                                                                                       01/30/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                       Assigned on Briefs December 14, 2016

         STATE OF TENNESSEE v. RADAMES ANTONIO RIVERA

               Appeal from the Circuit Court for Montgomery County
                    No. 41400336        Jill Bartee Ayers, Judge
                     ___________________________________

                           No. M2016-00938-CCA-R3-CD
                       ___________________________________


The defendant, Radames Antonio Rivera, was indicted for one count of first degree
murder, one count of attempted tampering with evidence, and one count of unlawful
possession of a weapon. Following trial, the jury found the defendant guilty of one count
of second degree murder. The trial court sentenced the defendant to fifteen years of
incarceration. On appeal, the defendant argues the evidence was insufficient to support
his conviction. After our review, we affirm the judgments of the trial court.

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

J. ROSS DYER, J., delivered the opinion of the court, in which D. KELLY THOMAS, JR., and
CAMILLE R. MCMULLEN, JJ., joined.

Gregory Smith, Clarksville, Tennessee, for the appellant, Radames Antonio Rivera.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Assistant
Attorney General; John W. Carney, District Attorney General; Robert Nash and Art
Bieber, Assistant District Attorneys General, for the appellee, State of Tennessee.


                                       OPINION

                            Factual and Procedural History

        Shortly after 2:00 a.m. on March 16, 2014, the defendant stabbed Darrell Ray
Willis in the parking lot of Wild Woody’s Saloon (“the bar”) in Clarksville, Tennessee.
At trial, the State presented a number of witnesses who were present during the incident.
Their accounts were largely consistent with regard to the events surrounding the stabbing.
Those witnesses present during the offense and who testified for the State at trial were:
Ashlee Hughes, Michael Stewart, Candice Corbin, Derrick Douglas, James Wilbur,
Shane Cortez, and Adam Zacharzuk.

       The defendant and victim were members of two separate groups who had
participated in a “pub crawl” in celebration of St. Patrick’s Day. A “pub crawl” is an
event where individuals are transported, usually by foot or public transportation, to
various bars and clubs in a single night for the purpose of consuming alcohol. The two
groups visited several different bars the night of March 15, 2016, before ultimately
ending up at the bar. Inside the bar, an altercation arose between members of the
defendant’s group and members of the victim’s group over a perceived slight. Bouncers,
employed by the bar, removed the individuals responsible for the altercation to the
parking lot outside. The scene outside the bar was chaotic, with multiple fights going on
at various locations throughout the parking lot.

       To the left of the entrance to the bar, a fight broke out between female members of
the two groups. To the right of the entrance to the bar, Marcus Harley and the victim
were fighting and struggling on the ground. During the struggle, the victim was
“jumped” and “beat up” by approximately five individuals. At this point, the defendant
was standing alone ten to fifteen yards away observing the altercation. The defendant
pulled a knife from his pocket and opened it. An unidentified female grabbed the
defendant’s arm, attempting to stop him. The defendant shrugged her off and walked
quickly across the parking lot to where the victim was crouched defending himself. The
defendant plunged his arm into the pile of people, stabbing the victim in the chest. The
defendant stated, “This is what y’all motherf**kers wanted,” and “yeah motherf**ker.”
The victim fell backwards onto the pavement, and the defendant backed away in between
the rows of parked cars. The defendant bent down and dropped the knife near a white
sedan.

        Officer Matthew Ferrell of the Clarksville Police Department testified he
responded to the disturbance at the bar. When he arrived, Officer Ferrell observed a large
group of individuals fighting with one individual lying on the ground. Officer Ferrell
first broke up the fights and then attempted to render aid to the victim. Officer Ferrell
located a stab wound to the victim’s chest and continued to render aid until an ambulance
arrived.

       Officer Gary Mefford of the Clarksville Police Department also testified that he
responded to the call at approximately 2:25 a.m. on March 16, 2014. Officer Mefford
located a knife lying thirty feet from the victim next to a car. He secured the area until
the Crime Scene Team arrived.

                                          -2-
        Officer Scott Beubien, a member of the Clarksville Police Department Crime
Scene Team, created a sketch of the crime scene and measured the distance between
certain pieces of evidence. Officer Beaubien’s sketch was entered as an exhibit at trial.
Officer Beaubien recovered four pieces of evidence from the parking lot: 1) a yellow
shirt; 2) a black shirt; 3) samples from two “red brown” blood stains located on the
surface of the pavement; and 4) a knife. The two shirts and blood stains were located
directly in front of the bar’s entrance. The knife was located across the parking lot from
the other items of evidence on the ground next to a Toyota Corolla.

