        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                    April 1, 2003 Session

                 STATE OF TENNESSEE v. MARCUS ROGERS

                     Appeal from the Criminal Court for Shelby County
                          No. 01-00606-07    Chris Craft, Judge



                    No. W2002-01416-CCA-R3-CD - Filed July 17, 2003


The Appellant, Marcus Rogers, was convicted by a Shelby County jury of second degree murder and
two counts of attempted second degree murder. Following a sentencing hearing, the trial court
imposed an effective sentence of thirty-four years for these crimes. On appeal, he argues that the
evidence produced at trial was insufficient to support the verdicts. After review, we find the
evidence sufficient and affirm the judgments of the trial court.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and THOMAS
T. WOODA LL, J., joined.

Gerald Stanley Green, Memphis, Tennessee, for the Appellant, Marcus Rogers.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; J. Ross Dyer,
Assistant Attorney General; William L. Gibbons, District Attorney General; and Patience Branham,
Assistant District Attorney General, for the Appellee, State of Tennessee.


                                           OPINION

                                      Factual Background

       On July 18, 2000, Shalawn Lane, aka “Q,” Charles Horton, Jr., aka “Main Main,” and the
Appellant, aka “Big Prep,” were engaged in a “three man crap game” at Lane’s apartment. After
Horton lost all of his money, he went outside, where he joined Rickey King, aka “Little Rickey,”
who was sitting in a lawn chair in front of the apartment. The Appellant and Lane continued to
gamble. Lane “won all the money” on this particular occasion; however, he owed the Appellant
money from a prior crap game. The Appellant requested Lane to pay him the money owed from his
winnings, but Lane refused, stating that he would not pay the Appellant until Friday as they had
agreed. Lane then told the Appellant to go “get some more money and come back and gamble.”
According to Lane, the Appellant moved towards him as if “he was trying to take the money back.”
Lane drew his pistol, shot at the floor, and told the Appellant to leave. After the Appellant left, Lane
joined Horton and King outside. Thirty minutes to an hour later, the Appellant returned in a vehicle
driven by “Tee-Tee.”1 The Appellant exited from the passenger side of the vehicle and began
shooting at Lane, Horton, and King. Lane returned fire. Dwight Simpson observed the incident
from the laundromat located next to the apartment complex. Simpson saw the Appellant arrive and
the shooting begin. He then took cover. After the shooting stopped, he went to see if anyone had
been injured. All three individuals suffered gunshot wounds, and Horton, who was shot in the upper
back, died as a result of his injuries.

         At trial, the Appellant testified that he returned to the apartment to get his money. According
to the Appellant, he was fired upon when he arrived at the apartment, and then he returned fire. He
stated that he was carrying a gun because he had been carjacked before and he had the gun when the
men were playing dice. He claimed that upon his return, he had no intention of shooting anyone and
he felt like he was defending himself.

        On January 23, 2001, the Appellant was indicted for the first degree murder of Charles
Horton, Jr., the attempted first degree murder of Rickey King, and the attempted first degree murder
of Shalawn Lane. After a trial by jury, the Appellant was convicted of second degree murder and
two counts of attempted second degree murder. At the sentencing hearing, the Appellant received
an effective thirty-four-year sentence. His motion for new trial was denied, and this appeal followed.


                                                    ANALYSIS

        The Appellant argues that the evidence was insufficient to support his convictions for second
degree murder and attempted second degree murder. Specifically, he contends that the evidence is
insufficient based upon the following grounds:

        1. The shooting was not committed with malice aforethought but was the result of
        sudden heat upon adequate provocation. He submits that he acted with adequate
        provocation because he “was aroused by a person that [he] thought was a friend
        holding a gun on [him], demanding money, shooting at the floor where [he] was
        standing and ordering [him] to leave his apartment.” Furthermore, he argues that his
        youth should also be considered in this analysis. Accordingly, the evidence only
        supports a conviction for voluntary manslaughter.

        2. The evidence was only sufficient to establish manslaughter because this was
        sudden mutual combat.




       1
           This individual is not identified in the record by any o ther name.

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         3. Because there was testimony at trial that he fired his weapon in a “fan motion,”
         the State did not prove the required mental element of second degree murder, i.e., a
         knowing killing. Accordingly, reckless homicide is the most that the State proved
         at trial.2

         A jury conviction removes the presumption of innocence with which a defendant is cloaked
and replaces it with one of guilt, so that on appeal, a convicted defendant has the burden of
demonstrating that the evidence is insufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
In determining the sufficiency of the evidence, this court does not reweigh or reevaluate the
evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Likewise, it is not the duty of this
court to revisit questions of witness credibility on appeal, that function being within the province of
the trier of fact. State v. Holder, 15 S.W.3d 905, 911 (Tenn. 1999); State v. Burlison, 868 S.W.2d
713, 719 (Tenn. Crim. App. 1993). Instead, the Appellant must establish that the evidence presented
at trial was so deficient that no reasonable trier of fact could have found the essential elements of the
offense beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319,
99 S. Ct. 2781, 2789 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994). Moreover, the State
is entitled to the strongest legitimate view of the evidence and all reasonable inferences which may
be drawn therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). These rules are applicable
to findings of guilt predicated upon direct evidence, circumstantial evidence, or a combination of
both direct and circumstantial evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.
1990).

