         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT NASHVILLE             FILED
                         JULY SESSION, 1999          October 13, 1999

                                                   Cecil Crowson, Jr.
                                                  Appellate Court Clerk
STATE OF TENNESSEE,            )    C.C.A. NO. 01C01-9809-CR-00362
                               )
           Appellee,           )
                               )    DAVIDSON COUNTY
V.                             )
                               )
                               )    HON. J. RANDALL WYATT, JR.
DONALD K. MOORE, JR.           )
                               )
           Appe llant.         )    (SECOND DEGREE MURDER)



FOR THE APPELLANT:                  FOR THE APPELLEE:

MONTE D. WATKINS                    PAUL G. SUMMERS
1510 Pa rkway Tow ers               Attorney General & Reporter
Nashville, TN 37219
                                    LUCIAN D. GEISE
                                    Assistant Attorney General
                                    2nd Floor, Cordell Hull Building
                                    425 Fifth Avenue North
                                    Nashville, TN 37243

                                    VICTO R S. JO HNS ON, III
                                    District Attorn ey Ge neral

                                    KATRIN NOVAK MILLER
                                    Assistant District Attorney General

                                    DERRICK SCRECHEN
                                    Assistant District Attorney General
                                    Washington Square - Suite 500
                                    222 Se cond A venue N orth
                                    Nashville, TN 37201-1649




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                    OPINION

       On July 29, 1996, the Davidson County Grand Jury indicted Defendant Donald

K. Moore, Jr., for one count of first degree murder and one count of felony m urder.

Following a jury trial on May 11–12, 1998, Defendant was convicted of one count of

second degree m urder. After a sen tencing hea ring on June 15, 1998, the trial cou rt

sentenced Defendant as a Range I standard offende r to a term of twen ty-one years

in the Tennessee Department of Correction. In addition, the trial cou rt orde red this

sentence to run co nsec utively to sente nces that ha d prev iously b een im pose d in

another case. Defendant challenges both his conviction and his sentence, raising

the following issues:

       1) whether the evidence was sufficient to support his conviction; and

       2) wheth er the tr ial cou rt erred when it ordere d his sentence to run
       cons ecutive ly to other sentences that were previously imposed in another
       case.

After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.



                                        I. FACTS




       Officer William Stokes of the Metropolitan Nashville Police Department

testified that at approximately 11:30 p.m. on February 12, 1996, he received a call

to investigate a body that was found in the Hadley Park area of Nashville. When

Stokes arrived, he observe d the bo dy of a wh ite male that had a bullet wound on the

left side of the neck. Stokes also observed a trail of blood between the body and a

pavilion in the park that was approximately 100 yards away.                 When Stokes

approached the pavilion, he observed a shell casing and a pool of blood. Officer



                                            -2-
Wayne Hugh es of th e Met ro Po lice De partm ent tes tified tha t the sh ell casin g was

from a .380 automatic.



      Yakuo Murp hy testified that sometime during or after February of 1996, he had

a conversation with Defendant about the murder that occurred in Hadley Park.

Murphy testified that D efenda nt stated th at he had gone to Hadley Park and seen

a white man sitting on a park bench. Defendant then stated that the man said that

he was looking for a prostitute and Defendant asked him how much money he had.

Defendant stated that when the man said that he did not have any money,

Defendant asked the man, “Have you ever danced with the Devil?” Defendant also

stated that at this point, he pulled out a .380 and shot the man in the head.

Defen dant furth er stated that the m an starte d to run a nd De fendan t “shot him up.”



      Anton io Cartwright testified that he was with Defenda nt and Gd ongalay Be rry

on Februa ry 12, 199 6. After De fendan t parted co mpan y with Cartwright and Berry

at approximately 10:30 to 11:00 p.m., Cartwright went to a residence about two or

three blocks from Hadley Park. Ap proxima tely one h our later, D efenda nt cam e to

the residence and told Cartwright that he had shot a white man in Hadley Park.

Defendant also stated that he shot the man in the head bec ause he “w ouldn’t give

it up.” In addition, Defendan t stated that when the man started to run, Defendant

attempted to shoot him again, but the gun jammed and would not fire. Cartwright

also testified that earlier that evening, he saw Berry give a .380 automatic to

Defen dant.




