        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs October 30, 2001

                 STATE OF TENNESSEE v. JERMAINE DRIVER

                 Direct Appeal from the Criminal Court for Shelby County
                         No. 00-01552    Joseph P. Dailey, Judge



                  No. W2001-00376-CCA-R3-CD - Filed February 8, 2002


The defendant, Jermaine Driver, appeals his conviction of attempted first-degree murder, which
was based on an assault by the defendant and two other men upon the victim. After a thorough
review of the record, we conclude that there is sufficient evidence to establish that the assault
was a premeditated and intentional attempt to kill the victim. The judgment of the trial court is
affirmed.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID G. HAYES and
JAMES CURWOOD WITT, JR., JJ., joined.

Charles W. Gilchrist, Jr., Memphis, Tennessee, for the appellant, Jermaine Driver.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Jennifer Smith Nichols, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                           OPINION

        The defendant, Jermaine Driver, and his brother, Anthony Driver, were indicted on one
count of attempted first-degree murder. The defendant was tried separately from his brother. A
jury convicted the defendant, and the trial court sentenced the defendant to twenty-five (25)
years as a standard Range I offender. The defendant’s motion for new trial was denied, and this
timely appeal followed. On appeal the defendant raises a single issue: whether there was
sufficient evidence to support his conviction for attempted first-degree murder.

                                             Facts

       According to his testimony, the victim, Donald Walton, had known the defendant and his
brother, Anthony Driver, for several years. The victim admitted that he had purchased crack
cocaine from Anthony Driver on several occasions over a period of years. The events that
culminated in the instant offense began on a Monday, when the defendant asked to use the
victim’s car. The victim testified that he had allowed Anthony Driver to use his car in exchange
for crack cocaine in the past. After telling the defendant that he had to have his car back in time
to go to work the next morning, he agreed to allow the defendant to use his car for three hours in
exchange for twenty dollars worth of crack cocaine. After three hours, the victim met the
defendant and made a second deal for three more hours in exchange for more crack cocaine. At
midnight, when the time for the second deal expired, the victim agreed to allow the defendant
and Anthony Driver to keep the car as long as they drove him to work at seven o’clock in the
morning. In exchange, Anthony Driver gave the victim more crack cocaine.

        On Tuesday morning, the defendant picked the victim up and drove him to work as
agreed. That afternoon, both the defendant and Anthony Driver arrived to pick the victim up
from work, and he made another deal with the brothers allowing them to keep the car another
three hours. At nine o’clock p.m. on Tuesday, the victim made a deal with Anthony Driver for
three more hours. According to the terms of the deal, the victim was supposed to get his car
back at midnight but at six o’clock the next morning the victim still did not have his car. The
victim called the defendant and told him that he needed his car to drive to work. Shortly
thereafter, the defendant arrived in the victim’s car and asked to make another deal. The victim
refused and drove himself to work.

        The victim testified that he looked for the brothers when he got off work on Wednesday
in order to pay the defendant money he owed for crack cocaine and to return tools that had been
left in the trunk of his car. However, the victim did not see either the defendant or Anthony
Driver the rest of the day on Wednesday. While driving to his grandmother’s house after work
on Thursday, the victim saw the defendant and Anthony Driver. He parked his car on the side of
the street, and he and the passenger in his car got out of the car. The victim opened the trunk of
the car so that the defendant could retrieve the two tire jacks and lug wrenches that had been left
in the trunk. At this time, the defendant told the victim that he had been looking for him. The
victim did not respond but continued to stand by while the defendant removed the tools from the
trunk of the car. Anthony Driver was also present, and he told the victim that he owed the victim
for the extra time he kept the car. Anthony Driver also told the victim that the victim owed the
defendant money for crack cocaine that he purchased from the defendant on Tuesday. Anthony
Driver repeated the statement, “I owe you but you owe [the defendant],” several times.

