         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs September 7, 2011

                   STATE OF TENNESSEE v. DERRICK RICE

               Direct Appeal from the Criminal Court of Shelby County

                         No. 08-07884      J. Robert Carter, Judge


               No. W2010-02421-CCA-R3-CD - Filed November 9, 2011


Derrick Rice (“the Defendant”) appeals jury convictions for first degree premeditated murder
and attempted first degree premeditated murder, claiming that the trial court erred in denying
extrinsic evidence of a prior inconsistent statement to impeach the testimony of a witness and
challenging the sufficiency of the evidence for both convictions. After a thorough review
of the record and the applicable law, we affirm the Defendant’s convictions.

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

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL and
A LAN E. G LENN, JJ., joined.

Barry W. Kuhn (on appeal) and Jane Sturdivant (at trial), Memphis, Tennessee, for the
appellant, Derrick Rice.

Robert E. Cooper, Jr., Attorney General & Reporter; Sophia S. Lee, Assistant Attorney
General; William L. Gibbons, District Attorney General; Patience Branham, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

                           Factual and Procedural Background

        This case arises out of a shooting in Shelby County on June 1, 2008, that killed
Antonio Polk and injured Michelle Wright. The Defendant was subsequently indicted for
first degree premeditated murder, attempted first degree premeditated murder, and employing
a firearm in the commission of a felony. Before trial, the trial court dismissed the third count
of the indictment. On October 7, 2010, a jury convicted the Defendant of first degree
premeditated murder and attempted first degree premeditated murder. The trial court
sentenced the Defendant to life imprisonment for the first degree murder conviction and a
fifteen year concurrent sentence for the attempted first degree murder conviction. The
Defendant filed a motion for a new trial, which was denied by the trial court. The Defendant
then filed a timely notice of appeal.

        At trial, Ms. Wright1 testified that, on the day of the shooting, she was sitting on the
back steps of her house with her son, Polk. She stated that when she first saw the Defendant,
he was walking through her house from the kitchen and about to exit through the back door.
Ms. Wright indicated that she had a three-month relationship with the Defendant at that time,
but she was not expecting him at her house at that time. She testified2 that, as the Defendant
walked out the back door, he asked her what she was doing. She thought that the Defendant
then shared some words with Polk, at which point Polk looked at the Defendant and then
jumped up from the step. Ms. Wright saw the Defendant reach into his pocket and pull out
a gun with which he immediately shot Polk. Ms. Wright testified that she asked the
Defendant why he shot Polk, and as she jumped up and ran, the Defendant shot her in the
back. She stated that she then ran around the side of the house to the front in order to get to
her brother’s house next door. She testified that she lay on the floor at her brother’s house
until the ambulance arrived and transported her to the hospital.

       Gary Wright, Ms. Wright’s brother and next door neighbor, testified that he was in his
house when he heard two gunshots. According to Wright, he went to open the front door and
saw his nephew, Polk, standing outside with his hand around his neck trying to say
something. Wright said that Polk fell into the living room, and Wright asked his son to call
the paramedic. Wright testified that he then heard Ms. Wright screaming outside. He stated,

        So, I go back to the door to see where she’s at, she’s hollering. So, when I
        open my wrought iron door she come around the side of her house running
        across her grass to my door. At that time, I see her and I see [the Defendant].
        He’s behind her, he’s like in the driveway, because she’s running toward my
        door. He aimed the firearm he had in his hand and fired one shot at her, hit
        her[.]




        1
        There are two witnesses in this case with the last name “Wright.” Therefore, in order to avoid
confusion, we will refer to Michelle Wright as “Ms. Wright” and Gary Wright as “Wright.”
        2
          Ms. Wright is hearing impaired. She required an interpreter at trial to use sign language in order
to help facilitate her testimony.

