             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT JACKSON               FILED
                               APRIL 1998 SESSION
                                                               March 12, 1999

                                                           Cecil Crowson, Jr.
                                                           Appellate C ourt Clerk
STATE OF TENNESSEE                   )
                                     )     NO. 02C01-9709-CR-00368
      Appellee,                      )
                                     )     SHELBY COUNTY
v.                                   )
                                     )     Hon. Joseph B. Dailey, Judge
GARY CARR                            )
                                     )     (Attempted Murder)
      Appellant.                     )     (Attempted Robbery)
                                     )


For the Appellant:                         For the Appellee:

Walker Gwinn                               John Knox Walkup
Assistant Public Defender                  Attorney General & Reporter
201 Poplar Avenue
Memphis, TN. 38103                         Douglas D. Himes
(on appeal)                                Assistant Attorney General
                                           425 Fifth Avenue North
Ronald S. Johnson                          Nashville, TN. 37243
Assistant Public Defender
201 Poplar Avenue, 2nd Floor               William L. Gibbons
Memphis, TN. 38103                         District Attorney General
(at trial)
                                           David C. Henry
                                           Assistant District Attorney
                                           201 Poplar Avenue, 3rd Floor
                                           Memphis, TN. 38103




OPINION:________________________

AFFIRMED IN PART; REVERSED IN PART

WILLIAM M. BARKER, SPECIAL JUDGE
                                               OPINION

        The appellant, Gary Carr, appeals as of right from the convictions he received

in the Criminal Court of Shelby County. After a jury trial, the appellant was convicted

of attempted first degree murder and attempted especially aggravated robbery. 1 The

trial court sentenced him as a Range I standard offender to twenty four (24) years for

the attempted murder and to twenty two (22) years for the attempted robbery. The

sentences were ordered to run concurrently to each other for a total effective sentence

of twenty four (24) years.

        On appeal, the appellant contends that the dual convictions were based upon

the same criminal episode in violation of the principles of double jeopardy. He also

challenges the sufficiency of the convicting evidence, specifically claiming that the

evidence of identity was insufficient to prove that he was the shooter.

        After a careful review of the record, we conclude that the appellant is entitled to

partial relief on evidentiary grounds different from those argued on appeal. The

evidence was insufficient as a matter of law to sustain the conviction of attempted

especially aggravated robbery. We, therefore, reverse that conviction and affirm the

remaining conviction of attempted first degree murder and the sentence of twenty four

(24) years.

                                           BACKGROUND

        On November 16, 1995, a man, later identified as the appellant, entered a

Parkway Food Mart in Shelby County. The appellant approached the store’s cash

register where the victim, Khaled Ateyyat, was working. After the two men exchanged

greetings, the appellant brandished a pistol and began cursing at the victim. The

victim turned away and was shot in the back by the appellant. The victim fell to the




        1
          The appellant was originally indicted on three counts: (1) attempted first degree premeditated
mur der; (2) atte mpte d felony m urder; an d (3) attem pted es pecially aggr avated ro bbery. Th e State
dism issed the charge of attem pted felon y murd er befor e the cas e was s ubm itted to the jury.

                                                    2
floor and pushed the store security alarm. The appellant fired five additional shots at

the victim, striking him with two bullets while he was on the floor.2

        The appellant left the store when his pistol ran out of ammunition. The victim

thereafter climbed to his feet and managed to retrieve a gun from behind the store

counter. As the victim approached the front door, he observed the appellant reenter

the store. The victim immediately dropped to his knees and fired two shots in the

direction of the appellant. The appellant then fled, without injury, from the store.

        Officer Bridgett White of the Memphis Police Department testified at trial that

she responded to the emergency call and found the victim lying on the floor. Both the

victim and a fellow employee, Roger Linwood, told Officer White that the culprit was a

regular customer who had been in the store a few hours before the shooting. Mr.

Linwood testified that he was working in the back of the store when the shooting

occurred. He stated that he observed the appellant enter the front door and approach

the cash register. When shots were fired, Mr. Linwood got down on the floor and

looked towards the register. He testified that he witnessed the incident, but remained

in the back of the store until the victim yelled for assistance.

        Three days after the shooting, both the victim and Mr. Linwood were shown a

photographic lineup consisting of six pictures. Outside the presence of each other,

they viewed the photographs and each positively identified the appellant as the

shooter. At trial, the two men again identified the appellant as the shooter.

        Based upon the above evidence, the jury convicted appellant of attempted first

degree murder and attempted especially aggravated robbery. The appellant

challenges those convictions on appeal.

                                             DISCUSSION

        The appellant first challenges the sufficiency of the convicting evidence. He

contends that the evidence of identity was insufficient to prove beyond a reasonable


        2
         The victim testified that the five shots were fired in the direction of his head. He stated that he
mov ed his he ad from side to side to avoid be ing struck by the bullets.

