        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs November 13, 2013

               STATE OF TENNESSEE v. WILLIE GATEWOOD

              Direct Appeal from the Criminal Court for Shelby County
                        No. 10-05288     Chris Craft, Judge




              No. W2012-02563-CCA-R3-CD - Filed November 21, 2013


A Shelby County jury convicted the Defendant, Willie Gatewood, of attempt to commit first
degree premeditated murder and aggravated burglary. The trial court sentenced the
Defendant to fifty-five years for the attempt to commit first degree premeditated murder
conviction and to thirteen years for the aggravated burglary conviction. The trial court
ordered the sentences to be served consecutively in the Tennessee Department of Correction.
On appeal, the Defendant contends that the evidence is insufficient to sustain his convictions.
After a thorough review of the record and applicable authorities, we discern no error in the
judgments of the trial court. Accordingly, the judgments of the trial court are affirmed.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which A LAN E. G LENN
and R OGER A. P AGE, JJ., joined.

Tony N. Brayton (on appeal) and R. Trent Hall (at trial), Memphis, Tennessee, for the
appellant, Willie Gatewood.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Senior Counsel;
Amy P. Weirich, District Attorney General; Christopher J. Lareau and Christopher L. West,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                         OPINION
                                          I. Facts

      This case arises from the Defendant’s unlawful entry into the victim’s home and
subsequent shooting of the victim in the arm and chest. A Shelby County grand jury indicted
the Defendant for attempt to commit first degree premeditated murder and aggravated
burglary.

        At the Defendant’s trial, the parties presented the following evidence: The victim
testified that on February 24, 2010, he returned home from lunch around 1:15 p.m. to find
an unfamiliar car parked in his driveway. The car, a burgundy Chevrolet Envoy with a black
top, was backed up to the garage door of his house, with the driver’s side door open and the
motor running. The victim recalled that he first walked around to the back of his house to
look for the driver of the vehicle in the backyard. After walking all the way around the
house, the victim stated that he noticed his front door was “pushed in” and that a piece of
wood from the door was lying on the ground. He said at this point he realized someone was
in his house. He clarified that the front door of his house was not standing wide open but
was open enough so that he could see it had been damaged.

        The victim testified that he went to the unfamiliar car parked in his driveway and
turned off the motor. He took the keys out of the car, as well as a pair of glasses and a
cellular phone that were lying in the front passenger seat. When the victim stood up from
the car, he saw a person coming out of his house carrying a “satchel.” The victim asked him,
“What are you doing in my house?” The victim identified the Defendant as the man he had
seen exiting his house. He stated that he had never seen the Defendant before and that the
Defendant did not have his permission to enter the house. The victim stated that the
Defendant responded to the victim saying he was “[f]ixing something.” The victim
responded, “You ain’t fixing something at my house.” The victim testified that at this point,
the Defendant pulled out a gun and said, “Give me them keys or I’m going to shoot you.”
The victim testified that the Defendant pulled the gun from his pocket and started walking
toward him while waving the gun and threatening, “I’m going to shoot you.” The victim said
he threw his arms up and yelled, “Help,” twice, and then the Defendant shot him “through
[his] arm and hit [his] chest.” He described the motion of throwing his arm up like,
“blocking a throw or pitch[.]” The victim described an immediate burning sensation to his
arm and the feeling of paralysis as the victim fell to the ground. As he was lying on the
ground, he heard the sound of the Defendant’s car start and drive away.

        The victim testified that he got up from the ground after the Defendant left and started
trying to call people for help. He stated that he still had the cellular phone that he had taken
from the Defendant’s vehicle. The victim said he held his arm tightly in an effort to stop the
bleeding, and he used his own phone to call his son, his daughter, and a “FedEx lady” for
help. The FedEx lady called the police for him, and the victim walked up to the front steps
of his house and sat down on the porch. He said he put the cellular phone from the
Defendant’s car on the porch, and when the sheriff’s deputies arrived, he pointed them to the
cellular phone and indicated it had come from the Defendant’s car. The cellular phone was
introduced into evidence and marked as an exhibit. When the ambulance arrived, the

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technicians put two IV’s in his arm and took his shirt off. The victim stated that the bullet
from the Defendant’s gun went through his arm and into his chest. The bullet fell out of the
victim’s shirt, and he carried it in his hand while the ambulance transported him to the
hospital. The victim stated he did not go inside his house until he returned home from the
hospital at 11:30 p.m. that night.

