        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT KNOXVILLE            FILED
                       OCTOBER SESSION, 1998          January 6, 1999

                                                 Cecil Crowson, Jr.
                                                  Appellate C ourt Clerk
STATE OF TENNESSEE,          )   C.C.A. NO. 03C01-9711-CR-00496
                             )
      Appellee,              )
                             )
                             )   KNOX COUNTY
VS.                          )
                             )   HON. RICHARD R. BAUMGARTNER
YASMOND FENDERSON,           )   JUDGE
                             )
      Appe llant.            )   (Second Degree M urder, Cons piracy)


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


FOR THE APPELLANT:               FOR THE APPELLEE:

DONALD A. BOSCH                  JOHN KNOX WALKUP
BEVERLEY S. CORNETT              Attorney General and Reporter
2000 First Tennessee Plaza
Knoxville, TN 37929              MICH AEL J . FAHE Y, II
                                 Assistant Attorney General
                                 425 Fifth Avenu e North
                                 Nashville, TN 37243

                                 RANDALL E. NICHOLS
                                 District Attorney General

                                 FRED BRIGHT
                                 Assistant District Attorney General
                                 City-County Building
                                 Knoxville, TN 37902



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                  OPINION

       The Defendant, Yasmond Fenderson, pursuant to Tennessee Rule of

Appe llate Procedure 3(b), appeals as of right from his convictions for second

degree murde r and co nspiracy to commit second degree murder. The sole issue

for review is the sufficiency of the evidence. We affirm the verdicts of the jury as

approve d by the trial c ourt.



       The facts of this case pertain to a killing committed during an attempt by

Defendant to recover a package of drugs from the victim, Major Kindell. The

victim’s wife, Linda Kindell, testified at trial as the State’s only eyewitness to the

events prece ding th e killing. A ccord ing to K indell, on the evening of October 16,

1993, she asked her husband to go to the grocery store to buy her a package of

cigarettes . Wh ile he was gon e, she heard a knock at the door. She answered

the knock but did not open the door, and the person outside asked for the victim.

Kindell told the visitor tha t her hus band w ould be back sh ortly.



       Soon after the victim returned h ome from the store, the cou ple heard

another knock at the door. The victim answered the door while Kindell remained

upstairs. Kindell became curious because of the late hour, and she called down

to ask the victim who had come in. The victim instructed her to remain upstairs,

but Kindell grew concerned. She walked to the stairs and saw at least four men,

possibly five , talking to he r husba nd.




                                            -2-
       Kinde ll proceeded downstairs to determine why the men were in her home,

and she heard her husband say, “Man , I didn’t take your stuff.” One member of

the group, w hom K indell called the “com mand er,” or the “talke r,” told her, “I had

to drop something because it got hot, an d your husb and w as be hind m e.” Kind ell

testified that sh e nam ed this perpe trator th e “com man der” “[b ]ecau se he did all

the talking [and] he was the only one that was asking questions. No one else

asked any questions but him.” This man, later identified by Kindell as Defen dant,

stood a pproxim ately three or four fee t away from her.



       According to Kindell, Defendant then told the victim he wanted to search

the apartment and stated that he wanted to begin upstairs. As the victim moved

upstairs with Defendant and two other men, Kindell followed and observed a gun

in the hand of the man in front of he r. The fo urth m an follo wed K indell. Although

the victim did n ot want th e men to search , Kindell pe rsuade d him to p ermit it.

She testified , “I said, ‘W ell, Major, let him search. I want them to get out of my

house. Let them look for an ything. Th ey’ve got g uns. Let them loo k anywhere

they want to look.’”



       Defendant claimed in his statement to police that he ultimately found the

item for whic h he searched: W hen aske d whether h e “got what [he] w ent there

to get, Defendant responded, “Ye ah. I go t what I g ot in.” H owev er, Kin dell

testified that just before the killing, De fendan t said to the victim, “If you didn’t get

the dope, you do know who got it.” Then, stated Kindell, Defendant “looked at

Major and he turned around and looke d at m e. He s aid, ‘Po p go [s ic] this

weas el!’” When Defendant made this statement, the man with the rifle asked

Defen dant, “Do you want me to take h im ou t?” Alth ough Kinde ll “can’t remember

                                           -3-
what Defendant said or whether [he] said anything right then,” she observed

Defendant walk out o f the room past the g unma n. The gunman then raised the

gun and Kindell jumped into the bedroom closet screaming. From the closet she

heard two or three shots fired.



