# FILED
March 31, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE JANUARY SESSION, 1998
STATE OF TENNESSEE, ) C.C.A.NO. 01C01-9606-CC-00278 ) Appellee, ) ) CHEATHAM COUNTY V. ) ) ) HON.LEONAR D W. MART IN, JUDGE RICHARD BURT McKEE, ) ) Appe llant. ) (FIRST DE GREE MUR DER)

FOR THE APPELLANT : FOR THE APPELLEE : GREGORY D. SMI TH JOHN KNOX WALKUP One Public Square, Suite 321 Attorney General& Reporter Clarksvi lle, TN 37040 KAREN M. YACUZZO Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenue North Nashvill e, TN 37243 DAN M. A LSOBROOKS District Attorn ey Ge neral JAMES WALLACE KI RBY Assistant Distri ct Attorney General 105 Sy camo re Street Ashland City, TN 37015

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Defe ndan t, Richa rd Bu rt McK ee, ap peals as of ri ght from his convicti on followi ng a jury trial in the C heatha m Co unty Circuit Co urt. Defendant was convi cted of first degree murder and was se ntence d to life imprisonment wi thout parol e. The Defe ndan t prese nts the followin g issue s on a ppea l: 1) whetherthere was suffici ent evidence to sustain a verdictof gu ilt beyond a re asonable d oubt of first degree m urder; 2) whetherthe venu e of t he murder was adequatel y establi shed by professiona l or exper t testi mony in Cheatham County; and 3) whether a sentence of li fe without parole is

excessive. We affirm the ju dgme nt of the trial co urt.

S UFFICIENCY OF

THE EVIDENCE

Defendant argues that the record i s ins uf ficien t to estab lish t he elements of premeditati on and deliberation for a conviction of first degree murder. He contends thatthe shoot ing w as a matter of mutual combat, voluntary manslaughter or criminally n egligent h omicide
.

When an accused chall enges the suff iciency of the convic ting evi dence, the stand ard is w hethe r, after re viewing the evid ence in the ligh t mos t favora ble to the prosecution , any rati onal tri er offact coul d have found the e ssentialelements of the cri me beyond a reaso nable d oubt. Jack son v. V irginia , 443 U.S. 30 7, 319 (1979 ). On appeal, t he State is e ntitl ed to the st rongest legitimate vi ew of the evidence and all inference s therefro m. S tate v. C abbage , 571 S.W .2d 832, 835 (Tenn. 197 8). Because a verdict

of guilt removes the presumpti on of innoce nce an d replace s it with-3-

a presum ption of gu ilt, the accuse d has the bu rden in this court of il lustrat ing why the evidence is insufficient to suppo rt the verdict re turned b y the trier of fact
. State v. Tu ggle , 639 S.W .2d 913 , 914 (T enn. 19 82); State v. Grace , 493 S.W.2d 474, 476 (Tenn . 1973).

Questions concerning the credibil ity of t he witnesses, the weight and value to be given the e vidence, as we ll as all factual issues raised b y the evidence, a re resolved by the trier of fa ct, and no t this court. State v. Pappas , 754 S.W.2d 6 20, 623 (Tenn. Crim. A pp.), perm . to appeal denied , id . (Tenn. 198 7). Nor ma y this court reweigh or reeval uate the evi denc e. Cabbage , 571 S.W.2d at 835. A jury verdict approved by the tri al judge ac credits the State’s w itnesses and res olves all co nflicts in favor of the State. Grace , 493 S.W.2d at 476.

The State p resen ted se veral w itness es in its case-in-c hief. Susi e Ferguson testified that sh e had been a friend of the vic tim, T erry Ne blett, all of her lif e, and that she has kn own th e Def enda nt sinc e she was in the seventh gr ade. She stated th at Defendant dated Kenya Fuqua for some peri od of time. After Fuqua and Defenda nt separated, the victim a nd Fuq ua beg an to da te. On several occasi ons followi ng the beginning of the vi ctim and Fuqua’s r elations hip, she wi tnessed the Defendan t threaten to killthe vict im. T he first incident

was in October 1993. The Defendant
cameto Ferg uson ’s hom e look ing for th e victim and stated t hat “He [vi ctim] too k his
woman away from him . . and he [Defe ndant] w asn’t goin g to take it . . . he mightkill them both.” Ferguso n recalled at least three (3) other o ccas io ns that Defendant threatened the vict im. On one of thos e later occasions , D efendant stated that he had been “l ocked up ” befor e, a nd t hat

it wasn ’t any bigthi ng as

he h ad do ne t ime before. He further stated that he was looking for the vi ctim and “was going to catch-4-

up to h im s ome d ay.” Th e final o ccas ion De fenda nt spo ke of th e victim in Ferg uson ’s presence was at Ferguson’ s wedding. The Defendant arrived early for the wedding, but explained t hat he could not stay because he knew the vic tim and Fuqua would be there and to avoid t rouble, he was just goi ng to leave.

