          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT KNOXVILLE            FILED
                           OCTOBER SESSION, 1998         March 23, 1999

                                                       Cecil Crowson, Jr.
                                                       Appellate C ourt Clerk

STATE OF TENNESSEE,                )   C.C.A. NO. 03C01-9711-CR-00520
                                   )
            Appellee,              )
                                   )   McMINN COUNTY
V.                                 )
                                   )
                                   )   HON. R. STEVEN BEBB, JUDGE
JOH NNY MAR TIN,                   )
                                   )
            Appe llant.            )   (SECOND DEGREE MURDER)



FOR THE APPELLANT:                     FOR THE APPELLEE:

CHARLES M. CORN                        JOHN KNOX WALKUP
District Public Defender               Attorney General & Reporter

WILLIAM C. DONALDSON                   ELIZABETH B. MARNEY
Assistant Public Defender              Assistant Attorney General
10th Ju dicial District                2nd Floor, Cordell Hull Building
110 ½ Washington Avenue NE             425 Fifth Avenue North
Athens, TN 37303                       Nashville, TN 37243

GERALD L. GULLEY, JR.                  JERRY N. ESTES
Attorney at Law                        District Attorney General
P.O. Box 1708                          10th Judicial District
Knoxville, TN 37901-1708               130 Washington Avenue NE
(On App eal Only)                      P.O. Box 647
                                       Athens, TN 37371-0647




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                    OPINION

       The Defendant, Johnny Martin, appeals as of right his conviction for second

degree murder following a jury trial in the McMinn County Criminal Court. Defendant

was found guilty on January 29, 1985. He was subsequently sentenced to serve

thirty (30) years as a Range I Standard Offender on March 1, 1985. He also filed a

Motion for New Trial on that same date. For reasons totally unexplained in the

record, the trial court did not enter an Order denying the Motion for New Trial u ntil

June 3, 199 7. The hearin g on th e Mot ion for N ew T rial is not transcribed in the

record. Howe ver, the trial co urt’s Order indica tes the motio n was not he ard un til

Novem ber 4, 19 96.



       At the co nclus ion of th e sen tencin g hearing, the trial court asked defense

counsel if he was ready to argue the Motion for New Trial, to which defense counsel

responded, “[n]ot at this time.” After the Order was entered denying the Motion for

New Trial, the co urt appo inted the p ublic defe nder on Augus t 15, 1997 , to represent

Defendant on appeal of his conviction. On November 14, 1997, the trial court

entered a second Order denying the Motion for New Trial. This Order instructed the

public defender to file a Notice of Appeal within thirty (30) days. The public defender

filed a Notice of Appeal on November 18, 1997. The seco nd Order o f the trial court

denying the Motion for New Trial is of no effect. See gene rally State v. Pendergrass,

937 S.W.2d 834 (Tenn. 199 6). More than thirty (30) d ays had elapsed between the

entry date of the first Order denying the Motion for New Trial and the date the Notice

of Appeal was filed. Therefore, the Notice of Appeal was untimely. However, in the

interest of justice , we wa ive the re quirem ent of a Notice of App eal be ing filed within



                                            -2-
thirty (30) days of an Order entered denying a Motio n for N ew T rial, and we will

address the issues Defendant has presented. Defendant sets fo rth thre e issue s in

his Motion for New Trial, two of which, in essence, challenge the sufficiency of the

evidence to support the conv iction. The third issue asserts that the trial court erred

in its charge to the jury concerning aiding and abetting.            Defendant has also

presented two (2) additio nal issu es in his brief on a ppea l which were n ot raise d in

the Motion for New Trial. Although these issues shou ld be d eem ed wa ived, we will

again, in the intere st of justice, address those issues on the merits. The first one

challenges the jury instructions on malice and the second challenges the

admis sibility of certain testimon y admitted at trial. After a careful review of the entire

record, w e affirm the judgm ent of the tria l court.



       On November 24, 1984, betwe en 5:3 0 and 6:00 p .m., D efend ant an d his

brother Danny Martin went to Wayne’s Package Store which was owned by Hugh

“Skunk” Torbett, the victim. Diane Pierce, an employee of the store, sold both

Defendant and his brother a bottle of beer that evening, and each man also paid

Pierce a two dollar cover charge. Ms. Pierce testified that Defendant appeared

drunk because he was staggering and was very “glassy-eyed.” She also testified

that he had a “bulge ” in the front of his pants that looked like it might have been a

gun. Howeve r, she said she wasn’t positive it was a gun. After about fifteen minutes

in the store, Ms. Pierce approached Defendant and told him that he wou ld have to

leave because Defendant ha d been ba rred for brawling a few months e arlier.

