### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs A pril 1, 200 3
STATE OF TENN ESSEE v. VOSS JOHNSO N
Direct Appeal from the Criminal Court for Shelby County Nos. 00-10179, 80, 81, 82 Bernie Weinman, Judge

No. W2002-01487-CCA-R3-CD - Filed August 27, 2003

Following a jury trial, De fendant, V oss Joh nson, wasconvicte d of two c ounts of e special ly aggravated

robbery, one

count of attempted voluntary ma nslaughter, and one count

of second degree murder. Defend ant now a ppeals hi s convict

ions arg uing tha t the tria l court e rred in d eny ing his motion to suppre ss and tha t the evid ence is i nsuffic ient to sust ain his conviction for second degree murder based on a theory

of criminal responsibility. After a careful review of the rec ord, we affirm the judgments of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Trial Court Affirmed

T HOMAS T. W OODA LL , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J. and D AVID G. H AYES , J., joined. Brett B. Stein, Memphis, Tennessee, for the appe llant, Voss Johnson.

Paul G. Summers, Attorney Gene ral a nd Rep orte

r; Re nee W

. Turner, Assistant Attorney Genera l; William L. Gibbons, District Attorney General; and Camille McMullen, Assistant District Attorney General, for the appellee, State of Te nnessee.
OPINION

On the evening of February 5, 2001, Defend ant, alon g with hisbrother, Odell Pegues, and his cousin, Terry

Wallace, dressed in black clothes an d slippe d out of an upstairs window at Defendant’s grandmother’s house. The men proceede d to a n eighborhood grocery store located approxima

tely two house s down fr

om Defendant’s house. The victims, A dnan Mors hidand Idri s Abdo Modhime, had just closed the store and wer e in the pr ocess of leaving . Mr. Modhime was in his car whe

n he notic ed that M

r. Morshid wa s having

trouble s tarting

his vehic le. Mr. Mo

rshid waved at Mr. Modhime and then walked over to Mr. Modhime’s car. Mr. Modhime had just opened the car door when

he hear d a guns hot and Mr . Morshid f ell to the gro

und. Mr. Mo dhime look

ed to his left and saw Defendant. He slid over to the passeng er side of the car as Defendant shot him. The bulletpassed th

rough M r. Modhime ’s neck a

nd exited hi s mouth. Defendant asked for money

and-2-

Mr. Modhime gave him his wallet, then lay down on the sea t and played de ad. The other two men knelt on the g round an d searched Mr. Mo rshid’s p ockets while Defendant searched Mr. Modhime. As they left, one of

the men fired once more at Mr. Modhime’s vehicle. Althoug h the store’s l

ights
were off, the park

ing lot was lit by

a stree t light on the corner, and M

r. Modhime

recog nized th e perpetrators as frequent patrons of the store

. Demetri Pegues, Defendan t’ s cousin, a

rrived a t Defendant’s g

randmoth er’s hou se shortly before nine o’clock that night to pick up Defendant and Odell Pegues who were supposed to spend the weekend at her house. When she discovered that Defendant had left the house, Ms. Pegues drove aroundthe neig

hborhood search ing for him. A friend suggested that Ms. Pegue s search the neighborhood

shopping center. As Ms. Pegues passed the parking lot in front of the grocery

store, she noticed a

car. One man lay

on the g round next to the car

and anoth

er man le aned ove

r him appare ntly trying to aid the f

allen man. Ms. Pegues turned her car around

and drove to the parking lot. When she saw the extent of Mr. Modhime’s injuries, Ms. Pegues called 911 on her ce ll phone. Al thoug h Ms. Pegues saw Mr. Morshid breathe a couple of times after she arrived, he was dead before assistance arrived.

Officer Felicia Shipp with the Memphis Police Department received a call between 9:30 and 10:00 p.m. concerning the incident at the gr ocery store

. When she arrived, Officer Shipp verified that Mr. Morshid no longer had a pulse andthen turned her attention to Mr. Modhime. Because he was bleeding from his mouth, Mr. Modhime could not speak, but he responded to Officer Shipp’s questions through gestures indicating that ther e were three perp etrators an d that the perpetrators were black. Office

r Shipp disc overed s ome money strewn a round the parking lot and assigned an off icer to guar d the bills.