Jim my L. Murphy lived ap proximately three (3) to five (5) miles from P innac le Point, the area of the shooting. He had been acqua inted wit h the vict im for appro ximate ly five (5) years and had known the Defendant for approxi mately eight (8) years. On June 12, 1994, the Defenda nt came b y Murphy’s ho me. She rry Neblett, the vict im’s ex-wi fe, was ther e with Murphy an d some friend s. They were grill ing out when Defendant arrived, and Murphy coul d see that t he Defendant was frustr ated when he pulled up i n his car. Murphy went out to the car to tal k to the Defendant, and Defen dant descri bed a confrontation he had with the victim earl ier thatmornin g. Defen dant as ked Mu rphy to go with him to confron t the vi ctim, but Murphy refused. When Murphy asked the Defendant if he had a gun with him, the Defendant responded thathe did not and did not need a gun. At that time, S herry Neblett came out of Mu rphy’s ho use an d agree d to go with the Defendant. Because Sherry was afraid of the victim, she said she would n ot go witho ut a gun and went back insideto get her gun . When she returned wit h a .38 cali berpistol, she le ft with the De fendan t.
Appr oxima tely forty-five (45) minutes after t hey left , Sherry and t he Defendant returned with Sherr

y drivi ng the D efenda nt’ s car. Bo th appe ared to b e upse t. Defendant stated th at he shot t he victim but didnot thi nk t hat

he h ad k il ledhim
. Murphy call ed 911 to noti fy emergency per sonnel about t he shooting.-5- Officer Floyd D unca n, inves tigator w ith the C heath am C ounty Sher iff’s Depa rtment, worked at the crime scene at Pi nnacle Point.Pinn acle Point is a locati on where the thr

ee counties of Ch eatham , Montgom ery and Dickson converge. Duncan stated that he was familiar with the count y linesand dre w a mapof t he c ri me scene. There is a creek there, a nd the south bank of t hat creek i s in Cheatham Coun ty and the north ba nk is in Mo ntgom ery Cou nty. Duncan determined that the murder occurred inCheatham County by goi ng to the tax assessor’s of

fice and looking a t the line do wn the c enter of the creek.

W hile Defendant had alr eady left the scene of the crime when Duncan arrived , Duncan determined fr om various wit nesses that t here was only one gu nshot and that the Defendanthad left the scene wit h the weapon. Duncan stated th at the weapon has stil l notbeen recovered. The bullet f ound in the vi ctim was consistent wit h that from a .38 cali ber pistol . Several hours later, the Defendant was taken into custody in Montgom ery County an d then transpo rted to Chea tham Co unty.

Shel by Jean Sevilles, t he owner of Jean’s Cash and Carry, has k nown th e Defendant for thirty-six (36) years. Sevi lles’ store is locate d two (2 ) and o ne-ha lf miles from Pin nacl e Poi nt. On Ju ne 12 , 19 94, theDef enda nt came by Sevilles’ store and asked to use her telephone. When Sevill es asked the Defendant if it was a long distance call, he said t hat it was and sh e responded t hat he co uld call colle ct. Defendant agreed an d gave her the tel ephone number. Sevil les made an error while dialin g the numb er, so she started to dialagain. T he De fendan t said “Jus t forget it, I have got to g o,”

and lef t t he s tor

e. S evi ll es test if iedthat t he De fen dant was cal m. Several min ute s l ate r, anot her boy camein and tol d Sevill es that th ere had been a shooting down a t the creek and to ca ll 911.-6- Faith Karen Stoneman went swimming at Pinnacle Point

