      IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT NASHVILLE                 FILED
                        JULY 1998 SESSION
                                                        September 3, 1998

                                                        Cecil W. Crowson
                                                       Appellate Court Clerk
STATE OF TENNESSEE,               )
                                  ) C.C.A. No. 01C01-9707-CC-00249
      Appellee,                   )
                                  ) Rutherford County
V.                                )
                                  ) Honorable J. S. Daniel, Judge
TYRONE V. TURNER,                 )
                                  ) (Second Degree Murder)
      Appellant.                  )
                                  )




FOR THE APPELLANT:                  FOR THE APPELLEE:

Gerald L. Melton                    John Knox Walkup
District Public Defender            Attorney General & Reporter
201 West Main Street, Suite 101
Murfreesboro, TN 37130              Deborah A. Tullis
                                    Assistant Attorney General
                                    Cordell Hull Building, Second Floor
                                    425 Fifth Avenue North
                                    Nashville, TN 37243

                                    William C. Whitesell, Jr.
                                    District Attorney General
                                    Third Floor, Judicial Building
                                    Murfreesboro, TN 37130




OPINION FILED: ___________________


AFFIRMED

PAUL G. SUMMERS,
Judge
                                   OPINION



       On March 4, 1996, the appellant, Tyrone V. Turner, was indicted for

second degree murder for the death of Cory Ward. On July 26, 1996, he was

convicted by a jury of second degree murder and assessed a fine of $40,000.

The trial court sentenced him to twenty-two years in the Tennessee Department

of Correction and ordered him to serve 100% of his sentence.



       The appellant presents three issues for our review:

       1. Whether the trial court committed error in denying his
       requested jury instruction pertaining to second degree
       murder;

       2. Whether the trial court committed error in denying
       his requested jury instruction pertaining to voluntary
       manslaughter;

       3. Whether the evidence is insufficient, as a matter
       of law, to prove beyond a reasonable doubt that
       he is guilty of second degree murder.

After reviewing the record, we affirm the judgment of the trial court.



       During the evening of December 9, 1995, the appellant went to Lebanon,

Tennessee to pick up Cory Ward, the victim, from his job at Wendy’s restaurant.

The two drove around for a while, listened to music, and drank beer. The

appellant then drove to Murfreesboro, Tennessee, so that he could introduce

Ward to his girlfriend. He stopped at an Exxon gas station to use a pay phone

so that he could answer a page that he had received on his pager. While the

appellant was using the pay phone, Ward went inside the store at the gas

station.



       After the appellant had finished making his call, he saw Ward arguing with

a customer in the store. The appellant, who had a handgun in his vehicle,

disengaged the safety on the gun and put it in his pocket. He then went inside

the store. Once inside, he determined that Ward was causing a scene with the



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manager, Robert Seiffert, and with William Farrar, a regular customer at the

store.



         The appellant entered the store, grabbed Ward by the arm, and dragged

him from the store in order to prevent a fight. Seiffert, who was on the

telephone with the police about the disturbance, told the police to forget about

the call when the appellant entered the store to get Ward. The appellant, who

was a frequent customer at the store, apologized to Seiffert for the incident. The

appellant forced Ward into his vehicle, a Geo Tracker, and then drove to the

Roses parking lot near the gas station. The appellant got out of the vehicle and

went around to the passenger side of the vehicle, where he engaged in a

screaming match with Ward, who was in the passenger seat. The appellant and

Ward began to fight. Ward ran around to the rear of the vehicle, while the

appellant went around the front of the vehicle. The appellant took his gun from

his pocket, raised his arm, and fired the gun at Ward’s chest when he reached

the driver’s side of the vehicle. Ward was struck by three bullets.



         After shooting Ward, the appellant got into his vehicle and left the scene.

He drove to his girlfriend’s house and hid his vehicle in her backyard. While

driving to his girlfriend’s house, he threw his gun out the window of the vehicle.

The appellant then called his father to pick him up. When the police arrived at

the appellant’s father’s house, the appellant was inside. When the police

questioned the appellant about the shooting, the appellant stated that Ward had

been shot by someone in a blue car during a drive-by shooting. However, after

further questioning by the police, the appellant admitted that he shot Ward and

told the police where his vehicle was parked.



