         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                               Assigned on Briefs May 8, 2002

     STATE OF TENNESSEE v. RICKY RAY REED, JR., aka “RICCO”

                   Direct Appeal from the Circuit Court for Tipton County
                          No. 3428   Joseph H. Walker, III, Judge



                     No. W2001-02155-CCA-R3-CD - Filed June 25, 2002


The defendant was indicted for first degree murder and convicted by the jury of second degree
murder. He filed a petition for post-conviction relief, and was permitted to make a delayed motion
for a new trial, which ultimately was denied by the trial court. The defendant appeals the denial,
arguing that the evidence at trial was insufficient to support his conviction for second degree murder.
After a review of the record, we conclude that there was sufficient evidence to convict the defendant
of second degree murder and that the trial court properly denied the defendant’s motion for judgment
of acquittal and a new trial.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which DAVID G. HAYES and JERRY L.
SMITH, JJ., joined.

Gary F. Antrican, District Public Defender, and David S. Stockton, Assistant District Public
Defender, for the appellant, Ricky Ray Reed, Jr.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, 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

        On November 3, 1997, the defendant, Ricky Ray Reed, Jr., was indicted for first degree
murder for the March 11, 1997, killing of the victim, Tony Terrell Moss. A jury convicted him of
second degree murder, a Class A felony, on May 5, 1998, and assessed a $50,000 fine. The trial
court sentenced him as a violent offender to twenty years at 100% in the Tennessee Department of
Correction. The defendant did not file a motion for a new trial or a notice of appeal.

        On August 16, 1999, the defendant, utilizing a United States District Court form, filed a
petition for writ of habeas corpus, arguing that the State violated his constitutional rights by failing
to disclose favorable evidence to him. The trial court dismissed the petition on September 9, 1999,
and no appeal was filed. On June 25, 2001, the defendant filed a pro se petition for post-conviction
relief, requesting a delayed appeal of his conviction and arguing that he was denied his right to
appellate review under Tennessee Rule of Criminal Procedure 37(d) and (e), that he received
ineffective assistance of counsel, and that he was denied due process. On July 5, 2001, the post-
conviction court allowed the defendant to file a delayed motion for a new trial within thirty days and
appointed the public defender’s office to represent the defendant. The defendant timely filed a
motion for judgment of acquittal and new trial, arguing that (1) the elements of second degree
murder were not proven beyond reasonable doubt, (2) the evidence was insufficient to support his
conviction for second degree murder, (3) the verdict of the jury was contrary to the law and the
evidence, and (4) the sentence imposed by the court was excessive. The court denied this motion
on August 9, 2001, and the defendant timely appealed. We conclude that the trial court properly
denied the defendant’s motion and the evidence was sufficient to convict the defendant of second
degree murder.

                                               FACTS

        On March 11, 1997, the defendant and his cousin, Billy Grandberry, were driving around
Covington, Tennessee, when the defendant pulled up behind Corey Dean’s parked car. The
defendant pointed a shotgun at Dean, and once Dean saw the gun, he got in his car and tried to
escape. The defendant followed Dean for a few minutes and then saw the victim, Tony Moss, and
Dwayne Draine drive by. At that point, the defendant stopped following Dean and started following
the victim and Draine. The defendant flashed money at the two men in an attempt to get them to
stop.

        The defendant, shotgun in hand, yelled at the victim and Draine to give him all of their
money. Grandberry tried unsuccessfully to get the defendant to calm down. Because of the
defendant’s violent behavior, Grandberry exited the defendant’s car at the next stop sign. The victim
and Draine drove off, thinking that they finally had gotten away from the defendant. However, when
the victim and Draine parked outside their home a few minutes later, the defendant suddenly
appeared, pulled up beside their vehicle, stuck his shotgun out of the passenger window of his car,
and shot the victim in the mouth.

        At trial, the State’s first witness was Rosie Williams, the victim’s mother, who testified that
the victim was 23 years old at the time of his death on March 11, 1997. She said he had two
surviving children, one of whom was born one month after he was killed.

