                                                                                           12/05/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                               September 6, 2017 Session

               STATE OF TENNESSEE v. COYNICK BOSWELL

                  Appeal from the Criminal Court for Shelby County
                   No. 14-00658       James C. Beasley, Jr., Judge
                      ___________________________________

                           No. W2016-02591-CCA-R3-CD
                       ___________________________________

Following a jury trial, the defendant, Coynick Boswell, was convicted of the first-degree
murder of the victim, Kadrian Woods. On appeal the defendant challenges the
sufficiency of the evidence to support his conviction for premeditated murder and his
request for and instruction on self-defense. Having thoroughly reviewed the record and
although the evidence is sufficient to sustain the jury’s verdict, we conclude that the trial
court erred when it failed to instruct the jury as to self-defense. Accordingly, we reverse
the judgment of the trial court and remand the matter for a new trial.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed;
                                  Case Remanded

J. ROSS DYER, J., delivered the opinion of the court, in which THOMAS T. WOODALL, P.J.,
and NORMA MCGEE OGLE, J., joined.

Michael R. Working, Memphis, Tennessee, for the appellant, Coynick Boswell.

Herbert H. Slatery III, Attorney General and Reporter; David H Findley, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Colin Campbell,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                   Factual Background

   1. Overview

      The defendant was convicted by a jury of first-degree murder on October 26,
2016. This case arises out of an altercation at the Eden Point Apartments in Memphis,
Tennessee on August 23, 2013. The defendant confronted the victim on the stairway of
the apartment complex. The defendant, armed with a handgun, accused the unarmed
victim of giving him counterfeit money. The confrontation escalated, and the defendant
discharged his weapon several times. The victim was struck twice, once in the upper
back and once in the abdomen. The wound in his back caused critical internal injuries
from which he later died. The defendant fled the scene but was later arrested.

        The defendant’s trial focused primarily on the testimony of three witnesses to the
confrontation. First, Brandon Sails testified that the victim had just left his apartment
before encountering the defendant on the stairway. Secondly, Wardell Thomas explained
he accompanied the defendant to Eden Point Apartments. Finally, Carlos Daniel, the
victim’s cousin, testified he was with the victim when they both left Mr. Sails’ apartment.
Only Mr. Thomas and Mr. Daniel were witnesses to the entire altercation, while Mr. Sails
saw most of the fight through his window and open door. All three witnesses positively
identified the defendant in a photo line-up and at trial as the shooter.

        At the conclusion of the trial, the defendant requested an instruction on self-
defense. The trial court denied the request. The jury was instructed on first-degree
murder as well as the lesser included offenses of voluntary manslaughter, reckless
homicide, and criminally negligent homicide. The jury found the defendant guilty of
first-degree murder. The defendant moved for a new trial, which was denied. The
defendant now appeals challenging the failure to instruct the jury to consider self-defense
and arguing there is insufficient evidence to sustain the jury’s verdict.

   2. Witness Testimony

        The State’s proof consisted of testimony from the victim’s mother, the responding
officers, the three witnesses from the scene, and the testimony and report from the
medical examiner. The victim’s mother testified that her son was twenty-three years old
at the time of the shooting. The first officer on the scene, Officer Matthew Dyess,
testified that by the time he responded, the altercation had ended and his main role was
securing the scene for the other officers who were arriving. The State called each of the
three eyewitnesses to testify to their recollection of the events.

       A. Brandon Sails

       Mr. Sails testified that on the night of the shooting, the victim was in Mr. Sails’
apartment “for maybe fifteen to twenty minutes.” Mr. Daniel arrived about a half-hour
before the victim. Mr. Sails testified that the victim and Mr. Daniel left the apartment
together and that he could view them through the open blinds in the living room window
and through his open door. Mr. Sails noted that the victim was not armed when he left
the apartment. As the victim was leaving, Mr. Sails saw two men ascending the stairs
                                           -2-
towards Mr. Daniel and the victim, one of whom he recognized as Mr. Thomas. Mr.
Sails saw Mr. Thomas and Mr. Daniel shake hands and then immediately heard two
gunshots. He then heard the victim shout, “What’s up with you bro?” Mr. Sails testified
he heard nothing spoken between the parties prior to hearing the shots. Mr. Sails stated
he saw the defendant gesture to something at his side during the confrontation. The
following exchange took place between Mr. Sails and the State when he was asked about
the gesture:

      State: Prior to that gesture, did you see [the victim] use any violence against
      the person that made that gesture?