         Dr. Charles Harlan performed the autopsy on Ward. He testified that

Ward, who was five feet, nine inches tall and weighed 130 pounds, had a blood




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alcohol level of .26. He further testified that Ward received three gunshot

wounds, one to the neck and two to the back, from a distance of over two feet.



       The appellant argues that the trial court erred in failing to instruct the jury

with his special jury instruction regarding second degree murder and voluntary

manslaughter and that the evidence is not sufficient to sustain his second degree

murder conviction. First, the appellant contends that without his special jury

instructions, the jury charge as given shifts the burden of proof to him “to

establish an element of the crime of voluntary manslaughter in order to negate

an element of the offense of second degree murder.” Second, the appellant

asserts that he and Ward became involved in an argument immediately before

he shot Ward. Therefore, he contends he should have been convicted of

nothing more than voluntary manslaughter.



       The state argues that the trial court properly instructed the jury and that

the evidence is sufficient to sustain the appellant’s second degree murder

conviction. First, the state asserts that “[b]ecause the record on appeal does not

contain either [the appellant’s] motion requesting special jury instructions, nor the

instructions with which the trial court charged the jury, this issue has been

waived.” Second, the state contends that the evidence is sufficient to support

the jury’s verdict of second degree murder. It asserts that the appellant and

Ward began to argue and the appellant threw Ward to the ground. W hen Ward

ran to the rear of the appellant’s vehicle, the appellant went around the front of

the vehicle and to the driver’s side of the vehicle. The state maintains that the

appellant, who knew that the safety was off and that a bullet was in the chamber,

pulled his gun, pointed it at Ward’s chest, and pulled the trigger. The appellant

left Ward bleeding on the ground as he left the scene to hide his vehicle.



       With respect to the appellant’s two issues regarding jury instructions, we

find it difficult to address these issues without a complete record. Although the



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appellant supplemented the record on appeal with a copy of his requested jury

instructions, we do not have the jury instructions actually given to the jury by the

trial court. Rule 24(b) of the Tennessee Rules of Appellate Procedure requires

the appellant to prepare a record on appeal that presents a complete account of

what occurred in the trial court regarding any issue presented for our review.

Because we do not have the instructions actually given by the trial court to the

jury, this issue is waived.



       Second, the appellant was convicted of second degree murder.

Tennessee Code Annotated § 39-13-210 (Supp. 1995) defines second degree

murder as “[a] knowing killing of another.”



       Great weight is accorded jury verdicts in criminal trials. Jury verdicts

accredit the state’s witnesses and resolve all evidentiary conflicts in the state’s

favor. State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Banes, 874

S.W.2d 73, 78 (Tenn. Crim. App. 1993). On appeal, the state is entitled to both

the strongest legitimate view of the evidence and all reasonable inferences which

may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832 (Tenn. 1978).

Moreover, guilty verdicts remove the presumption of innocence, enjoyed by

defendants at trial, and replace it with a presumption of guilt. State v. Grace,

493 S.W.2d 474 (Tenn. 1973). Appellants, therefore, carry the burden of

overcoming a presumption of guilt when appealing jury convictions. Id.



       When appellants challenge the sufficiency of the evidence, this Court

must determine whether, after viewing the evidence in a light most favorable to

the prosecution, any rational trier of fact could have found the essential elements

of a crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979);

Tenn. R. App. P. 13(e); State v. Duncan, 698 S.W.2d 63 (Tenn. 1985). The

weight and credibility of witness testimony are matters entrusted exclusively to




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the jury as the triers of fact. State v. Sheffield, 676 S.W.2d 542 (Tenn. 1984);

Byrge v. State, 575 S.W.2d 292 (Tenn. Crim. App. 1978).



      The appellant offered several versions of what occurred the night of the

shooting. At trial, he admitted that he did not have to shoot W ard, but could

have driven away instead. Also, Dr. Harlan, who performed the autopsy, testified

that Ward received two gunshot wounds to the back. We, therefore, conclude

that the evidence is sufficient to sustain the appellant’s second degree murder

conviction.



      Accordingly, we affirm the judgment of the trial court.




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                                      _____________________________
                                      PAUL G. SUMMERS, Judge



CONCUR:




_____________________________
DAVID G. HAYES, Judge




_____________________________
JERRY L. SMITH, Judge




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