        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs July 12, 2016

                   STATE OF TENNESSEE v. JEREMY JONES

                    Appeal from the Criminal Court for Shelby County
                        No. 13-02332    Glenn Wright, Judge


             No. W2015-01528-CCA-R3-CD - Filed September 26, 2016



The defendant, Jeremy Jones, was convicted by a Shelby County Criminal Court jury of
attempted first degree murder, a Class A felony; aggravated assault, a Class C felony;
employment of a firearm during the commission of a dangerous felony, a Class C felony;
and convicted felon in possession of a firearm, a Class C felony. The trial court imposed
an effective term of twenty-five years in the Department of Correction. On appeal, he
argues: (1) the evidence is insufficient to sustain his convictions; (2) the trial court failed
to ensure an impartial jury venire; and (3) he is entitled to relief due to cumulative error
at trial. After review, we affirm the judgments of the trial court. However, we remand
for entry of a corrected judgment in Count 3 to check the box indicating that the
defendant was found guilty in that count.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
                 and Remanded for Entry of Corrected Judgment

ALAN E. GLENN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and ROBERT W. WEDEMEYER, JJ., joined.

Gregory D. Allen (on appeal); Arthur E. Horne and Carlissa Shaw (at trial), Memphis,
Tennessee, for the appellant, Jeremy Jones.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Carla Taylor,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                           FACTS
       The defendant was indicted for attempted first degree murder, aggravated assault,
employment of a firearm during the commission of a dangerous felony, and convicted
felon in possession of a firearm as a result of his shooting Marques Black, the victim, on
July 31, 2012, in an alley behind a neighborhood corner store.

       At trial, Yolanda Barbee testified that on July 31, 2012, she was visiting a friend,
Tracy Johnson, at an apartment complex in the Frayser area of Memphis. She was
walking to a nearby store with Ms. Johnson and another friend when they encountered
the defendant in a “cut” between the apartment complex and store. The defendant was
making comments and threats about no one else being allowed to sell drugs on the path
between the apartments and the store. Ms. Johnson asked the defendant specifically
about her cousin, the victim, and the defendant said he was not going to do anything to
the victim. Ms. Barbee and her friends continued on to the store and then returned to the
apartment complex. After returning from the store, they encountered the victim, who was
heading to the store. Ms. Barbee went into the apartment and had brought chairs out onto
the porch when she heard two gunshots and the victim calling out Ms. Johnson‟s name.
Ms. Barbee and Ms. Johnson ran through the “cut” to the victim and, while doing so, saw
the defendant walking to his truck with a gun in his hand.

       On cross-examination, Ms. Barbee admitted that she did not mention Ms. Johnson
in her statement to police after the shooting because Ms. Johnson “had two warrants for
her” and Ms. Barbee did not want to involve her. Ms. Barbee elaborated that Ms.
Johnson left her with the victim at the scene before the police arrived because of the
outstanding warrants.

        Marques Black, the victim, testified that in July 2012, he was living in an
apartment with his cousin, Tracy Johnson. On July 31, he was walking to a store
adjacent to the apartment complex when he encountered the defendant. The victim said
that the defendant told him that he could not enter the store unless he belonged to a
particular gang. The defendant also said to him that he “can‟t be over here selling weed
in my neighborhood.” The victim disregarded the statements and entered the store but,
upon exiting, was shot in the arm from behind by the defendant. The bullet entered his
left arm near the elbow and exited out the front of his arm. The victim turned around and
saw the defendant fire another shot, which struck him in the stomach and exited through
his back. The defendant then approached him, saying, “I‟m fixing to kill this nigger,”
and tried to shoot him again, this time in the head. However, the defendant‟s gun
jammed and he walked away “very slow, nonchalant, like he didn‟t even care.” The
victim called out for help after the defendant left.

      The victim testified that drugs were not mentioned during his interaction with the
defendant. He also said that, although he used marijuana, he did not sell drugs. He
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admitted that he was walking to the store that day to buy a cigar, which he intended to
use to smoke marijuana. The victim said that he was hospitalized for three weeks after
the shooting. He had three feet of intestines, his gallbladder, and half of his liver
removed. The left side of his body was paralyzed for a month and a half after the
shooting, and he still cannot run or ride a bicycle.

        Elmer Macklin, the maintenance supervisor for the apartment complex near where
the shooting occurred, testified that on July 31, 2012, he was working in an apartment
next to the store when he heard gunshots. He went outside and saw a young man walk by
him, place a gun in his belt in a “nonchalant” fashion, and get into a truck and leave. He
initially could not identify that person in the courtroom but was later able to with the aid
of his eyeglasses.

