        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs August 20, 2014

         STATE OF TENNESSEE v. QUINISHA RENEE BRABSON

                Appeal from the Criminal Court for Hamilton County
                       No. 276805   Rebecca J. Stern, Judge




               No. E2013-02335-CCA-R3-CD-FILED-OCTOBER 29, 2014




The defendant, Quinisha Renee Brabson, was convicted after a jury trial of second degree
murder, a Class A felony. On appeal, the defendant challenges the sufficiency of the
evidence, asserting that the defendant should either have been acquitted as acting in self-
defense or convicted only of the lesser-included offense of voluntary manslaughter. After a
thorough review of the record, we conclude that the evidence was sufficient to support the
verdict, and we accordingly affirm the judgment of the trial court.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which C AMILLE R.
M CM ULLEN, J., and D AVID A. P ATTERSON, S P.J., joined.

Donna Miller and Lorrie Miller (at trial) and Donna Miller (on appeal), Chattanooga,
Tennessee, for the appellant, Quinisha Renee Brabson.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Senior Counsel;
William H. Cox, III, District Attorney General; and Brian Finlay and Matthew Rogers,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                        OPINION

                 FACTUAL AND PROCEDURAL HISTORY
       The homicide at issue occurred when the victim, Timmy Nichols, drove up to the
defendant and her girlfriend at random on the street, intent on exchanging some pills in his
possession for crack cocaine. The defendant, under disputed circumstances, ultimately shot
the victim.

         Lisa Greenlief, the victim’s girlfriend and the only witness to the shooting to testify
at trial, established that the victim was hoping to complete a drug transaction at the time of
his death. Ms. Greenlief testified that she, the victim, and Jeff Young drove from Cleveland,
Tennessee, into Chattanooga, hoping to exchange some prescription medication in the
victim’s possession for crack cocaine. Ms. Greenlief was in the passenger’s seat, Mr. Young
was in the back seat on the driver’s side, and the victim was driving. Ms. Greenlief testified
that it was around 7:30 or 8:00 p.m. on April 9, 2010, although other evidence established
that the shooting occurred sometime after midnight on April 8, 2010. Ms. Greenlief testified
that the victim pulled over onto a sidewalk where the defendant and several other people
were standing. She stated she did not know how many people were there, but she also
testified that there were five or six people and that “a bunch of young kids” were standing
on the sidewalk. She testified that the victim spoke to the defendant to ask her to trade pills
for crack but did not say anything threatening. The defendant and some girls were standing
on the driver’s side of the car. She testified that the victim was calm and merely held up the
pill bottle.

        Ms. Greenlief’s testimony was that the defendant shot without provocation. She told
the jury that the window was cracked and that the defendant walked up to it and fired, killing
the victim. She was facing the victim head-on. Ms. Greenlief said that the defendant “pulled
out a gun and she just rapidly shot him. I mean, head on, I mean just fired away without even
thinking she shot him.” She speculated the defendant knew the victim or thought he was an
undercover police officer. Ms. Greenlief further testified, “She got like she was scared or
something like that and he asked, you know, for the trade, the exchange[,] and she pulled out
a gun and shot him from the driver’s side.” After having been shot, the victim drove away
at fifty or sixty miles per hour and crashed into a telephone pole. Ms. Greenlief broke her
leg in the accident, and the backseat passenger rolled down the window and ran away to
avoid police. Ms. Greenlief gave police a description of the shooter as five feet, seven inches
tall, with a medium1 build and dark complexion, wearing a white shirt and black shorts.

       Ms. Greenlief acknowledged a prior theft conviction and testified she was bipolar and
on medication for her condition at the time. The defense impeached Ms. Greenlief with
inconsistencies in her testimony and between her testimony and statements to the police as

       1
         She also stated at trial that the shooter had a slender build. A photograph at the time of
the defedant’s arrest reveals that her build is not slender.

