        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs December 3, 2013

             STATE OF TENNESSEE v. ROOSEVELT BRICE, JR.

                  Appeal from the Circuit Court for Madison County
                         No. 12-282 Donald H. Allen, Judge


               No. W2013-00349-CCA-R3-CD - Filed January 16, 2014


Roosevelt Brice, Jr. (“the Defendant”) was convicted by a jury of attempted premeditated
first degree murder and aggravated assault. Following a sentencing hearing, the trial court
sentenced the Defendant to twenty-five years’ incarceration for his attempted premeditated
first degree murder conviction and fifteen years’ incarceration for his aggravated assault
conviction. The trial court ordered that the two sentences be served concurrently for a total
effective sentence of twenty-five years. In this direct appeal, the Defendant challenges the
sufficiency of the evidence supporting his conviction for attempted premeditated first degree
murder. After a thorough review of the record and applicable law, we affirm the judgments
of the trial court.

                   Tenn. R. App. P. 3 Appeal as of Right; Judgments
                             of the Circuit Court Affirmed

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL and
J OHN E VERETT W ILLIAMS, JJ., joined.

Gregory D. Gookin, Assistant Public Defender, Jackson, Tennessee, for the appellant,
Roosevelt Brice, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;
James G. Woodall, District Attorney General; and Brian Gilliam, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                              OPINION

                             Factual and Procedural Background

      A Madison County Grand Jury indicted the Defendant on one count of attempted
premeditated first degree murder and one count of aggravated assault. The Defendant
proceeded to a jury trial on October 2, 2012.

        Alma Brice testified that she was married to the victim, Roosevelt Brice, Sr., and that
they lived together in their home in Madison County. She identified the Defendant as her
stepson. Alma1 testified that the Defendant spent the night at her home on January 6, 2012.
The Defendant lived in Nashville and was in Jackson visiting family. On January 7, 2012,
the Defendant had been gone all day and had not yet arrived home by the time Alma went
to bed between 9:30 p.m. and 10:00 p.m. Alma testified that she was awakened by the sound
of Roosevelt Sr. and the Defendant arguing. Alma heard Roosevelt Sr. say, “Well, you’re
going to leave. You are going to leave. I done told you about coming in here trying to run
my house.” According to Alma, the Defendant responded, “I’m not going nowhere [sic]
because this is my house too.” At that point, Roosevelt Sr. went into the kitchen. When
Roosevelt Sr. attempted to exit the kitchen back into the den,

        [The Defendant] jumped up and met him in the doorway and he told him he
        said, “If you call the police on me tonight, you old so-in-so [sic], I’m going to
        kill you.” [The Defendant] said, “You’re the only one left and I’m going to
        take you out tonight.” Meaning all the rest of [Roosevelt Sr.’s] sisters and
        brothers.

       At that time, the Defendant pushed Roosevelt Sr., and, when Roosevelt Sr. pushed the
Defendant back, the Defendant “took [Roosevelt Sr.] down to the floor . . . and [the
Defendant] was chocking [sic] [Roosevelt Sr.] out.” Alma testified that Roosevelt Sr. was
positioned on top of the Defendant when the Defendant was choking him. While he was
choking Roosevelt Sr., the Defendant “told [Roosevelt Sr.] that he was going to kill him.”
Eventually, Alma was able to get Roosevelt Sr. loose from the Defendant. At that point, the
Defendant “attacked [Roosevelt Sr.] again and threw him through the wall . . . that’s when
[the Defendant] got down on [Roosevelt Sr.] and proceeded to beat him and beat him and
beat him.” Alma “begged” the Defendant to stop, and the Defendant “just kept telling
[Roosevelt Sr.] that he was going to die tonight and he hadn’t never [sic] cared anything


        1
         Because more than one witness has the same surname, we will refer to these witnesses using their
given names. We intend no disrespect.

                                                  -2-
about him anyway.” Alma clarified that by “beat him” she meant that the Defendant was
“beating [Roosevelt Sr.] with his fists and his hands and stomping him and kicking him.”

       Alma stated that, when the Defendant “came up off” Roosevelt Sr., she could see that
the Defendant had a knife in his hand. According to her testimony, that was the first time
Alma saw anybody with a knife. She noted that the knife was “bent,” and she saw blood on
it. She recognized the knife as one that they normally kept in the kitchen. She “kept asking
[the Defendant] to give [her] the knife and he wouldn’t.” According to Alma’s testimony,
“[F]inally, [the Defendant] just threw [the knife] on the table and I picked it up and put it in
the garbage can.” She stated that she threw the knife in the garbage can because she “didn’t
want [the Defendant] to get it again.” At that point, Alma identified the knife.

