             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT JACKSON

                            FEBRUARY 1997 SESSION
                                                         FILED
                                                           July 28, 1997

STATE OF TENNESSEE,                 )                    Cecil Crowson, Jr.
                                    )                    Appellate C ourt Clerk
                     APPELLEE,      )
                                    )    No. 02-C-01-9604-CR-00125
                                    )
                                    )    Shelby County
v.                                  )
                                    )    John P. Colton, Jr., Judge
                                    )
                                    (    (First Degree Murder and Attempt to
                                    )     Commit First Degree Murder)
ERIC D. WALLACE,                    )
                                    )
                   APPELLANT.       )



FOR THE APPELLANT:                       FOR THE APPELLEE:

W. Mark Ward                             John Knox Walkup
Assistant Public Defender                Attorney General & Reporter
147 Jefferson Avenue, Suite 900          500 Charlotte Avenue
Memphis, TN 38103                        Nashville, TN 37243-0497

Betty Jo Thomas                          Daryl J. Brand
Assistant Public Defender                Assistant Attorney General
201 Poplar Avenue, Suite 2-01            450 James Robertson Parkway
Memphis, TN 38103                        Nashville, TN 37243-0393

OF COUNSEL:                              William L. Gibbons
                                         District Attorney General
A C Wharton, Jr.                         201 Poplar Avenue, Suite 3-01
Shelby County Public Defender            Memphis, TN 38103
201 Poplar Avenue, Suite 2-01
Memphis, TN 38103                        Jerry R. Kitchen
                                         Assistant District Attorney General
                                         201 Poplar Avenue, Suite 3-01
                                         Memphis, TN 38103




OPINION FILED:_____________________________

AFFIRMED

Joe B. Jones, Presiding Judge
                                    OPINION


       The appellant, Eric D. Wallace (defendant), was convicted of first degree murder

and attempt to commit first degree murder, a Class A felony, by a jury of his peers. The

defendant was sentenced to life in the Department of Correction for the offense of murder

first degree. The trial court, finding the defendant to be a standard offender, imposed a

Range I sentence consisting of confinement for fifteen (15) years in the Department of

Correction for the offense of attempt to commit first degree murder. The sentences are to

be served consecutively. In this Court the defendant contends (a) the evidence is

insufficient to support his convictions and (b) the trial court abused its discretion by

ordering the sentences to be served consecutively. After a thorough review of the record,

the briefs submitted by the parties, and the law governing the issues presented for review,

it is the opinion of this Court that the judgment of the trial court should be affirmed.

       On the evening of July 10, 1992, the defendant and his brother, Percy Wallace,

were walking along Woodlawn Street in Memphis. When they were passing the Weddle

residence, they saw Jimmy Weddle, known in the neighborhood as “Jim Bodey,” sitting on

his front porch with several people visiting the Weddle residence. The Wallace brothers

asked Weddle to meet them on the sidewalk. They asked Weddle if he knew of anyone

who wanted to purchase illicit narcotics. Weddle told the Wallaces there was a woman and

a man who desired to make a purchase. The Wallaces told Weddle to send the individuals

to them. They then walked down the street until they came to the next intersection,

Woodlawn and Looney.

       Boo Boo Fox, who was driving through the neighborhood, stopped to purchase

drugs from the Wallaces. Weddle walked to the intersection after Fox stopped his vehicle.

Fox asked for a $20 rock of crack cocaine. He gave the Wallaces $15. He was told he

did not have enough money to purchase the rock. Fox told the Wallaces he would go to

the vehicle and get more money. Fox reached inside the vehicle, obtained a pistol, and

told the Wallaces to give him all of the illicit narcotics and money they had on them. He

also made them lay on the ground.          Weddle began walking backwards toward his

residence. Fox obtained the money and drugs, and he fired at the Wallaces. It appears


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he grazed Percy Wallace. Fox then drove away.

       When Fox left, the Wallaces ran toward their residence. Percy Wallace and the

defendant each obtained a shotgun. They then went to the Weddle residence as they

believed Weddle had assisted Fox in the robbery. Approximately ten to fifteen minutes

expired between the robbery and the appearance of the Wallaces at the Weddle

residence.

       When the Wallaces arrived, Weddle and his guests were still sitting on the front

porch. Percy Wallace asked, “Where is Jim Bodey?” He then exclaimed, “Jim Bodey you

a dead man [sic].” When the people saw the Wallaces were armed, they began running

into the Weddle residence. Percy Wallace fired at Weddle. The shot struck the exterior

of the Weddle residence. Percy Wallace then forced his way into the Weddle residence

and fired the shotgun two more times in an effort to shoot Weddle.

       While Percy Wallace was attempting to reload his shotgun, he told the defendant

to shoot anyone who exited the residence. Shortly thereafter, the victim, Venita Swift, who

was celebrating her birthday at the Weddle residence, decided to exit the residence and

go home. She lived across the street from the Weddles. As she ran from the residence

with her arms raised above her head, the defendant stated: “Hold, bitch.” Swift looked at

the defendant, but she kept running. The defendant raised his shotgun and fired at Swift.