       The victim testified that when he returned home that night, he discovered that his
wife’s “ring tree” that had been on the dresser in the master bedroom was missing, along with
the rings that were on it.

        The victim testified that he spoke to sheriff’s deputies at the hospital, and they asked
him to look at a photographic lineup to attempt to identify the man who burglarized his
house. The victim said he made an identification, placed his signature at the bottom of the
lineup, and wrote the word “maybe” underneath. He stated that the reason he wrote “maybe”
was because he did not remember the shooter’s hair being as long as it was in the photograph
he identified. Sheriff’s deputies asked the victim to look at a second photographic lineup,
and the victim identified a different photograph of the same person. He stated he was more
sure of this photograph, because it was “more closely to what [the Defendant] looked like”
at the time of the burglary. The victim testified that he had identified the Defendant in the
preliminary hearing as the man who shot him.

       On cross-examination, the victim stated that he stayed at the hospital for six hours on
the day he was shot and that before he got home that night, his son and friends had cleaned
up the mess in his house and fixed his front door. He agreed that he had $4,000 cash in his
home that was not stolen.

        The victim testified that, because he is a youth Sunday School teacher, he has a lot of
youths hanging around his house and that it was not unusual for him to come home and find
a car in the driveway. He stated that, for that reason, he did not think it unusual when he saw
the Defendant’s car in his driveway, although he did find it unusual that the engine was
running.

       The victim reiterated that his uncertainty related to the identification in the first
photographic lineup was due to the Defendant’s hair and that the victim “didn’t realize [the
Defendant’s] hair was that long[.]” He explained that the Defendant’s hair “appeared to be
shorter whenever he was coming out of [the victim’s] house.”

       Susan Roberts, the victim’s wife, testified that on the day of these crimes, no one but
her and her husband had permission to be in their home. She testified that, after spending
the evening at the hospital with the victim, she returned home and found that her crystal ring

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tree was missing, along with a diamond ring, her wedding band, her engagement ring, and
about seven other rings.

       Toby Stone testified that he encountered a burgundy SUV parked in the middle of the
road near the victim’s house, with an African American man standing near the back of the
vehicle with the hatch open. He stated he did not get a good look at the man’s face.

       On cross-examination, Mr. Stone agreed that, after learning the victim had been shot,
he told police about the man and the vehicle parked in the middle of the road. He gave the
police a description of the vehicle and told them that the man had “dreads” woven on his
head.

      Brian Bowman testified that he was the manager of Pyramid Used Cars in Memphis,
Tennessee, and that he had received a credit application from the Defendant listing the
Defendant’s cellular phone number. He stated that he sold to the Defendant a 2002 GMC
burgundy Envoy, and that the car was registered in the Defendant’s name.

       Deputy Larry Emery testified that on February 24, 2010, he responded to a call about
a burglary and shooting and was the first one to arrive at the scene. When he arrived at the
victim’s house, he found the victim sitting on the front porch, bleeding. He stated that there
was blood all over the porch, the walkway, and in the yard. The victim told him that
someone had “burglarized” his house and that when the victim tried to stop the burglar, the
burglar shot the victim.

        Deputy Emery testified that he requested medical help and detectives for further
investigation and secured the scene. He stated that he saw a cellular phone on the porch that
he later was told did not belong to the victim. Deputy Emery testified that when he arrived
at the scene, the victim’s arm appeared to be bleeding and that he appeared to have gunshot
holes or wounds in his arm and chest.

        Detective Jason Valentine testified that he showed the victim a photographic lineup
at the hospital and that the victim identified one photograph and wrote under it, “May be the
guy, this could possibly be the guy . . . that shot me.” Detective Valentine testified that the
victim was not one hundred percent certain that the photograph he had identified was the man
who shot him but that “he felt pretty certain” his identification was correct. Detective
Valentine stated that he showed the victim a second photographic lineup and that the victim
made a “[o]ne hundred percent” identification of one photograph and said, “This is the
person.” Detective Valentine testified that the two photographs the victim had identified
were the same person and that person was the Defendant.



