        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                 October 2, 2012 Session

                    STATE OF TENNESSEE v. KEN PARKER

                   Appeal from the Criminal Court of Shelby County
                        No. 09-08166 W. Mark Ward, Judge



               No. W2011-02125-CCA-R3-CD - Filed February 14, 2013


Ken Parker (“the Defendant”) was convicted by a jury of first degree felony murder and first
degree premeditated murder. The trial court merged the first degree premeditated murder
conviction into the first degree felony murder conviction and sentenced the Defendant to life
imprisonment. On appeal, the Defendant asserts that the trial court erred in not granting a
mistrial with respect to a police officer’s testimony. Additionally, the Defendant alleges that
the evidence presented at trial was insufficient to support his 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, delivered the opinion of the Court, in which J OHN E VERETT W ILLIAMS
and R OGER A. P AGE, JJ., joined.

Joseph S. Ozment (on appeal) and Larry Copeland (at trial) Memphis, Tennessee, for the
appellant, Ken Parker.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Neal Oldham and Paul Hagerman,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                         OPINION

                            Factual and Procedural Background

       A Shelby County Grand Jury indicted the Defendant and Marquis Ingram on one
count each of first degree felony murder and first degree premeditated murder. Prior to the
Defendant’s trial,1 he moved to suppress his statement made to police. The trial court held
an evidentiary hearing on the Defendant’s suppression motion and subsequently denied the
motion.2 The Defendant proceeded to a jury trial held July 18-19, 2011.

        Janie Patterson, the victim’s mother, testified at trial that the victim, a twenty-five-
year-old male, was her youngest of three children. At the time of his death, the victim was
working in a construction job in downtown Memphis. She identified a picture of her son,
the victim. Three days after she last saw the victim, she received a phone call from the police
department, and she went to the Regional Medical Center. When Ms. Patterson arrived, the
victim was “barely hanging on” and “[h]ooked up to all kinds of tubes.” While she was there
at the hospital, the victim passed away. On cross-examination, Ms. Patterson estimated that
the victim was approximately six feet, one inch tall and weighed approximately two hundred
pounds.

        Michael Smith testified that at approximately 4:00 a.m. on September 9, 2009, he
walked from his home on Latham Street in South Memphis to a nearby Shell gas station with
his girlfriend. While walking on Patton Street, he noticed a figure on the ground in the street
next to the curb. As he approached the figure, Smith realized that it was a young man 3 who
had been shot. Smith then called the police. He recalled that another couple also was nearby
when he found the victim. On cross-examination, Smith confirmed that the victim was
known around the neighborhood for stealing bikes and using cocaine. He knew the victim
as “Big Shank,” and Smith identified a “shank” as a knife. Other than seeing the victim in
the neighborhood and knowing of his reputation, Smith had no previous interaction with the
victim.

        Darron Hickman testified that in September 2009 he was living on Latham Street in
South Memphis. At approximately 4:00 a.m. on September 9, 2009, Hickman and his
girlfriend left their house to go to work. They decided to walk down Patton Street so that
they could stop at the Shell gas station to buy cigarettes. They approached Smith, who drew
Hickman’s attention to someone on the ground. Hickman stood approximately four or five
feet from the victim and noticed blood on the ground. After Smith called the police,
Hickman walked to the Shell gas station and told an attendant, a security guard, and a
neighbor what he had seen.



       1
           The Defendant and Ingram were tried separately.
       2
        Because the Defendant does not present a suppression issue on appeal, we will not include a
summary of the testimony from the suppression hearing.
       3
           The young man later was identified as the victim in this case.

                                                     -2-
       At the time that he observed the victim, Hickman did not know the identity of the
victim. However, he heard later that it was a man he knew as “Shank,” and he explained that
the two of them attended elementary school together. Hickman identified the Defendant as
someone he knew from his neighborhood and stated that they “rapped” together at
Hickman’s small recording studio. On cross-examination, Hickman agreed that he might
have bought cigars from the Shell gas station but denied smoking marijuana that day.

