        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs February 15, 2011

                STATE OF TENNESSEE v. DEMETRIA NANCE

                   Appeal from the Criminal Court for Knox County
                         No. 90864    Bob R. McGee, Judge




                  No. E2010-00955-CCA-R3-CD - Filed May 20, 2011


Following a jury trial, the Defendant, Demetria Nance, was convicted of one count of second
degree murder, a Class A felony, and one count of possession of a deadly weapon, a Class
E felony. See Tenn. Code Ann. §§ 39-13-210(c), -17-1307(d)(3). In this appeal, she raises
the following issues for our review: (1) The State presented insufficient evidence to support
her conviction for second degree murder; and (2) The trial court erred by not declaring a
mistrial after a writing from the Defendant to the victim, which had not been given to the
defense during pre-trial discovery, was mentioned in front of the jury. After our review, we
affirm the judgments of the trial court but remand for entry of a corrected judgment for the
Defendant’s conviction of possession of a deadly weapon.

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

D AVID H. W ELLES, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL and
R OBERT W. W EDEMEYER, JJ,, joined.

Bruce Poston, Knoxville, Tennessee, for the appellant, Demetria Nance.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney
General; Randall E. Nichols, District Attorney General; and Kevin Allen, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                          OPINION

                                   Factual Background
       The victim, Aaron (“Nagy”) Benton, III, was shot and killed on December 11, 2008,
by the Defendant, his on-again-off-again girlfriend. In February 2009, a Knox County grand
jury returned an indictment charging the Defendant with first degree murder, especially
aggravated stalking, aggravated stalking, employing a firearm during a dangerous felony, and
possession of a deadly weapon. The Defendant’s trial was held November 9-12, 2009.

        Shawna Griffin, the victim’s sister, testified that her brother and the Defendant dated
for about two years. She said that their relationship “wasn’t good,” and she stated that, one
time when they broke up, the Defendant would not let the victim have his clothes back. She
said that, another time, the Defendant sprayed mace in the victim’s face. In December 2008,
the victim started avoiding the Defendant. The victim told his sister to tell the Defendant that
he was not at home when the Defendant called their house. Ms. Griffin recalled that, on the
morning of December 9, 2008, the victim told her that he “was done” with the Defendant.
She also said that the victim told her that he was tired of being “used” for money by the
Defendant. Ms. Griffin estimated that, in the days immediately before the victim was killed,
she saw the Defendant come around their neighborhood at least six times looking for him.
Regarding what the Defendant was going to do when she found the victim, Ms. Griffin
testified that the Defendant said, “I’m going to get him. Tell him I’m going to beat him up.”

        Around 8:00 or 8:30 a.m. on the morning of December 11, 2008, while Ms. Griffin
was lying on the couch and the victim was in his bedroom, their doorbell rang. Ms. Griffin
said that she told her brother, “[D]on’t get that door, you know it’s her,” and that the victim
replied, “[W]ell I’m just going to tell [sic] I’m done, I’m done.” Ms. Griffin testified that the
victim opened the door and that the Defendant came inside and said, “[W]hy you been
avoiding me? Why you ain’t called me?” Ms. Griffin stated that the victim replied, “I’m just
done.” At that point, the Defendant asked the victim if they could go outside and talk about
it, and he complied. Ms. Griffin overheard the victim tell the Defendant that he was tired of
giving her money and that he did not “want to do this no more.” She said that the victim then
told her to call the police and, as Ms. Griffin was walking to the door, she heard the
Defendant say, “[Y]ou don’t want to be with me?” and then she heard three gunshots. When
Ms. Griffin opened the door, her brother fell onto the floor inside their house. She said that
when she opened the door, the Defendant was already “at her car pulling off.”

