                                                                                      05/18/2017




       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                         Assigned on Briefs April 11, 2017

                 STATE OF TENNESSEE v. ROY ROBINSON

                 Appeal from the Criminal Court for Shelby County
                  No. 13-05184       James C. Beasley, Jr., Judge
                     ___________________________________

                          No. W2016-00263-CCA-R3-CD
                      ___________________________________

A Shelby County jury found the defendant, Roy Robinson, guilty of aggravated assault
and second degree murder. The trial court imposed an effective twenty-year sentence to
be served at one hundred percent, and the defendant appealed. On appeal, the defendant
challenges the sufficiency of the evidence supporting his second degree murder
conviction, arguing he shot his victim in self-defense. The State asserts sufficient
evidence exists to support the second degree murder conviction. After our review, we
affirm the judgments of the trial court.

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

J. ROSS DYER, J., delivered the opinion of the court, in which ALAN E. GLENN and
TIMOTHY L. EASTER, JJ., joined.

James E. Thomas, Memphis, Tennessee (on appeal), Robert Jones, District Public
Defender; Amy Mayne and Michael Johnson, Assistant District Public Defenders (at
trial), for the appellant, Roy Robinson.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Tracy Jones and Ann
Schiller, Assistant District Attorney Generals, for the appellee, State of Tennessee.


                                      OPINION

                                       FACTS

       On June 15, 2013, the defendant shot and killed Gregory Perry at the Pleasant
View Apartments in Shelby County, Tennessee. After shooting Mr. Perry, the defendant
turned his gun on Antoine Cash and pulled the trigger. The gun, however, failed to fire,
and the defendant fled. The defendant was later charged with the first degree murder of
Mr. Perry and the aggravated assault of Mr. Cash.

       Prior to the shooting, the defendant arranged a barbeque for the residents of the
Pleasant View Apartments. The barbeque was held on apartment property and drew
attendees from two street gangs in the area, the Gangster Disciples and the Vice Lords.
According to various witnesses, several arguments arose between members of the
Gangster Disciples and the Vice Lords during the barbeque, though they were all
resolved peacefully prior to the shooting at issue here. Aware of impending violence
surrounding the barbeque, the defendant, also known as “Mack Knockout,” retrieved a
gun from his apartment and concealed it on his person for the remainder of the evening.
According to the proof at trial, the defendant was a Gangster Disciple, while Mr. Perry
was a Vice Lord.

       Kailoni White, a friend of Mr. Perry’s and resident of the Pleasant View
Apartments, testified that she heard “an altercation on the backside” of the apartments
between Mr. Perry and the defendant. Ms. White could see the two men from her kitchen
window on the second floor of her apartment building. While looking out the window,
she saw Mr. Perry take off his shirt and heard the defendant yelling, “a n***** is gonna
learn about me today – they don’t call me Knockout for no reason.” Believing the
defendant and Mr. Perry were going to fight, she walked away from the window.
However, instead of fighting, she heard four gunshots. Ms. White left her apartment to
help Mr. Perry, who had been shot, and she saw the defendant leave the scene in a car.
According to Ms. White, Mr. Perry was unarmed.

       Antoine Cash testified consistently, in large part, with Ms. White’s testimony. Mr.
Cash stated he was walking with Mr. Perry near a dumpster at the Pleasant View
Apartments when Mr. Perry asked him for a cigarette, which he did not have. The
defendant then stopped them and offered Mr. Perry a cigarette. Mr. Perry denied the
defendant’s offer, and instead challenged the defendant to “a one on one,” or a fight. Mr.
Perry took off his shirt, but he did not draw a weapon. As he did so, the defendant pulled
a gun on the men, and shot Mr. Perry. After firing four or five times, the defendant
pointed the gun at Mr. Cash and pulled the trigger. When the gun failed to fire, the
defendant fled the scene in a car. Mr. Cash also confirmed Mr. Perry was unarmed.

        Three days after the shooting, police found the defendant hiding in a hotel.
Sergeant Gladys Burton of the Memphis Police Department interviewed the defendant,
during which the defendant admitted to shooting Mr. Perry. According to the defendant,
Mr. Perry challenged him to a “one on one,” and then took off his shirt. When Mr. Perry
took off his shirt, the defendant believed he was reaching for a gun. As a result, the
defendant reached for his own gun, and fired it four to five times at Mr. Perry. He then
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fled and threw his gun in the trash in another part of town. The defendant’s gun was not
recovered.

