             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON

                            APRIL 1999 SESSION
                                                        FILED
                                                          April 21, 1999

                                                        Cecil Crowson, Jr.
STATE OF TENNESSEE,            )                        Appellate C ourt Clerk
                               )
             Appellee,         )    No. 02C01-9805-CR-00144
                               )
                               )    Shelby County
v.                             )
                               )    Honorable Chris Craft, Judge
                               )
JAMES YOUNG,                   )    (Second Degree Murder)
                               )
             Appellant.        )



For the Appellant:                  For the Appellee:

A.C. Wharton                        Paul G. Summers
District Public Defender            Attorney General of Tennessee
   and                                     and
William C. Moore                    Patricia C. Kussmann
Assistant Public Defender           Assistant Attorney General of Tennessee
201 Poplar Ave., Ste 201            450 James Robertson Parkway
Memphis, TN 38103-1947              Nashville, TN 37243-0493
(AT TRIAL)
                                    William L. Gibbons
A.C. Wharton                        District Attorney General
District Public Defender                    and
   and                              Daniel S. Byer
Tony N. Brayton                     Assistant District Attorney General
Assistant Public Defender           201 Poplar Avenue, Ste 301
Memphis, TN 38103-1947              Memphis, TN 38103-1947
(ON APPEAL)




OPINION FILED:____________________



AFFIRMED

Joseph M. Tipton
Judge
                                        OPINION


               The defendant, James Young, was convicted by a jury in the Shelby

County Criminal Court of second degree murder, a Class A felony, for which he

received a twenty-four-year sentence as a Range I, standard offender. He appeals as

of right and contends that the evidence is insufficient to support his conviction. We

affirm the trial court.



               The defendant was tried for the murder of Edwin McFarland. The

evidence showed that on November 4, 1995, the defendant was driving and John

Cunningham was riding with him when Cunningham asked the defendant to stop the

car. Cunningham had seen the victim’s car parked across the street from where they

were. Cunningham wanted to talk to the victim because he had heard that the victim

was trying to sell a VCR and some jewelry which Cunningham thought might have been

taken in a burglary of his home. The defendant stopped in front of the house in which

his eleven-year-old son, James Thomas, lived with the son’s grandmother.



               According to the defendant, at Cunningham’s request, the defendant sent

his son across the street to contact the victim, and the victim came outside.

Cunningham and the victim argued for a few minutes and then began to fight. The

victim hit Cunningham several times, and Cunningham pulled out a gun. The facts

surrounding the rest of the fight were in dispute at trial.



               Lora Jean Watkins, the victim’s fiancée, testified that she was on the

porch of the victim’s mother’s house when she saw the victim and Cunningham fighting.

She said that the defendant jumped out of a car and joined the fight. She said that the

defendant told Cunningham not to fight with the victim but to shoot him. She testified

that she saw the defendant take the gun from Cunningham and hit the victim in the




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head with it. She stated that Cunningham told the defendant not to shoot, but the

defendant then shot the victim twice from three to four feet away.



             The victim’s brother, Efrem McFarland, testified that he went outside his

mother’s house when he heard that the victim was in a fight. He said he saw the

defendant take the gun from Cunningham and point it at the victim. He testified that the

victim reached for the defendant, and the defendant hit him on the head with the gun.

He stated that the victim backed up, and the defendant shot toward the victim’s legs.

He said that three more shots were fired and that the victim came toward him, fell, and

died in his arms. He stated that the victim and the defendant were about ten feet apart

when the shots were fired. On cross-examination, McFarland admitted telling the police

that the defendant and the victim were fighting when the gun went off and that the

defendant shot the victim at least two or three more times.



             Dr. Wendy Gunther testified that she performed an autopsy on the victim’s

body. She said that the victim suffered a gunshot wound to the inside of the upper left

thigh and a wound to the neck. She stated that the bullet passed through muscle,

made a hole in the jugular vein, and injured a branch of the carotid artery, causing the

victim to bleed to death. Due to the lack of gunshot residue on the victim’s neck or

clothing, Dr. Gunther believed that the gun was more than two and one-half to three

feet away from the victim when it was fired. She also noted that the victim had a large

abrasion on the right side of his forehead caused by blunt trauma.



