         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                     April 9, 2002 Session

                   STATE OF TENNESSEE v. KARDIUS WILKS

                  Direct Appeal from the Criminal Court for Shelby County
                            No. 00-08070    Chris Craft, Judge



                     No. W2001-02172-CCA-R3-CD - Filed April 26, 2002


The Appellant, Kardius Wilks, was convicted by a Shelby County jury of first degree murder and
sentenced to life imprisonment. On appeal, Wilks contends that the evidence presented at trial was
insufficient to support his first degree murder conviction because the State failed to prove that the
murder was premeditated and intentionally committed. After review, we find no error and affirm
the judgment of the trial court.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which DAVID H. WELLES and JAMES
CURWOOD WITT, JR., JJ., joined.

William C. Gosnell, Memphis, Tennessee, for the Appellant, Kardius Wilks.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Braden H.
Boucek, Assistant Attorney General; William L. Gibbons, District Attorney General; and James
Lammey, Assistant District Attorney General, for the Appellee, State of Tennessee.


                                            OPINION

                                       Factual Background

        On January 12, 2000, several residents of Watkins Manor Apartments in Frayser were
barbequing outside their apartments when the Appellant and Nicholas Russell drove up and parked
their vehicle. Witnesses watched as the Appellant and Russell approached the victim. The
Appellant struck the victim, Alexander King, in the head with a pistol and exclaimed, “I told you
about ya’ll V.L.’s selling drugs over here in this neighborhood.”1 After the Appellant struck the
victim with the handgun, the victim began running. The Appellant chased the victim into a
driveway. The Appellant leveled his pistol at the victim, fired one shot and missed. As the victim
continued running, the Appellant fired a second shot from a distance of approximately fifteen feet
and the victim fell to the ground. The fatal gunshot struck the victim in the back of the head. The
Appellant and Russell returned to their vehicle and drove away. Officers were called to the scene
around 8:45 p.m. and found no weapons on the victim.

      In his statement to police, the Appellant described the events preceding the murder and the
murder itself as follows:

       Me and Nicholas Russell was riding through Watkins Manor Apartments and we had
       saw Mr. King [the victim] and then at that time we went back to Nicholas house in
       the Watkins Manor Apartments. Nick had went upstairs and got the gun, he brought
       it back down and gave it to me. We went back around where we saw [the victim] at
       and I guess [the victim] didn’t notice me cause we had an incident where he had took
       something from me. He took some money from me about a couple of months ago.
       This was our first confrontation since he took the money. Nick had got into it with
       [the victim] about something, but I don’t know what it was about and Nick told [the
       victim] not to come back in the Watkins Manor. When [the victim] walked up he
       didn’t see me but Nick was talking to him. Nick was like saying, “Give me some
       money, give me something out of your pocket”, and then I hit [the victim] with my
       hand, [the victim] took off running. Then Nick and me chased him and then Nick
       said, “shoot at him”, and then I shot two times to try and scared him and he was
       running. He took a couple of more steps and then he fell. After, I saw him fall, me
       and Nick jumped in the car and rode off . . . I got up at about 3:30 a.m. . . . and I
       stopped right there at the Wolf River and I got out, slung the pistol over the side. . .
       . I didn’t try to kill him and I didn’t try to rob him. I just was trying to show him that
       you don’t do folks wrong and get away with it. I didn’t mean to shoot him anywhere
       . . . I was just trying to scare him.

A witness at the scene, Aaron Taylor, also recalled briefly seeing the Appellant arrive at the
apartment complex and leave prior to his return twenty minutes later. The Appellant did not testify
at trial.

                                                     ANALYSIS

                                   Sufficiency of the Evidence
        The Appellant argues that the evidence introduced at trial was insufficient to support his
conviction for the first degree murder of Alexander King. Specifically, he contends that the State
failed to prove the requisite elements of first degree murder, i.e., that the killing was premeditated


       1
           Testimony established that the initials V.L. we re in reference to a street gan g, the Vice-Lo rds.

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and intentionally committed. A jury conviction removes the presumption of innocence with which
a defendant is cloaked and replaces it with one of guilt, so that on appeal, a convicted defendant has
the burden of demonstrating that the evidence is insufficient. State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). In determining the sufficiency of the evidence, this court does not reweigh or
reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Likewise, it is not
the duty of this court to revisit questions of witness credibility on appeal, that function being within
the province of the trier of fact. See generally State v. Adkins, 786 S.W.2d 642, 646 (Tenn. 1990);
State v. Burlison, 868 S.W.2d 713, 718-19 (Tenn. Crim. App. 1993). Instead, the defendant must
establish that the evidence presented at trial was so deficient that no reasonable trier of fact could
have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994),
cert. denied, 513 U.S. 1086, 115 S. Ct. 743 (1995); Tenn. R. App. P. 13(e). The State is entitled to
the strongest legitimate view of the evidence and all reasonable inferences which may be drawn
therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992), cert denied, 507 U.S. 954, 113 S. Ct.
1368 (1993).

