        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs December 7, 2011

                STATE OF TENNESSEE v. MAURICE O. BYRD

               Appeal from the Circuit Court for Montgomery County
                     No. 40600534      Michael R. Jones, Judge


              No. M2010-02405-CCA-R3-CD _ Filed November 29, 2012


Following a jury trial, the Defendant, Maurice O. Byrd, was convicted of aggravated robbery,
felony first degree murder, and premeditated first degree murder. See Tenn. Code Ann. §§
39-13-202, -402. The trial court merged the premeditated first degree murder conviction into
the felony first degree murder conviction and sentenced the Defendant to life imprisonment.
The trial court also sentenced the Defendant to eight years for the aggravated robbery
conviction and ordered the sentence to be served concurrently with the life sentence for the
felony first degree murder conviction. On appeal, the Defendant contends that the evidence
was insufficient to sustain his convictions. Following our review, we affirm the judgments
of the trial court.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which T HOMAS T. W OODALL
and R OBERT W. W EDEMEYER, JJ., joined.

Carrie W. Gasaway, Clarksville, Tennessee (at motion for new trial hearing and on appeal);
John E. Herbison, Clarksville, Tennessee (on appeal); and Reid H. Poland, III, Clarksville,
Tennessee (at trial), for the appellant, Maurice O. Byrd.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant
Attorney General; John Wesley Carney, Jr., District Attorney General; and Helen Owsley
Young, Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                               FACTUAL BACKGROUND
        On July 1, 2005, Frank Dowlen, Jr. went to the victim, Eric Payton’s, apartment in
Clarksville, Tennessee. At trial, Mr. Dowlen testified that he and the victim were “pretty
good friends.” According to Mr. Dowlen, he was going to the victim’s apartment that day
to pay the victim twenty dollars that he owed the victim and to buy some marijuana from the
victim. Mr. Dowlen testified that his older brother, Alpha Omega Dowlen, drove him to the
victim’s apartment. Mr. Dowlen estimated that he got to the victim’s apartment sometime
between 10:30 and 11:00 a.m. that morning. Mr. Dowlen testified that he would usually
enter the apartment from the back door, but on that morning he went to the front door to “just
run in, run out real quick.” Mr. Dowlen was “surprised” to find the front door “cracked
open.” Mr. Dowlen testified that he “stuck [his] head in” and called out the victim’s name.
Mr. Dowlen saw the victim in the living room “laid up under a blanket.”

        Mr. Dowlen testified that the blanket covered the victim’s whole body, including the
victim’s head. Mr. Dowlen approached the victim, pulled up the blanket, and saw that the
victim’s “brain was blown out and his eyeball was sitting next to his face.” Mr. Dowlen
recalled that there was “a puddle of blood” underneath the victim as well as blood on the
victim’s face. Mr. Dowlen testified that the blood on the victim’s face and in the “puddle”
was already dry and not “wet.” After finding the victim’s body, Mr. Dowlen “just ran” out
of the apartment and back to his brother’s vehicle. Mr. Dowlen “went over to [a] friend’s
house and called the police . . . and told them there was a dead body” at the victim’s
apartment. Mr. Dowlen testified that he did not see a gun or anyone else at the apartment that
morning. Mr. Dowlen denied having a gun with him that day and denied that he shot the
victim.

       Mr. Dowlen’s brother testified that he drove Mr. Dowlen to the victim’s apartment
“earlier in the day, like mid-afternoon” and parked “right in front of the apartment building.”
Mr. Dowlen’s brother stayed in the vehicle and waited on Mr. Dowlen as he went in the front
door of the apartment. Mr. Dowlen “came out maybe a minute later, he was running -- he
was screaming, ‘Start the truck, start the truck.’” Mr. Dowlen told his brother that the victim
was dead. Mr. Dowlen’s brother then drove to a friend’s house “and called 911.” Mr.
Dowlen’s brother testified that Mr. Dowlen “was distraught . . . [and] really messed up, like
he had [seen] a ghost or something.” Mr. Dowlen’s brother also testified that Mr. Dowlen
did not have a gun with him that day nor did he have “a gun, drugs, or money” when they left
the victim’s apartment.

        Sergeant Marty Watson of the Clarksville Police Department (CPD) was one of the
first officers to arrive at the victim’s apartment on July 1, 2005. Sgt. Watson testified at trial
that he was dispatched to the victim’s apartment around 11:56 a.m. and that he arrived at the
apartment complex at 12:02 p.m. Sgt. Watson testified that when he arrived at the apartment
complex, he was unsure which apartment to go to. Sgt. Watson “talked to some people

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there” and then “the landlord showed up and he advised . . . [that] the guy left his back door
open.” Sgt. Watson and some other officers went to the back of the victim’s apartment and
entered through a patio door that “was open about a couple of inches.” Sgt. Watson testified
that the victim “was laying [sic] . . . ten or twelve feet inside from the back door . . . face
down.” The victim was “partially covered up with a blanket,” there was “a towel laying [sic]
under his face area,” and a “pillow case” in front of him.

