                                                                                         07/27/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs May 5, 2020

               STATE OF TENNESSEE v. JAMARCUS MILLER

                 Appeal from the Criminal Court for Shelby County
                  No. 18-05869       J. Robert Carter, Jr., Judge
                     ___________________________________

                           No. W2019-01701-CCA-R3-CD
                       ___________________________________


Defendant, Jamarcus Miller, was indicted by a Shelby County grand jury for first-degree
premeditated murder (Count 1) and first-degree felony murder for a killing in the
perpetration of attempted robbery (Count 2). A jury convicted Defendant of the lesser-
included offense of second-degree murder in Count 1, and convicted Defendant as
charged in Count 2. On appeal, Defendant argues the evidence is insufficient to support
his conviction in Count 2. Having reviewed the entire record and the briefs of the parties,
we affirm the judgments of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

THOMAS T. WOODALL, J., delivered the opinion of the court, in which ALAN E. GLENN,
and D. KELLY THOMAS, JR., JJ., joined.

Phyllis L. Aluko, District Public Defender, and Tony N. Brayton, Assistant Public
Defender (on appeal); and Nick Cloud and Tom Williams, Assistant Public Defenders (at
trial) for the appellant, Jamarcus Miller.

Herbert H. Slatery III, Attorney General and Reporter; Katherine K. Decker, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Chris Lareau,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                                       Background

      On January 6, 2018, Defendant shot the victim, Nicholas Brunetti, at the Cove
Apartments in Memphis. On January 30, 2018, Defendant was arrested and given his
Miranda rights. Defendant waived his right to counsel and provided a written statement
to police. A grand jury indicted Defendant of first-degree, premeditated murder in Count
1, and first-degree felony murder for a killing in perpetration of attempted robbery in
Count 2.

                                    Evidence at Trial

        The night the victim was shot, the victim drove to the Cove apartment complex in
Memphis at about 10:30 p.m. Katlynn Nance thought she heard gunshots and told her
boyfriend, Nicholas Benson. Mr. Benson looked out the window and saw nothing. A
few minutes later, Ms. Nance and Mr. Benson were alerted by a neighbor that their
friend, the victim, had been shot.

       Ms. Nance and Mr. Benson left their apartment and found the victim stumbling
through the parking lot. Ms. Nance assisted the victim and lay him down on the ground.
Mr. Benson knew that the victim carried marijuana in a backpack. Mr. Benson went to
the victim’s vehicle and retrieved the backpack. Mr. Benson did not realize that he was
holding the backpack upside down and the contents of the bag spilled into the parking lot.
Mr. Benson took what he believed to be an empty backpack to his apartment.

       Tenille Smith, an apartment resident, also heard the gunshots. She saw the victim
stumble from his vehicle. Ms. Smith saw another vehicle, later determined to belong to
Kaci Calderon, Defendant’s co-defendant, leave the parking lot at a high rate of speed.
Ms. Smith witnessed Mr. Benson retrieve the backpack from the victim’s vehicle after
the shooting.

       Once the police arrived at the scene, Ms. Nance and Mr. Benson were separated
and taken to the police station to give their statements. Ms. Nance knew Ms. Calderon,
but did not know Defendant, although she had seen photos of Defendant on Ms.
Calderon’s social media.

       The police recovered 231.1 grams of marijuana from the parking lot that had
spilled out of the victim’s backpack. Bullet casings and an unspent round were recovered
from the victim’s vehicle. Police recovered $1025 from the victim.

       A surveillance video from the apartment complex showed that Ms. Calderon,
Defendant, and the victim each arrived in separate vehicles. Ms. Calderon got into the
victim’s vehicle and sat in the front passenger seat. After a few minutes, Ms. Calderon
exited the vehicle and the victim left. The victim returned a few minutes later.
Defendant then “creeped up” behind the passenger side of the victim’s vehicle. The
victim was shot, put his vehicle in reverse and crashed into a nearby fence. Ms. Calderon
and Defendant each left in their respective vehicles without turning on their headlights.
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        Defendant was arrested on January 30, 2018. After being advised of his Miranda
rights, Defendant provided police with a formal written statement. Defendant admitted
that he shot the victim. Defendant did not know the victim, but Ms. Calderon did. She
“set the whole thing up.” Ms. Calderon let Defendant know that she was going to
purchase some marijuana from the victim, so Defendant went with her to purchase some
as well. While Ms. Calderon was in the vehicle with the victim, she learned that the
victim had more marijuana and cash with him than expected. In his statement, Defendant
stated that:

      The intention was to go buy two ounces of bud. [Ms. Calderon] got in the
      truck with [the victim]. [Defendant didn’t] know what they talked about.
      [The victim] left to go to the store to get a rillo to smoke. [Ms. Calderon]
      called [Defendant] and told [Defendant] [the victim] had a whole lot more
      than what he was supposed to. [Ms. Calderon] also said [the victim] had a
      lot of money and a gun in the car. Basically it was up to [Defendant]
      whether to let [Ms. Calderon] make a purchase or to go take everything.