She subsequently fell in the street. A few minutes later she died.

       The buckshot from the shotgun struck Swift in the back below her left shoulder. The

pellets continued through her body. Wadding from the shotgun blast was found under

Swift’s skin. Numerous pellets entered her body. The pellets went through the victim’s left

lung and struck her heart. The pellets also struck the victim’s aorta, stomach, spleen, and

liver. Two wadding wounds were found. The pathologist estimated that over 100 pellets

entered the victim’s body. He also estimated the shotgun was approximately ten to fifteen

feet from the victim when it was fired. The pathologist testified the cause of death was the

shotgun wound inflicted by the defendant.

       The defendant was arrested by the police at his place of employment. He was given

the Miranda warnings. He readily admitted he shot the victim. He cooperated with the

police in an effort to obtain evidence of the murder. However, during the trial, the



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defendant testified the police did not advise him of the Miranda warnings, and he did not

read the statement before signing it. He emphatically denied shooting the victim. He

testified he told the victim to “get down.”



                                              I.



       The defendant contends the evidence is insufficient, as a matter of law, to support

his conviction for felony murder. He argues the State of Tennessee failed to establish the

elements of attempt to commit first degree murder, the felony used by the state to establish

the crime.

                                              A.



       When an accused challenges the sufficiency of the convicting evidence, this Court

must review the record to determine if the evidence adduced at trial is sufficient "to support

the finding by the trier of fact of guilt beyond a reasonable doubt." Tenn. R. App. P. 13(e).

This rule is applicable to findings of guilt based upon direct evidence, circumstantial

evidence, or a combination of direct and circumstantial evidence. State v. Dykes, 803

S.W.2d 250, 253 (Tenn. Crim. App.), per. app. denied (Tenn. 1990).

       In determining the sufficiency of the convicting evidence, this Court does not

reweigh or reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.

App.), per. app. denied (Tenn. 1990). Nor may this Court substitute its inferences for those

drawn by the trier of fact from circumstantial evidence. Liakas v. State, 199 Tenn. 298,

305, 286 S.W.2d 856, 859, cert. denied, 352 U.S. 845, 77 S.Ct. 39, 1 L.Ed.2d 49 (1956).

To the contrary, this Court is required to afford the State of Tennessee the strongest

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

legitimate inferences which may be drawn from the evidence. State v. Cabbage, 571

S.W.2d 832, 835 (Tenn. 1978).

       Questions concerning the credibility of the witnesses, the weight and value to be

given the evidence, as well as all factual issues raised by the evidence are resolved by the

trier of fact, not this Court. Cabbage, 571 S.W.2d at 835. In State v. Grace, 493 S.W.2d



                                              3
474, 476 (Tenn. 1973), our Supreme Court said: "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."

       Since a verdict of guilt removes the presumption of innocence and replaces it with

a presumption of guilt, the accused, as the appellant, has the burden in this Court of

illustrating why the evidence is insufficient to support the verdicts returned by the trier of

fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This Court will not disturb a

verdict of guilt due to the sufficiency of the evidence unless the facts contained in the

record are insufficient, as a matter of law, for a rational trier of fact to find that the accused

is guilty beyond a reasonable doubt. Tuggle, 639 S.W.2d at 914.



                                               B.



       Before an accused can be convicted of murder in the perpetration of a felony, the

State of Tennessee is required to prove beyond a reasonable doubt (a) the accused

recklessly killed the victim and (b) the killing occurred during the perpetration, or attempt

to perpetrate, one of the enumerated felonies set forth in the statute. Tenn. Code Ann. §

39-13-202(a)(2).     In this case, the State of Tennessee’s theory was the defendant

recklessly killed the victim while the defendant and his brother were attempting to commit

murder in the first degree. The intended victim was Jimmy Weddle.

       The defendant does not challenge the fact he recklessly killed the victim. The

evidence of this fact is overwhelming. The defendant gave the police officers a statement

admitting he shot and killed the victim. In addition, several eyewitnesses testified the

defendant was the person who shot and killed the victim. However, the defendant

contends he did not commit the offense of attempt to commit murder first degree. He

argues the State of Tennessee failed to establish the offense was committed with

deliberation, which is to say “committed with coolness and reflection and without passion

or provocation.”

       The question this Court must resolve is whether the element of deliberation was

established by the evidence.



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                                             C.



        When this offense was committed, the term deliberation was defined by statute as

an act “performed with a cool purpose.” Tenn. Code Ann. § 39-13-201(b)(1). The

defendant contends his status of being a victim of the robbery, the shooting, and his belief

Weddle was acting in concert with Fox created excitement and passion. He argues this

excitement and passion had not subsided prior to the criminal conduct in question.

        In this case, the defendant and his brother, Percy, left the situs of the armed

robbery-shooting, went to their residence, armed themselves with shotguns, and went to

the Weddle residence. A rational jury could have found fifteen minutes elapsed from the

time of the robbery-shooting and the defendant’s appearance at the Weddle residence.