       Simeon Prather testified that on September 9, 2009, he worked as a security guard at
a Shell gas station in South Memphis. His shift lasted from 6:00 p.m. until 6:00 a.m.
Between 4:00 and 5:00 a.m., police officers spoke with Prather and reviewed video from the
evening on the Shell gas station computer system. Prather identified at trial the discs that
included video of the evening from inside and outside the store. He believed that the
victim’s nickname was “Stank.” On cross-examination, however, he agreed that the victim’s
nickname could have been “Shank.” He had seen the victim in the Shell gas station that
night before he was shot. Prather knew the victim as a store customer but also as someone
who asked others for money outside the store. He identified for the police items near the
victim’s body as the items that the victim had purchased at the Shell gas station that evening.

       Sergeant Mundy Quinn of the Memphis Police Department (“MPD”) testified that he
was assigned to the homicide bureau and that he was the lead investigator in the present case.
At some point, the Defendant became a suspect, and Sergeant Quinn and another officer,
Sergeant Lundy, interviewed him. Upon reading the Miranda rights to the Defendant, the
Defendant indicated his understanding and signed the waiver of those rights. In the initial
interview, the Defendant denied having any involvement in the victim’s death, despite his
presence with the victim on surveillance video from the Shell gas station. In Sergeant
Quinn’s opinion, the Defendant did not seem upset during this interview. Upon the
Defendant’s denial of any involvement, Sergeant Quinn left and allowed another officer,
Sergeant Goods, the opportunity to interview the Defendant.

        On cross-examination, defense counsel asked whether Sergeant Quinn or another
investigator went to retrieve the Defendant from school for questioning, and Sergeant Quinn
responded that it was another investigator. Defense counsel then asked, “Another
investigator did? Is it fair to state were you the directing officer in this investigation or were
you just doing what you were told?” Sergeant Quinn answered, “Well, I mean, there was
[sic] two separate investigations going on at once.” After making an objection, defense
counsel, in a bench conference, stated, “I wasn’t trying to get there. He tainted my jury. He
just told them there were two investigations going on with [the Defendant], Judge. I’m going
to make a motion for mistrial based on that answer.” The trial court dismissed the jury, and
the following interaction commenced:



                                               -3-
Defense: Judge, I’m going to make a motion for mistrial. Officer Quinn just
stated there were two investigations going on at the moment. It’s going to
make the jury believe those two investigations are of [the Defendant]. I mean,
that’s – I just asked him what his involvement was in this investigation. I no
way opened the door to say that there were two investigations or any other
investigation.

       That’s – I mean, that’s highly prejudicial to my client, Judge, for him
to be able to come out and say there were two investigations going on. I mean,
what else are they supposed to think other than that there were two
investigations going on concerning [the Defendant]?

....

       And now we’re talking about evidence – potential evidence of another
crime coming before this jury. They should have directed their witness, Judge,
to make sure that he was cautious in his answers and not be able to come up
here and say, yeah, well there were two investigations going on. That – I
didn’t open that door, Judge. I just asked him –

Court: Well, let me ask you where were you going with that answer that there
were two investigations? What did you mean by two investigations going on?

....

What was your involvement in the case I think was the question.

....

Witness: It was just – there was [sic] two investigations going on. There was
[sic] two homicide investigations going on.

....

Court: So, [the Defendant] was a suspect in two homicides?

Witness: Right. And when you asked me if I was the lead investigator, yes,
but so was Sergeant Freeman on his case. And you ask me, you know, if I was
directed to do something or if I was directing, if I remember correctly.



                                     -4-
       ....

       Court: Well, I mean, number one: You shouldn’t be going into this other case.
       I mean, a rookie would not make that mistake.

       ....

       All right. Number two: Two investigations, that’s all you got out. It’s not two
       investigations on him, two investigations – I mean, we don’t know what the
       two investigations are. It’s pretty generic at this point, so I don’t see any harm.

       Defense: Well, that’s pretty speculative for the jury at this point. Now they’re
       going to be wondering what in the world he meant by the two investigations.

       Court: Well, do you want to ask him in front of the jury what the two
       investigations were?

       Defense: Well, I can’t do that, Judge. That’s going to open the door to what
       I don’t want.

       Court: So, I think I would leave it alone. I mean, the two investigations could
       mean that they were looking into this Marquis [Ingram] fellow.

       Following more discussion by the trial court, the State, and defense counsel, the trial
court denied the defense’s motion for mistrial. Defense counsel did not request a limiting
instruction.

