             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                     AT JACKSON

                                 OCTOBER 1999 SESSION          FILED
                                                              December 20, 1999

STATE OF TENNESSEE,                      )                    Cecil Crowson, Jr.
                                                             Appellate Court Clerk
                                         )C.C.A. NO. W1999-01920-CCA-R3-CD
             Appellee,                   )
                                         )     HENRY COUNTY
VS.                                      )
                                         )     HON. JULIAN P. GUINN,
STEVEN ANDREW WHITE,                     )     JUDGE
                                         )
             Appellant.                  )     (First-Degree Murder)



FOR THE APPELLANT:                             FOR THE APPELLEE:


GUY WILKINSON                                  PAUL G. SUMMERS
District Public Defender                       Attorney General & Reporter

W. JEFFERY FAGAN                               R. STEPHEN JOBE
Asst. District Public Defender                 Asst. Attorney General
117 North Forrest Ave.                         Cordell Hull Bldg., 2nd Fl.
Camden, TN 38320                               425 Fifth Ave., North
                                               Nashville, TN 37243-0493

                                               ROBERT RADFORD
                                               District Attorney General

                                               STEVE GARRETT
                                               Asst. District Attorney General
                                               P.O. Box 686
                                               Huntingdon, TN 38344




OPINION FILED:



AFFIRMED


JOHN H. PEAY,
Judge
                                      OPINION


              The defendant was found guilty by a jury of first-degree murder and

sentenced to life imprisonment. The defendant’s subsequent motion for a new trial was
overruled by the trial court. The defendant now appeals and contends that the evidence

is insufficient to support his conviction. After a review of the record and applicable law,

we find no merit to the defendant’s contentions and thus affirm the judgment of the trial
court.



              The State’s proof at trial revealed that on February 27, 1998, the defendant

drove a group of adolescents to a local skating rink. After dropping off several of the

passengers, the defendant, Carl Denton, and Brian Beecham proceeded toward a local

movie theater. After a brief stop at the movie theater, the defendant drove past the

victim’s place of employment, Fuel Pro, and then to a nearby cemetery. Mr. Denton, a

foster brother of the defendant, testified that after they passed Fuel Pro and saw that the

victim was working, the defendant stated that he was going to shoot the victim. According
to Mr. Denton, the defendant had reiterated his intent to hurt or kill the victim for several
months prior to that evening. Mr. Beecham, also a foster brother of the defendant,

testified that the defendant told him at school earlier that day that he was going to “take
care of business tonight” followed by “bang bang bang.” In addition, Crystal Roberts, the
defendant’s girlfriend at the time, testified that earlier in the month the defendant stated

that he was going to kill the victim with a gun that was under a seat in his car. The
defendant further told Ms. Roberts that he obtained the gun from his father and that his
father wanted him to kill the victim.       The defendant alleged that the victim was

continuously beating Tabitha, the defendant’s cousin and the victim’s adopted daughter,
and her mother, Shirley Jean, the victim’s wife.



              According to Mr. Beecham, while en route to the skating rink, the defendant

mentioned a bag in between the car seats with a gun in it. The defendant told Mr.

Beecham he was “going to do it.” When Mr. Beecham asked the defendant to drop him

off, the defendant asked him if he was getting scared. Mr. Beecham replied that he


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wanted to leave and the defendant subsequently took him to the skating rink and let him

out of the van.



              After leaving Mr. Beecham at the skating rink, the defendant and Mr.

Denton returned to the cemetery and parked the van. Mr. Denton testified that the

defendant started talking about how he was going to kill the victim. The defendant then
retrieved a bag from inside the van and pulled out camouflage clothing, gloves, and

shells. The defendant changed into the camouflaged clothing, put a stocking over his

face, and left the van at approximately 7:50 p.m. to 8:00 p.m. The defendant was wearing
a pair of black and white Reebok tennis shoes. At approximately 8:32 p.m., Mr. Denton

heard two gunshots. At 8:35 p.m., Mr. Denton heard the defendant running toward the

van breathing heavily. The defendant took off the camouflaged clothing, changed into
casual clothing, and put the camouflaged clothing behind a nearby tombstone. After the

defendant drove away from the cemetery, he told Mr. Denton, “I did it.” He then

proceeded to describe the shooting. He told Mr. Denton that he had shot the victim in the

back of the head, the victim fell to the ground, and he had shot him again in the back of

the head.


              The defendant and Mr. Denton then returned to the skating rink. Ms.

Roberts testified that she had seen the defendant after he had returned to the skating
rink. She testified that the defendant was acting nervous, shaking violently, sweating and

“just not his self.” Mr. Beecham testified that, upon returning to the skating rink, the

defendant had said that he had taken care of business and shook Mr. Beecham’s hand.
According to Mr. Beecham, the defendant was paranoid and perspiring. When Mr.