Officer Kevin Sha

ver was on duty

with the M emphis Police Department’s crime scene d ivision that night. His inve stigatio n of the sc ene rev ealed in dentatio ns in the si de of Mr

. Modhime’s car that appeared to have been made by

shotgun pelle

ts. A s pent

shotg un ca sing lay next to Mr. Morshid. Officer Shaver discovered severa l shotgun wadding s on the pa

rking lo t, altho ugh
some of the wa

ddings a ppeare d to have b een dep osited pr ior to the incident. The fre shest waddi ng, however, was located

next to Mr. Modhime’s car. Two spent bullets and a tooth were discovered in the passenger

seat of Mr. Modhime’s car, and a spent bullet fell out of Mr. Morshid’s shirt when the officers moved him to search for an exit wound. Sergeant T. J. Helldorfer questioned Ms. Pegues who told him that she was driving by

the grocery store in an attempt to locate Defendant who was su

pposed to b e at his g

randmoth er’s hou se but was missing at the time of the incident. Inter views of various people in the neighbor hoo d
r evealed that Defendant’s neighbors considere d Defendant, Mr. Pegues and Mr. Wal lace to b e “problem kids.” Based on this information, Sergeant Helldorfer included Defendant’s picture in a photographic line-up which was shown

to Mr. Modh

ime in the hospital. A

lthough M

r. Modhime
was unable to

talk bec ause he w as on a ve ntilator, he pointe d to Defendant’s picture as the man who shot him.-3-

On February

7, Ms. Adriane Johnson, a resident of the home, co nsented to a search of the homein which Defendant resided. Defendant, Terry Wallace and Odell Pegues were placed under arrest prior to the search . In the up stairs be droom, Ser geant Terry

Land rum found

a blue va se containing one spen

t .38 bulle

t and three live bullets. Be neath an end tabl e at the end of a couch
were se veral pi eces of

black cl othing, a

black and white ba

ndanna a nd a pair of red g loves.

The officers returned

later that day with a search warrant. Serge ant Landrum discovered a .38 Rossi with three live bullets in the chamber, hidde n beneath an organ. A sawe d-off 97 Winchester

pump 12-gau ge shot gun was locat ed in a dog food sack in a van parked next to the house. Officer Cham Pay ne also discovered a red and black na il gun. Sergeant Helldorfer left the search befor e it was fi nished to prepare for Defendant’s interview. Defend ant arr

ived at the police

station at approxima

tely 1:00 p.m., but the interview was delayed until the a

rrival of Voss Nail

ing, D efendant’s father, who would serve a s Defendant’s guardian during questioning. When Mr. Nailing arrived shor tly before 2:00 p.m., Serg eant Helldorfer

read Defendant his rights and then had D efendant read the rights to him to asce

rtain his reading comprehension. Defendant said that he understood and a gree d to waive h is rights

. Defend ant and Mr . Nailing signed t he waive r form at approxima

tely 1:50 p.m.

Defendant

at first denied that he was present at the gr ocery store

when the shooting occurred and said he was at Demetri Pegues ’ house th at evening. Be cause Ms . Pegue s had alr eady told the police she did not know where Defendant wason February 5, the investigators left Defendant and proceeded

to interview Mr. Wallace and Mr. Pegues. The men were interview ed separately , and Mr. Nailing served as guardia n for all three men. Sergeant Helldorfe r resumed questioning Defendant at 11:08 p.m. and read Defendant his rights ag ain. Once again, Defendant said that he understood his rights, and he and his father signed the waiver for m. In this interview, Defend ant said th at his cousin, Terry Wallac e, shot Mr. Morshid. Mr. Wallace told Defendant earlier in the evening that he intended to rob the victim

