        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs December 11, 2012

             STATE OF TENNESSEE v. ROBERT AARON WHITE

            Direct Appeal from the Circuit Court for Montgomery County
                      No. 40901441     Michael R. Jones, Judge


               No. M2011-01985-CCA-R3-CD                   Filed June 4 th , 2013


Defendant, Robert Aaron White, was indicted by the Montgomery County Grand Jury for one
count of first degree premeditated murder, two counts of aggravated assault, and one count
of possession of a firearm by a convicted felon. Both counts of aggravated assault and the
firearm offense were dismissed prior to trial. Defendant was convicted by a petit jury of the
lesser-included offense of second degree murder and sentenced by the trial court to serve 23
years in the Tennessee Department of Correction. Defendant appeals his conviction and
asserts that the evidence is insufficient to support his conviction and that the trial court erred
by refusing to allow Defendant to cover his facial tattoos during trial. Finding no error, we
affirm the judgment of the trial court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which N ORMA M CG EE O GLE
and R OGER A. P AGE, JJ., joined.

Jeremy W. Parham, Manchester, Tennessee, (on appeal); and James Phillips and Wayne
Clemons, Clarksville, Tennessee, (at trial), for the appellant, Robert Aaron White.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; John Wesley Carney, Jr., District Attorney General; and Robert Nash and J. Lee
Willoughby, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                           OPINION
Facts

      On October 6, 2009, William Rostorfer went to the home of the victim, Jimmy
Yeager, with Mr. Rostorfer’s mother-in-law, Luella Tower, to pick up Mr. Yeager and take
him back to Ms. Tower’s house. When they arrived, Mr. Yeager “was upset.” Mr. Rostorfer
testified that Mr. Yeager was on the phone “with some guy, and they were arguing and
fighting.” As they were getting ready to leave, they saw a red car “coming down the hill.”
The car drove slowly past the driveway and turned around and came back. Mr. Rostorfer and
Mr. Yeager handed their keys and wallet to Ms. Tower and walked down the driveway
toward the road. Mr. Rostorfer testified that he “was just worried [Mr. Yeager] might get
jumped[.]” He testified that the red car stopped in front of the driveway, and he heard “‘I’ve
got something for you and pop.” He heard “a couple of pops [gunshots],” and he ducked and
ran. He could not see how many people were inside the car. He saw a “flash coming out of
the car.” He testified that the victim “was squirting blood out of his back,” and thus Mr.
Rostorfer knew the victim had been shot. The victim told Mr. Rostorfer that Defendant “was
the one that did it.” Mr. Rostorfer did not know Defendant before the incident. He testified
that since the incident, Defendant told him, “‘if nobody testified[,] then [Rostorfer’s] family
would quit getting threatened.’” Defendant told him that while the two men were
incarcerated together. He testified that he and the victim were about ten feet away from the
car when the shots were fired and that no one ever got out of the car.

       Luella Tower testified that Mr. Yeager had called her on the night of the incident and
asked her to pick him up and take him to her house. When she got there he told her that
someone was coming to his house to fight him. She testified that they were standing in the
driveway talking. Mr. Yeager said that he was going inside to get a shirt when they saw a
car drive down the street and turn around. Mr. Yeager said, “‘that’s him’” and told Ms.
Tower to get in her car. She got in her car and watched Mr. Yeager and Mr. Rostorfer walk
down the driveway towards the car. They said they didn’t “want no trouble [sic].” She then
heard someone inside the car say “‘I got something for you,” and she heard gunshots. She
could not identify anyone inside the vehicle. Mr. Gay lay Mr. Yeager in the grass. Mr.
Yeager told Ms. Tower that he was dying and that Defendant had shot him.

        Scott Gay went to Mr. Yeager’s house with Ms. Tower. He testified that when they
arrived, Mr. Yeager “was saying something about fighting somebody, with Robert or with
Rob.” Mr. Gay was standing in Mr. Yeager’s driveway when he saw a red car drive past and
turn around and stop at the end of the driveway. Mr. Yeager said, “here he is,” and Mr.
Yeager and Mr. Rostorfer walked towards the car. Mr. Yeager saw the driver of the vehicle
and identified Defendant at trial as the driver. Mr. Gay heard Mr. Yeager say, “holy shit” and
run back up the driveway. Mr. Gay then heard gunshots and saw Mr. Yeager get hit. Mr.
Gay testified that “about three weeks [earlier, Defendant] jumped [him] from behind.” He
testified that he went to Mr. Yeager’s house on that prior occasion “because he ha[d] some
beers over there,” and that Defendant was also there. Mr. Gay testified that it was a “one-
sided beating.”