Beecham asked the defendant what he had done with regard to his clothing and the gun,

the defendant said that the clothing was behind a tombstone and indicated with a hand

gesture that he had thrown the gun somewhere. Another witness, Joshua Henson, was
also present at the skating rink when the defendant returned. Mr. Henson testified that

earlier in the week the defendant had said he was going to move to Florida because he

had “some business to take care of about a man.” The defendant stated that this man
had been hurting the defendant’s family. Mr. Henson testified that at the skating rink,


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the defendant had pulled him aside and said he had just done it. Mr. Henson asked the

defendant if he had just killed “him” and the defendant responded affirmatively.

According to Mr. Henson, the defendant appeared calm.


              The defendant and Mr. Denton subsequently left the skating rink and

proceeded to the defendant’s father’s trailer. According to Mr. Denton, the defendant’s
father, J. B. White, arrived within minutes. Mr. White then took the defendant and Mr.

Denton into a bedroom and the defendant told Mr. White the victim was dead. According

to Mr. Denton, the defendant was to receive a 9mm handgun and one thousand dollars
($1000) from Mr. White for the murder. Mr. White told the defendant and Mr. Denton to

go to Murray as an alibi. They took Mr. White’s truck and went to the Wal-Mart in Murray

and walked around for awhile. On their way back to Mr. White’s trailer, the defendant told
Mr. Denton that this was an experience he had never felt before and his ears were still

ringing. When they returned to the trailer, Mr. White told Mr. Denton to retrieve the

defendant’s tennis shoes from the van and to put them in the creek behind the trailer.

Mr. Denton buried the shoes behind the trailer and later drew a map from which the

police were able to retrieve the shoes. Mr. Denton testified that he had found out later
that the defendant had gone back to the cemetery to retrieve the camouflage clothing.



              Jason Mobley, a friend of the defendant, testified that on February 28,
1998, the day after the murder, the defendant had told him that he had shot the victim.

The defendant told Mr. Mobley that he had parked somewhere behind Fuel Pro, walked

down a hill behind the station, stood behind the station for approximately one hour,
waited for a customer to leave, and then followed the victim inside the station. The

defendant further stated that he had shot the victim twice. The defendant later admitted

to Mr. Mobley that he had put the clothes and the weapon used in the commission of the

offense behind a tombstone.


              Mr. Henson testified that on the day after the murder he had seen the

defendant at Patriot’s Corner and the defendant had stated he “had to go get rid of some
stuff.” The Monday following the murder, the defendant approached Mr. Henson at


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school and asked whether he was aware of the reward being offered with regard to the

victim’s murder. When Mr. Henson responded affirmatively, the defendant stated, “W ell,

I’ll tell you one thing, I’ve done it once, I won’t be afraid to do it again.”


               At trial, the State presented two witnesses that were at Fuel Pro on the night

of the murder. These witnesses established the victim’s time of death between 8:30 p.m.
and 8:40 p.m. The owner of Fuel Pro testified that an account had been taken of the

money and receipts from that evening and no money had been stolen.



               Testimony of police officers at the scene on the night of the murder

established that footprints were discovered behind Fuel Pro leading to the station at a

walk and leaving the station at a run. Subsequent testing of the design of these footprints
revealed that six of the seven footprints were consistent with the size, shape, and tread

design of the pair of Reebok tennis shoes that the police found buried behind the

defendant’s residence with the help of a map drawn by Mr. Denton. The police also

found a significant amount of camouflage clothing and two guns, a revolver and a 9mm,

in the defendant’s residence. Donald Harman, a forensic scientist with TBI, testified that
the bullet fragments found in Fuel Pro and the bullet core and bullet jacket found in the

victim could have been fired from the revolver found in the defendant’s residence. Dr.

Wendy Gunther performed the victim’s autopsy and testified that the victim had died as
a result of a single gunshot wound to the back of his head. However, another bullet had

passed right in front of the victim’s eyes without striking him. This bullet left “stippling” on

the victim’s skin indicating that the gun was fired from a distance of a few inches to a few
feet. Dr. Gunther was unable to conclude the order in which the bullets were fired.



               The defendant did not testify and presented no other proof at trial.



               The defendant now challenges the sufficiency of the evidence for the first-

degree murder conviction. Specifically, the defendant points out that the investigation of

this case with regard to his own father’s involvement is ongoing. The defendant also
mentions that the murder weapon was never found, no one testified that they saw the


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defendant with a gun on the night of the murder, and no one saw the defendant shoot the

victim. Further, the defendant refers to discrepancies between the testimony of several

witnesses and the fact that evidence regarding footprints behind the Fuel Pro was not
conclusive.



