         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT JACKSON

                         JULY 1997 SESSION
                                              FILED
                                                 July 29, 1997

                                              Cecil Crowson, Jr.
STATE OF TENNESSEE,              )            Appellate C ourt Clerk
                                 )    NO. 02C01-9612-CR-00460
      Appellee,                  )
                                 )    SHELBY COUNTY
VS.                              )
                                 )    HON. CHRIS CRAFT, JUDGE
TOMMY L. POINDEXTER,             )
                                 )    (Conspiracy to Commit
      Appellant.                 )    First Degree Murder)



FOR THE APPELLANT:                    FOR THE APPELLEE:

DANIEL A. SEWARD                      JOHN KNOX WALKUP
707 Adams Avenue                      Attorney General and Reporter
P.O. Box 11207
Memphis, TN 38111-0207                DEBORAH A. TULLIS
                                      Assistant Attorney General
                                      Cordell Hull Building, 2nd Floor
                                      425 Fifth Avenue North
                                      Nashville, TN 37243

                                      WILLIAM L. GIBBONS
                                      District Attorney General

                                      JERRY R. KITCHEN
                                      Assistant District Attorney General
                                      Criminal Justice Center, 3rd Floor
                                      201 Poplar Avenue
                                      Memphis, TN 38103



OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                      OPINION



       The defendant, Tommy L. Poindexter,1 was convicted by a Shelby County

jury of conspiracy to commit first degree murder and criminally negligent homicide.

He was sentenced to consecutive sentences of twenty-four (24) years for the

offense of conspiracy to commit first degree murder and three (3) years for the

offense of criminally negligent homicide. On appeal, he challenges the sufficiency

of the convicting evidence for conspiracy to commit first degree murder. He further

argues that the sentence of twenty-four (24) years is excessive, and the trial court

erred in imposing consecutive sentences. He does not appeal his conviction or

sentence for criminally negligent homicide. We affirm the judgment of the trial court.



                                       FACTS



       In the early morning hours of September 17, 1994, Mashaun Harris, Keith

Thomas, Derrick Dante, Terry Poindexter and defendant were outside of Rob’s

Lounge in downtown Memphis. As Marcus Brown was standing next to his car,

Harris approached him and stole his necklace. As Harris was attempting to get in

a car, Brown shot Harris in the back. Defendant and the others drove Harris to the

Regional Medical Center (the Med) in Memphis.

       Grady Harrison, a security officer at the Med, noticed two males bringing

Harris into the hospital. Harrison overheard one of the males telling the other one,

“let’s go get these bitches.” The two males subsequently left the hospital.

       Later that evening, the defendant, his brother Terry, Xavier Bennett,

Frederick Stepton, Kevin Porterfield, Eldrick Stephans, Harry Dillard, Warrick

McBride, and Michael Thaddius armed themselves with various types of weapons

and headed for the Ridgecrest Apartments in order to “get” the person who shot




       1
        The indictment and all other court documents list “Tommy;” however, we note that
defendant signs his name “Tommie.”

                                           2
Harris, i.e., Brown. Although Brown did not live at the Ridgecrest Apartments, he

had been there earlier that afternoon with his roommate.

       Defendant, Stephans, McBride, Thaddius and Dillard traveled to the

Ridgecrest Apartments in a car. All five men were dressed in dark clothing and

were armed. Defendant was carrying an AK-47 assault weapon. They approached

Prentiss Walton and Eric Isom, who were standing outside by Isom’s car. The five

men began shooting at Walton and Isom. Melba Frost, a resident at the Ridgecrest

Apartments, overheard some of the men saying things such as, “I got him” and “let’s

get him” during the shooting.

       At approximately the same time, Alonzo Wallace was returning to his home

at the Ridgecrest Apartments. He stopped his car and attempted to avoid the

gunfire. When the shooting subsided for a moment, Wallace backed his car into a

parking spot. Someone began to shoot at his car. Wallace was wounded, got out

of his car, ran to his apartment and collapsed by his mailbox.

       Bennett, Stepton, Porterfield and Terry Poindexter drove in a separate car

to the apartment complex. By the time they reached the complex, they could

already hear shots being fired. Bennett, Stepton and Porterfield got out of their car

and fired their weapons at some people standing on a second floor balcony.

       Subsequently, defendant visited Harris in the hospital.           During his

conversation with Harris, defendant said, “[w]e got them.        We sprayed them

bitches.” After Harris was released from the hospital, defendant told him that he

killed those “folks” at the Ridgecrest Apartments and that he was shooting an AK-

47.

       Wallace died as a result of a gunshot wound to the chest. The bullet

recovered from his body was consistent with that being fired from an AK-47.

       Defendant was indicted along with others for the conspiracy to commit a

felony, to wit: murder in the first degree of Marcus Brown. He was also indicted for

the first degree murder of Alonzo Wallace. The jury convicted him of conspiracy to

commit first degree murder of Brown and criminally negligent homicide of Wallace.

He was sentenced as a Range I, Standard Offender to twenty-four (24) years for the



                                         3
conspiracy charge. That sentence was ordered to run consecutively to a sentence

of three (3) years for criminally negligent homicide. From the conviction and

sentence for conspiracy, defendant brings this appeal.



                        SUFFICIENCY OF THE EVIDENCE



       Defendant asserts that the evidence is insufficient to support a finding of guilt

of conspiracy to commit murder in the first degree. He claims that there is no

evidence in the record to suggest that he went to the Ridgecrest Apartments to kill

Brown. He further argues that the jury’s finding of guilt of conspiracy is inconsistent

with the finding that he was guilty of the criminally negligent homicide of Wallace.

