                                                                                       05/18/2018
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                          Assigned on Briefs April 3, 2018

           STATE OF TENNESSEE v. DEQUEVION LAMAR LEE

                 Appeal from the Circuit Court for Madison County
                           No. 14-522 Kyle Atkins, Judge
                     ___________________________________

                          No. W2017-01449-CCA-R3-CD
                      ___________________________________

The defendant, Dequevion Lamar Lee, was convicted by a Madison County jury for
attempted first-degree murder and aggravated assault. On appeal, he argues the evidence
is insufficient to sustain his convictions. Upon review, we affirm the judgments of the
trial court but remand the case for entry of a corrected judgment form as to count two
reflecting the defendant’s aggravated assault conviction was merged with count one.

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

J. ROSS DYER, J., delivered the opinion of the court, in which D. KELLY THOMAS, JR. and
ROBERT L. HOLLOWAY, JR., JJ., joined.

Joseph Taggart, Jackson, Tennessee, for the appellant, DeQuevion Lamar Lee.

Herbert H. Slatery III, Attorney General and Reporter; Garret D. Ward, Assistant
Attorney General; Jody Pickens, District Attorney General; and Ben Mayo, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                             Facts and Procedural History

       A Madison County grand jury indicted the defendant and his co-defendant,
Moriarco Montrell Lee, with one count of attempted first degree murder and one count of
aggravated assault involving the use of a deadly weapon. These indictments arose out of
a shooting that occurred on December 10, 2013, at 359 Lane Ave in Jackson, Tennessee,
next to the Tight Cuts Barbershop (“barbershop”). The defendant and co-defendant
arrived at the barbershop and shot the victim, Marketus Hendrix, several times before
fleeing. The victim survived the shooting and later identified both men as his attackers.
       The victim testified that, on December 10, 2013, around 3:00 p.m., he drove to the
barbershop. As he exited his car, a person the victim knew only as “Yogi” said “B**ch,
you’re about to die,” and two people began shooting at him. The shooters were not
wearing masks, and the defendant later stated he immediately recognized them as “Yogi”
and “D-Rich.” The victim was not able to verbally identify both men until later at the
hospital and was only able to provide their street names. Later, based on police
investigation, “Yogi” and “D-Rich” were identified as the co-defendant and defendant
respectively.

      At the time of the shooting, the co-defendant was standing “[n]ot too far from
where [the victim] parked,” near the stairs of the barbershop. The second shooter, the
defendant, was standing behind the barbershop to the left, in front of where the victim
parked. The victim was shot a total of fourteen times, sustaining wounds to the chest,
abdomen, arm, and leg, and was in the hospital for twenty-one days.

        About a week after the shooting and while still in the hospital, the victim was
interviewed by and gave a written statement to Investigator Alberto Colon. In his
statement, the victim identified his assailants as “Yogi” and “D-Rich.” He also told
officers that a person known as “Baldy” was driving the white Honda in which the
defendant and co-defendant fled. The victim acknowledged he knew “Baldy” and had a
sexual relationship with “Baldy’s” girlfriend, Megan, while “Baldy” was in jail. The
victim recognized the white Honda as Megan’s vehicle. Though marijuana was found on
the victim’s person by an officer who responded to the scene, the victim stated the
marijuana was for personal use only. The victim acknowledged the defendant was his
cousin, but he was unaware of this prior to the shooting. The victim was also unaware of
any motivation the defendant might have for shooting him and denied there had been any
problems between them in the past. The victim also testified he visited the barbershop
earlier that day and had seen “Baldy” there.

       Jackson Police Department (“JPD”) Officer James Jay Carter responded to a shots
fired call on December 10, 2013. Officer Carter was advised by dispatch “that they had
seen several subjects getting into a white-colored vehicle and leaving eastbound on . . .
Lane Avenue.” When Officer Carter arrived, he found the victim lying on the ground
with multiple gunshot wounds to his chest. Officer Carter was able to communicate with
the victim by getting him to nod and shake his head in response to questions. The victim
indicated there were four men in a white Honda and he recognized both shooters. Officer
Carter checked the victim’s pockets and found four small bags of marijuana. The victim
was transported to the hospital shortly thereafter.



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       JPD Investigator Marvin Rodish inspected the crime scene the same day.
Investigator Rodish recovered ten shell casings from the scene and two bullets, one of
which had traces of blood on it. He conceded there was no way to know how long the
shell casings and bullets had been on the scene.