       Defense counsel continued his cross-examination. Sergeant Quinn testified that the
Defendant was seventeen years old at the time of questioning. He noted that, in terms of
extra precautions given the Defendant’s age, he attempted twice to contact the Defendant’s
mother but that she never answered. At approximately 6:00 p.m., Sergeant Quinn finally
spoke with the Defendant’s mother and informed her that the Defendant was in the homicide
bureau.

        Sergeant Darren Goods of the MPD testified that he was assigned to the homicide
division and assisted in the investigation of the present case. He interviewed the Defendant
after Sergeant Quinn and another officer had spoken with the Defendant. Eventually, the
Defendant admitted his involvement and explained to Sergeant Goods what had transpired
in this case. Sergeant Goods read the following from the Defendant’s statement:



                                               -5-
Question: On Wednesday, September the 9th, 2009, at approximately 4:20
a.m., Reco D. Patterson was the victim of a criminal homicide that occurred
at Patton and Lucy. Are you the person responsible for this homicide?

Answer: Yes, followed by his initials, K.P.

Question: Do you know – sorry. Did you know Reco Patterson prior to this
incident?

Answer: No. And that’s [the Defendant’s] signature on the bottom of page
one.

Question: What type of weapon did you use?

Answer: A .32 Chrome with a duct tape handle revolver.

....

Question: How many times did you shoot Reco Patterson?

Answer: Four.

Question: Were you alone or was there someone else with you during this
incident?

Answer: It was someone else with me.

Question: What is this person’s name?

Answer: Marquis Ingram.

....

Question: What part did Marquis Ingram play in this incident?

Answer: He just threw the shoes away.

....

Question: Was anything taken from the victim during this incident?

                                    -6-
       Answer: Just money. I don’t know how much.

       Question: What did you do with this money?

       Answer: I don’t know. I spent it though.

       ....

       Question: Who took the money from the victim?

       Answer: I did.

       Question: Where did you get the money?

       Answer: Out of his shoe.

       ....

       Question: Can you tell me in detail the events that took place before, during,
       and after this incident?

       Answer: Before me and Marquis went to the Shell, we heard the victim . . .
       talking about some money to some lady, saying he was going to pay her and
       she didn’t want to hear what he had to say. . . . So, he left and went to the
       Shell. Me and Marquis went to the Shell too.

              On our way back from the Shell, I tried to rob him. He rushed me, I
       shot, and that was . . . what happened. After I shot him, I just went on ahead
       and got the money and walked off with his shoes and the money. Marquis
       threw his shoes in the garbage and then I went to my grandma’s house.

       Sergeant Goods identified photographs labeled by the Defendant identifying himself
and Ingram at the Shell station. The Defendant also identified the victim in the picture. The
Defendant told Sergeant Goods that he gave the weapon to a male named Derek Taylor.
Sergeant Goods eventually retrieved that weapon from Taylor’s father.

       On cross-examination, Sergeant Goods testified that he never tried to contact the
Defendant’s mother before taking the Defendant’s statement. Sergeant Goods acknowledged
that he spoke with Ingram before his interview with the Defendant. During his interview
with the Defendant, he verified the Defendant’s statement with the information from the

                                             -7-
crime scene report and the interview with Ingram. According to the crime scene report, the
victim had been shot four times, and his shoes had been taken. Sergeant Goods described
the Defendant as fairly calm during the interview.

       Sergeant Michael Hill of the MPD testified that he worked with the crime scene
division and responded to the crime scene in this case at 5:39 a.m. on September 9, 2009.
At the time that Sergeant Hill arrived at the scene, the victim’s body no longer was present.
He observed and collected from the scene “a t-shirt with what appear[ed] to be blood on it,
two cigars, some cheese dip, a set of keys, . . . an open pack of Newports, and a smoked
cigarette.” He identified each of these items in pictures from the crime scene. On cross-
examination, Sergeant Hill acknowledged that he did not collect fingerprints or DNA from
the scene. He did not know if the items were sent away for forensic testing because his job
consisted solely of collecting and “tagging” the items.

       Sergeant Paula Harris of the MPD testified that she worked in the homicide bureau
during the present case. As part of her involvement in the case, Sergeant Harris retrieved
five bullet packs from the medical examiner’s office around the time of September 24, 2009.
She identified the bullets at trial as the evidence that she sealed in an envelope.