        Sgt. Watson testified that upon seeing the victim’s injuries, he knew that the victim
was deceased. According to Sgt. Watson, the victim’s “right eye was messed up and there
was a wound to the back of his head also.” Sgt. Watson observed that the blood on the floor
and on the victim’s face had “started to dry.” Sgt. Watson found “a shell casing to the right”
of the victim and a slug “underneath” the victim’s arm. Sgt. Watson testified that there was
no one in the apartment when the police arrived and that no weapons were recovered after
a search of the apartment. Sergeant Timothy W. Saunders of the CPD testified that he
collected the following evidence from the victim’s apartment: one .380 caliber bullet, one
shell casing, and one slug. Sgt. Saunders testified that the bullet was found “in a kitchen
drawer” with no weapon or other ammunition with it. According to Sgt. Saunders, the shell
casing was found “on the floor behind the victim, next to the table,” and the slug was found
“under the victim’s right arm.” Sgt. Saunders also testified that there were no firearms found
in the victim’s apartment.

        Detective Brad Crowe of the CPD testified that he assisted with evidence collection
at the victim’s apartment on July 1, 2005. Det. Crowe recovered nine Lortab pills packaged
in “small baggies that were tied up” from the door of the “freezer portion of the [victim’s]
refrigerator.” Det. Crowe also recovered a “white plastic grocery sack” containing “some
marijuana” from the freezer. Det. Crowe testified that he recovered twenty-four dollars from
one of the kitchen cabinets. The money “appeared to have come out of a broken . . . canister
that you would have flour or something in.” The canister “looked like it had been broken and
the money was laying right there with it.” Det. Crowe also testified that no cocaine or
weapons were recovered from the victim’s apartment.

        The police investigation into the victim’s murder revealed that the night before, on
June 30, 2005, the victim had a “going away” party at his apartment for his friend Arthur Lee
Anderson, Jr. The party continued into the early morning hours of July 1, 2005, and several
people were in and out of the victim’s apartment that night. In addition to the victim and Mr.
Anderson, the following people were at the victim’s apartment that night: the victim’s “best
friend,” Thomas Lloyd Cantrell; Christian Hope Morris Hutchins, who had gone to school
with the victim; two of the victim’s cousins, Mareo Santez Kizer and Kedrick Phillips; one
of the victim’s neighbors, Anthyony Townsend; and the Defendant. Mr. Kizer testified that
everyone at the victim’s apartment that night was “[j]ust drinking and smoking a little weed,

                                              -3-
just trying to have a little party.” At trial, all of the witnesses who had been to the party
testified that they were intoxicated from various drugs that night. Ms. Hutchins testified that
every time she visited the victim’s apartment “there was something going on . . . [j]ust drugs
and drinking, [and] people coming in and out.”

        At the time of his death, the victim was unemployed, supported himself by “selling
drugs,” and paid all of his bills with cash. The victim’s sister, Jennifer Payton Adams,
testified that the victim “lived completely on cash.” Mr. Cantrell testified that during the
morning of June 30, 2005, he went with the victim to purchase the following drugs: a
“quarter pound” of marijuana packaged in “one of them little hand grocery bags,” a “baggie
of Lortab” pills, a “couple” of ecstasy pills, and “a ball, a ball and a half of cocaine.” Mr.
Cantrell explained that he was referring to an “eightball” of cocaine and that an eightball
contained 3.5 grams of cocaine. Mr. Cantrell estimated that the victim bought between seven
and eight grams of cocaine that day. Mr. Cantrell testified that after the victim purchased the
drugs he had approximately $500 in cash left over. According to Mr. Cantrell, the victim
took the drugs and cash back to his apartment.

        Mr. Phillips testified that the victim “normally kept” his money in “a cookie jar in [a]
cabinet in the kitchen.” According to Mr. Phillips, he opened the cookie jar on the night of
the party to put sixty dollars in it. Mr. Phillips testified that the jar was full of money, mostly
twenty dollar bills. Mr. Phillips estimated that there was $1,000 in the cookie jar that night.
Mr. Phillips also testified that the victim had told him that he was having a party because “he
made” $1,000 that day. However, Mr. Phillips admitted that he did not take the money out
of the cookie jar to count it and could only estimate how much was inside. Mr. Phillips also
testified that, during the party, he saw “around a quarter pound” of marijuana in the victim’s
freezer. Ms. Hutchins testified that she saw marijuana, ecstasy, and cocaine at the victim’s
apartment that night. However, Mr. Kizer denied that anyone at the party used cocaine that
night.

