         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                      July 9, 2002 Session

               STATE OF TENNESSEE v. JOSEPH JACKSON, JR.

                  Direct Appeal from the Criminal Court for Shelby County
                     No. 00-09313, 00-09314 Arthur T. Bennett, Judge



                  No. W2001-02779-CCA-R3-CD - Filed December 17, 2002


Defendant attempted to shoot and kill Johnny Maxwell, missed, and accidentally shot twelve-year-
old Brittney Taylor, seriously injuring her. A jury convicted the defendant of attempted first degree
murder of Maxwell and attempted first degree murder of Taylor. He appeals, claiming the trial court
erroneously charged the jury, relative to the doctrine of transferred intent; that double jeopardy bars
convictions of both offense; and the evidence was insufficient to sustain the attempted first degree
murder convictions. We agree and affirm both convictions.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and
ALAN E. GLENN, JJ., joined.

Gerald D. Waggoner, Memphis Tennessee (at trial), and Larry M. Sargent, Memphis, Tennessee (on
appeal), for the appellant, Joseph Jackson, Jr.

Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General;
William L. Gibbons, District Attorney General; and David N. Pritchard, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                             OPINION


        The defendant, Joseph Jackson, Jr., was convicted, as charged, of two counts of attempted
first degree (premeditated) murder, following a jury trial. The defendant was sentenced to twenty
years on each count, to be served concurrently. This timely appeal followed. The defendant
contends: (1) insufficient evidence exists to support his conviction; (2) the trial court erred in its
charge to the jury, relative to the doctrine of transferred intent; and (3) double jeopardy bars
convictions for both offenses. We disagree and affirm both convictions.
                                                         Facts

        At trial, the State called the following witnesses: Brittney Taylor, Sergeant Dennis McNeil,
Officer Lavern Jones, Lydell Yarbrough, and Johnny Maxwell. The defense offered no proof. We
have carefully reviewed the testimony of all witnesses. We recite the following facts in light most
favorable to the State as the defendant contends the evidence is insufficient to support his
convictions.

         On February 3, 2000, there was a large altercation between a number of gang members and
other students in the parking lot of the MAPCO Express convenience store (MAPCO) on Raines
Road in southeast Memphis. The altercation took place in the afternoon, about the time nearby
schools were dismissing. The defendant had a “run in” the previous day with some rival gang
members and, according to his statements to police, had been threatened by them. Due to that “run
in,” it was fairly common knowledge in the community that there would be a fight at the MAPCO
on February 3, thus there was quite a large crowd in the parking lot.

        There is evidence that earlier on February 3, the defendant told his friend, Lydell Yarbrough,
there would be an altercation later that day. Yarbrough brought a rifle to school and let the defendant
know he had it. It is unclear if Yarbrough brought the rifle because of the potential altercation. The
defendant then put it into his backpack and carried it throughout the school day. In order for the rifle
to be carried in the backpack without detection, it had to be disassembled.

        After school, as the crowd started assembling at the MAPCO, a number of fights broke out,
including one between the defendant and Johnny Maxwell. According to at least two witnesses, a
police officer and Johnny Maxwell, Maxwell “beat up” the defendant in a fight that lasted about a
minute. At this time, the defendant was not carrying the rifle. The crowd at the MAPCO had grown
quite large by this time.

        Immediately after the fight between the defendant and Maxwell, the defendant walked to a
nearby truck where two of his friends, including Yarbrough, were sitting. The police officer stated
that Maxwell and his friends were taunting the defendant. The crowd had still not diminished. The
defendant then grabbed or was handed the rifle, and walked back with the assembled rifle toward
Maxwell. There are differing versions as to who assembled the rifle and whether Maxwell and his
friends walked towards the defendant as the defendant walked to the truck or were simply still
hanging around the MAPCO lot. Calmly, the defendant walked towards Maxwell, lifted the rifle,
and fired one shot in an attempt to kill Maxwell.1 He missed Maxwell, but the bullet struck twelve-
year-old Brittney Taylor, who was walking behind the crowd, in the side. She had to be airlifted to
the hospital. The defendant then put the gun into the truck and was almost immediately apprehended



         1
           The police office r testified that the defendant was close to Maxwell when he fired the gun, describing the
distance as “shorter than you and I now,” in resp onse to attorney questioning. Maxwell testified the d efendant was within
10-15 feet of him when he fired the gun.

