        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                              Assigned on Briefs June 17, 2014

          STATE OF TENNESSEE v. DAVID ORLANDO AVINGER

                 Appeal from the Criminal Court for Davidson County
                       No. 2013-A-71 Mark Fishburn, Judge




                No. M2013-01643-CCA-R3-CD - Filed August 25, 2014


Appellant, David Orlando Avinger, was indicted by a Davidson County grand jury for first
degree premeditated murder, first degree felony murder, and especially aggravated robbery.
After a jury trial, Appellant was convicted of the lesser included offense of second degree
murder, as well as the charged offenses of felony murder and especially aggravated robbery.
The trial court merged the convictions for second degree murder and felony murder, and
Appellant was sentenced to an effective life sentence. On appeal, Appellant challenges the
sufficiency of the convicting evidence and alleges that the trial court impermissibly limited
defense counsel’s cross-examination of a witness. After reviewing the record, we find that
the evidence was sufficient to convict Appellant and that there was no error in the ruling of
the trial court related to the limitation of the witness’s testimony. Accordingly, we affirm the
judgments of the trial court.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which N ORMA M CG EE O GLE and
R OGER A. P AGE, JJ., joined.

Jack Byrd, Nashville, Tennessee for the appellant, David Orlando Avinger.

Robert E. Cooper, Jr., Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; Janice Norman, Assistant District
Attorney General; and Rob McGuire, Assistant District Attorney General, for the appellee,
State of Tennessee.

                                          OPINION


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                                    Factual Background

        On December 12, 2009, Vincent Perkins arranged to meet with Antoinette Reynolds
in the parking lot of a Walgreens to sell her a quarter pound of marijuana, a much larger
quantity than their usual transactions entailed. Mr. Perkins was picked up by his friend,
Bryant Porter, and Mr. Porter’s half-brother, Eric Anderson. Once at the Walgreens, a black
female approached Mr. Porter’s car and got in the back seat. She said her cousin was
paralyzed and that Mr. Perkins would have to go over to the other car, a gold Ford Focus.
Mr. Perkins and the female exited the car, retrieved something from the trunk, and went over
to the Focus. Mr. Perkins and the woman both got into the passenger side of the Focus,
which then drove off quickly. Mr. Anderson and Mr. Porter attempted to follow the Focus,
but lost sight of it. Mr. Porter attempted to call Mr. Perkins; even though Mr. Perkins did not
respond, Mr. Porter could hear in the background a male voice repeatedly saying “get out of
the car.” Mr. Porter called Mr. Perkins again, and Mr. Perkins told him, “they shot me.” Mr.
Porter then called 911.

        Officer Clifton Huffmaster of the Metropolitan Nashville Police Department was on
patrol on December 12, 2009. He was dispatched to a house on Howard Street, where an
individual flagged him down and directed him to a front porch. Officer Huffmaster found
Mr. Perkins lying on the porch, suffering from a gunshot wound to his chest. Mr. Perkins’
arms were scraped and covered in mud. Officer Huffmaster attempted to get some
information from Mr. Perkins while waiting for the ambulance to arrive. Mr. Perkins told
the officer his name and date of birth, but did not say who shot him. Mr. Perkins later died
at the hospital.

       In December of 2009, Tequeila Burns was living with her then-girlfriend, Antoinette
Reynolds. On December 12, 2009, Ms. Burns drove Ms. Reynolds over to Appellant’s
house. Ms. Reynolds and Appellant were friends. Because Appellant was wheelchair bound,
Ms. Reynolds had to assist him into the front seat of Ms. Burns’ gold Ford Focus. The three
of them then proceeded to drive to the Walgreens parking lot. Ms. Burns testified at trial that
she did not know why they were going to Walgreens.