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       Steve Bierbrodt testified that he was working for the sheriff’s office at the time of the
crime and that he responded to the scene due to the other deputies finding a cellular phone,
that was previously identified by the victim as the one taken from the Defendant’s car. Mr.
Bierbrodt was able to identify the cellular phone by its serial number, as well as the phone
number associated with the phone. Mr. Bierbrodt stated that he ran the phone number
through the police department’s public records system and that the Motor Vehicle
Registration database indicated that the phone number was registered with the Defendant’s
vehicle.

        The Defendant testified that “a guy that hired [the Defendant] to bring him to finish
doing a job site” was the person responsible for shooting the victim. The Defendant stated
that he did not know the shooter’s real name but knew him by his street name, “Big Daddy.”
The Defendant said he was at the victim’s home on the day of the shooting with “Big
Daddy,” waiting for him to “drill a few holes and run a few wires.” The Defendant explained
that this was why his cellular phone and sunglasses were found at the crime scene. The
Defendant stated that he did not enter the victim’s home but that he was present when “Big
Daddy” shot the victim. The Defendant and “Big Daddy” left the scene together, and then
the Defendant dropped “Big Daddy” off in his neighborhood. The Defendant stated he did
not call the police about the shooting because he was “just glad to get back away from the
situation and [halfway] safe.” The Defendant agreed that he had prior convictions for
attempting to introduce contraband into a penal facility and robbery.

        On cross-examination, the Defendant testified that he picked “Big Daddy” up at a
store, under the auspices that the Defendant was going to do some work for him at a house.
He stated that they drove in the Defendant’s car to the house and that the Defendant backed
his car into the driveway. The Defendant said that he stayed in the car while “Big Daddy”
did some drilling, and that, at some point, the Defendant walked around to the back of the
house. When the Defendant heard another vehicle pull up out front, he went to the side of
the house and heard a confrontation ensue in the front yard. The Defendant said he then
came around the corner of the house and saw the victim and “Big Daddy” in the front yard.
He stated that the victim asked him what he was doing at the house, and the Defendant
responded, “I’m just helping someone with some work.” The Defendant said that upon
realizing that “something was wrong,” he returned to his vehicle and found that his keys were
not in the vehicle where he left them. The Defendant asked “Big Daddy” where his keys
were, and “Big Daddy” responded that he did not have them and asked the victim about the
keys. The Defendant said at that point, “Big Daddy” went into his pocket and pulled out a
gun, waved the gun at the victim and said, “Give me the keys.” The Defendant said the
victim responded, “I’m not going to give you the keys, and then the Defendant heard a “pop.”
The Defendant stated that “Big Daddy” took the car keys from the victim and drove away in
the Defendant’s car, with the Defendant in the passenger seat.

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       The Defendant stated that the day after the incident, he asked his sister to sell his
vehicle to the dealership, because the truck had been on the news and he “knew the police
were looking for [him].” He stated he was “momentarily” avoiding the police.

       On rebuttal, the victim testified that after he arrived home on the day of the incident,
saw the vehicle in his driveway, and took the keys out, he saw the Defendant coming out of
his house and down the front steps of his porch. He stated the Defendant was the only person
there besides himself. He maintained that the only person he saw that day was the Defendant
and that it was the Defendant who shot him.

        On surrebuttal, the Defendant testified that he was “lured” to the victim’s house under
the false pretenses of installing some wires for a satellite television.

       Based upon this evidence, the jury convicted the Defendant of criminal attempt to
commit first degree murder and aggravated burglary. The trial court found that the
Defendant was a persistent Range III offender and imposed a fifty-five year sentence for the
criminal attempt to commit first degree murder conviction and a consecutive thirteen-year
sentence for aggravated burglary. It is from these judgments that the Defendant now appeals.

                                         II. Analysis

       The Defendant contends that the evidence is insufficient to sustain his convictions
because the State did not prove that the Defendant “acted with the intent to commit”
premeditated first degree murder and that the State did not establish the element of
premeditation. The Defendant contends that the evidence presented showed that he
threatened to “shoot” the victim, not kill the victim, and that the proof only shows that the
Defendant intended to rob the victim and “be long gone before the victim returned.” The
State responds that the victim’s testimony established that the Defendant committed these
crimes and that the Defendant’s “entire course of action is corroborative of the intent to
commit the offense.” We agree with the State.