       Officer Darren Koski of the Clarksville Police Department testified he was called
at home to respond to the bar’s parking lot on March 16, 2014. Officer Koski is a
member of the Crime Scene Unit and was responsible for collecting evidence from the
scene. Officer Koski collected a yellow shirt and a black shirt from the bar’s parking lot.

       Detective Christopher Nolder, a detective in the homicide unit of the Clarksville
Police Department, testified he was the lead investigator in the defendant’s case. The
State identified and entered several exhibits through Detective Nolder, including 911
calls, videos from the inside of the bar, one pair of black jeans recovered from the
defendant, one white shirt recovered from the defendant, two buccal swabs taken from
the defendant, one blood spot sample from the victim, and a gray hat recovered from the
bar. Detective Nolder testified the knife recovered from the parking lot of the bar had a
blade length of three-and-a-half inches. It was a folding knife that allowed the user to
lock the blade in place when fully extended. The defendant was legally allowed to carry
the knife because it was shorter than four inches. Detective Nolder interviewed the
defendant, and the interview was audio and video recorded.

        Special Agent Brock Proctor of the Tennessee Bureau of Investigation, a forensic
scientist in the serology and DNA unit, testified that he created a DNA profile of the
defendant using two buccal swabs. He also created a DNA profile using a blood spot
taken from the victim. Agent Proctor tested the brown shirt and the yellow shirt
recovered from the crime scene for the presence of DNA. He obtained a positive match
on both shirts for the presence of the victim’s DNA. Agent Proctor also tested the blade
and handle of the knife recovered from the scene. He obtained a positive match for the
victim’s DNA on the blade of the knife. The test he conducted on the handle of the knife
showed the presence of DNA from a number of contributors but was inconclusive as to
their identity.

        Agent Proctor tested multiple samples from a shirt recovered from the defendant
for the presence of human DNA. He tested a stain on the left sleeve of the defendant’s
shirt, which was negative for both the defendant and the victim’s DNA. Agent Proctor
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also tested a stain from the left cuff of the defendant’s shirt. This sample was positive for
human blood and contained DNA from several sources. The major contributor to the
DNA found on the cuff of the defendant’s shirt was the victim. Finally, Agent Proctor
tested a gray hat recovered from the bar for the presence of human DNA. He obtained a
positive match for the defendant’s DNA from the hat. Special Agent Proctor compiled a
report of his findings, which was entered into evidence at trial.

        Dr. David Zimmerman, a Davidson County medical examiner, performed the
autopsy on the victim Darrell Willis. Initially, Dr. Zimmerman noted a number of
injuries to the victim, including: a stab wound to the victim’s chest; abrasions on the
back of the victim’s head, arms, and legs; and a bruise to his right hand. The stab wound
located on the right side of the victim’s chest was one inch long and one-sixteenth of an
inch wide. The wound had a blunted edge on the right side and a v-shaped edge on the
left. The knife recovered from the scene had a blunted edge and a v-shaped edge. Dr.
Zimmerman explained the angle of the wound was slightly downward away from the
victim’s neck and towards the victim’s stomach. The knife entered the chest traveling
towards the victim’s back. The wound penetrated the right atrium of the heart. Dr.
Zimmerman noted there were 140 milliliters of blood within the heart itself and 1700
milliliters of blood within the chest.

       Dr. Zimmerman also conducted a toxicology report on the victim and observed the
presence of alcohol in the victim’s blood. Multiple blood samples were taken and
indicated the victim’s blood alcohol content was between .13 and .152 one hour before
his death. Depending on the victim’s tolerance, that level of intoxication could cause
slurred speech, stumbling, poor judgment, reduced reaction time, and a slowed breathing
rate. Dr. Zimmerman concluded the cause of death was a single stab wound to the chest,
and the manner of death was homicide. He prepared a report of his findings which was
entered as an exhibit at trial.

       After the State rested its case in chief, Severina Tugati testified she was with the
defendant’s group at the bar on the morning of March 16, 2014. Ms. Tugati and the other
members of her party, including the defendant, arrived at the bar around 1:00 a.m.
Shortly after they arrived, Ms. Tugati noticed a fight had broken out between her
boyfriend Marcus Harley and another individual. Ms. Tugati testified she blacked out
and could not recall how the altercation ended up outside. Outside, she recalled calling
911 and speaking to the dispatcher. Meanwhile, she noticed to her left Brianna Glatt was
on the ground. According to Ms. Tugati, two females and two or three males were
stomping on Ms. Glatt.



