         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE             FILED
                         JANUARY SESSION, 1998            March 31, 1998

                                                       Cecil W. Crowson
                                                      Appellate Court Clerk
STATE OF TENNESSEE,               )   C.C.A. NO. 01C01-9606-CC-00278
                                  )
           Appellee,              )
                                  )   CHEATHAM COUNTY
V.                                )
                                  )
                                  )   HON. LEONARD W. MARTIN, JUDGE
RICHARD BURT McKEE,               )
                                  )
           Appe llant.            )   (FIRST DE GREE MUR DER)




FOR THE APPELLANT:                     FOR THE APPELLEE:

GREGORY D. SMITH                       JOHN KNOX WALKUP
One Public Square, Suite 321           Attorney General & Reporter
Clarksville, TN 37040
                                       KAREN M. YACUZZO
                                       Assistant Attorney General
                                       2nd Floor, Cordell Hull Building
                                       425 Fifth Avenue North
                                       Nashville, TN 37243

                                       DAN M. ALSOBROOKS
                                       District Attorn ey Ge neral

                                       JAMES WALLACE KIRBY
                                       Assistant District Attorney General
                                       105 Sy camo re Street
                                       Ashland City, TN 37015




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                    OPINION
       The Defe ndan t, Richa rd Bu rt McK ee, ap peals as of right from his conviction

following a jury trial in the C heatha m Co unty Circuit Co urt. Defendant was convicted

of first degree murder and was se ntence d to life imprisonment without parole. The

Defe ndan t prese nts the followin g issue s on a ppea l:

       1)     whether there was sufficient evidence to sustain a verdict of guilt
              beyond a re asonable d oubt of first degree m urder;

       2)     whether the venu e of the murder was adequately established by
              professional or expert testimony in Cheatham County; and

       3)     whether a sentence of life without parole is excessive.

We affirm the ju dgme nt of the trial co urt.



                             S UFFICIENCY OF THE EVIDENCE



       Defendant argues that the record is insufficient to establish the elements of

premeditation and deliberation for a conviction of first degree murder. He contends

that the shooting was a matter of mutual combat, voluntary manslaughter or

criminally n egligent h omicide .



       When an accused challenges the sufficiency of the convicting evidence, the

stand ard is w hethe r, after re viewing the evid ence in the ligh t mos t favora ble to the

prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reaso nable d oubt. Jack son v. V irginia, 443 U.S. 30 7, 319 (1979 ).

On appeal, the State is entitled to the strongest legitimate view of the evidence and

all inference s therefro m. State v. Cabbage, 571 S.W .2d 832, 835 (Tenn. 197 8).

Because a verdict of guilt removes the presumption of innoce nce an d replace s it with

                                            -2-
a presum ption of gu ilt, the accuse d has the bu rden in this court of illustrating why the

evidence is insufficient to suppo rt the verdict re turned b y the trier of fact. State v.

Tuggle, 639 S.W .2d 913 , 914 (T enn. 19 82); State v. Grace, 493 S.W.2d 474, 476

(Tenn . 1973).



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

be given the evidence, as we ll as all factual issues raised b y the evidence, a re

resolved by the trier of fa ct, and no t this court. State v. Pappas, 754 S.W.2d 620,

623 (Tenn. Crim. A pp.), perm. to appeal denied, id. (Tenn. 198 7). Nor ma y this court

reweigh or reevaluate the evidence. Cabbage, 571 S.W.2d at 835. A jury verdict

approved by the trial judge ac credits the State’s w itnesses and res olves all co nflicts

in favor of the State. Grace, 493 S.W.2d at 476.