. When Mr. Wallace left his grandmother’s house dressed in blac k and armedwith a revolver, Defendant and Mr. Peg ues sat outside on the hood of a car. They

heard three shots and then saw Mr. Wallace running up McL emore toward Glenview Park. Defenda nt walked down to the grocery

store and saw one man

on the ground beside the car and anothe r man laying

on the car’s front seat. When he returned home, Mr. Wallace was there, and Mr. Wallace and another relative dropped Defendant off at Ms. Pegues ’ house. T he second intervie

w conclu ded at mid

night. Sergeant Helldorf er left D efenda

nt and his f

ather in th e inter view room while he arranged Defendant’s transpor

tation to juvenile

court. When he returned, Defendant, his father a nd Sergeant Helldorfer

were standing in the doorway when Defendant

suddenly stopped and said that he wanted to tell Sergeant Helldorfer what re ally happene d that night. The men went back into the interview room, and Defendant made a third statement at 2:08 a.m. Sergeant Helldorfer read Defend ant his rights, and Defendant indicated he understood them and wished to make a s tatement . In th

is statemen t, Defendant said that Mr. Wallace sugg ested around 9:00 p.m. that he and Defendant rob the groce ry store. Th

e store w as still ope

n for business on the

ir first visit, so t hey waited. When Defendant

and Mr. Wallace retur ned, Mr. Modhime and Mr. Morshid were talking by Mr.-4-

Modhime’s car. Defend ant ran u p to Mr. Mor shid who pu

t his hands in the air . When Mr. M orshid tried to touch De fendant’s gun, Mr. Wallace fired three shots, one at Mr. Morshid, one at Mr. Modhime, and one in the general direction of the c ar. Mr. Wallace grabbed some money out of Mr. Mors hid’s pockets, and the men then ran back to Defenda nt’s grandmother’s house. A relativ e droppedDefend ant off a

t Ms. Pegue’s house, and then drove off with Mr. Wallace. Defenda nt was armedwith a 12-gauge shotgun bu t he said that he only fire d the gun after he had left the store’ s parking lot. Defendant said he hid the gun in a dog food bag in a van. The ne xt day, Mr. Wallace bought Defendant a hat with the stolen money , and the two men watched a movie and had something to eat. Defendant said that he did not know that Mr. Wallace was going to fire his weapon. As fa r as Defendant knew, all the men planned to do was “a normal robbery

without hurting nobody.”

TericJones, a friend of

Defendant and Mr. Wallace, came over to visit the men that Friday aroundseven o’clock. As they watched a football game on television in Defendant’s bedroom, Mr. Wallace went downstairs to change clot hes. Defendant changed clothes in the be droom. Mr. Wallace came back

upstairs, retriev ed his .38 r evolver , and ask

ed Mr. Jone s if

he was c oming wit

h them. Mr. Jones sa

id “no,” and Defendant, Mr. Wallace and Mr. Pegues climbed out of the upstairs window. Mr. Jones left the house by the front door. On his way home, he sa

w Defendant and Mr. Wallace, but Mr. Jone s did not stop. The next day, Mr. Jones saw Defe ndant and Mr. Wallace once more, and th e men had

new cloth

es and sho es althou gh they did not hav e any

money the nig h t before. Defendant told Mr. Jones he had a new hat but

did not say where

he got the money

to pay for it.

Dr. Cynthia Gardner , the assistant medical examiner for Shelby County, p erformed a n autopsy on Mr. Morshid on February 7. The autopsy re

vealed one gunshot

wound tothe chest. The bullettraveled

through Mr. Morshid’s heart, his left lung, the intestines and spleen before exiting his back. Dr. Gardner also found multiple shotgun pellet wounds on Mr. Morshid’s buttocks, thighs and the lower portion of his legs. The gunshot wound in Mr. Morshid’s chest did not have any soot or stippling so Dr. Gardner estimated that the gun was shot fr om more than two feet away

. The che st wound was “rapidly

fatal,” but the pel let wounds occ urred at approximately the sa me time and at least incapacitated thevictim. Because she could not rule out the effect of the pellet wounds on Mr. Morshid, Dr. Gard

ner dete rmined tha

t the cau se of dea

th was fr om multiple

gunshot wounds.

