        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs May 18, 2011

                 STATE OF TENNESSEE v. CARL J. WAGNER

                Appeal from the Criminal Court for Davidson County
                       No. 2009-A-305    Steve Dozier, Judge


                 No. M2010-00992-CCA-R3-CD - Filed July 20, 2011


A Davidson County Criminal Court jury convicted the defendant, Carl J. Wagner, of second
degree murder, see T.C.A. § 39-13-210 (2006); first degree murder committed in the
perpetration of an aggravated robbery, see id. § 39-13-202(a)(2); and especially aggravated
robbery, see id. § 39-13-403. The trial court imposed concurrent sentences of 22 years’
incarceration, life imprisonment, and 22 years’ incarceration, respectively, and merged the
conviction of second degree murder into the conviction of first degree murder. On appeal,
the defendant challenges the sufficiency of the evidence to support his convictions. We
determine that there is insufficient evidence to support the defendant’s convictions of first
degree murder committed in the perpetration of an aggravated robbery and especially
aggravated robbery. We also determine, however, that there is sufficient evidence to support
the defendant’s conviction of second degree murder. Accordingly, we affirm the defendant’s
conviction in count one and remand that count for resentencing, and we reverse and dismiss
the charges in counts two and three.

 Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed in Part; Reversed
                        and Dismissed in Part; Remanded

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL and J.C. M CL IN, JJ., joined.

Michael A. Colavecchio, Nashville, Tennessee, for the appellant, Carl J. Wagner.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant
Attorney General; Victor S. Johnson III, District Attorney General; Pamela Anderson and J.
Wesley King, Assistant District Attorneys General, for the appellee, State of Tennessee.
                                          OPINION

               On August 27, 2008, the defendant shot the victim, Adriel Charles Powell, in
the laundry room of a Nashville apartment complex during a botched drug deal. The victim
suffered two wounds, one to his neck and another to his head. He died within minutes on the
laundry room floor. Soon thereafter, two men delivered the defendant, who had also suffered
two gunshot wounds, to the emergency room of Vanderbilt Children’s Hospital where he was
transferred to the adult facility and received treatment and hospitalization for his wounds.

               Metro Nashville Police Department (“Metro”) Officer William McKay
responded to the call of “shots fired” at the Herman Street apartments. He arrived to see four
or more people standing outside the laundry room in a courtyard area of the apartment
complex. One person pointed to the laundry room and informed Officer McKay that there
was “a dead person in the laundry room.” Another person told Officer McKay that “there’s
a guy in there with his brains out.” Officer McKay approached the laundry room and noticed
a bullet hole in a window. The door to the laundry room was locked, but he could see a man
lying on the floor near the doorway. Officer McKay secured the scene and called for the
homicide detectives because it was obvious to him that the man was dead.

               Metro Sergeant Danny Orr and Metro Crime Scene Investigator Felicia Evans
prepared detailed diagrams of the scene documenting the location of all evidence collected.
Investigator Evans documented thirteen distinct “reddish-brown stains” at the scene and
collected swabs from each. Investigators collected swabs from stains found on two vehicles
in the parking lot, one on the courtyard walkway, five on the courtyard railing, and five inside
the laundry room or within the doorway of the laundry room. Investigators also collected
three nine-millimeter shell casings in the courtyard and two .45 caliber shell casings in the
laundry room. They also recovered a nine-millimeter magazine containing six unspent
cartridges in the courtyard. Inside the laundry room, investigators found two Federal auto-
cartridge .45 caliber shell casings. When they moved a hat found near the victim,
investigators discovered a bullet underneath that had passed through the hat. Investigator
Evans also collected gunshot residue tests from the victim, the defendant, and another
individual, Thalis O. Smith. At the hospital, investigators recovered $51.25, “green plant
material,” a holster, and clothing from the defendant’s belongings.

              Metro Detective Michael Moss was on his way to the apartment complex when
he received a call advising him to go to Vanderbilt Hospital because an individual had just
been admitted with gunshot wounds. At the entrance of the hospital, he met Mr. Smith who
said that he had brought the defendant to the hospital. Detective Moss spoke with the
defendant in the emergency room, and the defendant told him that he was standing in the
grassy area of the apartment complex when he heard shots and ran. Soon realizing that he

                                              -2-
had been shot, he ran to Mr. Smith’s vehicle for help. Both Mr. Smith and the defendant
denied any involvement in the shooting.