       Ms. Burns backed the Focus into a parking spot, and Ms. Reynolds walked over to
another car in the parking lot. Ms. Reynolds then returned with Mr. Perkins, who was
carrying a Walmart bag. Ms. Burns did not know Mr. Perkins. Mr. Perkins handed the bag
to Appellant, who then instructed Mr. Perkins to get into the car. Appellant then told Ms.
Burns to drive away. Ms. Burns drove about a block and a half before Appellant told her to
stop. Appellant repeatedly demanded that Mr. Perkins get out of the car. Mr. Perkins
refused. Appellant drew a gun and told Mr. Perkins he would shoot him if he did not get out
of the car by the time he counted to three. When Mr. Perkins did not get out of the car,

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Appellant shot him. Mr. Perkins fell out of the car, and Appellant told Ms. Burns to drive
away.

        Ms. Burns’ Focus was processed by the police for physical evidence. A small amount
of blood, a bullet, and fingerprints belonging to Ms. Burns and Ms. Reynolds were found.
No fingerprints or DNA was found connecting Appellant to the vehicle. A bag of marijuana
was recovered from the residence shared by Ms. Burns and Ms. Reynolds. Ms. Burns
testified at trial that Appellant had taken the marijuana with him when he left her car, but Ms.
Reynolds later said that he split it with her.

       Cell phone records for Mr. Perkins, Ms. Reynolds (who shared a phone with Ms.
Burns), and Appellant were obtained. There were numerous phone calls and text messages
between Mr. Perkins and Ms. Reynolds that clearly established that they were arranging a
drug transaction. They discussed a price of $375 for the quarter pound of marijuana as well
as possible locations to meet for the sale. There were also several intermittent calls between
Ms. Reynolds and Appellant during the same period of time. There was no activity on
Appellant’s phone for almost half an hour around the time that the shooting occurred.

         Sarah Mitchell was Appellant’s next-door neighbor. She testified for the defense at
trial that Appellant was with her the evening of December 12, 2009. She and Appellant were
smoking marijuana together outside of Appellant’s house. A woman named “Nette” arrived
in a gold Ford Focus and sold a large bag of marijuana to Appellant. Ms. Mitchell testified
that she and Appellant then went to her house to have dinner with her family. She testified
that they downloaded ring tones and sent them to each other’s phones. Ms. Mitchell testified
that Appellant was at her house for several hours. She did not recall seeing him talk on the
phone. Ms. Mitchell testified that she told the U.S. Marshals who were looking for Appellant
that she had last seen him the day of the murder, but she never told them that he was with her
during the time the murder took place.

        On January 18, 2013, Appellant was indicted by a Davidson County grand jury for
first degree murder, felony murder, and especially aggravated robbery. Ms. Reynolds was
indicted as a co-defendant for felony murder and especially aggravated robbery. After a trial,
the jury returned a verdict on February 7, 2013, finding Appellant guilty of the lesser-
included offense of second degree murder, as well as guilty of felony murder and especially
aggravated robbery. The trial court merged the convictions for second degree murder and
felony murder and sentenced Appellant to life. The trial court also imposed a concurrent
twenty-year sentence for especially aggravated robbery, for a total effective sentence of life
in prison. Appellant filed a motion for a new trial, which was denied on June 19, 2013.
Appellant filed a timely notice of appeal.



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                                           Analysis

                                I. Sufficiency of the Evidence

       Appellant argues that the evidence presented at trial was insufficient to support his
convictions. Specifically, he contends that there was no credible witness testimony or
physical evidence placing him inside the gold Ford Focus or connecting him in any other way
to the shooting of the victim. Additionally, he asserts that the “clear and uncontroverted
testimony” of Ms. Mitchell provided him with an alibi during the time in which the murder
took place. The State disagrees, arguing that the evidence established that Appellant shot the
victim after refusing to pay for the marijuana he had obtained from the victim.

