         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             Assigned on Briefs April 28, 2015

            STATE OF TENNESSEE v. PONCHO JUAN DELGADO

                    Appeal from the Criminal Court for Washington County
                          No. 33011    Robert E. Cupp, Judge


                   No. E2014-01101-CCA-R3-CD – Filed June 22, 2015


The Defendant, Poncho Juan Delgado, appeals as of right his jury conviction for first
degree premeditated murder.1 See Tenn. Code Ann. § 39-13-202. On appeal, the
Defendant contends that the State failed to prove the element of premeditation. The State
responds that ample evidence of premeditation was presented. Following our review, we
conclude that the evidence was sufficient to establish premeditation, and we therefore
affirm the judgment of the trial court.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and TIMOTHY L. EASTER, JJ., joined.

James T. Bowman (at trial and on appeal), and Donna M. Bolton (at trial), Johnson City,
Tennessee, for the appellant, Poncho Juan Delgado.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Anthony Clark, District Attorney General; and Dennis Brooks, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                 OPINION
                    PROCEDURAL AND FACTUAL BACKGROUND

                                   I. Procedural Background

       This case arises from the violent stabbing death of the victim, Robert Curtis, and
the subsequent burning of the victim’s house on May 25, 2006. On January 9, 2007, the

1
 The Defendant was also convicted of arson, see Tennessee Code Annotated section 39-14-301, but he
does not challenge that conviction in this appeal.
Washington County Grand Jury returned a true bill of indictment charging the Defendant
with first degree premeditated murder and arson.

        The Defendant’s first trial began on April 8, 2008. However, the next day, the
trial judge became seriously ill, and no further action was taken in the case until April 22,
2008. At that time, the trial court held a hearing to determine whether the trial should
continue or, instead, whether a mistrial should be granted. At the hearing, several jurors
testified that on April 9, 2008, they were instructed by the court clerk that the trial had
been delayed. Shortly thereafter, the clerk left jurors a voicemail message informing
them that the trial had been “cancelled.” Believing that their duties and obligations with
respect to the case had been terminated, several jurors admitted subsequently reading
newspaper articles about the case, speaking with family and friends about the case, and
discussing discrepancies in witnesses’ testimony.

        At the conclusion of this testimony, defense counsel requested a mistrial, and the
trial court granted this request. Defense counsel then moved to have the indictments
against the Defendant dismissed. The trial court denied this request, concluding that a
manifest necessity existed for the mistrial and, therefore, that principles of double
jeopardy did not preclude a retrial on the charges.

       The Defendant subsequently pursued an interlocutory appeal challenging the trial
court’s decision, arguing that principles of double jeopardy precluded retrial. A panel of
this court denied the Defendant relief on February 5, 2010. See State v. Poncho Juan
Delgado, No. E2008-01228-CCA-R9-CD, 2010 WL 424257 (Tenn. Crim. App. Feb. 5,
2010), perm. app. denied (Tenn. June 17, 2010). In upholding the trial court’s decision,
we noted that the Defendant had requested the mistrial, an action which typically
“remove[s] any barrier to reprosecution.” Id. at *3 (quoting United States v. Jorn, 400
U.S. 470, 485 (1971)). We concluded that “[g]iven the unique circumstances of the
instant case, namely the delay due to the judge’s illness and the jury’s exposure to outside
influences, . . . manifest necessity required a mistrial be declared,” and “[b]ecause there
was a manifest necessity for the mistrial, a retrial [was] not prohibited on double jeopardy
grounds.” Id. at *5. The Defendant’s case proceeded to trial again on March 25, 2013,
where the following facts were presented.