       Deante Hall, a neighbor and childhood friend of the victim, testified that the
relationship between the victim and the Defendant was “off and on a lot” and that the victim
told him that “they fought a lot.” Mr. Hall said that, on one occasion, the victim showed him
a stab wound in his leg and said that the Defendant stabbed him in order to prevent him from

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going home. Mr. Hall testified that he spoke with the victim on December 8, 2008, and that
the victim said that he had broken up with the Defendant. Because the Defendant often
drove through their neighborhood looking for the victim, he asked Mr. Hall to watch for the
Defendant and let him know if she was coming by. Mr. Hall said that, between December
8, 2008, and December 11, 2008, he saw the Defendant drive through their neighborhood
about seven or eight times. He said that sometimes she would park near some bushes down
the street and watch the victim’s house. One time, the Defendant asked Mr. Hall where the
victim was and he told her that he thought the victim was with her. The Defendant then told
Mr. Hall that, when she found the victim, they were “going to fight.”

        Dr. Darinka Mileusnic-Polchan, chief medical examiner for Knox County, testified
that she performed an autopsy on the victim. She concluded that the victim’s manner of
death was homicide and that his cause of death was multiple gunshot wounds. Dr.
Mileusnic-Polchan described that the victim had sustained three gunshot wounds: one in the
right side of his lower back, one in his right buttock, and one in his right thigh. She stated
that the later two gunshot wounds were “through-and-through,” meaning that the bullet also
exited the victim’s body. Dr. Mileusnic-Polchan testified that, from examining the wounds,
she concluded that all three bullets entered from the back-side of his body. She also stated
that, because she did not find evidence of soot or gunpowder residue, she believed the gun
was fired from a distance greater than two to three feet away from the victim.

       Joe Cox, a crime scene investigator with the Knoxville Police Department, testified
that he found four cartridge casings at the crime scene, which indicated to him that there
were four gunshots from a semi-automatic weapon.

        The Defendant testified that she had been robbed in the past and, as a result, she
applied for and obtained a concealed-gun carry permit in the summer of 2005 and, thereafter,
bought a Smith and Wesson nine millimeter handgun. She said that she always carried her
gun with her in her purse. The Defendant stated that, on December 11, 2008, after she had
not seen the victim for two days, she went over to his house and rang the doorbell. She said
that the victim let her in the house but that, shortly after, the two of them went outside to talk.
She recalled, “He told me that it was over. I just remember asking him why. I kept saying
why. He said he was through. He was tired.” The Defendant continued, “I asked him if we
could work it out. He said no.”

        The Defendant testified that the victim got up to go inside the house and shoved her
to the side. As the victim started to go in the door, the Defendant said that she took her gun
out of her purse and fired. The Defendant testified that she could not remember how many
times she fired because “[i]t happened so fast.” She claimed that she aimed at the victim’s
leg and was not trying to kill him. In fact, she said that she did not know that she had killed

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the victim until she saw it on the news. However, she did admit that she ran away
immediately after the shooting because she was scared.

       On cross-examination, the Defendant said that she threw her gun in a garbage
dumpster at a local housing project and then stayed with her cousin for a few days, rather
than going back to her apartment or her mother’s residence. Although she did not see the
victim fall down after she fired the gun, the Defendant testified that she knew she had hit him
because she was “a very good aim.” The Defendant acknowledged that she had taken an
eight-hour-long class in gun safety, but claimed that she “did not know that a person could
die from a shot to the leg.”

        The jury convicted the Defendant of second degree murder, a lesser-included offense
of first degree murder, and possession of a deadly weapon. The jury found the Defendant
not guilty of especially aggravated stalking, aggravated stalking, and employing a firearm
during a dangerous felony. The trial court sentenced the Defendant to concurrent terms of
eighteen years for second degree murder and two years for possession of a deadly weapon.
The Defendant now appeals.

                                          Analysis
       In this appeal, the Defendant presents the following issues for our review: (1) The
State presented insufficient evidence to support her conviction for second degree murder1 ;
and (2) The trial court erred by not declaring a mistrial after a writing from the Defendant
to the victim, which had not been given to the defense during pre-trial discovery, was
mentioned in front of the jury.

I. Sufficiency
       Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings of guilt in
criminal actions whether by the trial court or jury shall be set aside if the evidence is
insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt.”
A convicted criminal defendant who challenges the sufficiency of the evidence on appeal
bears the burden of demonstrating why the evidence is insufficient to support the verdict,
because a verdict of guilt destroys the presumption of innocence and imposes a presumption
of guilt. See State v. Evans, 108 S.W.3d 231, 237 (Tenn. 2003); State v. Carruthers, 35
S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This
Court must reject a convicted criminal defendant’s challenge to the sufficiency of the
evidence if, after considering the evidence in a light most favorable to the prosecution, we
determine that any rational trier of fact could have found the essential elements of the crime



       1
           She does not challenge her possession of a deadly weapon conviction on appeal.

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beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v. Hall,
8 S.W.3d 593, 599 (Tenn. 1999).