                                            -4-
       Kevin Kennedy, another friend of the defendant, testified he met the defendant,
and the rest of their group, after leaving work on March 15, 2014. An altercation arose
inside the bar and eventually moved to the parking lot outside the bar. According to Mr.
Kennedy, the victim Darrell Willis had Brianna Glatt in a “UFC chokehold” on the
ground. Mr. Kennedy tried to get the victim off of Ms. Glatt and then attempted to break
up several other fights that were going on throughout the parking lot. He estimated there
were approximately fifteen people in the parking lot outside of the bar. The victim was
running around fighting different people; Mr. Kennedy, however, did not remember the
victim and the defendant ever fighting with each other.

       The defendant testified in his own behalf. After arriving at the bar, Ricky Douglas
approached Marcus Harley and the two engaged in a heated conversation. The defendant
grabbed Mr. Douglas’s shoulder in an attempt to move him away from Mr. Harley. Mr.
Douglas shoved the defendant and attempted to punch him but missed. The defendant
then attempted to punch Mr. Douglas but was grabbed from behind. Mr. Harley then
punched Mr. Douglas. The bouncers broke up the fight and escorted Mr. Harley outside.
The defendant was trying to reach Mr. Harley in order to leave, when someone grabbed
him from behind again and threw him to the floor.

       After the defendant was able to stand up, he went outside and observed Brianna
Glatt fighting two other females – one with blonde hair and one wearing a green dress.
To the right of the bar’s entrance, the victim and three or four individuals were attacking
Mr. Harley. At this point, the defendant admitted he was in no danger, standing alone,
and no one was confronting him. He testified he was standing back, looking around, and
“trying to see where [he] was needed.”

        The defendant started walking towards the group where the victim was located
when Shane Cortez approached him with clenched fists. The defendant pulled a knife
from his pocket, intending to intimidate Mr. Cortez. Mr. Cortez ran and told the
bouncers that the defendant had a knife. Mr. Cortez then ran back and stood between the
defendant and where the victim was involved in an altercation with Mr. Harley. The
defendant was holding his knife in his right hand down at his side. Mr. Cortez attempted
to hit the defendant but missed. The defendant raised his knife to chest level and said
“back the f**k up.” In his peripheral, the defendant noticed someone moving quickly
toward him and turned to see the victim rushing towards him. The defendant explained
as he turned the knife just went in “it was kind of like we met.” The defendant was in
shock and backed away, tossing the knife under a nearby car. The defendant testified he
regretted taking the knife out and felt it was a poor decision in hindsight. He stated he
never intended to kill the victim. Following the defendant’s testimony, the defense rested
its case.
                                           -5-
        The jury returned a verdict finding the defendant guilty under Count 1 of the
lesser-included offense of second degree murder. The trial court granted a motion for
judgment of acquittal with respect to Count 2, tampering with evidence, and the State
dismissed Count 3, unlawful possession of a weapon. At the sentencing hearing on
March 11, 2015, the trial judge sentenced the defendant to fifteen years’ incarceration.

        On March 17, 2015, the defendant filed a motion for new trial, and on February
22, 2016, he filed an amended motion for new trial. Following a hearing, the trial court
denied the defendant’s motion and this timely appeal followed. On appeal, the defendant
argues the evidence was insufficient to support his conviction for second degree murder
because he acted under adequate provocation. The State argues the evidence was
sufficient to support the defendant’s conviction. After a thorough review of the record
and applicable law, we affirm the judgments of the trial court.

                                         Analysis

                               Sufficiency of the Evidence

       The defendant argues the evidence presented at trial was insufficient to support his
conviction for second degree murder. The defendant does not dispute he stabbed the
victim in the chest with a knife. Instead, he argues the killing was not murder because it
was committed in the heat of passion during mutual combat; therefore, the evidence was
only sufficient to support a conviction for voluntary manslaughter.

        When a defendant challenges the sufficiency of the evidence on appeal, the
relevant question for the reviewing court 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.” State v. Evans, 838 S.W.2d
185, 190-91 (Tenn. 1992) (citing Jackson v. Virginia, 443 U.S. 307 (1979)). All
questions involving the credibility of witnesses, the weight and value to be given the
evidence, and all factual issues are resolved by the trier of fact. See State v. Papas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). “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.” State v. Grace, 493 S.W.2d 474, 476 (Tenn.
1973). “A jury conviction removes the presumption of innocence with which a defendant
is initially 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).