       In the present case, the Appellant was convicted of second degree murder and attempted
second degree murder. Second degree murder is the "knowing killing of another." Tenn. Code Ann.
§ 39-13-210(a)(1) (1997). A person acts knowingly with respect to a result of the person's conduct
when the person is aware that the conduct is reasonably certain to cause the result. Tenn. Code Ann.
§ 39-11-106(a)(20) (1997). Attempted second degree murder may be proven by showing that the
defendant "intentionally acted with the requisite culpability to commit the offense of murder in the
second degree and the defendant could have been convicted of murder in the second degree . . . if
he had actually killed the victims." State v. Dale Nolan, No. 01C01-9511-CC-00387 (Tenn. Crim.
App. at Nashville, June 26, 1997), perm. to appeal denied, (Tenn 1998) (citations omitted); see
generally Tenn. Code Ann. § 39-12-101(a) (1997).

          First, we note that in support of his argument, the Appellant argues that the absence of malice
at the time of the killing shows that he is guilty of voluntary manslaughter not second degree murder.
"[I]t is now inaccurate to state that the element of malice is the essential distinction between second
degree murder and manslaughter." State v. Williams, 38 S.W.3d 532, 538 (Tenn. 2001). Instead,
"the essential element that now distinguishes these two offenses (which are both 'knowing' killings)

         2
           It is difficult, if not impossible, to reconcile the Appellant’s various theories of defense after examining the
issues raised, his legal argument, and his statement of the facts. For example, he argues that the homicide was
manslaughter produced by passion; no netheless, his statement of facts indicates that “[t]he Appellant had no intention
of shooting anyone” upo n his return. At times, the Appellant contends that he was only “defending himself,” which is
an intentional ac t, but argues that he “is only guilty of criminally negligent homicide.”

                                                           -3-
is whether the killing was committed 'in a state of passion produced by adequate provocation
sufficient to lead a reasonable person to act in an irrational manner.'" Id. (quoting Tenn. Code Ann.
§ 39-13-211(a) (1997)). In a related argument, the Appellant contends that the facts support only
a conviction of manslaughter because the proof established mutual combat between the parties. Our
supreme court has held that the 1989 revised criminal code abrogated the mutual combat doctrine.
Id. at 539. In so holding, the supreme court observed that the essence of the doctrine was
incorporated into the provocation element of the voluntary manslaughter statute. Moreover, the
supreme court noted that, although the revised criminal code abrogated the doctrine, a defendant still
could use proof of mutual combat to show a jury that adequate provocation warranted a voluntary
manslaughter conviction. Id. Accordingly, we review the Appellant’s issues under the current law.

        The evidence established at trial reveals that the Appellant and Lane were arguing over
winnings from a dice game. Lane shot at the floor and ordered the Appellant to leave the apartment.
The Appellant returned to the apartment thirty minutes to an hour later and shot at Lane, Horton, and
King, who were sitting in front of the apartment complex. All were injured, and Horton died as a
result of his wounds. Eyewitness testimony corroborates these events. When the evidence is
conflicting, the jury must resolve these conflicts under proper instructions and, as in this case, decide
whether the homicide was murder, voluntary manslaughter, reckless homicide or criminally
negligent homicide.3 Intent, which can seldom be proven by direct evidence, may be deduced or
inferred by the trier of fact from the character of the Appellant's conduct, the nature of the act, and
from all the circumstances surrounding the commission of the offense. See State v. Holland, 860
S.W.2d 53, 59 (Tenn. Crim. App. 1993); see generally State v. Bland, 958 S.W.2d 651, 660 (Tenn.
1997). We conclude from the proof at trial that a rational trier of fact could have found beyond a
reasonable doubt that the Appellant acted “knowingly” and that he was aware that his conduct was
reasonably certain to cause the result it produced. Thus, this issue is without merit.

                                                   CONCLUSION

       The evidence produced at trial was sufficient to support the Appellant's convictions for
second degree murder and two counts of attempted second degree murder. Therefore, the judgments
of conviction are affirmed.




                                                                   ___________________________________
                                                                   DAVID G. HAYES, JUDGE


         3
            The record indicates that the trial judge subm itted instruc tions on each of these offenses. Thus, in this case,
it was for the jury to determine whether the killing of the victim and the shooting o f two other victims occurred in a state
of passion produced by adeq uate provocation, whether these acts were recklessly committed, or whether the Appellant
“knowingly” fired upon these victims in seeking retribution for his losses in the crap game.

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