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by the off-duty police officer who had witnessed the scene. The defendant’s two friends drove away
from the scene in the truck but were pulled over a short distance from the MAPCO.

        The defendant contends, inter alia, that the evidence was insufficient to sustain an attempted
first degree murder conviction. In light of this, it is important to understand additional versions of
the events.

        The police officer testified that on February 3, 2000, he was off duty near the fight scene,
although he was still in uniform. He said he noticed a large crowd at the MAPCO, with several
different fights occurring. He went to the scene and broke up one of the fights. He said he saw the
defendant arguing with two shirtless boys who were jumping up and down and “throwing” gang
signs at him. The officer testified it appeared as though the defendant had been “gotten the better
of.” He then witnessed the defendant walk to a green truck and then walk back to the boys who had
been taunting him, getting “pretty close” to them. The defendant then fired one shot at Maxwell and
“casually” walked back to the truck and put the rifle in it. The officer stated the other two boys at
the truck were laughing. After the defendant put the gun back in the truck, the officer testified that
he immediately apprehended the defendant. He said the defendant looked “whipped,” acted
depressed, and said he did not mean to shoot the victim.

        On cross-examination, the officer stated that the whole incident took “a very short time,” less
than thirty seconds.

         Lydell Yarbrough, who had pending charges for attempted first degree murder for actions
related to this case, testified to the following: He said the defendant told him on the day in question
that, on the previous day, the defendant had an altercation with some other boys and was letting
Yarbrough know that something might happen that day. Yarbrough testified he (Yarbrough) brought
a rifle to school that day, a disassembled one that he was able to keep in his backpack. He told the
defendant about the rifle, and the defendant then obtained it and kept it in the defendant’s backpack.
After school, they went to the MAPCO where a crowd was forming in anticipation of the fights they
knew were coming. Yarbrough testified that a fight broke out between the defendant and Maxwell.
At that time, the defendant did not have the gun; it was in a truck that Yarbrough and another friend
were sitting in at the MAPCO parking lot. After the fight between the defendant and Maxwell
ended, a fight Yarbrough said lasted about a minute, the defendant walked over to the truck and got
the gun. He stated he believed the defendant had to reassemble the gun. The defendant then walked
back to Maxwell and Maxwell’s friends, and Yarbrough said he then heard a gunshot. Yarbrough
commented that, after the fist fight, the defendant’s demeanor was calm. He also testified that the
State had not given him any deals to testify and that he was only trying to tell the truth.

        On cross-examination, Yarbrough testified that the defendant had told him the altercation,
taking place the day before the shooting, had been a fight that the defendant had broken up. He said
the defendant told him that, after breaking up the fight, his life was threatened. He stated while there
were several fist fights occurring at the MAPCO simultaneously, the one between the defendant and
Maxwell was between just the two of them. Yarbrough stated that he had not put the gun together


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nor did he encourage the defendant to shoot at Maxwell. When confronted with a statement he had
made on the day of the shooting when he said he had given the gun to the defendant, Yarbrough
declared that the former statement was incorrect and that the truth was that the defendant came to
the truck and got the gun, that Yarbrough only brought it to the fight.