                                           -6-
       Guilt may be found beyond a reasonable doubt where there is direct evidence,
circumstantial evidence, or a combination of the two. State v. Matthews, 805 S.W.2d
776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331 (Tenn.
1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The standard of review for
sufficiency of the evidence “‘is the same whether the conviction is based upon direct or
circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011)
(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). The jury as the trier of
fact must evaluate the credibility of the witnesses, determine the weight given to
witnesses’ testimony, and reconcile all conflicts in the evidence. State v. Campbell, 245
S.W.3d 331, 335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim.
App. 1978)). Moreover, the jury determines the weight to be given to circumstantial
evidence and the inferences to be drawn from this evidence. Dorantes, 331 S.W.3d at
379 (citing State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)). The extent to which the
circumstances are consistent with guilt and inconsistent with innocence are questions
primarily for the jury. Id. This Court, when considering the sufficiency of the evidence,
shall not reweigh the evidence or substitute its inferences for those drawn by the trier of
fact. Id.

                               Count One Second Degree Murder

       Second degree murder is a knowing killing of another. Tenn. Code. Ann. § 39-13-
210(a)(1). “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). Whether the defendant knowingly killed the victim is a
question of fact for the jury. State v. Inlow, 52 S.W.3d 101, 104-05 (Tenn. Crim. App.
2000). Because of the difficulties inherent in proving intent through direct evidence,
intent may be inferred by the jury from “the character of the assault, the nature of the act
and from all the circumstances of the case in evidence.” Id. at 105 (citing State v.
Holland, 860 S.W.2d 53, 59 (Tenn. Crim. App. 1983)).

        Voluntary 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). “Whether a knowing killing
resulted from ‘a state of passion produced by adequate provocation sufficient to lead a
reasonable person to act in an irrational manner’ is a jury question.” State v. Williams, 38
S.W.3d 532, 539 (Tenn. 2001) (quoting State v. Johnson, 909 S.W.2d 461, 463-64 (Tenn.
Crim. App. 1995)). It is within the sole purview of the jury, therefore, to determine
whether the defendant knowingly committed second degree murder or acted under
adequate provocation. Id.

                                           -7-
        In this case, the jury was presented with evidence that the victim’s death was the
result of an altercation between members of the defendant’s group and members of the
victim’s group. Although the various accounts presented at trial are not completely
consistent, it appears the incident started when Ricky Douglas, a member of the victim’s
group, engaged in a heated exchange with the defendant and Marcus Harley. At some
point during the fight, the defendant was grabbed from behind twice and thrown to the
ground. The bouncers at Wild Woody’s Saloon removed the two groups from the bar,
and the fighting continued in the parking lot outside. According to a number of
witnesses, including Ms. Candice Corbin and bouncer Adam Zacharzuk, either four or
five people were hitting the victim as he crouched to protect himself from the blows.
Multiple witnesses and the defendant himself testified that the defendant was standing
away from the fight, out of harm’s way, when he pulled a knife out of his pocket. One of
the bar’s bouncers even indicated the defendant was observing the fight from thirty to
forty-five feet away.

       The defendant admitted he stabbed the victim. He alleges, however, that the
stabbing was done in the heat of passion during mutual combat and, therefore, could only
support a conviction for voluntary manslaughter. The defendant testified the victim
“bull-rushed” him from the side, and as the defendant turned to defend himself, the knife
went into the victim’s chest. The defendant’s version of events was contradicted by
almost every other witness at trial.

        No other witness corroborated the defendant’s story that he was “bull-rushed” by
the victim. On the contrary, one consistent aspect of the various witness’ accounts was
that the defendant was not near the altercation with the victim. Nearly every witness
testified that the defendant was standing at a distance and moved quickly towards the
victim holding a knife in his right hand. The defendant himself admitted he was
observing the altercations from a distance in order to determine where he was needed. A
female grabbed the defendant, apparently attempting to stop him from entering the
altercation. However, he shrugged her off and walked at a fast pace toward the fight
where the victim was located. Multiple witnesses described how the defendant plunged
his arm into the pile of people stabbing the victim in the chest. Witnesses also heard the
defendant state “this is what y’all mother**kers wanted,” as he backed away from the
dying victim. Additionally, Dr. Zimmerman, the medical examiner who performed the
autopsy of the victim in this case, testified that the angle of the stab wound was slightly
downward, consistent with the victim being in a crouched position.

      The jury was under no obligation to accept the defendant’s testimony. The jury
alone evaluates the credibility of the witnesses, determines the weight given to those
witnesses’ testimony, and reconciles all conflicts in the evidence. Campbell, 245 S.W.3d
                                           -8-
at 335. Evidenced by the jury’s verdict, the jury did not find the defendant’s version of
events to be credible, and this Court will not substitute its own conclusions for theirs.
The evidence presented at trial was more than sufficient to support the defendant’s
conviction for second degree murder. The defendant, therefore, is not entitled to relief.

                                      Conclusion

        Based on the foregoing authorities and reasoning, we affirm the judgments of the
trial court.

                                            ____________________________________
                                            J. ROSS DYER, JUDGE




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