The jury convicted De

fendant of the especially

aggravat ed robbery of

Mr. Modhime, the espe c ially aggravated robbe

ry of Mr. Morshid, the lesse r included offense of attempted voluntary manslau ghter

of Mr. Modhime and the lesser included offense of sec ond degree murder of Mr

. Morshid. The trial court sentenced Defendant to twenty

yearsfor each of the especially aggravated robbery c onvictions, twenty-five y ears for the second degree murder conviction and four y ears for the attempted voluntary manslaug hter conviction. The trial court ordered the especially

aggravated robbery and attempted voluntary ma ns laughter s entences pertaining to Mr. Modhime to run
co nc ur re nt ly, and the especially aggravated robbe

ry and sec ond degree murder sentences pertaining to Mr. Morshid to run concurr en tly. The trial court then or dered the sentences relating to the offenses agains t Mr. Modhi me to run c onsecuti vely to those concerning Mr. Morshid for an eff ective sentence of forty-f

ive year s. Defendant now appeals his convictions arguing that the trial court erred-5-

in not de nying his mot

ion to suppr

ess evide nce and that the e vidence is insuffi cient to su stain his
co nv ic ti on fo r s ec on d d eg re e m ur de r b as ed on a t he or y of cr im in al re sp on si bi li ty.
b. Motion t

o Suppress At the suppression hearing, Sergea ntHelldorfer testified

that Defendant’s cousin, Demetri Pegues , told him that Defend an t was supposed to be at his grandmother’s house the night of the kill ing, but Defendant had disappeared when she looked for

him around 9:30 p.m. The house was locatedtwo houses down from the grocery store. When he inter viewed D efenda nt’s neig hbors, Sergeant Helldorfer learned inf

ormatio n conce

rning D efenda

nt’s backgroun d and rep

utation a s a “problem kid.” Based on

this information, Sergeant Helldorfer included Defendant’s picture in the photo lineup tha

t was eve ntually shown to the survivi ng victim, Mr. Mo dhime, who w as recuperating in the hospit

al. Serg eant Helldorfer

showed Mr . Modhime

three photo spre ads each contain ing six photogr aphs. Mr. Modhim

e could not ta lk bec ause he w as on a ve ntilator, but he poin

ted to Defendant’s picture

as the ma

n who shot h

im and late

r ma de a statemen t concer ning his identification of Defendant as the perpetra tor.
After his visit wit

h Mr. Modhime, Serg eant Helldorfer executed a consensu al search at Defendant’s grand

mother’shouse

where he found Defendant along with Terry Wallace

and Odell Pegues

. The men were arrested, handc uffed and driven separately

to the police station. Defendant
was taken directly

to the inte

rview ro om. After Mr . Nailing arrive d, Defe

ndant wa s read hi s rights

. He indicated he understood and both Defendant and

his father signed the waiver form. De fendant initially denied any involveme

nt in the offenses. Because Defe ndant’s statement did not

agree with the information provided by the other two suspects, Sergeant Helldorfer lef t Defendant alone in the interview room while the other two men were interviewed sepa rately. Serge ant Helld

orfer s aid that the interview process took longer than might otherwise occur because Def endant’s father served as guardian for all three suspects. Sergeant He lldorfer did not speak

to Defendant ag ain until 9:42 p .m.
Defendant

gave a second statement at 11:08 p.m. after being r ead his rights and executing
a waiver for

m. He and Mr. Nailing

signed t he state ment at mid

night, a nd Mr. Helldorfer

left to arrange Defendant’s transportation to juvenile court. When Serge ant Helldorfer re turned, D efendant said that he wante d to make a nother st atement t o tell wha t really happene d. After

being r ead his rights, Defendant made a third statement in which he admitted participation in the offenses and signed the state ment at 2:3 1 a.m. Ac cording to Sergeant Hel ldorfer, an arrest warra nt was issued later that m ornin g.
At the conclusion of the suppression hearing, the trial court found that the police officers had probable cause to execute a warrantless arrest of Defenda nt based on the victim’s identification of Defendant

as the one who shot him. The trial court further found that Def endant w as advise d of his rights, knowingly wa

ived those rights and

freely and voluntarily made his statements with his fathe r present

. Accordingly , the trial court denied Defendant’s motion to suppress, and Defe ndant now appealsthat deni al.-6-