        The final witness important for our analysis was Johnny Maxwell. Maxwell testified that he
indeed had been in a fist fight with the defendant, one-on-one, that lasted a “few minutes.” He
stated there were other fights going on at the same time, but his fight with the defendant was just
between the two of them. Maxwell admitted that he had beaten the defendant in the fight. He stated
that about a minute after the fist fight, he turned to walk away, but saw the defendant walk to the
truck, where he was handed the gun by his “partner.” He stated he had not walked towards the
defendant as the defendant went to the truck. According to Maxwell, the defendant walked to within
“ten to fifteen” feet of him and fired the shot that ultimately hit and injured Brittney Taylor.

       The defendant was convicted by a jury of attempted first degree murder of both Johnny
Maxwell and Brittney Taylor. He was sentenced to twenty years for each conviction, to be served
concurrently in the Tennessee Department of Correction, as a Range I standard offender.

                                    Sufficiency of the Evidence

         The defendant argues that the evidence presented was insufficient to convict him of
attempted first degree murder. Specifically, the defendant claims the evidence could not have
supported a conviction for more than manslaughter, as he was acting in the heat of passion when he
fired the gun. Where sufficiency of the evidence is challenged, the relevant question for an appellate
court is whether, after viewing the evidence in the light most favorable to the State, any rational trier
of fact could have found the essential elements of the crime or crimes beyond a reasonable doubt.
Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d
560 (1979); State v. Abrams, 935 S.W.2d 399, 401 (Tenn. 1996). The weight and credibility of the
witnesses’ testimony are matters entrusted exclusively to the jury as the triers of fact. State v.
Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App.
1996). A jury verdict accredits the State’s witnesses and resolves all conflicts in favor of the State.
 State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994). On appeal, the State is entitled to the strongest
legitimate view of the evidence and all reasonable inferences which may be drawn therefrom. Id.;
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Moreover, a guilty verdict removes the
presumption of innocence which the appellant enjoyed at trial and raises a presumption of guilt on
appeal. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). The appellant has the burden of
overcoming this presumption of guilt. Id.

        There must be sufficient evidence to have supported first degree premeditated murder had
the defendant been successful in his attempt to kill Maxwell. The applicable definition of first
degree murder is, “[a] premeditated and intentional killing of another.” Tenn. Code Ann. § 39-13-
202 (a) (1) (supp. 2002). Premeditation necessitates “a previously formed design or intent to kill,”
State v. West, 844 S.W.2d 144, 147 (Tenn. 1992) (citations omitted), and “an act done after the


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exercise of reflection and judgment . . . [meaning] that the intent to kill must have been formed prior
to the act itself.” Tenn. Code Ann. § 39-13-202(d). It also requires that the accused be “sufficiently
free from excitement and passion as to be capable of premeditation.” Id.

        Although the jury may not engage in speculation, it may infer premeditation from the manner
and circumstances of the killing. State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997); State v. Bordis,
905 S.W.2d 214, 222 (Tenn. Crim. App. 1995). Our Supreme Court has delineated several
circumstances that may be indicative of premeditation, including the use of a deadly weapon upon
an unarmed victim, the fact that the killing was particularly cruel, declarations of the intent to kill
the victim by the defendant, the making of preparations before the killing for the purpose of
concealing the crime, and calmness immediately after the killing. See Bland, 958 S.W.2d at 660.

         There is ample evidence in the record that the jury may have relied upon in determining that
the defendant intended and premeditated his actions of retrieving a weapon and firing it in such a
manner and at such a distance that the likely result would be death. A rational trier of fact could
have determined that the defendant had time to think and premeditate over his actions before he left
the initial fight with Maxwell and picked up the gun. No evidence was produced to indicate
Maxwell, the intended victim, was armed; therefore it could have been determined the defendant
used a deadly weapon against an unarmed victim. There was evidence presented that the defendant
told his friends that “something might happen” later that day, which could have been viewed as a
declaration of intent. There was evidence the defendant was aware of the availability of the gun and
that he disposed of the gun after the shooting, which could indicate preparation for the crime and an
effort to conceal the crime. There was evidence that the defendant acted calm and cool after the
fight, and a rational jury could have concluded that cool and calm demeanor indicated the defendant
was not acting under the heat of passion. The only evidence the defendant offers to prove that no
rational jury could have concluded he was attempting first degree murder is the conclusory statement
that, because the defendant lost his one-on-one fist fight, he was acting under the heat of passion.
Giving the strongest legitimate view of the evidence to the State and drawing all reasonable
inferences from the evidence that was presented, we hold there was sufficient evidence to support
a rational jury’s findings that the defendant premeditated and planned to fire the gun to kill Maxwell.