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well as inconsistencies with the physical evidence. Although Ms. Greenlief testified at trial
that the driver’s window was cracked, she recalled telling Investigator Wenger that the
window would not roll down. She also recalled telling Investigator Wenger that the bullet
went through the driver’s window, which shattered and sent pieces of glass all over her face,
but she testified she was not in her “right mind” when she told him that. Photographs of the
car showed that the driver’s window was intact and rolled up. Ms. Greenlief recalled telling
Investigator Wenger that the defendant was on the passenger’s side of the car but testified
at trial that she had been wrong. She did not recall saying the defendant walked around the
hood of the car to the driver’s window or saying that the defendant leaned inside the car and
put her hands on the passenger’s side window. She also denied being shown a photographic
lineup.

       The defendant was picked up by police about twelve blocks from the scene of the
shooting. Officer Lauren Wenger testified the defendant was walking with two other people
and was sweating excessively.2 Officer Wenger had been looking for a heavy-set black
woman wearing black shorts and a white T-shirt with her hair pulled back, and the defendant
matched this description.

        Investigator Michael Wenger was assigned to the case, and he interviewed the
victim’s two companions, the defendant’s companions, and finally the defendant herself.
The police were summoned at approximately 12:45 a.m. to the scene of the accident, and the
defendant was detained at about 1:08 a.m. She signed a waiver of rights at 8:20 a.m., and
her statement to Investigator Wenger was audio recorded and introduced into evidence at the
trial.

        The defendant’s statement essentially asserts that she used the gun in an effort to
protect herself and her girlfriend. She stated that she and her girlfriend were walking through
a parking lot when a man drove up to them. The man turned the vehicle around to follow
them and was trying to sell pills for a dollar. She described behavior she found threatening
on the part of the victim, including the fact that he kept addressing her girlfriend on the
passenger’s side of the car instead of speaking with her on the driver’s side and the fact that
he kept asking how old her girlfriend was. The defendant told Investigator Wenger that the
victim was cursing at her, saying, “I’m not talking to you, b*tch.” She described the
occupants of the car as drinking and “geeked up.” She told Investigator Wenger that she
thought the victim, whose eyes were red, was going to “get” them and specifically was afraid
he was going to try to rape her girlfriend. The defendant described the victim as “flipping
out,” and she stated that before she shot, he opened his car door and made a motion as though
to get out of the car. The defendant admitted pulling out the gun and firing it once, although

       2
           The record suggests that a third companion, a juvenile, was also brought in by police.

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she stated she was aiming for the tires. She ran from the scene and dropped the gun by a
house. She told Investigator Wenger that she had found the gun in the street earlier that
night.

       Investigator Wenger testified that the defendant took officers to the house where she
said she dropped the gun, and no gun was recovered. The home’s resident told him that she
had seen two men and a woman in her back yard the night before, looking for something.
He also testified that prior to the recording, the defendant had told him that the victim had
a gun, but during the interview, she acknowledged that she did not see a gun.

       The defense further impeached Ms. Greenlief’s testimony when Investigator Wenger
confirmed that she had told him a window shattered with the gunshot and when he testified
that she was shown a photographic lineup of eight people and that she picked an individual
who was not the defendant as the shooter. He confirmed that Mr. Young was intoxicated at
the hospital.

       Sergeant Heather Williams photographed the scene of the crime. She confirmed that
none of the windows were shattered, although the windshield was broken in the crash. The
driver’s side window was not cracked but was rolled up, and police had not moved the
window. The passenger’s side window was down, and both back windows were partially
down. Ms. Williams photographed and collected a bottle of prescription medication from
the floor on the driver’s side of the car. She also discovered a projectile in the passenger’s
seat. The driver’s seatback and headrest had been removed from the vehicle by emergency
personnel. She photographed what appeared to be the path of a projectile through the
headrest. One hole was on the side of the headrest that would be facing the driver’s side
door; the other was on the front of the headrest where the driver’s head would normally rest.
The photographs show that the driver’s side seatbelt was still buckled and had been cut to
release the occupant.
       The medical examiner, Dr. James Metcalfe, testified that the victim died of a gunshot
wound to the back. The bullet entered his back near the left shoulder and exited at his right
nipple, traveling slightly downward and severing the pulmonary artery. The victim’s blood
alcohol content was 0.03 percent, and he had a small amount of cocaine in his system. He
was six feet, two inches tall.

