         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs September 22, 2004

                 STATE OF TENNESSEE v. JULIUS Q. PERKINS

                Direct Appeal from the Criminal Court for Davidson County
                        No. 2002-A-569    J. Randall Wyatt, Judge


                    No. M2003-01761-CCA-R3-CD - Filed January 6, 2005


Defendant, Julius Q. Perkins, was indicted on one count of first degree premeditated murder and one
count of first degree felony murder. Following a jury trial, Defendant was found guilty of felony
murder and not guilty of premeditated murder. He was sentenced to life imprisonment. On appeal,
Defendant argues that the evidence was insufficient to support his conviction of felony murder
because the State failed to show that the victim was killed during a robbery or attempted robbery,
or, alternatively, that Defendant was criminally responsible for the death of the victim. After a
thorough review of the record, we affirm the judgment of the trial court.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which DAVID G. HAYES and JERRY
L. SMITH , JJ., joined.

Paul J. Walwyn, Madison, Tennessee, for the appellant, Julius Q. Perkins.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General;
Victor S. (Torry) Johnson III, District Attorney General; Dan Hamm, Assistant District Attorney
General; and Kimberly Cooper, Assistant District Attorney General, for the appellee, the State of
Tennessee.

                                            OPINION

I. Background

        Bryan Creavalle and the victim, Ron Palmer, shared a second-floor apartment. The
apartment building had a single entry on the first floor. A flight of stairs led to a middle landing,
turned, and continued up to the second floor where the victim’s apartment was located. Mr.
Creavalle testified that he heard a commotion in the hallway outside his apartment some time after
midnight on December 9, 2001. Mr. Creavalle heard Mr. Palmer call out his mother’s name first and
then Mr. Creavalle’s name. Mr. Creavalle opened the front door and saw the victim on the floor
wrestling with a man who was later identified as Johnny Woodland. The victim was trying to take
Mr. Woodland’s gun away as the two men struggled.
        Mr. Creavalle returned to his apartment and retrieved a dumbbell which he threw at Mr.
Woodland. The dumbbell missed Mr. Woodland, and Mr. Creavalle went back inside the apartment.
He returned to the hallway in a few minutes and saw Defendant standing at the bottom of the stairs
in front of the building’s entryway. Defendant was pointing a gun up the stairs. The victim began
to run back to his apartment, and Mr. Creavalle heard Mr. Woodland tell Defendant to “shoot him,
shoot him.”

        The victim stumbled as he ran up the stairs, and Mr. Creavalle was pulling the victim into
the apartment when three shots were fired. Mr. Creavalle did not know which of the two intruders
fired the gunshots. Mr. Creavalle managed to get Mr. Palmer inside the apartment and closed the
door. Someone banged on the front door, and then Mr. Creavalle heard footsteps going down the
stairs. The victim bled to death shortly thereafter.

         Mr. Creavalle said that the victim was dressed in boxer shorts and a tee-shirt and was not
armed.

        Phyllis Palmer, the victim’s mother, lived in the apartment across the hall from her son’s
apartment. She heard noises in the hallway around 1:30 a.m. and opened her front door. Mrs.
Palmer saw her son struggling with Mr. Woodland. Mrs. Palmer said that Mr. Woodland had a gun,
and the victim was trying to keep Mr. Woodland from firing his weapon. Mrs. Palmer went back
in her apartment and attempted to call 911. When Mrs. Palmer opened her door again, the victim
and Mr. Woodland had rolled down the stairs and were still struggling. Mrs. Palmer saw Mr.
Creavalle standing by the front door of his apartment. She, too, heard three gunshots.

        Dr. John Gerber supervised the victim’s autopsy. Dr. Gerber said that Mr. Palmer had two
bullet wounds, one in the leg and the other in the chest. The chest wound was the injury that caused
the victim’s death.

       Charles Pinkerton, a neighbor, said two men exited the apartment building after the shots
were fired. The shorter man carried a gun and was limping. Mr. Pinkerton could not tell if the
second man was armed.