       The State p resen ted se veral w itness es in its case-in-chief. Susie Ferguson

testified that sh e had been a friend of the vic tim, T erry Ne blett, all of her life, and that

she has kn own th e Def enda nt sinc e she was in the seventh grade. She stated that

Defendant dated Kenya Fuqua for some period of time. After Fuqua and Defendant

separated, the victim a nd Fuq ua beg an to da te. On several occasions following the

beginning of the victim and Fuqua’s relationship, she witnessed the Defendant

threaten to kill the victim. The first incident was in October 1993. The Defendant

came to Ferg uson ’s hom e look ing for th e victim and stated that “He [victim] took his

woman away from him . . and he [Defe ndant] w asn’t goin g to take it . . . he might kill

them both.” Ferguso n recalled at least three (3) other occas ions that Defendant

threatened the victim. On one of those later occasions , Defendant stated that he

had been “locked up” before, and that it wasn’t any big thing as he had done time

before. He further stated that he was looking for the victim and “was going to catch

                                              -3-
up to him some day.”       Th e final o ccas ion De fenda nt spo ke of th e victim in

Ferg uson ’s presence was at Ferguson’s wedding. The Defendant arrived early for

the wedding, but explained that he could not stay because he knew the victim and

Fuqua would be there and to avoid trouble, he was just going to leave.



      Jimmy L. Murphy lived ap proximately three (3) to five (5) miles from P innac le

Point, the area of the shooting.     He had been acquainted with the victim for

appro ximate ly five (5) years and had known the Defendant for approximately eight

(8) years. On June 12, 1994, the Defendant came b y Murphy’s ho me. She rry

Neblett, the victim’s ex-wife, was there with Murphy and some friend s. They were

grilling out when Defendant arrived, and Murphy could see that the Defendant was

frustrated when he pulled up in his car. Murphy went out to the car to talk to the

Defendant, and Defendant described a confrontation he had with the victim earlier

that mornin g. Defen dant as ked Mu rphy to go with him to confron t the victim, but

Murphy refused. When Murphy asked the Defendant if he had a gun with him, the

Defendant responded that he did not and did not need a gun. At that time, S herry

Neblett came out of Mu rphy’s ho use an d agree d to go with the Defendant. Because

Sherry was afraid of the victim, she said she would n ot go witho ut a gun and went

back inside to get her gun. When she returned with a .38 caliber pistol, she le ft with

the De fendan t.



      Appr oxima tely forty-five (45) minutes after they left, Sherry and the Defendant

returned with Sherry driving the Defenda nt’s car. Bo th appe ared to b e upse t.

Defendant stated that he shot the victim but did not think that he had killed him.

Murphy called 911 to notify emergency personnel about the shooting.




                                          -4-
      Officer Floyd D unca n, inves tigator w ith the C heath am C ounty Sher iff’s

Depa rtment, worked at the crime scene at Pinnacle Point. Pinnacle Point is a

location where the three counties of Ch eatham , Montgom ery and Dickson converge.

Duncan stated that he was familiar with the county lines and drew a map of the crime

scene. There is a creek there, and the south bank of that creek is in Cheatham

Coun ty and the north ba nk is in Mo ntgom ery Cou nty. Duncan determined that the

murder occurred in Cheatham County by going to the tax assessor’s office and

looking a t the line do wn the c enter of the creek.



      W hile Defendant had already left the scene of the crime when Duncan arrived,

Duncan determined from various witnesses that there was only one gunshot and that

the Defendant had left the scene with the weapon. Duncan stated that the weapon

has still not been recovered. The bullet found in the victim was consistent with that

from a .38 caliber pistol. Several hours later, the Defendant was taken into custody

in Montgom ery County an d then transpo rted to Chea tham Co unty.



      Shelby Jean Sevilles, the owner of Jean’s Cash and Carry, has known th e

Defendant for thirty-six (36) years. Sevilles’ store is locate d two (2 ) and o ne-ha lf

miles from Pinnacle Point. On June 12, 1994, the Defendant came by Sevilles’ store

and asked to use her telephone. When Sevilles asked the Defendant if it was a long

distance call, he said that it was and she responded that he co uld call colle ct.

Defendant agreed an d gave her the telephone number. Sevilles made an error while

dialing the numb er, so she started to dial again. T he De fendan t said “Jus t forget it,

I have got to go,” and left the store. Sevilles testified that the Defendant was calm.

Several minutes later, another boy came in and told Sevilles that there had been a

shooting down a t the creek and to ca ll 911.

                                           -5-
      Faith Karen Stoneman went swimming at Pinnacle Point with her boyfriend,

Doyle Miles, and friends Becky Swaw, Sam Taylor and Matt Miles on June 12, 1994.

