            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE            FILED
                            APRIL 1999 SESSION
                                                          June 18, 1999

                                                       Cecil W. Crowson
                                                      Appellate Court Clerk
STATE OF TENNESSEE,                 )
                                    )   C.C.A. NO. 01C01-9801-CC-00029
            Appellee,               )
                                    )    MONTGOMERY COUNTY
VS.                                 )
                                    )    HON. ROBERT W. WEDEMEYER,
JEFFERY MILLER,                     )    JUDGE
                                    )
            Appellant.              )    (First-Degree Murder)



FOR THE APPELLANT:                      FOR THE APPELLEE:


ROGER K. SMITH                          JOHN KNOX WALKUP
104 Woodmont Blvd., Suite 115           Attorney General & Reporter
Nashville, TN 37205
                                        ELIZABETH B. MARNEY
                                        Asst. Attorney General
                                        Cordell Hull Bldg., 2nd Fl.
                                        425 Fifth Ave., North
                                        Nashville, TN 37243-0493

                                        JOHN W. CARNEY
                                        District Attorney General

                                        HELEN YOUNG
                                        Asst. District Attorney General
                                        204 Franklin St., Suite 300
                                        Clarksville, TN 37040




OPINION FILED:



AFFIRMED


JOHN H. PEAY,
Judge
                                     OPINION



              The defendant was convicted by a jury of first-degree murder and

sentenced to life in prison with the possibility of parole. The defendant’s subsequent

motion for a new trial was denied by the trial court. The defendant now appeals and

contends that the evidence at trial was insufficient to sustain his conviction. After a

review of the record and applicable law, we find no merit to the defendant’s contention

and thus affirm his conviction.



              The evidence at trial established that on September 1, 1996, the defendant

shot and killed the victim, Josh Kelley. The evidence indicated that earlier that evening,

three young ladies, Tennille, Cassie, and Heather, were driving “up and down” Riverside

Drive in Clarksville, Tennessee. They visited a motel where Mike Powers, Cassie’s

boyfriend, was throwing a party. While in the motel room, Tennille saw the defendant

preparing to leave the room, at which point someone handed a gun to him. The

defendant then left the party. Shortly thereafter, the three young ladies decided to go

cruising on Riverside Drive again. They pulled in the parking lot of Page and Taylor’s

Sporting Goods Store to change drivers. As they were changing seats, a young man in

the parking lot told them to “suck [his] dick or leave.” The three young ladies left the area

and returned to the party at the motel.



              When they arrived at the motel, the ladies told Mr. Powers about the young

man’s comment. At this point, Mr. Powers and the defendant, who had returned to the

motel, went to the defendant’s car, and the defendant followed the ladies to the parking

lot of Page and Taylor’s Sporting Goods Store. According to the defendant’s second

statement to the police, upon arrival at the parking lot, the defendant told Mr. Powers to



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“get the gun from under the passenger seat.” According to at least one witness, when

Mr. Powers exited the vehicle, he had a gun in his waistband. The defendant and Mr.

Powers then approached a group of teenagers standing in the parking lot. The evidence

at trial indicated that Mr. Powers asked which of them had told his girlfriend to “suck [his]

dick.” In response, the victim stepped forward and said, “We don’t know you. We don’t

know your girlfriend. We didn’t say anything to anybody.” Mr. Powers then pulled the

gun from his waistband and pointed it at the victim. According to one witness, the

defendant told Mr. Powers to “cap [the victim].” Mr. Powers lowered the gun to his side,

at which point the defendant took the gun out of Mr. Powers’ hand. The defendant

cocked the gun, pulled the slide back, pointed the gun at the ground in front of the

victim’s feet, and fired. The defendant then raised the gun, pointed it at the victim’s

chest, and fired. After the shooting, the defendant and Mr. Powers left the scene.



               The defendant now contends that the evidence is insufficient to support his

conviction for first-degree murder. Specifically, the defendant argues that the State failed

to present proof to establish the elements of premeditation and intent.



               A defendant challenging the sufficiency of the proof has the burden of

illustrating to this Court why the evidence is insufficient to support the verdict returned by

the trier of fact in his or her case. This Court will not disturb a verdict of guilt for lack of

sufficient evidence unless the facts contained in the record and any inferences which

may be drawn from the facts are insufficient, as a matter of law, for a rational trier of fact

to find the defendant guilty beyond a reasonable doubt. State v. Tuggle, 639 S.W.2d

913, 914 (Tenn. 1982).



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



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must review the evidence in the light most favorable to the prosecution in determining

whether “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 (1979). We do not

reweigh or re-evaluate the evidence and are required to afford the State the strongest

legitimate view of the proof contained in the record as well as all reasonable and

legitimate inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d

832, 835 (Tenn. 1978). Because a verdict of guilt removes the presumption of innocence

and replaces it with a presumption of guilt, the accused has the burden of illustrating to

this Court why the evidence is insufficient to support the verdict returned by the trier of

fact. McBee v. State, 372 S.W.2d 173, 176 (Tenn. 1963); see also State v. Grace, 493

S.W.2d 474, 476 (Tenn. 1973).