               Tennessee Bureau of Investigation (“TBI”) Special Agent Patrick Ihrie
performed deoxyribonucleic acid (“DNA”) analysis of the “reddish-brown stain” swabs
collected at the scene. Swabs collected from the courtyard area and doorway contained blood
matching the defendant’s DNA. Swabs collected from inside the laundry room contained
blood matching the victim’s DNA. Of the five swabs collected from the courtyard railing,
four contained blood matching the defendant’s DNA, and one contained blood matching the
victim’s DNA.

              Fingerprint evidence did not establish either the defendant’s or the victim’s
presence at the scene. TBI testing, however, confirmed that the “greenish plant material”
collected from the defendant was marijuana. Gunshot residue testing revealed an absence
of gunshot residue on Mr. Smith’s hands and the presence of gunshot residue on the victim’s
hands. The gunshot residue testing was inconclusive concerning the defendant’s hands.
Examination of shell casings and bullets found at the scene revealed that the .45 caliber
casings had been fired from one weapon and that the nine-millimeter casings had been fired
by a second weapon. No weapons were found at the scene.

                Doctor Bruce Levy, Chief Medical Examiner for the State of Tennessee and
Medical Examiner for Davidson County, performed the victim’s autopsy. He determined the
manner of death to be homicide and the cause of death to be gunshot wounds. The victim
suffered two gunshot wounds. One wound occurred on the left side of his head. Doctor
Levy recovered a .45 caliber bullet from the middle region of the victim’s brain. He opined
that the head wound would have produced “immediate unconsciousness rapidly progressing
to death . . . within a m[a]tter of . . . a few minutes.” The victim suffered a second wound
to the neck, but that wound did not penetrate the spinal cord or impact any significant blood
vessels. Toxicology testing revealed that the victim had used marijuana within a day of the
shooting.

              Metro Detective James C. Capps interviewed Mr. Smith who he described as
“very anxious” during the interview. Mr. Smith told Detective Capps that he did not know
anything about the shooting, did not know the defendant, and only gave “the guy” a ride to
the hospital when approached for help.

              Detective Capps interviewed the defendant on August 28, 2008, as the
defendant recuperated from his injuries at Vanderbilt Hospital. The defendant told officers
that he “never pictured [him]self getting shot.” He initially said that he had gone to the
apartments to visit a “female” named Rita. As he stood in the courtyard, he “heard some gun

                                             -3-
shots . . . looked down and . . . [realized that he] was bleeding.” The defendant said that “two
big dudes carried [him] to the door” of the hospital.

              In his statement to the police, the defendant explained that he was not carrying
a gun and used a holster “to keep change and shit in.” The defendant ultimately admitted,
however, that he was carrying a .45 caliber semi-automatic handgun on the day of the
shooting and that he went to the laundry room of the apartment complex to purchase
marijuana. He said that “two dudes” were in the laundry room and that one went to retrieve
the marijuana from around a corner inside the laundry room. When the man returned with
a backpack, the other man began to shoot at the defendant, so the defendant shot back. The
defendant said that he was unsure whether he hit the man with the gun because that man fled
the laundry room. The “little dude” with the backpack, however, was shot. The defendant
said that he was “just trying to get some weed” and that the “dude was trying to kill [him].”
The defendant also admitted that Rita had advised him that the laundry room would be a
location to buy drugs and that she had driven him to the hospital. The defendant could not
recall where he had dropped his gun, but he told officers that Mr. Smith was a friend of
Rita’s who helped carry him to the door of the hospital and could possibly locate the gun.

              Neither the gun nor the backpack were found at the scene. Officers recovered
a bag of marijuana and $51.25 from the defendant’s belongings at the hospital. The
defendant claimed that the bag of marijuana was some he had brought with him that day but
was unwilling to share with Rita and the others because of its premium quality.

             With the conclusion of Detective Capps’s testimony, the State rested its case.
Following a Momon colloquy, the defendant elected not to testify. See Momon v. State, 18
S.W.3d 152 (Tenn. 1999). The defendant presented no evidence.

                Based upon the evidence presented, the jury convicted the defendant of second
degree murder as a lesser included offense of premeditated first degree murder, first degree
murder committed in the perpetration of an aggravated robbery, and especially aggravated
robbery. The trial court imposed a life sentence for the first degree murder conviction by
operation of law. See T.C.A. § 39-13-208(c). At a separate sentencing hearing, the trial
court imposed a 22-year sentence for the especially aggravated robbery conviction and,
ostensibly, a like sentence for the second degree murder conviction to be served concurrently
with the life sentence.1 The trial court then merged the second degree murder conviction into


        1
          Because the trial court merged the second degree murder conviction into the first degree murder
conviction, there was no need to impose a separate sentence. But for our determinations regarding the
sufficiency of the evidence to support the convictions, we would have directed the trial court to vacate the
                                                                                              (continued...)