               A defendant challenging the sufficiency of the proof has the burden of
illustrating to this Court why the evidence is insufficient to support the verdict returned by

the trier of fact in his or her case. This Court will not disturb a verdict of guilt for lack of

sufficient evidence unless the facts contained in the record and any inferences which
may be drawn from the facts are insufficient, as a matter of law, for a rational trier of fact

to find the defendant guilty beyond a reasonable doubt. State v. Tuggle, 639 S.W.2d

913, 914 (Tenn. 1982).


              When an accused challenges the sufficiency of the convicting evidence, we

must review the evidence in the light most favorable to the prosecution in determining

whether “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). We do not

reweigh or re-evaluate the evidence and are required to afford the State the strongest

legitimate view of the proof contained in the record as well as all reasonable and

legitimate inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d

832, 835 (Tenn. 1978).



              Questions concerning the credibility of witnesses, the weight and value to
be given to the evidence, as well as factual issues raised by the evidence are resolved

by the trier of fact, not this Court. Cabbage, 571 S.W.2d 832, 835. A guilty verdict

rendered by the jury and approved by the trial judge accredits the testimony of the

witnesses for the State, and a presumption of guilt replaces the presumption of
innocence. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).



              We note that guilt may be predicated upon direct evidence, circumstantial
evidence, or a combination of direct and circumstantial evidence. See State v. Carey,


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914 S.W.2d 93, 95 (Tenn. Crim. App. 1995); see also State v. Brown, 836 S.W.2d 530,

541 (Tenn. 1992) (holding that the necessary elements of first-degree murder may be

shown by circumstantial evidence). In addition, 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.” Marable v. State, 313 S.W.2d 451, 457

(Tenn. 1958); State v. Coury, 697 S.W.2d 373, 377 (Tenn. Crim. App. 1985); Pruitt v.

State, 460 S.W.2d 385, 391 (Tenn. Crim. App. 1970).



              In the case at bar, with no eyewitnesses to the offense, a significant amount

of the evidence connecting the defendant with the victim’s murder is circumstantial.

However, looking at the facts in the light most favorable to the State, as is required on
appeal, we conclude that the evidence is more than sufficient to support the jury’s finding

of guilt beyond a reasonable doubt. There was evidence that the defendant believed the

victim was beating Tabitha, the defendant’s cousin, and Shirley Jean, Tabitha’s mother.

The defendant told Mr. Beecham and Mr. Henson he was going to “take care of” the

victim. The defendant told Ms. Roberts and Mr. Denton he was going to kill the victim.
On the night of the murder, the defendant told Mr. Beecham and Mr. Denton that he had

a gun in the van. After taking Mr. Beecham to the skating rink, the defendant drove to

a cemetery near Fuel Pro, changed clothing, put a stocking over his face, and left the
van. Mr. Denton heard two gunshots at 8:32 p.m. and two other witnesses placed the

victim’s death between 8:30 p.m. and 8:40 p.m. At 8:35 p.m., Mr. Denton heard the

defendant running toward the van. The defendant then hid the camouflaged clothing and
gun behind a tombstone. The defendant drove to the skating rink and subsequently told

Mr. Beecham and Mr. Henson that he had just killed the victim. The defendant later told

Mr. Denton that he had never experienced this kind of feeling before and his ears were

still ringing. The evidence indicated that the defendant was to receive one thousand
dollars and a 9mm from his father for the murder. The day after the murder, the

defendant told Mr. Mobley that he had killed the victim and proceeded to tell Mr. Mobley

the details of the murder. According to the defendant’s own statement to Mr. Mobley, he
parked somewhere behind Fuel Pro, walked down a hill, stood behind the station for


                                            7
about an hour, then followed the victim inside after a customer drove away. The

defendant stated that he had gone inside, shot the victim twice, and then had gone back

up the hill where Mr. Denton was waiting in the van. The footprints found behind Fuel Pro
on the night of the murder were consistent with the tread, shape and size of shoes found

buried behind the defendant’s residence. In addition, camouflaged clothing was found

inside the defendant’s residence along with a revolver that could have fired the bullets
used in the victim’s murder.



                  Based upon the facts in the record and the inferences which could be drawn
therefrom, the jury could and did find that the defendant was guilty of first-degree murder.

The defendant has failed to demonstrate that the evidence is insufficient to support the

jury’s verdict.


                  Accordingly, the judgment of the court below is affirmed.




                                                    ______________________________
                                                    JOHN H. PEAY, Judge


CONCUR:



______________________________
NORMA M. OGLE, Judge


______________________________
ALAN E. GLENN, Judge




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