                                                    -2-
(Emphases added). Wright continued: “once he hit her, shot her with the gun, and I see[n]
her wimp [sic] down, when she approached the steps, so I reached my hand out to reach and
grab her to pull her from the step into the house.” After Wright got his sister into his house,
he returned to his door and saw the Defendant on the sidewalk in front of Wright’s house.
Wright demanded to know what the Defendant was doing, but the Defendant did not respond.
Instead, according to Wright, the Defendant “looked and pointed the gun and fired a shot.”
Wright closed his door, reopened it, and again spoke to the Defendant who was now across
the street. The police arrived shortly thereafter and detained the Defendant. Wright stated
that he heard four shots in all: the first two, then the one that hit his sister, and the fourth shot
at him.

        On cross-examination, Wright verified that his testimony was that he actually saw his
sister get shot. She was hit while on Wright’s front steps, and the shot hit her in her back.
Wright also acknowledged having given a statement to the police on the night of the
shooting. Defense counsel asked if Wright “recall[ed] telling [the police] that [he] did not
see her get shot.” Wright responded, “Excuse me. No. No. Watching my sister, coming from
the side of the house, looking at [the Defendant]. [The Defendant] looking at me, as he’s
approaching my sister. I watched [the Defendant] fire one shot, and hit my sister.”

      On redirect examination, the State showed Wright a single page document titled
“Photographic Line-up Statement.” On this document, Wright identified the statement “I
saw him shoot my sister” as being his own handwriting. This document was admitted into
evidence without objection. Wright also testified on redirect that he saw the gun in the
Defendant’s hand, and he believed the gun to be a .38 or .32 caliber black handgun.

        On recross-examination, defense counsel asked, “[s]o, what you said in 2008 about
four hours after the incident when you said you did not see him and did not see him for
another thirty seconds, that was incorrect?” Wright responded, “I saw Derrick shoot her and
at the same time Derrick was still in my eyesight after he shot my sister. [He w]alked across
the street and knocked on his door, his brother’s door, and the police was [sic] coming up the
street.”

       Officer Christopher Ross of the Memphis Police Department (“MPD”) testified that
he arrived on the scene with his partner after hearing about six or seven gunshots from a
block away. As they neared the scene, they saw a man running along the side of the road
with a small black revolver. Officer Ross identified that man at trial as the Defendant.
Officer Ross stated that he and his partner held the Defendant at gunpoint, instructed him to
drop his weapon, and detained him in the back of their squad car. Officer Ross testified that
while he was in the car writing his report, the Defendant began to talk spontaneously. The
Defendant said, “I told them not to f**k with me . . . . I was trained by the military. I was


                                                 -3-
a trained killer, and that’s my job, and they had no business f**king with me like that.”
Officer Ross noted that the Defendant had an odor of alcohol on his breath but was talking
coherently.

       Michael McCaslin, a firefighter and Emergency Medical Technician for the Memphis
Fire Department, testified that he arrived on the scene after receiving a call about a shooting
with multiple victims. McCaslin stated that when he arrived, there were already paramedics
working on Ms. Wright, so he placed electrodes on Polk’s back to attempt to find his heart
rate. Polk, however, was already dead. Shifting his focus to Ms. Wright, who was in critical
condition, McCaslin transported her to Regional Medical Center.

        Officer Joseph Stark of the MPD testified that he interviewed the Defendant the day
after the shooting. Before Officer Stark was able to go through the advice of rights, the
Defendant told Officer Stark that he was sorry he shot Polk and Ms. Wright. Once Officer
Stark finished the advice of rights, the Defendant said he wanted an attorney before
proceeding. However, Officer Stark testified that the Defendant changed his mind before
being taken back to jail and waived his right to an attorney.

       Officer Stark stated that the Defendant then told him that, on the day of the shooting,
the Defendant had been on the phone with Polk. The Defendant told Officer Stark that Polk
was “talking stupid” and hung up in the Defendant’s face. According to the Defendant, he
then took a gun with him to Ms. Wright’s house because Polk had threatened him on a
previous occasion. The Defendant told Officer Stark that, once he got over to the house,
“[Polk] stood up like he was fixing to do something and that’s when I started shooting.” The
Defendant stated, “[t]hen they jumped up and ran and I kept on shooting.” When Officer
Stark asked about the previous situation in which Polk threatened the Defendant, the
Defendant said, “[Polk] told me that if I touched [Ms. Wright] he was going to bust my head.
I told him, boy, you better get in your place.” Officer Stark testified that the Defendant
claimed he had consumed half a pint of whiskey and a quart of beer on the day of the
shooting.