             The defendant testified that during the fight, Cunningham pulled out the

gun to make the victim retreat, but the victim kept coming toward Cunningham. He said

that when the victim reached for the gun, he ran over to help Cunningham. He said that

he got the gun from Cunningham and told the victim to leave him and Cunningham

alone, but the victim reached for the gun. The defendant testified that they fought over



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the gun and that they both were holding the gun when it discharged twice. He said the

gun was pointed down. He stated that they continued to struggle over the gun, and it

fired a third time. He said that the third bullet struck the victim in the neck. The

defendant denied intending to shoot or kill the victim and stated that the gun had

discharged accidentally.



              The defendant testified that after the shooting, he and Cunningham left,

and the defendant hid the gun. He said that he stayed with a cousin for several months

to avoid the police.



              The record reflects that at the time of the defendant’s trial, John

Cunningham had entered a guilty plea to facilitation of the second degree murder of the

victim and had received an eight-year sentence to be served on probation.

Cunningham’s testimony was similar to the defendant’s testimony. He said that when

the defendant and the victim were wrestling over the gun, he retreated to the sidewalk.

He said that when he reached the sidewalk, he heard the first shot but did not see

anyone get hit. He said that when he turned around, he saw the gun pointed at the

victim’s neck with both men still holding the weapon. Cunningham testified that the gun

discharged and that the victim took a couple of steps backward and fell. He said he

heard two or three shots fired before the victim fell.



              The defendant’s son, James Thomas, testified that the defendant and the

victim were wrestling over the gun when the shots were fired. James Thomas’ cousin,

Cleveland Thomas, testified that he had been playing with Thomas before the events

occurred. He said that he saw the gun discharge when the defendant and the victim

were scuffling, although he acknowledged that his statement to the police on the day of

the shooting reflected that he said that the defendant first shot the victim in the leg and




                                             4
then in the head. The defendant was convicted of second degree murder upon the

foregoing evidence.



              The defendant contends that the evidence is insufficient to support a

conviction for second degree murder in that it does not exclude beyond a reasonable

doubt that the killing was done with passion produced by adequate provocation so as to

make the offense voluntary manslaughter. W hen the sufficiency of the evidence is

questioned on appeal, our 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, 99 S. Ct. 2781, 2789 (1979). This means that we may not reweigh

the evidence, but must presume that the jury has resolved all conflicts in the testimony

and drawn all reasonable inferences from the evidence in favor of the state. See State

v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832,

835 (Tenn. 1978). A defendant challenging the sufficiency of the proof has the burden

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

of fact. State v. Freeman, 943 S.W.2d 25, 29 (Tenn. Crim. App. 1996).



              Specifically, the defendant contends that he was engaged in mutual

combat into which the victim voluntarily entered. He notes that our supreme court has

stated that “a killing ensuing from a sudden transportation of passion or heat of blood,

as in a fight or sudden combat, is manslaughter.” Hunt v. State, 303 S.W.2d 740, 742

(Tenn. 1957).



              We believe that the evidence, taken in the best light for the state, supports

a second degree murder conviction. Evidence supports the jury concluding that the

defendant urged Cunningham to shoot the victim, and when Cunningham did not, the

defendant took the gun and shot the victim himself. Before he did so, the defendant



                                              5
was not involved in the altercation. And when he did so, he and the unarmed victim

were standing up to ten feet apart.



              In State v. Johnson, 909 S.W.2d 461, 464 (Tenn. Crim. App. 1995), this

court stated the following:

              Whether the acts constitute a “knowing killing” (second degree
              murder) or a killing due to “adequate provocation” (voluntary
              manslaughter) is a question for the jury. Had the jury here
              found that the killing had resulted from a quarrel in a mutual
              fight, and upon equal terms, voluntary manslaughter would
              have been the likely result. Obviously, the jury did not so find.
              The issue for our consideration is merely whether the evidence
              established all of the elements of second degree murder.
              Because there are facts in the record that the defendant
              intentionally shot and killed an unarmed man, that is adequate.
              That the jury chose to reject both the notion of provocation and
              the claim of self-defense was well within their prerogative.

Similarly in the present case, the jury obviously chose to reject both the defendant’s

claim of an accidental shooting and the notion of adequate provocation. The evidence

supports the finding beyond a reasonable doubt that the defendant committed second

degree murder, i.e., he unlawfully and knowingly killed the victim. See Tenn. Code

Ann. § 39-13-210.



              In consideration of the foregoing and the record as a whole, the judgment

of conviction is affirmed.



                                                  _____________________________
                                                  Joseph M. Tipton, Judge

CONCUR:



_________________________
David G. Hayes, Judge



_________________________
L. Terry Lafferty, Special Judge




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