        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT NASHVILLE            FILED
                       JANUARY SESSION, 1999         March 15, 1999

                                                 Cecil W. Crowson
STATE OF TENNESSEE,        )                   Appellate Court Clerk
                                C.C.A. NO. 01C01-9803-CR-00108
                           )
      Appellee,            )
                           )
                           )    DAVIDSON COUNTY
VS.                        )
                           )    HON. CHERYL BLACKBURN,
MICHAEL J. RUSSO,          )    JUDGE
                           )
      Appe llant.          )    (First Degree M urder)


                ON APPEAL FROM THE JUDGMENT OF THE
                CRIMINAL COURT OF DAVIDSON COUNTY


FOR THE APPELLANT:              FOR THE APPELLEE:

F. MICHIE GIBSON, JR.           JOHN KNOX WALKUP
1416 Pa rkway Tow ers           Attorney General and Reporter
404 James Robertson Parkway
Nashville, TN 37219             TIMOTHY BEHAN
                                Assistant Attorney General
                                425 Fifth Avenu e North
                                Nashville, TN 37243

                                VICTOR S. JOHNSON
                                District Attorney General

                                SHARON BROX
                                Assistant District Attorney General
                                Washington Square, Suite 500
                                222 Se cond A venue N orth
                                Nashville, TN 37201-1649



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                  OPINION
       The Defen dant, Michael J. Russo, appeals as of right his conviction for the

first degree premeditated murder of his wife. The only assignment of error for

review is the sufficiency of the convicting evidence, which Defendant contends

does not support a finding of preme ditation be yond a re asona ble dou bt. W e

disagre e, and w e affirm the verdict of the jury as app roved by the trial cour t.



       Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings

of guilt in criminal actions whether by the trial court or jury shall be set aside if the

evidence is insufficient to support the finding by the tr ier of fact beyond a

reasonab le doubt.” Tenn. R. App. P. 13(e). In addition, because conviction by

a trier of fact destroys the presumption of innocence and imposes a presumption

of guilt, a convicted criminal defendant bears the burden of showing that the

evidence was insu fficient. McBe e v. State, 372 S.W.2d 173, 176 (T enn. 1963 );

see also State v. Evans, 838 S .W .2d 18 5, 191 (Ten n. 199 2) (citing State v.

Grace, 493 S.W.2d 474, 476 (Tenn. 1976), and State v. Brown, 551 S.W.2d 329,

331 (Tenn . 1977)); State v. Tug gle, 639 S.W.2d 913, 914 (T enn. 19 82); Holt v.

State, 357 S.W .2d 57, 61 (T enn. 1962 ).



       In its review of the evidence, an appellate court must afford the State “the

strongest legitimate view of the evidence as well as all rea sonab le and leg itimate

inferences that may be d rawn therefrom .” Tug gle, 639 S.W.2d at 914 (citing

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)). The court may not “re-

weigh or re-evaluate the evidence” in the record below. Evans, 838 S.W.2d at

191 (citing Cabbage, 571 S.W .2d at 836). Likew ise, should the review ing court

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find particular conflicts in the trial testimony, the court must resolve them in favor

of the jury ve rdict or trial cou rt judgm ent. Tug gle, 639 S.W .2d at 914 .



       In this case, the State and Defendant presented the jury with conflicting

factual scenarios regarding how the sh ooting of the vic tim occurred. According

to Defen dant, while he and his wife argued, she brandished a knife , caus ing him

to pin her against the wall in self-defense. He admitted to cocking the handgun

to frighten her; but he testified that she then pushed him away from her, causing

the gun to accidentally discharge as he stumbled backward. A bullet entered her

nose and traveled through her skull, killing her instantly.



       He testified that he was drunk—that he had consumed eight or nine drinks

and “a couple of beers ” in approximately one hour prior to returning home from

work the night of the m urder. Howe ver, even his own testimony reflected that he

was cohe rent an d rem emb ered c learly his own version of the evening’s events.

In addition, he stated that his wife had slapped him an d cut his fa ce with the knife

in the course of their confrontation.       A witness for the defense who saw

Defendant immediately after the murder testified that his face was cut and

bleeding .



       The State, on the other hand, presented Carmella Russo, daughter of

Defendant and the victim, who testified that while she wa s in her room , she heard

her parents arguing . She kn ew from past exp erience that her parents did not

want to argue in her pre sence, so sh e left her room a nd entered the area whe re

her parents continued to fight. She watched as Defendant pinned her mother

agains t the wall, ho lding her a rms as he yelled a t her.