The findings of fact made by the trial court at the hear ing on a motion to sup

press are binding upon this Court unless the evidence contained in the recor d preponderates against them. State v. Ross , 49 S.W.3d 833, 839 (Tenn . 2001). The trial court, as the trier of fact, is able to assess the credibi lity

of the wit nesses, determine the weight and value to be af forded the evidence

and resolve any conflic ts in the evidence. State v. Odom , 928 S.W.2d 1 8, 23 (Te nn. 1996) . The pre

vailing party is entitled to the strongest legitimate view of the evidence and all reasonable inferences dra wn from that evidence. State v. Hicks , 55 S.W.3d 515, 521 (Tenn. 2001). However, this Court is not bound by the trial court’s conclusions of law. State v. Simpson , 968 S.W.2d 776, 779 (Tenn. 1998). The application of the law to the facts found by the trial court are questions of law that this Court reviews de novo
. State v. Daniel , 12 S.W.3d 420, 423 (Tenn. 200 0). The defendan t has the burden of establishing that the evidence contained in the record preponderate s against the findings of fact made by the trial court. Braziel v . State , 529 S.W.2d 501, 506 (Tenn. Crim. App. 1975).

In Tennessee, an officer may arrest an individual without a warrant when a felony

has been committed, and the of

ficer h as reas o nab le cause to believe that the person arreste d committed the fe lo ny. Tenn. Cod

e Ann. § 40 -7-103( a)(3); State v. M itc hell , 870 S.W .2d 532, 53 8 (Tenn. Crim. App. 1993). Whether probable cause exists depends upon whether the fac ts and circumstan ce s kno wn to the off

icer we re suff icient fo r a prude nt person to believ e that the

in dividual ha d committed the offense. Beck v. Ohio , 379 U.S. 89, 91, 85 S. Ct. 223, 225, 13 L. Ed. 2d 142 (1964);
see also State v. Downey , 945 S.W.2d 102, 106 (Tenn. 1997) . Based p rimarily upon the victim’s identification of Defendant as the perpetrator of the offense, the trial court determined, and Defendant

does not disagree, that Sergea nt Helldorfe r had suffi cient pr obable c ause to a

rrest Defend ant. T he evi dence d oes no t prep onder ate agai nst t his fi ndin g.
Nonetheless, Defendant argues that once an individual is arrested without a warrant, he or she may only be detained

for purposes of booking and processing . Defendant argues that a de tention for the sole purpose of gathering a ddi tio nal incriminating information through the accused’ s statemen ts while in custody violates the ac cused’s Fourth Amendment rights as set forth in County of Rivers ide v. Mc

Laughlin , 500 U.S. 44, 111 S. Ct. 1661, 11 4 L. Ed . 2 d 4 9 ( 19 91 ). Ac co rd in gl y, Defendant

contends that his detention was unlawful, and the trial court erroneously denied the suppression of his statement. After a thorough review of the record, we respectfully disagree.

“The Fourth Amendment requires a prompt judicial determ inat ion of pro

bable ca use as a prereq uisite to the extended detention of an individual after a warrantless arre st.” State v. Carter , 16 S.W.3d 762, 765 (Tenn. 2000) ( citing Gerstein v. Pugh , 420 U.S. 103, 114 , 95 S. Ct . 85 4, 4 3 L. Ed. 2d 54 (197 5)). A jud icial det erminati on of prob able

cause is generally

considered

“prompt”if it is made within forty-e

ight hours. McLaughli

n , 500 U.S. a

t 56, 111 S. Ct. at 1670. “The issuance of a valid arrest warrant satisfies the require ment that there must be a j udicial determination of probable cause for extended detention.” Carter , 16 S.W.3d at 766. Following Defend ant’s ide ntificat i on by the victim, Defendant was arrested without a warrant around1:00 p.m. on February 7, 2000. At 2:31 a.m., some thirteen hours later, Defend ant voluntar ily confessed to his involvement in the offense. Although Defendant’s arrest warrant was-7-

notmade a

part of the record, Sergeant Helldorf er testified that an arrest warrant wa s issued later that
mo rn in g, we ll wi th in th e for ty- ei gh t- ho ur ru le se t b y McLaughlin.