       According to Sergeant Burton, the defendant told her that Mr. Perry had been
causing problems during the barbeque and that he wanted to fight. Initially, the
defendant told Sergeant Burton that Mr. Perry “pistol played” him, or pulled a gun on
him. However, because other witnesses suggested that Mr. Perry did not have a gun at
the time of the shooting, Sergeant Burton challenged the defendant’s memory of the
same. As a result, the defendant indicated that he thought Mr. Perry reached for a gun
prior to the shooting. Sergeant Burton also testified that prior to taking the defendant’s
statement, he admitted that he never saw the victim with a gun.

       Officer Darrold Hudson responded to the shooting at the Pleasant View
Apartments. When he arrived, he found Mr. Perry unresponsive with “apparent gunshot
wounds.” Dr. Erica Curry, an expert in forensic pathology, performed an autopsy of Mr.
Perry, noting he died of multiple gunshot wounds to his chest, left arm, and right thigh.
Officer Justin Sheriff documented the scene and identified two spent nine-millimeter
casings and four shotgun shells. Special Agent Kathi Gibson, an expert in latent prints,
tested the shotgun shells but was unable to find any identifiable latent prints. Special
Agent Eric Warren, an expert in firearms identification, confirmed the two nine-
millimeter cartridge cases had been fired from the same firearm, while the four shotgun
shells had not been fired at all.

       The defense offered Ladarious Effinger as a witness who corroborated much of the
State’s case. Mr. Effinger stated the defendant shot Mr. Perry. However, he testified that
he saw Mr. Perry attempt to pull a shotgun out of his pants prior to the shooting.
Specifically, Mr. Effinger explained that he heard a “loud confrontation” between Mr.
Perry, Mr. Cash, and the defendant. When he looked toward the three men, he saw Mr.
Perry take his shirt off and “tr[y] to reach in his pants and pull something out.”
According to Mr. Effinger, Mr. Perry was trying to pull out a shotgun. He stated he
could see “[a] red shirt wrapped around . . . the shotgun stock.” As Mr. Perry attempted
to pull the shotgun out of his pants, “[t]hat’s when [the defendant] turned and fired and
shot.” Mr. Effinger stated he had seen the shotgun before because it belonged to the Vice
Lords.

        The State impeached Mr. Effinger on cross-examination. First, the State identified
that although Mr. Effinger claimed to be good friends with the defendant, he could not
find the defendant’s apartment on an aerial map of the apartment complex. Additionally,
the State pointed out that Mr. Effinger was smoking marijuana and drinking prior to the
shooting, he failed to talk to the police for over two years after the shooting, and he was

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facing murder charges of his own.         Finally, Mr. Effinger confirmed he would “do
anything” to help the defendant out.

      At the close of the proof, the jury convicted the defendant of aggravated assault
and the lesser-included offense of second degree murder. The trial court sentenced the
defendant, as a Range I, standard offender, to twenty years to be served at one hundred
percent for the second degree murder conviction and imposed a concurrent three-year
sentence for the aggravated assault conviction. This timely appeal followed.

                                        ANALYSIS

       On appeal, the defendant argues the evidence is insufficient to support the jury’s
finding of second degree murder, arguing instead that the evidence produced at trial
showed he acted in self-defense. The State, in turn, argues the evidence was sufficient.
Upon our review of the record, we agree with the State.

        When the sufficiency of the evidence is challenged, the relevant question of the
reviewing court is “whether, after viewing 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.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also
Tenn. R. App. P. 13(e) (“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 of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92
(Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). All
questions involving the credibility of witnesses, the weight and value to be given the
evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by
the trial judge, accredits the testimony of the witnesses for the State and resolves all
conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn.
1973). Our Supreme Court has stated the rationale for this rule:

       This well-settled rule rests on a sound foundation. The trial judge and the
       jury see the witnesses face to face, hear their testimony and observe their
       demeanor on the stand. Thus the trial judge and jury are the primary
       instrumentality of justice to determine the weight and credibility to be
       given to the testimony of witnesses. In the trial forum alone is there human
       atmosphere and the totality of the evidence cannot be reproduced with a
       written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d
523 (1963)). “A jury conviction removes the presumption of innocence with which a
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defendant is initially cloaked and replaces it with one of guilt, so that on appeal a
convicted defendant has the burden of demonstrating that the evidence is insufficient.”
State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