       Dr. Marco Ross, a medical examiner and forensic pathologist with the Shelby County
Medical Examiner’s Office, testified as an expert in the field of forensic pathology. He
performed an autopsy on September 10, 2009, on the victim in this case. Dr. Ross observed
“various injuries on the body that included some abrasions and lacerations on the face and
four gunshot wounds.” He determined that the cause of the victim’s death was multiple
gunshot wounds and considered the manner of death a homicide.

       Dr. Ross further explained his findings following an internal examination:

       There is a gunshot wound on the top of the head. That gunshot wound went
       through the skull and there [were] some bullet fragments left in the scalp just
       before going into the skull and then the bullet continued into the brain – or at
       least part of the bullet did – and left part of the – on the left side of the brain,
       they left a track on the left side of the brain and we recovered a bullet fragment
       from inside the left side of the brain.

              The other gunshot wound, the second one that we described, went into
       the head just in front of the left ear and that bullet continued into the base of
       the skull. Basically, into a bone skull that we call the petrous bone. This is a
       large bone. Sort of as you travel from the ear to the center part of your head
       inside the brain, you have to pass through the petrous bone. And the bullet

                                               -8-
       ended up inside that particular bone, causing a fracture on the base of the skull
       right up against the underside of the brain.

              The third gunshot wound that we described entered into the back side
       of the neck on the left side. And the bullet basically went through some
       muscle and fatty tissues on the left side of the neck and ended up inside the
       cheek and we recovered a bullet from the left cheek.

              The fourth gunshot wound we described went into the left mid-back.
       That bullet went through the – through the back part of the left lung actually
       and then it went through the diaphragm, which is a muscle separating the chest
       organs from the abdominal organs. And after going through the diaphragm,
       the bullet is now passing through the upper part of the abdomen. And actually
       the bullet then went through part of the colon or large intestine in that part of
       the abdomen.

               The surgeons that actually operated on him had removed that portion
       of the colon. The bullet then continued on through the – again, the diaphragm.
       In the front of the body, we found the bullet inside the left chest cavity.

       Dr. Ross surmised that the wound to the back that penetrated the lung and colon, as
well as the wound to the top of the head, would have been potentially lethal. From the four
gunshot wounds, Dr. Ross recovered five bullet packs. He further explained,

       From the gunshot wounds associated with the top of the head, we separated
       that into two packs. Since the bullet fragments were from different locations,
       we collected the bullet fragments from the scalp tissues that went into one
       pack and then the bullet fragment that we found in the brain went into another
       pack.

He identified the bullet packs previously identified by Sergeant Harris.

       Dr. Ross testified that the toxicology report indicated the presence of ethanol in the
victim’s body at a level of .028 on a breathalyzer scale. Additionally, the report revealed the
presence of some breakdown products of marijuana and cocaine. The presence of the
breakdown products indicated that the victim had used marijuana and cocaine within the past
twenty-four hours but likely not within the immediate minutes leading up to the incident.

       Dr. Ross identified photographs of the victim and noted that three of the lacerations
on his face had “a ring-like character to them, meaning that a hollow, cylindrical-shaped

                                              -9-
object impacted those particular areas to cause those lacerations.” He could not determine
what the cylindrical-shaped object was but acknowledged that it could have been the barrel
of a gun. Dr. Ross estimated that the victim was at least three feet from the gun when shot.

       Marquis Ingram testified that he was eighteen years old and had been indicted for the
crimes in the present case. He had known the Defendant for approximately five years
because he lived near the Defendant’s grandmother’s house. According to Ingram, he and
the Defendant were close friends. On the night of the incident, Ingram and the Defendant
were at the Defendant’s grandmother’s house. At some point, the Defendant asked Ingram
to go with him to the Shell gas station to get some food. On the way there, they observed the
victim knocking on an apartment door and “asking about some money.” Ingram did not
know the identity of the victim at that time.