        On cross-examination, Officer Stark testified that he waited twenty-four hours to take
the Defendant’s statement because the Defendant was intoxicated on the day of the shooting.
Officer Stark also acknowledged that he took a statement from Wright on the day of the
shooting. Defense counsel asked Officer Stark if he would like to review Wright’s statement
before answering questions about it, and Officer Stark responded that he would. At that
point, the State objected to further cross-examination about Wright’s statement. The trial
court sustained the State’s objection on the basis that Wright “was pretty vague . . . as
opposed to denying . . . the statement” that he had not actually seen the Defendant shoot Ms.
Wright. The trial judge stated, “my notes reflect that when [Wright] was asked about


                                              -4-
whether he saw the shooting or just the flinch, that he then said, yes, it was actually the
flinch, but I know [the Defendant] shot [Ms. Wright].” Defense counsel did not proffer a
copy of Wright’s statement for identification purposes3 and did not further pursue the topic
of Wright’s statement.

       Lieutenant Walter Davidson testified that the weapon retrieved from the Defendant
was a .38 Smith and Wesson revolver. On cross-examination, the defense asked Lieutenant
Davidson why he decided not to interview the Defendant on the day of the shooting.
Lieutenant Davidson responded that “[the Defendant] was drunk.” He added,

        [a]nd it’s part of our– when we advise someone of their rights, we have to be
        able to come in front of you all and testify that we knew that [the Defendant]
        understood his rights and if he was intoxicated, I don’t believe I could testify
        to you all that he would understand his rights.

       On redirect, the State asked whether the Defendant was coherent on the day of the
shooting. Lieutenant Davidson said yes, but, in light of the fact that the Defendant had been
drinking, Lieutenant Davidson did not want to take a chance. The State said, “[s]o, it was
out of an abundance of caution?” and Lieutenant Davidson agreed.

        Sergeant Marlon Wright of the MPD testified that he went to the scene of the shooting
as part of the crime scene investigation. At trial, he identified three spent casings which were
found at and around the steps of the house across the street from Ms. Wright. Sergeant
Wright explained that, in a revolver, the spent casings must be physically removed from the
cylinder of the gun.

        Dr. Marco Ross of the Shelby County Medical Examiner’s Office testified regarding
Polk’s autopsy report, stating that the cause of death was a gunshot wound to the side of the
torso, penetrating the lung, esophagus, and aorta before exiting out the other side and into
his arm. Dr. Ross indicated that the wound was consistent with someone running. He also
identified the bullet found in Polk’s arm during the autopsy.

       Cervinia Braswell of the Tennessee Bureau of Investigation testified regarding her
forensic analysis of the revolver retrieved from the Defendant. Agent Braswell indicated that
the shell casings found across the street from Ms. Wright’s house as well as the bullet
retrieved from Polk’s arm were fired from the revolver recovered from the Defendant.


       3
         While proffering the statement for identification purposes was not required, it would have been
helpful in order for this Court to determine whether Wright’s prior inconsistent statement was, indeed,
inconsistent. See Tenn. R. Evid. 613(b).

                                                  -5-
        At the end of the State’s proof, the Defendant chose not to testify and the defense put
on no proof. After deliberation, the jury returned guilty verdicts for both first degree
premeditated murder and attempted first degree premeditated murder . The Defendant now
appeals, arguing that the court erred in denying evidence of Wright’s prior inconsistent
statement and also challenging the sufficiency of the evidence for both convictions.
Specifically, in his challenge regarding the sufficiency of the evidence, the Defendant asserts
that his voluntary intoxication negated the premeditation and intent elements required for
both convictions.