        Mr. Cantrell testified that he went to the victim’s apartment around 3:00 a.m. on July
1, 2005, and there were several people at the victim’s apartment. Mr. Cantrell stated that he
went to the victim’s apartment that morning to get some marijuana, but when he got there,
the victim was passed out “lying in front of the TV, diagonal with his head like facing
towards the coffee table, sleeping.” Because the victim was asleep, Mr. Cantrell only stayed
at the apartment for approximately ten minutes. Mr. Kizer testified that the victim was sick
and throwing up “from alcohol,” so they put a blanket on him and had him lie down in front
of a fan. Ms. Hutchins, Mr. Kizer, and Mr. Phillips all testified that they left the victim’s
apartment together “early in the morning.” The victim was still asleep on the living room
floor when they left. They offered to give the Defendant “a ride to where he wanted to go,”
but the Defendant declined and said that “he wanted to stay to make sure that [the victim]

                                                -4-
was all right.” The Defendant and the victim were the only people left at the apartment when
Ms. Hutchins, Mr. Kizer, and Mr. Phillips left that morning.

        Ms. Hutchins estimated that she, Mr. Kizer, and Mr. Phillips left sometime between
6:00 and 7:00 a.m. on July 1, 2005. Ms. Hutchins testified that, despite the fact that she had
stayed up all night and was high on ecstasy, she had to work at a daycare at 8:00 that
morning. When they left, “a purple Neon” that the Defendant had been driving was parked
in a gravel lot behind the apartment building. Tammy Compton, the victim’s downstairs
neighbor, testified that she got up around 3:00 a.m. on July 1, 2005, to let her dog out. Ms.
Compton saw three cars parked in the back lot, including “a purple car.” The same three cars
were in the back parking lot when Ms. Compton got up at 5:30 that morning. Ms. Compton
testified that when she left for work at 8:00 a.m., “only the purple car [was] there at that
time.”

       Another of the victim’s neighbors, Mr. Townsend, testified that he had been at the
victim’s apartment the night before but left around 2:00 a.m. because he had to work that
morning. Mr. Townsend testified that he was running late that morning and got to work
around 7:30 a.m. When he left for work that morning, Mr. Townsend “noticed the
Defendant’s car was still parked in the back” lot. Mr. Townsend testified that he forgot his
lunch that morning so he went back to his apartment around 9:00 a.m. According to Mr.
Townsend, the Defendant’s car was no longer in the back lot, but parked in front of the
victim’s apartment.

        Mr. Anderson testified that he had met the victim through the Defendant and that the
party at the victim’s apartment on June 30, 2005, was for him. Mr. Anderson explained that
he was about to move to Kentucky because he was “ready to go” and that he had been living
in Clarksville under an assumed name because he “was on the run” from a “drug charge in
Alabama.” Mr. Anderson testified that the Defendant had been helping him pack and that
sometime between midnight and 1:00 a.m., the Defendant drove him to the victim’s
apartment in a purple Neon. The victim’s cousin, Mr. Phillips, took Mr. Anderson home
sometime between 4:00 and 5:00 a.m. Mr. Anderson explained that he left the party “early”
because he had to be in court over a traffic ticket at 8:00 a.m. Mr. Anderson’s brother-in-
law, Eddie Holliness, picked him up around 7:30 a.m. and took him to the municipal court.
After court, the two men then went to a “junk yard” to look for a transmission. Mr. Anderson
testified that while he was at the “junk yard,” he spoke with the Defendant on a cell phone
and told the Defendant to stay at his house until he got back so the Defendant could help him
with some more packing. The Defendant was not at Mr. Anderson’s house when Mr.
Anderson and Mr. Holliness returned around 11:00 a.m.




                                             -5-
        At trial, several witnesses, including Mr. Townsend and Mr. Anderson, testified that
the Defendant did not have a job, usually did not have any money, was essentially living in
the victim’s apartment because he could not afford to stay anywhere else, and “like[d] to use”
cocaine. Mr. Townsend and Mr. Anderson both testified that they never saw the Defendant
pay for anything except for gasoline. However, on July 1, 2005, the Defendant met with his
ex-girlfriend, Sharmar Graham, to take her and her children shopping to get “some book bags
and some school clothes.” Ms. Graham testified that the Defendant bought her some shoes
that day as well, but she could not remember if the Defendant bought any clothes for himself.
Ms. Graham further testified that she met the Defendant around 11:30 a.m. that day and
estimated that the Defendant spent around $200. Ms. Graham also testified that despite the
fact that the Defendant did not have a job or his own place to live, he had purchased things
in the past for her and her children. Mr. Anderson testified that later that night, the
Defendant came to his house to help pack. According to Mr. Anderson, the Defendant
looked “clean” and was wearing “new clothes and new shoes.”