        On appeal, the State is entitled to the strongest legitimate view of the evidence and all
reasonable and legitimate inferences which may be drawn therefrom. See Carruthers, 35
S.W.3d at 558; Hall, 8 S.W.3d at 599. A guilty verdict by the trier of fact accredits the
testimony of the State’s witnesses and resolves all conflicts in the evidence in favor of the
prosecution’s theory. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Questions
about the credibility of witnesses, the weight and value of the evidence, as well as all factual
issues raised by the evidence are resolved by the trier of fact, and this Court will not re-weigh
or re-evaluate the evidence. See Evans, 108 S.W.3d at 236; Bland, 958 S.W.2d at 659. Nor
will this Court substitute its own inferences drawn from circumstantial evidence for those
drawn by the trier of fact. See Evans, 108 S.W.3d at 236-37; Carruthers, 35 S.W.3d at 557.

      Tennessee Code Annotated section 39-13-210(a)(1) provides that second degree
murder is “[a] knowing killing of another.” “Knowing” is defined as follows:

       “Knowing” refers to a person who acts knowingly with respect to the conduct
       or to circumstances surrounding the conduct when the person is aware of the
       nature of the conduct or that the circumstances exist. 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. § 39-11-302(b). Our supreme court has explained that second degree
murder is a “result-of-conduct offense” and that “[t]he statute focuses purely on the result
and punishes an actor who knowingly causes another’s death.” State v. Ducker, 27 S.W.3d
889, 896 (Tenn. 2000). Additionally, our statutes provide that the requirement of
“knowingly” is met if it is established that the person acted intentionally. See Tenn. Code
Ann. § 39-11-301(a)(2); see also Tenn. Code Ann. § 39-11-302(a) (“‘Intentional’ refers to
a person who acts intentionally with respect to the nature of the conduct or to a result of the
conduct when it is the person’s conscious objective or desire to engage in the conduct or
cause the result.”).

       In the light most favorable to the State, we conclude that the jury was presented with
sufficient evidence to convict the Defendant of second degree murder beyond a reasonable
doubt. The proof at trial established that the Defendant went over to the victim’s house to
look for him, as he had been avoiding her for a couple of days. The victim answered the door
and told the Defendant that he wanted to end their relationship. Ms. Griffin testified that she
heard the Defendant reply, “[Y]ou don’t want to be with me?” and then she heard three
gunshots. The Defendant admitted that, as the victim was walking back into the house, she

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pulled out her handgun from her purse and fired it at the victim. The Defendant testified that
she could not remember how many times she fired because “[i]t happened so fast.” She also
admitted that, although she did not see the victim fall down after she fired the gun, she knew
she had hit him because she was “a very good aim.” Dr. Mileusnic-Polchan testified that the
victim sustained three gunshot wounds, all of which entered from the victim’s back-side. We
conclude that the State presented sufficient evidence for a rational trier of fact to conclude
that the Defendant was aware that, when she shot at the victim multiple times, her conduct
was reasonably certain to cause his death. See also State v. Ely, 48 S.W.3d 710, 723-24
(Tenn. 2001) (affirming the defendant’s conviction for second degree murder and stating,
“The evidence shows that the defendant aimed and fired a handgun in the general direction
of a van containing three people. Such conduct clearly falls within the definition of knowing
conduct because [the defendant] had to be aware that he was reasonably certain to strike and
kill one of those people.”). The Defendant is not entitled to relief on this issue.

II. Mistrial
      During the State’s cross-examination of the Defendant, the following transpired:

            [Prosecutor]: But your relationship you said—in that relationship you
       said—you told this jury that there was never any threatening behavior, correct?

              [The Defendant]: That’s correct. There was none.

              [Prosecutor]: You never threatened him with any violence. Is that what
       you told this jury?