        Alma testified that, during the incident, she was afraid to call the police because the
Defendant had threatened to “do the same thing” to her and her son if she did. Alma’s son
was a “special needs child,” and he was present during the incident. Eventually, Alma went
into a bedroom and called 911. She testified that she called and hung up immediately as she
“didn’t want [the Defendant] to hear” her talking to the 911 dispatcher because she was
“afraid of what [the Defendant] might do.” When the police arrived, the Defendant met the
officers at the front door and told them “everything is all right.” Alma gave the officers
permission to come inside the house and was “trying to give them the signal” to direct their
attention toward the back of the house. Alma stated that, when the officers questioned the
Defendant about the blood on his clothes, the Defendant responded, “Well, me and my dad
got into it tonight and my mom called me and told me to come on over here.” When the
officers asked the Defendant where his dad lived, he responded, “Over on Stonewall
[S]treet.”

       Alma testified that the officers “finally caught [her] hint” and moved to the back of
the house, where they discovered Roosevelt Sr. lying on the floor in the den. According to
Alma, the Defendant “had picked [Roosevelt Sr.] up from the kitchen and threw him in the
floor in the den.” Alma testified that she thought Roosevelt Sr. was dead at that point.
Roosevelt Sr. was not able to speak or move. She tried to wipe some of the blood off of
Roosevelt Sr.’s face, but the Defendant “wouldn’t let” her, telling her to quit “babying him.”

       On cross-examination, Alma acknowledged that, in her statement to police on January
9, 2012, she stated that Roosevelt Sr. “had the knife in his hand prior to [the Defendant]
attacking him.” The statement was reduced to writing by officers, and Alma identified her
signature at the bottom of the written statement. She acknowledged that this statement was
contrary to her testimony at trial that the Defendant was the only one she saw with the knife.




                                              -3-
       Alma clarified that when she testified that the Defendant threw Roosevelt Sr. “through
the wall” in the kitchen, she meant that “when [the Defendant] threw [Roosevelt Sr.] through
the wall in the kitchen, it made a big hole in the wall. . . . [Roosevelt Sr.’s] head was in the
hole in the wall and that’s where [the Defendant] proceeded to beat him.”

       Alma testified that, at the time of the incident in question, Roosevelt Sr. was in an
“early stage of dementia.”

       On redirect-examination, Alma clarified her statement contained in the police report
regarding Roosevelt Sr. having the knife: “I said [Roosevelt Sr.] may have picked it up when
he was in the kitchen by mistake or whatever. He was in the early stages of dementia.”
When asked if she ever saw Roosevelt Sr. with the knife, she replied that she did not.
According to Alma, “The first time I saw the knife was when [the Defendant] had the knife
when he was standing up over [Roosevelt Sr.] when he had him down on the floor in the
kitchen.”

       When asked whether she remembered the Defendant making any threats toward
Roosevelt Sr. during the incident, Alma remembered, “Oh, yeah. While [the Defendant] was
beating [Roosevelt Sr.], [the Defendant] kept on telling him to die and he was going to kill
him.”

       Officer Joseph Mitchell with the Jackson Police Department (“JPD”) testified that he
was working as a patrol officer on the night of the incident in question and responded to a
911 hang-up call at Alma and Roosevelt Sr.’s home. When Officer Mitchell arrived, Officer
Buddy Crowell of the JPD was already there. Officer Mitchell spoke with the Defendant at
the door. According to Officer Mitchell, the Defendant stated that “there was nothing going
on and that they didn’t need the police there.”

        However, Officer Mitchell noticed blood on the Defendant’s shirt, and, after Officer
Mitchell expressed his concern, they were given permission to come into the house. At that
point, Officer Mitchell noticed that Alma was “motioning [him] with her eyes,” and he
proceeded toward the back of the house. When he saw blood in the kitchen, he continued
to the den where he found Roosevelt Sr. lying “in a puddle of blood on his back.” Officer
Mitchell described Roosevelt Sr.’s condition: “He was in horrible condition. I mean, just
beat. It’s unbelievable. His eyes were all swollen and blood was all on his shirt and it was
kind of almost looked like somebody outlined his head to his belt line in blood.” Roosevelt
Sr. had “barely any strength” to move his arms, and he was not able to speak except for
“mumbling a little.” Officer Mitchell identified several pictures that he took of the scene and
of Roosevelt Sr.’s wounds. Officer Mitchell also identified the knife that he collected from
the scene.