         At the close of the State’s proof, the defendant moved for a judgment of acquittal on
the charged offense, asserting that the State had not disproved adequate provocation and that
the State had not established a knowing killing. Prior to the ruling, the defense attorney
explained that she believed she had to “by law stand on the motion and not put on any proof
if [the court] does not sustain the motion.” The trial court denied the motion, concluding that
the testimony of Ms. Greenlief could support a second degree murder conviction and that this

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proof was enough to allow the jury to make the determination. The attorney for the defense
then asserted that “that means that we cannot, that we would waive that motion by putting
on proof.”3 Defense counsel asked for a moment to consult with the defendant, after which
the defendant waived her right to testify. The jury convicted the defendant of second degree
murder, and the trial court sentenced her to sixteen years’ incarceration. On appeal, the
defendant challenges the sufficiency of the evidence.

                                           ANALYSIS

        This court must set aside a finding of guilt if the evidence is insufficient to support
the finding by the trier of fact of guilt beyond a reasonable doubt. Tenn. R. App. P. 13(e).
When a court evaluates the sufficiency of the evidence, it must determine whether, after
considering the evidence in a 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.
Hall, 8 S.W.3d 593, 599 (Tenn. 1999). This court will not reweigh or reevaluate the
evidence, nor may it substitute its inferences drawn from circumstantial evidence for those
of the trier of fact. State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004). The jury’s guilty
verdict, approved by the trial court, accredits the testimony of the State’s witnesses and
resolves all conflicts of evidence in the prosecution’s favor. State v. Bland, 958 S.W.2d 651,
659 (Tenn. 1997). “Questions concerning the credibility of witnesses, the weight and value
to be given the evidence, as well as all factual issues raised by the evidence are resolved by
the trier of fact.” Id. The State is entitled to the strongest legitimate view of the evidence
and to all reasonable and legitimate inferences that can be drawn from it. Hall, 8 S.W.3d at
599. “A verdict of guilt 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 verdict rendered by the jury.” State v. Reid, 91 S.W.3d
247, 277 (Tenn. 2002).

      The defendant’s brief argues that the State did not exclude every reasonable
hypothesis except guilt. As the defendant was convicted based on direct and not
circumstantial evidence, and as this is in any event no longer the standard for evaluating
circumstantial evidence in Tennessee, this argument has no merit. See State v. Wagner, 382


       3
         While defense counsel is technically correct that presenting proof after the denial of a
motion for acquittal waives the issue, waiver of the motion for acquittal does not, of course,
waive a subsequent challenge to the sufficiency of the evidence. State v. Collier, 411 S.W.3d
886, 893 (Tenn. 2013). Instead, if any evidence favorable to the State is introduced after the
motion for acquittal is denied, this evidence can also be used in evaluating the sufficiency of the
evidence and may bolster the State’s case. See Finch v. State, 226 S.W.3d 307, 316-17 (Tenn.
2007).

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S.W.3d 289, 297 (Tenn. 2012) (“Circumstantial evidence alone is sufficient to support a
conviction, and the circumstantial evidence need not exclude every reasonable hypothesis
except that of guilt.”). Citing the statutory provision regarding criminal attempt, the brief
also inexplicably argues that the defendant’s entire course of action was not corroborative
of her intent to kill. See T.C.A. § 39-12-101(b). Of course, the defendant was not convicted
of the attempted but of the completed crime, and this provision therefore has no application
to the defendant’s case. Finally, the defendant alleges that she should either have been
acquitted as acting in defense of herself and others or convicted only of the lesser-included
offense of voluntary manslaughter.