      Mr. Sails: I saw [the victim] charge the person who made the gesture as
      intent to not let him get whatever it was that he gestured at his waist side
      for.

      Sate: Prior to that charge, did you see [the victim] use any violence against
      that person?

      Mr. Sails: It was -- it looked like in defense. Because the way [the victim]
      said, What’s up with you, Bro, it was a scared intent, like he had been
      shocked or something.

      State: I guess my question is: Did you see him -- did you ever see -- prior to
      the gesture, and you just testified that [the victim] is moving towards this
      person as he’s making the gesture, did you see [the victim] punch this
      person prior to him going towards him?

      Mr. Sails: No, sir.

      State: Okay. Did you see [the victim] push [the defendant]? Did you see
      [the victim] injure [the defendant] or anything like that?

      Mr. Sails: No, sir.

      State: Which happened first, the gesture towards the hip or [the victim]
      coming at this person?

      Mr. Sails: The gesture at the hip.

      State: Happened first?

                                           -3-
       Mr. Sails: Yes, sir.

       Through the window, Mr. Sails saw the victim and the defendant “wrestling,” at
which point Mr. Sails retreated further back into his apartment. Mr. Sails then heard one
last shot, after which he made his way back to the door and looked outside his apartment.
When he looked out of his apartment, Mr. Sails saw the victim lying on the ground and
wounded. Mr. Sails testified he later identified the defendant in a photo line-up as the
shooter.

       Upon cross-examination, Mr. Sails testified that while the defendant and the
victim were wrestling, their hands were interlocked. At this point, the victim had the
defendant pressed against the rail. According to Mr. Sails, had the victim pushed the
defendant over the rail the defendant would have fallen two stories “to the bottom.” Mr.
Sails clarified that the defendant was not in a “back-bend tilt” over the rail, but only a
semi-tilt. After seeing the defendant pressed against the rail, Mr. Sails testified he heard
one last shot before everyone involved in the incident “ran off.” Mr. Sails confirmed on
redirect examination that he heard four shots before seeing the defendant and the victim
wrestling by the rail prior to the final shot.

       B. Wardell Thomas

      Mr. Thomas testified that he and the defendant arrived at the Eden Point
Apartments in the early evening on August 23, 2013. Mr. Thomas knew the defendant
was armed when they left for the apartments. He stated they normally keep guns on
themselves for protection. The defendant had the gun tucked into the waist of his pants,
under his shirt.

       Mr. Thomas stated that as he and the defendant climbed the steps to Mr. Sails’
apartment, they encountered the victim and Mr. Daniel leaving the apartment. The victim
asked if they wanted to gamble, but the defendant refused because the victim had given
him forty dollars in counterfeit money three weeks prior. The situation then escalated
when the victim pulled up his pants and the defendant did the same, showing he was
armed with a revolver. The victim asked, “You got a gun?” The defendant replied, “I
just want my money.” Mr. Thomas saw the victim start towards the defendant. The
defendant put up his hands and said “you ain’t got to walk up on me like that.” Mr.
Thomas testified the victim saw and “went for the gun,” but “[the defendant] got it from
him.” According to Mr. Thomas, the defendant had control of the weapon. At that point,
the gun “went off”, and Thomas ran down the steps and away from the fight. Mr.
Thomas testified he heard four or five more shots after he fled the scene.