              First-degree murder is the premeditated and intentional killing of another

person. T.C.A. § 39-13-202(a)(1). Premeditation is defined as “an act done after the

exercise of reflection and judgment.” T.C.A. § 39-13-202(d).

              ‘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). Premeditation is the process of thinking about a proposed killing

before engaging in the homicidal conduct. See State v. Brown, 836 S.W.2d 530, 540-41

(Tenn. 1992). The existence of premeditation is a question of fact for the jury to

determine and may be inferred from the circumstances surrounding the offense. State

v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997) (citing Brown, 836 S.W.2d at 539). There

are several circumstances that can support an inference of premeditation, including the

use of a deadly weapon upon an unarmed victim; evidence of procurement of a weapon;



                                             4
and calmness immediately after the killing. Bland, 958 S.W.2d at 660 (citing Brown, 836

S.W.2d at 541-42; State v. West, 844 S.W.2d 144, 148 (Tenn. 1992)).



              Here, the evidence taken in the light most favorable to the State indicates

that the defendant arrived at the scene of the crime with a gun in his vehicle. The

defendant told Mr. Powers to take the gun from underneath the passenger seat of the

defendant’s car before they exited the vehicle. After Mr. Powers addressed the group of

teenagers, the victim approached the defendant and Mr. Powers in a non-threatening

manner, never made any sudden moves toward them, and never threatened them in any

way. In fact, the victim never directly addressed the defendant. There was no evidence

that the victim was in possession of any weapon. Mr. Powers aimed the gun at the victim

and the defendant told Mr. Powers to “cap his ass.” When Mr. Powers did not shoot the

victim, the defendant grabbed the gun and pointed it at the ground in front of the victim’s

feet. After shooting the ground in front of the victim’s feet, the defendant raised the gun,

aimed it at the victim, and shot him in the chest. Although at trial the defendant claimed

the second shot was an accident, in his first statement to the police the defendant

admitted that he had been having homicidal thoughts prior to the shooting. After the

shooting, the defendant threw the weapon on top of a nearby building and went back to

the party in the motel room.



              Whether these facts support a finding of premeditation is a question of fact

for the jury. After hearing the testimony at trial, the jury evidently rejected the defendant’s

assertion that the second shot was accidental as is within their province. In light of the

circumstances surrounding the murder, we find the evidence was sufficient to establish

that the defendant acted after the exercise of reflection and judgment with a previously

formed intent to kill, which supports a finding of premeditation. See T.C.A. § 39-13-



                                              5
202(d).



              In addition, it is also apparent that the defendant intended to kill the victim

by the nature of his actions. The defendant stood approximately one to four feet away

from the victim and pointed a loaded gun at the victim’s chest. The defendant then pulled

the trigger. It is therefore logical to conclude that the defendant acted with the intent

necessary for first-degree murder. See State v. William Alfred Holt, Jr., No. 01C01-9704-

CC-00155, Marshall County (Tenn. Crim. App. filed March 27, 1998, at Nashville).



              The defendant contends that at the time of the offense he was high on

cocaine and therefore unable to form the necessary culpable mental state. At trial, the

defendant asserted that he ingested approximately one gram of cocaine shortly before

the shooting. However, the State presented two witnesses who were present at the party

in the motel room. Both witnesses claimed that there were no drugs or alcohol at the

party. In addition, witnesses to the shooting testified that the defendant appeared calm

and “normal” at the time of the shooting. As such, the evidence indicating that the

defendant was not under the influence of an intoxicant at the time of the shooting was

clearly sufficient for the jury to determine the issues accordingly. As it is within the

province of the jury to determine the credibility of witnesses, it was proper for the jury to

disregard the defendant’s testimony that drug ingestion negated his culpable mental

state. See State v. Howard, 926 S.W.2d 579, 584 (Tenn. Crim. App. 1996), overruled

on other grounds by State v. Williams, 977 S.W.2d 101, 106 (Tenn. 1998); see also State

v. Roy E. Keough, No. 02C01-9708-CR-00317, Shelby County (Tenn. Crim. App. filed

January 13, 1999, at Jackson). As such, this issue is without merit.



              In sum, we find the evidence sufficient to establish the elements of



                                             6
premeditation and intent. Further, the defendant’s argument that drug ingestion negated

the required mens rea is without merit. Accordingly, we affirm the defendant’s conviction

for first-degree murder.



                                                ______________________________
                                                JOHN H. PEAY, Judge



CONCUR:



______________________________
DAVID H. WELLES, Judge



______________________________
J. CURWOOD WITT, JR., Judge




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