       Kinde ll, afraid that the perpetrators remained in the house, refused to come

out of the bedroom closet at her husb and’s first requ est to d o so. T he victim

again asked her to come out and help him, and Kindell then complied. She saw

two punctu re woun ds on the left side of the victim’s chest; then she began

screa ming, ran downstairs, and sat in a chair. A neighbor entered the home

through the still-open front door and went upstairs to attend to the victim; and

shortly thereafter an ambulance arrived. The victim was treated at the Unive rsity

of Tennessee Hosp ital in Kn oxville un til his death sixteen days later on November

2, 1993.



       Upon cross-examination, Kindell admitted that she identified someone

other than Defen dant from a p hotograph array on the da y prior to trial. However,

the jury also heard testimony that Kindell had not slept on the night prior to trial

because she had been traveling from West Tennessee to Knoxville.

Furthermore, she identified Defendant in a photograph array both on November

3, 1993 and also later on the day prio r to trial. A t trial, Defen dant did n ot dispute

his presence in the victim’s home the night of the crime; he dispute s Kind ell’s

charac terization o f his role as th e leade r in the offen se.



       The State intro duced Defen dant’s taped statement to police through

Knox ville Police Investigator Stan M cCroskey. In the statement as transcribed,

                                           -4-
Defendant denied (1) that he knew the gunman was armed, (2) that he ordered

the victim’s killing, and (3) that he knew why the gunman shot the victim.



       In this appeal, Defendant contends that the evide nce is insu fficient to

support convictions for second degre e mu rder an d con spirac y to com mit second

degree murder. 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 eviden ce is insuffic ient to sup port the finding by the trier of fact

beyond a reasonable 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 evid ence w as insufficie nt. McBe e v. State , 372 S.W.2d 173,

176 (T enn. 19 63); see also State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992)

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

551 S.W .2d 329 , 331 (T enn. 19 77)); State v. Tug gle, 639 S.W.2d 913, 914

(Tenn . 1982); Holt v. State , 357 S.W .2d 57, 61 (T enn. 1962 ).



       In its review of the eviden ce, an appe llate court must afford the State “the

strongest legitimate view of the evidence as we ll as all reas onable and legitim ate

inferences that may be drawn 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-e valuate the evidenc e” in the rec ord belo w. Evans, 838 S.W.2d at

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

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.




                                          -5-
       Second degree murder is a “knowing killing of another.” Tenn. Code Ann.

§ 39-13-210 (a)(1). The legislature has defined “k nowing” as re ferring to “a

person who ac ts know ingly with res pect to the condu ct or to circu mstances

surrounding the conduct when the person is aw are of the nature of the conduct

or that the circumsta nces exist.” Id. § 39-11 -302(b). In addition, “[a ] person acts

know ingly with respect to a result of the person’s conduct when the pe rson is

aware that the c onduct is reas onably certain to ca use the resu lt.” Id.



       It is undisputed that Defendant did not kill the victim; the jury convicted him

based upon his crim inal responsibility for the conduct of another. Under the

approp riate section of our criminal responsibility statute, the State must p rove

that, “[a]cting with intent to promote or assist the commission of the offense, or

to benefit in the proceeds or results of the offens e, [Defen dant] solicit[e d],

direct[ed], aid[ed], or attempt[ed] to aid another person to commit the offense.”

Id. § 39-11 -402(2).



       W e conclude that the State presented sufficient eviden ce to p ermit a jury

to find De fenda nt crim inally respo nsible for sec ond d egree murd er. Th e victim ’s

wife, Linda K indell, testified that Defendant acted as the leader of the group of

men by being the only person to demand return of his drugs. Defendant decided

that the group would move upstairs and searc h for the missing drugs, and he

ordered Kinde ll to sit down in the bedroom. In addition, he asserted owne rship

of the pack age of d rugs by te lling police th at he foun d what h e intende d to

retrieve at the house .




                                          -6-
       Based upon the later dialogue between Defendant and the gunman, the

jury was entitled to conclude that Defendant knew the shooter was armed.