       On cross-examination, Mr. Macklin acknowledged that he gave the police a
statement after the incident in which he may have said that he saw the gunman and the
victim “hanging out” the day of the incident.

       Carrie Malone, a resident of the apartment complex near where the shooting
occurred, testified that on July 31, she was locking her door to leave when she saw the
victim and spoke to him. She then saw the defendant come up from behind the victim,
pull out a gun, and shoot the victim twice. She did not hear any words exchanged
between the two men. Ms. Malone recalled that a few minutes before the shooting, she
had stepped outside to check her mailbox and had seen the victim, the defendant, and
another individual standing together at the corner store. She could not hear their
conversation, but “[i]t didn‟t look like they was having any misunderstandings or
anything.” Ms. Malone recalled that, after the shooting, the defendant “walked to his
truck like he never did anything. Got in and pulled off, not fast or anything, took his
time.”

       Officer Sean Bolton of the Memphis Police Department responded to the scene,
where he found the victim lying on the ground in a “cut” between the store and apartment
complex. He waited for the paramedics to arrive and then conducted a preliminary
investigation to determine what had happened. He did not believe any of the witnesses
saw the actual shooting, but one witness saw the suspect walking away holding a pistol.
Another witness told him that the victim had been in an altercation with the suspect at the
corner store earlier in the day. Randy Reed, a paramedic with the Memphis Fire
Department, administered aid to the victim and transported him to the hospital.

       The defendant stipulated that he previously had been convicted of aggravated
assault.

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        The defendant also offered proof in the form of the testimony of Rachael Geiser, a
private investigator. Ms. Geiser stated that she interviewed Ms. Malone on December 17,
2013, and Ms. Malone told her that she was inside her apartment when she heard a
gunshot. Ms. Malone said that she then went outside at which point she saw the
defendant “follow behind the victim . . . and shoot him in the back. And then she said
that [the defendant] walked off and got into a truck and left the scene.” Ms. Geiser stated
that she also asked Ms. Malone about why she thought the shooting occurred, and Ms.
Malone responded that the victim “sold drugs at the store next door.”

       Following the conclusion of the proof, the jury convicted the defendant, as
charged, of attempted first degree murder, aggravated assault, employment of a firearm
during the commission of a dangerous felony, and convicted felon in possession of a
firearm. The trial court conducted a sentencing hearing, after which the court imposed a
sentence of fifteen years for the attempted first degree murder conviction, six years for
the aggravated assault conviction, ten years for the employment of a firearm conviction,
and three years for the felon in possession of a firearm conviction. The court aligned all
of the sentences concurrently except for the conviction for employment of a firearm,
which was aligned consecutively to the other sentences as required by statute, for a total
effective term of twenty-five years.

                                       ANALYSIS

                                      I. Sufficiency

       The defendant challenges the trial court‟s denial of his motion for judgment of
acquittal and the sufficiency of the evidence at trial. Although worded differently, each
of these issues is essentially a challenge to the sufficiency of the convicting evidence, and
we thus combine the issues.

       When the sufficiency of the convicting evidence is challenged, the relevant
question of the reviewing court is “whether, after viewing the evidence in the light most
favorable to the prosecution, 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); see also Tenn. R. App. P. 13(e) (“Findings 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.”); State v.
Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604
(Tenn. Crim. App. 1992). The same standard applies whether the finding of guilt is
predicated upon direct evidence, circumstantial evidence, or a combination of direct and
circumstantial evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.
1990).
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       A criminal offense may be established entirely by circumstantial evidence. State
v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010). It is for the jury to determine the weight
to be given the circumstantial evidence and the extent to which the circumstances are
consistent with the guilt of the defendant and inconsistent with his innocence. State v.
James, 315 S.W.3d 440, 456 (Tenn. 2010). In addition, the State does not have the duty
to exclude every other reasonable hypothesis except that of the defendant‟s guilt in order
to obtain a conviction based solely on circumstantial evidence. See State v. Dorantes,
331 S.W.3d 370, 380-81 (Tenn. 2011) (adopting the federal standard of review for cases
in which the evidence is entirely circumstantial).