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      According to Carm ella, Defe ndant “w as still yelling at [the victim] and hitting

her, and then he went to go get a knife and was telling her if she was so big and

bad, why didn ’t she cut him.” The victim threw the steak knife to the floor, and

Defendant picked it up, bent the blade, and threw it at her, hitting her in the

stomach. Then, “she built up enough nerve to push him off of her, and he caught

hi[m]self in the doorw ay . . . and went into the o ther room a nd got the gu n.”



      Carm ella testified that wh en De fenda nt cam e bac k, he a sked the victim

“something like why are you afraid to die?” or “Are you afr aid to d ie or wh y aren ’t

you yelling?” The victim replied that she was not afra id to die because she knew

where she would be going (i.e., to heaven). Next, Defendant put the gun against

the victim’s nose, and Carmella closed her eyes. While Carmella’s eyes were

closed, she heard a gunshot. When she opened her eyes, she saw her mother

“on the ground in a pu ddle of blood,” and her father with the gun still in his hand.



      Carm ella ran into the ba throom until she heard her father leave; she then

emerged, called 911, and attempted u nsuccess fully to resuscitate her m other.

She testified on redirect that when Defendant placed the gun again st the vic tim’s

nose, she b elieved that “he as ked her are yo u afraid to die.”



       First degree murder is a “premeditated and intentional killing of ano ther.”

Tenn. Code Ann. § 39-13-202(a)(1). Premeditation “is an act done after the

exercise of reflection a nd judg ment,” a nd it mea ns that “the intent t o kill must

have been formed prior to the act itself.” Id. § 39-13 -202(d). F urtherm ore,

      [i]t is not ne cess ary tha t the pu rpose to kill pre -exist in the mind of
      the accused for any definite period of time. The mental state of the
      accused at the tim e the a ccus ed alle gedly d ecide d to kill must be

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       carefu lly considered in order to determine whether the accused was
       sufficie ntly free from excitement and passion as to be capable of
       premeditation.

Id.



       The element of premeditation is a question for the jury and “may be

established by proof of the circumstances surrounding the killing.” State v. Bland,

958 S.W.2d 651, 660 (Tenn. 1997) (citing State v. Brown, 836 S.W.2d 530, 539

(Tenn. 1992)), cert. denied, 118 S. Ct. 1536 (1998); see also State v. Pike, 978

S.W.2d 904, 914 (Tenn. 1998). Our supreme court has identified several factors

tending to dem onstra te existe nce o f prem editatio n, inclu ding: th e use of a de adly

weapon upon an unarmed victim; the particular cruelty of the killing; declarations

by the defenda nt of an intent to kill; evidence o f procurement of a weapon;

preparations before the killing for concealment of the crime; and calmness

imm ediate ly after the killing. Bland, 958 S.W.2d at 660 (citing Brown, 836

S.W.2d at 541-42, and State v. West, 844 S.W.2d 144, 148 (T enn. 19 92)); Pike,

978 S.W.2d at 914-15.



       W hile certain of th ese facto rs are ab sent in this case, the jury heard

testimony from Carmella Russo, an eyewitness, that her mother was unarmed at

all times and that when Defendant handed her a steak knife and taunted her to

cut him, she threw the knife to the floor and did not retrieve it. In addition,

Carm ella stated that her father left the immediate place of the confrontation

twice—once to obtain this knife that he threw at the victim, and later, to obtain the

gun with which he shot her . Finally, Carmella testified that Defendant asked the

victim, while he pressed a gun to her nose, if she was afraid to die, to which the




                                           -5-
victim replied that she was not afraid b ecaus e she kn ew “whe re she w as going .”



      Defendant presented a different set of facts to the jury, creatin g a sce nario

in which the killing was a pro voked, accidental shooting.          This, therefore,

presented a question of fact for the jury. We conclude that the evidence was

sufficient to perm it the jury to find Defendant guilty of premeditated first degree

murder, and we affirm the jury’s exercise of its fact-finding power to convict

Defendant. The judgment of the trial court is accordingly affirmed.




                                 ____________________________________
                                 DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
JERRY L. SMITH, JUDGE


___________________________________
THOMAS T. WOODALL, JUDGE




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