Defendant “walked up to [the victim’s] car and [the victim] saw [Defendant’s] gun.
When [Defendant] got in the door way, [Defendant] put the gun in the car and [the
victim] lunged at me and [Defendant] fired.” Defendant’s statement also provided that
the victim and Defendant “tussled for about five seconds over [Defendant’s] gun.
[Defendant] squeezed the trigger and the gun went off. [Defendant] shot one or two more
times as [Defendant] was running away.”

       Defendant stated that he never had the intention to rob the victim. He only
intended to buy marijuana from the victim. Defendant testified at trial that he believed
that the victim was reaching for a gun. Defendant testified that he carried a gun for
personal protection. His gun stuck out of his jacket pocket and the victim must have seen
it. The victim pushed Defendant away from the door and a “bit of tug-of-war” occurred
with the gun. Defendant fired a shot and hit the victim in the hand. Defendant’s gun
jammed, he cleared the chamber, and proceeded to fire more shots. Defendant saw the
victim reach under his seat and believed the victim was reaching for a gun. Defendant
claimed that the words in his written statement were his words but “[n]ot in the correct
order.” Defendant claimed that he did not read his statement closely because he was
arrested at noon on January 30, 2018, and he reviewed the statement at 3:30 a.m. the
following morning. On cross examination, Defendant admitted that he corrected a
misspelled word in his written statement.

      A jury found Defendant guilty of the lesser-included offense of second degree
murder in Count 1 and guilty as charged in Count 2. Defendant filed a motion for a
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judgment of acquittal or motion for new trial. The trial court denied the motions. It is
from this denial that Defendant now appeals.

                                         Analysis

       On appeal, Defendant argues that the evidence is insufficient to justify a rational
trier of fact in finding beyond a reasonable doubt that Defendant is guilty of felony
murder. The State argues that the evidence is sufficient to support Defendant’s
conviction for felony murder in perpetration of attempted robbery. We agree with the
State.

        “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)). “Appellate courts evaluating the sufficiency of the convicting evidence must
determine ‘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. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see Tenn. R. App. P. 13(e).
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)).

       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, the inferences to be
drawn from this evidence, and the extent to which the circumstances are consistent with
guilt and inconsistent with innocence. 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 “neither re-weighs the evidence nor substitutes its inferences for those drawn
by the jury.” Wagner, 382 S.W.3d at 297 (citing State v. Bland, 958 S.W.2d 651, 659
(Tenn. 1997)).
                                           -4-
        In order to establish the elements of felony murder, the State is required to prove
“[a] killing of another committed in the perpetration of or attempt to perpetrate any . . .
robbery.” T.C.A. § 39-13-202(a)(2). “No culpable mental state is required . . . except the
intent to commit the enumerated offense or acts.” T.C.A. § 39-13-202(b). Robbery is the
“intentional or knowing theft of property from the person of another by violence or
putting the person in fear.” T.C.A. § 39-13-401(a). “A person commits theft of property
if, with intent to deprive the owner of property, the person knowingly obtains or exercises
control over the property without the owner’s effective consent.” T.C.A. § 39-14-103.
As pertinent here, criminal attempt requires proof that a person “[a]cts with intent to
complete a course of action or cause a result that would constitute the offense, under the
circumstances surrounding the conduct as the person believes them to be, and the conduct
constitutes a substantial step toward the commission of the offense.” T.C.A. § 39-12-
101(a)(3). Proof of the intention to commit the underlying felony and at what point it
existed is a question of fact to be decided by the jury after consideration of all the facts
and circumstances. State v. Buggs, 995 S.W.2d 102, 107 (Tenn. 1999).

       Here, the evidence is sufficient to establish that Defendant killed the victim in the
perpetration of attempted robbery. Initially, Defendant arrived with Ms. Calderon to
purchase marijuana. However, according to Defendant’s written statement, Ms. Calderon
called him and told him that the victim had more marijuana and cash than expected. Ms.
Calderon left it up to Defendant to “let [Ms. Calderon] make a purchase or to go take
everything.” Surveillance video shows Defendant “creeping up” behind the passenger
side of the victim’s vehicle. As well, according to Defendant’s statement, he put his gun
inside the victim’s car and a “tug-of-war” ensued. Defendant also admitted to pulling the
trigger and shooting the victim, even having to clear a jam in the gun at one point.
Although Defendant testified at trial that he did not intend to rob the victim, his written
statement and actions during the crime strongly indicate otherwise. The jury is free to
review the evidence provided and resolve any conflicts. Campbell, 245 S.W.3d at 335.
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. This court will not
reweigh the evidence or substitute inferences drawn by the jury. Wagner, 382 S.W.3d at
297. Accordingly, Defendant is not entitled to relief.


                                   ____________________________________________
                                   THOMAS T. WOODALL, JUDGE




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