with her boy

friend, Doyle Miles, and f riends Becky Swaw, Sam Taylor and Matt Mi les on June 12, 1994. It was close to 5: 00 p.m. when they arrived. They parked thei r cars on th e Montgom ery County si de of the bridge and went under the bri dge and down the embankment to get i nto the water. She was swimmin g wh en she he ard a loud hissing sound. Just af tershe heard the hi ssing she heard her boyf riend screami ng to get ou t of the water, that someone was slashing ti res and had a gun. She was swimming with Swa w, and th ey turned around and look ed at the C heatha m Co unty side of t he brid ge. One man rushed towards another man and they st arted struggli ng. One had a gun in his hand, but Stoneman could not see his face. She remembered some one sc reamin g, “I’m goin g to get you. I’m going to get you,” and thatit was not the vi ctim who screamed these words. Stoneman and Swaw went up the emba nkme nt to leave, bu t Stonem an turne d back to try to see the man who was holding the gun. The men continued to str uggl e. S ton eman’ s bo yf ri end t hen came down and dru g her ba ck up the bank. They heard someone scream “[t] he kids, t he kids. Not in fr

ont of thekids.” Stoneman heard the shot , and she immediately began to try to get severalchildrenin the area out of the way . Stoneman and her fri ends then went to a nearby house to call the police.
Doyle Miles, S tonem an’s b oyfrie nd, testified that h e was standing near the bridge whe n a man in a black T-bi rd drove up f rom the Montgomery County side. The man ha d a gun ha nging out the w indow, and the re was a pa ssenger in the car, but Miles coul d not tellif it was a man or woman. The man jumped out and used a knife to cut the ti res on a parke d car. Th en, the man jumped back in hi s car and drove across thebridge, st ill holding t he gun. Miles saw the man park his car and
run down the bank with the gu n in his hand. He identif ied the Defendant at tri al as-7-

the man holding the gun. He and th e victi m began fighti ng, but Miles be lieved t hat the victim was o nly trying to get th e gun out of th e Def enda nt’s hand. Miles he ard
a shot, and he and hi s friends left t o call 911. When they returned, the vict im was lying there a nd had been s hot just be low the w aistline.
Becky Swaw Tayl or, formerly Becky Swaw, testifi ed that she was al so at Pinnacle Point

on June 12, 1994. Sheand her fri ends parked on the Mon tgomery Co unty side and then we nt to swim . Swaw was sw immin g with Fa ith Sto nema n when they heard a hi ssing sound. I mmediately, t heir friends began screaming that someone was slashing t ires. Swaw saw a man come down fr om the bridge wi th a gun and go towards the victi m. The man and the vict im began fight ing, and Swaw turned to leave. She heard a shot, and turned aroundto see that the two men had fallen to the ground
.
Samuel Taylor, Becky Swaw Taylor’s husb an d, wa s also swimming at Pinna cle Point. He made simi lar observ ations, but also saw t he Defenda nt walk back to his car

after t he s hoo ting. Tayl or identified thi s man as the Defendant at trial.

Julie Neble tt was th e siste r-in-law of the vic tim
. She went to Pinnacl e Point
on June 12, 1994 wit h her husband and two chil dren. When they arrived, thevi cti m, Kenya Fuqua and Fuqua’s two chi ldren were alre ady there swimm ing. After N eblett and her family

got there, they allwent swimming on the Cheatham County side. She and Fuqua were sitt ing with their feet in the wate r when they hea rd what so unded like breaking gl ass. Neblett thoughtthat someone had wrecked t heir car. When she heard the sound again, Neblett began to run up the bank to get her sons out of the-8-

way. Neblett hear

d a car speed up and then slam on the br akes. When she looked up, the Defendant was standing there w ith a gu n in his hand. Fuqua was standi ng directly beh ind Neb lett, with the victim standing down b y a tree ne ar the wa ter.

Neb lett’s son was in her arms, so she dropped him to the ground and tried to push him down the bank. She also pushed Fuqua down the hil l and tol d her to run, then scream ed for he r kids to get out of the water. The next thi ng Neblett saw was the Defendant and the victim t wistingaround in circles, bo th trying to get possession of the gun. She was scr eaming for them to stop and tr ying to get

the kids out

of the way when she heard a pop. When Neblett tu rned, the victim fell to the ground. The Defendant stepped b ack and then pointed the gun at t he victi m. He mumbled something and t hen t old Ne blet t th at “ [she ] bet

ter savehim. ” Th e Defe ndant returned up the ba nk with the gun in his hand. N eblett f ollo wed to check on her children. The driver’ s side door to the Defendant’s car was op en, and Sherry N eblett
was inside. The Defendant did not say anything , but got into the pass enger’s seat. Sherry Neblett and Defendant drove off towar ds Cheatham County. Neblet t furt her stated that the car in whichthe vict im, Fuqua and their childre n arrive d at Pin nacle Point was the car which had the slashed ti res.