       When an accused challenges the sufficiency of the evidence, this Court’s standard of
review is whether, after considering the evidence in the light most favorable to the State,
“any 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 (1979); see Tenn. R. App. P.
13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d
247, 276 (Tenn. 2002)). This rule applies to findings of guilt based upon direct evidence,
circumstantial evidence, or a combination of both direct and circumstantial evidence. State
v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). In the absence of direct
evidence, a criminal offense may be established exclusively by circumstantial evidence.

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Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973). The jury decides the weight to be given
to circumstantial evidence, and “[t]he inferences to be drawn from such evidence, and the
extent to which the circumstances are consistent with guilt and inconsistent with innocence,
are questions primarily for the jury.” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)
(citations omitted). “The standard of review [for sufficiency of the evidence] ‘is the same
whether the conviction is based upon direct or circumstantial evidence.’” State v. Dorantes,
331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)).

        In determining the sufficiency of the evidence, this Court should not re-weigh or
reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).
Nor may this Court substitute its inferences for those drawn by the trier of fact from the
evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d
856, 859 (Tenn. 1956). “Questions concerning the credibility of the witnesses, the weight
and value of the evidence, as well as all factual issues raised by the evidence are resolved by
the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); Liakas, 286 S.W.2d at
859. “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. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978); State v. Grace, 493 S.W.2d 474, 479 (Tenn.
1973). The Tennessee Supreme Court stated the rationale for this rule:

              This well-settled rule rests on a sound foundation. The trial judge and
       the jury see the witnesses face to face, hear their testimony and observe their
       demeanor on the stand. Thus the trial judge and jury are the primary
       instrumentality of justice to determine the weight and credibility to be given
       to the testimony of witnesses. In the trial forum alone is there human
       atmosphere and the totality of the evidence cannot be reproduced with a
       written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1996) (citing Carroll v. State, 370 S.W.2d 523
(Tenn. 1963)). This Court must afford the State of Tennessee the strongest legitimate view
of the evidence contained in the record, as well as all reasonable inferences which may be
drawn from the evidence. Goodwin, 143 S.W.3d at 775 (citing State v. Smith, 24 S.W.3d
274, 279 (Tenn. 2000)). Because a verdict of guilt against a defendant removes the
presumption of innocence and raises a presumption of guilt, the convicted criminal defendant
bears the burden of showing that the evidence was legally insufficient to sustain a guilty
verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).

          A. Criminal Attempt to Commit First Degree Murder Conviction



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      The Defendant contends that there is insufficient evidence to prove beyond a
reasonable doubt all of the elements required for a criminal attempt to commit first degree
murder conviction. He argues that the evidence presented does not prove the element of
premeditation and does not justify a guilty verdict.

        First degree murder is defined as a “premeditated and intentional killing of another.”
T.C.A. § 39-13-202(a)(1) (2010). Premeditation refers to “an act done after the exercise of
reflection and judgment.” T.C.A. § 39-13-202(d) (2010). Whether the defendant
premeditated the killing is for the jury to decide, and the jury may look at the circumstances
of the killing to decide that issue. Bland, 958 S.W.2d at 660. The Tennessee Code states
that, while “the intent to kill must have been formed prior to the act itself,” that purpose need
not “pre-exist in the mind of the accused for any definite period of time” for a defendant to
have premeditated the killing. T.C.A. § 39-13-202(d) (2010).

        The following factors have been accepted as actions that demonstrate the existence
of premeditation: the use of a deadly weapon upon an unarmed victim, the particular cruelty
of the killing, declarations by the defendant of an intent to kill, evidence of procurement of
a weapon, preparations before the killing for concealment of the crime, and calmness
immediately after the killing. Bland, 958 S.W.2d at 660. In addition, a jury may consider
destruction or secretion of evidence of the murder and “the planning activities by the
appellant prior to the killing, the appellant’s prior relationship with the victim, and the nature
of the killing.” State v. Nichols, 24 S.W.3d 297, 302 (Tenn. 2000); State v. Halake, 102
S.W.3d 661, 668 (Tenn. Crim. App. 2001) (citing State v. Gentry, 881 S.W.2d 1, 4-5 (Tenn.
Crim. App. 1993)). Also, “[e]stablishment of a motive for the killing is a factor from which
the jury may infer premeditation.” State v. Leach, 148 S.W.3d 42, 54 (Tenn. 2004).