                                             ANALYSIS

                       I. Extrinsic Proof of Prior Inconsistent Statement

       The Defendant argues that the trial court erred in not allowing him to adduce proof
through Officer Stark that Wright had made a prior inconsistent statement regarding whether
or not Wright saw the Defendant shoot Ms. Wright. The State responds that extrinsic
evidence was not necessary and, in the alternative, that any error based on the exclusion of
that evidence was harmless.4

                                       A. Standard of Review

        We review issues regarding the admissibility of evidence under an abuse of discretion
standard. State v. Looper, 118 S.W.3d 386, 422-23 (Tenn. Crim. App. 2003) (quoting State
v. James, 81 S.W.3d 751, 760 (Tenn. 2002)). Thus, the trial court’s decision will remain
intact unless the reviewing court determines that the trial court abused its discretion. State
v. Banks, 271 S.W.3d 90, 116 (Tenn. 2008). The only situations in which reviewing courts
in Tennessee will find an abuse of discretion are “when the trial court applied incorrect legal
standards, reached an illogical conclusion, based its decision on a clearly erroneous
assessment of the evidence, or employed reasoning that causes an injustice to the
complaining party.” Banks, 271 S.W.3d at 116 (citing Konvalinka v. Chattanooga-Hamilton
Cnty. Hosp. Auth., 249 S.W.3d 346, 358 (Tenn. 2008)). See also Looper, 118 S.W.3d at 422.




        4
          We note that the record does not indicate any request from the Defendant to admit Wright’s prior
inconsistent statement as substantive evidence under Tennessee Rule of Evidence 803(26). Therefore, we
will limit our review to the issue of whether the statement was admissible for the limited purpose of
impeachment under Tennessee Rule of Evidence 613(b).

                                                   -6-
                                         B. Analysis

       Tennessee Rule of Evidence 613(b) provides that “[e]xtrinsic evidence of a prior
inconsistent statement by a witness is not admissible unless and until the witness is afforded
an opportunity to explain or deny the same and the opposite party is afforded an opportunity
to interrogate the witness thereon, or the interests of justice otherwise require.” As a
threshold requirement, the prior statement must “‘either by what it says or what it omits to
say’ afford[] some indication that the fact was different from the testimony of the witness
whom it sought to contradict.” Neil P. Cohen et al., Tennessee Law of Evidence §6.13[3] at
6-139 (5th ed. 2005) (quoting United States v. Gravely, 840 F.2d 1156, 1163 (4th Cir.
1988)). Our Supreme Court has explained that extrinsic evidence of a prior inconsistent
statement is admissible only when: (1) the party wanting to admit the statement questions the
witness as to whether or not the witness made a prior statement inconsistent with his or her
testimony at trial; and (2) “the witness denies or equivocates as to having made the prior
inconsistent statement.” State v. Martin, 964 S.W.2d 564, 565 (Tenn. 1998).

       In this case, Wright testified at trial that he saw the Defendant aim his handgun at Ms.
Wright and then shoot her. During cross-examination, the defense inquired whether he had
told the police on the night of the shooting that he did not actually see the Defendant when
the Defendant shot his sister. Wright responded, “No. No.” and then reiterated that he had
seen the Defendant shoot his sister. Defense counsel later asked, “[s]o, what you said in
2008 about four hours after the incident when you said you did not see him and did not see
him for another thirty seconds, that was incorrect?” Wright responded, “I saw Derrick shoot
her and at the same time Derrick was still in my eyesight after he shot my sister. [He w]alked
across the street and knocked on his door, his brother’s door, and the police was [sic] coming
up the street.”

        This exchange was sufficient to lay the foundation for the introduction of extrinsic
proof of a prior inconsistent statement. See id. (explaining that the foundational requirement
for the admission of extrinsic evidence of a prior inconsistent statement is the witness’s
denial or equivocation about having made the prior inconsistent statement); State v.
Kendricks, 947 S.W.2d 875, 881-82 (Tenn. Crim. App. 1996) (holding that extrinsic
evidence of a prior inconsistent statement is admissible where the witness denies or does not
recall having made the statement).

