                                                                                                  04/13/2017




           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT JACKSON
                            Assigned on Briefs February 7, 2017

           STATE OF TENNESSEE v. MORIARCO MONTRELL LEE

                   Appeal from the Circuit Court for Madison County
                            No. 14-522 Kyle Atkins, Judge
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                             No. W2016-01391-CCA-R3-CD
                         ___________________________________

The Defendant, Moriarco Montrell Lee, and his co-defendant, Dequevion Lamar Lee,
were indicted by a Madison County Grand Jury for attempted first degree murder and
aggravated assault. Following a jury trial, the Defendant was convicted as charged, and
the trial court merged the aggravated assault conviction into the attempted first degree
murder conviction and sentenced the Defendant to twenty-two years to be served in the
Tennessee Department of Correction. On appeal, he argues that the evidence is
insufficient to sustain his convictions. Upon review, we affirm the judgments of the trial
court but remand for entry of a judgment form as to count two reflecting that the
Defendant’s aggravated assault conviction was merged with count one.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
                 and Remanded for Entry of Corrected Judgment

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and J. ROSS DYER, JJ., joined.

Susan D. Korsnes, Jackson, Tennessee, for the Defendant-Appellant, Moriarco Montrell
Lee.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant
Attorney General; Jerry Woodall, District Attorney General; and Benjamin C. Mayo,
Assistant District Attorney General, for the Appellee, State of Tennessee.

                                            OPINION

      This case concerns the shooting of the victim, Marketus Hendrix, on December
10, 2013. The Defendant and his co-defendant, Dequevion,1 were subsequently arrested
       1
         Because the defendants are family members who share the same last name, we will refer to the
co-defendant by his first name for clarity. We intend no disrespect in doing so.
and charged with attempted first degree murder and aggravated assault. Following a jury
trial, the Defendant was convicted as charged. As relevant to the issues raised by the
Defendant in this appeal, the facts presented at the May 19, 2015 trial were as follows:

         Marketus Hendrix testified that, on December 10, 2013, around 3:00 p.m., he
drove to a barber shop on Lane Avenue in Jackson, Tennessee. As he exited his car, a
person Hendrix knew only as “Yogi” said “B****, you’re about to die,” and two people
began shooting at him. Hendrix recalled that the shooters were not wearing masks and
that he immediately recognized them as “Yogi” and “D-Rich.” Hendrix stated that
“Yogi” was standing “[n]ot too far from where [Hendrix] parked,” near the stairs of the
barber shop. The second shooter, “D-Rich,” was standing behind the barber shop to the
left, in front of where Hendrix parked. Hendrix was shot in the chest, abdomen, arm, and
leg a total of fourteen times.

       Hendrix confirmed that he had marijuana in his possession when he was shot,
which he turned over to police. When officers arrived, Hendrix could not speak, but he
answered their questions by nodding, and he confirmed that he knew the shooters.
Hendrix was in the hospital for twenty-one days following the shooting and, on
December 17, 2013, he was interviewed in the Intensive Care Unit by Investigator Al
Colon. Hendrix testified that he could speak a little and was able to tell Investigator
Colon the names “D-Rich” and “Yogi” and look at photo lineups. Hendrix identified the
Defendant as “Yogi” and Dequevion, the Defendant’s brother, as “D-Rich.” Hendrix
recalled seeing a white car at the scene, but he denied seeing the Defendant in the car.

        On cross-examination, Hendrix testified that he did not remember the written
statement he gave at the hospital during Investigator Colon’s interview. In the statement,
Hendrix told officers that a person known as “Baldy” was driving the white car. Hendrix
acknowledged that he knew “Baldy” and that he had a sexual relationship with “Baldy’s”
girlfriend, Megan, while “Baldy” was in jail. Hendrix denied that he sold marijuana and
stated that the marijuana he had was for personal use. Hendrix acknowledged that the
Defendant was his cousin, but stated that he had only learned about the relation after the
shooting. Hendrix testified that he had no idea why the Defendant would shoot him and
denied that there had been any problems between them in the past. Hendrix also testified
that he had been at the barber shop earlier that day and had seen “Baldy” there.