       Billy Lee Grandberry, the defendant’s first cousin, testified that on March 11, 1997, he and
the defendant were riding around Covington in the defendant’s mother’s car, with the defendant
driving and Grandberry riding in the passenger seat. Grandberry noticed that the defendant had
bloodshot eyes and only talked to him when he asked him a direct question. Grandberry said the
defendant began talking “crazy” and retrieved a shotgun from the backseat as they pulled up behind
Corey Dean’s vehicle. The defendant pointed the gun at Dean. When Dean realized a gun was

                                                 -2-
aimed at him, he drove away, and the defendant followed him. The victim and Dwayne Draine then
drove by. When the defendant saw these two men, he stopped following Dean and started following
the victim and Draine. The defendant said nothing to Grandberry as he followed the victim’s car up
Hill Street and down Simonton Street. The defendant flashed money at the victim, and the victim
signaled to the defendant that he had drugs for sale. The defendant followed the victim’s car to
Simonton Street, where the two cars pulled up next to one another. The defendant yelled at the
victim and Draine to give him all of their “cheese,” which is slang for money. Grandberry said the
defendant was “talking in his own world” by then, and he encouraged the defendant to leave the
victim and Draine alone. The defendant replied that he “didn’t give a fuck,” and Grandberry told
him to let him out of the car. As Grandberry got out of the car at the stop sign on Simonton Street,
he noticed that the defendant had the shotgun in his hand. Grandberry went to a friend’s house on
Hill Street where he tried to call to the defendant’s mother. As he was leaving his friend’s house,
Grandberry heard a gunshot.

        Grandberry said that the defendant usually listened to what he said, but, on the day of the
shooting, “[the defendant] wasn’t his self [sic].” Grandberry described the defendant as follows:
“[H]is eyes were just – they were wide open and was red, and he was just sitting there, and he was
staring. He wasn’t – he was just there, like he wasn’t – you know, if you’d say something, he
wouldn’t – he didn’t hear nothing you was saying.”

       Pearlie Currin testified that on March 11, 1997, she had parked her car on Craig Street while
waiting for her granddaughter to pick up her school pictures. Currin described what happened after
her granddaughter got out of the car:

                       Well, I was just sitting there waiting on my granddaughter,
               and there was two guys in the car. Another car pulled up along side
               this car, and I thought maybe they was going to talk, until I seen
               something stick out of the window, and then I heard a shot. And my
               granddaughter ran to the car, she started screaming, and I got out of
               the car, screaming for her. And the car pulled off and liked [sic] to
               hit mine.

Currin could not identify the shooter because she did not see his face. However, she did say that the
shooter was a black male. She said she never went to the car to see who had been shot.

       John Terrell Sales testified that he learned that the victim had been shot, and he, Franklin
Williams, and Eddie Poindexter were on their way to the hospital to see the victim when they
encountered the defendant. Sales said the defendant, who was alone in his car, pointed a shotgun
at them near the Midway Market at Mount Carmel. The defendant followed Sales’s car from the
Midway Market to Maple Street, a distance of about two or three miles. Sales did not know the
defendant but thought that Williams and Poindexter knew him. Sales said that they were able to get
away from the defendant when they stopped an officer on the road, and the defendant fled the scene.
The three men told the officer that they were being chased by the defendant, who had a gun. Sales,

                                                -3-
Williams, and Poindexter immediately went to the police station and gave statements about the
incident.

        Dwayne Draine testified that he was with the victim the day he died. Draine admitted that
he had pled guilty to aggravated robbery in the Tipton County Circuit Court on December 2, 1994.
The victim was driving the victim’s mother’s car, and Draine was riding in the passenger seat when
they saw the defendant and Billy Grandberry on the afternoon of March 11, 1997. Draine said the
defendant was hanging out of the window of his car and pointing a .12 gauge shotgun at them, which
they initially thought was a toy gun. Draine described the actions of the defendant and Grandberry:

               [T]hey was flagging us down. They had like $10 or something in
               their hand, and they was flagging, trying to flag us down. And me
               and [the victim], we stopped on Simonton Street. And when we
               stopped on Simonton Street, [the defendant] and Billy [Grandberry]
               pulled up, and he was like, “Give me all your money.” And [the
               victim] just looked at him.

                      And he was like, “I’m for real.” And he pulled the .12 gauge
               up, and he was like, “I’m for real. Give me all your money,” said,
               “Go to your house and get your money right now.”