It was close to 5:00 p.m. when they arrived.        They parked their cars on the

Montgom ery County side of the bridge and went under the bridge and down the

embankment to get into the water. She was swimming when she he ard a loud

hissing sound. Just after she heard the hissing she heard her boyfriend screaming

to get out of the water, that someone was slashing tires and had a gun. She was

swimming with Swa w, and th ey turned around and look ed at the C heatha m Co unty

side of the brid ge.   One man rushed towards another man and they started

struggling. One had a gun in his hand, but Stoneman could not see his face. She

remembered some one sc reamin g, “I’m goin g to get you. I’m going to get you,” and

that it was not the victim who screamed these words. Stoneman and Swaw went up

the emba nkme nt to leave, bu t Stonem an turne d back to try to see the man who was

holding the gun. The men continued to struggle. Stoneman’s boyfriend then came

down and dru g her ba ck up the bank. They heard someone scream “[t]he kids, the

kids. Not in front of the kids.” Stoneman heard the shot, and she immediately began

to try to get several children in the area out of the way. Stoneman and her friends

then went to a nearby house to call the police.



      Doyle Miles, S tonem an’s b oyfriend, testified that he was standing near the

bridge when a man in a black T-bird drove up from the Montgomery County side.

The man ha d a gun ha nging out the w indow, and the re was a pa ssenger in the car,

but Miles could not tell if it was a man or woman. The man jumped out and used a

knife to cut the tires on a parked car.   Th en, the man jumped back in his car and

drove across the bridge, still holding the gun. Miles saw the man park his car and

run down the bank with the gun in his hand. He identified the Defendant at trial as

                                          -6-
the man holding the gun. He and the victim began fighting, but Miles believed that

the victim was o nly trying to get th e gun out of th e Def enda nt’s hand. Miles he ard

a shot, and he and his friends left to call 911. When they returned, the victim was

lying there a nd had been s hot just be low the w aistline.



         Becky Swaw Taylor, formerly Becky Swaw, testified that she was also at

Pinnacle Point on June 12, 1994. She and her friends parked on the Mon tgomery

County side and then we nt to swim . Swaw was sw immin g with Fa ith Stoneman

when they heard a hissing sound. Immediately, their friends began screaming that

someone was slashing tires. Swaw saw a man come down from the bridge with a

gun and go towards the victim. The man and the victim began fighting, and Swaw

turned to leave. She heard a shot, and turned around to see that the two men had

fallen to the ground .



         Samuel Taylor, Becky Swaw Taylor’s husband, was also swimming at

Pinna cle Point. He made similar observations, but also saw the Defendant walk

back to his car after the shooting. Taylor identified this man as the Defendant at

trial.



         Julie Neble tt was th e siste r-in-law of the vic tim. She went to Pinnacle Point

on June 12, 1994 with her husband and two children. When they arrived, the victim,

Kenya Fuqua and Fuqua’s two children were alre ady there swimm ing. After N eblett

and her family got there, they all went swimming on the Cheatham County side. She

and Fuqua were sitting with their feet in the water when they heard what sounded

like breaking glass. Neblett thought that someone had wrecked their car. When she

heard the sound again, Neblett began to run up the bank to get her sons out of the

                                            -7-
way. Neblett heard a car speed up and then slam on the br akes. When she looked

up, the Defendant was standing there w ith a gu n in his hand. Fuqua was standing

directly beh ind Neb lett, with the victim standing down b y a tree ne ar the wa ter.



       Neb lett’s son was in her arms, so she dropped him to the ground and tried to

push him down the bank. She also pushed Fuqua down the hill and told her to run,

then scream ed for he r kids to get out of the water. The next thing Neblett saw was

the Defendant and the victim twisting around in circles, bo th trying to get possession

of the gun. She was screaming for them to stop and trying to get the kids out of the

way when she heard a pop. When Neblett tu rned, the victim fell to the ground. The

Defendant stepped back and then pointed the gun at the victim. He mumbled

something and then told Neblett that “[she] better save him.”               The Defe ndant

returned up the ba nk with the gun in his hand. N eblett followed to check on her

children. The driver’s side door to the Defendant’s car was op en, and Sherry N eblett

was inside. The Defendant did not say anything , but got into the pass enger’s seat.