       All questions involving the credibility of witnesses, the weight and value to be
given the evidence, and all factual issues are resolved by the trier of fact. See State v.
Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury,
approved by the trial judge, accredits the testimony of the witnesses for the State and
resolves all conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474,
476 (Tenn. 1973). Our supreme court stated the rationale for this rule:

       This well-settled rule rests on a sound foundation. The trial judge and the
       jury see the witnesses face to face, hear their testimony and observe their
       demeanor on the stand. Thus the trial judge and jury are the primary
       instrumentality of justice to determine the weight and credibility to be
       given to the testimony of witnesses. In the trial forum alone is there human
       atmosphere and the totality of the evidence cannot be reproduced with a
       written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212
Tenn. 464, 370 S.W.2d 523 (1963)). “A jury conviction removes the presumption of
innocence with which a defendant is initially 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 cases where the defendant has been charged with the attempted commission of
a crime, there must be evidence that the defendant acted “with the kind of culpability
otherwise required for the offense” and acted “with intent to cause a result that is an
element of the offense, and believes the conduct will cause the result without further
conduct on the person‟s part.” Tenn. Code Ann. § 39-12-101(a), (a)(2). First degree
murder is defined as “[a] premeditated and intentional killing of another.” Id. § 39-13-
202(a)(1). “Premeditation” is



                                             5
      an act done after the exercise of reflection and judgment. “Premeditation”
      means that the intent to kill must have been formed prior to the act itself. It
      is not necessary that the purpose to kill pre-exist in the mind of the accused
      for any definite period of time. The mental state of the accused at the time
      the accused allegedly decided to kill must be carefully considered in order
      to determine whether the accused was sufficiently free from excitement and
      passion as to be capable of premeditation.

Id. § 39-13-202(d).

        The “element of premeditation is a question of fact” for the jury to determine
based upon a consideration of all the evidence. State v. Suttles, 30 S.W.3d 252, 261
(Tenn. 2000) (citing State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997)).
“[P]remeditation may be established by any evidence from which a rational trier of fact
may infer that the killing was done „after the exercise of reflection and judgment‟ as
required by Tennessee Code Annotated section 39-13-202(d).” State v. Davidson, 121
S.W.3d 600, 615 (Tenn. 2003). A jury may infer premeditation from circumstantial
evidence surrounding the crime. See State v. Pike, 978 S.W.2d 904, 914 (Tenn. 1998);
State v. Addison, 973 S.W.2d 260, 265 (Tenn. Crim. App. 1997). There are several
factors which our courts have concluded may be evidence of premeditation: “the use of a
deadly weapon upon an unarmed victim; the particular cruelty of the killing; declarations
by the defendant of an intent to kill; evidence of procurement of a weapon; preparations
before the killing for concealment of the crime; and calmness immediately after the
killing.” Bland, 958 S.W.2d at 660. An additional factor from which a jury may infer
premeditation is evidence establishing a motive for the killing. See State v. Nesbit, 978
S.W.2d 872, 898 (Tenn. 1998).

      Viewing the evidence in the light most favorable to the State, the defendant shot
the unarmed victim from behind and, when the victim turned around, shot him again.
The defendant walked up to the victim and attempted to shoot him a third time, but his
gun jammed and he was unsuccessful. In a nonchalant fashion, the defendant then tucked
away his gun, walked to his truck, and drove away. There was also evidence that the
defendant previously expressed threats toward anyone who stepped on his turf. This
evidence is sufficient for the jury to find that the defendant intentionally and with
premeditation attempted to kill the victim.

       The defendant‟s assertion that “premeditation was nonexistent in this case” relies
on discounting the testimony from various State witnesses as not credible. However, the
weight and credibility of each witness‟s testimony is solely a question for the jury.
Defense counsel attempted to impeach the witnesses‟ credibility through vigorous cross-

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examination and in closing argument and, by its verdict and in its province, the jury
found at least the essential elements of those witnesses‟ testimonies to be credible.

         In order to convict the defendant of aggravated assault, the jury had to find that the
defendant intentionally or knowingly, by using or displaying a deadly weapon, caused
bodily injury to the victim. Tenn. Code Ann. §§ 39-13-101(a)(1), -102(a)(1)(A)(iii). We
initially note that, at times, the defendant appears to concede that he is guilty of
aggravated assault. To the extent he challenges this conviction, the evidence shows that
the victim had three feet of intestines, his gallbladder, and half of his liver removed. He
is still unable to run or ride a bicycle as a result of his injuries. It was undisputed that the
defendant was armed with a gun. Thus, the evidence is sufficient to sustain the
defendant‟s conviction for aggravated assault. Any assertion by the defendant that there
was no testimony concerning the victim‟s being placed in fear is irrelevant as the
defendant was charged with aggravated assault by causing bodily injury, not placing in
fear.