Julie Neblett went home to stay with the chil dren, including Kenya Fuqua’s. Between a half hour to an hour after the shoo ting, sh e rece ived two teleph one c alls from the Defe ndant. Durin g the firs t phon e call, th e Def enda nt state d that, “[W ]e all deserved what happ ened at the cre ek.” In the secon d call, Defenda nt thre at ened “thatFran [Kenya Fuqu a’s m other] w as go ing to g et it bec ause she a llowed Keny a’s children to be with Kenya and [the victi m] that day . . . and that they were crackheads and she knew it. ” During t his second conver sation, the Defendant, who had-9-

call-waiting, received anot her call and clicked t o the second call . When he clicked back to spe ak with Neb lett, he said “W ell, he’s dead, and I’m out of here.”
Larry Bryant, the Dire c tor of 911 f or Montgomery County, testified that o n June 12, 1994, Clinton Davi s called at 5:09 p.m. to rep ort the sho oting at P innacle P oint. Bryantstated that two (2)other calls were al so made to 911 regarding t he shooting,
one from Juli e Neblett at 6:30 p.m. and anot her from Kenya Fuqua at 7: 58 p. m. He did not rec eive any o ther calls re garding the incide nt.
Larry Bruce , Direc tor of D ickson Cent ral Co mm unica tion, su pervise s all communications includi ng 911. On June 12, 1994, Jean Sevill es called 911 at 5:30 p.m. from J ean’s Cash and Carry. Steve Smith, t he Cheatha m Cou nty 911 Directo r, stated that ther

e was no record of

any calls

regarding Pi nnacle Point on J un e 12, 1994.
Barney Reed, the paramedic supervi sor for Montgomery County, r esponded to an a mbulance c all at Pinnacle Point . The call came at 5:14 p.m. When Reed arrived, CPR on the victim was alre ady in pro gress, a nd they con tinu ed CPR although the vict im had no vital s igns. T he victim was tra nspo rted to C larksville Memorial Hospital where he was later pronounced dead. There appeared to have been three (3)bullet wounds under the ri ght side of the vict im’s abdomen.

Charles Harlan, M.D. , the c onsulti ng forensic pathologi st for Cheat ham County, performed the autopsy of the victim on June 12, 1994. The vict im died as
a result of

a near gunshot wound i n the right lower quadrant

of his abdom en. A “near gunshot

wound ” is one in w hich the m uzzle of th e gun is b etween zero (0) to-10-

twenty-f our(24) inches fr

om the victim’s s kin. The re was p owder in the wou nd, with stippl ing of nine (9)inches in di ameter. Sti ppling i ndicates t he distance f rom the end of the muzzle to t he skin surface, and Dr. Harl an estimated t hat the muz zle of th is particul ar gun w as pro bably b etwee n nine (9) to tw elve (1 2) inch es from the victim ’s skin. While the gunshot wound was f rom a single b ullet, there w ere three separa te wounds on the vict im’s abdomen, one fr om the entry o f the bullet, one from the exit, and one from the reentry of the bullet. The thre e (3) wound s were all in the fleshy, soft tissue of

the abdomen, possibly occurri ng due to the pi nched positi on of the victim’s body as he was shot. Th e victim’s right com mon iliac artery an d vein were injured, causing internal bleed ing. As a resu lt, the victim likel y died wit hin a perio d of fifteen (15 ) to twenty (2 0) minu tes.

Cl if ton Smith, d eputy for th e Mon tgome ry Coun ty Sheriff’s D epartm ent, testified tha t he respond ed to the c all on Jun e 12, 19 94 for as sistance in a death investi gation at Pinnacle P oint in Cheatha m Cou nty. Duri ng his investigati on, Depu ty Smith first came into contact with the D efenda nt at the M ontgom ery Cou nty jail ar ound 9 :0 0 p.m . Defe ndan t and D eputy Smith knew each other p rior to this meeting. Lieutenant

Hastings and Sergeant Pat Haynes were als o present, and Hastings read to Defendant his constitutionalrights. De fendan t asked to speak with Smith alone as he did not trust t he Cheatham County authorities.