                                           -4-
       Mr. Thomas admitted his initial statement to police differed from his courtroom
testimony. After the incident, Mr. Thomas initially stated, “[the victim] pulled his pants
up at him, then [the defendant] tried to defend himself by pushing him off. Then [the
defendant] was reaching for his gun while [the victim] was trying to rush him. Then the
gun went off . . . .” Contrastingly at trial, Mr. Thomas stated “[the victim] must have
seen the gun” and gone for it. Mr. Thomas confirmed he heard the defendant say to the
victim “You got me [f**ked] up” at the beginning of the confrontation. When asked
what that phrase meant, Mr. Thomas clarified that it meant the defendant was accusing
the victim of having cheated him. On redirect, Mr. Thomas confirmed the defendant
reached for his gun while the victim was advancing on him. After the shooting, Mr.
Thomas spoke to the defendant on the phone. During the conversation, the defendant
was “paranoid” and wanted to get his and Mr. Thomas’ “stories straight.”

       C. Carlos Daniel

       Mr. Daniel testified he arrived at Mr. Sails’ apartment in the afternoon on August
23, 2013, and the victim arrived as it was “getting dark.” Mr. Daniel stated he and the
victim left Mr. Sails’ apartment shortly after the victim’s arrival. As he opened the door,
Mr. Thomas was just outside. As the victim began to leave, Mr. Daniel saw the
defendant coming up the steps. Daniel heard the defendant say: “You got me [f**cked]
up.” Mr. Daniel testified that when he heard this statement, he had just stepped off the
landing outside the apartment, and the victim was behind him on the landing at the top of
the steps.

        The defendant continued up the steps passing Daniel and shouting at the victim,
“you got me [f**cked] up, you got me [f**cked] up.” Mr. Daniel testified the defendant
accused the victim of passing him counterfeit money. When the victim attempted to walk
past the defendant on the steps, the defendant “bumped” him back up a step. Mr. Daniel
testified the victim then pulled up his pants, and the defendant almost instantly drew and
fired his weapon. Mr. Daniel stated the bullet ricocheted, and the defendant was
attempting to raise his weapon but could not because the defendant and the victim were
wrestling for control of the gun. Mr. Daniel clarified that it was the victim who grabbed
the defendant “when the gun came up” because the defendant “tried to shoot [the victim]
with the gun.”

       Mr. Daniel testified that after the defendant and victim began wrestling with each
other the fight continued up the stairs towards the railing. Mr. Daniel stated that during
the fight the gun went off “five or six” times. Mr. Daniel testified that when the fight
reached the railing on the balcony, the victim slipped and fell to the ground. Mr. Daniel
stated that while the victim was attempting to stand back up, the defendant fired the
weapon into the victim’s back at close range. Mr. Daniel retreated into Mr. Sails’
                                           -5-
apartment after the first shots and watched the fight from the open door of the apartment.
Mr. Daniel testified that Mr. Thomas and the defendant fled after the last shot. Mr.
Daniel confirmed that he later identified the defendant in a photo line-up as the shooter.

        On cross-examination, Mr. Daniel explained that as the fight began both the victim
and the defendant “bumped” each other. Mr. Daniel saw the victim pull up his pants as
he tried to get past the defendant, and at that point, the defendant pulled his weapon and
began firing. Mr. Daniel stated that when the first shot was fired only the defendant’s
hand was on the weapon. When asked repeatedly if the victim ever had his hand on the
weapon, Mr. Daniel confirmed that throughout the entire fight, only the defendant had
control of the weapon. Mr. Daniel testified that towards the conclusion of the fight the
defendant had overpowered the victim, who had slipped down against the railing, and
that is when the defendant shot the victim in the back. When questioned about why his
testimony was different than Mr. Sails’ account, Mr. Daniel explained: “[Mr. Sails] didn’t
see everything I saw. I saw everything. I was out there when everything went on. He
was in the house. They was still in the house with the music on and playing the game.”
Mr. Daniel stated he never saw the defendant being pushed over the railing.

