         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                          Assigned on Briefs December 6, 2011

                   STATE OF TENNESSEE v. CHANCY JONES

               Direct Appeal from the Criminal Court for Shelby County
                        No. 09-02131    W. Mark Ward, Judge




                  No. W2010-02424-CCA-R3-CD - Filed April 5, 2012


Following a jury trial, the Defendant, Chancy Jones, was convicted of second degree murder
and sentenced to twenty-four years of incarceration. On appeal, the Defendant challenges
the trial court’s exclusion of certain orders of protection, which had been sought and entered
against the victim by persons unrelated to this case, and which the Defendant sought to admit
in an effort to prove that the victim was the first aggressor. The trial court held that the orders
of protection themselves were not relevant, but offered the Defendant the opportunity to
introduce the testimony of the persons who obtained the protective orders against the victim.
For his second issue, the Defendant challenges the sufficiency of the evidence supporting his
conviction. After a careful 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

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which N ORMA M CG EE O GLE
and A LAN E. G LENN, JJ., joined.

Joseph A. McClusky (on appeal) and Thomas E. Hansom (at trial), Memphis, Tennessee, for
the appellant, Chancy Jones.

Robert E. Cooper, Jr., Attorney General & Reporter; Jeffrey D. Zentner, Assistant Attorney
General; Amy P. Weirich, District Attorney General; Patience Branham and Robert W.
Ratton, III, Assistant District Attorneys General, for the appellee, State of Tennessee.
                                                 OPINION

                              General Background Facts & Procedure

        The State’s proof established that in the early morning hours of September 9, 2008,
a female was found dead inside a blue Chevrolet Impala at a Shell gas station located at 1709
Whitten Road in Memphis. Police officers who responded to the scene testified that the
victim appeared to have sustained three gunshot wounds. After finding the victim’s purse,
officers tentatively identified her as Phyllis Malone. This identification was later confirmed
through fingerprint analysis. Police officers did not find a weapon or shell casings at the
scene. Neither did they find the victim’s cell phone. Lieutenant Barry Hanks 1 of the
Memphis Police Department (“MPD”) testified that inside the victim’s purse he found a
three-page handwritten letter addressed to someone named “Chancy.” Lieutenant Hanks said
that the letter was unsigned, undated, and he could not tell whether it had been mailed. The
letter indicated that the victim had been to a doctor and was pregnant.

       Lieutenant Walter Davidson, MPD, notified the victim’s next of kin. He went to the
home of Ophelia Harris, one of the victim’s sisters. Lieutenant Davidson asked the victim’s
family whether they knew someone named “Chancy.” Harris told him that the victim had
been dating an “Officer Jones,” but she apparently did not know Officer Jones’ first name.
Later that same day, Harris told Lieutenant Davidson that she had spoken with her neighbor,
who was also a police officer, and that the neighbor had told her that he knew a police officer
named Chancy Jones.

       MPD Officer Chancy Jones (“the Defendant”) reported to duty on September 9, 2008,
for his regular shift at 2:00 p.m. He was a patrolman and spent the early part of his shift
responding to calls. Lieutenant Davidson and Deputy Director Toney Armstrong, then
commander of the MPD’s Homicide Bureau, went to the Defendant’s precinct to question
him about the victim’s death. Deputy Director Armstrong asked the Defendant whether he
knew Phyllis Malone, and the Defendant replied that he knew someone named “Phyllis
Walker.” Lieutenant Davidson testified that from his conversations with the victim’s sisters,
he knew the victim sometimes called herself Phyllis Walker.2 The Defendant was relieved
of duty and taken to the homicide office for questioning. Deputy Director Armstrong
informed the Defendant that he was a suspect in a homicide investigation, advised him of his


        1
            Lieutenant Hanks was a sergeant with the homicide bureau at the time of the offense.
        2
         Cynthia Brown, a sister of the victim, testified that the victim sometimes used different last names,
including Walker, Harris, and Malone. Walker was apparently the last name of one of the victim’s former
boyfriends.

