         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                          Assigned on Briefs September 9, 2003

                     STATE OF TENNESSEE v. TRENT STARK

                  Direct Appeal from the Criminal Court for Shelby County
                            No. 01-02374    J. C. McLin, Judge



                  No. W2002-03078-CCA-R3-CD - Filed December 5, 2003


The appellant, Trent Stark, was convicted by a jury of first degree murder. As a result, the jury
sentenced the appellant to life in prison without the possibility of parole. The appellant appealed
after the denial of a motion for new trial. The only issue raised on appeal is the sufficiency of the
evidence. We conclude that the evidence was sufficient to support a finding of guilt and therefore
affirm the decision of the trial court.

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

JERRY L. SMITH , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and JOE G.
RILEY, J., joined.

Garland Ergüden (on appeal) and William Johnson (at trial), Memphis, Tennessee, for the appellant,
Trent Stark.

Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Patience Branham, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

                                       Factual Background

        Tavarous Woods, a resident of the Cedar Mills Apartment complex in Memphis, Tennessee,
spent the afternoon of October 11, 2000, “hanging out” with the appellant after he got out of school.
Mr. Woods knew the appellant because the appellant’s girlfriend lived in the apartment complex.

       The appellant, Mr. Woods, and several other individuals spent part of the afternoon and early
evening sitting on some apartment steps. At one point, Darrel Smith, another resident of the
complex, walked by the area where the men were sitting. Mr. Woods noticed that Mr. Smith and
the appellant were “just kind of looking at each other real funny.” Sometime later, Mr. Smith again
came by the steps where the group was sitting, this time smoking a Black and Mild cigar. The
appellant asked Mr. Smith if he could have a “hit” from the cigar, and Mr. Smith asked the appellant
if they knew each other. When the appellant said, “no,” Mr. Smith refused and then went home.

         Around 9:00 p.m., Mr. Smith walked to the nearby Arby’s Restaurant where his fiancee
worked to get some food. The appellant and Mr. Woods walked to the Circle K, a convenience
store, at around the same time and were on their way back to the apartment complex when they saw
Mr. Smith coming out of Arby’s. The two walked behind Mr. Smith until he stopped to let them
pass. After they passed Mr. Smith, the appellant told Mr. Woods that he was “going [to] get that
man.” Mr. Woods remembered that the appellant had a 9 mm handgun in his possession that
afternoon and evening. When the appellant and Mr. Woods got back to the apartment complex, Mr.
Woods shook the appellant’s hand, went home, and did not see either the appellant or Mr. Smith
again that night.

        Andrea Hodges, another resident of Cedar Mills Apartments, left her residence on the
evening of October 11, 2000, to pick up her daughter from work. As she left her apartment to walk
to her vehicle, she noticed a person walking on the property “who just seemed out of place.” She
described the person as tall and noticed that he was wearing dark pants and a large black “stadium-
type” jacket. As Ms. Hodges drove away from her parking spot towards the exit of the apartment
complex, she saw a man who appeared to be drunk. The man staggered and fell in the street. When
she noticed that the man did not move after falling, she pulled her car over, directed her headlights
toward the area where the man was lying and got out of her car. At that time, she realized that
something was wrong and that the man appeared injured. She thought that the man looked familiar,
but she could not recall his name.

        Once she realized that the man was injured, Ms. Hodges called the police. Looking around
the man on the ground, she noticed that there was an “Arby’s cup rocking back and forth in the
street. There was ice and liquid flowing from the cup. There was [sic] batteries rolling, and the
person was just lying there, and [it] seemed like the CD in the [person’s] CD player was still
spinning.” While she did not notice any blood at first, Ms. Hodges later saw blood coming from the
man’s head. She stated that she “saw him bleeding from his head, and his body started shaking, you
know, trembling and stuff, and then he started throwing up, and you know, jerking until his body just
died.” She did not see a gun anywhere near the body. Ms. Hodges stayed until the police arrived.
The victim died at the scene. Ms. Hodges later learned that the man was Darrel Smith, a resident
of the apartment complex.

         Officer Johnny Lee Byars of the Memphis Police Department was the first officer to arrive
at the scene. He arrived within fifteen to thirty seconds of the initial radio call because he was close
to the area. When he arrived, he saw Ms. Hodges’s car parked in the middle of the road and a body
on the ground. He “noticed a young man in a fetal position” who was “still breathing” and had a
walkman and headphones on his head. Officer Byars also noticed the spilled Arby’s drink. He saw
what he thought were two gunshot wounds in the back of the young man’s head, but he did not see
a gun anywhere around the body.