       Jackson Police Department (“JPD”) Officer James Jay Carter responded to a call
reporting shots fired on December 10, 2013. Officer Carter testified that dispatch advised
“that they had seen several subjects getting into a white-colored vehicle and leaving
eastbound on . . . Lane Avenue.” When he arrived on the scene, Officer Carter saw
Hendrix laying on the ground beside a vehicle with multiple gunshot wounds to his chest.
Officer Carter testified that Hendrix could not speak but that he responded by nodding.
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By asking him yes or no questions, Officer Carter determined that Hendrix knew the
shooters, that there were four people involved, and that they left in a white four-door
Honda. On cross-examination, Officer Carter testified that Hendrix alerted him to four
small individually-wrapped bags of marijuana in his pocket.             Officer Carter
acknowledged that the way the marijuana was packaged could indicate that Hendrix was
selling.

       JPD Investigator Marvin Jerome Rodish, Jr. testified that he processed the crime
scene on the day of the shooting. Investigator Rodish collected ten shell casings and two
bullets. Investigator Rodish acknowledged that there was no way to know how long the
shell casings and bullets had been at the scene.

       JPD Investigator Alberto Colon testified that he was a sergeant in the Violent
Crimes Unit when he led the investigation in this case. Hendrix gave Investigator Colon
the street names of the two shooters when he was interviewed in the hospital about one
week after the shooting. Investigator Colon recalled that Hendrix did not hesitate or
appear confused or doubtful about the identification. Based on the street names,
Investigator Colon was able to identify the suspects and put together photo lineups for
Hendrix to view. Hendrix identified the Defendant and Dequevion as the shooters on
each separate photo lineup. Investigator Colon testified that he interviewed Hendrix
again before the preliminary hearing, and Hendrix told him where the second shooter had
been standing. Given this new information, Investigator Colon went back to the scene
that day to investigate further. Investigator Colon found four additional .9 millimeter
shell casings on the ground where Hendrix said the second shooter had been standing.
The discovery of the additional shell casings occurred about a month after the shooting.
Another bullet was also recovered from Hendrix’s body at the hospital and collected as
evidence.

       On cross-examination, Investigator Colon confirmed that none of the shell casings
were sent for fingerprint analysis and that the guns used in the shooting had never been
located. Investigator Colon also acknowledged that he spoke with several witnesses at
the scene but that none of the witnesses gave any valid or useful information.
Investigator Colon confirmed that Hendrix mentioned an individual named “Baldy” in his
statement and that Investigator Colon identified and interviewed “Baldy.” On redirect,
Investigator Colon confirmed that Hendrix never identified anyone other than the
Defendant and Dequevion as the shooters. Investigator Colon also stated that when he
interviewed Hendrix at the hospital, he identified the Defendant as both “Little Yogi” and
“Morico.”

      Kasia Michaud testified that she was a Special Agent Forensic Scientist employed
by the Tennessee Bureau of Investigation and assigned to the Firearms Identification
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Unit. Agent Michaud examined the shell casings and bullets in this case which included
ten .40 caliber shell casings, three bullets, and four .9 millimeter shell casings. Agent
Michaud determined that the ten .40 caliber shell casings were all fired from the same
gun and that the four .9 millimeter shell casings were all fired from a second gun. Agent
Michaud also determined that the three bullets came from the same gun, although she
could not confirm the bullets came from any of the shell casings. On cross-examination,
Agent Michaud confirmed that she could not tell how long the shell casings or bullets had
been on the ground or if they had been fired at the same time.