After the other officers left the room, D efenda nt stated th at he was having pro ble ms with the victim, that the victim ha d stolen his wife, kids, m oney, and farm and that he wasout to get the victi m. Defendant stated that thi s came to a head at the P innac le Point B ridge, th at it “was all he co uld tak e.” Sm ith ask ed if he could take notes, and Defendant agreed. The Defendant’s statement is as f ollows:-11- I walked down the creek b ank. Come on . I got som ething for yo u. I got him down fight ing. He had the gun. I hit him with fist. (Right han d). Then he ca me o ut with th e gun and p laced it undernea th my ch in. I grabbed his hand and pushed t he gun tow ards his s tomac h area. Then the gun went off

(one). We were fi ghting underneath the bridge. The S tate then re sted its cas e-in-chief.

Jesse Donald Herrelltestified for t he defense. On June 12, 1994, Herrell was with Sherry Neblet

t at Ji mmy and Rita Murphy’s home having a cook out. H errell and Sherry Neb lett were seeing each other . The Defendantstopped by, but did not get out of the car. He hollered out and asked Neblett to ride dow n to the cre ek with him. Neblett agr

eed, but befor

e they lef

t she went back into the trai ler. When she
cameout she had a gun i n her hand. While Herrel l did not know if t he Defendant
saw the gun or not , Sherry was not tryi ng to hide t he gun on her way out of the trailer. N e blett st uck the gun in her purse. When Herrell asked her what she was going to do the gun, she stated that s he was not going to go without it because she
was afraid of

the victim. Wh en De fendan t and Sh erry returne d, Sherry was up set,
nervous and cryin g. The Defendant stayedapproximately thir ty (30) mi nutes, then left.
Lynette McKee Arthur, t he Defendant’s si ster, had known the vict im for fifteen (15) to twen ty (20) ye ars. In A ugus t 1993 , the victim lived with the Defendant and Kenya Fuqua. Shortl y after the vict im moved out, the Defendant and Fuqua broke up and the v ictim and Fuqua began t o date. While Art hur knew that s he had no t
seen the victi m and the Defendant together since the vict im moved out, sh e kne w t hey later patched up their relati onship and were on cor dial terms. Arthur testifi ed thatshe saw the vi ctim and the Defendant together at part ies and at businesses, and she neverheard the Defendant threaten t he victi m. On the day of the ki lling, Arthur-12-

went to her si ster’s t railer to get the D efend ant and take him to the Mo ntgome ry Coun ty jail . When she go t to her sister’ s, the Defendant was trembling, nerv ous, mudd y and un able to sp eak clea rly. The D efenda nt volunte ered to g o to jail.

Alexis Worthing, Wanda Wallace and Herrell al l testified that the Defendant had overcome his hard feelings toward the v ictim. They saw the Defendant and the victim around each o ther, and they see med to be cordial . They never saw or heard the De fendan t threaten the victim.
Billy Hodges was with theDefendant on June 12, 1994. He testif ied that p rior to thatoccasion he had seen the victim and the Defenda nt go to the store tog ether, return, shake hands and hug. On the day of the shooti ng, Hodges and Defendant
were drinking a twelve (12 ) p ac k of beer, an d the Defendant was di scussing the
v ictim and Fuqua. Defendant stated that he hoped that t he victi m “did not end u p gettingthem kids on crack rock. ” Hodges stated th at crack roc k referr ed to cocaine. The Defendantlater l eft Hodges at Tat um Bridge, but he did not have a gun at that time.

In order to convict the Defendant of f irst degr ee murder, ther

e must have been
an intenti onal, premedit ated and deli berate kil ling of another. Tenn. Code Ann. § 39- 13-202(a)(1991 Repl.). At th e time of th is offense, a deliberate act was an act performed with coolpurpose, and prem editatio n occurred when an act was done after theexe rci se o f refl ect ion and jud gme nt. T enn. Code Ann. § 39-13- 201(b)(1) and (2)(1991 Repl.); State v. West , 844 S.W.2d 144, 147 (Tenn. 19 92). Both t he eleme nts of premeditat ion and deli beration ar e questions for the jur y and m ay be i nfer red from the mann er and c ircums tances of the killing. State v. Gentry , 881-13-

S.W.2d 1, 3

(Ten n. C ri m. App. 19 93). Th e State is enti tled to pr ove the offense by circumstant ial evidence alone. State v . Brown , 836 S.W .2d 530, 541 (Tenn. 199 2).

