             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT JACKSON

                                OCTOBER 1999 SESSION        FILED
                                                           December 20, 1999

STATE OF TENNESSEE,                     )                Cecil Crowson, Jr.
                                        )              Appellate Court Clerk
                                            C.C.A. NO.W1999-01935-CCA-R3-CD
             Appellee,                  )
                                        )   HARDEMAN COUNTY
VS.                                     )
                                        )   HON. JON KERRY BLACKWOOD,
OSCAR POLK, JR.,                        )   JUDGE
                                        )
             Appellant.                 )   (First-Degree Murder - 2 Counts;
                                        )    Aggravated Assault - 2 Counts)



FOR THE APPELLANT:                          FOR THE APPELLEE:


GARY F. ANTRICAN                            PAUL G. SUMMERS
District Public Defender                    Attorney General & Reporter

RICKEY GRIGGS                               CLINTON J. MORGAN
       -and-                                Asst. Attorney General
SHANA MCCOY-JOHNSON                         Cordell Hull Bldg., 2nd Fl.
Asst. District Public Defenders             425 Fifth Ave., North
P.O. Box 700                                Nashville, TN 37243-0493
Somerville, TN 38068
                                            ELIZABETH RICE
C. MICHAEL ROBBINS                          District Attorney General
46 North Third St., Suite 719
Memphis, TN 38103                           WALT FREELAND
      (On Appeal)                           Asst. District Attorney General
                                            302 Market St.
                                            Somerville, TN 38068-1600




OPINION FILED:



AFFIRMED


JOHN H. PEAY,
Judge
                                    OPINION



              The defendant was convicted by a jury of two counts of first-degree murder

and two counts of aggravated assault. The defendant was sentenced to a term of life

imprisonment for each first-degree murder conviction and a term of four years for each
aggravated assault conviction. The defendant’s subsequent motion for a new trial and/or

judgment of acquittal was denied by the trial court. The defendant now appeals and

contends that the evidence is insufficient to sustain his first-degree murder convictions.
After a review of the record and applicable law, we find no merit to the defendant’s

contentions and thus affirm the judgment of the trial court.



              The evidence presented at trial established that on July 26, 1997, the

defendant went to a local gathering place known as “Luther Griggs” where he

encountered Hester Harris and Ricco Lake. According to witnesses, the defendant asked

Mr. Harris why Mr. Harris no longer spoke to him. An argument ensued, after which the

defendant stood in the road, broke a beer bottle, and said something to the effect of,

“Some of you boys going to die tonight.” The defendant then left Luther Griggs. Later
that evening, the defendant went to a local club known as DeJaVu. Mr. Harris and Mr.
Lake also went to DeJaVu that evening. According to witnesses, the people on the

dance floor at DeJaVu began to engage in a form of dancing known as “gangster
walking.” During this dance, people on the dance floor began bumping into each other.
At some point, the disc jockey turned on the main lights and asked the people on the

dance floor to calm down. After the main lights were turned off, several shots were fired.
Mr. Harris, Mr. Lake, Crystal Brown, and Sheena Cashier were shot. Mr. Harris and Mr.
Lake died as a result of their gunshot wounds.



              At trial, Dennis Tucker testified that he had seen both the defendant and

Kenneth Bills with guns when they ran out of DeJaVu after the shooting. Roshanta Harris

testified that she realized the defendant had a gun seconds before he started shooting.

She testified that she was approximately six or seven feet from the defendant when he

began shooting. Another trial witness, Tony Walker, testified that he was standing on the

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dance floor next to the defendant at the time of the shooting. Mr. Walker stated that he

had seen the defendant shooting a gun and had seen Mr. Harris and Mr. Lake fall to the

ground. Mr. Walker further testified that the defendant had fired four shots in the
direction of Mr. Harris and Mr. Lake and two shots in the direction of the disc jockey

booth. Mr. Walker stated that at the time of the shooting he was also standing near Mr.

Bills, but he had not seen Mr. Bills with a gun.           Antrail Robertson and Michikia
Beauregard were also present at the time of the shooting and both testified that they had

seen the defendant firing a gun. Neither witness had seen anyone else with a gun at that

time.


              The defendant now contends that the evidence with which he was convicted

was insufficient to support his two first-degree murder convictions.            A defendant
challenging the sufficiency of the proof has the burden of illustrating to this Court why the

evidence is insufficient to support the verdict returned by the trier of fact in his or her

case. This Court will not disturb a verdict of guilt for lack of sufficient evidence unless the

facts contained in the record and any inferences which may be drawn from the facts are

insufficient, as a matter of law, for a rational trier of fact to find the defendant guilty
beyond a reasonable doubt. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).



              When an accused challenges the sufficiency of the convicting evidence, we
must review the evidence in the light most favorable to the prosecution in determining

whether “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). We do not

reweigh or re-evaluate the evidence and are required to afford the State the strongest

legitimate view of the proof contained in the record as well as all reasonable and

legitimate inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d

832, 835 (Tenn. 1978).


              The defendant contends that the only proof tending to connect him to these

crimes is the testimony of several State witnesses. The defendant points out that a
defense witness, Rhonda Cross, testified that Mr. Bills was actually the gunman and


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Stephanie Phinnessee testified that she saw Mr. Bills outside DeJaVu with a gun after

the shooting. The defendant also attacks the credibility of Mr. Walker who testified that

the defendant fired the shots that killed Mr. Harris and Mr. Lake. The defendant argues
that the facts established in the record are “wholly insufficient to establish beyond

reasonable doubt that it was the defendant who did the shooting on the night in question

at the DeJaVu Club.”


              It is well settled law that the identity of the defendant as the person who

committed the crime for which he is on trial is a question of fact for the determination of
the jury after consideration of all the competent proof. White v. State, 533 S.W.2d 735,

744 (Tenn. Crim. App. 1975).        In addition, questions concerning the credibility of

witnesses, the weight and value to be given to the evidence, as well as factual issues
raised by the evidence are resolved by the trier of fact, not this Court. Cabbage, 571

S.W.2d 832, 835. A guilty verdict rendered by the jury and approved by the trial judge

accredits the testimony of the witnesses for the State, and a presumption of guilt replaces

the presumption of innocence. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). As

it is within the province of the jury to determine the credibility of witnesses and the weight
to be given to their testimony, it was proper for the jury to accredit the testimony of the

State’s witnesses identifying the defendant as the gunman. The defendant has failed to

illustrate that the proof contained in the record as well as all reasonable and legitimate
inferences which could be drawn therefrom, was insufficient for the jury to find the

defendant guilty beyond a reasonable doubt. The defendant’s contentions are thus

without merit.


              Accordingly, the defendant’s convictions are affirmed.




                                                   _________________________________
                                                   JOHN H. PEAY, Judge



CONCUR:




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______________________________
NORMA M. OGLE, Judge


______________________________
ALAN E. GLENN, Judge




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