                                              -4-
       According to Officer Mitchell, the Defendant stated that he and Roosevelt Sr. “had
gotten into an altercation at another location and came back to the house to, you know, calm
down to air it out and stuff. . . . [T]hen an altercation came and one way or another [the
Defendant] got [Roosevelt Sr.] down on the floor and started kicking and stomping him.”

       Officer Mitchell identified a pair of shoes he collected from the scene. One of the
shoes was retrieved from the kitchen, and the Defendant was wearing the other shoe at the
time he was arrested. Officer Mitchell noted that there was blood on the shoes. According
to Officer Mitchell, the Defendant explained that “Roosevelt Sr. was on the ground, [and the
Defendant] kicked and stomped him. So that’s how the blood got on his shoes.” Officer
Mitchell testified that he did not notice any bruises, cuts, or any other kind of injuries on the
Defendant at the time he was arrested.

       On cross-examination, Officer Mitchell testified that the Defendant had a “strong
odor” of alcohol coming from his body.

        Officer Buddy Crowell with the JPD testified that he also was working as a patrol
officer on the night of the incident in question and responded to the 911 hang-up call at Alma
and Roosevelt Sr.’s home. Officer Crowell arrived at “approximately the same time” as
Officer Mitchell. Officer Crowell testified that he spoke with Alma at the front door.
Officer Crowell remembered that Alma “kind of had the look on her face like something was
wrong,” and “kind of looked back over her shoulder.” According to Officer Crowell, “I
interpreted [Alma’s body language] as something was going on that was not in my sight, so
I asked if I could come in.” Alma gave the officers permission to enter the house. Once in
the house, Officer Crowell noticed blood “all over” the Defendant’s clothes. When asked
about the blood, the Defendant, “advised [Officer Crowell] that him and his father had been
in a fight at a different location, and [the Defendant] had come to [Alma’s] house to calm
down.”

       Eventually, Officer Mitchell drew Officer Crowell’s attention to the den where
Officer Crowell could see Roosevelt Sr. lying on the ground. At that point, Officer Crowell
arrested the Defendant. When asked about Roosevelt Sr.’s condition, Officer Crowell stated,
“He was in very bad shape. He wasn’t able to talk or respond to me or anything. He was
able to move his head and that was about it.” Officer Crowell did not remember the
Defendant complaining of any injuries, and he did not see any signs of injury on the
Defendant. Officer Crowell testified that the Defendant smelled of alcohol.

      On cross-examination, Officer Crowell admitted that nothing in his report mentioned
Alma looking over her shoulder or signaling the officers toward the back of the house.


                                               -5-
        Lisa Headen, an investigator with the domestic violence unit of the JPD, testified that
she interviewed the Defendant following the incident in question. Investigator Headen
testified that she hand-recorded the Defendant’s statement, and, after having a chance to
review the written statement and make any necessary changes, the Defendant signed it. In
this statement, the Defendant claimed, “I don’t really know what happened. I don’t
remember how it started. My daddy hit me too.”

       On cross-examination, Investigator Headen clarified that her involvement with this
case ended “probably the next day” following her interview with the Defendant because the
case was transferred to the violent crimes unit “as it became more apparent how horrific the
injuries were.”

        Aubrey Richardson, an investigator in the violent crimes unit of the JPD, testified that
she was assigned as the investigator in this case after it was transferred from the domestic
violence unit. Investigator Richardson testified that no evidence was submitted to the
Tennessee Bureau of Investigation for any kind of scientific testing in this case because she
“felt like there was nothing to be discovered” by doing so.

       The State also entered without objection medical records from Jackson Madison
County General Hospital pertaining to Roosevelt Sr.’s treatment there immediately following
the incident in question. The medical records showed that Roosevelt Sr. was admitted to
treatment between 1:00 a.m. and 2:00 a.m. on January 8, 2012, and was discharged on
January 16, 2012. The medical records noted that Roosevelt Sr. suffered “blunt trauma” with
a diagnosis of “[t]raumatic intracranial hemorrhage,” “[c]losed fracture of the facial bones,”
“[c]ontusion of the chest wall,” “left nasal bone fracture,” and “left orbital floor fracture.”

       At the conclusion of the State’s proof, the defense moved for a judgment of acquittal,
and the trial court denied the motion.

        The Defendant chose to testify on his own behalf. The Defendant testified that he
lived in Nashville and occasionally took trips to visit his family in Jackson. Regarding how
much alcohol he had consumed prior to the incident in question, the Defendant testified that
he only had consumed “a beer earlier that day” and denied having had any liquor on the night
of the incident.