Defendant and his brother then purchased a six pack of beer to go and left the

establish ment w ith Sand y We lls and Kim Harris.




                                            -3-
       Sandy Wells testified that the four of them left Wayne’s Package Store to go

smoke marijuana.       S he said that they d rove to the 411 Pa ckage Sto re where

Defendant purchased more beer. She also said, “I could tell they [Defendant and

his brother] had been drinking. I wouldn’t say that they were sloppy drunk but they

were intoxicated.” Ms. Wells later told Defendant and his brother that she wanted

to go back to Wayne’s Package Store because she had a date. According to Ms.

Wells, Defendant said, “[t]here’s going to be trouble. I know the re will be trou ble.”

Ms. We lls testified that she did not se e a weapo n on either De fendant or his bro ther,

nor did sh e see a “bulge” u nder D efenda nt’s pants . She said that the four of them

were gone from Wayne’s Package S tore a total of about thirty minutes.



       When they returned to Wayne’s Package Store, Ms. Wells met her boyfriend

outside and the two of them went inside to get a beer. After they had been inside

a few minutes, Ms. Wells saw Defendant and his brother come inside. As Defendant

entered the bar, the owner/victim came over and told him that he would have to

leave because he had been barred. While the victim and Defendant were talking,

the victim put a hand on each of Defendant’s shoulders and backed him towards the

door. Danny Martin was following them. As the men approached the door, the

victim reached out to open it and Defendant, Danny, and the victim all fell down.

Defendant fell straight back and the victim fell partia lly to the le ft of him and p artially

on top of h im. Da nny fell to the floo r on his hands and knees. Ms. Wells, along w ith

several other witnesses, testified that she heard a gunshot right as the m en hit the

ground, but no one saw either Defendant or Danny with a gun at that time. The

victim rolled awa y from D efenda nt, got up, a nd ran o utside the building w ith

Defendant and Danny following behind him. Witn esses s aw De fendan t with a gun

in the parking lot three seconds after the shooting. Although one witness later saw

                                             -4-
Danny Martin shoot at the victim as he ran, expert testimony showed that the victim

was wo unded and killed b y one clos e-range shot.



        Diana Konkoly, a criminalist at the Tennessee Bureau of Investigation,

testified that she analyzed swabs from the hands of Defendant and his brother. She

testified that the results of the an alysis led her to believe that Defenda nt could have

fired or handled a gun that e vening. The results of the analysis o f the swab from

Danny Martin’s hands were inconclusive.          Ms. Konkoly also testified that the

maxim um dis tance fro m whic h the gu n was fired was thre e feet.



        Dr. Bill Foree performed the autopsy on the victim. He testified that there was

only one g unsh ot wou nd on the victim and that the wound was created by the bullet

entering at an upw ard ang le. He also said that the wound was a “close gunshot

wound ,” which he described as one caused by a shot being fired from three feet or

less.



        Detective Gary Robbins testified that the weapon used to kill the victim was

never found.



                            I. Sufficiency of the Evidence



        In the first issue, De fendan t argues that the evid ence w as insufficie nt to

support a jury verdict of second degree murder. Specifically, he argues that the

State failed to prove that he committed the murder with malice.




                                           -5-
      When an accused challenges the sufficiency of the convicting evidence, the

standard is whether, after reviewing the evidence in the light most favorable to the

prosection, any rational trier of fact c ould have found the essential elements of the

crime beyond a reason able do ubt. Jackson v. Virginia , 443 U.S. 30 7, 319 (1979 ).

This stand ard is a pplica ble to fin dings of guilt predicated upon direct evidence,

circumstantial evidenc e or a co mbina tion of direct and circumstantial evidence.

State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). On appeal, the

State is entitled to the strongest legitimate view of the evidence and all inferences

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 in this court of illustrating why the

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

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

(Tenn. 19 73).



