        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON

                          AUGUST SESSION, 1999
                                                     FILED
                                                      October 6, 1999
STATE OF TENNESSEE,            )      C.C.A. NO. 02C01-9809-CC-00287
                                                   Cecil Crowson, Jr.
                               )
                                                  Appellate Court Clerk
      Appellee,                )
                               )
                               )      MADISON COUNTY
VS.                            )
                               )      HON. WHIT LAFON,
KEL VIN LE E YO UNG , JR.,     )      JUDGE
                               )
      Appe llant.              )      (First Degree M urder)


                ON APPEAL FROM THE JUDGMENT OF THE
                 CIRCUIT COURT OF MADISON COUNTY


FOR THE APPELLANT:                    FOR THE APPELLEE:

BILL ANDERSON, JR.                    PAUL G. SUMMERS
142 North Third Street, Third Floor   Attorney General and Reporter
Memphis, TN 38103
                                      J. ROSS DYER
                                      Assistant Attorney General
                                      425 Fifth Avenu e North
                                      Nashville, TN 37243

                                      JERRY W OODALL
                                      District Attorney General

                                      JAMES W. THOMPSON
                                      Assistant District Attorney General
                                      Lowell Thomas State Office Building
                                      Jackson, TN 38301




OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                    OPINION

         The Defendant, Kelvin Lee Young, Jr., was tried before a jury and convicted

of first degree mu rder. 1 He was sentenced to imp risonm ent for life . He ap peals

as of right, arguing that the evidence presented at trial is ins ufficien t to sup port his

conviction . We disagree and affirm the judgm ent of the tria l court.



                 Tennessee Rule of Appellate Procedure 13(e) prescribes that

“[f]indings of guilt in criminal actions whether by the trial court or jury shall be set

aside if the evidence is insufficient to support the finding s by the trier of fac t of guilt

beyond a reasona ble doubt.” Tenn . R. App. P. 13(e). In addition, because

conviction by a trier of fact destroys the presumption of innocence and imposes

a presumption of guilt, a convicted criminal defendant bears the burden of

showing that the evid ence w as insufficie nt. McBe e v. State, 372 S.W.2d 173, 176

(Tenn. 1963); see also State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992) (citing

State v. Grace, 493 S.W .2d 474, 476 (Tenn. 1976), and State v. Brown, 551

S.W.2d 329, 33 1 (Ten n. 1977 )); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.

1982); Holt v. State , 357 S.W .2d 57, 61 (T enn. 1962 ).



         In its review of the evidence, an appellate court must afford the State “the

strongest legitim ate view of the e videnc e as w ell as all reaso nable and legitim ate

inferences that ma y be draw n therefro m.” Tug gle, 639 S.W.2d at 914 (citing State

v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)). The court may not “re-weigh or

re-evalua te the evidence” in the reco rd below . Evans, 838 S.W.2d at 191 (citing



1
    Tenn. Code Ann. § 39-13-202.

                                             -2-
Cabbage, 571 S.W .2d at 836 ). Likewise, shou ld the reviewing co urt find particular

conflicts in the trial testimony, the cou rt must resolve the m in favor of the jury

verdict or trial co urt judgm ent. Tug gle, 639 S.W.2d at 914.



      The State’s proof showed that the Defe ndan t and h is co-de fenda nt, Ce dric

White, were upset with the victim because the previous evening the victim had

robbed co-defendant White. White testified that the victim had taken his jewelry,

money and dru gs. W hite had o btained the drug s from th e Defe ndant fo r the

purpose of resale .    When W hite told the Defendant about the robbery, the

Defen dant told W hite, “Rob bing you is just like robb ing me .”



      Wh ite testified that the Defen dant arm ed hims elf with a 9 mm . sem i-

autom atic pistol and provided White with a .380 pistol. Thus armed, the two men

proceeded in the Defe ndan t’s vehic le to the A llenton Heigh ts hou sing co mple x in

Jackson, to look for the victim. They found the victim walking near a parking lot.

