           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT JACKSON
                                Assigned on Briefs January 5, 2011

            STATE OF TENNESSEE v. JOSE LUIS VIZCAINO-RAMOS

                 Direct Appeal from the Circuit Court for Hardeman County
                         No. 09-01-0830 J. Weber McCraw, Judge


                     No. W2010-01325-CCA-R3-CD - Filed August 3, 2011


The Defendant-Appellant, Jose Luis Vizcaino-Ramos, was convicted by a Hardeman County
jury of first degree premeditated murder and sentenced to life with the possibility of parole.
On appeal, Vizcaino-Ramos presents the following issues for our review: (1) whether the
trial court erred by admitting the testimony of the victim’s son; and (2) whether the evidence
was sufficient to support his conviction. Upon review, we affirm the judgment of the trial
court.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which A LAN E. G LENN and
J. C. M CL IN, JJ., joined.

Clifford K. McGown, Jr., Waverly, Tennessee (on appeal); Gary F. Antrican, District Public
Defender; Shana Johnson and Kari Weber, Assistant District Public Defenders, Somerville,
Tennessee (at trial), for the Defendant-Appellant, Jose Luis Vizcaino-Ramos.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Senior Counsel; D.
Michael Dunavant, District Attorney General; and Joe Van Dyke, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                                  OPINION

       On March 6, 2004, the victim, Mary Graves, was fatally shot by her former boyfriend,
Vizcaino-Ramos, the Defendant-Appellant. The victim’s five-year-old son, C.G.,1 was
present in the victim’s car when the shooting occurred. The Defendant-Appellant fled to



       1
           Due to the age of the victim’s son, he shall be referred to by his initials.
Mexico after the shooting and the case remained dormant for several years. The Defendant-
Appellant was eventually extradited to Tennessee, and the trial began on January 13, 2010.

       C.G., eleven years old at the time of trial, testified that the Defendant-Appellant and
the victim had an argument while they were in the victim’s car. C.G. observed the
Defendant-Appellant, whom he called “dad,” shoot his mother. C.G. recalled that the
Defendant-Appellant was the only person in the car with a gun. When the shooting occurred,
C.G. was in the back seat of the victim’s car, the victim was in the driver’s seat, and the
Defendant-Appellant was in the passenger seat. The shooting occurred in front of the
victim’s house. C.G. testified that after the shooting, the Defendant-Appellant dragged the
victim’s body out of the car and placed it by her house. C.G. was taken inside the victim’s
house and left alone that night.

        Leo Dodd testified about an encounter with C.G. on the night of the shooting. Dodd
was driving on a two-lane highway when he saw C.G. standing in the middle of the highway.
Dodd knew C.G. was the victim’s son. Dodd pulled C.G. off of the highway and asked him
what he was doing. C.G. claimed his dad had killed his mom. C.G. also told Dodd that the
victim’s body was in the yard. Dodd said he flagged down a police officer and explained the
situation.

       Sergeant Arness Bowden of the Middleton Police Department responded to a call
regarding the shooting. He testified that the victim’s body was found by the side of a house.
Sergeant Bowden said no other civilians were at the house. He claimed the police checked
the surrounding area for the victim’s car; however, they were unable to locate it. Sergeant
Bowden testified that a weapon was not found at the house while he was present.

        Special Agent Nathan Bishop of the Tennessee Bureau of Investigation and the
criminal investigator for this case testified that the victim’s body had multiple gunshot
wounds. Special Agent Bishop thought the murder may have occurred at another location
based on the absence of blood splatter. He was informed that the victim lived with the
Defendant-Appellant, whose whereabouts were unknown. Special Agent Bishop testified
that a nine millimeter handgun, spent shell casings, and rounds of ammunition were found
at the scene. An unfired nine millimeter round was also found inside the victim’s house.
This unfired bullet was consistent with the other bullets found at the scene. Special Agent
Bishop stated that the victim’s car was later found in Texas.