       Guilt may be found beyond a reasonable doubt where there is direct evidence,
circumstantial evidence, or a combination of the two. State v. Matthews, 805 S.W.2d
776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331 (Tenn.
1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The standard of review for
sufficiency of the evidence “‘is the same whether the conviction is based upon direct or
circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011)
(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). The jury as the trier of
fact must evaluate the credibility of the witnesses, determine the weight given to
witnesses’ testimony, and reconcile all conflicts in the evidence. State v. Campbell, 245
S.W.3d 331, 335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim.
App. 1978)). Moreover, the jury determines the weight to be given to circumstantial
evidence and the inferences to be drawn from this evidence, and the extent to which the
circumstances are consistent with guilt and inconsistent with innocence are questions
primarily for the jury. Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d
646, 662 (Tenn. 2006)). This Court, when considering the sufficiency of the evidence,
shall not reweigh the evidence or substitute its inferences for those drawn by the trier of
fact. Id.

       Second degree murder is the “knowing killing of another.” Tenn. Code Ann. § 39-
13-210(a)(1). Second degree murder is a result-of-conduct offense. State v. Page, 81
S.W.3d 781, 787 (Tenn. Crim. App. 2002). Therefore, a person acts knowingly “when
the person is aware that the conduct is reasonably certain to cause the result.” Tenn.
Code Ann. § 39–11–302(b) (2014). “[T]he ‘nature of the conduct’ that causes death is
inconsequential.” Page, 81 S.W.3d at 787. A knowing intent is shown if the defendant
acts with an awareness that his conduct is reasonably certain to cause the victim's death.
See id. at 790-93. Whether a defendant acted “knowingly” is a question of fact for the
jury. State v. Inlow, 52 S.W.3d 101, 104-105 (Tenn. Crim. App. 2000). In assessing the
defendant’s intent, the jury may rely on “the character of the assault, the nature of the act
and [on] all the circumstances of the case in evidence.” Id. at 105 (citing State v.
Holland, 860 S.W.2d 53, 59 (Tenn. Crim. App. 1993)).

       In support of his argument, the defendant suggests Mr. Effinger’s testimony
“indicates that [Mr.] Perry had taken off his shirt and reached into his pants and
attempt[ed] to pull out what looked like a shotgun during a heated argument.” As such,
the defendant claims his response, of shooting the defendant three times, was done in
self-defense. We respectfully disagree.

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       When reviewing the evidence in a light most favorable to the State, the proof
presented at trial was sufficient for a rational trier of fact to find, beyond a reasonable
doubt, that the defendant committed the second degree murder of Mr. Perry. Mr. Perry
challenged the defendant to a “one on one” at the Pleasant View Apartments on June 15,
2013. In preparation for the fight, Mr. Perry took off his shirt. After he did so, the
defendant reached for a gun concealed in his pants and shot Mr. Perry in the chest, left
arm, and right thigh. The defendant then pointed his gun at Mr. Cash pulled the trigger,
and fled the scene. Both Mr. Cash and Ms. White testified that Mr. Perry was unarmed
as he approached the defendant for a “one on one,” and the police did not find a gun on
Mr. Perry during their investigation. Finally, not only did the defendant admit to
shooting Mr. Perry, but he also stated he did not see Mr. Perry with a gun prior to the
shooting.

        The jury determines the credibility of witnesses and the weight afforded to the
evidence, and this Court does not reweigh the evidence or substitute its inferences for
those drawn by the trier of fact. Accordingly, this Court presumes that any conflicts in
Mr. Cash’s, Ms. White’s, and Mr. Effinger’s testimonies were resolved by the jury in
reaching its verdict. See Campbell, 245 S.W.3d at 335; State v. Adams, 45 S.W.3d 46, 55
(Tenn. Crim. App. 2000). Further, the trial court properly charged the jury with an
instruction on self-defense which, after weighing the evidence presented at trial, the jury
clearly rejected in its verdict. As such, we conclude the evidence presented was
sufficient to sustain the defendant’s conviction, despite Mr. Effinger’s testimony. The
defendant is not entitled to relief on this issue.

                                    CONCLUSION

        Based on the foregoing authorities and reasoning, we affirm the judgments of the
trial court.



                                             ____________________________________
                                             J. ROSS DYER, JUDGE




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