                                                     -2-
Miranda rights, and the Defendant signed an advice of rights form. The Defendant indicated
that, as a police officer, he was aware of his rights, and he did not request an attorney.

        Deputy Director Armstrong and Lieutenant Davidson then questioned the Defendant.
The Defendant told them that he met the victim at an apartment complex while he was
responding to a call. According to the Defendant, the two exchanged phone numbers, and
while the relationship was initially just friendly, it developed into a sexual one. He told the
officers that the sexual relationship extended only to oral sex, not intercourse. The
Defendant said that the last time he spoke with the victim was the night before her death, but
he told the officers that he could not recall what they spoke about. According to Deputy
Director Armstrong, the Defendant then began to give vague answers. The Defendant
initially denied knowledge about the victim’s homicide. However, when Deputy Director
Armstrong told the Defendant that he did not believe he was being truthful, the Defendant
subsequently admitted responsibility for the victim’s death.

        According to Deputy Director Armstrong’s testimony at trial, the Defendant told him
that the victim had informed the Defendant that she was pregnant and wanted money for an
abortion or else she would tell the Defendant’s wife.3 The Defendant told the officers that
he met with the victim at the gas station on Whitten Road and that they had gotten into an
argument over whether he would pay for an abortion. The Defendant told the officers that
the victim became angry and threatened to tell his wife, and at that point, he shot her.

      After this initial police interview, the Defendant provided a formal, written statement.
The written statement was admitted as an exhibit at trial and, in pertinent part, provides as
follows:

          Q: Are you the person responsible for the death of Phyllis Malone?

          A: Yes.

          ....

          Q: On Monday, September 8, 2008, did you have a conversation with Phyllis
          earlier in the evening?

          A: Yes.



          3
              The Defendant testified that he was separated from his wife at the time of his relationship with the
victim.

                                                         -3-
Q: Describe the content of that conversation.

A: She had said she wanted to meet with me when I got off and I told her I
didn’t know what time I was gonna get off [be]cause I was downtown at 201
[Poplar]. She had called and I told her I would call her back on the time frame
or when I got off because I didn’t know what time I would be getting off.

....

Q: Later in the evening, did you meet with Phyllis?

A: Yes.

Q: Where and when did you meet Phyllis?

A: At Shell gas station on Whitten Road.

....

Q: What time did you meet her?

A: Maybe around 11:00 p.m.

Q: In your own words, tell me the events that occurred before, during, and
after this incident occurred.

A: We met there. We had a conversation about her having the abortion done
and also she kept questioning if I was going to pay for the baby’s insurance.
She got upset when I answered the question I was going to think about it. She
became irate, cursing, threatening, and blackmailing saying that she was going
to tell my wife and take me to child support and I had to pay the white man at
juvenile court. I talked to her and she calmed down and she wanted a hug or
what not. After that, the conversation picked back up. She asked me the same
question again and I told her I would think about it. Then she said “Well I’ll
just go and tell the wife” and said all I was gonna pay for. She said “You’ll
pay in the long run.” After that, she got in her car. She started fussing again.
She said “Well I’ll just see you at your house tomorrow.” I asked her why
would she do that. She said since I didn’t have an answer for her, that’s what
she was gonna do. So when I asked her about going to get the abortion done,
she cursed and said hell n[o] she wasn’t gonna do that. She was determined

                                      -4-
       that she was going to tell her and come to my house. I asked her not to do it.
       She said “Bye Chancy.” That’s when I pulled out a pistol and I shot her.

       Q: How many times did you shoot her?

       A: Two or three times.

       Q: Where were you when you fired the shots?

       A: Standing outside of her car on the passenger side.

       ....

       Q: What type and caliber weapon did you use?

       A: .38 Rossi revolver that I kept in the truck.

       Q: Where is the .38 now?

       A: Thrown in the river.

       Q: Did you take anything from the victim’s car or person?

       A: Cell phone.

       Q: Why did you take her cell phone?

       A: [Be]cause I knew she had been calling and texting me.

       Q: What did you do with the cell phone that you took from Phyllis?

       A: Threw it in the river.