As Defend ant points out, however, not a ll probab le cause

determinations pass constitutional muster even if determined within forty -eight hours of the accused’s warran tless arr est. McLaughlin, 500 U.S. at 56, 111 S. Ct. at 1670. As the Court noted,
[s]uch a hearing may

nonetheless violate Gerstein if the arrested individual can prove that his or her probable cause determination wa s del ayed unre asonably. Examples of
unreaso nable

delay ar e delays f or the purpose of gathering

additional evidence to justify the arrest, a delay motivated

by ill will against the ar

rested individual, or delay for delay ’s sake.

Id. ; see also State v. Huddleston , 924 S.W.2d 666, 676 (Tenn. 1996).

Defendant

relies on the Tennessee

Supreme Court’s decision in Huddleston to support his position that his de

tention wa s unlawfu

l. Defendant argues that the police ha d sufficie nt probab le
cause to issue an arre st w arrant immediately , and his detention after that point was solely for the purpose of gath ering a dditional informati on to further justify his arr est. The situation faced by the court in Huddleston , however, is clearly distinguishable from the case sub judice . In Huddleston , the police officer, although he lacke d suffi cient prob able cause to do so, arrested the defe ndant without a warrant on a Friday afternoon for hi s suspected involvement in an armed robbery . The defendant was detained in the city

jail over the weekend, and confe ssed to the crimes on Monday afternoon. On Tuesday, more than seventy-two hours a fter his arre st, the pol

ice obta ined an a rrest warrant supported only by

Defendant’s confess ion. The p olice of ficer w ho execute d the war

rantless arrest admitted that he detained the defendant so that the police could “continue the investigation and develop additional evidence.” Huddleston , 924 S.W.2d at 676. Because the defendant wa s held more than seventy

-two hour s without a

judicial d

etermina tion of pr obable c ause and

the State failed to justify the del ay, the Hud

dleston court found that the defendant’s Fourth Amendment rig hts were violated. Id

. at 675.

The judicial p

robable cause de terminat ion in Defendant’s situation, however , was mad e well within the McLaughli

n forty-eig

ht hour rule. In Huddlest on, th e supreme court noted that “[ o] bv io us ly, if the statement was given prior to the time the detention ripened into a constitutional violation, it is not the product of i ll egality and should not be suppressed.” Id . If p robable cause exists for an arrest, “the exclusionary rule does not require that [the accused’s] subsequent statement made while in lawful custody be suppr essed.” State v. Jenkins , 81 S.W.3d 25 2, 264 (Te nn. Crim. App. 2002); see also New York v. H arris , 495 U.S. 14, 21, 110 S. Ct. 1640, 1644, 109 L. Ed. 2d 13 (1990). Following Defendant’s arrest, the police wer e justified in questioning Defendant concerning his involvement in the offense. Defendant could have ter minat ed th e questioning at any time. Defendant

acknowledged he understood and wa ived his right against self-incrimina tion, an d Defendant’s father

was pre sent eac

h time he w as interv

iewed. T he length of the d

etention was also-8-

caused in part by the

complexities of simultaneously interviewing three minor co-defendants who eachrelied on Mr. Nailing as their guar dian. The McLaughli

n court cautioned that “courts must allow a substantial degree of flexibility ” in evaluating whether a particu lar dete

ntion is unr

easonab le
re cognizing that some delays, base d on practical realities, will be unavoidable. McLaughli n , 50 0 U.S. at 56-57, 111 S. Ct. at 1670.

Defendant is not entitled to relief on this issue. b. Sufficiency of Evidence

Defendant

does no t contest his convictions for attempted voluntary manslaughter or especia lly ag gr av at ed ro bb er y. He does, however , argu e that the evidenc e is insuff

icient to s ustain his conviction for second degree murde r either as a principle or under a t he or y o f criminal responsibility.