Sherry Neblett and Defendant drove off towards Cheatham County. Neblett further

stated that the car in which the victim, Fuqua and their childre n arrive d at Pin nacle

Point was the car which had the slashed tires.



       Julie Neblett went home to stay with the children, including Kenya Fuqua’s.

Between a half hour to an hour after the shoo ting, sh e rece ived two teleph one c alls

from the Defe ndant. Durin g the firs t phon e call, th e Def enda nt state d that, “[W ]e all

deserved what happ ened at the cre ek.” In the secon d call, Defenda nt threatened

“that Fran [Kenya Fuqu a’s m other] w as go ing to g et it bec ause she a llowed Keny a’s

children to be with Kenya and [the victim] that day . . . and that they were crack-

heads and she knew it.” During this second conversation, the Defendant, who had

                                             -8-
call-waiting, received another call and clicked to the second call. When he clicked

back to spe ak with Neb lett, he said “W ell, he’s dead, and I’m out of here.”



        Larry Bryant, the Director of 911 for Montgomery County, testified that on June

12, 1994, Clinton Davis called at 5:09 p.m. to rep ort the sho oting at P innacle P oint.

Bryant stated that two (2) other calls were also made to 911 regarding the shooting,

one from Julie Neblett at 6:30 p.m. and another from Kenya Fuqua at 7:58 p.m. He

did not rec eive any o ther calls re garding the incide nt.



        Larry Bruce , Direc tor of D ickson Cent ral Co mm unica tion, su pervise s all

communications including 911. On June 12, 1994, Jean Sevilles called 911 at 5:30

p.m. from J ean’s Cash and Carry. Steve Smith, the Cheatha m Cou nty 911 Directo r,

stated that there was no record of any calls regarding Pinnacle Point on June 12,

1994.



        Barney Reed, the paramedic supervisor for Montgomery County, responded

to an ambulance call at Pinnacle Point. The call came at 5:14 p.m. When Reed

arrived, CPR on the victim was alre ady in pro gress, a nd they continued CPR

although the victim had no vital s igns. T he victim was tra nspo rted to C larksville

Memorial Hospital where he was later pronounced dead. There appeared to have

been three (3) bullet wounds under the right side of the victim’s abdomen.



        Charles Harlan, M.D., the consulting forensic pathologist for Cheatham

County, performed the autopsy of the victim on June 12, 1994. The victim died as

a result of a near gunshot wound in the right lower quadrant of his abdomen.           A

“near gunshot wound ” is one in w hich the m uzzle of th e gun is b etween zero (0) to

                                            -9-
twenty-four (24) inches from the victim’s s kin. The re was p owder in the wou nd, with

stippling of nine (9) inches in diameter. Stippling indicates the distance from the end

of the muzzle to the skin surface, and Dr. Harlan estimated that the muz zle of th is

particular gun w as pro bably b etwee n nine (9) to tw elve (1 2) inch es from the victim ’s

skin. While the gunshot wound was from a single b ullet, there w ere three separa te

wounds on the victim’s abdomen, one from the entry o f the bullet, one from the exit,

and one from the reentry of the bullet. The thre e (3) wound s were all in the fleshy,

soft tissue of the abdomen, possibly occurring due to the pinched position of the

victim’s body as he was shot. Th e victim’s right com mon iliac artery an d vein were

injured, causing internal bleed ing. As a resu lt, the victim likely died within a period

of fifteen (15 ) to twenty (2 0) minu tes.



       Clifton Smith, d eputy for th e Mon tgome ry Coun ty Sheriff’s D epartm ent,

testified that he responded to the c all on Jun e 12, 19 94 for as sistance in a death

investigation at Pinnacle P oint in Cheatha m Cou nty.          During his investigation,

Depu ty Smith first came into contact with the D efenda nt at the M ontgom ery Cou nty

jail around 9 :00 p.m . Defe ndan t and D eputy Smith knew each other p rior to this

meeting. Lieutenant Hastings and Sergeant Pat Haynes were also present, and

Hastings read to Defendant his constitutional rights. De fendan t asked to speak with

Smith alone as he did not trust the Cheatham County authorities.