                                           -3-
       Dr. Bruce Levy testified that the autopsy report in this case indicated that the

fatal gunshot had been fired from a distance of only two to three feet from the victim.



                        II. SUFFICIENCY OF THE EVIDENCE




       Defendant conte nds th at the e videnc e was insuffic ient to su pport h is

conviction. We disagree.



       When an appellant challenges the sufficiency of the evidence, this Court is

obliged to review th at challen ge acc ording to certain we ll-settled princ iples. A verdict

of guilty by the jury, appro ved by the trial ju dge, a ccred its the te stimo ny of the State’s

witnesses and resolves all conflicts in the testimon y in favor of the State. State v.

Cazes, 875 S.W .2d 25 3, 259 (Ten n. 199 4). Alth ough an ac cuse d is orig inally

cloaked with a presumption of innocence, a jury verdict removes this presumpti on

and replaces it with one o f guilt. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn.

1982). Hence , on app eal, the bu rden of p roof rests with Defe ndant to demo nstrate

the insufficiency o f the conv icting evide nce. Id. On appeal, “the [S]tate is entitled

to the strongest legitimate view of the evidence as well as all reasonable and

legitimate inferences that m ay be drawn therefrom.” Id. Where the sufficiency of the

evidence is contested on appeal, the relevant ques tion for th e revie wing c ourt is

whether any rational trier of fact could h ave found the accused g uilty of every

element of the offen se beyo nd a rea sonab le doub t. Jack son v. V irginia, 443 U.S.

307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). In conducting our evaluation

of the convicting eviden ce, this Court is precluded from reweighing or reconsidering

the evidenc e. State v. Morgan, 929 S.W .2d 380, 383 (Tenn. Crim . App. 1996 ).

Moreover, this Court may not substitute its own inferences “for those drawn by the

                                              -4-
trier of fact from circum stantial evidence.” State v. Matthews, 805 S.W.2d 776, 779

(Tenn. C rim. App. 199 0). Finally, Rule 13(e) of the Tennessee Rules o f Appella te

Procedu re provides, “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 beyo nd a rea sonab le doub t.”



       In order to establish that Defendant had committed second degree murder, the

State had to prove beyond a reasonable doubt that Defendant knowingly killed the

victim. See Tenn. C ode Ann . § 39-13-210 (a)(1) (1997).



       We conclude that when the evidence in this case is viewed in the light most

favora ble to the State, as it must be, the evidenc e was sufficient for a ration al jury

to find be yond a reaso nable doubt that Defendant committed the offense of second

degree murder. The evidence in this case established that the victim was shot in the

neck from a distance of two to three feet on February 12, 1996. The evidence also

established that a .380 shell casing was discovered in the area of Hadley Pa rk where

the victim was shot. In addition, Cartwright testified that he saw Defendant with a

.380 automatic on February 12, 1996. Cartwright also testified that on that same

date, Defendant stated that he had shot a white man in the head because the man

“would n’t give it up” an d he trie d to sh oot the man again while the man ran away, but

the gun would not fire. Similarly, Murphy testified that Defendant stated that he had

shot a white man in Hadley Park after the man indicated that he did not have any

mone y.



       Defendant esse ntially argues that the evidence in this case was insufficient

because the only evidence that connected him to the killing in Hadley Park came

                                            -5-
from Cartw right an d Mur phy an d thes e two w itness es we re sim ply not c redible.

Howeve r, “[t]he credibility of the witnesses, the weight to be given their testimony,

and the reconciliation of con flicts in the eviden ce are matte rs entru sted e xclusive ly

to the jury as the triers of fact.” State v. Cribbs, 967 S.W.2d 773, 793 (Tenn. 1998).

The jury obviou sly believed the testim ony of Cartwrigh t and Murph y.



       In this case, Defendant essentially asks us to reconsider the evidence and

substitute a verdict of not guilty in place of the verdict found by the jury. That is not

our functio n. Instead, we conclude that a rational jury could have found beyond a

reaso nable doubt that Defendant had committed the offense of second degree

murder. See Tenn. R. App. P. 13(e). Defendant is not entitled to relief on this issue.