        When a defendant challenges the sufficiency of the convicting evidence, the standard
of review applied by this Court is “whether, considering 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.” State v. Goodwin, 143 S.W.3d 771, 775 (Tenn.
2004) (quoting State v. Reid, 91 S.W.3d 247, 276 (Tenn. 2002)); see Jackson v. Virginia, 443
U.S. 307, 318–19 (1979); Tenn. R. App. P. 13(e). The prosecution is entitled to the
“strongest legitimate view of the evidence and to all reasonable and legitimate inferences that
may be drawn therefrom.” Goodwin, 143 S.W.3d at 775 (quoting State v. Smith, 24 S.W.3d
274, 279 (Tenn. 2000)). The jury’s verdict replaces the presumption of innocence with one
of guilt, and the burden is on the defendant to show that the evidence introduced at trial was
insufficient to support such a verdict. Reid, 91 S.W.3d at 277. This standard of review
applies whether the conviction was based on direct evidence, circumstantial evidence, or a
combination of the two. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011).

        Furthermore, questions concerning the “credibility of the witnesses, the weight to be
given their testimony, and the reconciliation of conflicts in the proof are matters entrusted
to the jury as the trier of fact.” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012) (quoting
State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008)). This is because the jury has “the
benefit of hearing witness testimony and observing witness demeanor.” State v. Robinson,
400 S.W.3d 529, 533 (Tenn. 2013). As the Tennessee Supreme Court explained almost half
a century ago:

       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.

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Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523
(Tenn. 1963)). Therefore, “[a] guilty verdict by the jury, approved by the trial court,
accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the
prosecution’s theory.” Reid, 91 S.W.3d at 277 (quoting State v. Bland, 958 S.W.2d 651, 659
(Tenn. 1997)). It is not the role of this Court to re-weigh the evidence nor to substitute our
own inferences for those drawn from the evidence by the trier of fact. Id.; Dorantes, 331
S.W.3d at 379.

       Felony murder is defined as the “killing of another committed in the perpetration of
or attempt to perpetrate any . . . robbery.” T.C.A. § 39-13-202(a)(2). Especially aggravated
robbery is the “intentional or knowing theft of property from the person,” that is
“accomplished with a deadly weapon,” and where the victim suffers “serious bodily injury.”
T.C.A. § 39-13-401(a) and -403(a).

       Viewing the evidence in a light most favorable to the State, the proof shows that Mr.
Perkins drove with his friends to the Walgreens parking lot, intending to sell a quarter pound
of marijuana to Antoinette Reynolds. Ms. Reynolds came over to the car, told Mr. Perkins
that her cousin was paralyzed, and walked with him back to a gold Ford Focus. Inside the
Focus were Ms. Burns in the driver’s seat and Appellant in the front passenger seat.
Appellant is paralyzed. Mr. Perkins gave Appellant a plastic shopping bag of marijuana; no
money was exchanged. Appellant told Mr. Perkins to get into the car and told Ms. Burns to
drive off. Appellant then told Ms. Burns to stop the car and demanded that Mr. Perkins get
out. When Mr. Perkins did not immediately comply, Appellant shot him in the chest. Mr.
Perkins then fell out of the car and Ms. Burns drove away.

       Appellant argues that there is no physical evidence, in the form of DNA or
fingerprints, connecting him to the gold Ford Focus. However, “[p]hysical evidence is not
a prerequisite to a conviction.” State v. Joseph William Wilson, No. W2001-03007-
CCA-R3-CD, 2003 WL 261939, at *6 (Tenn. Crim. App., at Jackson, May 27, 2003); see
also State v. Bonds, 189 S.W.3d 249, 256 (Tenn. Crim. App. 2005) (“corroboration of a
victim’s testimony by physical evidence is not required for a jury conviction to be upheld on
appeal”). The lack of physical evidence was brought to the jury’s attention through cross-
examination and closing arguments. The weight to be given to such evidence is a matter for
the jury and will not be re-weighed on appeal.