In the light m ost favora ble to the State, t here was suffi cient evi dence whereby
a rea sonable trier of fact could have found the Defendant guilty of fi rst degre e murder beyond a reasonabl e doubt. Beginni ng in 1993, t he Defendan t made
numerous threats to the vi ctim because he believed that the v ictim “st ole his
wom an.” Even in e arly 1994 , the Defe ndan t contin ued to threate n the vic tim according to one witnes s. Dec laration s by the defen dant o f his inte nt to kill and the defendant ’ s prior relationship with the victim are both circum stances wh ich are indicative to the jury of the eleme nts of prem editation a nd delibe ration. Brown , 836 S.W .2d at 541 -42; State v. Bord is , 905 S.W .2d 214, 222 (Tenn. Crim . App. 1995 ).

On the day of the m urder, the Defendant andthe vict im had a confrontation. Defendant expre ssed his an ger to h is friend, Billy Hodges, while t hey were dri nking beer. Later that da y, the Defe ndant d rove to the Murphy’s home and again told of his plan to co nfront the victim. He took Sh erry Neb lett, a co-de fendan t, with him to Pinna cle Point. Before Neblett would get i n the car with Defendant, she r etrieved a .38 caliber pistol . Witnesses descri bed Defendant as driving over thebridge to the
scene at Pinnacl e Point holdi ng a gun and h angin g it out the win dow. Upon arri ving at the scene, Defe ndan t jump ed ou t of his ca r and u sed a knife to slash th e victim ’s tires. Defendant completely disabled the vict im’s vehi cle, and the jury was entit led to infer that this s la shing of t he tires was performed so that

the vict im could not escape the scene. Planning act ivit y prior to the killi ng of the victi m is a circumstance the jury may use to infer the elements of premeditat ion and deli beration. Bord is , 905-14-

S.W.2d at 222. After slashi ng the tir es, Defendant dr

ove over the br idge and ran, bra ndishing a gun, towards the vict im screaming, “ I’m going to get you. I’m go in g to get you.”

The victi m was unarmed and had been swimming. The use of a de adly weapon upon an unarmed vict im is such that the jury

was ent it led to infer b oth preme ditation an d delibera tion. Brown , 836 S.W .2d at 541
.

The victim strug gled with the Defe ndant, but was unable to protect hi mself and
was shot i n the s toma ch by th e Def enda nt. W hile the Defe ndan t allege d in his statementto police that the victim pul led out a gun af ter Defendant

approached him , the jury chose t

o accept the testimony of numerous other witnesses. We may not reevalua te this evide nce. Cabbage , 571 S.W .2d at 835
.

Motive is notan element of f irst degr ee murder, but, if proven, it ref lects upon the eleme nts of fir

st degree murder. Obviously, the Defendant r esented the victim ’s
re lations hip with Kenya Fuqua. Followingthe shooti ng, the Defendant cal led th e sister- in-law

of the vi ctim and proceeded to tell h er that “ her family deserved what happened. ” He t hen called a second time to t hreaten Kenya Fuqua’ s mother for allowingFuqua’s chil dren to be around the victim. Furthermore, in his own statem ent, the Defendant admit ted that he was “out to

get the vict im” because the victim had “stole his w ife, kids, money a nd farm.”
Finally, following the mu rder, the Defen dant calmly wa lked away f rom the
scene with the we apon. He stopped ata local market , Jean’s Cash and Carr y, and asked to use the phone. The Defendant di d not call911 and did not menti on the shooting to the own er of the sto re. The store’s owner testifi ed that the Defendant-15-

appeared very cal m. Calmnes s imm ediately afte r a killing ma y be evide nce of a cool, disp assiona te, and pr emed itated mu rder. West , 844 S.W .2d at 148
.

As Defenda nt del iberatel y and wi th premeditatio n went t o Pi nna cle Point to
co nfront the vict im, and intentionally approached the victim wi th a loade d gu n screaming, “I’m go ing to g et you. I’m g oing to get you,” t he jury coul d have found beyond a reaso nable d oubt tha t the Defe ndant w as guilty of first degree m urder. This issu e is withou t merit.