                         III. CONSECUTIVE SENTENCING




       Defendant contends that the trial court erred w hen it o rdere d the s enten ce in

this case to run c onse cutively to sen tence s previo usly im pose d in anothe r case. W e

disagree.



       Consec utive sentencing is governed by Tennessee Code Annotated section

40-35-115. The trial court has the discretion to order c onse cutive s enten cing if it

finds that one or more of the required statutory criteria exist. State v. Black, 924

S.W.2d 912, 917 (Tenn. Crim. App. 1995).             Further, the court is required to

determine whether the consecutive sentences (1) are reasonably related to the

severity of the offenses committed; (2) serve to protect the public from further

criminal conduct by the offender; and (3) are congruent with general principles of

senten cing. State v. Wilkerson, 905 S.W .2d 933, 939 (Tenn. 199 5).

                                            -6-
       The record indicates that before he was convicted and sentenced for the

offense in this case, Defendant was convicted of felony murder and esp ecially

aggravated robbery in another case. In addition, Defendant received conse cutive

senten ces of life an d twenty ye ars for his tw o convictio ns in the o ther case .



       Initially, Defendant contends that consecutive sentencing is improper because

the offens es in the previous case were committed after he committed the offe nse in

this case.   Specifically, Defendant argues that a trial court does not have the

authority to order a sentence to run consecutively to a sentence for an offense that

was com mitted later in time. T his Co urt has previo usly rejected th is argum ent. In

State v. Blanton, 926 S.W.2d 953, 961 (Tenn. Crim. App. 1996), this Court held that

for purposes of consecu tive sentencing, it is irrelevant that the conviction and

sentencing for the prior offense occurred after the conviction and sentencing for the

later offense. “In other words, it is imma terial whether sen tence one is c onsecutive

to sentence two, or vice versa, as the se ntences are consecutive in e ither case.” Id.

Thus, the trial court w as no t prohib ited from orderin g the s enten ce in this case to run

consecutively to the sentences previously imposed, even though those sentences

were for offenses committed after the offense in this case.



       Defendant also contends that consecu tive sentencing is improper because the

requirements of section 40-35-115 and Wilkerson have not been satisfied.



       In determining that the se ntence in this case should ru n cons ecutively to the

sentences in the previous case, the trial court found that Defendant was a

dangerous offender whose behavior indica tes little or no regard for human life and

who has no hesitation in committing a crime in which the risk to human life is high.

                                             -7-
See Tenn. C ode Ann . § 40-35-115(4) (1997). We agree. Indeed, the evidence

indicates that after D efenda nt appro ached the victim a nd the victim stated that he

did not have any money, Defendant taunted the victim by asking “Have you ever

danced with the Devil?” and the Defe ndan t then s hot the victim in the neck at close

range. In addition, the evidence indicates that while the victim was running away

from the park, Defendant attempted to shoot him again and was prevented from

doing so only by the fact that the gun jammed and would not fire.



      The trial court made no express finding that the Wilkerson test was satisfied

in this case, however we conclude in our de novo revie w that it was .            First,

consecu tive sentencing is reas onab ly related to the severity of the offenses. Indeed,

Defendant was convicted of three serious violent felonies. In addition, Defendant

committed the offense in this case by taunting and then shooting the victim at close

range for no apparent re ason a t all. Secon d, conse cutive sen tencing w ill serve to

protect the pub lic from futu re crimina l conduc t by Defen dant. De fendan t clearly

poses a great risk to the safety of the public. Although the record d oes no t indicate

the exact date, D efend ant ap paren tly com mitted the felo ny mu rder an d esp ecially

aggravated robbery only a short time after he committed the brutal and senseless

killing in this case. Finally, consecutive sentencing is clearly congruent with general

principles of sentencing. Defendant is not entitled to relief on this issue.



      Accordingly, the judgment of the trial court is AFFIRMED.



                                 ____________________________________
                                 THOMAS T. W OODALL, Judge




                                          -8-
CONCUR:



___________________________________
JERRY L. SMITH, Judge


___________________________________
NORMA McG EE OGLE, Judge




                               -9-