                                              -2-
       Assistant medical examiner John Davis performed the victim’s autopsy. The victim
died from a gunshot wound to the torso, and the manner of death was homicide. The bullet
entered the victim’s back and exited his chest. There was no soot or stippling around the
wound, indicating that the victim was shot from “at least two feet away.” The victim had
multiple tattoos on his arms, torso, head and neck. A toxicology report indicated that the
victim had ethanol in his blood, which Dr. Davis testified “equates to about a [.13] blood
alcohol [content].” On cross-examination, Dr. Davis testified that the “entrance wound
would look different” had it hit something else, like the ground, before hitting the victim.
He testified that “once [the bullet] stops its spin . . . it leaves a different mark.”

       Investigators recovered two shell casings in the road. The victim and Mr. Gay and
Mr. Rostorfer were unarmed. Investigators also found a Taurus nine millimeter handgun and
a 9 millimeter spent shell casing in Defendant’s vehicle. There was a magazine with two
rounds in it.

       Tennessee Bureau of Investigation (TBI) Agent James Davis analyzed Defendant’s
clothing and found “the presence of particles that were unique to gunshot primer residue[,]”
indicating that the clothing was near a gun at the time it was fired or came in contact with a
recently fired weapon.

        TBI Agent Teri Arney testified that the two shell casings found at the crime scene and
the shell casing found in Defendant’s vehicle were all fired from the handgun found in
Defendant’s vehicle. Agent Arney observed during his test firing of the handgun that the
shell casings ejected to the right “at 3:00” and traveled two to five feet. He testified that if
the firearm was fired from a “sideways” position, it would change the trajectory of the shell
casings, but he fired it from an upright position. Agent Arney fired the weapon five times.
Agent Arney also testified that in his experience firing nine millimeter handguns, he aimed
at the target by extending his arm in front of him and visually lining up the sites with the
target.

        Margarita Yeager, the victim’s mother, testified that she met Defendant in November,
2008, while visiting her granddaughter, who was the daughter of Defendant’s girlfriend. Ms.
Yeager testified that she went to Defendant’s girlfriend’s apartment to pick up her
granddaughter for visitation, and Defendant was always there because “he didn’t work.” She
testified that beginning in 2009, Defendant took Ms. Yeager’s granddaughter to Ms.
Yeager’s house because “he want[ed] to give her to me because she was in the way I guess.”
Ms. Yeager testified that Defendant had expressed his desire for her to have custody of her
granddaughter. Defendant told her that “he [was] going to make the mom sign her to [Ms.
Yeager[.]”



                                              -3-
        Defendant testified that he was 29 years old at the time of trial. He moved with his
then wife from California to Tennessee in 2004. In October 2009, he was living in
Clarksville with his girlfriend, Valerie Estep, and Ms. Estep’s child Kaylee. The victim’s
brother Darren was the father of Ms. Estep’s child, and Defendant took the child to see the
victim and his mother because “Valerie d[id]n’t want nothing [sic] to do with the Yeagers,
whether it’s Margarita [the child’s grandmother] or Kaylee’s father.” Defendant testified,
“I like Margarita. I feel bad for what happened. I liked Jimmy.” Defendant testified that
before they “started falling out towards the end of [their] relationship [they] were always
together.” Defendant eventually “cut[ ] ties with [the victim]” because of incidents between
Ms. Yeager and Ms. Estep involving the victim’s niece. Defendant testified that for two
weeks prior to the shooting, he refused to answer Mr. Yeager’s phone calls.

        Defendant testified that he gave Mr. Yeager tattoos. He testified that Mr. Yeager
wanted a tattoo on his face, and Defendant “wrote Kaylee [and] stamped it on his face.” He
also “put a cross on his cheek . . . , and [he] put a teardrop on his eye . . . , on his left side.”
Defendant also “put So Cal for southern California” on Mr. Yeager’s neck. Defendant
testified that Mr. Yeager wanted a teardrop tattoo “[b]ecause [Yeager] told [Defendant] he
[had] killed someone before.”