        Ingram observed the victim put the money in his shoe and relayed that information to
the Defendant. According to Ingram, he did not have a gun with him, but the Defendant had
showed him a gun in the Defendant’s pocket. This gun was a .38 with a brown handle. The
Defendant then informed Ingram that he was going to rob the victim. Ingram and the
Defendant followed the victim at a distance as the victim went to one store, which was
closed, and then eventually to the Shell gas station. Ingram and the Defendant separated as
they followed the victim, and once Ingram reached the Shell gas station, the Defendant was
walking with the victim. All three men walked inside, and once Ingram and the Defendant
left the store, they went to a side street where the Defendant waited for the victim. Ingram
continued walking to the end of the street, but, before crossing the street, he heard gunshots.
He ran back to find the victim on the ground. When he asked the Defendant whether the
Defendant shot the victim, the Defendant answered affirmatively. The Defendant was
kicking the victim “[t]o the head or somewhere near the head,” and the victim was not
moving. The Defendant confiscated the victim’s shoes as well as some food, and Ingram and
the Defendant left the scene. According to Ingram, the Defendant “dumped the shoes in the
garbage can, went to his grandma’s house, washed his hands, and told [Ingram] to walk him
halfway home.” As they walked to the Defendant’s house, the Defendant told Ingram that
he would kill Ingram if Ingram told anyone what happened. Ingram described the
Defendant’s demeanor as calm.

       Approximately a week later, Ingram turned himself in and gave a statement to police.
On cross-examination, he admitted that he initially was not truthful to the police. He
acknowledged that the Defendant never stated that he was going to shoot or intended to harm
the victim. He also acknowledged telling the police that he was ten feet away from the
Defendant when the Defendant shot the victim, but Ingram reiterated at trial that he did not
see the shooting.



                                             -10-
        Derek Taylor, Sr., testified that he lived in South Memphis in September 2009. He
was living both at his girlfriend’s house and at his parents’ house. His son, Derek Taylor,
Jr., also lived with his parents. On September 16, 2009, Taylor, Sr. found a small handgun
in a shoe box in a bedroom at his parents’ house. He removed the gun from the house and
did not tell anyone about it until detectives called to ask about its presence. He agreed to
meet the detectives at a Texaco station where he directed the officers to where he hid the gun.

       On cross-examination, he acknowledged that Taylor, Jr. had been staying in the
bedroom where the gun was found. Taylor, Sr. never had seen the gun before finding it in
the shoe box that day.

        Sergeant David Parks of the MPD testified that in September 2009 he was assigned
to the homicide division. He assisted Sergeant Goods in collecting evidence in the present
case. During the investigation, Sergeant Parks learned that a possible suspect had placed a
weapon in the suspect’s home. Upon speaking with residents there, Taylor, Sr. notified the
detectives that he was in possession of the weapon in question. They arrived at a Texaco
station to meet Taylor, Sr., and Taylor indicated that the weapon was hidden inside a plastic
bag beside the ice machine. Sergeant Parks identified at trial the weapon that he found that
day, a .32 caliber revolver. On cross-examination, Sergeant Parks stated that he did not know
whether the weapon was tested for fingerprints.

       James E. Johnston, Jr., a criminal investigator in the gang unit for the Shelby County
District Attorney General’s Office, testified that he was asked to transport a weapon to the
Tennessee Bureau of Investigation (“TBI”) for ballistic testing with bullet packs retrieved
from the medical examiner’s office. He identified the box that he used to transport the
weapon to the TBI.

        Special Agent Dan Royse, a forensic scientist supervisor with the Firearms
Identification Unit at TBI, testified as an expert in firearms identification. He explained that
firearms identification is a “discipline of forensic science that deals with the examination of
fired bullets, fired cartridge cases, fired shot shell cases, and other ammunition components
to determine which specific firearm” had been used in a given situation. From his testing of
the handgun and the five bullet packs, Special Agent Royse determined that the handgun was
in “normal operating condition.” He also determined that four of the five bullet packs were
fired from the handgun given to him for testing. One of the bullet packs contained fragments
of the bullet that were too small to determine conclusively that the bullet was fired from that
handgun. However, Special Agent Royse acknowledged that the fragment could have been
part of another fragment tested and matched to the handgun.




                                              -11-
       At the conclusion of the State’s proof, the defense moved for judgment of acquittal,
and the trial court denied the motion. The Defendant chose not to testify, and the defense
presented no witnesses. The jury deliberated and found the Defendant guilty of first degree
murder in the perpetration of a robbery and first degree premeditated murder. The trial court
merged the two offenses4 and sentenced the Defendant to life imprisonment.

       The Defendant filed a motion for new trial, which the trial court subsequently denied.
He now appeals, arguing that the trial court erred in denying the Defendant’s request for
mistrial following statements made by Sergeant Quinn. He also challenges the sufficiency
of the evidence supporting his convictions.

