         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                               Assigned on Briefs May 21, 2002

   STATE OF TENNESSEE v. KYNASTON SCOTT a.k.a. KYNASTON L.
                          OLAWUMI

                 Direct Appeal from the Criminal Court for Davidson County
                           No. 2000D-2256    Seth Norman, Judge



                   No. M2001-00707-CCA-R3-CD - Filed December 20, 2002


The appellant, Kynaston Scott a.k.a. Kynaston L. Olawumi, was convicted by a jury in the Davidson
County Criminal Court of first degree murder and felony murder. The trial court merged the
convictions and sentenced the appellant to life imprisonment in the Tennessee Department of
Correction. On appeal, the appellant contends that the evidence was not sufficient to support his
convictions, the trial court erred by instructing the jury on flight, and the trial court erred in admitting
an inflammatory photograph. Upon review of the record and the parties’ briefs, we affirm the
judgment of the trial court.

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

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which THOM AS T. WOODA LL and
JOHN EVERETT WILLIAMS, JJ., joined.

Dwight E. Scott, Nashville, Tennessee, for the appellant, Kynaston Scott a.k.a. Kynaston L.
Olawumi.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; and Lisa Naylor and Shelli Neal, Assistant District
Attorneys General, for the appellee, State of Tennessee.

                                               OPINION

                                      I. Factual Background
                In the early morning hours of March 29, 1998, the victim, Melvin Sharp, was found
slumped behind the wheel of his vehicle in the Second Street area of Nashville. Melvin Sharp had
been shot in the head and was dead at the time his body was discovered by police. The appellant was
subsequently charged with one count of first degree murder and one count of felony murder.
                At trial, Lori M. Sharp testified that in March 1998 she and her husband Melvin Sharp
worked at the McDonald’s restaurant at 1201 Broadway in Nashville. Lori Sharp was the general
manager and Melvin Sharp was her first assistant. The Sharps made the restaurant’s bank deposits
each day at First American Bank on McGavock Pike. In preparation for deposit, the money was
placed in First American deposit bags and each manager had a drop key which was required to make
the deposit. However, the couple had only one drop key, which they kept on a separate key ring at
their home. The one on duty usually took the key when leaving for work. On March 28, 1998,
Melvin Sharp left for work around 4:00 a.m. He did not take the key to work with him that day.

                Lori Sharp last spoke with her husband around 6:00 to 8:00 p.m. that evening when
he called from work to tell her that he planned to stop by his brother’s house to eat fish. Lori Sharp
related that she and her husband owned a 1995 Mazda 626 which was a “burgundy, reddish color.”
Her husband had driven the car to work that day. The victim did not carry a wallet, but kept his
money, driver’s license, Social Security card, and health insurance card in a small “daytimer.” After
his death, his watch, a cigarette lighter, and sixty to eighty dollars ($60 to $80) were returned to Lori
Sharp.

               On March 29,1998, Officer Dan Shagger of the Metropolitan Police Department was
assigned to work the area around Second Street. He was assigned to the area due to the high crime
rate. Around 1:00 a.m., Officer Shagger drove down Second Street and noticed a 1995 Mazda
parked facing the wrong direction on the 400 block section of Second Street. As he approached the
car, he observed that the engine was running and a turn signal was activated. When he got closer,
he saw that the driver of the car was slumped over behind the steering wheel. Officer Shagger
thought the driver had been drinking or had fallen asleep. However, when he reached the car he saw
that the passenger window was shattered. The driver was bleeding from the head and was not
breathing. Officer Shagger immediately called an ambulance.

                Officer Shagger explained that approximately thirty minutes to an hour earlier he had
driven down the street but had not seen the vehicle. At the time he discovered the victim there was
no one around the car. He observed that “[i]t was either being ignored at all and then once I called
an ambulance, that’s when everybody came out.” He immediately marked off the crime scene,
taking care to ensure that the parameters were set far enough from the vehicle to keep people out of
the area. He explained that a large number of apartments were located near the scene. Officer
Shagger spoke with “one or two” individuals who advised him that they had not seen or heard
anything.