        A reasonable and prudent person would have called the police and reported the

crime. If the Wallaces reported the robbery-shooting to the police, they would have had

to admit they were selling illicit narcotics, and Fox took their money and illicit narcotics.

Thus, they did not report the crime to the police. However, the Wallaces felt compelled to

establish there was a price to pay when someone committed a criminal act against them.

In other words, the Wallaces wanted to deter such conduct in the future. They became the

police, judge, jury, and executioner.

        There was a concerted effort to kill Weddle. Percy Wallace fired at Weddle as he

ran into the dwelling. He then forced his way into the dwelling where he fired twice. While

Percy Wallace was attempting to reload the shotgun, he told the defendant to shoot

anyone who left the dwelling. When the innocent victim left the residence with her hands

held above her head, the defendant shot her in the back from a distance of ten to fifteen

feet.

        This Court concludes the evidence contained in the record supports a finding by a

rational trier of fact the defendant recklessly shot the victim during an attempt to commit

first degree murder beyond a reasonable doubt. Tenn. R. App. P. 13(e). See Jackson v.

Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Based upon the facts

contained in the record, the jury could reasonably conclude sufficient time had elapsed for

any excitement or passion to dissipate.



                                             5
       This issue is without merit.



                                              II.



       The defendant contends the trial court abused its discretion by ordering his

sentences to be served consecutively. He argues the record fails to establish he “is an

offender whose record of criminal activity is extensive.” Tenn. Code Ann. § 40-35-

115(b)(2).

                                              A.



       When an accused challenges the manner of service of sentences, it is the duty of

this Court to conduct a de novo review on the record with a presumption that "the

determinations made by the court from which the appeal is taken are correct." Tenn. Code

Ann. § 40-35-401(d). This presumption is "conditioned upon the affirmative showing in the

record that the trial court considered the sentencing principles and all relevant facts and

circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1994). The presumption

does not apply to the legal conclusions reached by the trial court in sentencing the accused

or to the determinations made by the trial court which are predicated upon uncontroverted

facts. State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v. Smith, 891

S.W.2d 922, 929 (Tenn. Crim. App.), per. app. denied (Tenn. 1994); State v. Bonestel,

871 S.W.2d 163, 166 (Tenn. Crim. App. 1993). However, this Court is required to give

great weight to the trial court's determination of controverted facts as the trial court's

determination of these facts is predicated upon the witnesses' demeanor and appearance

when testifying.

       In conducting a de novo review of a sentence, this Court must consider (a) any

evidence received at the trial and/or sentencing hearing, (b) the presentence report, (c) the

principles of sentencing, (d) the arguments of counsel relative to sentencing alternatives,

(e) the nature and characteristics of the offense, (f) any mitigating or enhancing factors, (g)

any statements made by the accused in his own behalf, and (h) the accused's potential or

lack of potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-103 and -210;



                                              6
State v. Scott, 735 S.W.2d 825, 829 (Tenn. Crim. App.), per. app. denied (Tenn. 1987).

       The party challenging the sentences imposed by the trial court has the burden of

establishing that the sentences are erroneous. Sentencing Commission Comments to

Tenn. Code Ann. § 40-35-401; Ashby, 823 S.W.2d at 169; Butler, 900 S.W.2d at 311.

In this case, the defendant has the burden of illustrating the sentences imposed by the trial

court are erroneous.

                                              B.



       The record does not support a finding that the defendant has a record of extensive

criminal activity. Tenn. Code Ann. § 40-35-115(b)(2). The presentence report establishes

the defendant has been convicted of two counts of felony possession of cocaine with intent

to sell, reckless driving, and driving while license suspended. No evidence was introduced

during the sentencing hearing. It appears the trial court considered mere arrests and

charges which were either nolle prossed or dismissed to support the finding of extensive

criminal conduct.     These entries in the presentence report should not have been

considered.

       Consecutive sentencing was warranted. Here, the defendant was on probation

when he committed the offenses in question. Tenn. Code Ann. § 40-35-115(b)(6). The

defendant was convicted of felony possession of cocaine on May 25, 1989 in the Criminal

Court of Shelby County, Tennessee. He was placed on five years probation. The offense

in question occurred on July 10, 1992.

       Given the defendant’s prior convictions, the outstanding indictments for a felony

drug offense and another murder first degree, and the facts in this case, the citizens of

Tennessee need to be protected from the defendant’s future criminal conduct. The

defendant has several drug-related convictions. Yet, he is only 25 years of age. The

record establishes the defendant is beyond rehabilitation; and he will continue to engage

in criminal activity if released into society. His history of criminal convictions supports this

conclusion. See State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995).




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                                ___________________________________
                                   JOE B. JONES, PRESIDING JUDGE


CONCUR:




______________________________________
        JOHN H. PEAY, JUDGE




______________________________________
        JOE G. RILEY, JUDGE




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