                                                  Analysis

                                      Sergeant Quinn’s Testimony

        The Defendant contends that “the trial court erred and abused its discretion in failing
to grant a mistrial concerning the statements of Sergeant Mundy Quinn.” The State responds
that the trial court properly denied the Defendant’s request for a mistrial.

       The determination of whether to grant a mistrial is a decision left to the trial court’s
sound discretion, and this Court will not disturb the trial court’s determination “absent a clear
abuse of discretion on the record.” State v. Reid, 91 S.W.3d 247, 279 (Tenn. 2002).
Essentially, “[t]he purpose for declaring a mistrial is to correct damage done to the judicial
process when some event has occurred which precludes an impartial verdict.” State v.
Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996). A court should grant a mistrial
only when a “manifest necessity for such action” exists. State v. Saylor, 117 S.W.3d 239,
250 (Tenn. 2003) (citing State v. Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim. App.
1991)). “‘In other words, a mistrial is an appropriate remedy when a trial cannot continue,
or a miscarriage of justice would result if it did.’” Saylor, 117 S.W.3d at 250 (quoting State
v. Land, 34 S.W.3d 516, 527 (Tenn. Crim. App. 2000)). The party seeking the mistrial bears
the burden of establishing its necessity. Williams, 929 S.W.2d at 388.

       In deciding whether to grant a mistrial, “‘no abstract formula should be mechanically
applied and all circumstances should be taken into account.’” State v. Mounce, 859 S.W.2d
319, 322 (Tenn. 1993) (quoting Jones v. State, 403 S.W.2d 750, 754 (Tenn. 1966)). This
Court has considered the following three factors in assessing whether the trial court abused
its discretion in its decision not to grant a mistrial: “(1) whether the State elicited the


        4
          Although not specified in the transcript, the judgment orders reflect that the trial court merged the
first degree premeditated murder conviction into the first degree felony murder conviction.

                                                     -12-
testimony, (2) whether the trial court gave a curative instruction, and (3) the relative strength
or weakness of the State’s proof.” State v. Welcome, 280 S.W.3d 215, 222 (Tenn. Crim.
App. 2007).

       Turning to the first factor, whether it was the State who elicited the questioned
testimony, here Sergeant Quinn was responding to a question posed by the defense. Defense
counsel, on cross-examination, had asked Sergeant Quinn whether it was he or another
investigator who retrieved the Defendant from the school for questioning. When Sergeant
Quinn answered that it was another investigator, defense counsel responded, “Another
investigator did? Is it fair to state were you the directing officer in this investigation or were
you just doing what you were told?” Sergeant Quinn answered, “Well, I mean there was [sic]
two separate investigations going on at once.” Given that Sergeant Quinn’s testimony was
a response to defense counsel’s questioning and not the State’s, the first factor weighs against
an abuse of discretion determination.

          We next turn to the second factor, which is whether the trial court provided the jury
with a curative instruction. Following lengthy discussion among the trial court, the defense,
and the State, the trial court denied the defense’s motion for mistrial. The trial court did not
give a curative instruction to the jury, but no such instruction was requested by the defense.
As a result, “the right to a curative instruction was waived when [defense] counsel failed to
request it.” State v. McPherson, 882 S.W.2d 365, 371 (Tenn. Crim. App. 1994) (citing State
v. Mackey, 638 S.W.2d 830, 835-836 (Tenn. Crim. App. 1982)); see also State v. Griffis, 964
S.W.2d 577, 599 (Tenn. Crim. App. 1997) (“If a party fails to request a curative instruction
. . . , the party effectively waives the issue for appellate purposes.”). Therefore, this factor
weighs against an abuse of discretion on the part of the trial court.

       Finally, we look to the third factor, which is “the relative strength or weakness of the
State’s proof.” Welcome, 280 S.W.2d at 222. The jury had more than ample proof to
convict the Defendant. The Defendant gave a statement implicating himself in the robbery
which resulted in his shooting the victim. Ingram, the Defendant’s accomplice, corroborated
the Defendant’s statement. Additionally, the forensic evidence supported the jury’s verdict.
Therefore, this final factor clearly weighs against an abuse of discretion determination.
Accordingly, the Defendant is entitled to no relief on this issue.

