         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs January 10, 2001

                    STATE OF TENNESSEE v. ROBERT ERVIN

                Direct Appeal from the Circuit Court for Lauderdale County
                         No. 6710    Jon Kerry Blackwood, Judge



                   No. W2000-01035-CCA-R3-CD - Filed January 31, 2001


Robert Ervin, also known as Muhammad Jabbar, was convicted of attempted second degree murder
and sentenced to twenty-five years in the Tennessee Department of Correction. On appeal, Ervin
raises one issue for our review: Whether the evidence produced at trial was sufficient to support the
verdict. After review, we find the evidence sufficient and affirm the judgment.

                Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed.

DAVID G. HAYES, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
ALAN E. GLENN, JJ., joined.

Gary F. Antrican, District Public Defender, Somerville, Tennessee, for the Appellant, Robert Ervin.

Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Lucian D.
Geise, Assistant Attorney General, Elizabeth T. Rice, District Attorney General, and Tracey Brewer,
Assistant District Attorney General, for the Appellee, State of Tennessee.


                                            OPINION

       In January of 1999, a Lauderdale County Grand Jury returned an indictment against the
Appellant, Robert Ervin, charging him with attempted first degree murder. Following a jury trial,
the Appellant was found guilty of attempted second degree murder. The trial court sentenced the
Appellant as a persistent offender to twenty-five years in the Tennessee Department of Correction
and ordered his sentence be served consecutive to sentences he was already serving. On appeal, the
Appellant argues that the evidence produced at trial was insufficient to support the verdict. After
review, we find no error. Therefore, the judgment of the Lauderdale County Circuit Court is
affirmed.



                                           Background
       On the date of June 6, 1998, the Appellant was an inmate at the West Tennessee State Prison
where he was serving multiple sentences stemming from his convictions for first degree murder, two
counts of aggravated kidnapping, eight counts of robbery with a deadly weapon, two counts of
burglary, and one count of assault with intent to commit robbery. On that same day, at
approximately 9:00 A.M., correctional officers, Gregory Shaw and Patricia Taylor, were escorting
the Appellant from his cell to the shower. As is typically done, when the Appellant entered the open
shower stall, his handcuffs and leg shackles were removed and the shower door was locked from the
outside. Since this particular pod had three showers, the two officers returned to retrieve the next
showering prisoner, Mark Selby.

        As the two officers and Selby approached the shower stall occupied by the Appellant, the
Appellant suddenly bolted out of the stall, brandishing a shank,1 and began stabbing Selby. Because
Selby was still in handcuffs and shackles, he fell to the floor and was unable to escape the attack.
After stabbing Selby five to seven times, the Appellant threw the shank down and returned to his
cell. Selby was taken to a nearby hospital where he was treated for multiple stab wounds to his back
and head.

        At trial, the Appellant testified that it was Selby who instigated the incident. According to
the Appellant, Selby charged at him with the shank and the Appellant somehow managed to avoid
the attack, removed the weapon from Selby, and then used it to stab Selby in self-defense. The
Appellant also testified that he and Selby had encountered disagreements in the past and most
recently had had a dispute over money prior to the stabbing incident. According to the Appellant,
Selby had previously lost a bet with the Appellant and had refused to pay him.

                                        I. Sufficiency of the Evidence

       The Appellant argues that the evidence produced at trial was insufficient to support his
conviction for attempted second degree murder. Specifically, he argues that the State presented “no
proof concerning an intent to kill [the victim] or intent to cause injuries serious enough so that death
could have reasonably been anticipated.”

         A jury conviction removes the presumption of innocence with which a defendant is cloaked
and replaces it with one of guilt so that, on appeal, a convicted defendant has the burden of
demonstrating that the evidence is insufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
In determining the sufficiency of the evidence, this Court does not reweigh or reevaluate the
evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Likewise, it is not the duty of this
Court to revisit questions of witness credibility on appeal, that function being within the province
of the trier of fact. See generally State v. Adkins, 786 S.W.2d 642, 646 (Tenn. 1990); State v.
Burlison, 868 S.W.2d 713, 718-19 (Tenn. Crim. App. 1993). Instead, the defendant must establish
that the evidence presented at trial was so deficient that no reasonable trier of fact could have found


         1
           The “sh ank,” an inmate-fashioned weapon, was described as a 10-inch, rod-like object. It had one sharp edge
and wa s covered on one end with material.

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the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
319, 99 S. Ct. 2781, 2789 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994), cert. denied,
513 U.S. 1086, 115 S. Ct. 743 (1995); Tenn. R. App. P. 13(e). Moreover, the State is entitled to the
strongest legitimate view of the evidence and all reasonable inferences which may be drawn
therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992), cert denied, 507 U.S. 954, 113 S. Ct.
1368 (1993).

         In the present case, the Appellant was convicted of attempted second degree murder. Second
degree murder is the "knowing killing of another." T ENN. CODE ANN . § 39-13-210(a)(1) (1997).
A person acts knowingly with respect to a result of the person's conduct when the person is aware
that the conduct is reasonably certain to cause the result. TENN. CODE ANN . § 39-11-106(a)(20)
(1997). Attempted second degree murder may be proven by showing that the defendant
"intentionally acted with the requisite culpability to commit the offense of murder in the second
degree" and the defendant "could have been convicted of murder in the second degree ... if he had
actually killed the victims." See State v. Dale Nolan, No. 01C01-9511-CC-00387 (Tenn. Crim. App.
at Nashville, Jun. 26, 1997), perm. to appeal denied, (Tenn. Mar. 2, 1998) (citations omitted). See
generally TENN. CODE ANN . § 39-12-101(a)(1), (2), (3) (1997). Whether the attempt to kill or
killing of one person by another occurs under circumstances which justifies the act under the doctrine
of self-defense, or is the result of some other motive, it remains a question of fact to be determined
by the jury under proper instructions and from consideration of all the evidence. The jury is not
obligated to believe the Appellant’s version of events as to self-defense. The issue of self-defense
in a murder or attempted murder prosecution is always a question of fact to be determined by the
trier of fact.

        In this case, Officer Shaw testified that the Appellant burst out of the shower displaying a
shank and immediately began attacking the victim who was still handcuffed and shackled. Although
the Appellant testified that he acted in self-defense, he admitted that he stabbed the victim at least
five to seven times in the back and head. Considering these factors, in the light most favorable to
the State, we find the evidence more than sufficient to support the jury's verdict of attempted second
degree murder, i.e., that the Appellant's conduct was reasonably certain to cause the victim's death,
based upon the use of a deadly weapon, the number of wounds inflicted, the seriousness of the
wounds and the Appellant’s past history of conflict with the victim. See TENN. CODE ANN . § 39-12-
101(a)(2); Tenn. R. App. P. 13(e). Thus, this issue is without merit.




                                          CONCLUSION



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       We conclude, as a matter of law, that the evidence presented is more than sufficient to
support a finding by the jury that the Appellant is guilty of attempted second degree murder. Tenn.
R. App. P. 13(e). The judgment of the Lauderdale County Circuit Court is affirmed.




                                                     ___________________________________
                                                     DAVID G. HAYES, JUDGE




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