                                          Jury Instruction

        The defendant claims the doctrine of “transferred intent” should not have been applied to
allow the defendant’s intent to shoot Maxwell to be transferred to Taylor. To support his position,
the defendant presents an 1849 case, Bratton v. State, 29 Tenn. 103 (1849), in which the Tennessee
Supreme Court specifically rejected the common law doctrine of transferred intent in criminal cases.
Additionally, the defendant points us to Sullivan v. State, 173 Tenn. 475, 121 S.W.2d 535, 537
(Tenn. 1938), in which our supreme court acknowledged that Tennessee was of the minority view
and had never adopted transferred intent beyond use in felony murder. The defendant posits that
Tennessee only adopted “transferred intent” to the extent mandated by the 1932 legislative enactment
of the state’s first felony murder statute. The defendant’s argument is misplaced, as Tennessee no



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longer applies “transferred intent” but simply evaluates whether there was an intent to cause the
ultimate result.

       As such, the defendant claims the following charge concerning intent should not have been
submitted to the jury:
                2. That the defendant acted intentionally. A person acts intentionally with
       respect to the nature of the conduct, or to a result of the conduct, when it is the
       person’s conscious objective or desire to engage in the conduct or cause the result.
       A defendant’s conscious objective need not be to kill a specific victim. If you find
       beyond a reasonable doubt that the defendant intended to cause the result, the death
       of a person, and that he did so with premeditation, then the killing of another, even
       if not the intended victim, would be first degree murder.

        Contrary to the defendant’s position, this charge became acceptable as a correct statement
of the law following the leading case in Tennessee concerning the doctrine of transferred intent.

        In Millen v. State, 988 S.W.2d 164, 164-66 (Tenn. 1999), the defendant intentionally fired
a gun at a specific person, but inadvertently killed a random victim. Our supreme court determined
that the Tennessee murder statute, Tennessee Code Annotated section 39-13-202, did not limit its
application to the intended victim, but incorporated the doctrine of “transferred intent” to allow
application to any victim if the intent existed to murder a specific person. The court stated that the
common law history of “transferred intent” has little application under our modern statutory law.
Id. at 167. The court concluded that if a defendant has the intent to kill an intended victim and an
innocent bystander is killed, the element of intent will be satisfied. Id. at 168.

       After Millen, the Tennessee Pattern Jury Instructions were amended to conform with the
language contained therein, which resulted in the exact language used in the instant case. We
conclude it was not error to provide the jury with the instruction.

       The evidence indicates that the defendant intended to shoot and kill Maxwell, but he
inadvertently shot and injured Taylor. The intent to shoot and kill Maxwell was the conduct
intended by the defendant. “Transferred intent” being incorporated into the definition of intent, we
conclude the trial court did not err.

                                         Double Jeopardy

       The defendant claims the trial court punished him twice for the same offense by convicting
him of both the attempted murder of Maxwell and the attempted murder of Taylor, despite there
being only one act. “The constitutional right against double jeopardy protects against : (1) a second
prosecution after an acquittal; (2) a second prosecution after a conviction; and (3) multiple
punishments for the same offense.” State v. Beauregard, 32 S.W.3d 681, 682 (Tenn. 2000). The rule
in Tennessee is well-settled that constitutional provisions against double jeopardy protect an accused



                                                 -6-
from the peril of a second punishment and a second trial for the same offense. Whitwell v. State,
520 S.W.2d 338, 341 (Tenn. 1975); State v. Taylor, 912 S.W.2d 183, 185 (Tenn. Crim. App. 1995).