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        Sergeant Marcus Berryman, a crime scene officer with the Memphis Police Department
arrived at the scene shortly after Officer Byars to document the evidence. He recovered four 9 mm
spent shell casings from the scene, but did not recover a weapon.

        On October 12, the appellant voluntarily went to the police station to speak with the
authorities. Sergeant Nathan Berryman advised the appellant of his rights. The appellant chose to
waive his rights and talk to the police. He was interviewed by Sergeant Gene Hulley and another
officer. During the course of the interview, the appellant gave a statement in which he admitted that
he was responsible for the victim’s death. He maintained that he “was walking home from
Tavarous’ house and . . . [the victim] approached me with a gun, he draw [sic] down on me and
ducked and pulled my pistol and shot three times, and I ran, and that was it.” When asked whether
he and the victim had a disagreement over something, the appellant replied, “It was nothing. I asked
him to let me hit his cigar, he said no. Then he walked off.” The appellant asserted that he fired his
own black 9 mm handgun at the victim and claimed that the victim was armed with a black revolver.
The appellant stated that he was wearing a black shirt, black jogging pants, a black jacket with white
writing, and black tennis shoes with red shoe strings at the time of the incident. He told the officers
that he bought the gun on the street for sixty dollars and that after shooting the victim he threw the
gun into the woods.

        Mr. Smith’s body was examined by Dr. O.C. Smith, the Shelby County Medical Examiner.
He testified that the victim sustained three gunshot wounds. One bullet entered the right back of the
victim’s head, impacting the skull and causing extensive damage to the brain. The bullet exited
behind and above the right ear. A second bullet entered the victim’s right upper back, fracturing a
rib, passing through a lung, passing through another rib, and exiting the front of the body. The third
wound was a “flesh wound” to the elbow. Dr. Smith testified that the shots to the head and chest
were fatal wounds by themselves, but that the cause of the victim’s death was multiple gunshot
wounds. Dr. Smith also determined that there were no powder burns on the victim, indicating that
the weapon was at least two feet away from the victim’s skin when fired. Further, the victim’s drug
screen was negative, and only a small amount of alcohol, .01%, was found in the victim’s blood.

        Mr. Smith was last seen by his mother when he left their apartment to walk to the Arby’s for
chicken sandwiches. Mr. Smith lived at Cedar Mills Apartments with his mother, father, siblings,
fiancee, and daughter, but Mr. Smith and his fiancee had signed a lease for their own apartment the
morning of October 11. Between 9:00 p.m. and 9:30 p.m. that evening, the apartment manager
knocked on the door to the family’s apartment and asked Mr. Smith’s father to come outside and see
if it was indeed his son who was shot.

        The appellant was indicted in early 2001 for the October 11, 2000, first degree murder of
Darrel Smith, the victim. The State sought the death penalty for the offense. After a jury trial, the
jury found the appellant guilty as charged. The penalty phase of the trial began after the verdict of
guilt was rendered, and the jury sentenced the appellant to life in prison without the possibility of
parole. The appellant filed a timely motion for new trial that was denied by the trial court. The
appellant then pursued this appeal, seeking a review of the sufficiency of the evidence.


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                                     Sufficiency of the Evidence

        When a defendant challenges the sufficiency of the evidence, this Court is obliged to review
that claim according to certain well-settled principles. A verdict of guilty, rendered by a jury and
“approved by the trial judge, accredits the testimony of the” State’s witnesses and resolves all
conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994);
State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the accused is originally cloaked
with a presumption of innocence, the jury verdict of guilty removes this presumption “and replaces
it with one of guilt.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the
burden of proof rests with the defendant to demonstrate the insufficiency of the convicting evidence.
Id. The relevant question the reviewing court must answer is whether any rational trier of fact could
have found the accused guilty of every element of the offense beyond a reasonable doubt. See Tenn.
R. App. P. 13(e); Harris, 839 S.W.2d at 75. In making this decision, we are to accord the State “the
strongest legitimate view of the evidence as well as all reasonable and legitimate inferences that may
be drawn therefrom.” See Tuggle, 639 S.W.2d at 914. As such, this Court is precluded from re-
weighing or reconsidering the evidence when evaluating the convicting proof. State v. Morgan, 929
S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.
App. 1990). Moreover, we may not substitute our own “inferences for those drawn by the trier of
fact from circumstantial evidence.” Matthews, 805 S.W.2d at 779.

