to hurt Merchant. Instead, Tan had intended to fire shots, with a gun he legally owned, into the ground to scare off teens who had become unruly in his store.

"There was no intent to cause any injury to Mr. Merchant. [He] had nothing to do with this, and it was a mistake," said Martin Cohen, Tan's public defender. "Was it criminal?"

Tan has been held without bail since his arrest Feb. 15, the day the shooting occurred outside his store in the 1800 block of W. North Ave. He was escorted into the courtroom Tuesday shackled by the hands and around his waist, and bowed to a corrections officer and to a Chinese interpreter who is helping him follow the proceedings.

He is charged with attempted first-degree murder, first-degree assault, second-degree assault, reckless endangerment and firearm use in a felony or violent crime.

"My theory is he was upset or angry ... and went and fired off three shots on a public street, where people live, work, walk and drive," Assistant State's Attorney Linda Ramirez told jurors in opening statements. "I believe he was aiming at Avrian Merchant. He went out and intended to shoot the person who had just been in his store. He tried to kill him."

Merchant was the first witness called to testify, and said when he entered the carryout two teens were already inside. Tan was smoking behind the store's protective glass, a staple of small businesses in Baltimore's poorer neighborhoods.

"The girl was angry about her food. She told me not to order any food," Merchant testified. "She had her food in her hand, and she was cursing at him. She was telling him she wanted her money back."

Merchant said he paid her no mind and purchased his items without a problem. He said he believed the girl threw her food on the ground or into the wall, and she and a teenage boy ran out.

That's when Merchant was shot. The bullet remains lodged in his thigh, and he said his leg is functioning at "80 percent."

Ramirez said police were unable to communicate with Tan and initially believed he may have been a robbery victim. They summoned a crime lab technician who spoke Mandarin and put him on the phone with Tan to ask what happened.

The technician, Derrick Hwang, said Tan told him, "It's not important" and that he didn't want to speak to him.

Hwang went to the store at the request of detectives, where he said Tan told police that there had been an argument or fight, and the individuals involved left. Tan told police he was inside when he heard shots outside, Hwang said.

Police decided to test Tan's hands for gunshot residue. Only then, Hwang testified, did Tan tell him that he had fired the shots and showed police the gun.

Cohen, Tan's attorney, signaled that Tan will testify in his own defense, saying he has been robbed multiple times and was fearful that the teens at the store would rob him or come back later and cause trouble.

He said there were four people in the store, one who had blocked the door. Tan "decided he had a choice" to make and emerged from behind the protective glass with a gun.

"He decided he was going to shoot his gun three times into the ground," Cohen said. "He intended to scare those people away so they didn't come back. It was instinctive."

Cohen said prosecutors must show Tan intended to harm Merchant in order to convict him of attempted murder and first-degree assault. Because Tan had no problems with Merchant in the store, he said, prosecutors will not be able to prove their case.

"You had no argument?" Cohen asked Merchant. "There was no reason for him to have any animosity toward you?"

"No sir," Merchant testified.

jfenton@baltsun.com

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