        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT JACKSON

                        JUNE SESSION, 1998


STATE OF TENNESSEE,        )
                                                           FILED
                               C.C.A. NO. 02C01-9711-CC-00447
                           )                           July 10, 1998
      Appellee,            )
                           )                               Cecil Crowson, Jr.
                           )   HARDIN COUNTY               Appellate C ourt Clerk

VS.                        )
                           )   HON. C. CREED McGINLEY
JASON W. KIMBERLAND,       )   JUDGE
                           )
      Appe llant.          )   (First Degree F elony-Murde r)


                ON APPEAL FROM THE JUDGMENT OF THE
                  CIRCUIT COURT OF HARDIN COUNTY


FOR THE APPELLANT:             FOR THE APPELLEE:

RON E. HARMON                  JOHN KNOX WALKUP
618 Main Street                Attorney General and Reporter
Savannah, TN 38372
                               PETER M. COUGHLAN
                               Assistant Attorney General
                               425 5th Avenu e North
                               Nashville, TN 37243

                               ROBERT RADFORD
                               District Attorney General

                               JOHN OVERTON
                               Assistant District Attorney General
                               2nd Floor, Hardin County Courthouse
                               Savannah, TN 38372



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                  OPINION

       The Defendant, Jason W. Kimberland, appeals as of right pursuant to

Tennessee Rule of Appellate Procedure 3(b) the final judgment of conviction of

felony murde r. Defend ant asse rts on appeal that insufficient evidence existed by

which the jury found him g uilty of atte mpte d robb ery, the felony u pon w hich h is

felony murder conviction was based. We conclude that the record contains

sufficient evidenc e to supp ort a jury findin g of attempte d robbery, and we

therefore affirm the ju dgme nt of the trial co urt.



       In July 1996, Defendant was indicted by the H ardin Coun ty Grand Jury on

charges of first degree murder in violation of Tennessee Code Annotated § 39-

13-202(a)(2) and conspiracy to commit aggravated robbery in violation of

Tennessee Code A nnotated § 3 9-12-103. T he State volun tarily withdrew the

charge of conspiracy prior to jury selection, Defendant was convicted of first

degree felony m urder by a jury in the Circuit Court for Hardin County, and a

sentence of life im prison men t was e ntered into jud gme nt on A pril 11, 1997.

Defe ndan t’s Motion for New Trial and Ame nded Mo tion for New T rial were

togethe r denied by the trial co urt, and D efenda nt timely ap pealed .



       Defe ndan t’s sole issue for review by this Court is whether the evidence at

trial was sufficient to permit the jury to find him guilty of the underlying felony of

attempted robbery. Defendant admits he killed the victim in this case but denies

he committed attempted robbery, asserting that he did not tak e the req uisite




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“substantial step” toward accomplishing the robbery. See Tenn. Code Ann. § 39-

12-101 (a)(3).



       Before addressing the merits of Defendant’s argument, we must assess

the appropriate standard of review. T ennesse e Rule of Ap pellate Proced ure

13(e) prescribe s that “[f]inding s of guilt in criminal actions whether by the trial

court or jury sh all be set aside if the evidence is insufficient to support the finding

by the trier of fac t of guilt beyond a re asonable d oubt.” Tenn . R. App. P. 13 (e).

In addition, b ecaus e convictio n by a trier of fa ct destroys the presumption of

innocence and imposes a presumption of guilt, a convicted criminal defendant

bears the burden of show ing that the evidenc e was ins ufficient. 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, 33 1 (Ten n. 1977 )); State v. Tug gle, 639 S.W.2d

913, 91 4 (Ten n. 1982 ); Holt v. State , 357 S.W .2d 57, 61 (Tenn . 1962).



       In its review of th e eviden ce, an ap pellate court must afford the State “the

strongest legitim ate view of the e videnc e as w ell as all reasonable and legitimate

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. 197 8)). The cou rt may not “re-

weigh or re-e valuate the evid ence” in th e record below, Evans, 838 S.W.2d at

191 (Tenn. 1992) (citing Cabbage, 571 S.W.2d at 836)); likewise, should the

reviewing court find p articular co nflicts in the trial te stimony, the court must

resolve them in favor of the jury verdict or tria l court judg ment. Tug gle, 639

S.W .2d at 914 .