        Defendant testified that on October 6, 2009, Mr. Yeager “wanted to fight” him. He
testified that Mr. Yeager “wouldn’t stop calling,” and Defendant tried to ignore Mr. Yeager’s
calls. Defendant testified that he “didn’t want no [sic] problem” and that he “was already
scared of [Mr. Yeager].” Defendant drove to Mr. Yeager’s house and took “some beers”
with him. As he approached the house, he saw Mr. Yeager and “that big ole white boy,” and
Defendant drove past the house and turned around because the road ended at a dead end. As
he drove back towards the house, he saw Mr. Yeager and Mr. Rostorfer throwing their shirts
down and “com[ing] down the driveway.” He saw Mr. Rostorfer “reaching behind his back.”
Rostorfer and Yeager were “about seven to ten feet” away from Defendant’s car, and
Defendant “grab[bed] [his] pistol [and he] bust twice.” He testified that the two men were
larger than him and they were “bum-rushing him” and he was afraid they were “going to beat
the shit out of [him].” Defendant shot twice. Then he turned away from them and shot once
more and drove away. Defendant testified that he “never, ever, ever, ever, never once . . .
aimed at anybody; [he] never once deliberately tried to shoot [Yeager].” He testified he “was
trying to back them up off of [him]” and that he “had zero intentions of killing anybody.”

       Defendant testified that he drove to a bar called Buddy’s Place after he left the
victim’s house. He later parked his car at a motorcycle club called The Dragon’s and left
with some friends to get beer. Defendant did not change clothes or do anything else to hide
the fact that he had fired shots at the victim’s home because he “didn’t think anybody got
shot.” When he was later stopped by the police, he hid his gun under the passenger’s seat.

                                                -4-
He did not believe detectives when they told him that the victim had died. He believed he
was being pulled over because he had been drinking and he was “in a drug area[.]”

Analysis

       Defendant contends that the evidence was insufficient to support his conviction for
second degree murder. Specifically, Defendant argues that the evidence failed to show that
Defendant “was ‘reasonably certain’ that discharging his weapon would result in the victim’s
death.” Defendant also asserts that the evidence “was overwhelming” that Defendant’s
conduct was justified by self-defense.

       When an accused challenges the sufficiency of the convicting evidence, the standard
of review 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) (emphasis in
original); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004); see also Tenn. R. App. P.
13(e). “[T]he State is entitled to the strongest legitimate view of the evidence and to all
reasonable and legitimate inferences that may be drawn therefrom.” State v. Smith, 24
S.W.3d 274, 279 (Tenn. 2000). The trier of fact is to resolve questions about the credibility
of witnesses, the weight and value of the evidence, as well as all factual issues raised by the
evidence, and an appellate court must not reweigh or re-evaluate the evidence. State v.
Evans, 108 S.W.3d 231, 236 (Tenn. 2003). An appellate court may not “substitute its
inferences drawn from circumstantial evidence for those drawn by the trier of fact.” State
v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002).

        A jury verdict approved by the trial court accredits the State’s witnesses and resolves
all conflicts in the evidence in favor of the State. State v. Grace, 493 S.W.2d 474, 476
(Tenn. 1973). “Because a verdict of guilt removes the presumption of innocence and
imposes a presumption of guilt, the burden shifts to the defendant upon conviction to show
why the evidence is insufficient to support the verdict.” State v. Thacker, 164 S.W.3d 208,
221 (Tenn. 2005). These rules are applicable to findings of guilt predicated upon direct
evidence, circumstantial evidence, or a combination of both direct and circumstantial
evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).
Moreover, the State does not have a duty to exclude every other reasonable hypothesis except
that of guilt. State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011).

       Second degree murder is the knowing killing of another. Tenn. Code Ann. § 39-13-
210. A person acts knowingly with respect to the result of his conduct when he is aware that
such conduct is reasonably certain to cause the death of the victim. Id. § 39-11-106(a)(20).



                                              -5-
        The evidence, taken in a light most favorable to the State, shows that the victim called
Luella Tower and asked her to pick him up and drive him to her house because he feared that
someone was coming to his house to assault him. Defendant drove by the victim’s house and
turned around. The victim and Mr. Rostorfer approached Defendant’s car and said that they
did not want any trouble. Defendant responded, “I’ve got something for you,” and fired three
shots. One of the shots struck the victim in the back as he ran away from Defendant’s car.
The gun recovered from Defendant matched a spent shell found at the scene, and Defendant
had gunshot residue on his clothes. The victim identified Defendant as the person who shot
him. We conclude that this evidence is sufficient to establish that Defendant knowingly
killed the victim.