                                                    -4-
the conviction for first degree murder.

                The defendant’s sole issue on appeal is an attack on the sufficiency of the
evidence to support his convictions.2 The State initially asserts that the appeal should be
dismissed for the defendant’s failure to file a timely notice of appeal. The State correctly
notes that the notice of appeal was filed on June 14, 2010, more than three months after the
denial of the defendant’s motion for new trial on February 24, 2010. See Tenn. R. App. P.
4(c). The State argues that the defendant failed to seek a waiver of the timely filing and that
the interest of justice does not require this court to waive the timely filing requirement. See
Tenn. R. App. P. 4(a). This court’s record, however, reveals that on May 5, 2010, the
defendant did in fact file a motion with this court requesting this court to accept a late-filed
notice of appeal. Attached to the motion is an affidavit of counsel averring that trial counsel
misrepresented to appellate counsel that a notice of appeal had been filed and that when
appellate counsel realized one had not been filed, he immediately sought permission from
this court to waive the timely filing requirement. On May 14, 2010, this court granted the
defendant’s request to accept a late-filed notice of appeal, ruling that the interest of justice
required us to do so. Accordingly, this court has previously ruled that the defendant’s appeal
should proceed.

               Turning now to the defendant’s claim that the evidence is insufficient to
support his convictions, we review this claim mindful that our standard of review is whether,
after considering 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.
Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324 (1979); State v. Winters, 137
S.W.3d 641, 654 (Tenn. Crim. App. 2003). This standard applies to findings of guilt based
upon direct evidence, circumstantial evidence, or a combination of direct and circumstantial
evidence. Winters, 137 S.W.3d at 654.

               Recently, our supreme court adopted the position of the United States Supreme
Court “that direct and circumstantial evidence should be treated the same when weighing the
sufficiency of such evidence.” State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011). In
Dorantes, the supreme court specifically rejected the holding in State v. Crawford, 470


        1
         (...continued)
sentencing judgment for second degree murder.
        2
          In his brief, the defendant erroneously states that he was convicted of premeditated first degree
murder and does not present any argument relative to his felony murder conviction. Likewise, the State,
while noting this error in the defendant’s brief, erroneously states that the defendant was convicted of first
degree murder committed in the perpetration of a theft, rather than first degree murder committed in the
perpetration of an aggravated robbery.

                                                     -5-
S.W.2d 610 (Tenn. 1971), requiring that in a wholly circumstantial evidence case the State
“prove facts and circumstances ‘so strong and cogent as to exclude every other reasonable
hypothesis save the guilt of the defendant, and that beyond a reasonable doubt.’” Id. at 380
(quoting State v. Crawford, 470 S.W.2d 610, 612 (Tenn. 1971)). Accordingly, the State is
no longer required to “exclude every other reasonable hypothesis save the guilt of the
defendant” to obtain a conviction based solely on circumstantial evidence and need only
establish the constitutionally required standard of proof beyond a reasonable doubt.
Dorantes, 331 S.W.3d at 381.

                When examining the sufficiency of the evidence, this court should neither re-
weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Winters,
137 S.W.3d at 655. Questions concerning the credibility of the witnesses, the weight and
value of the evidence, as well as all factual issues raised by the evidence are resolved by the
trier of fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court
must afford the State the strongest legitimate view of the evidence contained in the record
as well as all reasonable and legitimate inferences which may be drawn from the evidence.
Id.


               Tennessee Code Annotated defines first degree murder, as is applicable in this
case, as “[a] killing of another committed in the perpetration or attempt to perpetrate any .
. . robbery.” T.C.A. § 39-13-202(a)(2). The Code defines second degree murder, as is
applicable in this case, as “[a] knowing killing of another.” Id. § 39-13-210. “Especially
aggravated robbery is robbery . . . (1) accomplished with a deadly weapon; and (2) where the
victim suffers serious bodily injury.” Id. § 39-13-403(a). “Robbery is the intentional or
knowing theft of property from the person of another by violence or putting the person in
fear.” Id. § 39-13-401.

              The defendant argues that he acted in self-defense or, alternatively, that he and
the victim were engaged in mutual combat at the time of the killing. Thus, he contends, he
should have either been acquitted or convicted of only voluntary manslaughter relative to the
victim’s death. As it relates to the first degree murder conviction, the defendant’s argument
ignores the fact that he was convicted of first degree murder committed in the perpetration
of an aggravated robbery, not premeditated first degree murder. Furthermore, the jury chose
not to accredit the defendant’s claim of self-defense, as was within its province to do.