                                          -3-
          As noted above, Defendant argues that the evid ence w as insufficie nt to

convict him of felo ny mur der bec ause it wa s insufficien t to find him guilty of the

underlying felony; he does not contest the sufficiency of evidence brought by the

State to demonstrate that he killed the victim. Precisely, Defendant maintains

that the jury could not have found that he committed a substantial step toward

attempted robbery, in satisfaction of Tennessee Code Annotated § 39-12-

101(a)(3). In his words, the “fact-finder does not enjoy untrammeled discretion

in deciding whether a de fendant’s acts co nstitute a substan tial step”; rather, “that

discretion is sharply limited” by the statu tory requireme nt that a defend ant’s entire

cours e of co nduc t be co rrobo rative o f the inte nt to co mm it a felony. See Tenn.

Code Ann. § 39-12-101(b). Because he did not actually rob the victim, Defendant

argue s, his entire course of action was not corroborative of the intent to rob the

victim.



          The proof at trial concerning attempted robbery, much of which derives

from Defe ndan t’s own testim ony, sh owed that Llo yd Fe rrell, Defe ndan t’s supplier

of drugs, confronted Defendant with a proposal: to rob Ferrell’s elderly aunt and

uncle and s plit the proc eeds. Ferrell informed him that the couple had saved as

much as possibly $150,000, all of which was hidden in their home. Ferrell further

claimed that his aunt and uncle had neither a telepho ne nor a gun. He suggested

that Defendant break into the house, bind the couple with duct tape, and rob

them. Initially, Defendant resisted the idea and his girlfriend begged him not to

become involved in the plan; howe ver, Ferrell ultimately persuaded him to agree.




                                          -4-
      In the early morning hours of Marc h 27, 1 996, F errell picked up Defendant

in his car an d gave h im four ten -milligram tablets of V alium, which Defendant

ingested. Defendant wore camouflage clothing and a dark ski mask that covered

his face; a nd he carried a loaded .380 calibe r pistol p rovide d to him by Fer rell.

Ferre ll left him at the house before daylight, but Defendant chose to wait behind

a tree in the ya rd until daw n. Unbe known st to Defe ndant, the victim’s wife

spotted Defendant hiding behind the tree and w aken ed he r husb and. T he victim

obtained his shotgun just before Defendant entered the home; and when

Defendant forcibly entered by bre aking dow n the d oor of th e hou se, the victim

pointed the shotg un at him . Upon s eeing the victim with a gun, D efendan t left

immed iately; but he fired five shots into the home, one of which killed the victim.

Defen dant wa s shortly tak en into cu stody clos e to the crim e scen e.



      Our supreme court recently interpreted “substantial step toward the

commission of the offense” within the meaning of Tennessee Code Annotated §

39-12-1 01(a)(3) and (b). See State v. Reeves, 916 S.W.2d 909 (Tenn. 1996);

see also State v. Billie Austin , C.C.A. No. 03C01-9601-CC-00023, Cumberland

County, (Tenn. Crim . App., Knoxville, Feb. 11 , 1997), perm. to appeal denied

(Tenn. 1997) (following Reeves to find a substantial step where defendant poured

kerosene on and aro und victim and attempted to ligh t cigarette lighter). But see

State v. Charles D. Fowler, C.C.A. N o. 01C 01-960 8-CC -00363 , Coffee C ounty

(Tenn. Crim. App., Nashville, Dec. 17, 1997) (finding no substantial step tow ard

“sexual penetration” for attempted statutory ra pe wh ere de fenda nt me rely pa id

mone y and exp ressed desire to h ave sex w ith boy).




                                         -5-
       In Reeves, two twe lve-yea r-old gir ls agre ed ove r the tele phon e to kill the ir

teacher with poison—a plan which was communicated with another schoolmate.

Reeves, 916 S.W .2d at 9 10. O ne of th e girls brought rat poison to school in her

purse, and both took the purse to their teac her’s des k. Id. The teacher entered

the room and observed the girls leaning over her desk; they then returned to their

seats. Id. Although the girls had not placed the poison into h er drink, the y left

the purse besid e the te ache r’s coffe e cup and th e pois on wa s later d iscovered

in the purs e. Id.



       The Reeves court concluded that the actions constituted a substantial step

toward commission of second degree murder and held that

       when an actor possesses materials to be used in the commission of
       a crime, at or near the scene of the crime, and where the
       possession of those materials can serve no lawful purpose of the
       actor under the circumstances, the jury is entitled, but not required,
       to find that the actor ha s taken a “substantial step” toward the
       commission of the crime if such action is strongly corroborative of
       the actor’s overall criminal purpose.