       MPD Sergeant James Max searched the Defendant’s patrol car. He found only work-
related items and did not find any evidence related to the shooting. Likewise, police officers
searched the Defendant’s home and personal vehicles. While officers found multiple guns
and ammunition in these locations, they did not find a .38 caliber weapon, ammunition, or
holster. Neither did they find the victim’s cell phone or other evidence related to the
shooting. Officers did not attempt to retrieve the gun used in the shooting or the victim’s cell
phone from the river where the Defendant claimed to have disposed of them.

                                              -5-
       Three of the victim’s sisters testified regarding interactions they witnessed between
the victim and the Defendant. One of the victim’s sisters, Samantha Malone, testified that
the victim lived with her. Samantha4 testified that she last saw the victim on the night of her
death at approximately 9:45 p.m. She said that the victim was in a “good mood,” but the
victim did not tell her that she was going to meet the Defendant.

       Cassandra Malone, another sister of the victim, testified that she heard the victim
talking with the Defendant over the telephone using a speaker-phone two or three times.
About three or four weeks prior to the victim’s death, Cassandra heard the victim tell the
Defendant that if he wanted to keep the baby, she would have it, but that if he did not, she
would need money to pay for an abortion. In a statement to police, Cassandra told them that
she did not believe the victim was pregnant because the victim had told Cassandra that her
“tubes were tied.”

       The victim’s sister, Cynthia Brown, testified that she heard the victim on the phone
with a person whom the victim identified as “Mr. Jones.” Brown testified that the first such
occasion occurred approximately one month before the victim’s death.5 She said that she
overheard the phone call because the victim had put it on speaker-phone. In this phone
conversation, the victim told “Mr. Jones” that she needed money for an abortion. According
to Brown, when the victim told “Mr. Jones” that if she did not get money she would tell his
wife, “Mr. Jones” responded, “Don’t play with my family” and hung up the telephone.

        Brown testified that she last saw the victim at around 11:00 p.m. on the night of her
death. The victim was driving Brown to work in a blue Chevrolet Impala. Brown testified
that the victim was “dressed up,” had just “had her hair done,” and was in a “good mood.”
According to Brown, at approximately 10:50 p.m., the victim received a call from “Mr.
Jones.” This phone call was not on speaker-phone, and Brown could only hear the victim’s
side of the conversation. Brown heard the victim tell “Mr. Jones” that if he did not give her
money for an abortion she would tell his wife. Brown testified that she did not think the
victim was pregnant because “she had her tubes tied,” but Brown did not ask the victim
whether she was actually pregnant. Brown said that the victim dropped her off at work at
approximately 11:00 p.m. and that the victim told “Mr. Jones” that she would meet him at
11:20 p.m.


        4
        A number of the witnesses share the same last name. Where necessary for clarity, we will
sometimes refer to these witnesses by their first names only. We intend no disrespect.
        5
          In an earlier statement to police, Brown said that this phone call was approximately one week
before the victim’s death. On cross-examination, she stated that she did not recall the exact day of the phone
call.

                                                     -6-
         The Defendant’s cell phone records were admitted into evidence. These records
showed that the Defendant received calls from a phone number identified as the victim’s at
9:13 p.m., 9:53 p.m., 10:46 p.m., and 11:33 p.m. on September 8, 2008. An engineer
employed by the Defendant’s cell phone company testified that he analyzed which cell
towers were used to make these phone calls. By determining which cell towers were utilized
by the Defendant’s and victim’s cell phones, he could determine the location of the
Defendant’s cell phone at the time of the call. He testified that at the time of the final phone
call at 11:33 p.m., the Defendant’s cell phone was located at 1709 Whitten Road, the address
of the Shell gas station where the victim’s body was found.