At that point, Grandberry told them not to listen to the defendant because he was “high” and drunk.
Hearing this, the victim did not take the defendant’s threats seriously, and they turned onto Craig
Street to go home. Draine then described what happened as they approached their house:

               A. [A]s soon as we pulled in to park, [the defendant] just pulled up
               out of nowhere and stuck the .12 gauge out the window and shot.

               Q. All right. Now, where were you in the car?

               A. On the other side. On the passenger’s side.

               Q. And [the victim] was the driver?

               A. Yeah.

               Q. Now, the car that [the defendant] was driving, was it pulling
               towards you from an opposite direction or did it pull by you?

               A. It pulled right up beside us, by us.

               Q. All right. So the shotgun would have been put out which
               window of [the defendant’s] car?

                                               -4-
               A. The passenger’s side.

               Q. All right. And how many shots were fired?

               A. One.

               Q. And where did that shot hit?

               A. It hit [the victim] in the mouth, right about here.

               Q. Okay. Well, what did you do?

               A. I ducked. See, I didn’t know if he had hit [the victim]. I just
               heard the shot, you know. When I ducked – I seen him shoot, and I
               ducked, and [the victim] took off. The car just took off, and it hit the
               back of my brother’s car. And that’s when I knew [the victim] had
               been shot, because the car kept rolling back down the street with [the
               victim] in it when his foot was still on the gas. And I put the car in
               gear. [The defendant] didn’t pull off – he didn’t speed off or
               anything. He just looked for a second, and then pulled off.

After the shooting, Draine said that he was not able to talk to the victim before he died. Draine left
the scene of the shooting but later gave a statement to Investigator Chandler and another officer at
the Covington Police Department. Draine said that less than five minutes had elapsed between the
time that the defendant first pointed the gun at them on Simonton Street and the time that he shot
the victim on Craig Street. The defendant said nothing before or after he shot the victim. After
shooting the victim, the defendant waited for a few minutes before slowly driving away. Draine said
that the defendant was not out of control that day and was not weaving or driving recklessly.

       Dr. Thomas Deering, a forensic pathologist, testified that the cause of the victim’s death was
a shotgun wound to the head. He described the findings that led him to this conclusion:

                    In general, it hit on the left side of the face, adjacent to and near
               the mouth. It went from his left side towards his right side, and
               basically from the front towards the back. So all of the structures that
               are in the area were affected. The jaw was broken. The maxillary
               bone, or the cheek bone, was broken. The tongue was lacerated,
               inside of the mouth was lacerated. The bone that holds the brain,
               called the base of the skull, was fractured because of the blast of the
               shotgun wound.




                                                  -5-
Dr. Deering stated that the victim’s blood-alcohol level was .03 grams per deciliter at the time of the
autopsy and that the victim’s body tested negative for drugs. A copy of the autopsy report was
entered into evidence.

        Ricky Chandler, an investigator for the Covington Police Department, testified that on March
11, 1997, he was called into the station on his day off to investigate the shooting death of the victim.
Investigator Chandler said he was unable to visit the scene but started collecting information from
witnesses about the identity of the shooter and what had happened. Between 5:00 and 5:30 p.m. that
afternoon, Chandler received a call concerning the shooter’s whereabouts. At about 6:00 p.m., he
went to the defendant’s girlfriend’s residence on Gillespie Street. When the police approached her
house, the defendant ran out the back door, and the officers were unable to apprehend him. Chandler
and other officers searched the area around the house and discovered the car used by the defendant
in the shooting. Inside the car, which was located about seventy-five yards from the defendant’s
girlfriend’s house, was a .12 gauge shotgun matching the description of the murder weapon.
Chandler identified the shotgun that he recovered from the backseat of the car, and a photograph of
the shotgun was entered into evidence. Chandler said he found four unspent rounds of number 5
shot in the weapon, and these four shells were also entered into evidence.

        Investigator Chandler further testified that at approximately 11:00 p.m. on March 11, 1997,
the defendant’s father brought the defendant to the police station. The defendant appeared to be in
good physical condition and appeared to be acting normal emotionally. Chandler said the defendant
did not appear to be under the influence of any alcohol or drugs at that time. Chandler advised the
defendant of his Miranda rights, and the defendant signed an admonition and waiver of rights form
at 10:58 p.m. Chandler said the defendant appeared to understand his rights at the time he signed
the waiver.