       After deliberation, the jury returned a verdict of guilty as to both counts. At the
July 6, 2015 sentencing hearing, the trial court merged the aggravated assault conviction
into the attempted first degree murder conviction and sentenced the Defendant as a Range
I, Standard Offender to twenty-two years in the Tennessee Department of Correction.
The Defendant filed a motion for new trial on July 7, 2015, and a hearing was held on
June 21, 2016, at which the trial court denied relief. This timely appeal follows.

                                       ANALYSIS

       The Defendant argues that the evidence was insufficient to support his convictions
for aggravated assault and attempted first degree murder. As an initial matter, although
the Defendant raises the sufficiency of his aggravated assault conviction as an issue, he
provides no argument or analysis regarding his aggravated assault conviction.
Accordingly, the issue is technically waived. See Tenn. Ct. Crim. App. R. 10(b) (“Issues
which are not supported by argument, citation to authorities, or appropriate reference to
the record will be treated as waived in this court.”). Nevertheless, upon our review, the
evidence is more than sufficient to support the aggravated assault conviction. In regard
to the attempted first degree murder, we likewise conclude that the evidence is sufficient
to support his conviction.

        “Because a verdict of guilt removes the presumption of innocence and raises a
presumption of guilt, the criminal defendant bears the burden on appeal of showing that
the evidence was legally insufficient to sustain a guilty verdict.” State v. Hanson, 279
S.W.3d 265, 275 (Tenn. 2009) (citing State v. Evans, 838 S.W.2d 185, 191 (Tenn.
1992)). When this court evaluates the sufficiency of the evidence on appeal, the State is
entitled to the strongest legitimate view of the evidence and all reasonable inferences that
may be drawn from that evidence. State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011)
(citing State v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010)). When a defendant
challenges the sufficiency of the evidence, the standard of review applied by this court is
“whether ‘any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.’” State v. Parker, 350 S.W.3d 883, 903 (Tenn. 2011)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Similarly, Rule 13(e) of the
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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 the finding by the trier of fact of guilt beyond a reasonable doubt.”

       Guilt may be found beyond a reasonable doubt where there is direct evidence,
circumstantial evidence, or a combination of the two. State v. Sutton, 166 S.W.3d 686,
691 (Tenn. 2005); State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998). 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 Hanson, 279 S.W.3d at 275). 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, and the extent to which the circumstances are consistent
with guilt and inconsistent with innocence are questions primarily for the jury. Dorantes,
331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)). When
considering the sufficiency of the evidence, this court shall not substitute its inferences
for those drawn by the trier of fact. Id.

        As relevant here, a person commits criminal attempt who, acting with the kind of
culpability otherwise required for the offense, “[a]cts with intent to cause a result that is
an element of the offense, and believes the conduct will cause the result without further
conduct on the person’s part[.]” T.C.A. § 39-12-101(a)(2). First degree murder is the
premeditated and intentional killing of another person.            Id. § 39-13-202(a)(1).
Premeditation is defined as “an act done after the exercise of reflection and judgment.”
Id. § 39-13-202(d). Premeditation requires a finding that “the intent to kill must have
been formed prior to the act itself. It is not necessary that the purpose to kill preexist in
the mind of the accused for any definite period of time.” Id. The statute also specifies
that “[t]he 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.” Id.

       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. Young, 196
S.W.3d 85, 108 (Tenn. 2006) (citing State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997));
State v. Suttles, 30 S.W.3d 252, 261 (Tenn. 2000). Factors that may support the
existence of premeditation include, but are not limited to: the use of a deadly weapon
upon an unarmed victim, the particular cruelty of the killing, the infliction of multiple
wounds, declarations by the defendant of an intent to kill, lack of provocation by the
victim, failure to aid or assist the victim, evidence of procurement of a weapon,
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preparations before the killing for concealment of the crime, calmness immediately after
the killing, and destruction and secretion of evidence of the killing. State v. Kiser, 284
S.W.3d 227, 268 (Tenn. 2009); State v. Leach, 148 S.W.3d 42, 53-54 (Tenn. 2004); State
v. Davidson, 121 S.W.3d 600, 615 (Tenn. 2003); Bland, 958 S.W.2d at 660.