       After the other officers left the room, D efenda nt stated th at he was having

problems with the victim, that the victim ha d stolen his wife, kids, m oney, and farm

and that he was out to get the victim. Defendant stated that this came to a head at

the Pinnac le Point B ridge, th at it “was all he co uld tak e.” Sm ith ask ed if he could

take notes, and Defendant agreed. The Defendant’s statement is as follows:

                                             -10-
        I walked down the creek bank. Come on. I got som ething for yo u. I
        got him down fighting. He had the gun. I hit him with fist. (Right han d).
        Then he ca me o ut with th e gun and p laced it underneath my ch in. I
        grabbed his hand and pushed the gun tow ards his s tomac h area. Then
        the gun went off (one). We were fighting underneath the bridge.

The S tate then re sted its cas e-in-chief.



        Jesse Donald Herrell testified for the defense. On June 12, 1994, Herrell was

with Sherry Neblett at Jimmy and Rita Murphy’s home having a cook out. H errell

and Sherry Neb lett were seeing each other. The Defendant stopped by, but did not

get out of the car. He hollered out and asked Neblett to ride dow n to the cre ek with

him. Neblett agreed, but before they left she went back into the trailer. When she

came out she had a gun in her hand. While Herrell did not know if the Defendant

saw the gun or not, Sherry was not trying to hide the gun on her way out of the

trailer. Neblett stuck the gun in her purse. When Herrell asked her what she was

going to do the gun, she stated that she was not going to go without it because she

was afraid of the victim. Wh en De fendan t and Sh erry returne d, Sherry was up set,

nervous and cryin g. The Defendant stayed approximately thirty (30) minutes, then

left.



        Lynette McKee Arthur, the Defendant’s sister, had known the victim for fifteen

(15) to twen ty (20) ye ars. In A ugus t 1993 , the victim lived with the Defendant and

Kenya Fuqua. Shortly after the victim moved out, the Defendant and Fuqua broke

up and the victim and Fuqua began to date. While Arthur knew that she had not

seen the victim and the Defendant together since the victim moved out, she knew

they later patched up their relationship and were on cordial terms. Arthur testified

that she saw the victim and the Defendant together at parties and at businesses, and

she never heard the Defendant threaten the victim. On the day of the killing, Arthur

                                              -11-
went to her sister’s trailer to get the Defendant and take him to the Mo ntgome ry

Coun ty jail. When she go t to her sister’s, the Defendant was trembling, nervous,

mudd y and un able to sp eak clea rly. The D efenda nt volunte ered to g o to jail.



        Alexis Worthing, Wanda Wallace and Herrell all testified that the Defendant

had overcome his hard feelings toward the victim. They saw the Defendant and the

victim around each o ther, and they see med to be cordial. They never saw or heard

the De fendan t threaten the victim.



        Billy Hodges was with the Defendant on June 12, 1994. He testified that prior

to that occasion he had seen the victim and the Defenda nt go to the store tog ether,

return, shake hands and hug. On the day of the shooting, Hodges and Defendant

were drinking a twelve (12 ) pack of beer, and the Defendant was discussing the

victim and Fuqua. Defendant stated that he hoped that the victim “did not end up

getting them kids on crack rock.” Hodges stated that crack rock referred to cocaine.

The Defendant later left Hodges at Tatum Bridge, but he did not have a gun at that

time.



        In order to convict the Defendant of first degree murder, there must have been

an intentional, premeditated and deliberate killing of another. Tenn. Code Ann. § 39-

13-202(a)(1991 Repl.). At th e time of th is offense, a deliberate act was an act

performed with cool purpose, and premeditatio n occurred when an act was done

after the exercise of reflection and judgment. Tenn. Code Ann. § 39-13-201(b)(1)

and (2)(1991 Repl.); State v. West, 844 S.W.2d 144, 147 (Tenn. 1992). Both the

eleme nts of premeditation and deliberation are questions for the jury and may be

inferred from the mann er and c ircums tances of the killing. State v. Gentry , 881

                                          -12-
S.W.2d 1, 3 (Tenn. Crim. App. 19 93). Th e State is entitled to prove the offense by

circumstantial evidence alone. State v. Brown, 836 S.W .2d 530, 541 (Tenn. 199 2).