              [The Defendant]: That’s correct. I never did.

             [Prosecutor]: Okay. So would it be fair to say that you have never told
       Aaron that if he spent the night out that you could punch him in the face?

              [The Defendant]: I’ve never said that.

              [Prosecutor]: How about in writing?

At that time, defense counsel objected because the State had not turned over this writing
during discovery, and a hearing was conducted outside the presence of the jury. The trial
court sustained the Defendant’s objection to the admissibility of the written statement but
denied her motion for a mistrial and instructed the jury as follows:




                                             -6-
       Ladies and gentlemen of the jury, right before you left, a reference was made
       to a writing. The [c]ourt has the obligation of applying the Rules of Evidence
       to determine what’s admissible and what’s not. That will be brought up again
       in your instructions. That is not a matter for you to be concerned with.
       You—you are to receive all of the evidence that is legally admissible and
       you’re not to worry about anything else. So just—whatever the writing was
       is not going to be part of the case. So just don’t consider it for any purpose at
       all. And I know you’re smart enough to do that. Don’t—don’t worry about
       what—what the writing might have contained. It’s—it’s not for you. Just
       make your decision entirely upon the evidence that is presented to you from
       the stand.

The Defendant asserts that, because the State questioned her about a writing that was not
provided in discovery, the trial court erred by not declaring a mistrial.

       “A mistrial is usually appropriate in a criminal case only where there is a ‘manifest
necessity.’” State v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996) (quoting
Arnold v. State, 563 S.W.2d 792, 794 (Tenn. Crim. App. 1977)). “The purpose for declaring
a mistrial is to correct damage done to the judicial process when some event has occurred
which precludes an impartial verdict.” Id. An abstract formula should not be applied
mechanically in determining whether a mistrial was necessary, and all relevant circumstances
should be taken into account. State v. Mounce, 859 S.W.2d 319, 322 (Tenn. 1993). Whether
a mistrial should be granted is a determination left to the sound discretion of the trial court.
State v. Reid, 164 S.W.3d 286, 342 (citing State v. Smith, 871 S.W.2d 667, 672 (Tenn.
1994)). The trial court’s decision should not be overturned absent an abuse of discretion.
Id. Additionally, we note that the party arguing that a mistrial should have been granted
bears the burden of establishing its necessity. Id. (citing Williams, 929 S.W.2d at 388).

       Although we do not condone the actions of the prosecutor, we conclude that the trial
court did not abuse its discretion by failing to declare a mistrial. The State asked only one
question that referenced the writing, and defense counsel promptly objected before his client
could answer. Moreover, the trial court instructed the jury to disregard the reference to the
writing, and “[j]uries are presumed to follow the trial court’s instructions.” State v. Banks,
271 S.W.3d 90, 134 (Tenn. 2008). We conclude that, given the circumstances presented in
this case, there was not a manifest necessity for the trial court to declare mistrial. The
Defendant is not entitled to relief on this issue.

III. Corrected Judgment Form
      During our review of the record, we noticed that the statute section listed on the
Defendant’s judgment form for her conviction of possession of a deadly weapon is incorrect.

                                              -7-
The Defendant’s indictment for this count lists Tennessee Code Annotated section 39-17-
1307. However, even though the jury convicted the Defendant for the indicted offense on
this count, the judgment form states that the Defendant was charged with a Class C felony,
but was convicted of a Class E felony, and lists Tennessee Code Annotated section 39-17-
1324 as the statute under which she was convicted. Further leading us to the conclusion that
the judgment form is incorrect is the fact that the trial court sentenced the Defendant within
the range for a Class E felony, which would be correct for a conviction under section 39-17-
1307(d)(2), but incorrect for a conviction under section 39-17-1324. Therefore, we remand
this case to the trial court so that the judgment for the Defendant’s conviction of possession
of a deadly weapon may be corrected to reflect the proper code section—Tennessee Code
Annotated section 39-17-1307(d)(2).

                                        Conclusion
       Based on the foregoing authorities and reasoning, we affirm the judgments of the trial
court but remand for entry of a corrected judgment form for the Defendant’s conviction of
possession of a deadly weapon.




                                                   _________________________________
                                                   DAVID H. WELLES, JUDGE




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