        Officer Daniel Orr assisted in the collection of the bullets and shell casings found in the
apartment building’s stairwell. One nine millimeter shell casing was found at the bottom of the first
flight of stairs in the entryway, and a second nine millimeter shell casing was found on one of the
steps leading up to the middle landing. Three nine millimeter bullets were found in the
stairwell–two on the first flight of stairs and one on the middle landing. Two .357 caliber bullets
were also found on the on the middle landing of the stairway. A bullet’s strike mark was found on
the stair railing on the lower stairs, and a strike mark was found on the victim’s apartment’s door
frame. Fresh paint chips around the strike mark in the front door indicated that the mark was made
recently.




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        Detective Robert Anderson with the Metro Nashville Police Department was responding to
the call about the shooting when a second call came over the radio announcing that Mr. Woodland
had arrived at Metro General Hospital seeking treatment for a gunshot wound to the leg. Mr.
Creavalle told Detective Anderson that he could identify the man who struggled with the victim
because the man’s face was uncovered. Detective Anderson included Mr. Woodland’s picture in a
photographic lineup, and Mr. Creavalle identified Mr. Woodland as the intruder who had fought with
Mr. Palmer. Mr. Woodland only identified Defendant by a nickname in his statement to the police.

        Detective Anderson interviewed Defendant four days after the shooting, and summarized
Defendant’s statement as follows. Defendant initially said that he was driving with his friend,
Shawn, when an unknown man flagged down his car. The man had been shot and asked Defendant
to take him to the hospital. Later, Defendant admitted to Detective Anderson that he drove Mr.
Woodland to the victim’s apartment to buy marijuana. Defendant waited at the bottom of the stairs
while Mr. Woodland went up the stairs to meet the victim. He saw Mr. Woodland pull out his gun.
The two men began to struggle over the gun and rolled down the stairs. Defendant said he pulled out
his gun also and pointed it up the stairs. He tried to fire it several times, but the gun was jammed.
Defendant said he managed to clear the jam and fired once before he ran. Defendant said that he did
not know what the bullet hit, if anything. Defendant could not remember whether he was carrying
a nine millimeter or a .380 caliber gun, but knew that the gun was an automatic weapon. Defendant
said that he took Mr. Woodland to the hospital and then threw his gun into a dumpster behind a
barbeque restaurant.

        The State then introduced Defendant’s videotaped statement as an exhibit and played
portions of the videotape in court. According to the videotape, Defendant said that neither he nor
Mr. Woodland had any money, so Shawn gave them money to purchase the drugs. Mr. Woodland
called the victim from Defendant’s car on his cell phone and told him they were on their way to buy
some marijuana. Defendant said that he had his gun in his coat pocket when he went into the
victim’s apartment building. Defendant said that he heard the victim and Mr. Woodland discussing
the transaction, and then heard the words, “man, this ain’t enough.” At this point, Mr. Woodland
drew his gun.

        Defendant testified on his own behalf. He said that he bought a gun a few weeks before the
incident for protection because his place of employment had been robbed. Defendant said that
shortly before the incident, he left his house to pick up some barbeque. He saw his friend Shawn and
another man on the street. Defendant said that he did not know the second man’s name but later
found out that he was Mr. Woodland. Mr. Woodland asked Defendant to take him to buy some
marijuana, and Shawn indicated to Defendant that it was “all right.” Mr. Woodland told Defendant
to wait while he went to get his gun. Defendant said that it was not unusual to see someone carrying
a gun for protection, and denied that he knew that Mr. Woodland was planning to use the gun during
the drug purchase.

       Defendant said that Mr. Woodland went into the victim’s apartment building first. Defendant
waited a short time and then went into the building so that Mr. Woodland would hurry up and finish


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his transaction. As he approached the front door of the building, Defendant looked in a window and
saw Mr. Woodland pull out his gun. Defendant said that he stood in the doorway so the two men
would not see him. When the two men rolled down the stairs, Mr. Woodland’s gun was pointed in
his direction. Defendant said that he attempted to fire his weapon as a warning shot, but it jammed.
He fired the gun one time after he cleared the jam.

       Defendant admitted that he panicked because no one pulled a gun “in a regular deal,” but
continued to deny that he knew a robbery was taking place.