       In the light m ost favora ble to the State, there was sufficient evidence whereby

a reasonable trier of fact could have found the Defendant guilty of first degree

murder beyond a reasonable doubt.           Beginning in 1993, the Defendant made

numerous threats to the victim because he believed that the victim “stole his

wom an.”    Even in e arly 1994 , the Defe ndant contin ued to threate n the vic tim

according to one witnes s. Dec laration s by the defen dant o f his inte nt to kill and the

defendant’s prior relationship with the victim are both circum stances wh ich are

indicative to the jury of the eleme nts of prem editation a nd delibe ration. Brown, 836

S.W .2d at 541 -42; State v. Bord is, 905 S.W .2d 214, 222 (Tenn. Crim . App. 1995 ).




       On the day of the m urder, the Defendant and the victim had a confrontation.

Defendant expre ssed his an ger to h is friend, Billy Hodges, while they were drinking

beer. Later that da y, the Defe ndant d rove to the Murphy’s home and again told of

his plan to co nfront the victim. He took Sh erry Neb lett, a co-de fendan t, with him to

Pinna cle Point. Before Neblett would get in the car with Defendant, she retrieved a

.38 caliber pistol. Witnesses described Defendant as driving over the bridge to the

scene at Pinnacle Point holding a gun and h angin g it out the window. Upon arriving

at the scene, Defe ndan t jump ed ou t of his ca r and u sed a knife to slash th e victim ’s

tires. Defendant completely disabled the victim’s vehicle, and the jury was entitled

to infer that this slashing of the tires was performed so that the victim could not

escape the scene. Planning activity prior to the killing of the victim is a circumstance

the jury may use to infer the elements of premeditation and deliberation. Bord is, 905

                                            -13-
S.W.2d at 222. After slashing the tires, Defendant drove over the bridge and ran,

brandishing a gun, towards the victim screaming, “I’m going to get you. I’m go ing

to get you.” The victim was unarmed and had been swimming. The use of a de adly

weapon upon an unarmed victim is such that the jury was entitled to infer b oth

preme ditation an d delibera tion. Brown, 836 S.W .2d at 541 .



      The victim strug gled with the Defe ndant, but was unable to protect himself and

was shot in the stoma ch by th e Def enda nt. W hile the Defe ndan t allege d in his

statement to police that the victim pulled out a gun after Defendant approached him,

the jury chose to accept the testimony of numerous other witnesses. We may not

reevalua te this evide nce. Cabbage, 571 S.W .2d at 835 .



      Motive is not an element of first degree murder, but, if proven, it reflects upon

the eleme nts of first degree murder. Obviously, the Defendant resented the victim ’s

relations hip with Kenya Fuqua. Following the shooting, the Defendant called the

sister-in-law of the victim and proceeded to tell her that “her family deserved what

happened.” He then called a second time to threaten Kenya Fuqua’s mother for

allowing Fuqua’s children to be around the victim.          Furthermore, in his own

statem ent, the Defendant admitted that he was “out to get the victim” because the

victim had “stole his w ife, kids, money a nd farm.”



      Finally, following the mu rder, the Defen dant calmly wa lked away from the

scene with the we apon. He stopped at a local market, Jean’s Cash and Carry, and

asked to use the phone. The Defendant did not call 911 and did not mention the

shooting to the owner of the store. The store’s owner testified that the Defendant




                                         -14-
appeared very calm. Calmness imm ediately afte r a killing ma y be evide nce of a

cool, disp assiona te, and pr emed itated mu rder. West, 844 S.W .2d at 148 .



       As Defendant deliberately and with premeditation went to Pinnacle Point to

confront the victim, and intentionally approached the victim with a loaded gun

screaming, “I’m go ing to g et you. I’m going to get you,” the jury could have found

beyond a reaso nable d oubt tha t the Defe ndant w as guilty of first degree m urder.

This issu e is withou t merit.