        The Defendant asserts that this Court should grant relief under a plain error review.
We first note that we have held that the Defendant is not entitled to relief on the merits of this
issue because the trial court did not abuse its discretion. Moreover, the Defendant would not
receive relief under a plain error review because, as noted in looking at the substantial proof
in this case, the error did not “probably change[] the outcome of the trial.” State v. Smith,
24 S.W.3d 274, 282-83 (Tenn. 2000) (stating that relief will not be granted when the record

                                               -13-
establishes that at least one of the five elements of plain error relief cannot be met) (quoting
State v. Adkisson, 899 S.W.2d 626, 642 (Tenn. Crim. App. 1994)).

                                 Sufficiency of the Evidence

       The Defendant also challenges the sufficiency of the evidence supporting his
convictions for first degree murder. 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.

       The weight and credibility given to the testimony of witnesses, and the reconciliation
of conflicts in that testimony, are questions of fact. State v. Bland, 958 S.W.2d 651, 659
(Tenn. 1997). Furthermore, it is not the role of this Court to reevaluate the evidence or
substitute its own inferences for those drawn by the jury. State v. Winters, 137 S.W.3d 641,
655 (Tenn. Crim. App. 2003) (citations omitted).

        The trial court merged the two murder convictions, and the judgments reflect that the
conviction for first degree premeditated murder was merged into the conviction for first
degree murder in the perpetration of a robbery. First degree felony murder is defined as “[a]
killing of another committed in the perpetration of or attempt to perpetrate any first degree

                                              -14-
murder, act of terrorism, arson, rape, robbery, burglary, theft, kidnapping, aggravated child
abuse, aggravated child neglect, rape of a child, aggravated rape of a child or aircraft piracy.”
Tenn. Code Ann. § 39-13-202(a)(2) (Supp. 2007). Therefore, we first must consider whether
the evidence was sufficient for the jury to determine that the Defendant committed one of the
underlying felonies required to convict the Defendant of first degree felony murder.

       The State’s theory of the case was that the Defendant killed the victim in the
commission of a robbery. Robbery is defined as “the intentional or knowing theft of property
from the person of another by violence or putting the person in fear.” Tenn. Code Ann. § 39-
13-401(a) (2006). A person commits theft of property “if, with the intent to deprive the
owner of property, the person knowingly obtains or exercises control over the property
without the owner’s effective consent.” Id. § 39-14-103 (2006).

        The State presented ample evidence for the jury to conclude that the Defendant, with
the intent to rob the victim, deprived the victim of his property by shooting the victim. In his
statement, the Defendant stated that he and Ingram had followed the victim to a Shell gas
station after hearing the victim discuss the payment of money with a lady. After leaving the
Shell gas station, according to the Defendant, he “tried to rob” the victim. The victim,
however, “rushed” the Defendant, and the Defendant shot the victim. After shooting the
victim, the Defendant “went on ahead and got the money and walked off with [the victim’s]
shoes and the money.”

        Ingram testified to essentially the same facts leading up to the time that they left the
Shell gas station. However, Ingram also remembered observing the victim put money in his
shoe, and Ingram relayed this information to the Defendant. The Defendant also informed
Ingram that he was going to rob the victim prior to doing so. As they left the Shell gas
station, the Defendant waited for the victim on a side street, and Ingram continued walking
down the street. Before crossing the street, Ingram heard gunshots, and he returned to find
the victim on the ground. The Defendant admitted to shooting the victim. Ingram observed
the Defendant kick the victim and confiscate the victim’s shoes and some food.

       The Defendant contends that the State failed to present sufficient evidence for a jury
to convict the Defendant because, according to the Defendant, Ingram’s testimony was
“unreliable” based on the fact that he was an accomplice and was “was testifying in a self
serving manner implicating the Defendant in an effort to exculpate himself.”

       In Tennessee, it is well-established that an accomplice’s uncorroborated testimony
cannot be the sole basis of a defendant’s conviction. State v. Bough, 152 S.W.3d 453, 464
(Tenn. 2004); see also State v. Bane, 57 S.W.3d 411, 419 (Tenn. 2001); Monts v. State, 379
S.W.2d 34, 43 (Tenn. 1964). Specifically,

                                              -15-
       There must be some fact testified to, entirely independent of the accomplice’s
       testimony, which, taken by itself, leads to the inference, not only that a crime
       has been committed, but also that the defendant is implicated in it; and this
       independent corroborative testimony must also include some fact establishing
       the defendant’s identity. This corroborative evidence may be direct or entirely
       circumstantial, and it need not be adequate, in and of itself, to support a
       conviction; it is sufficient to meet the requirements of the rule if it fairly and
       legitimately tends to connect the defendant with the commission of the crime
       charged.