       In the instant case, the appellant challenges the sufficiency of the evidence. Specifically, the
appellant argues that the evidence does not support a finding of premeditation because there was “no
proof of any prior hostility or altercation between . . . [the victim] and the appellant which would
have led to an attack seemingly without reason.” Further, the appellant argues that the proof does
not support a conviction for homicide greater than either murder in the second degree or voluntary
manslaughter. The State counters that the evidence presented at trial was sufficient to support a
conviction for first degree murder.

        Tennessee Code Annotated section 39-13-202(a)(1) defines first degree murder in pertinent
part as “a premeditated and intentional killing of another.” Tennessee Code Annotated section 39-
13-202(d) provides:

       As used in subdivision (a)(1) “premeditation” is an act done after the exercise of
       reflection and judgment. “Premeditation” means that the intent to kill must have
       been formed prior to the act itself. It is not necessary that the purpose to kill pre-exist
       in the mind of the accused for any definite period of time. The mental state of the
       accused at the time the accused allegedly decided to kill must be carefully considered
       in order to determine whether the accused was sufficiently free from excitement and
       passion as to be capable of premeditation.

Tenn. Code Ann.§ 39-13-202(d). Therefore, in order to convict the appellant of his indicted offense,
the State was required to prove beyond a reasonable doubt that the defendant killed the victim with
“premeditation.” “[W]hether premeditation is present is a question of fact for the jury, and it may


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be inferred from the circumstances surrounding the” commission of the crime. State v. Billy Gene
Debow, Sr., No. M1999-02678-CCA-R3-CD, 2000 WL 1137465, at *4 (Tenn. Crim. App. at
Nashville, Aug. 2, 2000); see also State v. Jerry Ray Davidson, No. M1998-00105-SC-DDT-DD,
2003 WL 22398392, at *10 (Tenn. Oct. 20, 2003); State v. Bland, 958 S.W.2d 651, 660 (Tenn.
1997); State v. Anderson, 835 S.W.2d 600, 605 (Tenn. Crim. App. 1992). Some relevant factors that
tend to support the existence of premeditation include: “the use of a deadly weapon upon an unarmed
victim; the particular cruelty of the killing; declarations by the defendant of an intent to kill; evidence
of procurement of a weapon; preparations before the killing for concealment of the crime, calmness
immediately after the killing,” and evidence that the victim was retreating or attempting to escape
when killed. State v. Jerry Ray Davidson, 2003 WL 22398392, at *10; Bland, 958 S.W.2d at 660;
see also State v. West, 844 S.W.2d 144, 148 (Tenn. 1992). “[T]he fact that repeated blows (or shots)
were inflicted on the victim is not sufficient, by itself, to establish first-degree murder.” State v.
Brown, 836 S.W.2d 530, 542 (Tenn. 1992).

          After a thorough review of the record, we find that there was sufficient evidence introduced
at trial to support a finding that the defendant acted with premeditation. Viewing the evidence in the
light most favorable to the State, the evidence establishes that when the appellant and the victim saw
each other on the day of the incident, they were “looking at each other real funny.” Later that day,
the appellant asked the victim for a “hit” off of his cigar and the victim refused. Tavarous Woods
testified that the appellant told him he was “going [to] get that man” when the two saw the victim
walking home from Arby’s. The State introduced evidence that the appellant was armed with a 9
mm handgun. Furthermore, the appellant admitted shooting the victim with his 9 mm handgun,
although he claimed that he did so only after the victim pulled a gun on him. There was no
additional evidence submitted showing that the victim was armed with a handgun. In fact, the
evidence indicated that no gun was recovered from the scene or from the person of the victim. The
victim was shot in the back of the head, the back, and the elbow. We conclude that the evidence
supports the jury’s decision that the appellant committed first degree murder.

                                               Conclusion

        After thoroughly reviewing the record before this Court, we conclude that there is no
reversible error and accordingly, the judgment of the trial court is affirmed.



                                                         ___________________________________
                                                         JERRY L. SMITH, JUDGE




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