                                  II. Factual Background

       On May 25, 2006, the Johnson City Fire Department (“JCFD”) responded to a call
that a house was on fire. When firefighters arrived on the scene at approximately 9:00
p.m., they were informed that there might be a person inside the house. After an
unsuccessful attempt to gain entry through the front door, JCFD firefighter Russell Sells,
Jr., was able to enter the burning house through a window on the front of the house.
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        Upon entering the house, Mr. Sells found a body lying on the floor, which was
partially blocking the front door. Mr. Sells began to move the body outside the house
when he realized that the body was covered in blood. At that point, Mr. Sells determined
that the man was already deceased from injuries unrelated to the fire. He laid the body
back down inside the house and “established a crime scene . . . to make sure that the
scene wasn’t contaminated any further . . . .”

        Agent John Sipos, currently of the Tennessee Bureau of Investigation (“TBI”),
testified that in May 2006 he was an investigator with the Johnson City Police
Department (“JCPD”) and that he was in charge of processing the crime scene at the
victim’s home. Agent Sipos arrived at the victim’s home around 9:00 or 9:30 p.m. but
was unable to enter until the fire had been extinguished, which was around 11:00 or
11:30 p.m. Although Mr. Sells had moved the victim’s body, investigators were able to
determine the original positioning of the body due to a large blood stain located on the
carpet behind the front door, adjacent to the living room.

        Agent Sipos identified blood splatter on a vacuum cleaner in the vicinity, which he
described as “castoff of blood.” He explained that the “castoff” pattern indicated “a
stabbing motion and the blood slinging off the knife as it went back and forth.” Agent
Sipos also located blood of the “same castoff type nature” on the baseboard area near the
front door. According to Agent Sipos, certain items appeared to have been knocked over
inside the living room, leading him to believe that a violent struggle had taken place.
Agent Sipos was unable to obtain fingerprint evidence from the home because soot from
the fire “attache[d]” to the hard surfaces in the house, making it “almost impossible to
even locate a print.” Investigators collected several blood samples from the crime scene,
which were sent to the TBI crime lab for deoxyribonucleic acid (“DNA”) testing. Each
of the samples matched the victim’s DNA, and no DNA from other contributors was
located at the scene.

       Officer Jason Abernathy of the JCPD testified that he was the lead investigator
assigned to investigate the victim’s murder. Officer Abernathy estimated that he entered
the victim’s house about ten to fifteen minutes prior to Agent Sipos. According to
Officer Abernathy, when he entered the house, the victim’s body was lying face-down,
and he was unable to see the victim’s injuries until he was turned over, which was about
an hour to an hour and a half after entering the house.

       Meanwhile, other JCPD investigators began “checking nearby housing areas like
Carnegie and Tyler Apartments” to gain information about the crime. While Officer
Abernathy was waiting to enter the victim’s home, he received a call from another
investigator who had spoken with individuals linking the Defendant to the victim’s
murder. Apparently, the Defendant had told several residents at Tyler Apartments that he
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had “cut and killed a man.” At the time, Officer Abernathy was unable to confirm this
information because he had yet to enter the victim’s house or turn the victim over.
Officer Abernathy agreed that this information ended up being “significant” given that it
showed that the Defendant relayed information about the victim’s wounds to a third party
at a time when even the police were unaware of the victim’s injuries. At that point, the
Defendant became the “number one person of interest . . . .”

       Bonnie Peck Griffith testified that she knew the Defendant and that she was living
with her brother in Tyler Apartments in May 2006. She testified that Tyler Apartments
was located seven or eight blocks from the street where the victim lived. According to
Ms. Griffith, the Defendant approached her while she was outside her brother’s apartment
on the night of May 25, 2006. She remembered that it was dark outside, although she
was uncertain of the exact time. When the Defendant approached Ms. Griffith, he was
covered in blood “from [his] neck to his shoes[,] including his socks,” and he told Ms.
Griffith that he “need[ed] some help.” Ms. Griffith entered her brother’s apartment with
the Defendant, and the Defendant told Ms. Griffith and her brother what had happened.