       Chandler said the defendant then gave a statement, which was recorded on audiotape. This
tape was played to the jury and entered into evidence. In the defendant’s taped statement, he
admitted shooting the victim on Craig Street:

               Chandler: All right Ricky, I want you to go over the circumstances
               around the situation that happened this evening about . . . right around
               5:00 this evening with the incident that happened on Craig Street.
               Tell me what was going on and what your intentions were and what
               was going on.

                Defendant: He was a drug dealer.

                Chandler: So . . . and what happened? Because he was a drug
                dealer, what did you do?

                Defendant: He got shot.


                                                  -6-
Chandler: Did you shoot him?

Defendant: Yes.

Chandler: What did you shoot him with?

Defendant: A .12 gauge.

Chandler: All right, tell me what happened. What did you do? How
did it happen? . . . Were you in your car?

Defendant: I pulled up beside him.

Chandler: Okay. Did you shoot through your, the driver’s door or
did you shoot through the passenger window?

Defendant: The passenger window.

Chandler: So you pulled up on the driver’s side of his car, going the
same direction, then?

Defendant: Yep.

Chandler: You put the shotgun in the driver-passenger window and
pulled the trigger?

Defendant: Yes.

Chandler: What did you do after that?

Defendant: I left.

....

Chandler: Are you on any kind of medication now, Ricky? Do you
take any medicine?

Defendant: The medicine’s at home.

Chandler: Have you been taking it?

Defendant: Off . . . every now and then.


                                 -7-
                   Chandler: Have you had any today?

                   Defendant: No.

                   Chandler: How long has it been since you had any?

                   Defendant: Probably about two or three days.

                   Chandler: How come you quit taking it?

                   Defendant: I don’t like taking medicine.

                   Chandler: What’s it for?

                   Defendant: My nerves and when I got shot and stuff.1

After the tape was played for the jury, Chandler testified that during his questioning of the defendant,
he recovered six number 5 shot shotgun shells from the defendant’s jacket pockets. These six shells
were entered into evidence.

        Investigator Chandler said that he had been in law enforcement for eleven years, and eight
of those eleven years he had focused on drug trafficking. He stated that the victim had never been
arrested for dealing drugs by the Covington Police Department.

       During cross-examination, Chandler stated that Dwayne Draine’s and Corey Dean’s names
had come up several times when the police department had conducted drug investigations in the past.
Chandler also stated that Franklin Williams, Eddie Poindexter, and John Terrell Sales had current
drug cases pending against them. Chandler said he first met the defendant when he was arrested for
drugs as a juvenile. Chandler next saw the defendant when he was arrested on a felony drug charge.
The police department offered the defendant a chance to be a confidential informant so that he could
reduce his felony drug charge. Chandler said that the police department used the defendant as an
informant only one time:

                   Q. When you said you “had him hooked up,” that was a situation
                   where he was wearing a transmitting device, wired up as an agent;
                   would that be correct?

                   A. Correct.



         1
           Although the defen dant’s statem ent conta ins addition al inform ation abo ut his actions on Ma rch 11, 1 997, this
inform ation is not re levant to th e issue on a ppeal.

                                                             -8-
               Q. And what was it about his remarks that caused you concern for
               continuing to employ him?

               A. Well, after the intended target [Franklin Williams] was a no-
               show on it, he was riding around, and I was a little piece behind him
               in my vehicle listening, and he made the remark if I got him a gun, he
               would go kill Gangster Al.

               Q. And who would Gangster Al be?

               A. That’s a subject, Edison Williams, that we’ve had some dealings
               with in the past on drug trafficking.

                   At that point, I put the blue lights on him, got him out of the car,
               took the Kel set, which is the transmitting device, off of him. I had
               given him $60 to make a purchase. I took $40 of that back, let him
               keep $20 of it for gas money, and told him I didn’t need his services
               anymore.