Id. at 914 . The s uprem e cou rt recog nized that the langu age o f this sta te’s

“attemp t” statute is derive d from the Mo del Pe nal Co de (M PC); a nd alth ough it

spec ifically declined to adopt the interpretations of “substantial step” contained

within the text of the MPC, the court conspicuously relied upon two when

fashioning the Reeves holding. These interpretations are pertinent in this case

as we ll:

       Conduct shall not b e held to c onstitute a substa ntial step . . . unless
       it is strongly corroborative of the actor’s criminal purpose. Without
       negativing the sufficiency of other c ondu ct, the fo llowing , if strong ly
       corroborative of the actor’s crim inal pu rpose , shall n ot be h eld
       insufficient as a matter of law:
                ...
                (e) possession of materials to be employed in the commission
       of the crime, which are specially designed for such unlawful use or
       which can se rve no lawful purpose of the actor under the

                                           -6-
       circum stance s;
             (f) posse ssion, co llection or fab rication of mate rials to be
       employed in the commission of the crime, at or near the place
       contemplated for its commission, where such possession, collection
       or fabrication serves no lawful purpose of the actor under the
       circumstances.

Model Pe nal Code § 5.01(2)(e)-(f).



       In the case at bar, Defendant admitted to carrying a loaded .380 weapon

in furtheran ce of his inte nt to rob— to frighte n the vic tim into subm ission . He he ld

the gun in his ha nd as he bro ke do wn the door to enter th e victim ’s home, and he

ultima tely used the gun. Furthermore, Defendant carried duct tape in his pocket

for the specific purp ose of binding the victim and his wife in furtherance of the

intended robbery. In light of the Defendant’s statements regarding the duct tape,

we need not hypothesize whethe r he could have possessed it for some lawful

purpose—he has ad mitted his objective. W e conc lude that a jury was e ntitled to

find that Defendant committed a substantial step toward the commission of

robbery. See State v. Mack Devaney, C.C.A. No. 03C01-9407-CR-00246, Roane

Coun ty (Tenn. Crim. App., Knoxville, Sept. 9, 1996), perm. to appeal denied

(Tenn. 1997) (jury could find substantial step where defendan t wrote “hold-up

note,” carried gun, wore trenchcoat and dark glasses, and waited at door of

jewelry store).



       Our a nalysis need not end here, however, because the facts of this case

provide abundan t support for this conc lusion. Two o ther factors cited by the

drafters of the Model Penal Co de that evince a substantial step tow ard

commission of a felo ny are prese nt in this case as well: “lying in wait, searching

for or follow ing the conte mpla ted victim of the crime,” a nd “unla wful entry o f a



                                            -7-
structu re, veh icle or e nclos ure in which it is contemplated that the crime will be

comm itted.” Mode l Penal C ode § 5 .01(2)(a), (d ). Here, Defendant emerged from

the car be fore da wn an d waite d beh ind a tre e in the victim’s backyard for a period

of time until daylight in a dark ski mask. 1 He then drew his weapon, broke down

the door of the home, and entered. This is additional evidence by which a trier

of fact could find that Defendant took a substantial step toward the commission

of robbe ry.



       Defendant argues that although such a finding by the jury “would appear

to be con sonan t with the policy considerations outlined in Reeves,” he did not, in

fact, take that substantial step because his “entire course of action” was not

“corroborative of the intent” to rob, as required by Tennessee Code Annotated §

39-12-101 (b). W e cannot accept this argument. Defendant admits in his brief

to this Court that he possessed the intent to rob prior to and after entering the

victim’s home. However, Defendant argues that because he turned and ran away

upon encountering the victim with a sho tgun, rather than c ontinuing the rob bery

or returning and re -entering the home, he “abandoned his plan to commit the

robbery at that poin t.” We disagree and co nclude that Defe ndant d oes not

insulate himself from committing a “substantial step” by taking an affirma tive self-

preservation action. Even when a person fails to actually complete the felony for

voluntary reasons, such conduct does not preclude a completed course of action

represe nting an in choate crime.




1
 Defendant testified that he waited until dawn so that he would not cause the victim or his
wife to suffer a heart attack. His “good intentions” are of no consequence here. This factor
demonstrates that Defendant spent a period of time contemplating the felony and did not
abandon the act.

                                              -8-
      Although the term “substantial step” has not been interpreted exhau stively

by the courts of this state, we believe that, in addition to the foregoing analysis,

we “know it when [we] see it.” See Jaco bellis v. Ohio , 378 U.S. 184, 197 (1964)

(Stewa rt, J., concu rring). W e believe we cle arly see it here. D efend ant in th is

case too k a subs tantial step toward th e com mission of robbe ry.



      The jud gmen t of the trial cou rt is affirmed .




                                  _______________________________
                                  DAVID H. WELLES, JUDGE



CONCUR:



__________________________
PAUL G. SUMMERS, JUDGE



__________________________
JOE E. RILEY, JUDGE




                                          -9-