                                       V ENUE



       The Defen dant arg ues tha t the State did not ad equate ly establish that the

murder occurred in Cheatham County, and therefore, that the matter should be

remanded for a new trial. Under Tennessee Code Annotated section 39-11-201 (e),

the State must prove venue “by a preponderance of the evidence.”                As the

Defendant concedes, the State can meet its burden of proof by only presenting slight

evidence, so long as it is based upon more than mere spec ulation. See State v.

Bloodsaw, 746 S.W .2d 722 , 724-25 (Tenn . Crim. A pp. 198 7). Venue may be shown

by a preponderance of the evidence which may be either direct or circumstantial or

both. Hopp er v. State , 205 Tenn. 246, 326 S.W.2d 448, 451 (1959) (citations

omitted ).




                                        -15-
         Pinna cle Point, as described by various witnesses, is the convergence of three

(3) counties and two (2) creeks. The Defendant concedes that the crime occurred

in either Montgomery or Cheatham County. Under the Tennessee Rules of Criminal

Procedure, “[o]ffenses committed on the boun dary of two (2) or more counties may

be prosecuted in either county.” Tenn. R. Crim. P. 18(c). Therefore, even if the

State only presented evidence that the murder occurred at the converging point of

the two (2) cou nties, then the evide nce wo uld still be su fficient to esta blish the

proper venu e in Cheath am Co unty.



         Based upon the testim ony of man y individuals, including police officers familiar

with the county lines and individuals from within the community, the murder occurred

in Cheatham County.         While the officers did not witness the shooting, all the

eyewitness testimony and evidence inferred that the crime occurre d on the south

side of the b ridge, w hich is the Che atham Coun ty side. As the Defendant points out

in his brief, an officer’s rational belief that a crime occurred within a given county can

meet the burd en of pro of to show proper ve nue. See State v. Chadwick, 750 S.W.2d

161, 165 (T enn. C rim. App . 1987). In the light most favorab le to the State, the jury

was entitled to infer that the Defendant committed the crime in Cheatha m Cou nty.

The Defendant failed to present any conflicting evidence, and this issue is without

merit.



                                         S ENTENCE



         Defendant challeng es the se ntence of life without parole as be ing excessive

under the facts o f this case. D efendant specifically contends that the mitigating




                                            -16-
factors outweigh the a ggravating factors in the circumstances of this case.

Defendant argues that a sentence of life imprisonment is appropriate.



       In con siderin g the a pprop riatene ss of D efend ant’s s enten ce, this court s hall

first conside r any errors assigne d.       Tenn . Code Ann. § 3 9-13-20 7(g).          Life

imprisonment without the possibility of parole is an appropriate sentence “if the state

proved beyond a reasonable doubt at least one (1) statutory aggravating

circumstance containe d in [Ten n. Cod e Ann.] § 39-13-204(i), and the sentence was

not otherwise impo sed a rbitrarily, s o as to cons titute a g ross a buse of the ju ry’s

discretion .” Id. Upon review, we affirm the sentence of life imprisonment without the

possibility of parole.



       At the sentencing hearing, the State relied upon the evidence at trial and two

previous convictions of the Defendant. The parties stipulated to Defendant’s 1979

Califo rnia conviction of robbery with the use of a deadly weapon and a 1983

Tennessee conviction of voluntary mans laughte r. The jury w as instruc ted that bo th

crimes involved the use of violence to the person.            The Defendant presented

numerous witnesses, all of whom testified as to the D efend ant’s character within the

comm unity rega rding his a cts of goo dwill and k indnes s to childre n in particu lar.



       In this case, the jury imposed the sentence of life imprisonment without the

possibility of parole following the sentencing hearing.          The jury found that the

following aggravating factors applied: (1) defe ndan t was p reviou sly convicted of one

(1) or more felonies, other than the present charge, whose statutory e lemen ts

involve the use of violence to the person; and (2) defendant knowingly created a

great risk of death to two (2) o r more persons, other than the victim murdered, during

                                            -17-
the act of murder. Tenn. Code Ann. § 39-13-204(i)(2) and (3). We agree with the

jury’s findings a s to the ap plication of the above aggravating factors. First, the

Defe ndan t’s criminal record was stipulated to include two (2) prior felonies which

involved violence to the pers on. Second, the Defendant knowingly carried a loaded

.38 caliber pistol to a crowded swimming area, w ith both childre n and adults in

nearby vicinity to the victim. Defenda nt admitted tha t he went there to confront the

victim, and his use of a weapon within such close proximity to those nearby was a

knowing risk on his part that someone other than the Defendant might have been

injured or k illed.



