         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs November 7, 2001

           STATE OF TENNESSEE v. DARROW LYNN WILLIAMS

                   Direct Appeal from the Circuit Court for Tipton County
                            No. 3739    Joseph H. Walker, Judge



                  No. W2001-01825-CCA-R3-CD - Filed November 29, 2001


Defendant appeals his conviction of second degree murder following a jury trial. He presents three
issues for our review: (1) whether the evidence was sufficient to support the conviction; (2) whether
the trial court erred in failing to instruct the jury to disregard certain hearsay testimony; and (3)
whether the trial court erred in failing to rule on defendant's objection to a question asked by the
prosecuting attorney. We affirm the judgment of the trial court.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

JOE G. RILEY, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and THOMAS T.
WOODALL, J., joined.

C. Michael Robbins, Memphis, Tennessee (on appeal); Gary F. Antrican, District Public Defender;
and David S. Stockton, Assistant District Public Defender (at trial), for the appellant, Darrow Lynn
Williams.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General;
Elizabeth T. Rice, District Attorney General; and James W. Freeland, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.


                                            OPINION

       The defendant shot and killed Larry Fayne, his brother-in-law, on February 6, 1999. The
defendant was indicted by the Tipton County Grand Jury for second degree murder, convicted as
charged at a jury trial, and sentenced to 15 years. This appeal followed.
                                               FACTS

       On February 6, 1999, the defendant and several other guests attended a party at the residence
of the defendant’s sister and her husband, Larry Fayne. Most guests were drinking alcoholic
beverages. One guest, Dale Mason, joked with the defendant, and the defendant became angry.
Mason explained he was only joking, and he and the defendant shook hands. Shortly thereafter, the
defendant left the residence.

         The defendant returned to the residence in approximately 15 minutes. He entered the kitchen
where Larry Fayne and others were talking. The defendant was angry and accused Fayne of having
him “set up.” The defendant then knocked a drink out of Fayne’s hand. Fayne’s wife, Lisa, who was
the defendant’s sister, immediately pushed the defendant out the door telling him to calm down and
leave the house. Larry Fayne, who was standing immediately behind his wife, told the defendant,
“[t]his is my house too, you know.” The defendant, with a pistol to his side, then fired a shot which
struck Larry Fayne in the face. Fayne was still standing and backed up into the kitchen. Shortly
thereafter, defendant raised his hand and fired another shot which struck Fayne in the chest. Fayne
died as a result of these gunshot wounds.

       The defendant was then seen in the backyard of the residence walking in circles. However,
when the police arrived, the defendant fled. He was later captured and arrested.


                              SUFFICIENCY OF THE EVIDENCE

        Defendant contends the evidence is insufficient to establish a “knowing” killing. We
respectfully disagree.

A. Standard of Review

        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). A jury verdict approved by the trial
judge accredits the state's witnesses and resolves all conflicts in favor of the state. State v. Bigbee,
885 S.W.2d 797, 803 (Tenn. 1994). On appeal, the state is entitled to the strongest legitimate view
of the evidence and all legitimate or reasonable inferences which may be drawn therefrom. Id.
Accordingly, it is the appellate court's duty to affirm the conviction if the evidence, viewed under
these standards, was sufficient for any rational trier of fact to 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, 61 L. Ed. 2d 560 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn.
1994).




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B. Analysis

        Second degree murder is the “knowing killing of another.” Tenn. Code Ann. § 39-13-
210(a)(1). As to the “knowing” mental state, the state must prove beyond a reasonable doubt that
the defendant was aware that his conduct was reasonably certain to cause the result. State v. Ducker,
27 S.W.3d 889, 896 (Tenn. 2000); Tenn. Code Ann. § 39-11-106(a)(20).

       The defendant contends he was emotionally upset and angry about offensive conduct directed
toward him, which he believed was caused in part by the victim, Larry Fayne. He argues the first
shot was fired while his hand was down by his side, although he acknowledges the second shot was
fired when his hand was raised. He contends he acted in a “state of passion produced by adequate
provocation sufficient to lead [him] to act in an irrational manner;” therefore, he argues he could
only be guilty of voluntary manslaughter. See Tenn. Code Ann. § 39-13-211(a).

         Whether acts constitute a knowing killing, so as to support second degree murder, or a killing
due to adequate provocation, so as to support a conviction for voluntary manslaughter, is a question
for the jury. State v. Johnson, 909 S.W.2d 461, 464 (Tenn. Crim. App. 1995). Here, the defendant
left the residence but came back shortly thereafter armed with a pistol. After the defendant
physically confronted the victim, defendant’s sister pushed the defendant out the door. The
defendant then fired one shot striking the victim in the face and, while the victim was still standing,
fired another shot striking the victim in the chest. It was the jury’s prerogative to find that the killing
was knowing and convict the defendant of second degree murder as opposed to voluntary
manslaughter. The evidence was sufficient to support the verdict.


                                            HEARSAY EVIDENCE

        One of the guests in the kitchen testified that, just prior to the first shot being fired, the victim
stated, “[o]h, you’re going to shoot me now?” Defendant contends this was inadmissible hearsay
and, although no objection was made, this testimony constituted plain error.

         By failing to make a contemporaneous objection to the testimony, defendant has waived this
issue. State v. Thompson, 36 S.W.3d 102, 108 (Tenn. Crim. App. 2000). Furthermore, we reject
defendant’s claim that the admission of this testimony was plain error. If the remark was hearsay,
it clearly qualified under the excited utterance exception to the hearsay rule.1 See Tenn. R. Evid.
803(2); State v. Gordon, 952 S.W.2d 817, 820 (Tenn. 1997). This issue is without merit.




         1
          A question is usually not hearsay excep t on “rare o ccasions” where it is used to prove an implicit assertion.
N. Cohen et al., Tennessee Law of Evidence § 8.01[10] n.34 (4 th ed. 2000). This m ay well be one o f those “rare
occasion s” since the re ma rk im pliedly asserted that defend ant had a g un in tending to shoo t the victim.

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                          FAILURE TO RULE UPON OBJECTION

        Stephanie Richardson, another sister of the defendant, was present in the kitchen when the
defendant returned to the residence. She testified she immediately went down the hall to call 911
when she saw the defendant. The prosecutor then asked, “Did you call because you know about your
brother and what he’s capable of?” The witness responded, “No, I . . . .” Defense counsel objected,
cutting the witness off in the middle of her sentence. She then testified she called 911 because “he
came back mad.” Defendant contends the trial court’s failure to rule upon the objection prejudiced
him by impermissibly introducing character evidence.

        The witness testified she called 911 because the defendant was angry. This was not an
impermissible character reference, and the defendant was not prejudiced in any way by the failure
of the trial court to rule upon the objection. This issue is without merit.


                                         CONCLUSION

       We find no error in the record; therefore, we affirm the judgment of the trial court.




                                                      ___________________________________
                                                      JOE G. RILEY, JUDGE




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