       For attempt of this offense, Tennessee law states the following:
       (a) A person commits criminal attempt who, acting with the kind of culpability
       otherwise required for the offense:

       (1) Intentionally engages in action or causes a result that would constitute an
       offense, if the circumstances surrounding the conduct were as the person
       believes them to be;

       (2) Acts with intent to cause a result that is an element of the offense, and
       believes the conduct will cause the result without further conduct on the
       person's part; or

       (3) Acts with intent to complete a course of action or cause a result that would
       constitute the offense, under the circumstances surrounding the conduct as the

                                               -8-
       person believes them to be, and the conduct constitutes a substantial step
       toward the commission of the offense.

              (b) Conduct does not constitute a substantial step under
              subdivision (a)(3), unless the person's entire course of action is
              corroborative of the intent to commit the offense.

              (c) It is no defense to prosecution for criminal attempt that the
              offense attempted was actually committed.

T.C.A. § 39-12-101 (2010).

        The evidence, viewed in the light most favorable to the State, shows that the
Defendant, armed with a handgun, forcibly entered the victim’s house without permission.
The Defendant was in possession of the weapon when he encountered the victim in the
victim’s front yard as the Defendant was exiting the victim’s house with a satchel. The
victim was standing between the Defendant and the Defendant’s vehicle. The Defendant
walked toward the victim and threatened to shoot him if the victim did not return his keys.
The Defendant removed the gun from his pocket and fired a shot directly at the victim,
hitting him in the arm and the chest. The Defendant immediately fled the scene, leaving the
victim bleeding in his front yard.

        We conclude that this evidence is sufficient to establish that the Defendant attempted
to kill the victim, by shooting him, so that the Defendant could leave the scene of the
burglary. The factors indicating premeditation were present throughout the crime, including
the Defendant’s possession and use of a deadly weapon upon the unarmed victim during the
commission of the burglary, the declaration by the Defendant of his intent to use the weapon,
as well as the Defendant’s calmness after the crime as he picked up the keys and drove away.
These factors establish sufficient evidence for the jury to infer that the Defendant intended
to kill the victim and that the Defendant acted after exercising reflection and judgment.
Therefore, the requisite elements of premeditation were established by the evidence
presented to the jury. The Defendant is not entitled to relief on this issue.

                           B. Aggravated Burglary Conviction

       The Defendant contends that there is no “direct evidence” that he ever entered the
victim’s home and that the State did not meets its burden of proof beyond a reasonable doubt.

       To convict the Defendant of aggravated burglary the State must show that he
intentionally, knowingly, or recklessly entered a habitation without the effective consent of

                                             -9-
the owner, with the intent to commit a felony, theft, or assault. See Tenn. Code. Ann. §§
39-14-402, 39-14-403, 39-14-401(1)(A), (3) (2010).

       The evidence, viewed in the light most favorable to the State, shows that the victim
arrived home and saw that his front door had been “busted” open. He then saw the
Defendant exiting his home. The victim testified that he did not know the Defendant and that
he had not given his permission for the Defendant to enter his home. When the victim
confronted the Defendant about his presence in the victim’s home, the Defendant threatened
to shoot the victim if the victim did not return the Defendant’s car keys. The victim and his
wife both testified that jewelry was missing from the master bedroom after the victim found
the Defendant in their home. This evidence supports the jury’s conclusion that the
Defendant, armed with a weapon, intentionally entered the victim’s house, without the
consent of the victim, to commit a theft.

       Accordingly, we conclude that there was sufficient evidence to support the jury’s
finding of guilt beyond a reasonable doubt as to the Defendant’s aggravated burglary
conviction. The Defendant is not entitled to relief on this issue.

                                      III. Conclusion

        Based on the record and aforementioned authorities, we conclude that the evidence
is sufficient to sustain the Defendant’s convictions. We, therefore, affirm the judgments of
the trial court.


                                                   _________________________________
                                                   ROBERT W. WEDEMEYER, JUDGE




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