V ENUE

The Defen dant arg ues tha t the State did not ad equate ly estab lish t hat the
m urderoccurred in Cheatham County, and therefore, t hat the matter sh ould b e remanded for a new trial. Under Tennessee Code Annotated section 39-11-201 (e), the State must prove venue “by a preponderance of t he evidence.” As the Defendant concedes, the State can meet its burden ofproofby only pr esenting sl ight evidence, so l ong as i t i s ba sed upon mo re than mer e spec ulation. See State v. Bloodsaw , 746 S.W .2d 722 , 724-25 (Tenn . Crim. A pp. 198 7). Venue may be shown by a preponderance of the evidence whic h may be either di rect or ci rcumstantialor both. Hopp er v. State , 205 Tenn. 246, 326 S. W.2d 448, 45 1 (19 59) (citations omitted ).-16- Pinna cle Point, a s described by va rious wit nesses, is t he convergence of three (3) counties and t

wo (2) creeks. The Defendant concedes t hat the cri me occurred in either Montgomery or Cheatham County. Under the Tennessee Rules of Cri minal Procedure, “[o]f

fenses committedon the boun dary of two (2)or more counti es may be prose cuted in ei ther county .” Tenn. R. Cri m. P. 18(c). Therefore, ev en i f th e State only

presented evi dence that t he murder occurred at the converging poi nt of the tw o (2) cou nties, then the evide nce wo uld still be su fficient to esta blish th e proper venu e in Cheath am Co unty.

Based upon the testim ony of man y individuals, includi ng police officer s famili ar with the county li nes and indiv iduals f rom within t he community, the murder occurred i n Cheatham County. While the of ficers di d not witnes s the shooti ng, all the eyewitness testimony and evidence inf erred that th e crime occurre d on the south side of the b ridge, w hich is the Che atham Coun ty side. As the Defendant poi nts out in his bri ef, an officer

’s rati onal beli ef that a cri me occurred withi n a given count y can meet the burd en of pro of to show proper ve nue. See State v. Chadwick , 750 S.W.2d 161, 165 (T enn. C rim. App . 1987). In the l ightmost favorab le to the State, the jury
was entitl ed to infe r that t he Def enda nt commi tt ed t he c ri me in Cheatha m Cou nty. The Defendant fai led to p re sent any confl ictingevidence, andthis i ssue is wit hout merit.

S ENTENCE

Defendant challeng es the se ntence of life without parole as be ing excessive underthe facts o f this case. D efe n dant specif icall y contends that the miti gating-17-

factors outweigh the a ggra vating factors inthe circ umstances of thi s case. Defendant argues t hat a sentence of life imprisonment i s appropriate.

In con siderin g the a pprop riatene ss of D efend ant’s s enten ce, this court s hall first conside r any errors assigne d. Tenn . Code Ann. § 3 9-13-20 7(g). Life imprisonmentwithout the possibili ty of parole i s an appropriate sentence “if the state proved beyond a reasonabl e doubt at l east one (1) statutor y aggravat in g circumstance containe d in [Ten n. Cod e Ann.] § 39-13-204(i), and the sentencewas not otherwise i mpo sed a rbitrarily, s o as to cons titute a g ross a buse of the ju ry’s discretion .” Id . Upon review, we affi rm the sentence of life imprisonment wi thout the possibil ity of

parole.

At the sentencing hearing, t he State relied upon the evi dence at tri al and two previousconvicti ons of the Defendant. The parties st ipulatedto Defendant’ s 1979 Califo rnia convicti on of robbery with the us e of a deadl y weapon and a 1983 Tennessee conviction of voluntary mans laughte r. The jury w as instruc ted that bo th crimes involved the u se of viol ence to the per son. The Defendant pr esented
numerous witnesses, all of whom testif ied as to the D efend ant’s character within the
comm unity rega rding his a cts of goo dwill and k indnes s to childre n in particu lar.

In this case, the j ury imposed the s entence of l ife impri sonment without the possibility of parole f ollowing the sentenci ng he ar ing. The jur y found that

the followi ng aggravati ng factors applied: (1) defe ndan t was p reviou sly convicted of one (1) or more feloni es, other t han the present charge , whose statutory e lemen ts involve the use of violence to the person; and (2) defendant knowingly cr eated a greatriskof death to two (2) o r more persons, ot her than the victim murdered, during-18-

the act of

murder. Tenn. Code Ann. § 39- 13-204(i) (2) and (3). We agree with the jury’s findings a s to the ap plication of t he above aggravati ng factors. First, the Defe ndan t’s criminalrecord was st ipulated to incl ude two (2) prior fel on ies which involved violence to the pers on. Second, the Defendant knowingly carried a l oaded .38 caliber pistol to a crowded s wimming area, w ith both childre n and adults in nearbyvicinity to the victim. Defenda nt admitted tha t he went there to confront the vi cti m, and his use of a weapon within s uch close prox imity to those nearby wasa knowing risk on hi s part that someone other than the Defendant might have been injured or k illed.

