             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                     AT JACKSON

                                MARCH 1997 SESSION
                                                           FILED
                                                          September 26, 1997

                                                           Cecil Crowson, Jr.
STATE OF TENNESSEE,              )                         Appellate C ourt Clerk
                                 )     No. 02-C-01-9601-CR-00040
             APPELLEE,           )
                                 )     Shelby County
v.                               )
                                 )     John P. Colton, Jr., Judge
REGINALD O. WEBB,                )
                                 )     (Second Degree Murder)
             APPELLANT.          )




FOR THE APPELLANT:                     FOR THE APPELLEE:

W. Mark Ward                           John Knox Walkup
Assistant Public Defender              Attorney General & Reporter
147 Jefferson, Suite 900               500 Charlotte Avenue
Memphis, TN 38103                      Nashville, TN 37243-0497
(Appeal Only)
                                       Clinton J. Morgan
Loyce D. Lambert                       Assistant Attorney General
Assistant Public Defender              450 James Robertson Parkway
201 Poplar Avenue, Suite 201           Nashville, TN 37243-0493
Memphis, TN 38103-1947
(Trial Only)                           William L. Gibbons
                                       District Attorney General
OF COUNSEL:                            201 Poplar Avenue, Suite 301
A C Wharton, Jr.                       Memphis, TN 38103-1947
Public Defender
201 Poplar Avenue, Suite 201           James M. Lammey, Jr.
Memphis, TN 38103-1947                 Assistant District Attorney General
                                       201 Poplar Avenue, Suite 301
                                       Memphis, TN 38103-1947




OPINION FILED: ______________________________


AFFIRMED


Joe B. Jones, Presiding Judge



                                     OPINION
       The appellant, Reginald O. Webb1 (defendant), was convicted of murder in the

second degree, a Class A felony, by a jury of his peers. The trial court found that the

defendant was a standard offender and imposed a Range I sentence consisting of

confinement for twenty (20) years in the Department of Correction. In this Court the

defendant contends (a) the evidence was insufficient, as a matter of law, to support a

finding by a rational trier of fact that he was guilty of murder in the second degree, and (b)

the trial court committed error of prejudicial dimensions by instructing the jury on flight

following the commission of a criminal offense. After a thorough review of the record and

the briefs submitted by the parties, it is this Court’s opinion the judgment of the trial court

should be affirmed.

       On the evening of December 18, 1993, the victim, Quinton Mitchell, and some of his

friends visited the Club River City. The nightclub was located at the intersection of Jackson

Avenue and Dunlap Street in Memphis.           When the club closed on the morning of

December 19, 1993, at approximately 3:30 a.m., there was a confrontation between the

victim, the defendant, and some of the defendant’s friends. It appears there was an earlier

confrontation and fight the week before between some of the defendant’s friends and

relatives of the victim. The victim shouted obscenities to these individuals and called them

cowards. As the defendant and his friends were walking across Jackson Avenue in front

of the nightclub, the victim walked toward the defendant and his friends.

       When Ontario Simpson, known as “Little Man” to most of the witnesses, objected

to the comments made by the victim, the victim struck Simpson with his fist. The

defendant testified he thought Simpson was too small to fight the victim who was a much

larger man. The defendant asked the victim: “Why don’t you fight me?” A fistfight erupted

between the defendant and the victim. A friend of the defendant and a friend of the victim

made several attempts to stop the fight. Eventually, these friends were able to separate

the defendant and the victim, and the parties quit fighting.

       A friend of the defendant retrieved a motor vehicle and pulled onto Jackson Avenue.




       1
       The defendant testified his name is Reginald Orlando Monroe. However, he stated
he also goes by the name of Reginald O. Webb.

                                              2
The defendant stopped the vehicle, the driver opened the trunk of the vehicle, and the

defendant retrieved a pistol from the trunk. He then began walking towards the victim and

two of his friends who were standing in front of a fast food establishment. When one of

the victim’s friends saw that the defendant was armed with a pistol, he told the victim to

run. The victim stood there for a second. The victim and his friends then ran around the

side of the building to an alley and began running down the alley. The defendant chased

the victim. He fired six shots from the pistol. One of the projectiles struck the victim in the

back. He died shortly after being shot.

       An autopsy was performed by Dr. Jerry T. Francisco. He testified the victim died

from the gunshot wound to the back. The projectile struck large vessels in the chest and

the heart. The bullet then exited through the victim’s chest.