       Special Agent Cathy Ferguson of the Tennessee Bureau of Investigation testified that
she interviewed C.G. after the shooting. C.G.’s description during the interview was
consistent with his testimony at trial. Special Agent Ferguson stated that the Defendant-
Appellant was discovered in Mexico sometime after October of 2008 when he was extradited

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to Tennessee. Special Agent Ferguson described several pieces of evidence that were found
in the victim’s car in Texas. These items included a spent shell casing that was fired from
a handgun. The shell casing had the marking of a nine millimeter Luger.

       A medical examiner testified that the victim’s body had six gunshot wounds. These
wounds were mostly to the right side of the victim’s body and served as the cause of the
victim’s death.

       Special Agent Dan Royse of the Tennessee Bureau of Investigation testified that he
was assigned to the firearms identification unit. He examined the gun and the bullets that
were recovered as evidence. Special Agent Royse examined the spent cartridge casings that
were found outside the victim’s house and inside the victim’s car. He also examined the slug
that was found inside the victim’s body. Special Agent Royse determined that the casings
and the slug were fired from the gun found at the crime scene.

       Two witnesses testified about conversations that they had with the Defendant-
Appellant around January 25, 2004. Dennis Brewer and Mike Kennamore said the
Defendant-Appellant threatened to kill his girlfriend. The context of these conversations was
not provided.

       Officer Lisa Howard testified that she was a correction officer with the Hardeman
County Sheriff’s Department. Around September 26, 2009, the Defendant-Appellant
admitted to Officer Howard that he shot the victim. The Defendant-Appellant claimed he
accidentally shot the victim while they were fighting over a gun. The Defendant-Appellant
reported that he argued with the victim over her relationship with another man. Officer
Howard stated, “Basically, she was using him. He was in love with her and she had
another–she was involved with another man.” The Defendant-Appellant did not explain why
the gun was fired six times.

       Reba Thurmon and Alberto Vasquez were close friends of the Defendant-Appellant.
Thurmon said the Defendant-Appellant visited her house shortly before the shooting. He was
driven there by the victim, and Thurmon observed C.G. was also in the car. During the visit,
Vasquez agreed to pick up the Defendant-Appellant from the victim’s house later that
evening. When Thurmon and Vasquez drove to the victim’s house to pick up Vizcaino-
Ramos, no one was there. As Thurmon and Vasquez were about to leave, they were stopped
by the police. Thurmon said she talked to the police and they explained that the victim had
been killed.

       Vasquez corroborated Thurmon’s testimony about what transpired on the day of the
shooting. Vasquez believed the Defendant-Appellant was staying with him because he was

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lonely. The Defendant-Appellant was upset that his relationship with the victim had ended
and had expressed a desire to commit suicide. Vasquez never heard the Defendant-Appellant
talk about harming another person.

        Following the proof at trial, the jury convicted Defendant-Appellant of first degree
premeditated murder. He was sentenced to life with the possibility of parole. The
Defendant-Appellant filed a motion for new trial, which was denied by the trial court. He
then filed a timely notice of appeal.

                                         ANALYSIS

        I. Admissibility of Evidence. The Defendant-Appellant claims a new trial is
warranted because the trial court failed to determine whether C.G., age eleven, was
competent to testify under Rule 603 of the Tennessee Rules of Evidence. He asserts that the
trial court did not administer “even the semblance of an oath.” The State contends the trial
court met the requirements of Rule 603, C.G. adequately affirmed that he would testify
truthfully, and that any error in the administration of the oath was harmless. Upon review,
we conclude the requirements of Rule 603 were met.