                                                      3
doubt that he was the shooter. Although we find that the identification evidence was

sufficient in this case, we conclude that there was no evidence that the appellant

intended to commit robbery.

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

must review the evidence in the light most favorable to the State to determine whether

a rational trier of fact could have found the essential elements of the offenses beyond

a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61

L.Ed.2d 560 (1979); State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985). We do not

reweigh 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).

         Questions concerning the credibility of the witnesses, the weight and value to

be given the evidence, as well as all factual issues raised by the evidence, are

resolved by the trier of fact, not this court. Cabbage, 571 S.W.2d at 835. We 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).

         In this case, the record shows that two eyewitnesses, the victim and Mr.

Linwood, recognized the shooter as a customer who shopped at the convenient store.

Based upon their observations, they positively identified the appellant as the shooter

both before trial and during trial. We conclude that the identification was sufficient for

a rationale trier of fact to find that the appellant was the shooter. Jackson, 443 U.S. at

319, 99 S.Ct. at 2789; Duncan, 698 S.W.2d at 67.

         Upon further review of the record, however, we must address whether the

convicting evidence was sufficient as a matter of law to prove that the appellant

perpetrated the shooting with intent to commit first degree murder and robbery. We

                                             4
conclude that the evidence supports the conviction of attempted first degree murder,

but not the conviction of attempted especially aggravated robbery.

        First degree premeditated murder is defined as “[a] premeditated and

intentional killing of another.” Tenn. Code Ann. § 39-13-202(a)(1) (Supp. 1995).

Attempted first degree murder is committed when the accused acts with premeditation

and intent to cause the killing of the victim and believes his conduct will cause the

killing without further conduct; or with premeditation, the accused acts with intent to

cause death under the circumstances surrounding the conduct as he believes them to

be, and the conduct constitutes a substantial step toward the commission of the

killing. Tenn. Code Ann. § 39-12-101(a)(2), (3) (Supp. 1995).

        The evidence in this case shows that the appellant was a regular customer at

the convenient store and had been in the store earlier before the shooting. When the

appellant entered the store on the evening of November 16, 1995, he approached the

victim and without provocation began shooting his pistol at the victim’s head. The

victim was struck by three bullets at close range, but somehow survived the brutal

attack. The appellant continued to shoot at the victim until his pistol was empty. He

then exited the store, but returned a few moments later. The record is unclear as to

why he reentered the store.3 Nevertheless, the evidence shows that he fled after the

victim attempted to shoot him with a gun found under the store counter.

        The above evidence strongly supports the jury’s finding that the appellant shot

the victim with specific intent to kill, and that his actions constituted a substantial step

towards the commission of a killing. Moreover, based upon reasonable inferences

drawn from the entire criminal episode, there was evidence for the jury to find that

appellant’s conduct was premeditated.




        3
          The State contends that the appellant reentered the store to complete the act of robbery. That
argument is speculative at best. There was simply no showing of what the appellant intended to do at
that point in the crimina l episode .

                                                   5
        The State relied upon the same criminal conduct to prove that the appellant

attempted to commit especially aggravated robbery. Especially aggravated robbery is

robbery4 accomplished with a deadly weapon where the victim suffers serious bodily

injury. Tenn. Code Ann. § 39-13-403(a)(1), (2) (Supp. 1995). Attempted especially

aggravated robbery is committed when the accused either intentionally or knowingly

acts with intent to cause the robbery and believes that his conduct will cause the

robbery without further conduct; or intentionally or knowingly acts with intent to commit

the robbery under the circumstances surrounding the conduct as he believes them to

be, and the conduct constitutes a substantial step toward the commission of robbery.

Tenn. Code Ann. § 39-12-101(a)(2), (3) (Supp. 1995).

        The appellant’s act of shooting the victim multiple times at close range

established the especially aggravated nature of the crime. Moreover, the acts of

entering the convenient store and shooting the victim may have constituted a

substantial step towards the completion of a robbery. Nevertheless, there was no

evidence that the appellant intended to rob the victim or otherwise remove any

property from the store. Under Tenn. Code Ann. § 39-12-101(a), the prosecution had

the burden of proving beyond a reasonable doubt that the appellant acted with specific

intent to commit robbery. As a matter of law, that burden was not satisfied in this

case.

        Having determined that the conviction of attempted especially aggravated

robbery should be reversed, we need not address the alleged double jeopardy

violation.

                                           CONCLUSION

        Based upon the foregoing, the conviction of attempted especially aggravated

robbery is reversed. The remaining conviction of attempted first degree murder and

the sentence of twenty four (24) years are affirmed.


        4
          Robbery is defined in Tenn. Code Ann. § 39-13-401 as “the intentional or knowing theft of
property fro m the person of anoth er by violenc e or putting the pers on in fear.”

                                                   6
                                 __________________________________
                                 WILLIAM M. BARKER, SPECIAL JUDGE



CONCUR:


______________________________
DAVID G. HAYES, JUDGE


______________________________
JOE G. RILEY, JUDGE




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