       The defendant and his witnesses admitted the defendant and the victim fought until

the friends separated the combatants. However, all of these witnesses denied that the

defendant was armed with a pistol and the defendant shot the victim. According to these

witnesses, they heard the gunshots while the defendant and the victim were still fighting.

They said after they heard gunshots, they fled in a vehicle.



                                              I.



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

his conviction for murder in the second degree. He argues the record establishes the

offense of voluntary manslaughter.



                                              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



                                              3
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

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 second degree, the State of

Tennessee must prove beyond a reasonable doubt the accused “knowingly killed” the

victim. Tenn. Code Ann. § 39-13-210(a). Before an accused can be convicted of voluntary

manslaughter, the State of Tennessee must prove beyond a reasonable doubt the accused



                                                  4
(a) intentionally or knowingly killed the victim and (b) the accused was “in a state of passion

produced by adequate provocation sufficient to lead a reasonable person to act in an

irrational manner.” Tenn. Code Ann. § 39-13-211(a). As a general rule, whether the

accused killed the victim in the heat of passion as defined by the statute is a question

which the jury must resolve when determining whether the killing in question was murder

in the second degree or voluntary manslaughter.

       In this case, the jury rejected the defendant’s argument that he killed the victim in

a state of passion by finding the defendant guilty of murder in the second degree. The

evidence supports the verdict of the jury.

       As previously stated, the friends of the defendant and the victim were successful in

stopping the fight. The victim retreated to the corner of a building. He was not armed.

The defendant walked into the middle of Jackson Avenue. He signaled his friend who had

brought him to the nightclub to stop his motor vehicle. He obtained a pistol from the trunk

of the vehicle. When the victim realized the defendant was armed, he ran around the

corner of a building with two of his friends. The defendant gave chase. As the three men

ran along an alley behind the buildings on the north side of Jackson, the defendant fired

six shots. One of these shots struck the victim. When the shots were fired, the victim did

not pose a threat to the defendant. In fact, the victim was running away from the

defendant. In short, the jury could conclude from these facts sufficient time had elapsed

between the fight and the fatal shooting for any state of passion which may have existed

to dissipate. The defendant could and should have gotten into the vehicle he stopped and

left the area. After killing the victim, the defendant left the scene in this same vehicle.

       This Court concludes there is sufficient evidence contained in the record to support

a finding by a rational trier of fact the defendant was guilty of murder in the second degree

beyond a reasonable doubt. Tenn. R. App. P. 13(e). Thus, this issue is without merit.



                                              II.



       When the trial court advised counsel the court was going to instruct the jury on the

law of flight, defense counsel objected to giving the instruction. Counsel argued that while



                                              5
the defendant left the situs of the crime, he did not hide from the police or conceal himself.

The State of Tennessee urged the trial court to include a flight instruction in the charge

given to the jury. The trial court subsequently instructed the jury on flight.

       The defendant relies upon this Court’s opinion in State v. Whittenmeir, 725 S.W.2d

686 (Tenn. Crim. App. 1986), per. app. denied (Tenn. 1987). In Whittenmeir, this Court

held the evidence must establish (a) the accused must leave the situs of the crime and,

subsequently, (b) hide, evade, or conceal himself within the community or leave the city.

This Court recognized the holding in Whittenmeir in State v. Payton, 782 S.W.2d 490, 498

(Tenn. Crim. App.), per. app. denied (Tenn. 1989).

       In Payton, the accused left the situs of the crime. However, he subsequently

returned. The defendant attempted to evade the police when the police attempted to take

him into custody. He was arrested when he slipped and fell to the ground. This Court held

that a flight instruction was properly given by the trial court. In ruling, this Court said: “The

defendant’s evasion of authorities, no matter how brief, met the second part of the

[Whittenmeir] test.” 782 S.W.2d at 498.

       In this case, the defendant left the scene of the murder with his friend in a motor

vehicle. The defendant knew his identity was known to the witnesses. Thus, he spent the

night with a friend. The police called the defendant’s mother and ex-girlfriend in an effort

to locate the defendant. His mother notified him the police were looking for him. Later that

day, he went to the police station. His mother accompanied him.

       Given these circumstances, the trial court properly charged the jury on the flight.

The holding in Payton supported the giving of the instruction.

       This issue is without merit.




                                            ________________________________________
                                                JOE B. JONES, PRESIDING JUDGE




                                               6
CONCUR:



___________________________________
     GARY R. WADE, JUDGE



___________________________________
     CURWOOD WITT, JUDGE




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