        JPD Investigator Alberto Colon testified he was a sergeant in the Violent Crimes
Unit when he led the investigation in this case. When Investigator Colon interviewed the
victim in the hospital, the victim provided him with the “street” names of the shooters,
“Yogi” and “D-Rich.” Investigator Colon recalled the victim did not hesitate or appear
confused or doubtful about the identification. Based on the street names and sources
within a gang unit, Investigator Colon identified the suspects and put together two
photographic lineups for the victim to view. Upon viewing the photo spreads, the victim
identified the defendant and co-defendant as the shooters.

       Investigator Colon interviewed the victim again before the preliminary hearing,
and the victim told him where the second shooter had been standing. Consequentially,
Investigator Colon returned to the scene and found four additional .9 millimeter shell
casings on the ground where the victim said the second shooter had been standing. The
discovery of the additional shell casings occurred about a month after the shooting.
Another bullet was also recovered from the victim’s body at the hospital and collected as
evidence.

       On cross-examination, Investigator Colon confirmed none of the shell casings
were sent for fingerprint analysis and the guns used in the shooting were never located.
Investigator Colon also acknowledged he spoke with several witnesses at the scene but
none of the witnesses gave any valid or useful information. Investigator Colon confirmed
the victim mentioned an individual named “Baldy” in his statement and that Investigator
Colon identified and interviewed “Baldy.” On redirect, Investigator Colon confirmed the
victim never identified anyone other than the defendant and co-defendant as the shooters.
Investigator Colon also stated the victim identified the defendant as “D-Rich.”

       Kasia Michaud, a Special Agent Forensic Scientist employed by the Tennessee
Bureau of Investigation and assigned to the Firearms Identification Unit, examined the
shell casings and bullets in this case which included ten .40 caliber shell casings, three
bullets, and four .9 millimeter shell casings. Agent Michaud determined two guns were
used in the shooting by comparing the rifling on the casings. The ten .40 caliber shell
casings were all fired from the same weapon, and the four .9 millimeter shell casings
were fired from another. While Agent Michaud determined the three recovered bullets
came from the same gun, she could not confirm the bullets came from any of the shell
casings found on the scene. On cross-examination, Agent Michaud confirmed she could

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not tell how long the shell casings or bullets had been on the ground or if they had been
fired at the same time.

       The jury then heard testimony from Lashonda Lee, the defendant’s mother. Ms.
Lee testified that on December 10 the defendant and co-defendant were in Madison,
Tennessee, helping her move furniture. However, Ms. Lee conceded they were not with
her the entire time. She stated if the defendant and co-defendant were not at her house,
they were at her daughter’s house watching her grandson. Ms. Lee admitted that on
December 10, she was not present at her daughter’s house when both men were allegedly
there.

       After deliberation, the jury returned a verdict of guilty as to both counts. At the
sentencing hearing on July 6, 2015, the trial court merged the aggravated assault
conviction into the attempted first-degree murder conviction and sentenced the defendant
as a Range I, Standard Offender to twenty-two years in the Tennessee Department of
Correction. The defendant filed a motion for new trial on July 7, 2015, and a hearing was
held on June 21, 2016, at which the trial court denied relief. This timely appeal follows.

                                         Analysis

       The defendant argues the evidence is insufficient to support the jury’s verdict
because the State provided no evidence of a motive for the shooting and his alibi witness
went uncontested. When the sufficiency of the evidence is challenged, the relevant
question for 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). 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 has 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
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       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, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 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).

       Guilt may be found beyond a reasonable doubt where there is direct evidence,
circumstantial evidence, or a combination of the two. State v. Matthews, 805 S.W.2d
776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331 (Tenn.
1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The standard of review for
sufficiency of the evidence “‘is the same whether the conviction is based upon direct or
circumstantial evidence.’” Dorantes, 331 S.W.3d at 379 (quoting State v. Hanson, 279
S.W.3d 265, 275 (Tenn. 2009)). The jury as the trier of fact must evaluate the credibility
of the witnesses, determine the weight given to witnesses’ testimony, and reconcile all
conflicts in the evidence. State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008) (citing
Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)). Moreover, the jury
determines the weight to be given to circumstantial evidence and the inferences to be
drawn from this evidence and the extent to which the circumstances are consistent with
guilt and inconsistent with innocence are questions primarily for the jury. Dorantes, 331
S.W.3d at 379 (citing State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)). This Court,
when considering the sufficiency of the evidence, shall not reweigh the evidence or
substitute its inferences for those drawn by the trier of fact. Id.

        A person commits criminal attempt who, acting with the kind of culpability
otherwise required for the offense, “[a]cts 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)(2). First-degree murder is the
premeditated and intentional killing of another person. Id. § 39-13-202(a)(1).
Premeditation is defined as “an act done after the exercise of reflection and judgment.”
Id. § 39-13-202(d). Premeditation requires a finding that “the intent to kill must have
been formed prior to the act itself. It is not necessary that the purpose to kill preexist in
the mind of the accused for any definite period of time.” Id. The statute also specifies
that “[t]he 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.