      First degree murder is defined as “a premeditated and intentional killing of another.” Tenn.
Code Ann. § 39-13-202(a)(1). The statute defines premeditation as follows:

        As used in subdivision (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. The mental state of the
        accused at the time the accused allegedly decided to kill must be carefully considered
        in order to determine whether the accused was sufficiently free from excitement and
        passion as to be capable of premeditation.

Tenn. Code Ann. § 39-13-302(d); State v. Sims, 45 S.W.3d 1, 7-8 (Tenn. 2001). The element of
premeditation is a question for the jury and may be established by proof of the circumstances
surrounding the killing. State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997). There are several factors
which tend to support the existence of premeditation, including: (1) the use of a deadly weapon upon
an unarmed victim; (2) the particular cruelty of the killing; (3) declarations by the defendant of an
intent to kill; (4) evidence of procurement of a weapon; (5) preparations before the killing for
concealment of the crime; (6) and calmness immediately after the killing. State v. Suttles, 30 S.W.3d
252, 261 (Tenn. 2000); Bland, 958 S.W.2d at 660. As noted above, first degree murder also requires
that the killing of another be intended. Intentional conduct “refers to a person who acts intentionally
with respect . . . to a result of the conduct when it is the person’s conscious objective or desire to
engage in the conduct or cause the result.” Tenn. Code Ann. § 39-11-106(a)(18). Intent, which can
seldom be proven by direct evidence, may be deduced or inferred by the trier of fact from the
character of the assault, the nature of the act, and from all the circumstances of the case in evidence.
State v. Elder, No. 03C01-9702-CR-00053 (Tenn. Crim. App. at Knoxville, Apr. 23, 1998).




                                                   -3-
        The proof established at trial that, shortly before the homicide occurred, the Appellant and
Russell had driven to the apartment complex where they sighted the victim. According to the
Appellant’s own statement, animus existed between the Appellant and the victim. In the Appellant’s
confession to police, the Appellant related that the victim had previously stolen money from him.
The victim and the Appellant belonged to rival gangs and the victim had been warned to stay away
from Watkins Manor Apartments. After seeing the victim at the complex, the Appellant and Russell
left and drove to Russell’s apartment, where they obtained Russell’s gun. They returned to the
apartment complex approximately twenty minutes later. The Appellant got out of the car and
approached the victim. There is no testimony to support the Appellant’s contention that the murder
arose out of a heated disagreement or as a result of a “passionate rage.” To the contrary, the
testimony of witnesses stated that the only loud part of what was a very brief conversation or
encounter was the Appellant’s statement to the victim, “I told you about ya’ll [Vice-Lords] selling
drugs over here in this neighborhood.” Upon being struck in the head with a pistol, the unarmed
victim began running and the Appellant chased after him.2 After the Appellant fired twice, the
victim fell to the ground and later died as a result of a gunshot wound to the back of the head. The
Appellant and Russell then drove away.

         With regard to the Appellant’s argument that he had no intention to kill the victim, but
merely wanted to “scare” him, we would observe that the jury is not obligated to accept the
Appellant’s statement as to his motive for the shooting. Again, this issue is a question of fact for the
jury. Evidence introduced at trial on the issue of the Appellant’s intent included witnesses who
testified that they watched as the Appellant aimed his gun in the direction of the Appellant and fired
twice. There was no evidence presented to indicate that the Appellant shot the gun in the air or away
from his target. We find the proof introduced at trial sufficient to permit a rational jury to conclude
that the killing of the victim was intended and occurred after the exercise of reflection and judgment
and in the absence of excitement and passion.

                                                   CONCLUSION

        After reviewing the evidence in the light most favorable to the State, we find that a rational
jury could have found beyond a reasonable doubt that the Appellant acted with premeditation and
with the intent to kill the victim. Accordingly, the judgment of the Shelby County Criminal Court
is affirmed.


                                                                  ___________________________________
                                                                  DAVID G. HAYES, JUDGE

         2
          The Appellant argues that the victim “may” have been arm ed because the victim’s brother was later arrested
with a gun. However, witnesses to the shoo ting testified tha t the victim was nev er seen w ith a gun a nd that the victim
never fired or displayed a gun during the encounter. Law enforcement officers also testified that no weapon was found
on the victim’s body. The victim’s brother also denied that he took possession of a weapon from the victim’s body
before law enforcement officers arrived, asserting that the weapon he had was his own. Thus, the record simply does
not support the Appellant’s assertion that the victim “may” have been armed at the time of his death.

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