        Mr. Anderson testified that sometime during the afternoon on July 1, 2005, he learned
that the victim had been murdered. According to Mr. Anderson, when the Defendant came
over to his house that night the Defendant did not seem upset and did not say anything about
the victim’s death. Likewise, Mr. Cantrell testified that he used to speak to the Defendant
everyday, but he did not see the Defendant for almost two days after the victim’s death. Mr.
Cantrell recalled that the Defendant did not go to the victim’s funeral and did not “show any
emotion over” the victim’s death. However, Ms. Graham testified that she was with the
Defendant when he learned of the victim’s death and that the Defendant became “upset” and
cried.

        Mr. Anderson testified that about an hour after the Defendant arrived at his house on
the evening of July 1, 2005, police officers arrived and took the Defendant, Mr. Anderson,
and his wife, Latricia Holliness, to the police station for questioning regarding the victim’s
murder. Mr. Anderson testified that he did not give the police officers his real name but that
he did tell them what he knew about the victim’s death. Ms. Holliness testified that at one
point, she was alone in a room with the Defendant when the Defendant gave her the keys to
the purple Neon and “mentioned” something about a gun. Ms. Holliness stated that she gave
the keys to her husband. Det. Crowe testified that he administered a gunshot residue (GSR)
test on the Defendant’s hands that night. According to Det. Crowe, the Defendant became
“very nervous” when told about the GSR test. The Defendant told Det. Crowe that “he had
fired off fireworks that day.” Det. Crowe lied to the Defendant and told him that the GSR
test could distinguish between handling fireworks and shooting a gun. When told this, the
Defendant “recanted the first statement,” said that he had “been shooting guns too,” and then
said that he shot targets “a lot.” Det. Crowe testified that the Defendant “became very
nervous and was very upset” about the GSR test.

                                             -6-
        Dr. Staci Turner, an expert in forensic pathology, testified that she performed an
autopsy on the victim on July 2, 2005. Dr. Turner concluded that the cause of death was a
gunshot wound to the head. Dr. Turner testified that the bullet entered “the left back of the
head . . . and then . . . went through the scalp, the skull, [and] the brain and then came out of
the right eyelid.” Dr. Turner also testified that there was no soot or stippling present on the
victim’s body which lead her to conclude that “the gun was fired roughly greater than three
feet away from the head.” Dr. Turner was unable to determine a time of death for the victim.
The police investigation ultimately revealed that the bullet that killed the victim had been
fired from a Hi-Point Firearms .380 caliber handgun.

       Several witnesses testified that they had seen the Defendant with a .380 caliber
handgun both before and after the victim’s murder. Mr. Cantrell testified that the Defendant
“owned” a .380 caliber handgun and that he had seen the gun at the victim’s apartment prior
to the murder. Mr. Cantrell also testified that both the Defendant and the victim handled the
gun and that the gun never left the victim’s apartment. Mr. Cantrell further testified that the
victim had showed him a “pinch mark” where the gun had pinched the victim’s hand. Mr.
Cantrell testified that he assumed the pinch had come from a “crack in the handle,” but he
never actually saw a crack on the gun. Mr. Kizer also testified that the victim and the
Defendant owned “a little black pistol” with “a silver strip like at the top.”

        Mr. Townsend testified that two or three weeks before the victim’s murder he saw the
Defendant at the victim’s apartment with a Hi-Point .380 with a sliver stripe and a “scratch
on the top somewhere.” Mark David Vond, a friend of both the victim and the Defendant,
testified that he saw the Defendant “a couple of weeks” before the victim’s murder at the
victim’s apartment with a Hi-Point .380. Mr. Holliness testified that about a month before
the victim’s murder he saw the Defendant at Mr. Anderson’s house with a .380. Mr.
Anderson testified that about a week before the victim’s murder he saw the Defendant with
a “black .380” with a scratch on it. Mr. Phillips testified that on the night of the party he saw
“a small black .380 with a gray stripe down the barrel” and that the gun “was [either] tucked
in the couch or under [the] coffee table.” Mr. Phillips further testified that he had seen the
gun in the apartment before “just laying around” and had previously seen the Defendant with
the gun.

        Mr. Cantrell testified that two days after the victim’s murder, the Defendant drove him
in the purple Neon to a house where the Defendant had been staying. The Defendant went
into the house and came out “about ten minutes” later with “a black .380 with a silver pin
stripe going like around the barrel.” Mr. Cantrell testified that this was the same gun he had
previously seen at the victim’s apartment. Robert King testified that he was friends with the
Defendant from their days in the Army. Mr. King testified that a week or two after the
victim’s murder he saw the Defendant with a black handgun.