               Officer Harmon Hunsicker of the Metropolitan Police Department assisted in
processing the crime scene. At the crime scene, he removed two pieces of a bullet from the
passenger door of the vehicle and also removed a bank deposit bag from underneath the victim’s
seat. He then had the Mazda towed to the identification processing laboratory where the vehicle was
searched and evidence collected. Approximately four thousand dollars ($4000) was removed from
the bag. Officer Hunsicker helped identify the victim by comparing the victim’s fingerprints with
those on file with the police department.


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                 In the early morning hours of March 29, 1998, fifteen-year-old Jeffrey Pinshon was
“just out chillin’” with Joe Vaughn and Rudy Vaughn. They had not been drinking, but had smoked
marijuana earlier in the evening. The group had been together approximately two hours and were
sitting on the front of a car near the Lane Garden apartments when they saw the appellant come from
“out of the projects.” The appellant approached the group and stated that he needed some money.
They advised the appellant that they did not have any money. The appellant then walked over to a
car and “all we heard then was a gun shot.” Immediately thereafter, the appellant walked down the
street and Pinshon went home. At the time, Pinshon knew that someone had been hurt, but he did
not stay around to assist or call police. Pinshon explained that he was on juvenile probation and was
not supposed to be out late or smoking marijuana. Pinshon had seen the appellant on an earlier
occasion when the appellant tried to “jump on” his cousin.

                On March 31, 1998, Pinshon received a call from Peggy Wilma. Pinshon knew
Wilma “from a friend of her son.” Wilma advised Pinshon that a detective was looking for him and
his friends. Pinshon went to Wilma’s house and spoke with Detective Pat Postiglione. Pinshon
initially denied that he saw the shooting. However, after speaking further with the detective, he
voluntarily accompanied Detective Postiglione to the police department where he gave a taped
statement in which he admitted that he witnessed the shooting. He was shown a photographic lineup
and was able to identify the appellant as the shooter. Although Pinshon did not know the appellant’s
full name, he related that the appellant was known as “K.”

               In November 2000, Pinshon was serving a sentence at Taft Youth Developmental
Center. While there, the appellant’s brother, Jason Scott, gave Pinshon a letter from the appellant.
Pinshon and Scott had become friends when they were “locked up together and shipped off.”

                Joe Vaughn was fourteen years old in March 1998 and was living with his mother in
Lane Garden Apartments. On the night of the shooting, he was outside the apartments with Rudy
Vaughn and Jeffrey Pinshon. The appellant approached them and walked up to Pinshon. Joe
Vaughn related that although the appellant had a hood on his head, he was able to see the appellant’s
face. He recognized the appellant because he had seen him on the church bus. The appellant “went
around to the car, the driver side and shot a man.” He fired one shot and “took off running.” Joe
Vaughn did not see the gun but did see the flash from the gun. After the shooting, Joe Vaughn ran
home. Later, Wilma told him that the police were looking for him. On April 3, 1998, Joe Vaughn
spoke with Detective Postiglione and described the events that he had witnessed. He also identified
the appellant from a photographic line-up.

               Lieutenant Karl E. Graves testified that he was the jail administrator with the Sheriff’s
Department in Belmont, New York. In that capacity, he received a letter from the appellant who was
an inmate in the jail. At the time of his arrest in New York, the appellant identified himself as
Kynaston Olawumi. After receiving the letter, Lieutenant Graves spoke with the appellant. The
appellant advised Lieutenant Graves that if he entered a different Social Security number in the
computer, he would find that the appellant was wanted in Nashville, Tennessee. Subsequently, the
appellant admitted that he was Kynaston Scott and that he was wanted in Nashville for a homicide.


                                                  -3-
The appellant asserted that a mistake had been made and he wanted to return to Nashville to explain
what had happened. The appellant was subsequently released to the custody of a Nashville police
detective.