       The Defendant argues that the mitigating factors outweigh the aggravating

factors in this case. The Defenda nt asked the jury to consider the testimony of these

witnesses and apply any mitigating factors under Tennessee Code Annotated

section 39-13-204(j) which relate to that testimony. The mitigating factors are as

follows:

       1) The de fendant has no significant history of prior crim inal activity;
       2) The murder was committed while the defendant was under the
       influence of extreme mental or emotional disturbance;
       3) The victim was a participant in the defendant’s conduct or consented
       to the act;
       4) The m urder wa s com mitted un der circum stances which the
       defendant reasonably believed to provide a moral justification for the
       defend ant’s con duct;
       5) The defendant was an accomplice in the murder committed by
       another person and the defendant’s participation was relatively minor.
       6) The defendant acted under extreme duress or under the substantial
       domination of another person;
       7) The youth or advanced age of the defendant at the time of the crime;
       8) The capacity of the defendant to appreciate the wrongfulness of the
       defen dant’s condu ct or to conform the defendant’s conduct to the
       requirem ents of the law was substantially impaired as a result of mental
       disease or defect or intoxication which was insufficient to establish a
       defense to the crim e but wh ich subs tantially affected the de fenda nt’s
       judgment; and




                                          -18-
       9) Any other mitigating factor which is raised by the evidence produced
       by either the prosecution or defense at either the guilt or sentencing
       hearing.

       The only evidence presented by the Defendant was regarding his reputation

in the comm unity for perform ing acts of kindness. While this is appropriate as

evidence for mitigating factor nine (9), no other factors are applicable in this case.

Based upon his prior convictions, Defendant did have a history of prior criminal

activity. The m urder was n ot comm itted while the Defen dant was u nder extreme

mental or emotional duress. While it was suggested that Defendant was upset over

losing his girlfrie nd to th e victim , the on ly witnes ses w ho we re with th e victim that day

did not testify as to any extreme duress the Defendant was experiencing.                     As

witnesses described the victim acting in self-defense, the victim was not a participant

in the De fendan t’s condu ct.



       W hile the re was som e testim ony as to the n ature o f the victim ’s relatio nship

with Kenya Fuqua’s children, the Defendant, in his own statement, did not tell the

police that he be lieved he w as mo rally justified in killing the victim fo r any reason.

Instead, the Defendant stated that, “the victim had stole his wife, kids, money, and

farm and that he was out to get the victim.” There were no accomplices to the

murder, and the Defendant was not acting under extreme duress as heretofore

stated. The D efend ant’s age was not a factor in the crime. Finally, there was not

sufficient evidence to suggest that the Defendant could not appreciate the

wrongfulness of his conduct or conform his conduct to the law. While there was

testimony that the Defendant had been drinking that day, the witnesses who were

with the Defe ndant just prior to the murder testified that Defendant did not appear

to be un der the influ ence, o nly that he h ad a few beers.




                                              -19-
       When reviewing the aggravating and mitigating circumstances, if the

aggravating circumstances are found to have been proven b eyond a reas onab le

doubt, then the ju ry may se ntence the defen dant to eith er life impriso nmen t or life

without parole, in its discretion. Tenn. Code Ann. § 39-13-207(c). As the jury found

that both aggravating circumstances were present as argued by the State, it was

within the jury’s disc retion to de termine if a senten ce of life imp risonm ent without

parole was appropriate, notwithstanding the existence of mitigating factors. Only a

gross abuse of discretion would re sult in our find ing an er ror. Id. at (g). Based upon

the evidence and Tennessee Code Annotated section 39-13-207, we find that the

sentence was approp riate an d the ju ry did no t abus e its disc retion. T his issu e is

without m erit.



                                  ____________________________________
                                  THOMAS T. W OODALL, Judge


CONCUR:


___________________________________
DAVID H. WELLES , Judge


___________________________________
JERRY L. SMITH, Judge




                                          -20-