        The Defendant specifically argues that the evidence is insufficient because
Hendrix’s testimony was “the only proof the State presented” and was not adequately
corroborated, particularly considering that Hendrix’s testimony “was inconsistent with
his prior written and oral statements.” At trial, Hendrix could not initially recall the
statement the Defendant made before he shot him until he was reminded of his
preliminary hearing testimony. Additionally, at trial, Hendrix did not remember who was
in the white car he saw at the scene, but he told officers in his written statement that
“Baldy” was driving the car. Officer Carter also confirmed that Hendrix told him
immediately after the shooting that he saw a white car leaving the area with four people
inside. The Defendant essentially challenges the credibility of Hendrix’s testimony at
trial and the jury’s decision to credit his testimony. Because it is within the province of
the jury to resolve issues of credibility and determine the value of the evidence presented,
we will not reevaluate issues of credibility. See Bland, 958 S.W.2d at 659. Here,
Hendrix positively identified the Defendant in a photo lineup and at trial as the individual
who shot him. He testified that he could clearly see the Defendant before he shot him,
and that he had no doubt about his identity. This testimony, alone, is sufficient to sustain
the Defendant’s conviction without additional corroboration. See State v. Strickland, 885
S.W.2d 85, 87 (Tenn. Crim. App. 1993) (“[T]he testimony of a victim, by itself, is
sufficient to support a conviction.”).

       The Defendant also appears to argue that the evidence was insufficient because the
State did not prove his motive, and because there was no “physical evidence” placing the
Defendant at the scene. Motive is not an element of the crime; therefore, the State is not
required to prove the defendant’s motive for committing the crime. See State v. Dwight
Richeson, No. 03C01-9209-CR-324, 1993 WL 188049, at *2 (Tenn. Crim. App. June 2,
1993) (holding that the State is not required to prove motive if it is not an element of the
crime). Additionally, as the Tennessee Supreme Court has held, “[c]ircumstantial
evidence alone is sufficient to support a conviction, and the circumstantial evidence need
not exclude every reasonable hypothesis except that of guilt.” State v. Hawkins, 406
S.W.3d 121, 131 (Tenn. 2013) (citing State v. Wagner, 382 S.W.3d 289, 297 (Tenn.
2012); Dorantes, 331 S.W.3d at 379-81). Here, Hendrix testified that the Defendant
confronted him while entering a barber shop and said “B****, you’re about to die,”
before shooting Hendrix. Hendrix was shot fourteen times by the Defendant and
Dequevion, who he repeatedly identified as the shooters without hesitation. Viewed in
the light most favorable to the State, a reasonable juror could have found the Defendant

                                           -6-
guilty of attempted first degree murder beyond a reasonable doubt. Accordingly, the
Defendant is not entitled to relief.

        Finally, we detect some errors in the entry of the judgment forms in this case. The
trial court noted in the title and the “Special Conditions” box of the attempted first degree
murder judgment form that the Defendant’s aggravated assault conviction, count two,
was merging with the attempted first degree murder conviction, count one; however, the
trial court did not enter a separate judgment form for the aggravated assault conviction, as
required by the Tennessee Supreme Court. See State v. Berry, 503 S.W.3d 360, 364
(Tenn. 2015) (“[W]hen two jury verdicts are merged into a single conviction, the trial
court should complete a uniform judgment document for each count.”). Therefore, we
must remand the case to the trial court for entry of a separate judgment form showing the
entry of merger as to the specified count.

                                     CONCLUSION

       We affirm the judgments of the trial court but remand the case for entry of a
corrected judgment as specified in this opinion.

                                                      ______________________________
                                                      CAMILLE R. McMULLEN, JUDGE




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