        Dr. Lisa Funte, a medical examiner at the Shelby County Regional Forensics Center,
testified as an expert in forensic pathology. She testified that the victim’s cause of death was
multiple gunshot wounds. According to Dr. Funte, one bullet entered the right side of the
victim’s head, a second bullet entered the right side of the victim’s chest, and a third bullet
also entered the victim’s chest. Dr. Funte opined that the head wound and one of the chest
wounds would have each been fatal, but that the other chest wound would not have been
fatal. She could not determine the order of the gunshot wounds. Based on her analysis of
the gunshot wounds, Dr. Funte surmised that the two gunshots to the victim’s chest were
probably fired from a few feet away. Dr. Funte was unable to make such a determination
regarding the head wound because the victim’s hair blocked the deposition of soot and
gunshot residue necessary for her analysis.

        Officer Anthony Mullins, a homicide investigator with the MPD, testified regarding
blood stains found in the victim’s vehicle. Officer Mullins explained that the blood splatter
in the passenger seat of the victim’s vehicle indicated to him that the seat was not occupied
at the time the victim was shot. Officer Mullins surmised that the shooter was standing
outside of the vehicle and shooting through a rolled-down front passenger-seat window. He
confirmed that there were no bullet holes in the windshield or passenger-side window, which
indicated to him that the passenger-side window was open during the shooting. Officer
Mullins did not observe the vehicle itself, but instead based his testimony on observation of
crime scene photos.

       The defense’s proof consisted of the Defendant’s own testimony. He acknowledged
causing the victim’s death and gave the following recitation of events leading to her death.
The Defendant met the victim in July 2008 while on patrol, and they exchanged phone
numbers. They began a sexual relationship that was limited to him receiving oral sex.
However, soon, the victim told the Defendant that she was pregnant and needed money for
an abortion. When he questioned her pregnancy because they had not had sexual intercourse,
she told him that she had kept his sperm in her mouth following oral sex and had taken it to
a doctor and been artificially inseminated. The Defendant said that the victim was

                                              -7-
threatening him and his family by telling him that if he did not give her money she would tell
his wife about their affair.

        On September 8, 2008, the Defendant agreed to meet the victim at her request. They
arranged to meet after his patrol shift ended at approximately 11:00 p.m. The Defendant said
that the victim arranged the meeting location and that he had never met her at the Shell gas
station before. He arrived before she did, and when she arrived, she parked beside his truck.
The Defendant said that he got out of his truck and approached the victim who was in her
car. The Defendant had a .38 revolver in his pocket, but he testified that its presence was
unrelated to their meeting. He explained that he had left his service weapon in his locker at
the precinct. When he was off-duty he carried a .38 revolver for personal protection, which
he usually left in his personal vehicle during his shift. As was his habit, when he left work
he put the .38 revolver in his pocket.

         The Defendant said that the victim initially remained in her car but eventually got out.
They talked for approximately one hour. According to the Defendant, the victim was asking
him for money for the baby’s insurance and telling him that she was not going to have an
abortion. He testified that, “I told her I would think about it. And at that point, she became
irate, loud, threatening, and blackmailing me, saying about I would pay in the long run, if you
don’t do this, if you don’t give me this, that I would pay.” When asked by defense counsel
to clarify, the Defendant said that:

       She threatened to do harm to me and she threatened to do harm to my family.
       She said that you don’t know me. You don’t know what I would do and she
       threatened to harm me. She said that I would run over you. She said – well,
       her words were, I will run over your ass if you don’t do what I ask you to do.

       The Defendant then described the circumstances leading to the shooting:

       Well, eventually, she got back in her car. About the time the conversation was
       over with, she had got back in her car, fastened her seatbelt, and the car was
       running, and as I got ready to leave, I walked from in front of her on the
       passenger’s – her driver’s side, and I walked in front of her car going to my
       vehicle, about the time I got almost clear of her vehicle, she revved up her
       engine and she had already told me she was going to run over me, she revved
       up her engine. I reacted, I took two steps and I pulled my weapon and I fired.

