         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                     April 25, 2001 Session

            STATE OF TENNESSEE v. NATHANIEL T. WILLIAMS

                 Direct Appeal from the Criminal Court for Davidson County
                           No. 98-B-1409    Seth Norman, Judge



                     No. M1999-00790-CCA-R3-CD - Filed June 11, 2001


The defendant was convicted by a Davidson County Criminal Court jury of second degree murder
and the possession of a weapon by a convicted felon for shooting a man to death in an automobile
shop. The sole issue on appeal is whether the evidence was sufficient to support his conviction of
second degree murder. Specifically, the defendant contends that the State failed to offer sufficient
proof of the victim’s cause of death. In support of his claim, he argues that the autopsy report, which
states the cause of death as multiple gunshot wounds, was improperly admitted into evidence, that
the medical examiner never directly testified that the victim died of gunshot wounds, and that no
other evidence was presented to prove cause of death. After a thorough review, we conclude that
the defendant waived any objection to the admission of the autopsy report by his failure to object at
trial, and further, that sufficient evidence, other than the autopsy report, was presented to show that
the victim died as the result of gunshot wounds. Consequently, the evidence at trial was sufficient
to establish the defendant’s guilt of second degree murder beyond a reasonable doubt. The judgment
of the trial court is affirmed.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which DAVID H. WELLES and NORMA
MCGEE OGLE , JJ., joined.

Michael J. Flanagan (on appeal) and Justin Johnson (at trial), Nashville, Tennessee, for the appellant,
Nathaniel T. Williams.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; Charles Carpenter, Assistant District
Attorney General; and Pamela Anderson, Assistant District Attorney General, for the appellee, State
of Tennessee.
                                                       OPINION

        The defendant, Nathaniel T. Williams, was convicted by a jury in the Criminal Court of
Davidson County of one count of second degree murder and one count of possession of a weapon
by a convicted felon for the shooting death of Joseph Cox. The trial court sentenced him to twenty-
four years on the second degree murder conviction, and two years on the possession of a weapon by
a convicted felon conviction, with the sentences to be served consecutively, for an effective sentence
of twenty-six years. In this appeal as of right, the defendant raises the sole issue of whether the
evidence was sufficient to support his conviction of second degree murder beyond a reasonable
doubt. Specifically, he argues that the evidence in the record is insufficient to show that the victim
died of gunshot wounds. Based upon a careful review, we affirm the judgment of the trial court.

                                                         FACTS

        On December 31, 1997, at 4:50 p.m., Officers Danny Warren and Randall Moore of the
Metropolitan Police Department in Nashville were dispatched to a report of shots fired at 600 Main
Street in East Nashville, a building which housed a pawn shop in front and an automobile window
tinting and stereo installation business in the rear. En route, they received word that there were three
shooting victims involved. Upon their arrival, Officers Warren and Moore, along with fellow
Officers Robert Hautt and Jonathan Markline, discovered the victims inside the automobile shop
at the rear of the building. Two of the three victims were critically injured and bleeding severely
from gunshot wounds. One of these two, Joseph Cox, was lying face down on the concrete floor of
the shop, while the second, Carlos Stewart, was lying with his head and torso inside a Cadillac
parked inside the shop. The third victim, who had received noncritical wounds to both feet, was
walking back and forth in the rear of the shop, eating a sandwich. Cox subsequently died as a result
of his injuries.

       On June 9, 1998, the Davidson County Grand Jury issued an indictment against the
defendant, charging him with first degree murder of Joseph Cox, felony murder of Joseph Cox,
attempted first degree murder of Carlos Stewart, and the unlawful possession of a weapon by a
convicted felon.1 Trial was held in the Davidson County Criminal Court from April 12-14, 1999.