        All witnesses are presumed competent unless otherwise provided by the Tennessee
Rules of Evidence or by statute. See Tenn. R. Evid. 601. Rule 603 mandates that “every
witness shall be required to declare that the witness will testify truthfully by oath or
affirmation, administered in a form calculated to awaken the witness’s conscience and
impress the witness’s mind with the duty to do so.” In order to comply with Rule 603, the
trial court must have determined that the witness understood the concept of the “truth” and
agreed to testify “truthfully.” State v. Kendricks, 947 S.W.2d 875, 881 (Tenn. Crim. App.
1996). This court has defined the “pivotal issue” as the witness’s “ability to understand the
necessity of telling the truth while testifying[.]” State v. Griffis, 964 S.W.2d 577, 592 (Tenn.
Crim. App. 1997) (citing State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993)). The appellant
has the burden of showing that the trial court abused its discretion by finding that a witness
was competent to testify. Kendricks, 947 S.W.2d at 881.

       In this case, the trial court questioned C.G. as follows before the start of his testimony:

       TRIAL COURT:          [C.G.], I am going to ask you some questions here in a
                             few minutes, do you understand that?

       C.G.:                 Yes, sir.




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       TRIAL COURT:          You understand that I need you to tell the truth when you
                             answer these questions[?]

       C.G.:                 Yes, sir.

       TRIAL COURT:          Do you know the difference between telling a lie and
                             telling the truth?

       C.G.:                 Yes, sir.

       TRIAL COURT:          What’s the difference?

       C.G.:                 A lie is–it’s not telling the truth.

       TRIAL COURT:          Okay. A lie is something that didn’t happen. Is that
                             what you’re telling me?

       C.G.:                 Um-hmmm.

       TRIAL COURT:          But the truth is something that you–

       C.G.:                 Did happen.

       TRIAL COURT:          Okay. And you promise to tell the truth today?

       C.G.:                 Yes, sir.

The trial court then asked whether anyone had an issue with whether C.G. was competent to
testify. Defense counsel responded, “No, sir.”

         Upon review, the trial court did not abuse its discretion by finding that C.G. was
competent to testify. As a preliminary matter, we note that defense counsel failed to raise a
timely objection to this issue before C.G. testified. See Tenn. R. App. P. 36(a) (“Nothing in
this rule shall be construed as requiring relief be granted to a party responsible for an error
or who failed to take whatever action was reasonably available to prevent or nullify the
harmful effect of an error.”). Defense counsel chose not to contest this issue when the trial
court explicitly provided the opportunity to do so. As a result, this issue is waived. Waiver
notwithstanding, the transcript shows that the trial court complied with Rule 603. C.G. did
not take an oath before testifying. He did, however, affirm that he understood his obligation
to tell the truth. C.G. conveyed that he knew the difference between the truth and a lie. He

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promised to tell the truth at trial. The Defendant-Appellant has not shown that C.G.’s
testimony was inadmissible under Rule 603. Accordingly, he is not entitled to relief on this
issue.

       II. Sufficiency of the Evidence. The Defendant-Appellant claims the evidence did
not support his conviction for first degree premeditated murder. He argues that he should
have been convicted of a lesser-included offense because he lacked the required mental state.
In response, the State contends sufficient evidence was presented that the Defendant-
Appellant committed first degree premeditated murder. The State argues that premeditation
was shown by the manner of the killing, the Defendant-Appellant’s prior threats to kill the
victim, and his actions after the shooting. Upon review, we conclude the evidence was
sufficient to support the Defendant-Appellant’s conviction.

        The State, on appeal, is entitled to the strongest legitimate view of the evidence and
all reasonable inferences which may be drawn from that evidence. State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997). When a defendant challenges the sufficiency of the evidence,
this court must consider “whether, after reviewing 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, 99 S. Ct. 2781,
2789 (1979). Similarly, Rule 13(e) of the Tennessee Rules of Appellate Procedure states,
“Findings of guilt in criminal actions whether by the trial court or jury shall be set aside if
the evidence is insufficient to support a finding by the trier of fact of guilt beyond a
reasonable doubt.” The requirement that guilt be found beyond a reasonable doubt is
applicable in a case 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) and Farmer v. State, 343 S.W.2d 895, 897
(Tenn. 1961)). The Tennessee Supreme Court has adopted the United States Supreme Court
standard that direct and circumstantial evidence should be treated the same when reviewing
the sufficiency of the evidence. See State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011).
The trier of fact must evaluate the credibility of the witnesses, determine the weight given
to witnesses’ testimony, and must reconcile all conflicts in the evidence. State v. Odom, 928
S.W.2d 18, 23 (Tenn. 1996).