       The Defendant fired “a couple of times” through the passenger-side window without
taking aim. He said that he “fired in reaction,” and his “instincts just took over.” According
to the Defendant, he believed that the victim would run over him with her vehicle, and he

                                               -8-
feared for his life. The Defendant said that when the victim revved her engine, he “jumped
to clear her vehicle, took two steps, came out of my pocket and I fired.” After shooting the
victim, the Defendant reached into her car, took the keys out of the ignition, and dropped
them onto the floorboard. He also took her cell phone and left. When asked why he did not
call an ambulance or the police, he replied that he “panicked.” He said that he rode around
for a while before throwing the gun and cell phone into the river. He then went back to his
house and “[d]azed around the house in shock.” He said that he reported to work the next
day but was simply “going through the motions.”

        The Defendant maintained that, when he was arrested and interviewed by Deputy
Director Armstrong and Lieutenant Davidson, he told them that the victim threatened to run
him over with her car. He testified that when his written statement was taken, the police did
not ask him about the victim’s threats. The Defendant explained that this was the reason his
written statement did not portray that he acted in self-defense. The Defendant acknowledged
that the questions and answers reflected in the written statement were accurate. However,
he asserted that, when giving the written statement, he had not been asked to clarify what he
meant when he said that the victim had been “irate, cursing, threatening, and blackmailing.”
Lieutenant Davidson testified that, although he understood each of these words to mean
different things, he understood them each to refer to the victim threatening to tell the
Defendant’s wife about the extra-marital relationship, not physical harm. Deputy Director
Armstrong testified that the Defendant never told him that he was afraid of physical harm
from the victim.

       The Defendant sought to introduce evidence that the victim had committed prior acts
of violence. Specifically, the Defendant sought to introduce the victim’s conviction for
aggravated assault in 2002 and certain orders of protection that had been sought and entered
against the victim by persons unrelated to this case. The Defendant argued that this evidence
supported his claim of self-defense as corroboration that the victim acted as the first
aggressor. The trial court admitted the aggravated assault conviction through the stipulation
of the parties. However, regarding the orders of protection, the trial court determined that
the orders themselves were not relevant to specific instances of violence by the victim. The
court reasoned that the protective orders could have been entered for some reason other than
a violent act committed by the victim, and that without the underlying factual basis
supporting the entrance of the orders, the orders were not relevant. Rather than admitting the
orders of protection themselves, the trial court stated that it would permit the Defendant to
establish the factual basis for the orders of protection through the testimony of the persons
who had obtained the protective orders against the victim. However, the Defendant was
unable to procure these witnesses’ testimony.




                                             -9-
       The Defendant was charged with first degree murder and employing a firearm during
the commission of a felony. Tenn. Code Ann. §§ 39-13-202; 39-17-1324(b), (i)(1). The jury
was instructed on self-defense and on the lesser-included offenses of first degree murder,
including second degree murder and voluntary manslaughter. After deliberations, the jury
convicted the Defendant of second degree murder and acquitted him of the charge of
employing a firearm during the commission of a felony. Following a sentencing hearing, he
was sentenced to twenty-four years of incarceration. On appeal, he argues that the evidence
was insufficient to support his conviction and that the trial court erred in excluding the prior
orders of protection entered against the victim.

                                           Analysis

             Admissibility of Orders of Protection Entered Against the Victim

        The Defendant first argues that the trial court erred when it limited the introduction
of certain orders of protection that had been sought and entered against the victim by persons
unrelated to this case. The Defendant sought to introduce the orders as evidence of specific
acts of violence by the victim to corroborate his theory that the victim acted as the first
aggressor. The trial court excluded the protective orders on the basis of relevance, but the
court allowed the Defendant to prove the factual basis for the protective orders through the
testimony of the persons who obtained them. The Defendant was unable to procure these
witnesses, but asserts that the orders should have been admitted nevertheless.

       A trial court is afforded broad discretion regarding its decisions on the admissibility
of evidence, and we will review those decisions under an abuse of discretion standard. State
v. Banks, 271 S.W.3d 90, 116 (Tenn. 2008); State v. Looper, 118 S.W.3d 386, 422-23 (Tenn.
Crim. App. 2003). We will find an abuse of discretion only “when the trial court applied
incorrect legal standards, reached an illogical conclusion, based its decision on a clearly
erroneous assessment of the evidence, or employed reasoning that causes an injustice to the
complaining party.” Banks, 271 S.W.3d at 116.