        On the night in question, the Defendant arrived at the house around 10:30 p.m. and
let himself in using a key Alma had given him. The Defendant first encountered Roosevelt
Sr. in the kitchen. According to the Defendant, “[Roosevelt Sr.] was asking me where was
I coming from and how did I get into the house. The whole ordeal started over because I


                                              -6-
wouldn’t give him the door key to the house.” At that point, the Defendant testified, their
argument became physical:

       [Roosevelt Sr.] pushed me and I pushed him back. When he pushed me again,
       I reached down and [Roosevelt Sr.] stuck me in my right arm with that steak
       knife that we’ve got in here now as the weapon. So after he stuck me, that’s
       when I pushed him over there in the corner [of the kitchen]. I pushed him
       down on the floor trying to get the steak knife away from him. . . . So, from
       there on that’s where I scuffled with him trying to get the knife from him and
       I couldn’t get the knife. That’s when Alma came in . . . . When she came in
       the room, she reached down to pull [Roosevelt Sr.] from up under me, so I got
       up off [Roosevelt Sr.] thinking that she was going to get the knife away from
       him, but he still didn’t give up the knife. I was determined I wanted the knife
       because he didn’t have no business sticking me with the knife and that’s when
       I pushed him over the den couch and he fell down between the couch and the
       living room table . . . that’s where the officer found him. I didn’t get the knife
       away from him until after I got around there. True enough, I stomped him.
       That’s how I got him to release the knife. Other than that, after I got the knife
       from [Roosevelt Sr.], by that time the police was at the back . . . . So that’s
       when we went to the door and opened the door.

According to the Defendant, he never used the knife to cut or stab Roosevelt Sr. Rather,
when he gained control of the knife, the Defendant placed it on the living room table before
Alma retrieved it and put in the garbage can. The Defendant testified that he was just “trying
to leave. That was it.” He testified, “I wasn’t trying to kill my father. . . . I was trying to get
the knife.”

        On cross-examination, the Defendant admitted, “[I]t was to where after [Roosevelt
Sr.] stuck me with the knife I was upset and I lost it. That’s the reason I stomped him.” The
Defendant also testified that, on the night of the incident, the Defendant told the officers that
Roosevelt Sr. had stabbed him with the knife. The Defendant stated that he was “sorry about
anything else.” When the State asked the Defendant what he was sorry about, the Defendant
replied, “I’m sorry that my daddy got stuck.” However, when pressed by the State, the
Defendant continued to deny that he had stabbed Roosevelt Sr.

        When asked why he initially told the officers that he had been in a fight at another
address, the Defendant responded, “[B]ecause I was trying to keep from going to jail, sir,
because the police was there.” The Defendant testified that he never pushed Roosevelt Sr.
into the kitchen wall. He denied making any statements the night of the incident that he was


                                                -7-
going to kill Roosevelt Sr. or that Roosevelt Sr. was going to die. He also denied threatening
to attack Alma if she called the police.

        After the Defendant’s testimony, the defense rested its proof. The jury deliberated and
found the Defendant guilty as charged of attempted premeditated first degree murder and
aggravated assault. The trial court later sentenced the Defendant to twenty-five years for his
attempted premeditated first degree murder conviction and to fifteen years for his aggravated
assault conviction, to be served concurrently. The Defendant filed a motion for new trial,
which the trial court denied. The Defendant then filed a timely notice of appeal. In this
direct appeal, the Defendant argues that the evidence at trial was not sufficient to support his
conviction for attempted premeditated first degree murder.

                                           Analysis

       Our standard of review regarding sufficiency of the evidence 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). After a jury finds a
defendant guilty, the presumption of innocence is removed and replaced with a presumption
of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Consequently, the defendant
has the burden on appeal of demonstrating why the evidence was insufficient to support the
jury’s verdict. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

        The appellate court does not weigh the evidence anew. Rather, “a jury verdict,
approved by the trial judge, accredits the testimony of the witnesses for the State and resolves
all conflicts” in the testimony and all reasonably drawn inferences in favor of the State. State
v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, “the State is entitled to the strongest
legitimate view of the evidence and all reasonable or legitimate inferences which may be
drawn therefrom.” Id. (citation omitted). This standard of review applies to guilty verdicts
based upon direct or circumstantial evidence. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn.
2011) (citing State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). In Dorantes, our supreme
court adopted the United States Supreme Court standard that “direct and circumstantial
evidence should be treated the same when weighing the sufficiency of such evidence.” Id.
at 381. Accordingly, the evidence need not exclude every other reasonable hypothesis except
that of the defendant’s guilt, provided the defendant’s guilt is established beyond a
reasonable doubt. Id.