       Questions conce rning the credibility of the witne sses, the weight an d 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 fact, not 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 accredits the State’s witnesses and resolve s all conflicts

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



      Moreover, a criminal offense may be established exclusively by circumstantial

evidence. Duch ac v. State , 505 S.W.2d 237 (Tenn. 1973); State v. Jones, 901

S.W.2d 393, 39 6 (Ten n. Crim. A pp. 199 5); State v. Lequire , 634 S.W.2d 608 (Tenn.

                                            -6-
Crim. App. 1981 ). However, before an accused may be convicted of a criminal

offense based upon circumstantial evidence alone, the facts and circumstances

"must be so strong and cogent as to exclude beyond a reasona ble doubt eve ry other

reaso nable hypothe sis save g uilt of the defe ndant." State v. Crawford, 225 Tenn.

478, 470 S.W .2d 610 (1971); Jones, 901 S.W .2d at 396 . In other words, "[a] web of

guilt must be woven around the defendant from which he cannot escape and from

which facts and circumstances the jury could draw no other reasonable inference

save the guilt of the de fendan t beyond a reaso nable d oubt." Crawford , 470 S.W.2d

at 613; State v. McAfee, 737 S.W .2d 304 , 306 (T enn. C rim. App . 1987).



      At the time of the offense, second degree murder was defined as a malicious

killing. See Tenn . Code Ann. § 39-2-211 (repealed 1989). Defendant challenges

the sufficiency of the evidenc e as to the malice requirement. However, malice may

be expressed or implied.        Malice may be inferred from the circumstances

surrounding the killing. See State v. Gilbert, 612 S.W.2d 188,190 (Tenn. Crim. App.

1980), perm. to appeal denied (Tenn . 1981); Wilso n v. State, 574 S.W.2d 52, 55

(Tenn. Crim. App.), perm. to appeal denied (Tenn. 1978). Malice may also be

implied from the use of a dead ly weapo n resulting in death. Wilson, 574 S.W.2d at

55. Wh ether th e facts estab lish suc h ma lignity as to establish second degree

murder is a factual question within the jury’s provinc e. State v. Johnson, 541 S.W.2d

417 (T enn. 19 76).



      W e conclude that the record contains sufficient evidence for a finding that

Defendant malic iously k illed the victim. D efend ant ha d bee n ban ned fro m W ayne’s

Package Store three months earlier for brawling. When Defendant went to the

establishment on the day of the murder, he was told by Ms. Pierce that he was not

                                          -7-
allowed there a nd he was a sked to leave . After lea ving the store fo r appro ximate ly

thirty minutes, during which time he drank beer and possibly smoked marijuana, he

told Ms. W ells that “[t]here ’s going to be trouble. I know there will be trouble.” He

then went back inside the establishment where he saw the victim. Th e victim

approached Defendant and asked him to leave. Defendant resisted and argued with

the victim abo ut leaving. While the victim was attempting to remove Defendant from

the premis es, the fata l shot was fired. According to witnesses, Defendant had a gun

in his hand just seconds after the shooting . Residue from firing or handling a gun

was later found on his hands. The jury could have inferred from the evidence

presented that Defendant acted with malice in killing the victim. This is sue is without

merit.



                                   II. Jury Instructions



A. Aiding and Abetting Instruction

         Defendant contends that the trial judge erred by instructing the jury on aiding

and abetting where Defendant was the only criminal actor. He argues that the

instruction confused the jury and prejudiced him.



         At trial, defense counsel’s cross-examination of witnesses elicited responses

suggesting that Defendant was not seen with a gun before the killing. Mrs. Pierce

said that she s aw only a bulge in D efenda nt’s waistb and, no t necessarily a gun.

Mrs. Wells testified that she never saw a bulge under Defendant’s belt. The defense

elicited testimony that Defendant’s right hand was not visible during the scuffle and

that no one actually saw Defendant shoot the victim when the two of them fell to the

floor. One witnes s even testified that he saw D efend ant’s brother, Danny Martin,

                                            -8-
fire a shot at the victim in the parking lot from a distance o f approxim ately 30 fee t.

Howeve r, as Defendant points out, the scientific evidence presented at trial

established that the fatal shot to the victim was fired from a distance of three feet or

less.