       We note initially that, following the trial court’s ruling, the Defendant did not proffer
the orders of protection that he wished to introduce into the record. Thus, in addition to
lacking the testimony of the persons who sought the protective orders, we do not have the
orders themselves to review. The transcript contains some vague discussions between
counsel and the trial court regarding the factual basis for the orders of protection; however,
these discussions are unclear and do not constitute proof in any event. On appeal, we are
simply unable to ascertain the underlying factual basis supporting the orders of protection.
Thus, we are left only to speculate as to the precise nature of the excluded evidence. An
offer of proof is necessary to “ensure effective and meaningful appellate review.” State v.

                                              -10-
Hall, 958 S.W.2d 679, 691 n.10 (Tenn. 1997); Tenn. R. Evid. 103(a)(2). By failing to
include the excluded orders of protection in the appellate record or otherwise convey their
nature to the appellate court, the Defendant has waived review of this issue. Tenn. R. App.
P. 13(c); Tenn. R. App. P. 36(a).

       Nevertheless, having reviewed the record before us, we are of the opinion that the trial
court did not err in excluding the orders of protection. The general rule is that a defendant
may use evidence of specific prior acts of violence by the victim against third parties to
corroborate the defendant’s theory that the victim was the first aggressor. State v. Ruane,
912 S.W.2d 766, 781-82 (Tenn. Crim. App. 1995); see also Neil P. Cohen, Sarah Y.
Sheppeard & Donald F. Paine, T ENNESSEE L AW OF E VIDENCE § 4.04[5][d] (5th ed. 2005).
The defendant need not be aware of the victim’s prior violent acts at the time of the alleged
self-defense in order to use the evidence for the limited purpose of corroborating the
defendant’s self-defense claim.6 Ruane, 912 S.W.2d at 781-82. However, the evidence is
not to be used substantively, and because it is for corroborative purposes only, is not
governed by Tennessee Rules of Evidence 404(a)(2) and 405. State v. John D. Joslin, No.
03C01-9510-CR-00299, 1997 WL 583071, at *36 (Tenn. Crim. App. Sept. 22, 1997); see
also Cohen et al., supra, at § 4.04[5][d].

        Before a trial court allows evidence regarding specific instances of violence by the
victim to corroborate the defendant’s theory of self-defense, three requirements must be
satisfied: (1) there must be proof that the defendant acted in self-defense, and the issue may
not merely be raised by the arguments of counsel; (2) the trial court must determine whether
there is a factual basis underlying the defendant’s allegations that the victim had first-
aggressor tendencies; and (3) the trial court must determine whether the probative value of
the evidence is outweighed by the potential for unfair prejudice. State v. Wayne Robert
Wait, No. E2010–01212–CCA–R3–CD, 2011 WL 5137178, at *12 (Tenn. Crim. App. Oct.
28, 2011), perm. app. denied, (Tenn. March 7, 2012) (citing State v. Billy Joe Henderson,
No. 03C01–9804–CR–00139, 1999 WL 398087, at *6 (Tenn. Crim. App. June 18, 1999)).

      Here, the trial court determined that the issue of whether the Defendant acted in self-
defense was duly raised by his testimony. However, in determining whether a factual basis

        6
          A different scenario is presented when a defendant seeks to use such evidence to establish the
defendant’s own fear of the victim. To be admissible as substantive evidence of the defendant’s state of
mind, the defendant must testify that he or she was aware of the victim’s prior acts of violence against third
parties at the time of the alleged self-defense. See State v. Hill, 885 S.W.2d 357, 361 n. 1 (Tenn. Crim. App.
1994); see also State v. John D. Joslin, No. 03C01-9510-CR-00299, 1997 WL 583071, at *36 (Tenn. Crim.
App. Sept. 22, 1997). In this case, the Defendant concedes that he was unaware of the victim’s prior acts
of violence at the time he claims to have acted in self-defense.