       It is a crime to employ a firearm during the commission of or attempt to commit a
dangerous felony. Id. § 39-17-1324(b)(1), (2). Attempted first degree murder is defined
as a dangerous felony. Id. § 39-17-1324(i)(1)(A). The defendant challenges this
conviction solely by virtue of his challenge to the sufficiency of the evidence of
attempted first degree murder, arguing that his conviction for employment of a firearm
can only stand if he also committed or attempted to commit the underlying dangerous
felony. Having determined that the proof is sufficient to support the defendant‟s
conviction for attempted first degree murder, the evidence is sufficient to support the
defendant‟s conviction for employment of a firearm during the commission of or
attempted commission of attempted first degree murder.

        The defendant concedes that his conviction for being a convicted felon in
possession of a firearm, id. § 39-17-1307(b)(1)(A), stands in light of the jury‟s finding of
guilt in this case as affirmed by this court.

                                       II. Jury Venire

       The defendant argues the trial court failed to ensure an impartial jury venire in that
the court did not “shuffle the names of the jury venire before calling potential jurors to
the jury pool” and thereby did not “remove all . . . potential for a tainted jury.”

      At the hearing on the motion for new trial, defense counsel explained this
argument by stating:



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              He‟s entitled to an impartial jury of his peers. In that, the
       defendant‟s absen[ce] from the place where these names were compiled and
       selected made it incumbent upon the [c]ourt to randomly shuffle these
       names and to remove all inferences of – or potential for a tainted jury – for
       tainted jury selection process.

       The defendant, however, has not provided any record of how the jury pool was
selected. All the record shows is that, at the beginning of voir dire, the trial court
instructed the court officer to “call twenty names.” No one objected to this process or
expressed any concern throughout the entire voir dire. The defendant did not object to
the jury venire at any point during trial. The defendant never challenged the State‟s
assertions at the motion for new trial hearing that the names “already come in a random
order” and that the defendant had the opportunity to voir dire the jurors.

       We conclude that the defendant is not entitled to relief on this issue due to both
waiver and on the merits. First, the defendant failed to provide any record or evidence
that the trial court selected the names in an improper manner, or even how the names
were selected at all. The defendant has “a duty to prepare a record which conveys a fair,
accurate and complete account of what transpired with respect to the issues forming the
basis of the appeal.” State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993) (citing State v.
Bunch, 646 S.W.2d 158, 160 (Tenn. 1983)). “Absent the necessary relevant material in
the record an appellate court cannot consider the merits of an issue.” Id. at 561.

       The defendant also failed to object to the process during jury selection. See Tenn.
R. App. P. 36(a) (“Nothing in this rule shall be construed as requiring relief be granted to
a party responsible for an error or who failed to take whatever action was reasonably
available to prevent or nullify the harmful effect of an error.”).

       Further, the defendant has not referred to a single case suggesting that the trial
court‟s failure to shuffle the names of the jurors somehow disqualified the entire panel.
The defendant does cite to case law for general principles about impartial juries and the
role of voir dire, which establish that “the jury wheels, pools of names, panels, or venires
from which juries are drawn must not systematically exclude distinctive groups in the
community and thereby fail to be reasonably representative thereof.” State v. Hester, 324
S.W.3d 1, 39 (Tenn. 2010) (quoting Taylor v. Louisiana, 419 U.S. 522, 538 (1975)).
However, the defendant has not challenged the actual composition of the jury pool and
does not allege that the jury selection process “systematically exclude[d] distinctive
groups in the community.” Id. The defendant seemingly claims, without any evidence in
the record to support it, that there were insufficient guarantees of trustworthiness in the
jury selection process that the trial court should have cured by sua sponte deciding to
shuffle the names in the jury pool. We are not aware of, nor has the defendant brought to
                                             8
our attention, any Tennessee case requiring the trial court to shuffle the names in the jury
pool for any reason, let alone because of an undisclosed concern that the process for
selecting the entire venire is inadequate.

                                  III. Cumulative Error

       The defendant lastly argues that the cumulative effect of the errors at trial warrants
reversal, even if none of the errors do so individually. However, having found no errors,
we respectfully disagree and conclude that the defendant is not entitled to relief on the
basis of cumulative error.

                                     CONCLUSION

        Based on the foregoing authorities and reasoning, we affirm the judgments of the
trial court. However, we remand for entry of a corrected judgment in Count 3 to check
the box indicating that the defendant was found guilty in that count.


                                                  _________________________________
                                                  ALAN E. GLENN, JUDGE




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