       Chandler said he terminated the defendant’s confidential informant services on January 17,
1997. Chandler later talked to the defendant again when the defendant asked to be an informant a
second time. Chandler denied his request. During that conversation, the defendant said that if
Chandler would get him a weapon, he would kill T.J. Hurt, another drug dealer in the Covington
area.

        Defense counsel then requested that Chandler’s transcription of the defendant’s statement
be entered into evidence. The court allowed it to be admitted as an exhibit, but stated the following:

                    Ladies and gentlemen, the tape that you’ve heard would be what
               you are to consider. The Court will allow a copy of what purports to
               be a transcription of the tape to be marked as an exhibit for your aid
               and benefit, but if you find that the transcription differs with what you
               recall on the tape, you’re to go by your memory of what was on the
               tape.

        At the conclusion of Chandler’s testimony, the State rested its case in chief. The defendant
elected not to testify.

         The defendant’s mother, Sharon Reed, was the only witness testifying for the defense. She
testified that the defendant had been receiving psychiatric counseling since 1994 and had been
prescribed five or six different types of medication. She could tell if the defendant had been taking
his medication by the way he acted. Reed said the defendant’s attitude and personality had changed


                                                 -9-
during the weeks prior to March 11, 1997. She said that she had pled guilty to forgery in Mississippi
in 1998.

       The trial court instructed the jury as to first degree murder and the lesser-included offenses
of second degree murder, voluntary manslaughter, reckless homicide, and criminally negligent
homicide. The jury found the defendant guilty of second degree murder.

                                             ANALYSIS

                                    Sufficiency of the Evidence

        The defendant appeals the trial court’s denial of his motion for a judgment of acquittal and
a new trial. In his appeal, the defendant argues that the evidence at trial was insufficient as a matter
of law to convict him of second degree murder, saying that he did not knowingly kill the victim since
“he had no understanding of what he was doing or what was going on around him.” Alternatively,
he argues that his conviction should be reduced to voluntary manslaughter.

        Where sufficiency of the convicting evidence is challenged, the relevant question of the
reviewing court is “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.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560,
573 (1979). See also State v. Pike, 978 S.W.2d 904, 914 (Tenn. 1998); Tenn. R. App. P. 13(e)
(“Findings of guilt in criminal actions whether by the trial court or jury shall be set aside if the
evidence is insufficient to support the findings by the trier of fact of guilt beyond a reasonable
doubt.”). All questions involving the credibility of witnesses, the weight and value to be given the
evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754 S.W.2d
620, 623 (Tenn. Crim. App. 1987).

        Jury verdicts in criminal cases are given considerable weight by the reviewing court. A
guilty verdict that is approved by the trial judge accredits the testimony of the State’s witnesses and
resolves all conflicts in favor of the theory of the State. State v. Bigbee, 885 S.W.2d 797, 803 (Tenn.
1994). Our supreme court stated the rationale for this rule:

                    This well-settled rule rests on a sound foundation. The trial
               judge and the jury see the witnesses face to face, hear their testimony
               and observe their demeanor on the stand. Thus the trial judge and
               jury are the primary instrumentality of justice to determine the weight
               and credibility to be given to the testimony of witnesses. In the trial
               forum alone is there human atmosphere and the totality of the
               evidence cannot be reproduced with a written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523, 527
(Tenn. 1963)). A guilty verdict removes the defendant’s initial presumption of innocence and

                                                 -10-
replaces it with a presumption of guilt, so that on appeal, a convicted defendant has the burden of
demonstrating that the evidence is insufficient. See State v. Grace, 493 S.W.2d 474, 476 (Tenn.
1973).

        First, the defendant argues that he did not knowingly kill the victim, claiming that he had not
taken his medication “for his nerves” for several days prior to the shooting. As additional proof of
his mental state at the time of the shooting, he points to Billy Grandberry’s testimony that he was
talking and acting crazy the day of the shooting and to Dwayne Draine’s testimony that he just sat
there after shooting the victim instead of quickly fleeing the scene.

      Tennessee Code Annotated section 39-13-210(a)(1) defines second degree murder as “[a]
knowing killing of another.” “Knowing” is defined as follows:

               “Knowing” refers to a person who acts knowingly with respect to the
               conduct or to circumstances surrounding the conduct when the person
               is aware of the nature of the conduct or that the circumstances exist.
               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). Voluntary manslaughter, which the defendant argues
that he committed, is “the intentional or knowing killing of another in a state of passion produced
by adequate provocation sufficient to lead a reasonable person to act in an irrational manner.” Tenn.
Code Ann. § 39-13-211(a) (1997).