                                               -7-
        On December 27, 2005, Officer James Kelly Crow of the Cumberland City Police
Department recovered “a Hi-Point .380 caliber handgun” from an individual named Karl
Banks during a traffic stop. Special Agent Steve Scott of the Tennessee Bureau of
Investigation (TBI), an expert witness in the area of firearms identification and ballistics,
testified that the handgun recovered from Mr. Banks was the same handgun that had been
used to kill the victim. Mr. Cantrell testified at trial that the gun recovered from Mr. Banks
was a “[t]win” of the gun he had previously seen the Defendant with. Likewise, Mr. Phillips
testified that the gun recovered from Mr. Banks was “the exact same gun” he had seen the
Defendant with at the victim’s apartment. Mr. Kizer also testified that the gun recovered
from Mr. Banks “look[ed] like” the Defendant’s gun.

        The gun was registered to Derrick Isaiah Poe, a Staff Sergeant in the United States
Army who was stationed at Fort Campbell in 2005. Mr. Poe testified that in 2005 he owned
a black .380 caliber Hi-Point handgun that he had not seen since the Spring of 2005.
According to Mr. Poe, in April 2005, he went to “Kickers’ Club” with the Defendant. Mr.
Poe testified that he knew the Defendant through a “mutual friend.” Mr. Poe testified that
he was intoxicated that night and the Defendant drove him to the club. According to Mr.
Poe, he “left the gun in the trunk of [the Defendant’s] car.” When they arrived at the club,
Mr. Poe met with Mr. Anderson and the two men went inside. The Defendant was unable
to get into the club that night. Mr. Poe testified that he “ended up leaving the club early with
a female” and realized the next day that he had left his gun in the Defendant’s car. Mr. Poe
further testified that he tried to get in touch with the Defendant but he was unable to do so.
Mr. Poe reported that his gun was stolen on May 1, 2005. Mr. Poe stated in the report that
he believed the Defendant had stolen his gun. Mr. Poe admitted at trial that he lied in the
police report when he stated that his gun had been stolen from his apartment after a party.
Mr. Poe explained that he lied to the police because he was “scared” and believed that it was
illegal to “ride around . . . with a gun in the car.” Mr. Poe testified that he had not seen his
gun since the night he went to the “Kickers’ Club” with the Defendant and Mr. Anderson.

       Jamar Christian Ashe, a convicted drug dealer, testified that he had met the Defendant
“two times” while selling cocaine. Mr. Ashe testified that the second time he met the
Defendant at an apartment complex and the Defendant offered to sell him “a pistol.”
According to Mr. Ashe, the Defendant told him the gun was “straight,” and Mr. Ashe offered
to give the Defendant “two grams of powder for it.” Mr. Ashe recalled that “the whole
bottom piece” of the gun was black and that “the top piece that you pull back, that was like
grayish color.” Mr. Ashe testified that in November 2005, he gave the gun he purchased
from the Defendant to Mr. Banks. According to Mr. Ashe, he received a phone call from Mr.
Banks and learned that Mr. Banks had been “jumped” by several men at a local club. Mr.
Ashe testified that he met with Mr. Banks that night and gave the Defendant’s gun to Mr.



                                              -8-
Banks. Mr. Ashe claimed that he did not know anything about the victim’s murder when he
bought the gun from the Defendant and when he gave the gun to Mr. Banks.

        At trial, Mr. Ashe admitted that he had lied to the police and told them several
different versions of how Mr. Banks got the Defendant’s gun. Mr. Ashe admitted that he had
first told the police that Mr. Banks had bought the gun directly from the Defendant. Mr.
Ashe claimed that Mr. Banks had told him this during a phone conversation. Mr. Ashe then
told the police that he met with the Defendant and set the Defendant up with Mr. Banks after
the Defendant asked him if he knew of anyone that needed a gun. Mr. Ashe also admitted
that he lied to the police and told them that he had never touched the gun. Mr. Ashe
eventually told the police that he had stolen the gun from the Defendant’s car. Mr. Ashe
testified that he just wanted “to tell [the jury] the whole truth” and that his testimony about
buying the gun from the Defendant was truthful.

        Mr. Banks testified that he was arrested on December 27, 2005, and that the gun he
had received from Mr. Ashe was in the car that day. Mr. Banks admitted that when he was
arrested he lied to the police and told them that he had gotten the gun “from a smoker[,] . .
. a white guy.” Ashley Plant testified that she was with Mr. Banks when he received the gun
from Mr. Ashe. Ms. Plant testified that in November 2005, Mr. Banks had gotten “into a
fight with a dude” at the Starlight Lounge. Mr. Banks called Mr. Ashe to get a gun because
he had been hit “in the face with a gun.” Ms. Plant testified that Mr. Ashe got into the car
with her and Mr. Banks and then gave Mr. Banks a gun. However, Mr. Ashe testified that
Ms. Plant was not present when he gave Mr. Banks the gun and that Ms. Plant “didn’t know
about the gun.”