Wh ite testified that he shot the victim in the leg and the victim began running and

slid under a parked van seeking cover. The Defendant had also fired his gun at

the victim. The Defendant’s gun had then jammed but the Defe ndant w as able to

get it unjammed. White testified that when the victim crawled under the van,

Wh ite tried to persu ade the Defen dant to leave because they had “already done

enough,” He said the Defe ndant re spond ed “ma n, he ain’t d ead, he ain’t dead .”

The Defendant immediately ran over to the van under which the victim was laying,

got down on the ground and fired several shots at the victim. T he Defen dant next

went around to the other side of the van and shot again. The two men then fled

the scene.




                                          -3-
       Another witness, Carna Bruce, testified th at she was a t her m other’s

apartment in Allenton Heights when she heard gunshots. She immediately went

outside where she saw the victim fall to the ground and crawl under a van. She

then saw the Defen dant on the grou nd sho oting up u nder the van. She saw

Ced ric Wh ite standing near the van. She said she heard multiple shots and that

the Defendant was the only one on the ground by the van. On cross-examination,

this witness stated that sh e did n ot actu ally see the gun in the Defendant’s hand,

but that she saw the Defendant on the ground looking up under the van while the

shots were being fired.



       Dr. J.T. Franscisco performed the autopsy on the victim. He stated that the

cause of death was multiple gunshot wounds.          He described multiple bullet

wounds to the body of the victim, so numerous that he could not tell exactly how

many times the victim had been s hot. Although several of the wounds would have

been life-threaten ing, one b ullet entere d at the ba ck of the victim’s head and

exited out of the front of the head . That bullet tore the b rain stem an d in Dr.

Fran scisco ’s opinion, this wound was “an instantly fatal wound. . . life would be

extinguished very rapidly.” He sta ted tha t after this wound, the victim would not

have been able to run, limp or crawl under a van.



       Not surprisingly, the jury returned a verdict finding the Defendant guilty of

the first degree premeditated murder of the victim. Although the Defendant

argues that the evidence presented is insufficient to support the finding by the jury

of guilt beyon d a rea sona ble do ubt, we conc lude th at the e videnc e is clea rly

sufficient.




                                         -4-
       The Defendant argues that the conviction cannot stand because the verdict

is based on the uncorroborated testimony of the co-defendant, Cedric White.

Although the Defendant acknowledges that White’s testimony was corroborated

to a large ex tent by the tes timon y of Ca rna B ruce, h e argu es tha t Ms. B ruce’s

testimony was so inconsistent and contradictory that it must be totally disregarded.



       Of cours e, the ru le is well established in Tennessee that a defendant cannot

be convicted on the uncorro borated testimon y of an ac comp lice. See Sherrill v.

State, 321 S.W.2d 811, 814 (Tenn. 1959). To corroborate the testimony of an

accomplice, “there should be some fact testified to, entirely independent of the

acco mplic e’s evidence, which, taken by itself, leads to the inference, not only that

a crime has been committed but also that the defendant is implicated in it.” Clapp

v. State, 30 S.W.214, 217 (Ten n. 1895). The corroboration must consist of some

fact or circumstance which affects the identity of the defen dant. In add ition, it is

for the jury to determine the degree of evidence necessary to corroborate the

testimony of an accomplice, and it is sufficient “if there is some other evidence

fairly tending to conne ct the defenda nt with the com mission of the c rime.” Id.

As the Defendant concedes, the testimony of Ms. Bruce clearly corroborates the

testimony of co-defendant and accomplice Cedric White.



       Although the Defendant argues that Ms. Bruce’s testimony is entitled to no

credibility and that the tes timon y shou ld be re jected in its entir ety, we again point

out that this court may not re-weigh or re-evalua te eviden ce in the re cord. As we

have also note d, if there are conflicts in the trial testimony, we must resolve them

in favor of the jury verdict.




                                           -5-
       Because we find no merit to the Defendant’s appeal, the judgment of the

trial court is affirmed.




                               ____________________________________
                               DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
JERRY L. SMITH, JUDGE


___________________________________
JAMES CURWOOD WITT, JR. JUDGE




                                      -6-