       According to Ms. Griffith, the Defendant told them that he “had just killed
someone for messing with his nephew[,] . . . that [the victim] had molested his nephew[,]
and [that] he took care of it because nobody messes with family.” Additionally, the
Defendant said that “he cut the victim on both sides of his neck and down through his
throat to the sternum” and that he “cut the victim open, all the way open.” The
Defendant also said that, after killing the victim, he “torched the place.” Ms. Griffith
described the Defendant as being “very upset,” adding that he “was not calm at all, he
was really upset about the situation.”

       Ms. Griffith’s brother provided the Defendant with clean clothes, and the
Defendant placed his blood-soaked clothes in a plastic bag. Ms. Griffith testified that the
Defendant had three knives in his possession. She described the knives as a “double-
sided straight knife,” a knife with “a hook on the end [that] was kind of shaped weird,”
and one that was in a case, which she could not see. The Defendant asked for lighter
fluid before leaving Ms. Griffith’s brother’s house, and he then left the house with his
bag of bloody clothes and the lighter fluid. According to Ms. Griffith, the Defendant left
in search of a pair of shoes that would fit him. Ms. Griffith denied calling the police to
report the Defendant, explaining that she “didn’t want to get involved.” According to
Ms. Griffith, when police arrived at Tyler Apartments, a neighbor informed the police
that Ms. Griffith had spoken with the Defendant, and the police questioned her about the
Defendant’s whereabouts that same night.

      James Allen Hale testified that he was the Defendant’s cousin and had known the
Defendant for most of his life. On May 26, 2005, the Defendant came to Mr. Hale’s
                                            -4-
apartment and asked for a pair of shoes, and Mr. Hale gave the Defendant a pair of his
“old work shoes.” The Defendant told Mr. Hale that he had killed someone, but Mr. Hale
did not believe him. The Defendant was wearing clean clothes, and Mr. Hale did not
notice any blood on him. Mr. Hale estimated that the Defendant was at his apartment for
no more than ten minutes.

        June Little testified that she was the Defendant’s half-sister and that the Defendant
“just showed up” at her house the day after the victim’s murder. The Defendant told Ms.
Little that “he messed up” and “needed [her] help.” The Defendant told Ms. Little that he
killed a man and, specifically, that “he gutted [the victim].” Ms. Little testified that she
had seen a picture of the Defendant on the news and heard that the police were looking
for him. According to Ms. Little, the Defendant was intoxicated when he arrived at her
house, and she wanted him to sober up before he turned himself in to the police. The
Defendant had two knives with him, which she described as two daggers—one with a
broken tip and another with a hooked blade. Ms. Little testified that the Defendant
eventually threw both knives into the sewer. Several days later, Ms. Little and her
husband drove the Defendant to the police station so that he could turn himself in.

       When the Defendant arrived at the police station, Officer Abernathy spoke with
him in an interview room. After Officer Abernathy read the Defendant his Miranda2
rights, the Defendant asked for an attorney, and Officer Abernathy stopped the
interrogation. However, Officer Abernathy remained in the room with the Defendant,
and the Defendant told him that he had not eaten in several days. Officer Abernathy
arranged for the Defendant to receive food, and the two men engaged in “small talk.” In
the course of this conversation, the Defendant twice told Officer Abernathy that he
“didn’t intend to kill that man.”3

       Dr. Theresa Allen Campbell testified that she was a forensic pathologist and that
she performed the victim’s autopsy. Dr. Campbell testified that, due to the extent of the
victim’s injuries, she performed the autopsy over a period of two days. Dr. Campbell
determined that the victim’s cause of death was multiple knife stab wounds with blunt
force trauma to the head. In total, Dr. Campbell documented fourteen stab wounds to the
victim’s heart; twenty-two stab wounds to the left lung; a “long incision” stab wound to
the abdomen; and multiple lacerations, abrasions, and contusions on the victim’s head

2
    See Miranda v. Arizona, 384 U.S. 436 (1966).
3
  Prior to his original trial, the Defendant filed a motion to suppress these statements, wherein he argued
that his Miranda rights were violated. Following a hearing, the trial court denied the motion, finding that
the Defendant was not subjected to custodial interrogation or its functional equivalent, see Rhode Island
v. Innis, 446 U.S. 291, 301 (1980), after he asked for an attorney and that his incriminating statements
were not responsive to police questioning but instead were merely “blurted out.”
                                                   -5-
caused by blunt force trauma. She testified that each stab wound to the heart would have
been life-threatening.