                                                    -11-
existed for the Defendant’s claim that the victim had first-aggressor tendencies, the trial court
excluded the orders of protection as not relevant, and the Defendant could produce no other
relevant evidence.

        To be admissible, evidence must be relevant. Tenn. R. Evid. 402. Relevant evidence
“means evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would
be without the evidence.” Tenn. R. Evid. 401. We agree with the trial court that while the
Defendant was entitled to present the testimony of witnesses to the victim’s prior violent acts
to corroborate his theory that the victim was the first aggressor, the orders of protection
themselves were not competent on this issue. Rather, like the trial court, we conclude that
the orders of protection were not relevant on the issue of the victim’s first-aggressor
tendencies without some evidence regarding the factual basis supporting the protective
orders.

        As conveyed to the trial court, the protective orders did not detail their underlying
factual basis. That is, the trial court had no way of knowing whether the orders were entered
because of a specific violent act of the victim or for some other non-violent reason. Even if
the orders of protection were entered because of a violent act of the victim, this fact does not
necessarily mean that the victim had first-aggressor tendencies. See, e.g., State v. Latteral
Jolly, No. 02C01-9207-CR-00169, 1993 WL 523590, at *4 (Tenn. Crim. App. Dec. 15, 1993)
(noting that “[t]he mere fact that one has a conviction on his record, does not necessarily
prove that he was the first aggressor,” and that “[r]ather than considering the record of
conviction alone, the trial court must determine the underlying facts of the alleged act of
aggression”).

       Without establishing the factual basis for the protective orders, the Defendant cannot
show their relevance. In this regard, we note that the trial court allowed the Defendant to
establish the alleged prior violent acts of the victim through the testimony of the persons who
obtained the orders of protection; however, the Defendant could not procure their testimony.
From our review of the record, the trial court accurately set out the relevant law, carefully
limited the evidence that it deemed not relevant, and allowed the Defendant the opportunity
to prove the facts underlying the orders of protection through the testimony of the persons
who obtained the orders against the victim. Accordingly, we conclude that the trial court did
not abuse its discretion in excluding the orders of protection.

                                  Sufficiency of the Evidence

      The Defendant next contends that the evidence was insufficient to support his
conviction for second degree murder. He first argues that the State did not carry its burden

                                              -12-
of rebutting his claim of self-defense. He also argues that the jury should have found him
guilty of voluntary manslaughter instead of second degree murder. For the reasons stated
below, we disagree.

        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). The same standard of review applies to guilty verdicts whether 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)).

       The weight and credibility given to the testimony of witnesses, and the reconciliation
of conflicts in that testimony, are questions of fact. State v. Sheffield, 676 S.W.2d 542, 547
(Tenn. 1984). 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).

        Second degree murder is defined as “[a] knowing killing of another.” Tenn. Code
Ann. § 39-13-210(a)(1) (2006). Our Supreme Court has determined that second degree
murder is a “result of conduct” offense. See State v. Brown, 311 S.W.3d 422, 431-32 (Tenn.
2010); State v. Ducker, 27 S.W.3d 889, 896 (Tenn. 2000). Accordingly, the appropriate
statutory definition of “knowing” in the context of second degree murder is as follows: “A
person acts knowingly with respect to a result of the person’s conduct when the person is
aware that the conduct is reasonably certain to cause the result.” Tenn. Code Ann. § 39-11-
302(b) (2006); see Brown, 311 S.W.3d at 431. Whether a defendant acts knowingly in
killing another is a question of fact for the jury. State v. Inlow, 52 S.W.3d 101, 104-05
(Tenn. Crim. App. 2000). The jury may infer a defendant’s mental state from “the character
of the assault, the nature of the act and from all the circumstances of the case in evidence.”
Id. at 105; see also Brown, 311 S.W.3d at 431.