   3. Medical Examiner’s Testimony and Jury Instruction

        The State called Dr. Karen Chancellor, the chief medical examiner for Shelby
County, as its last witness. Dr. Chancellor, an expert in the field of forensic pathology,
testified to her findings after conducting the victim’s autopsy. She explained the manner
of death was due to multiple gunshot wounds. Dr. Chancellor noted the victim suffered
two gunshot wounds which she labeled “Number 1” and “Number 2.” She clarified that
the numbering of the wounds was only organizational, not indicative of which was
inflicted first. Based on her examination, it was not possible to determine the order in
which the wounds were inflicted.

       Dr. Chancellor testified to the details of gunshot “Number 1” stating “gunshot
wound number one [was] on the right side of the upper back, it fractured a posterior part
of a right rib to enter the chest cavity. It went through the right lung, the liver, the
inferior vena cava and the pancreas.” She testified that the wound caused severe internal
bleeding and, absent immediate medical care, would have caused unconsciousness in
under a minute and death within a few minutes.

       Dr. Chancellor stated that based on the stippling around the wound, gunshot
“Number 1” was inflicted from “two to three feet” from the victim’s back. She stated
this was only an estimate because the victim’s shirt was not available for examination,
and it was possible the gun could have been closer. Dr. Chancellor testified that the gun

                                          -6-
would be firing downward towards the victim, but absent more information it would not
be possible to determine the exact position of the gun and the victim.

        Dr. Chancellor testified that gunshot “Number 2” entered the front of the body
“just beneath the rib cage.” Her examination determined gunshot “Number 2” entered
“the abdomen . . . [and] caused injury of the transverse colon. It perforated the small
intestine multiple times. It went through the urinary bladder, entered the left buttock, and
lodges in the medial aspect of the muscular tissues of the left thigh.” Dr. Chancellor
noted this wound could potentially have been fatal, but not immediately, and a victim
could have survived this wound.

        Dr. Chancellor stated the entry wound for gunshot “Number 2” was inflicted from
about “one to six inches” from the victim’s body. When asked on cross-examination
about the range of the gun from the body, Dr. Chancellor testified that without additional
information it would be impossible to determine an exact number within the given range.
She stated the powder stippling indicated the gunshots could have been inflicted from
slightly further away, but it was more likely to have been closer.

        The State rested after Dr. Chancellor’s testimony. After the defendant rested, the
defendant moved the trial court to charge the jury with a self-defense instruction. The
trial court denied the motion stating there was not enough evidence to support self-
defense. The trial court noted the testimony indicated “that from the beginning . . . the
defendant was the more aggressive” party. The jury returned a verdict of guilty on the
charge of first-degree murder.

                                         Analysis

        The defendant appeals his verdict to this Court challenging the sufficiency of the
evidence supporting first-degree murder and the trial court’s failure to instruct the jury on
self-defense. The defendant argues the State failed to provide sufficient evidence to
support premeditation. The State argues there is sufficient evidence to support the jury’s
finding of premeditation. The defendant also claims the trial court should have instructed
the jury on self-defense arguing the defendant shot the victim to avoid being thrown from
the balcony. The State argues that the defendant’s initial aggression and escalation of the
altercation does not entitle him to a self-defense instruction. Upon our thorough review
of the record, we agree with the defendant and reverse the judgment the trial court.

       1. Jury Instruction for Self-Defense

       The Tennessee Supreme Court has established that “sufficient evidence to fairly
raise a general defense ‘is less than that required to establish a proposition by a
                                            -7-
preponderance of the evidence.’” State v. Self, No. E2014-02466-CCA-R3-CD, 2016
WL 4542412, at *59 (Tenn. Crim. App. Aug. 29, 2016), perm. app. denied (Jan. 19,
2017), cert. denied, 137 S. Ct. 2224 (2017) (quoting State v. Hawkins, 406 S.W.3d 121,
129 (Tenn. 2013)). The trial court must consider the evidence in the light most favorable
to the defendant and draw all reasonable inferences in the defendant’s favor. Id. If the
evidence at trial fairly raises a general defense, the trial court is required to provide the
jury with the appropriate instruction. Id. The trial court’s determination of whether to
give or withhold a jury instruction is a mixed question of law and fact that this Court
reviews de novo without a presumption of correctness. Id.