        The Defendant did not testify at trial. However, the Defendant gave several
statements to the police that were introduced into evidence at trial. The Defendant first told
police that he was in and out of the victim’s apartment throughout the night of June 30, 2005,
and the early morning hours of July 1, 2005. The Defendant claimed that he took Mr.
Anderson home from the victim’s apartment around 4:30 a.m. The Defendant also claimed
that he left the victim’s apartment between 7:30 and 8:00 a.m. The Defendant further
claimed that he took Mr. Anderson to court at 10:00 a.m. The Defendant then claimed that
he did not leave his house until around 1:30 p.m. when he went “school shopping” with Ms.
Graham. In a later statement, the Defendant again claimed to have been in and out of the
victim’s apartment all night. However, the Defendant claimed that he took Mr. Anderson
to a gas station “to catch a ride” at 4:30 a.m. The Defendant again claimed to have left the
victim’s apartment at 7:30 a.m., but did not claim to have taken Mr. Anderson to court that
morning. The Defendant also claimed not to have left his house until 1:30 p.m. when he
went shopping with Ms. Graham.



                                              -9-
       The Defendant denied killing the victim or knowing “who killed” the victim. The
Defendant also denied that he was so “high” that night that he could not remember what
happened. The Defendant denied owning or possessing “a gun in the last thirty days.”
However, the Defendant stated that the GSR test performed on him would “probably show
up positive because [he] had shot a gun probably a day or two before that when [he] went to
the country for the 4th of July.” The Defendant further stated that the gun he had shot
belonged to him. The Defendant described the gun as a “black gun” and stated that the last
place he had seen the gun was at the victim’s apartment. The Defendant admitted that he had
given his car keys to Ms. Holliness while they were at the police station, but he denied that
he asked her “to take a gun out” of his car. The Defendant stated that he was wearing blue
sweat shorts and a “gray or blue long shirt” on the day the victim was killed. The Defendant
admitted that the police had confiscated a pair of his shoes, which had blood on them.
However, the Defendant stated that the blood did not belong to the victim. Instead, the
Defendant stated that it belonged to “[s]omeone [he] got into a fight with.”

        Detective Alan Charvis of the CPD testified that he was the lead investigator in this
case. Det. Charvis testified that the Defendant’s shoes had been tested and that the blood on
them did not belong to the victim. Special Agent James Russell Davis, II, of the TBI, an
expert in forensic science, testified that he tested several items of clothing from the
Defendant for gunshot primer residue. This included “two shirts,” a pair of blue shorts, a
gray tank top, and a gray t-shirt. Special Agent Davis testified that none of the clothing
tested positive for gunshot primer residue. Special Agent Davis explained that there could
be several reasons for the negative test results: that the Defendant had not fired a gun, that
the Defendant had fired a gun but had not worn those items of clothing, that the gun “did not
emit very much gunshot residue,” or that the items of clothing had been washed. Special
Agent Davis also testified that he reviewed the results of the GSR test Det. Crowe had
performed on the Defendant’s hands. According to Special Agent Davis, “[e]lements
indicative of gunshot residue were absent” from the samples collected from the Defendant.
However, Special Agent Davis explained that these results did not “eliminate the possibility
that the [Defendant] could have fired, handled, or was near a gun when it fired.” Special
Agent Davis further explained that washing or rubbing the hands could remove GSR and that
the test results were not conclusive one way or the other.

       In addition to this evidence, several witnesses testified about the relationship between
the Defendant and the victim. Mr. Cantrell testified that the two men had a “real good”
relationship and that the Defendant was at the victim’s apartment “everyday.” Likewise, Mr.
Kizer testified that the two men were friends and that the Defendant was at the victim’s
apartment every time Mr. Kizer visited the victim. Mr. Phillips also testified that the
Defendant and the victim were friends. Mr. Townsend testified that the Defendant and the



                                             -10-
victim were “good friends” and that he saw the Defendant at the victim’s apartment “[a]lmost
everyday.”

                                         ANALYSIS

        The Defendant contends that the evidence was insufficient to sustain his convictions
for aggravated robbery, felony first degree murder, and premeditated first degree murder.
Citing State v. Crawford, 470 S.W.2d 610, 612 (Tenn. 1971), the Defendant argues that the
State’s case against him was based solely upon circumstantial evidence and that the State
failed to present proof that excluded every other reasonable hypothesis save his guilt. The
State responds that in State v. Dorantes, 331 S.W.3d 370 (Tenn. 2011), our supreme court
overruled Crawford and held that circumstantial evidence should be treated the same as direct
evidence when determining the legal sufficiency of the evidence. Based upon the new
standard announced in Dorantes, the State responds that the evidence was sufficient to
sustain the Defendant’s convictions.