       However, when defense counsel tried to elicit Officer Stark’s testimony about
Wright’s prior statement to police, the trial court’s recollection of Wright’s testimony was
incomplete. The trial court recalled only that, when confronted with his prior inconsistent
statement that he had not seen the Defendant shoot his sister, Wright was “pretty vague on
it as opposed to denying that he made the statement.” The trial judge stated, “my notes


                                              -7-
reflect that when [Wright] was asked about whether he saw the shooting or just the flinch,
that he then said, yes, it was actually the flinch, but I know [the Defendant] shot [Ms.
Wright].”

        The factual basis on which the trial judge relied in denying the extrinsic evidence of
the prior inconsistent statement was not consistent with the testimony at trial. After a
thorough review of the record, the transcript does not reflect that Wright in fact denied seeing
the Defendant shoot Ms. Wright. Quite the contrary, Wright repeatedly insisted that he did
see the Defendant shoot Ms. Wright. Therefore, we hold that the trial court erred in denying
the defense the opportunity to adduce extrinsic proof of Wright’s prior inconsistent statement
through Officer Stark.5 See Banks, 271 S.W.3d at 116 (holding that one instance in which
abuse of discretion may be found is where the trial court “based its decision on a clearly
erroneous assessment of the evidence”). We also hold, however, that this error was harmless.

        Because errors regarding the admissibility of evidence typically do not violate
constitutional rights, the harmlessness of such errors is assessed under the guidelines
provided in Tennessee Rule of Appellate Procedure 36(b). State v. Rodriguez, 254 S.W.3d
361, 371-72 (Tenn. 2008). Under Tennessee law, the defendant bears the burden of
demonstrating that such an error “more probably than not affected the judgment or would
result in prejudice to the judicial process.” Tenn. R. App. P. 36(b); Rodriguez, 254 S.W.3d
at 372. In evaluating the impact of the error, appellate courts must assess the record of the
trial court in its entirety, taking into consideration all properly admitted evidence pointing
toward the defendant’s guilt. Rodriguez, 254 S.W.3d at 372. Thus, “[t]he greater the amount
of evidence of guilt, the heavier the burden on the defendant to demonstrate that a non-
constitutional error involving a substantial right more probably than not affected the outcome
of the trial.” Id. (citing State v. Toliver, 117 S.W.3d 216, 231 (Tenn. 2003); State v. Francis,
669 S.W.2d 85, 91 (Tenn. 1984)).

      Proof of a witness’s prior inconsistent statement is admissible for impeachment
purposes, State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000), and is therefore limited in its
impact to damaging the credibility of the witness.6 Even if the jury were to completely


        5
         We also note that the more appropriate procedure for the admission of Wright’s prior statement was
during Wright’s testimony. Although Tennessee Rule of Evidence 613(a) does not require that the witness
be shown a copy of the statement, the better practice is to introduce the statement for impeachment purposes
under Tennessee Rule of Evidence 613(b) while the witness who made the statement is on the stand. This
procedure may avoid later conflicts about what the witness actually said if the impeaching party attempts to
introduce the statement through a subsequent witness.
        6
            State v. Smith also held that “[a] trial court, however, generally has no duty to exclude evidence
                                                                                                  (continued...)

                                                       -8-
discredit Wright’s testimony about having seen the Defendant shoot Ms. Wright, the jury had
before it Ms. Wright’s testimony that the Defendant shot her and the Defendant’s own
confession that he shot Ms. Wright. Therefore, we find that harmless error applies, and the
Defendant is not entitled to relief on this basis.

                                     II. Sufficiency of the Evidence

                                          A. Standard of Review

       The Defendant also contends that the State’s evidence was insufficient to support his
convictions for first degree premeditated murder and attempted first degree premeditated
murder. He also asserts that his voluntary intoxication negated the required premeditation
and intent elements of both convictions. 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.




        6
         (...continued)
or to provide a limiting instruction to the jury in the absence of a timely objection . . . . Merely being subject
to objection . . . does not mean that such evidence cannot be considered for its substantive value when no
objection is raised.” 24 S.W.3d at 279-280. However, substantive use of Wright’s prior statement is not an
issue before this Court.