      On cross-examination, Defendant admitted again that he knew “something [was] going on”
when he saw Mr. Woodland’s gun. Defendant said that as the victim and Mr. Woodland were
conducting the “exchange,” he saw the victim put something in Mr. Woodland’s hand, and then Mr.
Woodland “presented” his gun. Defendant said that he did not know what happened to Mr.
Woodland’s gun or his walkie-talkie.

II. Sufficiency of the Evidence

         Defendant argues that there was no evidence to support the jury’s finding that a robbery or
an attempted robbery had occurred during the incident. Alternatively, Defendant contends that even
if Mr. Woodland had robbed or attempted to rob Mr. Palmer, there was no evidence to support a
finding that Defendant intended to promote or assist in the commission of the offense. The State
contends that the evidence supports a finding that an attempted robbery occurred, and that Defendant
at least was criminally responsible for the victim’s death.

         When a defendant challenges the sufficiency of the convicting evidence, we must review the
evidence in a light most favorable to the prosecution in determining whether a rational trier of fact
could have found all the essential elements of the crime beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S.307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). Once a jury finds a
defendant guilty, his or her presumption of innocence is removed and replaced with a presumption
of guilt. State v. Black, 815 S.W.2d 166, 175 (Tenn. 1991). The defendant has the burden of
overcoming this presumption, and the State is entitled to the strongest legitimate view of the
evidence along with all reasonable inferences which may be drawn from that evidence. Id.; State
v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The jury is presumed to have resolved all conflicts
and drawn any reasonable inferences in favor of the State. State v. Sheffield, 676 S.W.2d 542, 547
(Tenn. 1984). Questions concerning the credibility of witnesses, the weight and value to be given
the evidence, and all factual issues raised by the evidence are resolved by the trier of fact and not this
Court. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). These rules are applicable to findings
of guilt predicated upon direct evidence, circumstantial evidence, or a combination of both direct and
circumstantial evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).

        Felony first degree murder is defined as “[a] killing of another committed in the perpetration
of or attempt to perpetrate any . . . robbery . . . .” Tenn. Code Ann. § 39-13-202(a)(2). In order to
support Defendant’s conviction for felony murder, the State must prove that a felony was committed,


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namely an attempted robbery, that Mr. Palmer was killed during the commission of the felony, and
that Defendant either committed the felony murder himself or he was criminally responsible for Mr.
Woodland’s actions. See State v. Cureton, 38 S.W.3d 64, 73 (Tenn. Crim. App. 2000) (Evidence
sufficient to support Defendant’s conviction under either theory.)

        Robbery is “the intentional or knowing theft of property from the person of another by
violence or putting the person in fear.” Id. § 39-13-401(a). “A person commits criminal attempt
who, acting with the kind of culpability otherwise required for the offense . . . acts with intent to
complete a course of action or cause a result that would constitute the offense under the
circumstances surrounding the conduct as the person believes them to be, and the conduct constitutes
a substantial step toward the commission of the offense.” Id. 39-12-101(a)(3). The intent to commit
the underlying felony may be formed “concurrent with the commission of the act causing the death
of the victim.” State v. Buggs, 995 S.W.2d 102, 107 (Tenn. 1999). Such intent may be inferred from
the defendant’s actions. Id. at 108.

        Defendant first argues that the State did not present any evidence that a robbery or attempted
robbery occurred. The evidence, however, established that Defendant drove Mr. Woodland to the
victim’s apartment building to buy marijuana. Both Defendant and Mr. Woodland armed themselves
before arriving at the victim’s apartment. Mr. Woodland and the victim conversed for two or three
minutes while Defendant waited at the bottom of the stairs in front of the building’s only exit.
Defendant said that the victim put some “stuff” in Mr. Woodland’s hands, Defendant heard the
words, “man this ain’t enough,” and then Mr. Woodland drew his gun. Mr. Creavalle testified that
Defendant pointed his gun up the stairwell while the victim and Mr. Woodland struggled for
possession of Mr. Woodland’s gun. Mr. Woodland told Defendant to shoot the victim, and
Defendant attempted to fire his gun. When his gun failed to discharge, Defendant worked to clear
the jam, and then fired in the direction of the victim. The victim’s neighbor saw two men exit the
building after the shots were fired. Defendant drove Mr. Woodland to the hospital, and then
disposed of his weapon in a dumpster.