               Officer Charles Blackwood testified that he was employed in the identification section
of the Metropolitan Police Department. Specifically, he processed items for latent fingerprints. In
this case, he was asked to process two handwritten letters. He found a usable print on one letter,
which print was then submitted to Lorita Marsh for comparison to other prints.

                Lorita Marsh testified that she was a police identification analyst with the
Metropolitan Police Department. Her official duties involved “[d]eclassification and comparison
of fingerprints.” Marsh compared a fingerprint obtained from a handwritten letter with a fingerprint
of the appellant. She identified the fingerprint on the letter as that of the appellant.

              Thomas Vasrick, a forensic document examiner, testified that he compared the
handwriting in the letter written to the appellant’s brother with the handwriting on an affidavit of
indigency completed by the appellant. Vasrick concluded that both documents were written by the
appellant.

                Detective Pat Postiglione worked in the homicide unit of the Metropolitan Police
Department and was the lead detective in the homicide of Melvin Sharp. Detective Postiglione
arrived at the scene of the murder at approximately 2:00 a.m. on March 29. At the time Detective
Postiglione arrived, the victim was still inside the vehicle. The police canvassed the area around the
scene by knocking on doors and speaking with people in the neighborhood. They soon learned that
three young men were in the area when the shooting occurred. A witness who lived in a nearby
apartment was able to provide the first names of the three individuals. Detective Postiglione
explained that they then went to Wilma’s apartment. Wilma assisted the police in identifying the
three young men and arranged for Pinshon to meet with Detective Postiglione at Wilma’s home on
March 31, 1998. Pinshon admitted that he witnessed the shooting. Detective Postiglione compiled
a photographic line-up from which Pinshon quickly identified the appellant as the shooter.
Subsequently, Joe Vaughn gave a statement in which he described the events he witnessed. He also
identified the appellant as the shooter.

                 On April 3, 1998, an arrest warrant was issued for the appellant. Detective
Postiglione searched for the appellant in the Nashville area but was unable to locate him. In October
1998, after receiving information that the appellant was incarcerated in Belmont, New York,
Detective Postiglione traveled to New York to meet with the appellant. Although the appellant
declined to make a statement at that time, he did make several unsolicited comments to Detective
Postiglione, asking “what if it was accidental, what if I was there but I didn’t do the shooting, what
if I was there like an accessory.”

            Dr. John Gerber, a forensic pathologist, testified that he contracted with Metropolitan
Davidson County to do forensic pathology and autopsies. Dr. Gerber reviewed the autopsy


                                                 -4-
performed on the victim, Melvin Sharp. He concluded that the cause of death was a gunshot wound
to the head. He opined that the bullet entered the left side of the victim’s head from a distance
greater than two feet.

                The defense presented the testimony of the appellant’s brother, Michael D. Olawumi.
Olawumi testified that in January 1998, the appellant began planning a trip to New York. The
appellant intended to visit an uncle in New York and relocate there. The appellant planned to leave
in late March or early April 1998. Olawumi saw the appellant on March 29 and the appellant left
for New York the next day. Olawumi did not know how the appellant traveled to New York, but
related that the appellant called home after he arrived. Olawumi admitted that he did not disclose
his knowledge of the appellant’s travel plans until approximately two weeks before trial.

                Jason Scott, the appellant’s brother, testified that he met Pinshon while both men
were incarcerated at Taft Youth Developmental Center. Scott related that while at Taft he received
a letter from the appellant asking him to tell Pinshon to lie to the District Attorney and also not to
mention robbery. He also related that Pinshon told him, “[y]our brother is locked up for nothing.”

                Finally, the defense presented the testimony of David Byrne, an attorney who had
represented the appellant for approximately one year. Byrne testified that he attended a meeting
which the District Attorney had with Joe Vaughn. Byrne recalled that at that meeting Joe Vaughn
stated that he was unable to identify the shooter.