         At trial, Officer Danny Warren described finding Joseph Cox bleeding heavily and lying face
down on the floor just inside the bay door leading into the shop. On the floor beside him was a large
speaker box, with wires leading from it to the trunk of a 1992 two-door Cadillac parked inside the
shop. Officer Jonathan Markline testified that Cox, who appeared to be “in a very critical state,” was
lying face down on the ground within five or six feet of the rear bay door, unsuccessfully struggling
to rise to his hands and knees. Officer Markline believed that he was still on the scene, inside the
pawn shop, when Cox died. Sergeant Robert Hautt recalled seeing a large amount of blood by the


         1
           An unnamed suspect was also indicted for first degree murder and felony murder of Joseph Cox, and attempted
first degree m urder of C arlos Stewa rt. The record does not reflect the disposition of the indictments against this unnamed
suspect.

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bay door of the shop, where Joseph Cox was lying face down on the concrete floor. His best
recollection was that Cox was “flopping around in the floor, ” looking like a “fish out of water.”

        Dominique Brown, an eyewitness who was thirteen years old at the time, testified that Cox
and Stewart were lifting a large stereo speaker box into the trunk of the Cadillac when the defendant
walked up to them and fired his weapon. Brown stated that the defendant first shot Stewart and then
shot Cox. Brown ducked for cover. When he looked up again, he saw the defendant and Cox
struggling over the gun, and heard Cox asking, “Why are you shooting me?” He heard the defendant
answer, “You know what you did,” before firing again at Cox. Brown identified the defendant as
the shooter, both at trial, and from a photographic lineup on the night of the shooting.

         Lacharsha Jenkins, a friend of the defendant’s, testified that the defendant came to her home
on the evening of the shooting and told her that he had been at the auto shop earlier in the day, where
he had seen the man who had stolen his car. The defendant told her that he planned to steal the
man’s car in turn, but that the man had rushed him, they had scuffled, and his gun had gone off.
According to Jenkins, the defendant had two guns with him that evening, a solid black one and a
black one with a pearl handle. He gave her the solid black gun, with instructions that she throw it
in the river. Instead of disposing of the weapon, however, Jenkins gave it to a friend.2

        Officer Damien Huggins, a vice detective with the Metropolitan Police Department, testified
that on February 27, 1998, the defendant, who had been arrested and incarcerated, requested to speak
to him. Before taking his statement, he informed the defendant of his rights and had him sign a
waiver of his rights. According to the defendant’s statement, prior to the shooting, he and two
friends had been carjacked by Cox and Stewart. Later, he and one friend had been in the auto shop
when his friend recognized Stewart as the man who had carjacked them. The defendant thought that
Cox must have seen the handle of the defendant’s gun sticking up out of his coat pocket, because
Cox suddenly rushed the defendant and began fighting for his gun. The defendant’s friend shot at
Stewart. As the defendant struggled with Cox, attempting to get the gun out of his pocket in order
to protect himself, the gun fired twice. The defendant said that Cox then somehow got hold of the
gun and tried to shoot the defendant, but the gun would not fire. Cox weakened and fell, and the
defendant ran off. He told Detective Huggins that he and his friend had later burned their clothes
and disposed of the guns but would not tell Huggins the location. He also steadfastly refused to
disclose the name of his friend.

       Dr. Emily Ward of the Davidson County Medical Examiner’s Office testified that she
performed the autopsy of Joseph Cox on January 1, 1998. Her examination of his body revealed
three gunshot wounds: a graze wound to the chest; a penetrating wound caused by a bullet which
entered near the left shoulder blade, went through the left lung, struck the aorta, passed through the


         2
            Jenkins later re covered the gun and tu rned it in to the police. At trial, a Tennessee Bureau of Investigation
firearms identification expert testified that he had examined the nine-millimete r weapon turned ove r by Jenkins, as well
as bullet fragments recovered from the scene, and determined that at least two cartridge casings discovered at the scene
had bee n fired by the we apon.

