           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE
                          August 2000 Session

          STATE OF TENNESSEE v. DAMON THEODORE MARSH

                    Appeal from the Criminal Court for Bedford County
                              No. 14091 Charles Lee, Judge




               No. M1999-01879-CCA-R3-CD - Filed September 29, 2000



Defendant, Damon Theodore Marsh, appeals his conviction for second degree murder, for which
he received a sentence of 23 years and 6 months. On appeal, the defendant raises the issue of
sufficiency of the evidence to support his conviction. We conclude that the issue raised by the
defendant in this appeal is without merit. The judgment of the trial court is affirmed.

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

JOE G. RILEY , J., delivered the opinion of the court, in which JERRY L. SMITH, J., AND L. TERRY
LAFFERTY, SENIOR J., joined.

Andrew Jackson Dearing, III, Assistant District Public Defender, Fayetteville, Tennessee (on appeal),
and William C. Roberts, Jr., Shelbyville, Tennessee (at trial), for the appellant, Damon Theodore
Marsh.

Paul G. Summers, Attorney General and Reporter; Clinton J. Morgan, Assistant Attorney General;
William Michael McCown, District Attorney General; and Robert G. Crigler, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                            OPINION

        Defendant, Damon Theodore Marsh, was convicted by a Bedford County jury of second
degree murder and received a sentence of 23 years and 6 months. The defendant challenges the
sufficiency of the evidence. Finding the evidence sufficient to support the guilty verdict, we affirm
the judgment of the trial court.
                                               FACTS

        The state’s proof showed that on the afternoon of October 3, 1996, the victim, Rochelle
Regina Marable, and the defendant were at the victim’s apartment. Around 4:00 p.m. that afternoon,
the victim’s mother went to the victim’s apartment to pick up the victim’s three-year-old son. The
victim was still alive at that time.

       The following morning the victim’s mother returned to the victim’s apartment with the
victim’s son, but no one answered the door. Later the victim’s brother, a Shelbyville police officer,
went to check on the victim. When the victim’s brother arrived at the apartment, he found the front
door locked, the back door unlocked, and no signs of forced entry. After entering the victim’s
apartment, he found the deceased victim lying on the couch covered in blood. The victim had been
beaten and stabbed numerous times.

         Officers subsequently discovered that a trash can just outside the victim’s apartment had blood
on its lid. When the officers went through the contents of the trash can, they found a knife and a beer
bottle. Both the knife and the beer bottle had the victim’s blood on them.

        On October 5, 1996, the defendant was questioned about the victim’s murder. The defendant
said that he had been at the victim’s apartment on the afternoon of October 3rd, and they had been
smoking crack cocaine that afternoon. The defendant stated, however, that he left the victim’s
apartment around 5 p.m. prior to her death.

        The defendant voluntarily returned less than an hour later and gave a second statement to the
officers. During the second statement the defendant stated that he left the victim’s apartment to buy
more crack cocaine and returned about an hour later, finding the victim. The defendant stated he was
not sure the victim was dead and lifted her. He said he then panicked and fled because he was afraid
the police would think he murdered the victim, and because he had crack cocaine in his possession.
He further stated that when he left the apartment, he threw away a beer bottle in the trash can outside
the apartment.

        Testimony established that on the evening the victim was murdered, the defendant was
wearing a pair of brown work boots and a pair of blue jeans with blood on them. Further, the
defendant was loaned a jacket by a friend on the morning the victim was murdered. A jacket similar
to the one loaned to the defendant was later found in a dumpster near the victim’s apartment with
human blood on it.

        A state expert on blood pattern interpretation examined the defendant’s blue jeans and boots.
There were 385 blood spatters on these items of a medium velocity impact that were consistent with
a beating or stabbing. The expert testified that the blue jeans and boots had to be at the scene of the
beating or stabbing, and that the blood stains were inconsistent with stains that would result from
merely picking up a bloody body.



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        The defendant attempted to establish through other witnesses that he was not the perpetrator,
and that there was another suspect who could have committed the offense. He further attempted to
establish that the blood found on his blue jeans and boots could have gotten there when he lifted the
victim’s body.

        The defendant was tried by a Bedford County jury and convicted of second degree murder.


                                  SUFFICIENCY OF EVIDENCE

       The defendant contends that the circumstantial evidence presented at trial was not sufficient
to support his conviction for second degree murder. We disagree.

A.      Standard of Review

        Although the evidence of defendant’s guilt is circumstantial in nature, circumstantial evidence
alone may be sufficient to support a conviction. State v. Tharpe, 726 S.W.2d 896, 899-900 (Tenn.
1987); State v. Buttrey, 756 S.W.2d 718, 721 (Tenn. Crim. App. 1988). However, for this to occur,
the circumstantial evidence must be consistent with guilt of the accused, inconsistent with innocence,
and must exclude every other reasonable theory or hypothesis except that of guilt. Tharpe, 726
S.W.2d at 900.

        Great weight is given to the jury verdict in a criminal trial; it accredits the state’s witnesses
and resolves all conflicts in favor of the state. State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994);
State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Therefore, while following the above guidelines,
this Court must remember that the jury decides the weight to be given to circumstantial evidence.
“The inferences to be drawn from such evidence, and the extent to which the circumstances are
consistent with guilt and inconsistent with innocence are questions . . . for the jury.” Marable v. State,
313 S.W.2d 451, 457 (Tenn. 1958)(citation omitted); see also State v. Gregory, 862 S.W.2d 574, 577
(Tenn. Crim. App. 1993).

B.      Analysis

       Second degree murder is defined as “a knowing killing of another.” Tenn. Code Ann. § 39-
13-210(a)(1). Viewing the evidence in a light most favorable to the state, the evidence is sufficient
to show a knowing killing by the defendant.

        The defendant made inconsistent statements to the police. In the first statement the defendant
did not mention returning to the victim’s apartment after he left at 5:00 p.m. Instead, the defendant
claimed he went elsewhere. In the second statement the defendant admitted he returned and found
the deceased victim.

        The defendant in his second statement said he threw away a beer bottle in the trash can as he


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left the apartment. Officers found a beer bottle and a knife in the trash can. Both had the victim’s
blood on them.

        On the evening the victim was murdered, the defendant was seen wearing blue jeans and work
boots, both of which had blood on them. The blood found on the blue jeans and right boot was the
victim’s blood. Although the defendant’s theory was that this blood got on him when he lifted the
victim to see if she was alive, testimony by an expert witness for the state established that the medium
velocity impact blood spatters could not have gotten on the defendant’s pants and boots as he claimed.
The jury obviously chose to believe the state’s expert witness and to disbelieve the defendant’s theory.
This was the jury’s prerogative, and we are not at liberty to conclude otherwise.

                                           CONCLUSION

       We conclude that while the evidence was circumstantial in this case, it was clearly sufficient
to support the defendant’s conviction for second degree murder. The judgment of the trial court is
affirmed.


                                                        ________________________
                                                        JOE G. RILEY, JUDGE




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