        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON

                            JUNE SESSION, 1999             FILED
                                                          July 19, 1999
STATE OF TENNESSEE,           )    C.C.A. NO. 02C01-9809-CR-00282
                              )                        Cecil Crowson, Jr.
      Appellee,               )                       Appellate Court Clerk
                              )
                              )    SHELBY COUNTY
VS.                           )
                              )    HON. JOSEPH B. DAILEY
QUINCY L. LOVE,               )    JUDGE
                              )
      Appe llant.             )    (Second Degree M urder)


                ON APPEAL FROM THE JUDGMENT OF THE
                 CRIMINAL COURT OF SHELBY COUNTY


FOR THE APPELLANT:                 FOR THE APPELLEE:

A.C. WHARTON, JR.                  PAUL G. SUMMERS
Shelby County Public Defender      Attorney General and Reporter

WA LKER GW INN                     CLINTON J. MORGAN
Assistant Public Defender          Assistant Attorney General
201 Poplar Avenue                  425 Fifth Avenu e North
Memphis, TN 38103                  Nashville, TN 37243-0493

                                   WILLIAM GIBBONS
                                   District Attorney General

                                   PHILL IP GE RALD HAR RIS
                                   Assistant District Attorney General
                                   Criminal Justice Complex, Suite 301
                                   201 Poplar Avenue
                                   Memphis, TN 38103


OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                    OPINION

        Following a jury trial, the Defendant was convicted of second degree

murder. In this ap peal h e argu es tha t the evid ence introdu ced a gains t him is

insufficient to support a finding that the killing was “knowing.” We disagree and

affirm the ju dgme nt of the trial co urt.



        The eviden ce intro duce d at trial clearly show ed that the victim died of a

single gunshot wound inflicted by the Defendant. The Defendant testified that the

victim owed him a little over a hund red do llars for c ocain e whic h he h ad so ld to

the victim. The Defendant saw the victim on the street and initiated a discussion

about the debt. When the victim told the Defendant that he really did not have

to pay the Defendant anything, the Defendant became angry an d hit the victim

in the face. During the ensuing fistfight, th e victim was s hot with the De fenda nt’s

pistol, which the De fendant had been carrying under his shirt in the waistband of

his pants. The bullet penetrated the victim’s chest area, resultin g in the victim’s

death fro m injury to h is vital organ s and inte rnal bleed ing.



        The facts in this case are basically undisputed, except the Defendant

testified that during the struggle, his pistol accidentally discharged. He stated

that the pis tol fell ou t of his p ants d uring th e alterc ation. H e said he picked up the

gun while th e two w ere still fighting , and h e hit the victim “u pside the head” w ith

the gun. H e state d, “Th e gun caug ht in m y finger and th at’s wh en it had went

off.”




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       The Defendan t argue s that th ere is in sufficie nt proo f that he know ingly

killed the victim. Tenn essee Rule of A ppellate Procedure 13(e) prescribes that

“[f]indings of guilt in criminal actions whether by the trial court or jury shall be set

aside if the eviden ce is insuffic ient to sup port the findings by the trier of fact of

guilt beyond a reasonable doubt.” Tenn. R. App. P. 13(e). In addition, because

conviction by a trier of fact destroys the presumption of innocence and imposes

a presum ption of gu ilt, a convicted criminal d efenda nt bears the burden of

showing that the evid ence w as insufficie nt. McBe e v. State, 372 S.W .2d 173,

176 (Tenn . 1963); see also State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992)

(citing State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1976), and State v. Brown,

551 S.W .2d 329 , 331 (T enn. 19 77)); State v. Tug gle, 639 S.W.2d 913, 914

(Tenn . 1982); Holt v. State , 357 S.W .2d 57, 61 (T enn. 1962 ).



       In its review of the evidence, an a ppellate court m ust afford the State “the

strongest legitim ate view of the e videnc e as w ell as all reasonable and legitimate

inferences that may be d rawn therefrom .” Tug gle, 639 S.W.2d at 914 (citing

State v. Cabbage, 571 S.W .2d 832 , 835 (T enn. 19 78)). The court may not “re-

weigh or re-evaluate the evidence” in the reco rd below . Evans, 838 S.W.2d at

191 (citing Cabbage, 571 S.W .2d at 836). Likew ise, should the review ing court

find particular conflicts in the trial testimon y, the court mus t resolve them in favor

of the jury ve rdict or trial cou rt judgm ent. Tug gle, 639 S.W.2d at 914.



       Second degree murder is defined as a knowing killing of another. Tenn.

Code Ann. § 39-13-210(a)(1). Our legislature has defined knowing as follows:

       “Knowing” refers to a person who acts knowingly with respect to the
       nature of the conduct or to circumstances surrounding the conduct
       when the person is aware of the nature of the conduct or that the

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       circumstances exist. A person acts knowingly with respect to a
       result of the person’s conduct when the person is aware that the
       condu ct is reaso nably ce rtain to cau se the re sult . . . .

Tenn. C ode Ann . § 39-11-106 (a)(20).



       In the light m ost favorable to the State, the evidence shows that the

Defendant saw the victim, who he claimed owed him money from a prior drug

transaction. The Defendant, armed with a concealed pistol, approached the

victim abou t collecting this money.              The victim’s response angered the

Defen dant, and he struck the victim in the face. A fistfight then began, and the

Defendant admitted that the victim was “ge tting the be st of [the D efenda nt].”

During his testimony at trial, the Defendant readily admitted that he struck the

victim with the pistol, b ut he a sserte d that th e firing o f the pis tol was accide ntal.

The only other person who witnessed the event testified that he saw the two men

fighting, heard the gunshot, and saw the victim fall to the ground. He stated that

the Defendant continued striking the victim after the victim was on the ground.

This witness stated that he never actually saw the firearm.



       W e believe the factual disp ute in this case presented a classic jury issue.

The credibility of the Defendant and the weight to be g iven to his testimon y were

issues resolved by the jury in favor of the State’s theory of the case. Criminal

intent is a matter to be d etermined by the jury after a consideration of all the facts

and circums tances . State v. Holland, 860 S.W.2d 53, 59 (Tenn. Crim. App.

1993). “A person can act knowingly irrespective of his or her desire that the

conduct or result will occur.” State v. Gray, 960 S.W.2d 598, 604 (Tenn. Crim.

App. 1997) (citing State v. Rutherfo rd, 876 S.W.2d 118, 120-21 (Tenn. Crim.

App. 19 93)).

                                            -4-
      In viewing the evidence in the light most favorable to the State, as we must

do on appeal, we conclude that the evidence is sufficient to support the

Defendant’s conviction. The judgment of the trial court is accordingly affirmed.




                                ____________________________________
                                DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
THOMAS T. WOODALL, JUDGE


___________________________________
NORMA McGEE OGLE, JUDGE




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