                 The appellant was convicted of both first degree murder and felony murder, which
convictions the trial court merged. The trial court ultimately imposed a sentence of life
imprisonment. On appeal, the appellant contends: (1) that the evidence was not sufficient for any
rational trier of fact to conclude beyond a reasonable doubt that the appellant was guilty of first
degree murder and felony murder; (2) that the trial court erred in overruling the appellant’s objection
to an instruction of flight; and (3) that the trial court erred in overruling the appellant’s objection to
the introduction of “gruesome and inflammatory” photographs of the victim.

                                             II. Analysis
                                             A. Sufficiency
                 In order to successfully challenge the sufficiency of the evidence supporting his
convictions, the appellant must demonstrate to this court that no “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); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982); Tenn.
R. App. P. 13(e). In other words, on appeal, the State is entitled to the strongest legitimate view of
the evidence and all reasonable inferences which may be drawn therefrom. State v. Williams, 657
S.W.2d 405, 410 (Tenn. 1983). Questions concerning the credibility of the 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. State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).




                                                   -5-
                The appellant was charged with one count of first degree murder and one count of
felony murder during the perpetration of or attempt to perpetrate robbery. He was convicted of both
counts and the trial court correctly merged the convictions. On appeal, the appellant’s sole
complaint regarding the sufficiency of the evidence is that the only witnesses to the murder were
Pinshon and Joe Vaughn. The appellant argues that these witnesses were so unreliable that no
rational jury could accredit their testimony. The appellant notes that Pinshon and Joe Vaughn gave
inconsistent statements to police regarding their ability to identify the shooter and admitted that at
the time of the shooting they had been smoking marijuana.

                The jury, as was their prerogative, chose to believe the testimony of the State’s
witnesses. The inconsistencies in the statements of Pinshon and Joe Vaughn were emphasized to
the jury. It is the duty of the jury, not the appellate court, to accept or reject the testimony of
witnesses. When the evidence is viewed in the light most favorable to the state, as it must be, we
conclude that the evidence is sufficient to support the convictions. Pinshon and Joe Vaughn testified
that the appellant approached them and asked for money. Shortly after walking away from them, the
appellant walked over to the victim’s car and fired one shot, striking the victim in the head. He then
walked away from the scene. Both Pinshon and Joe Vaughn identified the appellant from a
photographic line-up. Moreover, the appellant attempted to persuade Pinshon to lie about the
appellant’s involvement in the murder. In a letter the appellant wrote to his brother, Scott, the
appellant instructs:
                tell Jeff I need for him to send me a letter and when he write me tell
                him not to say anything about the robbery. Tell him to say that he’s
                sorry that he lied about me killing lil buddy. Then tell me everything
                else but leave me and the robbery out. Because that the only way I’m
                going to get out. Tell him when we go to [trial] to say the thing he
                say in the letter when my lawyer gets the chance to talk to him. Tell
                him to tell the D.A. a few lies while he’s talking to her.
We conclude that the evidence is sufficient to support the appellant’s convictions. This issue is
without merit.

                                       B. Instruction on Flight
                Next, the appellant argues that the trial court erred by giving the jury an instruction
on flight. The appellant contends that “certain activities such as flight or escape” have traditionally
been labeled as “admissions” or circumstances from which guilt may be inferred. Although the
appellant concedes that there is “some evidence suggesting flight,” he contends that evidence is
explained and rebutted by other evidence. The appellant contends that during the trial he presented
evidence that his trip to New York had been planned for several months. The appellant’s brother,
Olawumi, testified at trial that the appellant had planned to visit an uncle in New York and obtain
work there. Additionally, Olawumi testified that the appellant regularly called home after arriving
in New York. Moreover, Lieutenant Graves testified that he became aware that the appellant was
wanted in Nashville only after the appellant informed him that if he checked his computer using
another Social Security number, he would discover that the appellant was wanted in Nashville. The
appellant argues that his leaving Nashville the day after the murder is not evidence of flight. He


                                                 -6-
maintains that the length of time between the commission of the offense and his departure is
irrelevant.