       Relevant to the issue here, Tennessee Code Annotated section 39-11-611(b)
explains that a person acts in self-defense when the person:

       is not engaged in unlawful activity and is in a place where the person has a
       right to be has no duty to retreat before threatening or using force intended
       or likely to cause death or serious bodily injury, if:
       (A) The person has a reasonable belief that there is an imminent danger of
            death or serious bodily injury.
       (B) The danger creating the belief of imminent death or serious bodily
            injury is real, or honestly believed to be real at the time; and
       (C) The belief of danger is founded upon reasonable grounds.

Tenn. Code. Ann. § 39-11-611(b)(2)(A)-(C). Additionally, the threat or use of force
against another is not justified “if the person using force provoked the other individual’s
use or attempted use of unlawful force unless, “[t]he person using force abandons the
encounter or clearly communicates to the other the intent to do so; and the other person
nevertheless continues or attempts to use unlawful force against the person.” Tenn. Code
Ann. § 39-11-611(e)(2)(A-B).

        After reviewing the record, we are persuaded that self-defense was “fairly raised”
in this case. While two of the three eyewitnesses, Mr. Daniel and Mr. Sails, testified that
the defendant was the primary aggressor, reaching for his gun, which caused the victim to
react in self-defense, Mr. Thomas’ testimony seems to call their assessment into question.
Specifically, on cross-examination, Mr. Thomas testified that the victim “pulled his pants
up as in with aggression” and started “coming towards [the defendant].” In turn, the
defendant reacted by “[throwing] his hands up like, Hold up.” The victim then, either
because he knew the defendant had a gun or because he saw the gun in the defendant’s
waist band, reached for the defendant’s gun. Despite being questioned on re-direct
examination about his testimony differing from his initial statement to police, Mr.
Thomas consistently testified that the victim “rushed” the defendant and reached for the
defendant’s waistband and gun.
                                            -8-
        Based on the differences between the eyewitness accounts of Mr. Thomas, Mr.
Sails, and Mr. Daniel, this case presented a question of fact as to whether the defendant
or the victim was the primary aggressor. Mr. Sails’ and Mr. Daniel’s testimony painted a
picture that the defendant pulled a gun on the victim, and the victim responded in self-
defense. However, viewed in a light most favorable to the defendant, Mr. Thomas’
testimony seems to suggest that the victim was the primary aggressor, reaching for the
defendant’s gun which caused the defendant to act in self-defense. Resolution of that
issue was one the jury should have determined after having been properly instructed on
the law of self-defense prior to determining whether the defendant is guilty or not guilty.
When the proof “tends to show” self-defense, it is error to fail to give the instruction.
Souey v. State, 81 Tenn. 472 (1884). Because the jury was not given the benefit of the
instruction and denied the opportunity to evaluate the merit of the claim, we must reverse
the convictions and order a new trial.

       2. Sufficiency of the Evidence to Support First-Degree Murder.

        When the sufficiency of the evidence is challenged, the relevant question for 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.



                                             -9-
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
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.

        At trial, the State was required to prove beyond a reasonable doubt that the
defendant intentionally and with premeditation killed the victim. Tenn. Code Ann. § 39-
13-202(a)(1). “‘Intentional’ refers to a person who 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.” Tenn. Code Ann. § 39-
11-302(a). A premediated act is one done after the exercise of reflection and judgment,
and the intent to kill must have been formed prior to the act. Tenn. Code Ann. § 39-13-
202(d). “It is not necessary that the purpose to kill preexist in the mind of the accused for
any definite period of time.” Id. To be capable of premeditation, however, the accused
must have been sufficiently free from excitement and passion. Id. The existence of
premeditation is a question of fact for the jury to determine based on a consideration of
all of the evidence. See State v. Suttles, 30 S.W.3d 252, 261 (Tenn. 2000). Premeditation
may be inferred from the circumstantial evidence surrounding the crime, including the
manner and circumstances of the killing. See State v. Pike, 978 S.W.2d 904, 914 (Tenn.
1998); State v. Addison, 973 S.W.2d 260, 265 (Tenn. Crim. App. 1997).