                                                       -9-
                            B. First Degree Premeditated Murder

        First degree premeditated murder is defined as “a premeditated and intentional killing
of another.” Tenn. Code Ann. § 39-13-202(a)(1) (Supp. 2007). The existence of
premeditation is a factual determination to be made by the jury in light of all the surrounding
circumstances. State v. Schmeiderer, 319 S.W.3d 607, 635 (Tenn. 2010); see also State v.
Vaughn, 279 S.W.3d 584, 594-95 (Tenn. Crim. App. 2008). Premeditation is defined by
statute as:

       . . . an act done after the exercise of reflection and judgment. “Premeditation”
       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. The 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.

Tenn. Code Ann. § 39-13-202(d) (Supp. 2007).

       Because premeditation requires insight into the defendant’s state of mind, a jury may
infer the defendant’s intent based on his or her actions and the surrounding facts and
circumstances of the killing. State v. Jackson, 173 S.W.3d 401, 408 (Tenn. 2005); see also
State v. Young, 196 S.W.3d 85, 108 (Tenn. 2006); Vaughn, 279 S.W.3d at 594-95. Thus,
“[a]lthough a jury may not engage in speculation, it may infer premeditation from the manner
and circumstances of the killing.” Jackson, 173 S.W.3d at 408 (citing State v. Bland, 958
S.W.2d 651, 660 (Tenn. 1997)).

         Our Supreme Court has identified a number of relevant circumstances that may
indicate premeditation, including: “the use of a deadly weapon upon an unarmed victim;
. . . declarations by the defendant of an intent to kill; evidence of procurement of a weapon,”
Bland, 958 S.W.2d at 660; and “failure to provide aid or assistance to the victim.” State v.
Brooks, 249 S.W.3d 323, 329 (Tenn. 2008) (citations omitted). Additionally, the jury may
also take into consideration “the shooting of a victim after [the victim] had turned to retreat
or escape.” State v. Lewis, 36 S.W.3d 88, 96 (Tenn. Crim. App. 2000) (citations omitted).

        The Defendant contends that the evidence is not sufficient to support the
premeditation element of his murder conviction. We disagree. The Defendant admitted to
Officer Stark that he armed himself before going over to Ms. Wright’s home. Ms. Wright
testified that Polk jumped up from the steps and began running away from the Defendant,
which indicates an attempt to retreat or escape. Then, the Defendant immediately shot Polk.


                                              -10-
There was no evidence or testimony to indicate that Polk was armed. Ms. Wright stated that,
immediately after the Defendant shot Polk, she began to run away, and the Defendant shot
her in the back. Wright testified that, after shooting Ms. Wright, the Defendant shot at
Wright’s door and then walked across the street. Therefore, the Defendant did not attempt
to aid Polk in any way after shooting him. Officer Ross testified that, once secured in the
squad car, the Defendant said, “I told them not to f**k with me . . . . I was trained by the
military. I was a trained killer, and that’s my job, and they had no business f**king with me
like that.” Thus, we have facts indicating that the Defendant armed himself, shot Polk while
Polk was running away, failed to attempt to aid Polk after shooting him, and made statements
evidencing his prior declarations of threats toward Polk and Ms. Wright. Viewing these facts
with the strongest legitimate view in favor of the State, see Harris, 839 S.W.2d at 75, the jury
had ample evidence to find the existence of premeditation beyond a reasonable doubt
sufficient to support a first degree premeditated murder conviction.

                      C. Attempted First Degree Premeditated Murder

         The Defendant also challenges the sufficiency of the State’s evidence to support his
conviction for attempted first degree premeditated murder of Ms. Wright. Criminal attempt
requires that the accused act “with the kind of culpability otherwise required for the offense
. . . [and] intentionally engage[] in action or cause[] a result that would constitute an offense,
if the circumstances surrounding the conduct were as the person believes them to be.” Tenn.
Code Ann. § 39-12-101(a)(1) (2006). Therefore, because first degree premeditated murder
requires premeditation and intent to kill, attempted first degree murder requires the same
culpability. See id.; Tenn. Code Ann. § 39-13-202(a)(1) (Supp. 2007). Thus, this Court can
look to the surrounding factual circumstances in order to find a showing of premeditation and
intent, even where the accused fails to kill the victim. See Tenn. Code Ann. § 39-12-
101(a)(1); Bland, 958 S.W.2d at 660; Lewis, 36 S.W.3d at 96.