Bough, 152 S.W.3d at 464 (quoting Bane, 57 S.W.3d at 419).

        In the case before us, we not only have the accomplice testimony of Ingram but the
Defendant’s own statement of admission. Moreover, video from the Shell gas station placed
the Defendant and the victim together shortly before the incident. Finally, the forensic
evidence also pointed toward the guilt of the Defendant. Therefore, the evidence presented
at trial provided ample corroboration to Ingram’s testimony that the Defendant shot the
victim in the commission of a robbery. Thus, the evidence is sufficient to establish that the
Defendant committed a robbery on the night of the incident.

       We also must determine whether there was sufficient evidence to determine that
someone was killed in the commission of the above felony. Testimony established that the
victim died as a result of multiple gunshot wounds and that the manner of death was
homicide. Additionally, Ingram testified that, shortly after Ingram heard the gunshots, he ran
back to the victim and the Defendant, and the Defendant admitted to Ingram that he shot the
victim. Moreover, in the Defendant’s statement to police, he admitted to shooting the victim
four times, and exactly four bullets were retrieved from the victim’s body.

        The Defendant also asserts that the Defendant’s statement should be “disregarded”
because “the statement was taken from the Defendant when he was a juvenile (17 years old),
without a parent, guardian or attorney present.” However, the Defendant moved to suppress
his statement prior to trial, and the trial court denied that motion. Moreover, the Defendant
failed to raise the suppression issue in his motion for new trial or as a separate issue on
appeal. Therefore, the Defendant has waived review of this issue. See Tenn. R. App. P. 3(e).
Accordingly, the statement properly was before the jury. The State clearly presented
sufficient evidence to establish that the victim died during the commission of the robbery.
Therefore, the evidence is sufficient to support the Defendant’s first degree felony murder
conviction. Accordingly, he is entitled to no relief on this issue.




                                             -16-
       Although the Defendant’s two convictions were merged, we also will address the
sufficiency of the evidence for his merged offense, first degree premeditated murder, should
an issue arise as to the felony murder conviction upon further appeal. 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
Young, 196 S.W.3d at 108; 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 Bland, 958 S.W.2d at 660).

        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;
. . . evidence of procurement of a weapon; . . . calmness immediately after the killing,”
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 also
may 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 State provided sufficient evidence at trial for a jury to convict the Defendant of
first degree premeditated murder. Although the Defendant stated to police that he shot the
victim when the victim “rushed” him, he also stated that he shot the victim four times with
a handgun. Ingram testified that, prior to the shooting on September 9, 2009, the Defendant
showed Ingram a gun in his pocket and told Ingram that he was going to rob the victim,
indicative of the Defendant’s procurement of a weapon. See Bland, 958 S.W.2d at 660.

                                              -17-
Later, after Ingram heard gunshots, he ran back to where the Defendant was standing. He
observed the victim on the ground, and the Defendant admitted to shooting the victim.
Ingram observed the Defendant kick the victim “to the head or somewhere near the head,”
indicative of the Defendant’s “failure to provide aid or assistance to the victim.” Brooks, 249
S.W.3d at 329 (citations omitted). According to Ingram, the Defendant seemed calm as they
walked toward the Defendant’s house. Finally, Dr. Ross testified that the gunshots entered
the victim’s back, the back of the neck, the side of the head, and the top of the head. At the
very least, the jury could have inferred from the place of entry of the bullets that the victim
was not facing the Defendant when the Defendant shot him.

       Viewing these facts with the strongest legitimate view in favor of the State, see Harris,
839 S.W.2d at 75, the jury had adequate evidence before it to find the existence of an
intentional and premeditated killing sufficient to support a first degree premeditated murder
conviction.

                                       CONCLUSION

       For the reasons articulated above, we affirm the Defendant’s convictions.


                                            ______________________________
                                            JEFFREY S. BIVINS, JUDGE




                                              -18-