               Following the conclusion of the proof, the trial court used Tennessee Pattern Jury
Instruction 42.18, the instruction on flight, specifically charging the jury:
               The flight of a person accused of crime is a circumstance which,
               when considered together with all the facts of the case, may justify an
               inference of guilt. Flight is the voluntary withdrawal of oneself for
               the purpose of evading arrest or prosecution for the crime charged.
               Whether the evidence presented proves beyond a reasonable doubt
               that the defendant fled is a question for your determination.
               ....
               If flight is proved, the fact of flight alone does not allow you to find
               that the defendant is guilty of the crime alleged. However, since
               flight by a defendant may be caused by a consciousness of guilt, you
               may consider the fact of flight, if flight is so proven, together with all
               of the other evidence when you decide the guilt or innocence of the
               defendant. On the other hand, an entirely innocent person may take
               flight and such flight may be explained by proof offered, or by the
               facts and circumstances of the case.

               In State v. Smith, 893 S.W.2d 908, 918 (Tenn. 1994), our supreme court addressed
the appropriateness of an instruction on flight and concluded that the meaning and weight of such
evidence was a question to be determined by the jury. Reviewing a similar charge, this court has
stated,
               the flight instruction pointed out to the jury that innocent persons may
               take flight, and it was up to the jury to determine whether there was
               flight, the reasons for the flight, and the weight to be given to it. Just
               as the instruction allowed an inference of guilt from flight, it also
               instructed that the evidence, facts, and circumstances may show that
               an innocent person may take flight.
State v. Richardson, 995 S.W.2d 119, 129 (Tenn. Crim. App. 1998).

                In the instant case, the evidence showed that the appellant left Nashville the day after
the murder. Although Olawumi testified that the appellant called relatives after arriving in New
York, he did not know how the appellant traveled to New York or the appellant’s specific location
in New York. The appellant was aware that he was wanted by authorities in Nashville and did not
disclose the information until several months after the offense, during his fourth stay at the jail in
Belmont, New York. Moreover, upon his arrest he gave New York authorities a false name. We
cannot conclude that the trial court erred in instructing the jury on flight.

                                    C. Admission of Photograph



                                                  -7-
                Finally, the appellant contends that the trial court improperly allowed the admission
of a “gruesome and inflammatory” photograph of the victim. Specifically, the appellant alleges that
the photograph was “unduly inflammatory, shows a lot of blood, and was pretty gruesome.” The
State responds that the photograph was relevant to show the “positioning of the body” and to support
the State’s theory that the door of the car was not opened.

                The decision regarding the admissibility of photographs lies within the sound
discretion of the trial court and that decision will not be overturned on appeal absent a showing of
an abuse of that discretion. State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978). Photographs which
are graphic or even horrifying may be admissible if they are relevant to an issue at trial and if the
probative value of such evidence outweighs any prejudicial effect on the jury. State v. Braden, 867
S.W.2d 750, 758 (Tenn. Crim. App. 1993).

                The photograph in question, Exhibit 15, shows the victim slumped in the driver’s seat
of his vehicle with his shoulder against the driver’s side door. His face is hidden; however, several
large pools of blood cover his shirt. Shattered pieces of glass can be seen in the passenger seat of
the vehicle. The photograph supports the State’s theory that the victim was shot from the driver’s
side of the vehicle and the door of the vehicle was not opened. Moreover, an issue at trial was the
lack of fingerprints on the driver’s side door. The photograph also supports the testimony of Dr.
Gerber regarding the manner and cause of death. Finally, we do not find the photograph to be
particularly gruesome or inflammatory. Therefore, we conclude that the trial court did not err in
allowing the admission of this photograph.

                                         III. Conclusion
               In summary, we conclude that the evidence is sufficient to support the appellant’s
convictions and that the trial court did not err by instructing the jury on flight or in allowing the
introduction of the photograph of the victim. Accordingly, the judgment of the trial court is
affirmed.



                                                      ___________________________________
                                                      NORMA McGEE OGLE, JUDGE




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