                                                           -3-
diaphragm and the liver, and exited on the right side of the front of the chest; and a penetrating
wound caused by a bullet which entered the left side of the back above the hip bone, struck the
pelvis, changed directions, and exited on the inside of the left buttock. Referring to the autopsy
report, autopsy notes, and slides that had been taken of the victim’s body, Dr. Ward stated that the
bullet which perforated the lung, aorta, diaphragm, and liver caused “massive internal bleeding.”
They had measured the amount of blood that bled into the inside of the victim’s body and found it
to total more than two liters. Dr. Ward testified that the aorta is the largest blood vessel in the body,
and that more than likely a person who suffered the type of aorta wound inflicted upon the victim
would “bleed very rapidly and within a short period of time be very incapacitated.”

       After deliberations, the jury found the defendant guilty of second degree murder and unlawful
possession of a handgun after a felony drug conviction. The trial court sentenced him to twenty-four
years for the second degree murder conviction, and two years for the unlawful possession of a
weapon conviction. The sentences were ordered served consecutively, for an effective sentence of
twenty-six years. Following the denial of his motion for a new trial, the defendant filed a timely
appeal to this court.

                                              ANALYSIS

        The sole issue the defendant raises on appeal is the sufficiency of the evidence for his second
degree murder conviction. Specifically, he contends that the State failed to offer sufficient proof that
Joseph Cox died as a result of gunshot wounds. In support, the defendant argues that the medical
examiner’s report, which lists the cause of death as gunshot wounds, was not properly introduced
into evidence, and that the medical examiner did not directly testify that the victim died as a result
of gunshot wounds. The defendant argues that the improper admission of the autopsy report
constituted plain error under the standards established in State v. Adkisson, 899 S.W.2d 626 (Tenn.
Crim. App. 1994). He asserts that, without the autopsy report, the evidence would not have been
sufficient for a rational trier of fact to find that he caused the death of the victim beyond a reasonable
doubt.

        The State acknowledges that there was confusion surrounding the admission of the autopsy
report into evidence. It argues, however, that the defendant waived any objection to the trial court’s
admission of the report by his failure to make a timely objection at trial. The State further argues
that the improper admission of the report does not rise to the level of plain error under the five
Adkisson factors, and that, even without the autopsy report, sufficient evidence was presented at trial
from which the jury could reasonably infer that the victim died as a result of gunshot wounds.

        When the sufficiency of the convicting evidence is challenged on appeal, the question for
this court 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 offense charged beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560
(1979). See also State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835
S.W.2d 600, 604 (Tenn. Crim. App. 1992); Tenn. R. App. P. 13(e) (“Findings of guilt in criminal


                                                   -4-
actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support
the findings by the trier of fact of guilt beyond a reasonable doubt.”). All questions involving the
credibility of witnesses, the weight and value to be given the evidence, and all factual issues are
resolved by the trier of fact. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987).
“A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses
for the State and resolves all conflicts in favor of the theory of the State.” State v. Grace, 493
S.W.2d 474, 476 (Tenn. 1973). The defendant’s conviction by the jury removed the presumption
of innocence he enjoyed at trial and replaced it with one of guilt; on appeal, he now has the burden
of demonstrating that the evidence was insufficient. See State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982).

        The autopsy report, which was received into evidence and marked as an exhibit for the
record, clearly states the cause of Joseph Cox’s death as multiple gunshot wounds. The defendant
relies upon an ambiguity in the record, however, to argue that the autopsy report was not properly
introduced as an exhibit at trial and, thus, should not have been considered by the jury in making its
determination of his guilt. After Dr. Ward testified that she had brought Joseph Cox’s autopsy report
with her to court, the following exchange between the prosecutor and the medical examiner
occurred:

                Q. And if I may approach. If you would compare this against your
                   original and see if that is a correct photocopy of the autopsy
                   report.

                A. (Witness viewing document.) Yes. What you’ve handed me is
                   a photocopy of the report.

                Q. If I can show you another two-sided copy. Is that also a correct
                   copy of the body diagram and notes that you took during the
                   course of your autopsy?