       Appellant claims that the testimony of his alibi witness, Ms. Mitchell, discredits the
testimony of Ms. Burns, the only evidence linking Appellant to the crime. However, as
previously noted, the credibility and weight given to a witness’s testimony, including alibi
witnesses, are issues resolved by the jury as the trier of fact. See Bland, 958 S.W.2d at 659;
Forbes v. State, 559 S.W.2d 318, 324 (Tenn. 1977). The testimony of Ms. Burns is direct

                                               -5-
evidence that Appellant took marijuana from Mr. Perkins without paying for it and then shot
Mr. Perkins in the chest. The jury, as was their prerogative, chose to accredit the testimony
of Ms. Burns over the testimony of Ms. Mitchell, and we will not second-guess the factual
determinations of the jury. Accordingly, Appellant is not entitled to relief on this issue.

                      II. Limitation of Cross-Examination of Ms. Burns

        Appellant alleges that the trial court improperly limited defense counsel’s cross-
examination of Ms. Burns as to her affiliation with known gang members. “Generally
speaking, a denial of the right to an effective cross-examination is ‘constitutional error of the
first magnitude and amounts to a violation of the basic right to a fair trial.’” State v. Dishman,
915 S.W.2d 458, 463 (Tenn. Crim. App. 1995) (quoting State v. Hill, 598 S.W.2d 815, 819
(Tenn. Crim. App. 1980)). However, the propriety, scope, manner, and control of cross-
examination rests within the discretion of the trial court and will not be disturbed on appeal
unless there has been an unreasonable restriction on the right. Id.

        Relevant evidence is “evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less probable than
it would be without the evidence.” Tenn. R. Evid. 401. Relevance is determined by the
issues presented for resolution in the trial, which, in turn, are determined by the elements of
the offense charged and the defense asserted by the accused. State v. Dubose, 953 S.W.2d
649, 653 (Tenn. 1997). Evidence that is not relevant is not admissible. Tenn. R. Evid. 402.
The standard of review for admissibility of evidence is abuse of discretion. Dubose, 953
S.W.2d at 652. A trial court abuses its discretion when it applies an incorrect legal standard
or reaches a decision that is against logic or reasoning that causes an injustice to the party
complaining. State v. Waller, 118 S.W.3d 368, 371 (Tenn. 2003).

        In a jury-out hearing, Ms. Burns testified that she was afraid of Appellant both
because she had witnessed him shoot someone in her car and because he was in a gang.
Defense counsel wanted to cross-examine Ms. Burns about her affiliation with other known
gang members, including her current girlfriend, in order to discredit her fear of Appellant.
After hearing the proposed testimony, the trial court ruled that the gang affiliation testimony
was not admissible. The trial court instructed Ms. Burns to limit her testimony to her initial
response that she was afraid of Appellant because she had just seen him shoot someone and
not to “get into the gang stuff.”

       The trial court essentially ruled that the testimony was not relevant: “This isn’t a trial
on whether or not [Appellant is] a gang member and we’ll spend half of [Ms. Burns’]
testimony on that issue,” rather than on substantive testimony about what she saw.
Additionally, the trial court seemed concerned about impermissible character evidence,

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stating that the proposed testimony “just muddies the water, in part for [Appellant]” by
showing his “propensity to commit a crime for which he is on trial.” See Tenn. R. Evid.
404(b). Without the testimony about Appellant’s gang affiliations, cross-examination of Ms.
Burns about her own affiliation with gang members would not be relevant since it is not an
act of dishonesty and has no direct bearing on her credibility.

       After reviewing the record, we do not find that the trial court abused its discretion in
finding that “the gang stuff” was inadmissible. Nor did the trial court unreasonably restrict
Appellant’s right to cross-examine Ms. Burns, since defense counsel was permitted to
question her stated fear of Appellant in other ways, such as pointing out the fact that she gave
him her new phone number the day after the murder. Furthermore, even if there was error,
we do not find that the limitation of the cross-examination of Ms. Burns on this one topic
“more probably than not affected the judgment,” in light of all the other evidence against
Appellant. Tenn. R. App. P. 36(b). Therefore, Appellant is not entitled to relief on this
issue.

                                       CONCLUSION

       For the foregoing reasons, we affirm the judgments of the trial court.




                                            ___________________________________
                                            JERRY L. SMITH, JUDGE




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