        An appellate court’s standard of review when the defendant questions the sufficiency
of the evidence on appeal 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). This
court does not reweigh the evidence; rather, it presumes that the jury has resolved all
conflicts in the testimony and drawn all reasonable inferences from the evidence in favor of
the state. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness credibility, conflicts in
testimony, and the weight and value to be given to evidence were resolved by the jury. See
State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). A guilty verdict “removes the
presumption of innocence and replaces it with a presumption of guilt, and [on appeal] the
defendant has the burden of illustrating why the evidence is insufficient to support the jury’s
verdict.” Id.; State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). “This [standard] applies
to findings of guilt based upon direct evidence, circumstantial evidence, or a combination of
[both] direct and circumstantial evidence.” State v. Pendergrass, 13 S.W.3d 389, 392-93
(Tenn. Crim. App. 1999).

        Our supreme court recently clarified that circumstantial evidence is as probative as
direct evidence. Dorantes, 331 S.W.3d at 379-81. In doing so, the supreme court rejected
the previous standard which “required the State to prove facts and circumstances so strong
and cogent as to exclude every other reasonable hypothesis save the guilt of the defendant,
and that beyond a reasonable doubt.” Id. at 380 (quoting Crawford, 470 S.W.2d at 612)
(quotation marks omitted). Instead, “direct and circumstantial evidence should be treated the
same when weighing the sufficiency of such evidence.” Id. at 381. The reason for this is

                                             -11-
because with both direct and circumstantial evidence, “a jury is asked to weigh the chances
that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous
inference . . . [and] [i]f the jury is convinced beyond a reasonable doubt, we can require no
more.” Id. at 380 (quoting Holland v. United States, 348 U.S. 121, 140 (1954)). To that end,
the duty of this court “on appeal of a conviction is not to contemplate all plausible inferences
in the [d]efendant’s favor, but to draw all reasonable inferences from the evidence in favor
of the State.” State v. Sisk, 343 S.W.3d 60, 67 (Tenn. 2011).

                 I. Aggravated Robbery and Felony First Degree Murder

        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). An
aggravated robbery is a robbery “[a]ccomplished with a deadly weapon” or where “the victim
suffers serious bodily injury.” Tenn. Code Ann. § 39-13-402(a). Felony first degree murder
is defined as the “killing of another committed in the perpetration of or attempt to perpetrate
any . . . robbery . . . .” Tenn. Code Ann. § 39-13-202(a)(2).

        The Defendant argues that the evidence was insufficient to sustain his conviction for
aggravated robbery because “[g]iven that the evidence shows that [the victim] was asleep,
the instant record supports the hypothesis that the use of force or violence would have been
unnecessary to accomplish any taking of property” and that “[t]he prosecution has failed to
negate or rebut that hypothesis; therefore, the evidence is insufficient to support [a]
conviction of robbery or aggravated robbery.” The Defendant further argues that because
the State failed to “negate or rebut” his theory that the money was taken without the use of
violence, the evidence is also insufficient to sustain his conviction for felony first degree
murder. The Defendant explains in his brief that “[i]f the evidence supports a logical
inference that the killing occurred in perpetration of a specified felony, but also supports a
logical inference that the killing occurred collateral to an antecedent felony, that evidence is
insufficient to support conviction of felony murder.”

         However, the State correctly notes that the Defendant’s arguments are based entirely
on legal precedents explicitly overruled by our supreme court in Dorantes. The Defendant’s
assertion that because his conviction was based solely upon circumstantial evidence the State
was required to rule out every reasonable hypothesis except that of guilt is simply no longer
the law in Tennessee. Instead, circumstantial evidence alone is sufficient to sustain a
conviction and is treated the same as direct evidence when weighing the sufficiency of the
evidence. See Dorantes, 331 S.W.3d at 381. The Dorantes standard recognizes that the jury
is in a better position than this court to weigh the evidence and decide between the competing
plausible theories presented by the State and the defendant. Accordingly, this court’s duty
on appeal is “not to contemplate all plausible inferences in the [d]efendant’s favor, but to

                                              -12-
draw all reasonable inferences from the evidence in favor of the State.” Sisk, 343 S.W.3d
at 67.

        In the present case, the evidence revealed that the Defendant was unemployed and
consistently had little or no money. In the weeks before the murder, the Defendant was
repeatedly seen in the victim’s apartment with a black Hi-Point .380 caliber handgun that
several witnesses testified was identical to the murder weapon. Mr. Cantrell testified that the
day before the murder, the victim bought a significant amount of drugs including seven to
eight grams of cocaine and had $500 in cash remaining after the purchase. Mr. Phillips
testified that the victim kept his cash in a cookie jar in the kitchen and that on the night of
June 30, 2005, he saw what he estimated to be $1,000 in the cookie jar. Ms. Hutchins, Mr.
Kizer, and Mr. Phillips testified that when they left the victim’s apartment between 6:00 and
7:00 a.m. on July 1, 2005, the victim and the Defendant were the only people at the
apartment.