        According to a deal the victim had made with the defendant earlier in the week, he owed
him twenty dollars. In the victim’s opinion, however, he no longer owed the defendant any
money because of the extra time the brothers had kept his car. However, he eventually
responded to Anthony Driver’s statements by saying “I’m tired of hearing this” and pulling
fifteen dollars from his pocket. The victim handed the fifteen dollars to the defendant, and the
defendant pushed it away. The victim responded “I guess you want a twenty.” He told the
defendant he would go to his grandmother’s house to get the rest of the money. The defendant
agreed but told him that he would have to leave his car there and walk to his grandmother’s
house. The victim refused to walk. At this point, the passenger from the victim’s car, who had
been listening to the conversation, pulled five dollars from his pocket and tried to hand it to the
defendant. The defendant refused the money and swung at the victim with one of the lug

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wrenches that had been in the victim’s trunk. The victim is six feet, five inches tall and was able
to block each of the defendant’s swings with his left hand. On the fourth swing, the victim
caught the lug wrench and took it from the defendant. The defendant turned and ran away
because, in the victim’s opinion, he was afraid that the victim was going to hit him back with the
lug wrench. However, the victim maintains that he did not plan to hit the defendant.

        The altercation occurred on the side of the street and there were “many people”standing
nearby watching was what happening. Anthony Driver was standing a few feet away leaning
against a wood plank. However, he was not involved until the defendant ran away. Once the
defendant left, Anthony Driver approached the victim and began hitting him in the legs with a
piece of wood, which the victim believed was smaller than a two-by-four. The victim testified
that he wanted to leave but that he did not because he would have had to turn his back to
Anthony Driver in order to get into his car. In his opinion, “you should always face your
attackers.” The victim still had the lug wrench that he had taken from the defendant. He raised
the lug wrench and said that he was “tired of being hit.” Just as he was about to hit Anthony
Driver with the lug wrench, he changed his mind. Instead, he said “this is for nothing, absolutely
nothing.” The lug wrench slipped from his hand and fell to the ground. Anthony Driver
retrieved the lug wrench and the two men stood facing each other.

       After being gone for less than two minutes, the defendant returned with another man.
Both of them were carrying pieces of wood similar to the one that Anthony Driver used to hit the
victim in the legs. All three men began hitting the victim, and at some point he fell on the
ground. The victim covered his head while the three men hit him repeatedly. Then they all
stopped hitting him and began to walk away. As they were leaving, the victim’s friend, who had
been watching what happened, informed Anthony Driver that they had “hurt him bad.” Anthony
Driver responded, “that’s what he gets.”

        After the assault was over, the victim tried to stand but could not. He heard sirens in the
distance and was taken to the hospital by ambulance. He was hospitalized for a week. The
victim and his mother testified about the injuries he sustained. He had a fractured skull, a
lacerated liver, two broken fingers, and an injury to his shoulder. Because of his head injury, the
victim was unable to speak for a period of time after the assault. Although he has undergone
speech and physical therapy, he is still unable to articulate his thoughts the way he was able to
before the assault.

                                            Analysis

        The defendant contends that the evidence was insufficient to support his conviction for
attempted first-degree murder. The defendant concedes that the evidence adduced at trial
established that he assaulted the victim but alleges that there was no evidence that the defendant
had the intent to kill the victim.

        When a defendant challenges the sufficiency of the evidence, the 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

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doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324, 99 S. Ct. 2781, 2791-92,
(1979). Questions concerning the credibility of the witnesses, the weight and value of the
evidence, and all factual issues raised by the evidence are resolved by the trier of fact. State v.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). This Court must afford the state the strongest
legitimate view of the evidence contained in the record as well as all reasonable and legitimate
inferences which may be drawn from the evidence. Cabbage, 571 S.W.2d at 835. Therefore,
this Court may not reweigh or reevaluate the evidence or substitute its inferences for those drawn
by the trier of fact from the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.
App. 1990). Furthermore, it is the defendant’s burden to demonstrate that the evidence is
insufficient because a jury’s finding of guilt removes the presumption of innocence and replaces
it with one of guilt. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

       In order to establish the criminal attempt element required to prove attempted first-degree
murder, the state must first prove that the defendant acted with the requisite culpability required
for premeditated first degree murder, and second that the act or acts were in furtherance of the
attempted crime. See Tenn. Code Ann. § 39-12-101(a); Wyatt v. State, 24 S.W.3d 319, 323
(Tenn. 2000).