                A. Yes, it is.

                MS. ANDERSON: Your Honor, at this time we will ask that that be
                marked as an exhibit for the State.

                THE COURT: It will be Exhibit Number 9.

        The transcript does not indicate whether “that,” and “it,” as referred to by the State and the
trial court, was the autopsy notes, the autopsy report, or both. Both documents, however, were
apparently received into evidence and published to the jury. The record contains two documents
labeled Exhibit 9: the one-page “Autopsy Notes,” marked “Trial Exhibit #9A & B,” and the separate
“Autopsy Report,” marked as “Trial Exhibit #9B.” Thus, it appears that the State intended both the
autopsy report and the autopsy notes to be included together as a collective exhibit, and that the trial


                                                  -5-
court received them as such. Admissibility of evidence rests within the discretion of the trial court,
and the trial court’s decision to admit evidence will be reversed only upon the showing of abuse of
that discretion. State v. Stephenson, 878 S.W.2d 530, 542 (Tenn. 1994); Inman v. Aluminum Co.
of America, 697 S.W.2d 350, 354 (Tenn. Ct. App. 1985). In this case, there is no question but that
the autopsy report was admissible evidence, as a proper foundation for its introduction was laid. See
Tenn. R. Evid. 901(a)–(b)(1); see also Bolen v. State, 544 S.W.2d 918, 920 (Tenn. Crim. App. 1976)
(stating that physical evidence may properly be introduced at trial either when identified by a
witness, or when established from a proper unbroken chain of custody).

          The defendant argues, nonetheless, that the autopsy report should not have been given to the
jury because it was not properly admitted as an exhibit. He offered no objection to its introduction
at trial, however. The record reflects that as Dr. Ward continued her testimony, she referred not just
to her autopsy notes, but also to the autopsy report. Defense counsel did not object to Dr. Ward’s
use of the autopsy report in her testimony. The failure to raise a timely objection to the introduction
of evidence at trial results in a waiver of any complaint about the admission of such evidence. Tenn.
R. App. P. 36(a); see also State v. Smith, 24 S.W.3d 274, 280 (Tenn. 2000) (citing State v.
Harrington, 627 S.W.2d 345, 348 (Tenn. 1981)). This is true even if the party objecting to the
evidence would have had legitimate grounds to object at trial. See id. In this case, as previously
stated, there is no doubt that the autopsy report was admissible evidence, and we have no hesitation
in ruling that the defendant waived his right to object to any irregularity in the manner of its
introduction by his failure to raise a contemporaneous objection at trial. This decision is in line with
our decisions in other cases. See e.g., State v. Richard Allen Kidd, II, No. 03C01-9607-CC-00272,
1997 WL 789909, at *4 (Tenn. Crim. App. Dec. 23, 1997) (concluding that defendant’s failure to
raise timely objection at trial resulted in waiver of objection to irregularity in trial court’s practice
of allowing exhibits to be published to jury without following formal procedures to admit them into
evidence).

        Notwithstanding his failure to object, the defendant contends that he is entitled to relief under
the “plain error” doctrine, which allows an appellate court to take notice at any time of plain errors
affecting substantial rights of the accused. See Tenn. R. Evid. 103(d); Tenn. R. Crim. P. 52(b);
Tenn. R. App. P. 36(b). The defendant argues that the five factors set forth in State v. Adkisson, 899
S.W.2d 626, 641-42 (Tenn. Crim. App. 1994), for determining when plain error has occurred were
met in his case. We disagree.

         In State v. Smith, 24 S.W.3d 274 (Tenn. 2000), our supreme court adopted the Adkisson test
as the proper standard for reviewing a record to determine if an error for which a defendant failed
to offer an objection at trial rises to the level of plain error, entitling the defendant to appellate
review. Id. at 283. Under Adkisson, five factors should be considered to determine if an error rises
to the level of plain error:

                (a) the record must clearly establish what occurred in the trial court;
                (b) a clear and unequivocal rule of law must have been breached; (c)
                a substantial right of the accused must have been adversely affected;


                                                  -6-
               (d) the accused did not waive the issue for tactical reasons; and (e)
               consideration of the error is “necessary to do substantial justice.”