        The Defendant’s car, a purple Neon, was seen in the back parking lot at 8:00 a.m. by
one of the victim’s neighbors. At approximately 9:00 a.m., another neighbor saw the
Defendant’s car parked in front of the victim’s apartment. Mr. Dowlen testified that the front
door of the victim’s apartment was cracked open when he arrived after 11:00 a.m. When
police searched the victim’s apartment they recovered the marijuana and Lortab pills the
victim had purchased the previous day; however, the cocaine was missing. Likewise, the
police recovered a broken container with twenty-four dollars on top of it and no other money
was found in the victim’s apartment. The Defendant went to Mr. Anderson’s house
sometime before 11:00 a.m. that morning and later went shopping with his ex-girlfriend. Ms.
Graham estimated that the Defendant spent $200 on her and her children. The Defendant
also bought new clothes and shoes for himself that day. Witnesses saw the Defendant with
a black .380 handgun after the murder. Mr. Ashe testified that the Defendant sold him a
black .380 handgun for two grams of cocaine, and that he later gave the gun to Mr. Banks.
When police recovered the gun from Mr. Banks, it was determined to have been the murder
weapon.

       Based upon the foregoing evidence, the State established a reasonable inference that
the Defendant robbed the victim of his cocaine and the hundreds of dollars that had been in
the victim’s cookie jar using a deadly weapon, the .380 caliber Hi-Point handgun. During
the commission of the aggravated robbery, the Defendant shot the victim in the head, killing
him. It was the province of the jury to weigh the evidence, judge the credibility of the
witnesses, resolve any conflicts in the testimony, and choose between the competing theories
presented by the State and the Defendant. The State presented sufficient evidence to create
a reasonable inference that the Defendant robbed the victim using a deadly weapon and
during the course of the robbery, shot and killed the victim. Accordingly, we conclude that

                                             -13-
the evidence was sufficient to sustain the Defendant’s convictions for aggravated robbery and
felony first degree murder.

                            II. Premeditated First Degree Murder

        Premeditated first degree murder is defined as “[a] premeditated and intentional
killing of another.” Tenn. Code Ann. § 39-13-202(a)(1).

       Premeditation is 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.

Tenn. Code Ann. § 39-13-202(d) (internal quotations omitted). The element of premeditation
only requires the Defendant to think “about a proposed killing before engaging in the
homicidal conduct.” State v. Brown, 836 S.W.2d 530, 541 (Tenn. 1992). The presence of
premeditation is a question for the jury and may be established by proof of the circumstances
surrounding the killing. Bland, 958 S.W.2d at 660. Our supreme court has held that factors
demonstrating the existence of premeditation include, but are not limited to, the following:
the use of a deadly weapon upon an unarmed victim, the particular cruelty of the killing,
declarations by the defendant of an intent to kill, evidence of procurement of a weapon,
preparations before the killing for concealment of the crime, destruction or secretion of
evidence of the killing, and calmness immediately after the killing. See State v. Davidson,
121 S.W.3d 600, 614 (Tenn. 2003); Bland, 958 S.W.2d at 660. Additional factors cited by
this court from which a jury may infer premeditation include lack of provocation by the
victim and the defendant’s failure to render aid to the victim. See State v. Lewis, 36 S.W.3d
88, 96 (Tenn. Crim. App. 2000).

        The Defendant argues that the evidence presented at trial did not establish the
existence of premeditation. However, the evidence at trial established that the victim was
unarmed and laying on the floor when he was shot. Several witnesses testified that the victim
had been sick the night before and was asleep on the floor that morning. There was no
evidence of provocation by the victim, nor was there any evidence that the Defendant
attempted to aid the victim. Instead, the Defendant left the victim to die on the floor of his
apartment. Several months before the murder, the Defendant stole the murder weapon from
Mr. Poe. After the murder, the Defendant gave his keys to Ms. Holliness and said something
to her about there being a gun in his car. The Defendant eventually sold the murder weapon
to Mr. Ashe for two grams of cocaine. In the hours after the murder, the Defendant went
shopping with his ex-girlfriend and her children. Witnesses testified that the Defendant did
not appear to be upset about the victim’s death and that he did not attend the victim’s funeral

                                               -14-
despite their previous friendship. Accordingly, we conclude that the evidence was sufficient
to establish premeditation and to sustain the Defendant’s conviction for premeditated first
degree murder.

                                      CONCLUSION

        Upon consideration of the foregoing and the record as a whole, the judgments of the
trial court are affirmed.




                                                   _________________________________
                                                   D. KELLY THOMAS, JR., JUDGE




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