              Although not argued by the defendant, we perceive a greater issue concerning
the sufficiency of the evidence to support his convictions for first degree murder committed
in the perpetration of an aggravated robbery and especially aggravated robbery in that the

                                              -6-
defendant’s confession alone provides the only evidence that a backpack was taken from the
victim. To be sure “a conviction cannot be based solely on a defendant’s confession and,
therefore, . . . the State must present some corroborating evidence to establish the corpus
delicti.” See State v. Banks, 271 S.W.3d 90, 140 (Tenn. 2008) (citing State v. Smith, 24
S.W.3d 274, 281 (Tenn. 2000)). The term corpus delicti refers to “the body of the crime [or]
evidence that a crime was committed at the place alleged in the indictment,” and the State
needs “only slight evidence of the corpus delicti . . . to corroborate a confession and sustain
a conviction.” Smith, 24 S.W.3d at 281. When a defendant confesses to a crime, the
corroborating evidence “‘need not be as convincing as the evidence necessary to establish
a corpus delicti in the absence of any confession.’” State v. Housler, 193 S.W.3d 476, 490
(Tenn. 2006) (quoting Ricketts v. State, 241 S.W.2d 604, 606 (Tenn. 1951)).


               In this case, the defendant admitted in his statement to the police that he
grabbed the victim’s backpack as he fled the laundry room. The defendant, however, denied
that the marijuana or money found among his belongings at the hospital came from the
backpack. The backpack was never recovered. No item that could be identifiably linked to
the victim was found in the defendant’s possession. The State presented no other evidence
to even show the existence of a backpack, much less that one was stolen from the victim and
that it contained marijuana or money. Notably, in relation to his argument concerning his
especially aggravated robbery conviction, the defendant argues that he should have been
convicted of only theft and concedes that he only took the backpack “instinctively” after the
shooting occurred. Nevertheless, no evidence corroborates the defendant’s confession
concerning the existence of the backpack or its taking. As such, we conclude that the
evidence is insufficient to support his conviction of especially aggravated robbery. That
being said, the evidence is ipso facto insufficient to support the defendant’s conviction of
first degree murder committed in the perpetration of an aggravated robbery. Accordingly,
we reverse the judgments in counts two and three and dismiss the charges.

               Turning to the sufficiency of the evidence to support the remaining conviction
for second degree murder, we note that second degree murder is “strictly a ‘result-of-
conduct’ offense.” State v. Page, 81 S.W.3d 781, 787 (Tenn. Crim. App. 2002) (citing State
v. Ducker, 27 S.W.3d 889, 896 (Tenn. 2000)). As such, the definition of “knowingly,” as it
pertains to second degree murder, requires “that a person acts with an awareness that his or
her conduct is reasonably certain to cause the death of the alleged victim.” Page, 81 S.W.3d
at 788.

            In this case, the defendant admitted that he went to the laundry room of the
apartment complex to obtain marijuana from the victim and the victim’s unknown
companion. While waiting to receive the marijuana, the companion shot at the defendant.


                                              -7-
The defendant, armed with a .45 caliber handgun, returned fire as the companion fled. The
victim was shot twice by the defendant’s gun. He died almost instantly. Within minutes of
the shooting, the defendant arrived at Vanderbilt Hospital seeking treatment for two gunshot
wounds received in the melee. Ballistics and blood evidence recovered at the scene
corroborated the defendant’s statement concerning the shooting. The defendant acted
knowingly by firing his .45 caliber handgun into the laundry room in the direction of the
victim in that he was reasonably certain to cause the death of the victim by engaging in such
conduct. See State v. George Blake Kelly, No. 01C01-9610-CC-0048, slip op. at 13 (Tenn.
Crim. App., Nashville, Oct. 13, 1998) (pointing out that to “establish second-degree murder,
the [S]tate must prove that the defendant was ‘aware that the conduct was reasonably certain’
to cause death,” focusing upon the probability of the result and distinguishing the implied-
malice rule of the former second degree murder statute). Accordingly, we conclude that the
evidence supports the defendant’s conviction of second degree murder. In light of our
reversal and dismissal of the first degree murder and especially aggravated robbery counts,
however, we deem it appropriate to remand the judgment of second degree murder for
resentencing.

                                        Conclusion

              Having concluded that the evidence is insufficient to support the defendant’s
convictions of first degree murder committed in the perpetration of an aggravated robbery
and especially aggravated robbery, the judgments in counts two and three are reversed, and
the charges are dismissed. Having further determined, however, the evidence sufficient to
the support the defendant’s conviction of second degree murder, the judgment in count one
is affirmed. The case is remanded for resentencing in count one and for dismissal of the
charges in counts two and three.

                                                   _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE




                                             -8-