        The trial judge did state to counsel that “[a]n aiding and abetting charge might

be confusing to a jury, but, gentlemen, I believe an aiding and abetting charge

belongs there.”     Nonetheless, the defense theory that there was not enough

evidence to sho w that D efend ant wa s the o ne wh o actu ally killed the victim

warranted an aiding-and-abetting charge. However, Defendant has failed to show

how the aiding-and-abetting instruction either confused the jury or prejudiced him.

This issu e is withou t merit.




B. Presumption of Malice

        Defendant contends that it was a violation of his constitutional rights for the

trial court to charge the jury that malice was presumed in a homicide and that the

use of a deadly weapon perm itted a pre sump tion that the perpetra tor acted with

malice. See Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39

(1979). Specifically, Defendant claims that the evidence of malice is weak in the

case sub judice, and this issue sh ould therefore be controlled by State v. Martin , 702

S.W .2d 560 (Tenn . 1985).



        As Defendant concedes, he did not challenge the jury instruction on the basis

of malice either at trial or in his motion for a new trial. The record shows that the

only objection Defendant made pertaining to the instructions was based on the

                                           -9-
aiding and abetting charge. Similarly, the motion for new trial did not challenge the

jury instruction on malice. Accordingly, Defendant has waived the challenge to the

jury instruction on m alice. Tenn. R . App. P. 3(e) an d 36(a).



      Howeve r, even addressed on the merits, Defendant’s claim that the

instructions constituted reversible error is without merit. The pertinent portions of the

instructions complained of are as follows:

             All homicides are presumed to be malicious in the
             absence of evidence which would rebut the implied
             presumption, but this do es not sh ift the burde n of proo f.
             The [S]tate still must prove each element beyond a
             reaso nable doubt. Thu s, if the [S]tate has proven beyond
             a reaso nable doub t that a k illing ha s occu rred, th en it is
             presumed that the killing wa s don e ma liciously , but this
             presumption may be rebutted by either direct or
             circumstantial evidence, or by both, regardless of whether
             the same be offere d by the d efenda nt, or exists in the
             evidenc e of the [S ]tate.


             Likewise, if a dea dly wea pon is handled in a manner so as
             to make the killing a natural or probable result of such
             condu ct, then there is raised a presumption of malice
             sufficient to support a conviction of murder in the second
             degree unless it is rebutted by other facts and
             circumstances.


      The United States Supreme Court held in Sandstrom v. Montana that due

process is violate d by ins tructing a jury as to the e videntia ry pres ump tions to

establish elements of a crime in such a manner that relieves the State of its burden

of proof. 442 U.S. at 523-24, 99 S. Ct. 2450, 2458-59, 61 L. Ed. 2d 3 9. Howeve r,

violations of the Sandstrom rule are su bject to ha rmless error ana lysis. Rose v.

Clark, 478 U.S . 570, 580 , 106 S. C t. 3101, 31 07, 92 L . Ed. 2d 4 60 (198 6).




                                          -10-
      In State v. Bolin , a decision by our supreme court approximately four months

prior to the De fendan t’s trial, the cou rt ruled that the word “inference” should be

substituted for the word “presumption” in all instructions except the one on the

presumption of innoce nce. 678 S.W.2d 40, 44-45 (T enn. 1984 ). However, the co urt

in Bolin also held that the jury instruction in that case could not have been

interpreted by a reasonable jury as mandatory or as shifting the burden of

persuasion to the defendant on the element of malice. Id. at 44. The instructions

in the case sub judice, as in Bolin, clearly and repeatedly emphasized that the

presumption of innocence remained with the Defendant and that the burden of

provin g his g uilt beyo nd a re ason able doubt remained on the State throughout the

trial. Specifically, the trial court explained:


      The law presumes that the defendant is innocent of the charges against
      him. This presumption remains with the defendant throughout every
      stage of the trial, and it is not overcome unless from a ll the evid ence in
      the case you are convinced beyond a reasonable doubt that the
      defendan t is guilty.

       The State has the burden of proving the guilt of the defendant beyond
       a reasonable doubt, and this burden never shifts but remains on the
       State through the trial of the case. The defendant is not require d to
       prove his innocen ce.



W e find that the court made it quite clear that there was no shifting of any burden.

When considering the propriety of such jury instructions, the United States Supreme

Court has held that “a single instruction to a jury may not be judged in artificial

isolation, but must be viewed in the con text of the overall charge .”          Cupp v.