Therefore, he maintains that the verdict is contrary to the law and the evidence.

                                          A.

       When an accused challenges the sufficiency of the evidence, this court must

review the record to determine if the evidence adduced during the trial was sufficient

“to support the findings by the trier of fact of guilt beyond a reasonable doubt.”

Tenn. R. App. P. 13(e). This rule is applicable to findings of guilt predicated upon

direct evidence, circumstantial evidence or a combination of direct and

circumstantial evidence. State v. Brewer, 932 S.W.2d 1,19 (Tenn. Crim. App. 1996).

       In determining the sufficiency of the evidence, this court does not reweigh or

re-evaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

Nor may this court substitute its inferences for those drawn by the trier of fact from

circumstantial evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d 856, 859

(1956). To the contrary, this court is required to afford the State of Tennessee the

strongest legitimate view of the evidence contained in the record as well as all

reasonable and legitimate inferences which may be drawn from the evidence. State

v. Tuttle, 914 S.W.2d 926, 932 (Tenn. Crim. App.1995).

       Questions concerning the credibility of the witnesses, the weight and value

to be given the evidence as well as all factual issues raised by the evidence are

resolved by the trier of fact, not this court. Id. In State v. Grace, the Tennessee



                                           4
Supreme Court stated, “[a] guilty verdict by the jury, approved by the trial judge,

accredits the testimony of the witnesses for the State and resolves all conflicts in

favor of the theory of the State.” 493 S.W.2d 474, 476 (Tenn. 1973).

       Because a verdict of guilt removes the presumption of innocence and

replaces it with a presumption of guilt, the accused has the burden in this court of

illustrating why the evidence is insufficient to support the verdict returned by the trier

of fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982); State v. Grace, 493

S.W.2d at 476.

                                           B.

       A defendant commits the crime of conspiracy if:

       (a) . . . two (2) or more people, each having the culpable mental state
       required for the offense which is the object of the conspiracy and each
       acting for the purpose of promoting or facilitating commission of an
       offense, agree that one (1) or more of them will engage in conduct
       which constitutes such offense.

       ...

       (d) No person may be convicted of conspiracy to commit an offense
       unless an overt act in pursuance of such conspiracy is alleged and
       proved to have been done by the person or by another with whom the
       person conspired.

Tenn. Code Ann. § 39-12-103. At the time of the homicide, first degree murder was

defined as the “intentional, premeditated and deliberate killing of another.” Tenn.

Code Ann. § 39-13-202(a)(1)(1991).

                                           C.

       In the case sub judice, we find that there is sufficient evidence in the record

to support a finding that defendant conspired to kill Marcus Brown.                 After

defendant’s friend Harris was shot, a security guard heard two of Harris’

companions say, “let’s go get these bitches.” Later that evening, defendant and

eight (8) others armed themselves with weapons to find Brown. Their plan was to

“get” the guy who shot Harris. Defendant subsequently admitted to Harris that they

had “sprayed them bitches.” He admitted to killing the “folks” at the Ridgecrest

Apartments and that he was carrying an AK-47. Although his co-conspirators

testified that they did not intend to kill Brown, the jury could logically infer that they

intended to kill Brown due to their stated intentions and violent conduct. Further, the

                                            5
defendant and the co-conspirators committed overt acts in furtherance of the

conspiracy.

       Although the verdicts are not necessarily inconsistent, any seeming

inconsistency is irrelevant. There is no requirement of consistency in a jury verdict.

Wiggins v. State, 498 S.W.2d 92, 93-94 (Tenn. 1973); State v. Gennoe, 851 S.W.2d

833, 836 (Tenn. Crim. App. 1992); State v. Hicks, 835 S.W.2d 32, 36 (Tenn. Crim.

App. 1992). This issue has no merit.



                                   SENTENCING



       In his final assignment of error, defendant claims that the trial court imposed

an excessive sentence for the conspiracy charge. He further argues that the trial

court improperly imposed consecutive sentences. However, the transcript of the

sentencing hearing is absent from the record. It is the appellant’s duty to have

prepared an adequate record in order to allow a meaningful review on appeal.

Tenn. R. App. P. 24; State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993); State v.

Bunch, 646 S.W.2d 158, 160 (Tenn. 1983); State v. Carey, 914 S.W.2d 93, 97

(Tenn. Crim. App. 1995); State v. Goodwin, 909 S.W.2d 35, 43 (Tenn. Crim. App.

1995); State v. Banes, 874 S.W.2d 73, 82 (Tenn. Crim. App. 1993). When no

evidence is preserved in the record for review, we are precluded from considering

the issue. State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988).

       Moreover, this issue is waived since the defendant has failed to make

appropriate references to the record. Tenn. Crim. App. Rule 10(b); State v. Turner,

919 S.W.2d 346, 358 (Tenn. Crim. App. 1995); State v. Hill, 875 S.W.2d 278, 283-

84 (Tenn. Crim. App. 1993); State v. Killebrew, 760 S.W.2d 228, 231 (Tenn. Crim.

App. 1988); see also Tenn. R. App. P. 27(a)(7) and (g). This issue is without merit.




                                  CONCLUSION



                                          6
       We find that there is sufficient evidence for a rational trier of fact to conclude

that defendant is guilty of conspiracy to commit first degree murder. Furthermore,

any issue regarding sentencing has been waived as the record does not contain a

transcript of the sentencing hearing. Accordingly, the judgment of the trial court is

affirmed.




                                                   JOE G. RILEY, JUDGE



CONCUR:




JOE B. JONES, PRESIDING JUDGE




DAVID H. WELLES, JUDGE




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