         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON            FILED
                           MAY 1999 SESSION
                                                         May 26, 1999

                                                     Cecil Crowson, Jr.
                                                    Appellate Court Clerk
STATE OF TENNESSEE,                 )
                                    )    NO. 02C01-9805-CR-00157
      Appellee,                     )
                                    )    SHELBY COUNTY
VS.                                 )
                                    )    HON. JOSEPH B. DAILEY,
BILLY B. BROWN,                     )    JUDGE
                                    )
      Appellant.                    )    (First Degree Murder; Attempted
                                    )     Murder)



FOR THE APPELLANT:                       FOR THE APPELLEE:

A. C. WHARTON, JR.                       PAUL G. SUMMERS
Shelby County Public Defender            Attorney General and Reporter

BETTY J. THOMAS                          PETER M. COUGHLAN
Assistant Public Defender                Assistant Attorney General
201 Poplar Avenue, 2nd Floor             Cordell Hull Building, 2nd Floor
Memphis, TN 38103-1947                   425 Fifth Avenue North
                                         Nashville, TN 37243-0493

                                         WILLIAM L. GIBBONS
                                         District Attorney General

                                         DAVID C. HENRY
                                         TIM BEACHAM
                                         Assistant District Attorneys
                                            General
                                         201 Poplar Avenue, 3rd Floor
                                         Memphis, TN 38103-1947




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                    OPINION


       Defendant, Billy B. Brown, was convicted by a Shelby County jury of

premeditated first degree murder and two counts of attempted first degree murder.

He received concurrent sentences of life with the possibility of parole for first degree

murder and twenty years for each of the attempted murders. The issue in this

appeal is whether the evidence is sufficient to support the conviction for

premeditated first degree murder, and whether the trial court erred in charging the

jury on the doctrine of “transferred intent.” The judgment of the trial court is

AFFIRMED.



                                       FACTS



       The state’s proof revealed that the defendant was married to Nicole Burrow;

however, they were estranged. Burrow was dating Jerry Jerome Parker (hereinafter

"Parker") which angered the defendant. Shortly prior to the incident in question, the

defendant told Burrow “if he catch me with [Parker], you know, he was going to hurt

me.”

       On the early morning of March 26, 1996, Burrow called defendant’s employer

to make certain that the defendant was at work. Upon ascertaining that he was,

Burrow, Parker, Thomas Parker (Parker’s sixty-three-year-old father), and Thomas

Parker’s friend drove to defendant’s apartment to secure Burrow’s belongings.

Unknown to Burrow, defendant left his employment shortly after Burrow’s phone

call. Upon arriving in the parking lot, they observed the defendant firing at them with

a pistol from the second floor balcony. A neighbor heard the defendant state,

“Nicole, my wife, I’ve got you dead to right.”

       Parker exited the vehicle and fled across the street while the defendant fired

at him. Burrow attempted to flee the parking lot in the car. Defendant continued to

fire, and one of the bullets entered the rear window and struck the elder Thomas

Parker in the head. Thomas Parker died as a result of the gunshot wound.




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       Other state witnesses observed the defendant firing from the second floor

balcony. No witness testified that they observed anybody in the Burrow vehicle with

any kind of weapon.

       The cross-examination of the state witnesses implied that Parker fired first

at the defendant with a sawed-off shotgun. An acquaintance of the defendant,

serving a sentence for aggravated burglary at the time of his testimony, related that

he arrived at the scene shortly after the shooting. He further stated that Nicole

Burrow asked him to take the sawed-off shotgun, which was visible under a car. He

testified he did so and subsequently threw it in a ditch. He further testified that

Burrow told him two days later that Parker had “shot that gun at Billy.”

       It was the state’s theory that the defendant was attempting to kill Burrow, but

the bullet struck Thomas Parker. The trial court charged the jury under the doctrine

of “transferred intent,” and the jury convicted the defendant of the premeditated first

degree murder of Thomas Parker.



                             TRANSFERRED INTENT



       Defendant contends the trial court erred in charging the doctrine of

"transferred intent."    Accordingly, the defendant argues that the evidence is

insufficient to establish that the defendant intentionally and premeditatedly took the

life of Thomas Parker.

       This case is controlled by the recent holding of the Tennessee Supreme

Court in Millen v. State, ___ S.W.2d ___ (Tenn. 1999), which was filed after the trial

of this case. In Millen the defendant was indicted for both premeditated murder and

felony murder. The jury was charged under the doctrine of "transferred intent," and

the jury convicted the defendant of premeditated first degree murder. The court

concluded that it was unnecessary to resort to the doctrine of "transferred intent"

under the first degree murder statute, and such an instruction should not be given.

Id. at ___.   The court noted that the most appropriate charge involving an

“unintended victim” is felony murder. Id. However, the court also concluded that



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if the evidence indicates that the defendant, with premeditation, intended to kill a

particular person, then the killing of another, even if not the intended victim, is

premeditated first degree murder. Id. at ___. Although the court found error in

charging "transferred intent," the court affirmed the premeditated first degree

murder conviction. Id. at ____.

       Millen requires the same result in the case at bar. The state was required to

prove beyond a reasonable doubt that the defendant intentionally and with

premeditation killed Thomas Parker. Tenn. Code Ann. § 39-13-202(a)(1)(Supp.

1995).1 Premeditation may be inferred from the manner and circumstances of the

killing. State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997). The use of a deadly

weapon upon an unarmed victim and prior declarations by the defendant of the

intent to kill may be indicative of premeditation. State v. Brown, 836 S.W.2d 530,

541 (Tenn. 1992). After viewing the evidence in a light most favorable to the

prosecution, there was more than sufficient evidence for the jury to have found that

the defendant intentionally and with premeditation attempted to kill Nicole Burrow,

but instead killed Thomas Parker. Although the trial court erred in charging the

doctrine of “transferred intent,” the error was harmless. Thus, the evidence is

sufficient to support the conviction of premeditated first degree murder of Thomas

Parker. Tenn R. App. P. 13(e).



                                     CONCLUSION



       We, therefore, conclude that the judgment of the trial court should be

AFFIRMED.




       1
         Millen was decided under the statute that also required proof of deliberation. Tenn.
Code Ann. § 39-13-202(a)(1)(1991). The statute was amended effective July 1, 1995, and
deleted the requirement of deliberation.

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                               ____________________________
                               JOE G. RILEY, JUDGE




CONCUR:


____________________________
JOHN H. PEAY, JUDGE



____________________________
THOMAS T. WOODALL, JUDGE




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