        When reviewing issues regarding the sufficiency of the evidence, this court shall not
“reweigh or reevaluate the evidence.” State v. Philpott, 882 S.W.2d 394, 398 (Tenn. Crim.
App. 1994) (citing State v. Cabbage, 571 S.W.2d 832, 836 (Tenn. 1978), superseded by
statute on other grounds as stated in State v. Barone, 852 S.W.2d 216, 218 (Tenn. 1993)).
This court has often stated that “[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.” Bland, 958 S.W.2d at 659 (citation omitted). A guilty verdict also

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“removes the presumption of innocence and replaces it with a presumption of guilt, and the
defendant has the burden of illustrating why the evidence is insufficient to support the jury’s
verdict.” Id. (citation omitted).

        Tennessee Code Annotated section 39-13-202(a)(1) defines first degree murder as the
“premeditated and intentional killing of another.” Premeditation is defined, under subsection
(d), 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.

T.C.A. § 39-13-202(d). A person’s actions are “intentional” if it is the person’s “conscious
objective or desire to . . . cause the result.” T.C.A. § 39-11-106(a)(18).

        The Tennessee Supreme Court has stated that “premeditation may be established by
any evidence from which a rational trier of fact may infer that the killing was done ‘after the
exercise of reflection and judgment’ as required by Tennessee Code Annotated section
39-13-202(d).” State v. Davidson, 121 S.W.3d 600, 615 (Tenn. 2003). The Court identified
the following factors as supporting a finding of premeditation:

       The use of a deadly weapon upon an unarmed victim; the particular cruelty of
       a killing; the defendant’s threats or declarations of intent to kill; the
       defendant’s procurement of a weapon; any preparations to conceal the crime
       undertaken before the crime is committed; destruction or secretion of evidence
       of the killing; and a defendant’s calmness immediately after a killing.

Id. (citing Bland, 958 S.W.2d at 660). These factors, however, are not exhaustive. Id. The
trier of fact may also consider evidence of the defendant’s motive and the nature of the
killing. State v. Nesbit, 978 S.W.2d 872, 898 (Tenn. 1998).

        We are compelled to observe the extent of defense counsel’s argument in support of
this issue. It is confined to the following sentence: “Mr. Vizcaino-Ramos asserts that, in light
of his mental state, it would be impossible for him to form the mental state necessary to
commit first degree murder.” The brief does not explain what is meant by the phrase “in

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light of his mental state.” It is equally unclear how his mental state made it “impossible” to
commit premeditated murder. This issue is waived because it was not properly supported by
argument. See Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported by argument,
citation to authorities, or appropriate references to the record will be treated as waived in this
court.”).

        Waiver notwithstanding, we conclude that the evidence in this case supported the
conviction for first degree premeditated murder. C.G. testified that he was in the car when
he observed the Defendant-Appellant and the victim engaged in an argument. He recalled
that the Defendant-Appellant was the only person in the car with a gun. C.G. observed the
Defendant-Appellant shoot the victim. The Defendant-Appellant also admitted to a
correction officer that he killed the victim. The medical examiner testified that the victim’s
body had six gunshot wounds, which suggests that the shooting was intentional. The victim
was unarmed, and two witnesses testified that the Defendant-Appellant threatened to kill the
victim before the shooting. The evidence established that the Defendant-Appellant shot the
victim after the exercise of reflection and judgment. A rational juror could have found the
elements of the first degree murder beyond a reasonable doubt. Accordingly, the Defendant-
Appellant is not entitled to relief.

                                       CONCLUSION

       Based on the foregoing, the judgment of the trial court is affirmed.




                                                     ___________________________________
                                                     CAMILLE R. McMULLEN, JUDGE




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