         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                 February 13, 2001 Session

        STATE OF TENNESSEE v. KENNETH LAMONT ANTHONY

                Direct Appeal from the Criminal Court for Davidson County
                          No. 98-C-1985    Seth Norman, Judge



                    No. M2000-00839-CCA-R3-CD - Filed April 27, 2001


The Defendant, Kenneth Anthony, was convicted by a Davidson County jury of first degree pre-
meditated murder and attempted second degree murder. For these offenses, the Defendant received
a sentence of imprisonment for life and a concurrent sentence of ten years in the Tennessee
Department of Correction, respectively. On appeal, the Defendant challenges the sufficiency of the
evidence with regard to the first degree premeditated murder conviction. Finding sufficient evidence
in the record to support the Defendant’s convictions, we affirm the judgment of the trial court.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
ALAN E. GLENN, J., joined.

Richard McGee, Nashville, Tennessee, for the Appellant, Kenneth Anthony.

Paul G. Summers, Attorney General and Reporter, Glen C. Watson, Assistant Attorney General,
Victor S. Johnson, III, District Attorney General, and Pamela S. Anderson, Assistant District
Attorney General, for the Appellee, State of Tennessee.



                                            OPINION

                                             I. Facts

       The evidence presented to the jury at trial, when viewed in a light most favorable to the
prosecution, can be summarized as follows: At about 1:30 a.m. on May 17, 1998, Tony Moore and
Teresa Day were walking together on the sidewalk on South Seventh Street in Nashville, Tennessee.
The Defendant was walking on the same sidewalk but in the opposite direction. According to one
witness who was sitting on a porch step within a few feet of the shooting, when the Defendant met
Moore and Day, he said, “I heard you was looking for me,” and began shooting at Moore and Day.
At least six shots1 were fired in rapid succession. Moore was shot once in the chest and died about
two days later. He was not physically able to give a statement to the police prior to his death. Day
was shot in both knees and feet. She later identified the Defendant as the shooter. The witness who
heard the Defendant’s statement immediately prior to the shooting was also able to identify the
Defendant as the shooter. No weapons were found in the possession of either victim.

                                                  II. Analysis

       In this appeal, the Defendant’s sole issue concerns the sufficiency of the evidence pertaining
to premeditation by the Defendant, which is an element of the offense for which he was convicted.
The Defendant argues that the record contains insufficient evidence for any rational trier of fact to
have found beyond a reasonable doubt the essential element of premeditation by the Defendant in
the shooting death of Tony Moore. Following our careful review of the record, we respectfully
disagree.

        When an accused challenges the sufficiency of the evidence, an appellate court’s standard
of review is whether, after considering the evidence in the light most favorable to the prosecution,
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, 324 (1979); State v. Duncan, 698 S.W.2d 63, 67 (Tenn.
1985); Tenn. R. App. P. 13(e). This rule applies to findings of guilt based upon direct evidence,
circumstantial evidence, or a combination of both direct and circumstantial evidence. State v. Dykes,
803 S.W.2d 250, 253 (Tenn. Crim. App. 1990), overruled on other grounds by State v. Hooper, 29
S.W.3d 1 (Tenn. 2000).

        In determining the sufficiency of the evidence, this Court should not re-weigh or re-evaluate
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. Liakas, 286 S.W.2d at 859.
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.
State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). 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. Id.

       First degree murder is defined, in part, as “the premeditated and intentional killing of
another.” Tenn. Code Ann. § 39-13-202(a)(1). “Premeditation” is described as “an act done after
the exercise of reflection and judgment.” Id. § 39-13-202(d). To find a defendant guilty of


         1
          The police recovered five .25 caliber shell casings at the scene, and one additional shell casing was later
recovere d from inside Moo re’s blood y shirt.

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premeditated murder, the jury must determine that “the intent to kill was formed prior to the act
itself” and that “the accused was sufficiently free from excitement and passion as to be capable of
premeditation.” Id. “‘Intentional’ refers to a person who acts intentionally with respect to the nature
of the conduct or to a result of the conduct when it is the person’s conscious objective or desire to
engage in the conduct or cause the result.” Id. § 39-11-302(a).