                                            -5-
       The existence of premeditation is a question of fact for the jury to determine and
may be inferred from the circumstances surrounding the offense. State v. Young, 196
S.W.3d 85, 108 (Tenn. 2006) (citing State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997));
State v. Suttles, 30 S.W.3d 252, 261 (Tenn. 2000). Factors that may support the existence
of premeditation include, but are not limited to: the use of a deadly weapon upon an
unarmed victim, the particular cruelty of the killing, the infliction of multiple wounds,
declarations by the defendant of an intent to kill, lack of provocation by the victim,
failure to aid or assist the victim, evidence of procurement of a weapon, preparations
before the killing for concealment of the crime, calmness immediately after the killing,
and destruction and secretion of evidence of the killing. State v. Kiser, 284 S.W.3d 227,
268 (Tenn. 2009); State v. Leach, 148 S.W.3d 42, 53-54 (Tenn. 2004); State v. Davidson,
121 S.W.3d 600, 615 (Tenn. 2003); Bland, 958 S.W.2d at 660.

      Furthermore, an assault occurs when one “[i]ntentionally, knowingly, or recklessly
causes bodily injury to another[.]” Tenn. Code Ann. § 39-13-101(a)(1). An assault
becomes aggravated when one uses or displays a deadly weapon. Tenn. Code Ann. § 39-
13-102(a)(1)(A)(i). It is undisputed the assailants used deadly weapons.

        The defendant argues the evidence was insufficient because the State failed to
prove his motive for shooting the victim. Motive is not an element of the crime;
therefore, the State is not required to prove the defendant’s motive for committing the
crime. See State v. Dwight Richeson, No. 03C01-9209-CR-324, 1993 WL 188049, at *2
(Tenn. Crim. App. June 2, 1993) (holding that the State is not required to prove motive if
it is not an element of the crime). Additionally, as the Tennessee Supreme Court has
held, “[c]ircumstantial evidence alone is sufficient to support a conviction, and the
circumstantial evidence need not exclude every reasonable hypothesis except that of
guilt.” State v. Hawkins, 406 S.W.3d 121, 131 (Tenn. 2013) (citing State v. Wagner, 382
S.W.3d 289, 297 (Tenn. 2012); Dorantes, 331 S.W.3d at 379-81). Here, the victim
testified the defendant and co-defendant confronted him while entering a barbershop.
The co-defendant then stated “B****, you’re about to die,” and both men immediately
shot the victim. The victim was shot fourteen times. When questioned by investigators,
the victim repeatedly identified the shooters without hesitation. Viewed in the light most
favorable to the State, a reasonable juror could have found the defendant guilty of
attempted first-degree murder and aggravated assault beyond a reasonable doubt.
Accordingly, the defendant is not entitled to relief.

       The defendant further argues the evidence is insufficient because the testimony of
his alibi witness, his mother, was uncontested. We disagree. The State presented
evidence from the victim who positively identified the defendant as one of the assailants
present at the scene on December 10, implicitly rebutting Ms. Lee’s testimony.
Consequently, the jury chose not to accredit her testimony and resolved all conflicts in
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favor of the State. See Bland, 958 S.W.2d at 659. This inference is supported by Ms.
Lee’s concession that the defendant was not present with her during the entire day. The
defendant, therefore, is not entitled to relief.

        Finally, we detect some errors in the entry of the judgment forms in this case. The
trial court noted in the title and the “Special Conditions” box of the attempted first degree
murder judgment form that the defendant’s aggravated assault conviction, count two, was
merging with the attempted first degree murder conviction, count one; however, the trial
court did not enter a separate judgment form for the aggravated assault conviction, as
required by the Tennessee Supreme Court. See State v. Berry, 503 S.W.3d 360, 364
(Tenn. 2015) (“[W]hen two jury verdicts are merged into a single conviction, the trial
court should complete a uniform judgment document for each count.”). Therefore, we
must remand the case to the trial court for entry of a separate judgment form showing the
entry of merger as to the specified count. See State v. Moriarco Montrell Lee, No.
W2016-01391-CCA-R3-CD, 2017 WL 1380016, at *5 (Tenn. Crim. App. Apr. 13, 2017)

                                        Conclusion

        Based upon the foregoing authorities and reasoning, we affirm the judgments of
the trial court but remand the case for entry of a corrected judgment as specified in this
opinion.



                                              ____________________________________
                                              J. ROSS DYER, JUDGE




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