        Defendant argues that the evidence did not establish that Defendant was reasonably
certain that firing his gun in the victim’s direction would result in the victim’s death.
Defendant points to forensic testimony that suggested Defendant may have fired one of the
shots with his gun turned sideways, causing one of the spent shells to eject at a different
angle than the others. We do not agree that the evidence supports this conclusion. Agent
Arney gave no opinion as to whether the angle at which Defendant held the gun
demonstrated his intent, or lack thereof, to hit the victim. Although Defendant testified that
he did not aim his gun at the victim, the jury clearly discredited his testimony. It was
certainly reasonable for the jury to conclude that Defendant was aware his conduct was
reasonably certain to cause the victim’s death. See State v. Ely, 48 S.W.3d 710, 723-24
(Tenn. 2001) (affirming the defendant’s conviction for second degree murder and stating,
“[t]he evidence shows that the defendant aimed and fired a handgun in the general direction
of a van containing three people. Such conduct clearly falls within the definition of knowing
conduct because [the defendant] had to be aware that he was reasonably certain to strike and
kill one of those people.”).

      Defendant also asserts that the State failed to prove that Defendant did not act in self-
defense. Tennessee’s self-defense statute, as codified at the time of the offense in this case,
provided as follows:

        A person is justified in threatening or using force against another person
        when and to the degree the person reasonably believes the force is
        immediately necessary to protect against the other’s use or attempted use of
        unlawful force. The person must have a reasonable belief that there is an
        imminent danger of death or serious bodily injury. The danger creating the
        belief of imminent death or serious bodily injury must be real, or honestly
        believed to be real at the time, and must be founded upon reasonable
        grounds. There is no duty to retreat before a person threatens or uses force.

Tenn. Code Ann. § 39-11-611(a) (2006 Repl.).


                                              -6-
       When a defendant relies upon a theory of self-defense, the State bears the burden of
proving that the defendant did not act in self-defense. State v. Sims, 45 S.W.3d 1, 10 (Tenn.
2001). Further, it is well-settled that whether an individual acted in self-defense is a factual
determination to be made by the jury as the sole trier of fact. State v. Ivy, 868 S.W.2d 724,
727 (Tenn. Crim. App. 1993). It is within a jury’s prerogative to reject a claim of
self-defense. State v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997).

        Defendant asserts that “[m]ultiple witnesses” offered testimony that supports his
assertion that the victim and Rostorfer intended to shoot him or drag him from his vehicle
and beat him. However, the jury rejected this testimony. Defendant points to the testimony
of Rostorfer and Luella Tower that Rostorfer and the victim gave Ms. Tower their keys and
wallets before approaching Defendant’s car, indicating that they intended to fight Defendant.
While there was evidence at trial that the victim anticipated a fight with Defendant, we
conclude that the State sufficiently proved that Defendant did not act in self-defense when
he fired three shots out of his car window at Rostorfer and the victim, striking the unarmed
victim in the back, and then drove away. Although Defendant testified that he was afraid of
Yeager and Rostorfer, he drove to Yeager’s house and fired his gun from a moving car
without knowing whether the victim was armed or unarmed. The evidence supports the
jury’s rejection of Defendant’s self-defense claim.

        Next, Defendant asserts that he was “unfairly prejudiced by the trial court’s refusal
to allow” Defendant to cover his facial tattoos with makeup during trial. (Emphasis added).
Defendant also asserts that his tattoos “had no relevant purpose at trial” because he did not
dispute his identity as the shooter. The State responds that Defendant has waived this issue
by failing to raise it at trial. We have reviewed the record and find no request by Defendant
to the trial court to allow him to cover his facial tattoos. Defendant first raised the issue in
his motion for new trial.

        We conclude that waiver of this issue is appropriate based on Defendant’s failure to
make a contemporaneous objection. Appellate relief is typically not available when a party
has “failed to take whatever action was reasonably available to prevent or nullify the harmful
effect of any error.” Tenn. R. App. P. 36(a). This failure prevented the court from correcting
the harmful effect of any alleged error. Accordingly, this issue is waived.

                                       CONCLUSION

       Having reviewed the record before us, we affirm the judgment of the trial court.

                                                    _________________________________
                                                    THOMAS T. WOODALL, JUDGE

                                              -7-