        As to the premeditation element required for the conviction of attempted first degree
murder, we likewise find sufficient evidence presented to the jury to support a guilty verdict.
As previously discussed, the Defendant admitted to Officer Stark that he armed himself
before going over to Ms. Wright’s home. There was no testimony or other evidence that Ms.
Wright was armed. Ms. Wright testified that she was running from the Defendant when he
opened fire on her. He shot her in the back, indicative of her attempted escape. Wright
testified that, after the Defendant shot Ms. Wright, the Defendant fired a shot toward Wright
and then walked across the street. Thus, the Defendant failed to aid Ms. Wright once he shot
her. Based on these facts and their direct correlation to the previously stated factors, we hold
that the evidence was sufficient to support a jury’s finding of premeditation beyond a
reasonable doubt on the charge of attempted first degree murder.



                                              -11-
                                        D. Intoxication Defense

        In addition to contending that the State failed to prove premeditation in either crime,
the Defendant asserts that his intoxication negated the premeditation and intent elements in
both convictions. He points to the testimonies of Officer Ross and Lieutenant Davidson at
trial. Officer Ross testified that, on the day of the shooting, the Defendant’s eyes were
glassy, and the Defendant had the odor of alcohol on his breath. Lieutenant Davidson
testified that the officers chose not to interrogate the Defendant on the day of the shooting
because “[the Defendant] was drunk.” However, Lieutenant Davidson also indicated that the
Defendant appeared coherent, and the decision to wait until the following day to question the
Defendant was “out of an abundance of caution.”

       Although voluntary intoxication is not a complete defense to prosecution for a crime,
such evidence is admissible to negate a culpable mental state. See Tenn. Code Ann. § 39-11-
503(a) (2006); State v. Morris, 24 S.W.3d 788, 796 (Tenn. 2000). The weight to place on
such evidence and “the determination of whether the voluntary intoxication negated the
culpable mental elements” are issues to be resolved by the jury. Morris, 24 S.W.3d at 796.
All evidence regarding the amount of alcohol the Defendant had consumed, the Defendant’s
appearance and demeanor as observed by the officers, and the officers’ decision not to
question the Defendant were presented to the jury.

      Additionally, the jury received instructions regarding intoxication in compliance with
Tennessee Code Annotated section 39-11-503(a) that stated:

       Included in the defendant’s plea of not guilty is his plea of intoxication as a
       defense . . . . Intoxication itself is generally not a defense to prosecution for
       an offense. If a person voluntarily becomes intoxicated and, while in that
       condition, commits an act which would be a crime if [he] were sober, [he] is
       fully responsible for [his] conduct . . . . Intoxication, whether voluntary or
       involuntary, is relevant to the issue of the essential element of the defendant’s
       culpable mental state . . . . If you find that the defendant was intoxicated to the
       extent that [he] could not have possessed the required culpable mental state,
       then [he] cannot be guilty of the offense charged. If you are not satisfied
       beyond a reasonable doubt that the defendant possessed the culpable mental
       state then you must find him not guilty.7

      The jury rejected the Defendant’s claim of voluntary intoxication, as was its
prerogative. The Defendant is entitled to no relief on this basis. Therefore, we find that


       7
           See T.P.I.Crim. 40.02 (14th ed. 2010).

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there was sufficient evidence to support both the first degree premeditated murder and
attempted first degree murder convictions beyond a reasonable doubt.


                                    CONCLUSION

       For the reasons articulated above, we affirm the Defendant’s convictions for first
degree murder and attempted first degree murder.

                                         _________________________________
                                         JEFFREY S. BIVINS, JUDGE




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