        Attempted first-degree murder as alleged in the indictment also requires proof that the
attempted murder was premeditated and intentional. Tenn. Code Ann. § 39-13-202(a)(1). Once
a homicide or attempted homicide is established, it is presumed to be the offense of murder in
the second degree or an attempt to commit murder in the second degree. State v. Boyd, 909
S.W.2d 50, 53 (Tenn. Crim. App. 1995). In order to elevate the offense to first-degree murder or
an attempt thereof, the state has the burden to overcome that presumption by proving that the
murder was intentional and premeditated. Id. A person acts intentionally “when it is the
person’s conscious objective or desire to engage in the conduct or cause the result.” Tenn. Code
Ann. § 39-11-106(a)(18). Intent, which can seldom be proven by direct evidence, may be
deduced or inferred by the trier of fact from the character of the assault, the nature of the act and
from all the circumstances of the case in evidence. State v. Holland, 860 S.W.2d 53, 59 (Tenn.
Crim. App. 1993). “‘Premeditation’ is an act done after exercise of reflection and judgment.”
Tenn. Code Ann. § 39-13-202(d). Although premeditation requires that “the intent to kill must
have been formed prior to the act itself[, it] is not necessary that the purpose to kill pre-exist in
the mind of the accused for any definite period of time.” Id. In addition, the element of
premeditation is a question of fact to be determined by the jury. State v. Suttles, 30 S.W.3d 252,
261 (Tenn. 2000). Although the jury may not engage in speculation, it may infer premeditation
from the manner and circumstances of the offense. State v. Bland, 958 S.W.2d 651, 660 (Tenn.
1997); State v. Bordis, 905 S.W.2d 214, 222 (Tenn. Crim. App. 1995). The Tennessee Supreme
Court has recognized several circumstances from which a jury may infer premeditation,
including: evidence of procurement of a weapon; the nature of the killing or attempted killing,
including the defendant's use of a deadly weapon upon an unarmed victim; and the killing or
attempted killing of the victim while the victim is retreating or attempting to escape. Bland, 958
S.W.2d at 660; Bordis, 905 S.W.2d at 221-22.. With respect to the nature of the attempted
killing, repeated shots or blows will not alone establish premeditation but may be considered
along with other circumstances in assessing the existence of premeditation. State v. Brown, 836
S.W.2d 530, 542 (Tenn. 1992).

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        In the instant case, considering the proof in the light most favorable to the state, we
conclude that there was sufficient evidence to support the defendant’s conviction for attempted
first-degree murder beyond a reasonable doubt. The evidence concerning the nature of the
assault, the circumstances surrounding the assault, the use of a deadly weapon on an unarmed
victim, and the seriousness of the injuries support an inference that the defendant intentionally,
and with premeditation, attempted to kill the victim. The defendant began his assault with a
deadly weapon by swinging a lug wrench at the victim’s head. Unsuccessful in his attempts to
strike the victim with the lug wrench, the defendant ran away and procured another weapon. He
then returned with another person, who also had a weapon. The defendant, along with two other
men, then continued the assault upon the unarmed victim by repeatedly hitting him in the head
with boards and a lug wrench. The assault continued even after the victim fell to the ground and
resulted in life threatening injuries. The victim was hospitalized for a week to treat his fractured
skull and multiple internal injuries. Based upon such evidence, the jury could have found
beyond a reasonable doubt that the defendant intended and attempted to commit first-degree
murder. This issue is without merit. Accordingly, the judgment of the trial court is affirmed.




                                                      ___________________________________
                                                      JOHN EVERETT WILLIAMS, JUDGE




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