         In order to establish second degree murder, the State must prove that a killing was knowing
beyond reasonable doubt. See Jackson v. Virginia, 443 U.S. at 319, 99 S. Ct. at 2789, 61 L. Ed. 2d
at 573. Substantial evidence was presented at the defendant’s trial to prove beyond a reasonable
doubt that he knowingly killed the victim. Billy Grandberry, the defendant’s first cousin, testified
that the defendant first aimed his shotgun at Corey Dean before brandishing the gun and yelling at
the victim and Dwayne Draine to give him all of their money. Grandberry stated that the defendant
was holding the shotgun in his hand when Grandberry exited the car. A few minutes after leaving
the car, Grandberry heard a gunshot and never saw the victim alive again. Dwayne Draine, who was
in the passenger seat of the victim’s car when the victim was shot, testified that the defendant aimed
a shotgun at him and the victim and demanded their money. Minutes later, as Draine and the victim
were about to park outside their house on Craig Street, the defendant suddenly appeared, pulled
beside their car, and shot the victim in the face.

       Draine’s testimony is supported by the testimony of Pearlie Currin, another eyewitness to
the shooting. Currin stated that she saw a black male fire a shotgun into a car carrying two
individuals on Craig Street. John Terrell Sales testified that on March 11, 1997, he encountered the
defendant, who aimed a shotgun at him and the passengers in his car and chased after them as they


                                                 -11-
were en route to the hospital where the victim had been taken. Dr. Thomas Deering testified that the
victim died as a result of a shotgun wound to the head.

        Investigator Chandler testified that at about 6:00 p.m. on March 11, 1997, he saw the
defendant run from his girlfriend’s house in an effort to escape from the police. A short time later,
Chandler and other officers found the defendant’s car, with the shotgun locked inside. At trial, the
audiotape of the defendant’s statement, in which he confessed to shooting the victim, was played for
the jury. We conclude that the evidence is sufficient to show that the defendant knowingly killed
the victim.

        Alternatively, the defendant argues that even though the jury concluded that he acted
knowingly, he should have been convicted of voluntary manslaughter instead of second degree
murder because he killed the victim as a result of the victim’s provocation. The defendant highlights
evidence showing that he was infuriated with drug dealers and that the victim’s signal to him that
he had drugs for sale was an act of provocation sufficient to sustain a conviction for voluntary
manslaughter. However, the transcript of the trial reflects that the jury was instructed on the
elements of first degree murder and the elements of the lesser-included offenses of second degree
murder, voluntary manslaughter, reckless homicide, and criminally negligent homicide.2 Thus, the
jury had the option of convicting the defendant of the lesser-included offense of voluntary
manslaughter but chose to convict him of second degree murder. In making this decision, the jury
rejected the defendant’s argument that he shot the victim in an act of passion resulting from adequate
provocation. The jury had every right to reject this argument. See State v. Williams, 38 S.W.3d
532, 539 (Tenn. 2001) (citing State v. Johnson, 909 S.W.2d 461, 464 (Tenn. Crim. App. 1995);
Wilson v. State, 574 S.W.2d 52, 55 (Tenn. Crim. App. 1978)). Based on the evidence in the record
and considering the evidence in a light most favorable to the State, we conclude that a rational trier
of fact could have found the elements of second degree murder beyond a reasonable doubt. The
evidence is sufficient to support the defendant’s conviction for second degree murder.

                                                    CONCLUSION

        Based on the foregoing reasoning and authorities, we conclude that there was more than
sufficient evidence to convict the defendant of second degree murder, and affirm the judgment of
conviction.



                                                                    ___________________________________
                                                                    ALAN E. GLENN, JUDGE


         2
          The transcript of the trial show s that the bo th the State and defen se counsel agreed with the trial court that the
jury should be instructed on the following offenses: first degree murder, second degree m urder, voluntary manslaughter,
reckless ho micide, a nd crim inally neg ligent hom icide.

                                                            -12-