       The weight and credibility given to the testimony of witnesses, and the reconciliation
of conflicts in that testimony, are questions of fact. State v. Bland, 958 S.W.2d 651, 659
(Tenn. 1997). Furthermore, it is not the role of this Court to reevaluate the evidence or

                                              -8-
substitute its own inferences for those drawn by the jury. State v. Winters, 137 S.W.3d 641,
655 (Tenn. Crim. App. 2003) (citations omitted).

        The Defendant challenges the sufficiency of the State’s evidence supporting his
conviction for attempted premeditated first degree murder. Specifically, the Defendant
asserts that “the argument only started when [Roosevelt Sr.] confronted [the Defendant]” and
that the Defendant only “stomped and kicked [Roosevelt Sr.] in an attempt to wrest control
of the knife.” Therefore, the Defendant argues, the “proof demonstrates that [the Defendant]
had no intention to kill his father and that he did not commit his crimes with premeditation.”

        The definition of first degree murder applicable in the instant case is the
“premeditated and intentional killing of another.” Tenn. Code Ann. § 39-13-202(a)(1)
(2010). In order to prove attempted premeditated first degree murder, the State must prove
that the Defendant acted with the intent to commit premeditated first degree murder and that
the Defendant’s “conduct constitute[d] a substantial step toward commission of the offense.”
Tenn. Code Ann. 39-12-101(a) (2010).

         A premeditated act is one done “after the exercise of reflection and judgment.” Tenn.
Code Ann. § 39-13-202(d). Therefore, the premeditated killing of another “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.” Id. Furthermore,
the accused must be “sufficiently free from excitement and passion as to be capable of
premeditation.” Id. In a trial for first-degree murder, “[t]he existence of the element of
premeditation is a question of fact to be resolved by the jury.” State v. Davis, 354 S.W.3d
718, 730 (Tenn. 2011); State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997) (“The elements
of premeditation and deliberation are questions for the jury.”). Premeditation “may be
established by proof of the circumstances surrounding the killing.” Bland, 958 S.W.2d at
660. Circumstances that support a finding of premeditation include: “the use of a deadly
weapon upon an unarmed victim; the particular cruelty of the killing; [and] the declarations
by the defendant of an intent to kill.” State v. Suttles, 30 S.W.3d 252, 261 (Tenn. 2000); see
also Bland, 958 S.W.2d at 660.

        In the instant case, Alma testified that, while he was choking Roosevelt Sr., the
Defendant declared “that he was going to kill him.” According to Alma, there was a brief
break in the action when she was able to separate the two, but the Defendant attacked
Roosevelt Sr. again, throwing him “through the wall,” and proceeding to “beat him, and beat
him, and beat him.” While he was beating Roosevelt Sr., the Defendant again “told
[Roosevelt Sr.] that he was going to kill him,” and the Defendant just kept telling [Roosevelt
Sr.] that he was going to die tonight.” Alma testified that she saw a bloody bent knife in the
Defendant’s hand and that she never saw Roosevelt Sr. with a knife. Furthermore, the

                                               -9-
testimony of Alma and the two responding officers, the crime scene photographs, and
Roosevelt Sr.’s medical records all show the severity of the injuries Roosevelt Sr. sustained.
Alma testified that she thought Roosevelt Sr. was dead. Officer Mitchell testified that
Roosevelt Sr. was in “horrible condition” and that he was covered in blood and unable to
speak. The medical records entered without objection show that Roosevelt Sr. required an
eight-day hospitalization and suffered intracranial hemorrhaging along with multiple
fractures to his face.

       This evidence was sufficient to lead the jury to conclude that the Defendant used a
deadly weapon on an unarmed victim, that the Defendant made declarations of his intent to
kill Roosevelt Sr. during the attack, and that the attack was particularly brutal. Although the
Defendant’s own testimony contradicted some of this evidence, “the weight and credibility
given to the testimony of witnesses, and the reconciliation of conflicts in that testimony, are
questions of fact” for the jury. Bland, 958 S.W.2d at 659. The evidence was clearly
sufficient to persuade a rational trier of fact to conclude that the Defendant had the requisite
premeditation to support his conviction for attempted premeditated first degree murder.
Thus, the Defendant is entitled to no relief on this basis.

                                       CONCLUSION

       For the reasons set forth above, we affirm the judgments of the trial court.




                                            _________________________________
                                            JEFFREY S. BIVINS, JUDGE




                                              -10-