        Because premeditation entails proof of a state of mind about which there may be no direct
evidence, “cases have long recognized that the necessary elements of first-degree murder may be
shown by circumstantial evidence.” State v. Brown, 836 S.W.2d 530, 541 (Tenn. 1992).
Premeditation is a question of fact to be determined by the jury. State v. Suttles, 30 S.W.3d 252, 261
(Tenn. 2000). And, the jury may infer premeditation from the manner and circumstances of the
killing. See State v. Pike, 978 S.W.2d 904, 914 (Tenn. 1998); State v. Bland, 958 S.W.2d 651, 660
(Tenn. 1997); State v. Bordis, 905 S.W.2d 214, 222 (Tenn. Crim. App. 1995). Our supreme court
has enumerated several factors that may support the existence of premeditation and deliberation,
including: (1) declarations by the defendant of an intent to kill, (2) evidence of procurement of a
weapon, (3) the use of a deadly weapon upon an unarmed victim, (4) the particular cruelty of the
killing, (5) infliction of multiple wounds, (6) preparation before the killing for concealment of the
crime, (7) destruction or secretion of evidence of the murder, and (8) calmness immediately after the
killing. State v. Nichols, 24 S.W.3d 297, 302 (Tenn. 2000).

      The jury in this case was correctly instructed as follows concerning the definition of
premeditation:
               A “premeditated” act is one done after the exercise of reflection and
      judgment. Premeditation means that the intent to kill must have been formed prior
      to the act itself. It is not necessary that the purpose to kill preexist in the mind of the
      accused for any definite period of time. The mental state of the accused at the time
      he allegedly decided to kill must be carefully considered in order to determine
      whether the accused was sufficiently free from excitement and passion as to be
      capable of premeditation. If the design to kill was formed with premeditation, it is
      immaterial that the accused may have been in a state of passion or excitement when
      the design was carried into effect. Furthermore, premeditation can be found if the
      decision to kill is first formed during the heat of passion, but the accused commits
      the act after the passion has subsided.

See Tenn. Code Ann. § 39-13-202(d); T.P.I. - Crim. 7.01(b).

        In his brief, the Defendant points out certain aspects of the testimony of several witnesses to
support his argument that the evidence of premeditation is insufficient. First, he notes that one of
the eyewitnesses to the shooting, Shanika Beard, did not hear the Defendant or either of the victims
make any statements prior to the shooting. Secondly, the Defendant points out that the eyewitness
who testified that she heard the Defendant say, “I heard you was looking for me,” was not sure of
how much time passed between the statement and the first shot; the witness was also not sure who
fired the first shot. Third, the Defendant asserts that because both eyewitnesses who testified “took


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cover” immediately upon hearing the initial shots, neither could state whether either victim was
armed or whether (if armed) he or she may have fired the first shots they heard. Finally, the
Defendant claims that inflammatory remarks by Detective Kyle Anderson caused the jury to convict
the Defendant of premeditated murder in the absence of sufficient evidence of premeditation. The
pertinent portion of Detective Anderson’s testimony is as follows:

        DEFENSE COUNSEL: Why would it be a problem for her to talk with you on the
        front porch?
        DETECTIVE ANDERSON: . . . I am actually surprised that you would ask that.
        But, obviously, people who live in a high-crime neighborhood, in which not
        everybody sees the police as their friend, are, of course, scared of retribution from
        people like your client, for helping having him arrested. Citizens are not always
        rewarded.
        DEFENSE COUNSEL: So you would characterize this place as a high-crime area?
        DETECTIVE ANDERSON: Yes.
        DEFENSE COUNSEL: Dangerous, in other words?
        DETECTIVE ANDERSON: Well, because people like your clients are killing
        people there, yes.

        In this case, the jury heard evidence from which they could reasonably and rationally infer
that the Defendant acted with premeditation. The Defendant used a deadly weapon. He fired the
weapon several times at point-blank range at the two victims. The victims were apparently unarmed.
The Defendant apparently approached the victims in a calm manner on the sidewalk, and when he
was close to them he stated, “I heard you was looking for me,” and opened fire. After the shooting,
the Defendant left the scene. It is both rational and reasonable that the jury concluded from the
evidence that the Defendant shot Tony Moore intentionally and with premeditation. As the State
points out in its brief, the existence of the element of premeditation is a question for the jury that may
be established by proof of the circumstances surrounding the killing. Bland, 958 S.W.2d at 660.

        Considering the entire record in this case, we cannot conclude that Detective Anderson’s
comments pertaining to the high crime area where the killing occurred and the issue of retribution
affected the jury’s verdict. Detective Anderson was answering the questions of defense counsel
when he made the allegedly “inflammatory” remarks about people in the neighborhood fearing
retribution from people “like your client” and that the place of the killing was a high crime area
because “people like your clients are killing people there, yes.” Although we agree with counsel for
the Defendant that these comments by Detective Anderson were not necessary to fully answer the
questions asked of him, we cannot conclude that these comments affected the verdict of the jury.
As stated above, there is ample evidence in the record from which a jury could find that the
Defendant killed Tony Moore intentionally and with premeditation.



        Accordingly, the judgment of the trial court is AFFIRMED.


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      ___________________________________
      ROBERT W. WEDEMEYER, JUDGE




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