        In support of his position, the defendant cites State v. Nickens, No. 03C01-9205-CR-00189,
1993 Tenn. Crim. App. LEXIS 513 ( Knoxville, Aug. 6, 1993). In Nickens, this Court held that a
defendant could not be subjected to punishments for both driving on a revoked license and for
felonious operation of a motor vehicle if they arose from the same incident. Id. at *25. Although
not directly relevant to the instant case, it should be noted that the Nickens court actually allowed
separate prosecutions for multiple crimes arising from the same transaction. The defendant in
Nickens, over the State’s objection, pled guilty to reckless driving and driving on a revoked license,
yet was still prosecuted for the felonious operation of a motor vehicle. Reckless driving and driving
on a revoked license are lesser offenses of felonious operation; yet, despite the acceptance of the
guilty plea, this Court allowed the felony prosecution, concluding that the principles of double
jeopardy protection, finality, and prevention of prosecutorial overreaching were not implicated since
the guilty plea was objected to by the State. Id. at *19. Nonetheless, it is difficult to see how
Nickens applies in the instant case, in light of the well-established position that a single criminal
episode, involving multiple victims, can sustain multiple convictions. Nickens dealt with multiple
punishments stemming from the same act but did not focus on whether that act resulted in multiple
victims. It is the presence of victims that distinguishes the present case from Nickens.

        In Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 306 (1932),
the United States Supreme Court stated that any resolution of a question about whether multiple
punishments are allowed must include statutory construction analysis relative to whether the
legislature intended to punish for only one or for two crimes. Similar to the question of whether
multiple offenses apply to a singular act, the question of how many units of prosecution can be used
when a continuing course of conduct occurs is answered by determining how many units the
legislature intended. State v. Davis, 654 S.W.2d 688, 696 (Tenn. Crim. App. 1983). Clearly,
legislative intent is important, so we must determine if the legislature intended for there to be the
possibility of multiple convictions when there are multiple victims stemming from a single act. First
degree murder in Tennessee is defined as: (1) A premeditated and intentional killing of another; (2)
A killing of another committed in the perpetration of or attempt to perpetrate any first degree murder,
. . . Tenn. Code Ann. § 39-13-202(a). Our courts have interpreted this as meaning there can be
multiple convictions when there are multiple victims.

        In State v. Goins, 705 S.W.2d 648, 651 (Tenn. 1986), citing State v. Irvin, our supreme court
stated, “generally if a criminal episode involves several victims who have personally been
victimized, the evidence could sustain multiple convictions.” See State v. Irvin, 603 S.W.2d 121
(Tenn. 1980) (distinguishing crimes against the person from crimes against property, quoting from
Vigil v. State, 563 P.2d 1344, 1352 (Wyo. 1977)), see also State v. Denton, 938 S.W.2d 373, 381
(Tenn. 1996). Additionally, the court in Irvin stated, “It seems illogical to us, as a general
proposition, to hold that when two persons have been killed by an accused, he has committed only
one homicide. Prior cases in this state so holding are overruled or modified to the extent that they
conflict herewith.” Irvin, 603 S.W.2d at 123; see also State v. Pelayo, 881 S.W.2d 7, 9-10 (Tenn.
Crim. App. 1994) (holding that if a criminal actor displays a deadly weapon or causes serious bodily
injury to more than one person, such conduct would justify convictions for each victim involved).

                                                 -7-
        Because the two separate convictions in the instant case arose from two separate and distinct
victims, we hold the trial court did not err in allowing the two convictions.

       Accordingly, the judgment of the trial court is affirmed.




                                                              _______________________________
                                                              JOHN EVERETT WILLIAMS, JUDGE




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