       The Defendant testified on his own behalf. The Defendant denied that he
murdered the victim, that he burned his house, that he was present when either the
murder or arson occurred, or that he knew who was responsible. The Defendant admitted
that he was an alcoholic and had abused drugs throughout his life. According to the
Defendant, he could not remember everything that happened on the night of the victim’s
murder. However, he did recall that he had been drinking and smoking crack cocaine.
He testified that he went to an area near some railroad tracks, lay down in some bushes,
and got high. When the Defendant began to walk back towards some houses, “a bunch of
dogs” began chasing him, and his flip-flops broke.

        The Defendant then walked to James Hale’s house and asked him for shoes. The
Defendant denied telling Mr. Hale that he had killed someone. Eventually, the Defendant
went to Ms. Little’s house. Again, the Defendant denied telling Ms. Little that he had
killed anyone. However, the Defendant said that while he was there, his “picture popped
up on the news,” and he learned that the police were looking for him in connection with a
murder and arson. The Defendant testified that he “got scared” and eventually told his
sister that he wanted to turn himself in.

        The Defendant acknowledged that he said, “I didn’t intend to kill that man” on
two occasions while talking to Officer Abernathy. However, the Defendant explained
that he “can say words and [not] know what they mean” and that he was “a dummy.” He
reiterated that he did not know the victim and denied any involvement in the victim’s
death.

      Thereafter, the jury convicted the Defendant of first degree premeditated murder
and arson. The Defendant received a sentence of life imprisonment for the murder
conviction and three years on the arson conviction, with the sentences to be served
concurrently. This timely appeal followed.

                                      ANALYSIS

       The sole issue presented for our review is whether the evidence was sufficient to
support the element of premeditation underlying the Defendant’s first degree murder
conviction. The Defendant contends that, although the victim “was stabbed many times,”
the Defendant’s “state of mind before the killing is unknown.” The State responds that
“the brutality of the attack and cruelty displayed in the killing are evidence of
premeditation.” The State further responds that there was testimony that the Defendant
killed the victim because the victim had molested the Defendant’s nephew, providing
                                           -6-
further support for the jury’s conclusion that the murder was premeditated. We agree
with the State.

       An appellate court’s standard of review when the defendant questions the
sufficiency of the evidence on appeal 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). This court does not reweigh the evidence; rather, it presumes that the jury
has resolved all conflicts in the testimony and drawn all reasonable inferences from the
evidence in favor of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984);
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness
credibility, conflicts in testimony, and the weight and value to be given to evidence were
resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

      A guilty verdict “removes the presumption of innocence and replaces it with a
presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the
evidence is insufficient to support the jury’s verdict.” Bland, 958 S.W.2d at 659; State v.
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). A guilty verdict “may not be based solely
upon conjecture, guess, speculation, or a mere possibility.” State v. Cooper, 736 S.W.2d
125, 129 (Tenn. Crim. App. 1987). However, “[t]here is no requirement that the State’s
proof be uncontroverted or perfect.” State v. Williams, 657, S.W.2d 405, 410 (Tenn.
1983). Put another way, the State is not burdened with “an affirmative duty to rule out
every hypothesis except that of guilt beyond a reasonable doubt.” Jackson, 443 U.S. at
326.