The Defen d ant argues that the miti gating fac

tors outwei gh the aggravat ing factors in this case. The Defenda nt asked the jury to consider the test imony of these witnessesand apply any mit igating factors under Tennessee Code Ann ot ated section 39-13-204(j ) which rel a te to that testimony. The mitigati ng factors are as follows: 1) The de fendant has no significant history of prior crim inal activity; 2) The mur der was committed whi le the defendant was under t he influence of extr

eme mental or emotionaldisturbance; 3) The victi m was a partici pant in th e defendant’ s conduct or consen ted to the act; 4) The m urder wa s com mitted un der circum sta nce s which the defendantreasonably bel ieved to pr ovi de a moral just ificat ion for t he defend ant’s con duct; 5) The defendant was an accom plice i n the murder committed by another person and the defendant ’s parti cipati on was relatively minor. 6) The defenda nt a cte d und er ext remeduress or under the substant ial domination of

another person; 7) The youth or

advanced age of t he defendant at the time of

the crime; 8) The capacity of the defendant to appreciate the wrongful ness of the defen dant’s condu ct o r t o conform the defendant’s conduct to the requirem ents of the l aw was substanti ally i mpaired as a result of mental disease or defect or

intoxi cation whi ch w as insuff icient to establ ish a defense to the crim e but wh ich subs tantially affe cted the de fenda nt’s judgment; and-19- 9) Any other miti gating fac torwhich is r

aised by the evidence produced by either t he prosecuti on or defens e at ei ther the gui lt or sentencing hearing. The only evi dence presented by the Defendant wasregarding his reputation in the comm unity for p erform in g acts of ki ndness. While thi s is appropr iate as evidence for miti gating fac tor nine (9), no other

factors ar

e applicabl e in thi s case. B ase d upon his pri or convict ions, Defendant did have a hi story of prior criminal activity. The m urder was n ot comm itted while the Defen dant was u nder extre me mental or emotional duress. While i t was suggested t hat Defendant was upset over losing his girlfrie nd to th e victim , the on ly witnes ses w ho we re with th e victim that day did not testify as to any extr eme dures s the Defendan t was experi encin g. As witnessesdescribed the vict im acting i n self-def ense, the vi ctim was not a parti cipant in the De fendan t’s condu ct.

W hile the re was som e testim ony as to the n ature o f the victim ’s relatio nship with Kenya Fuqua’s chi ldren, t he Defendant, i n his own statement, did not tell the police that he be lieved he w as mo rally justified in killing the victim fo r any r eason. Instead, the Defendant stated that, “ the vict im had stole hi s wife, kids, money, and farm and that he was out to get the vi ctim.” There were no accomplices to the murder, and the Defendant was not acting under extreme duress as her etofore stated. The D efend ant’s age was n ot a facto r in the c rime. Final ly, t here was not suffic ientevidence to suggest that the Defendant coul d n ot ap preciate t he wrongfulness of his

conduct o r conform his conduct to the l aw. While ther e was testimony

that t he Defendant

had been dri nking t hat day, the wit nesses wh o wer e with the Defe ndant j ust prior to the murder test ified that Defendant di d not appear to be un der the influ ence, o nly that he h ad a few beers.-20- When reviewi ng the aggravat ing and miti gating ci rcumstanc es, if the aggravati ng circumstances ar e found to have be en pr oven b eyond a reas onab le doubt, then the ju ry may se ntence the defen dant to eith er life impriso nmen t or life without parole, i n its di scretion. Tenn. Code Ann. § 39-13-207(c). As the j ury found thatboth aggravat ing circ umstanc es w ere present as argued by the State, it was
w ithin the jury’s disc retion to de termine if a senten ce of life imp risonm ent with ou t parole was appropriate, notwit hstanding t he existence of mitigating factors. Only a gross abuse of discretion would re sult in our find ing an er ror. Id . at (g) . Based upon the evidence and Tennessee Code Ann otated sect ion 39-13-207, we find that the sente nce was a pprop riate an d the ju ry did no t abus e its disc retion. T his issu e is without m erit.

____________________________________ THOMAS T. W OODALL, Judge
CONCUR:

___________________________________ DAVID H. WELLES , Judge

___________________________________ JERRY L. SMITH, Judge