        The defendant was convicted of second degree murder, which is a “knowing killing
of another.” T.C.A. § 39-13-210(a)(1)(2014). “A person acts knowingly with respect to a
result of the person’s conduct when the person is aware that the conduct is reasonably certain
to cause the result.” T.C.A. § 39-11-302(b). Voluntary manslaughter is “the intentional or
knowing killing of another in a state of passion produced by adequate provocation sufficient
to lead a reasonable person to act in an irrational manner.” T.C.A. § 39-13-211(a). Self-
defense is a justification which may be invoked when a person not engaged in unlawful
activity and in a place where the person has a right to be threatens or uses force intended or
likely to cause death or serious bodily injury. T.C.A. § 39-11-611(b)(2). Such force is
justified when the person has a reasonable belief that there is an imminent danger of death
or serious bodily injury; the danger creating the belief of imminent death or serious bodily
injury is real, or honestly believed to be real at the time; and the belief of danger is founded
upon reasonable grounds. T.C.A. § 39-11-611(b)(2)(A)-(C). The defense of another is
justified under circumstances similar to those justifying self-defense. T.C.A. § 39-11-612.

        Here, the defendant asserts that the proof established either self-defense, defense of
a third person, or adequate provocation. She points to facts in the record which detract from
the credibility of Ms. Greenlief’s testimony. Ms. Greenlief acknowledged having told
investigators that the driver’s side window would not roll down and that the shooter had
shattered it with the bullet, sending glass into Ms. Greenlief’s face. She also recalled telling
investigators that the defendant was initially on the passenger’s side of the vehicle. This
testimony was at odds with her testimony at trial that the window was cracked, that it did not
shatter, and that the defendant was on the driver’s side. It was also at odds with the physical
evidence that the window was not broken or rolled down. Ms. Greenlief’s testimony that the
defendant shot the victim head-on was also inconsistent with the physical evidence showing
that the bullet entered his upper back near the left shoulder and traveled at a downward angle
to exit near his right nipple. Ms. Greenlief was incorrect about the time of the shooting and
testified that it happened on a sidewalk rather than a parking lot. Ms. Greenlief also denied
ever being shown a photographic lineup, although Investigator Wenger testified that she was
shown one and chose a person other than the defendant as the shooter.

                                               6
        The defense also relies on Ms. Greenlief’s testimony that the defendant was “scared
or something like that.” This testimony bolsters the defendant’s version of events that she
was afraid and shot out of fear. However, it does not resolve the question of whether the
defendant acted in self-defense or as a result of adequate provocation. Self-defense also
requires, among other things, a reasonable belief that there is an imminent danger of death
or serious bodily injury, and a conviction for voluntary manslaughter would require the jury
to find that the defendant acted in a state of passion produced by adequate provocation
sufficient to lead a reasonable person to act in an irrational manner.

        Ultimately, Ms. Greenlief’s testimony was that the defendant, either recognizing the
victim or mistaking him for someone, approached the vehicle and shot without warning or
provocation. The jury was presented with two accounts of the events: that the defendant was
pursued by the victim, who behaved aggressively and attempted to exit the car to assault her,
or that the defendant was approached calmly by the victim and then shot without reason or
provocation. Determining which version (if either) to believe and determining what
constitutes adequate provocation are questions for the jury. Bland, 958 S.W.2d at 659; State
v. Johnson, 909 S.W.2d 461, 464 (Tenn. Crim. App. 1995). Of course, the jury is free to
accept some portions of a witness’s testimony and to reject others. State v. Adams, 45
S.W.3d 46, 56 (Tenn. Crim. App. 2000). The credibility of Ms. Greenlief’s testimony
regarding the shooting itself was ultimately a jury question which we will not revisit on
appeal. We conclude that, based on the evidence presented at trial, a rational finder of fact
could have concluded that the homicide was the result of a knowing act rather than self-
defense or adequate provocation producing a state of passion.

                                       CONCLUSION

       Because the record contains evidence sufficient to sustain the jury’s verdict, we
conclude that the defendant is not entitled to relief on the sole issue raised, and we affirm the
judgment of the trial court. The State correctly points out that the judgment form contains
an error in that it indicates the defendant pled guilty, and we remand for correction of this
form.




                                                    _________________________________
                                                     JOHN EVERETT WILLIAMS, JUDGE




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