                                           - 10 -
       The State provided the following proof to support a finding of first-degree murder.
The State presented testimony from three eyewitnesses who identified the defendant as
the shooter. This testimony was supplemented by the fact that, shortly after the crime,
each eyewitness identified the defendant in a photo lineup. The State provided further
testimony that the defendant fired at least two shots, one into the defendant’s back.
Additionally, the State provided the report of the medical examiner which stated the
gunshots caused the victim’s death. Based on our review of the proof presented, the
evidence is sufficient to establish that the defendant intentionally killed the victim.

      The defendant, however, argues the State failed to meet its burden establishing
premeditation. The Tennessee Supreme Court has further explained premeditation as
follows:

               The elements of premeditation and deliberation are questions for the
       jury which may be established by proof of the circumstances surrounding
       the killing. There are several factors which tend to support the existence of
       these elements which include: the use of a deadly weapon upon an
       unarmed victim; the particularly 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; and calmness
       immediately after the killing.

State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997) (internal citations omitted). However,
State v. Bland does not include an exhaustive list of factors for consideration when
finding premeditation. State v. Adams, 405 S.W.3d 641, 663 (Tenn. 2013). A conclusion
the killing was premeditated may also be supported by the nature of the killing or
evidence establishing a motive. Id. Likewise, lack of provocation by the victim, failure
to render aid, and destruction or secretion of evidence may also support an inference of
premeditation. State v. Larkin, 443 S.W.3d 751, 815-16 (Tenn. Crim. App. 2013)
(internal citations omitted). Finally, the firing of multiple shots can allow a jury to infer
premeditation. State v. Halake, 102 S.W.3d 661, 669 (Tenn. Crim. App. 2001)
(“Additionally, in the instant case the victim was shot multiple times, which although not
indicative of premeditation when considered by itself, can be considered as evidence of
premeditation in addition to other proof of premeditation.”)

       The defendant argues there are insufficient facts to support the circumstances
outlined in Bland. The defendant argues only the preexisting dispute between the
defendant and the victim over the counterfeit forty dollars points to potential
premeditation. The defendant further argues the decision to be armed when he and Mr.
Thomas traveled to Eden Point Apartments was based on personal security, not
premeditation, given the dangerous nature of the neighborhood. The defendant notes he
                                           - 11 -
made no declaration of intent to kill the victim and the encounter at the Eden Point
Apartments occurred by chance. Finally, the defendant argues he shot the victim to
prevent the victim from throwing him from the balcony.

        Upon our review of the record, the State satisfied its burden establishing
premeditation. The State provided testimony that the victim hiked his pants, displaying
to the defendant he was not armed. See Bland, 958 S.W.2d at 660. Additionally, the
State presented eyewitness testimony that the defendant did not render aid and fled
immediately after the final shot was fired. See Larkin, 443 S.W.3d at 815-16. The jury
heard facts that indicate the defendant fired at least four shots during the altercation with
the victim. See Halake, 102 S.W.3d at 669. Additionally, Mr. Daniel testified the
defendant shot the victim in the back after he had stumbled during the fight. Cf. State v.
Daniels, No. M2015-01939-CCA-R3-CD, 2017 WL 1032743, at *8 (Tenn. Crim. App.
Mar. 16, 2017) (citing Bland, 958 S.W.2d at 660) (explaining that a shot from behind is
sufficient to support a finding of premeditation). These facts, in concert with the
defendant’s concession of the preexisting dispute between the defendant and victim, are
sufficient to support a jury’s determination of premeditation. The defendant, therefore, is
not entitled to relief on this issue.

                                        Conclusion

       Based on the foregoing authorities and reasoning, the judgment of the trial court is
reversed and the matter is remanded for a new trial.




                                              ____________________________________
                                              J. ROSS DYER, JUDGE




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