        There was no evidence as to which man fired the fatal shot to Mr. Palmer’s chest, and no
guns were found. The evidence is sufficient, however, to support a jury’s finding that an attempted
robbery occurred, that Defendant was an active participant in the attempted robbery, and that
Defendant was therefore “accountable for all consequences flowing from the [attempted] robbery.”
State v. Hinton, 42 S.W.3d 113, 119 (Tenn. Crim. App. 2000). Holding a gun on the victim as the
victim wrestled with Mr. Woodland and then discharging his weapon at the victim constitutes a
substantial step toward the commission of a robbery. See State v. Webster, 81 S.W.3d 244, 249
(Tenn. Crim. App. 2002)(“Defendant’s conduct in approaching the victim and pointing a gun at the
victim’s head constituted a substantial step toward the commission of an especially aggravated
robbery.”) “When one enters into a scheme with another to commit one of the felonies enumerated
in the felony murder statutes, and death ensues, both defendants are responsible for the death
regardless of who actually committed the murder and whether the killing was specifically
contemplated by the other.” State v. Winters, 137 S.W.3d 641, 659 (Tenn. Crim. App. 2003) (citing
Hinton, 42 S.W.3d at 119). In such a situation, both defendants are “statutorily responsible for all


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homicides committed during the course of the robbery, whether or not the homicide was
foreseeable.” Winters, 137 S.W.3d at 659 (emphasis in original.).

        Alternatively, even if the jury concluded that Defendant was not a principal offender, the
evidence was sufficient for a jury to conclude beyond a reason doubt that Defendant was criminally
responsible for Mr. Woodland’s conduct. A person is criminally responsible for the conduct of
another if, “[a]cting with intent to promote or assist the commission of the offense, or to benefit in
the proceeds or results of the offense, the person solicits, directs, aids, or attempts to aid another
person to commit the offense[.]” Tenn. Code Ann. § 39-11-402(2). A person may be convicted
under a criminal responsibility theory regardless of whether or not he or she “directly participated
in the criminal act itself.” State v. Mickens, 123 S.W.3d 355, 391 (Tenn. Crim. App. 2003)(quoting
State v. Phillips, 76 S.W.3d 1, 12 (Tenn. Crim. App. 2001)).

         Once again viewing the evidence in a light most favorable to the state, the evidence is
sufficient to support a jury’s finding that Defendant intended to assist in the commission of the
robbery. Regardless of whether the transaction started out as a “regular” drug purchase as Defendant
insists, Defendant admitted he was aware that the situation changed when Mr. Woodland drew his
gun. Defendant did not leave the premises even though he was standing by the building’s exit.
Instead, when Mr. Woodland called out to “shoot him, shoot him,” Defendant drew his weapon and
attempted to fire the gun. When his gun failed to discharge, Defendant did not abandon the weapon,
but proceeded to clear the jam. He then fired the gun in the direction of the victim as the victim
attempted to escape the struggle. Following the shooting, Defendant drove Mr. Woodland to the
hospital and assisted him into the emergency room. He then drove to a restaurant and threw his gun
away in a dumpster behind the building. This Court has previously noted that “presence and
companionship with the perpetrator of a felony before and after the commission of the crime are
circumstances from which an individual’s participation may be inferred.” Phillips, 76 S.W.3d at 9
(citing State v. Ball, 973 S.W.2d 288, 293 (Tenn. Crim. App. 1998)).

         We recognize that Defendant strenuously denied any knowledge of the robbery or Mr.
Woodland’s intentions. Although Defendant offered an explanation for his conduct before and after
the shooting, it was the jury’s prerogative to draw what inferences it chose from the testimony and
ultimately discredit Defendant’s testimony. Viewing the evidence in a light most favorable to the
state, the evidence is sufficient to support Defendant’s conviction of first degree felony murder based
upon a theory of criminal responsibility.

                                          CONCLUSION

       After a thorough review of the record, we affirm the judgment of the trial court.


                                                       ___________________________________
                                                       THOMAS T. WOODALL, JUDGE



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