       The following standard “applies to findings of guilt based upon direct evidence,
circumstantial evidence, or a combination of [both] direct and circumstantial evidence.”
State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). Our supreme
court has held that circumstantial evidence is as probative as direct evidence. State v.
Dorantes, 331 S.W.3d 370, 379-81 (Tenn. 2011). In doing so, the supreme court rejected
the previous standard which “required the State to prove facts and circumstances so
strong and cogent as to exclude every other reasonable hypothesis save the guilt of the
defendant, and that beyond a reasonable doubt.” Id. at 380 (quoting State v. Crawford,
470 S.W.2d 610, 612 (Tenn. 1971)) (quotation marks omitted).

        Instead, “direct and circumstantial evidence should be treated the same when
weighing the sufficiency of such evidence.” Dorantes, 331 S.W.3d at 381. The reason
for this is because with both direct and circumstantial evidence, “a jury is asked to weigh
the chances that the evidence correctly points to guilt against the possibility of inaccuracy
or ambiguous inference . . . .” Id. at 380 (quoting Holland v. United States, 348 U.S. 121,
140 (1954)). To that end, the duty of this court “on appeal of a conviction is not to
                                             -7-
contemplate all plausible inferences in the [d]efendant’s favor, but to draw all reasonable
inferences from the evidence in favor of the State.” State v. Sisk, 343 S.W.3d 60, 67
(Tenn. 2011).

       First degree murder, in this instance, is defined as “[a] premeditated and
intentional killing of another.” Tenn. Code Ann. § 39-13-202(a)(1). A person acts
intentionally “when it is the person’s conscious objective or desire to engage in the
conduct or cause the result.” Tenn. Code Ann. § 39-11-302(a).

       “[P]remeditation” is 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.

Tenn. Code Ann. § 39-13-202(d).

       The element of premeditation is a factual question to be decided by a jury from all
the circumstances surrounding the killing. State v. Davidson, 121 S.W.3d 600, 614
(Tenn. 2003). Although a jury may not engage in speculation, it may infer premeditation
from the manner and circumstances of the killing. Bland, 958 S.W.2d at 660. Our
supreme court has held that factors demonstrating the existence of premeditation include,
but are not limited to, the following: the declaration of the intent to kill, the procurement
of a weapon, the use of a deadly weapon upon an unarmed victim, the fact that the killing
was particularly cruel, the infliction of multiple wounds, the making of preparations
before the killing for the purpose of concealing the crime, the destruction or secretion of
evidence, and calmness immediately after the killing. State v. Jackson, 173 S.W.3d 401,
409 (Tenn. 2005); State v. Nichols, 24 S.W.3d 297, 302 (Tenn. 2000). Additional factors
cited by this court from which a jury may infer premeditation include lack of provocation
by the victim and the defendant’s failure to render aid to the victim. See State v. Lewis,
36 S.W.3d 88, 96 (Tenn. Crim. App. 2000). Further, “[e]stablishment of a motive for the
killing is a factor from which the jury may infer premeditation.” State v. Leach, 148
S.W.3d 42, 54 (Tenn. 2004).

       Viewed in the light most favorable to the State, the evidence showed that the
victim was stabbed over thirty times. Dr. Campbell testified that any one of the stab
wounds to the victim’s heart would have been fatal. The Defendant told Ms. Griffith,
Mr. Hale, and Ms. Little that he had killed the victim. Furthermore, the Defendant told
Ms. Griffith that he had killed the victim because the victim had “messed with” and
“molested” the Defendant’s nephew, establishing a motive for the crime. He also told
Ms. Griffith that after he killed the victim, “he torched the place,” apparently in an
attempt to cover up the murder and destroy evidence. The Defendant also bagged his
                                              -8-
bloody clothes, took lighter fluid with him when he left Ms. Griffith’s brother’s house,
and disposed of the knives. From these facts, the jury was presented with ample evidence
from which it could infer that the Defendant acted with premeditation. The Defendant’s
argument is without merit.

                                       CONCLUSION

        Upon consideration of the foregoing and the record as a whole, the judgment of
the trial court is affirmed.



                                                _________________________________
                                                D. KELLY THOMAS, JR., JUDGE




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