                                             -13-
        In this case, the Defendant testified that he acted in self-defense. At the time of the
victim’s death, the relevant Tennessee statute on self-defense provided that a person is
justified in using deadly force if: “(A) The person has a reasonable belief that there is an
imminent danger of death or serious bodily injury; (B) The danger creating the belief of
imminent death or serious bodily injury is real, or honestly believed to be real at the time; and
(C) The belief of danger is founded upon reasonable grounds.” Tenn. Code Ann. § 39-11-
611(b)(2) (Supp. 2008). When a defendant relies upon a theory of self-defense, the State
bears the burden of proving that the Defendant did not act in self-defense. State v. Sims, 45
S.W.3d 1, 10 (Tenn. 2001). A claim of self-defense presents a question of fact for the jury.
State v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997).

       Upon our review of the record, we conclude that the evidence is sufficient to sustain
the Defendant’s conviction for second degree murder. Taken in the light most favorable to
the State, the proof establishes that the Defendant knowingly fired three gunshots at the
unarmed victim through the passenger-side window of her vehicle, killing her. This evidence
was corroborated through the Defendant’s own admissions. This Court has held that
deliberately firing several shots at a person constitutes “knowing” conduct for purposes of
establishing second degree murder. See, e.g., State v. Rickie Reed, No. W2001-02076-CCA-
R3-CD, 2002 WL 31443196, at *5-6 (Tenn. Crim. App. Oct. 31, 2002); State v. Michael
Clark, No. W2009-01649-CCA-R3-CD, 2011 WL 300211, at *3 (Tenn. Crim. App. Jan. 21,
2011), perm. app. denied (Tenn. May 25, 2011).

        The Defendant claimed at trial that he acted in self-defense, and the jury was
accurately instructed on the law of self-defense in effect at the time of the offense. The
Defendant claimed that the victim became upset with him, “revved up her engine,” and
threatened to run over him with her car. However, he admitted that he shot the victim
through the passenger-side window, which implies a position of safety and weakens his claim
that he feared imminent death or serious bodily injury. Likewise, while the Defendant
claimed that he “came out of [his] pocket” firing without aiming, the State presented
evidence that the Defendant shot the victim three times, two of which were fatal shots to the
head and chest. Lastly, we note that the Defendant claimed at trial that he told Deputy
Director Armstrong and Lieutenant Davidson that he was in physical fear of the victim, a fact
which is not reflected in his written statement and denied by the officers. To the extent that
his testimony at trial differed from his statements to police, it was the jury’s prerogative to
resolve these discrepancies. Whether the Defendant acted in self-defense was a question of
fact for the jury. Goode, 956 S.W.2d at 527. The jury’s verdict clearly discredited the
Defendant’s testimony and resolved the facts in favor of the State. The jury rejected the
Defendant’s self-defense claim, and we will not disturb its verdict on appeal. Winters, 137
S.W.3d at 655.



                                              -14-
        The Defendant next asserts that the proof establishes that he committed voluntary
manslaughter rather than second degree murder. Our criminal code provides that
“[v]oluntary manslaughter is the intentional or knowing killing of another in a state of
passion produced by adequate provocation sufficient to lead a reasonable person to act in an
irrational manner.” Tenn. Code Ann. § 39-13-211(a) (2006). As noted, the jury was
instructed on the lesser included offense of voluntary manslaughter as well as the distinction
between voluntary manslaughter and second degree murder. It is well-settled that it is up to
the trier of fact to determine whether a homicide constitutes second degree murder or
voluntary manslaughter. See State v. Williams, 38 S.W.3d 532, 539 (Tenn. 2001); State v.
Johnson, 909 S.W.2d 461, 464 (Tenn. Crim. App. 1995); State v. Sentorya L. Young, No.
M2005-01873-CCA-R3-CD, 2008 WL 2026108, at *6 (Tenn. Crim. App. May 12, 2008).
When the evidence is sufficient to support a second degree murder conviction, we will not
disturb the jury’s decision in this regard.

      In sum, we conclude that the evidence is sufficient to sustain the Defendant’s
conviction for second degree murder, and he is not entitled to relief on this issue.


                                      CONCLUSION

       For the foregoing reasons, the judgment of the trial court is affirmed.




                                                    _________________________
                                                    JEFFREY S. BIVINS, JUDGE




                                             -15-