Moreover, Kindell testified to having stated, to everyone present, including

Defen dant, that one of the intruders carried a gun. F urther more , the jury could

easily have found that the gunm an wa s reas onab ly certain his shots would cause

the result— death o f the victim. See State v. Meade, 942 S.W.2d 561, 564-65

(Tenn. Crim. A pp. 1996) (eviden ce sufficient for secon d degree m urder where

defendant shot one victim five or six times, including once exec ution-style); State

v. Freeman, 943 S.W.2d 25, 29 (Tenn. Crim. App. 1996) (evidence sufficient for

second degree murder where defendant fired rifle approximately thirty-nine times

into victim’s vehicle while defen dant k new ve hicle was oc cupied ); State v. Baxter,

938 S.W.2d 697, 701 (Tenn. Crim. App. 1996) (evidence sufficient for second

degree murd er whe re defe ndan t stabb ed victim in stomach, chased victim, rolled

victim over, and stabbed him in chest holding knife with b oth han ds); State v.

Sum mera ll, 926 S.W.2d 272, 275 (Tenn. Crim. App. 1995) (evidence sufficient

for secon d degre e murd er where defend ant threatened victim a nd sh ortly

thereafter shot him ); State v. Maru ja Paquita Coleman, No. 01C01-9401-CR-

00029, 1997 WL 438169, at *3 (Tenn. Crim. App., Nashville, July 31, 1997)

(evidence sufficient for secon d degre e murd er where defend ant set fire to victim

after victim h ad cha sed de fendan t and thro wn pep per into he r eyes).



       Regarding criminal responsibility, in the crucial moments before the killing,

Kindell, the only testifying eyewitness, stated that Defendant declared, “Pop go

[sic] this wease l,”1 turned, and walked out of the room past his companions. As


       1
          Defendant points out that the transcription of Kindell’s initial statement to police
contains the statement, “Pop go [sic] the weasel.” (Emphasis added.) Kindell testified at trial
that Defendant actually said, “this weasel,” and that her statement was incorrectly transcribed.

                                              -7-
Defendant passed b y, the gunm an asked , “Do you want me to take him out?”

Although Kinde ll did not hear what, if anything, Defendant said in response, the

jury was within its purview to conclude either that Defendant gave an affirma tive

verbal response or that he in some other way communicated his assent to the

shooting. In addition, the jury could have appropriately construed the term “Pop

go [sic] this weasel” as an order or an announcement of the victim’s fate. In that

sense, the question “Do you want me to take him out?” served as verification of

the directio n. This iss ue lacks merit.



       Next, Defendant challenges the sufficie ncy of th e evide nce to convic t him

of consp iracy to com mit seco nd deg ree mu rder. In this sta te,

       [t]he offense o f conspira cy is com mitted if two (2) or more people,
       each having the cu lpable menta l state required for the offense which
       is the object of the conspiracy and each facilitating commission of
       an offens e, agre e that o ne (1) o r more of them will enga ge in
       conduct which constitutes such an offense.

Tenn. Code Ann. § 39-12-103(a). Furthermore, “[n]o person may be convicted

of consp iracy to com mit an offe nse un less an o vert act in pu rsuanc e of such

conspiracy is alleged and proved to have been done by the person or by another

with whom the person c onspired.” Id. § 39-12 -103(d).



       This Court has stated, “The unlawful confederation may be established by

circumstantial evidence and the conduct of the parties in the execution of the

criminal enterprise.” Rand olph v. Sta te, 570 S.W.2d 869, 871 (Tenn. Crim. App.

1978). Based upon the foregoing discussion of statements made by Defendant

and the gunman prior to the shooting, we conclude that the State presented




We find no distinction in language that is significant to our review.

                                              -8-
sufficient evidenc e to perm it a jury to find that Defendant and the gunman formed

an agreem ent to com mit a kno wing killing. Cf. State v. Rand all Scott, No. 01C01-

9307-CR-00240, 1996 WL 4318, at *8 (Tenn. Crim. App., Nashville, Jan. 5, 1996)

(stating that “[a]lthou gh there was no direct proo f that the defendant a nd his

codefe ndants agreed du ring that period of tim e to commit the kidnapping, that

can be properly inferred from their acts”). In addition, commission of the killing

by the shoo ter, a me mber o f the agre emen t, satisfied the overt act required for

conviction of consp iracy. This issue also lacks m erit.



      In conclusion, we affirm Defend ant’s convictions for second degree murder

and cons piracy to com mit second degree m urder.



                                 _______________________________
                                 DAVID H. WELLES, JUDGE



CONCUR:



_________________________________
GARY R. WADE, PRESIDING JUDGE



__________________________________
THOMAS T. WOODALL, JUDGE




                                        -9-