Naughten, 414 U.S. 14 1, 146-47, 94 S. Ct. 396, 400 , 38 L. Ed. 2d 36 8 (1973).



      The court in Bolin also h eld that any error in the instruc tions w as ha rmles s in

that case given the overwhelming evidence against the de fendan t. Bolin, 678

                                           -11-
S.W.2d at 45.    The co urt instructed that the en tire record should b e exam ined to

determine whether the verdict was (or could have been) reached witho ut resort to

the “pres umptio n” of ma lice. Id. at 45. Turning to the facts in the case sub judice,

on the night of the shooting, Defendant was asked to leave Wa yne’s Packa ge Store

from which he had previously been barred for brawling. He left and then drove

around in a car during which time he drank beer and smo ked m arijuan a. W hile in

the car, he told the other passengers that if they went back to Wayne’s Package

Store then there was “going to be trouble.”            Up on his return to W ayne’s

appro ximate ly thirty minute s later, he w as aske d to leave by the owner/victim.

Mom ents later a gun went off as Defenda nt and the victim fell to the floor which

proved later to be the fatal shot to the victim. Although no witnesses actually saw

the gun in D efenda nt’s hand at the time it went off, witn esses did testify that they

saw a gun in Defen dant’s ha nd three secon d after the s hooting . Defendant then fled

from the establish ment.



      If facts inde pende ntly establish the elem ent of m alice, “presumptive”

instructions do not ha ve a harm ful effect up on the fac t-finding pro cess. See Adkins

v. State, 911 S.W.2d 334, 346 (Tenn. Crim. App. 1994), perm. to appeal dismissed

(Tenn. 1995). We think most reasonable jurors would readily conclude from these

facts that Defe ndant a cted with m alice. See Bolin, 678 S.W.2d at 45. The existence

of malice was established by proof of Defendant’s own actions, not by resort to a

presumption. Ther efore, th e instru ction w as ha rmles s beyo nd a re ason able doubt.



      W e note that the instructions in the case before us differ greatly from the ones

in Martin , 702 S.W.2d 560. In that case, the trial court did not explain that rebuttal

proof could be esta blished by eviden ce from the S tate or from th e acc used , and it

                                          -12-
did not sufficien tly define m alice. Id. at 564. C onverse ly, in the present case, the

court offered three paragraphs on malice which were far more specific and detailed

than those found in Martin . Moreov er, the instructions specifically explained that

rebuttal could be established by evidence from either the State or from the accused,

contrary to Martin . Even though the trial judge in the case sub judice charged that

“[a]ll homicides are presumed to be malicious in the absence of evidence which

would rebut the implied presumption,” the court also immediately went on to say “but

this presumption may be rebutted by either direct or circumstantial evidence, or by

both, regardless of whether the same be offered by the defendant, or exists in the

evidence of the [S]tate .” Finally, the fac ts of Martin did not sufficiently establish

malice a s we ha ve previou sly found th ey did he re. This iss ue is witho ut merit.



                        III. Admissibility of Expert Testimony



      Defendant argues in this issue that the trial court erred by allowing the exp ert

testimony of Ms. Konk oly because her testimony d id not substan tially assist the jury.



      Defendant did not ob ject to Kon koly’s testim ony at trial and has therefore

waived the issue of whether her testimony was proper. T enn. R . App. P. 3 6(a); State

v. Killebrew, 760 S.W.2d 228, 235 (Tenn. Crim. App. 1988). Also, Defe ndan t did not

raise the issue in his motion for a new trial. Failure to include an issue in the motion

for a new trial results in th e waiver o f that issue . Tenn. R . App. P. 3 (e); State v.

Keel, 882 S.W.2d 410, 416 (Tenn. Crim. App. 1994). Furthermore, even after

reviewing Ms. K onko ly’s testim ony, w e do n ot belie ve the tr ial judg e abu sed h is

discretion in allowing the expert tes timony. State v. Caughron, 855 S.W.2d 526, 537

(Tenn . 1993). T his issue is without m erit.

                                          -13-
    Based on all the for egoing , we affirm th e judgm ent of the tria l court.




                                ____________________________________
                                THOMAS T. W OODALL, Judge


CONCUR:


___________________________________
GARY R. WA DE, Presiding Judge


___________________________________
DAVID H. WELLES , Judge




                                        -14-