Id. at 282 (quoting Adkisson, 899 S.W.2d at 641-42)). In this case, the ambiguity surrounding the
introduction of the autopsy report, and the confusion in the marking of the exhibits to the trial, do
not constitute the breach of “a clear and unequivocal rule of law.” Consequently, any irregularity
in the admission of the autopsy report does not rise to the level of plain error. We, therefore,
conclude that the autopsy report, unequivocally stating the cause of death as multiple gunshot
wounds, was properly before the jury.

        Moreover, we agree with the State that even without the autopsy report, sufficient evidence
was presented from which the jury could conclude that Joseph Cox died of gunshot wounds. At the
beginning of her testimony, Dr. Ward explained that the purpose of an autopsy is to determine the
cause of death. On her autopsy notes, which the defendant concedes were properly admitted as an
exhibit, under a heading entitled “DIAGNOSES,” is written “multiple GSW’s.” The jury heard
testimony that the defendant shot the victim, that the victim was bleeding profusely and lying in a
large pool of blood when police officers arrived at the scene, and that he died shortly thereafter. Dr.
Ward testified that the victim had three bullet wounds, and that one bullet had gone through his left
lung, diaphragm, and liver, and perforated his aorta, the largest blood vessel in the body, resulting
in massive blood loss. The State questioned Dr. Ward about the consequences of a wound to the
aorta:

               Q. But wound number one, which was an aorta wound, is it true that
                  a person would have died very quickly from that wound?

               A. Well, it depends on what you mean by very quickly. It wouldn’t
                  cause instantaneous death, but a wound to the aorta would
                  typically cause somebody to bleed very rapidly and within a
                  short period of time be very incapacitated.

               Q. Right. It’s hard to say, but more than likely very quickly, I
                  guess, correct?

               A. Yes. That’s right.

Thus, the evidence in the record, apart from the autopsy report, was more than sufficient to prove
cause of death. See State v. Bobby Weaver, No. 02C01-9307-CC-00143, 1995 WL 568420 at *5
(Tenn. Crim. App. Sept. 27, 1995) (citing Cathey v. State, 191 Tenn. 617, 619, 235 S.W.2d 601, 602
(1951), for proposition that death may be presumed to have been caused by a victim’s obvious
wounds, especially when there is no suggestion that he died from other any other cause than the one
relied upon by the State).




                                                 -7-
       Second degree murder is defined at Tennessee Code Annotated Section 39-13-210(a)(1) as
“[a] knowing killing of another.” Tennessee Code Annotated Section 39-11-302(b) provides:

               “Knowing” refers to a person who acts knowingly with respect to the
               conduct or to circumstances surrounding the conduct when the person
               is aware of the nature of the conduct or that the circumstances exist.
               A person acts knowingly with respect to a result of the person’s
               conduct when the person is aware that the conduct is reasonably
               certain to cause the result.

To prove the defendant guilty of second degree murder, the State had to establish that he acted
knowingly, and that his actions resulted in the death of another.

        The evidence at trial, viewed in the light most favorable to the State, showed that the
defendant approached Joseph Cox as he was engaged in installing a stereo speaker into the trunk of
a car, pulled a gun, and shot Cox several times. The evidence further showed that Cox died as a
result of his gunshot wounds. The evidence at trial was clearly sufficient to support the defendant’s
conviction of second degree murder.

                                         CONCLUSION

        After a careful review of the record, we conclude that sufficient proof was offered to show
that Joseph Cox died as a result of gunshot wounds caused by the defendant. Accordingly, the
evidence was sufficient to convict the defendant of second degree murder, and the judgment of the
trial court is affirmed.



                                                      ___________________________________
                                                      ALAN E. GLENN, JUDGE




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