Defend ant, along w ith his co- defenda nts, Terry Wallac e andOdell Pegues, was indicted for felony murder during the perpetration of a robbery

. See Tenn. Code Ann. § 39-13-202(a)(2). The jury was provided instructions concerning the lesser- included offenses of secon d degree murder, voluntary manslaughter and reckless homicide. The tria l court also instructed the jury on the theory of criminal responsibility. After de liberation, the jury found De fendant guilty

of the lesser-included charge of second deg

ree murder.

The evidence showed that Mr. Wallace was in possession of

the .38 revolver that fired the bulletthat killed Mr. Morsh id. In response to Mr. Wallace’s shots, Defendant fired his shotgun at the victim, spraying his buttocks and the backs of h is l egs with pellets. These shots, Defendant argue s, did not con

tribute to the victim’s death. Defendant also denied knowing that Mr. Wallace intended to shoot the victim. All he thought was going to happen was a “ normal robb ery.” In response, the State contends that the evidence is sufficient to sustai n Defend ant’s conviction for second degree murder unde r a theory of criminal responsibility. We ag ree.
When a defendant cha

llenge s the suff

iciency of the co nvicting

evidenc e, we mus treview the evidence in the light most favorable to the prosecution in determining whether a rational trier of fact could have fou nd allthe essential elements of the crime bey ond a reasonable doubt when viewing the evidence in a

light most favorable to the prosecution. Jackson v. Virgini

a , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L . Ed. 2d 560 (1979). Once a jury finds a defendant guilty , his or her presumption of innocence is removed and replaced with a presumption of guilt. State v. Black , 815 S.W.2d 166, 175 (Tenn. 1991). The defendant has the burden of overcoming this presumption, and t he State is entitled to the strongest legitimate view of the evidence a long with all reason abl e inferences which may be dr awn from that evidence. Id.; Stat e v. Tuggl

e , 6 39 S.W.2d 9 13, 914 (Tenn. 1982). The jury is pre sumed to have resolved all conflicts and d raw n any reasona ble inferences in favor of the State. State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984). Questions concerning the credibi lity of witnes ses, the weight and value to be given the e vidence, and all factual-9-

issues raised by the e

vidence are resolved by

the trier of

fact an d not this court. State v. Bland , 958 S.W.2d 651, 659 (Tenn. 1997).
“[C]riminal responsi

bility is not a separate, distinct crime. It is solely a theory by

which the Statemay prove

the defendant’s guilt of the alleged offenses . . . based upon the c onduct of another.” State v. Lemacks , 966 S.W.2d 166, 170 (Tenn. 1999). “A pers on is crimi nally responsible for an offense committed

by t he condu ct of ano ther if [a ]cting with intent to

promo te or assist the commission of the offense, or to benefit in the proceeds or results of the offense, the person so licits, directs, aids, or a

ttempts to a

id another person to commit the offense.” Tenn. Code Ann. § 39-11- 402(2) (1997). The common law rule of natural and probable c onsequenc es survived the codification of the current criminal responsibility statute, a lthough not specifically

expressed, and exte nded criminal liability not only to the offense intended by a defendant, but also to “co llatera l crimes committed by a co-de fendant that were the n atural and probable consequence of the tar get crime.” State v. Richmond , 90 S.W.3d 648, 654 ( Tenn. 200 2); State v. H oward , 30 S.W.3d 271, 276 (Tenn. 20 0 0); State v. Carson , 950 S.W.2d 951, 956 (Tenn. 1997). Thus, an accused may be criminally

responsi ble even if “the criminal conduct of others differs from or exceeds the sc ope of the target crime.” Richmond , 90 S.W.3d at 655.

A particular

outcome of criminal conduct is a natural and probable conse quence if it fal l s within “‘a re asonably

predictable range.’” Howard , 30 S.W.3d at 276 (quot ing Carson , 950 S.W.2d at 955). This determination is “within the province of the jury as finder of fact.” Id. “[T]o impose criminal liability based on the natural

and prob able con sequenc es rule, the State must prove beyond a re asonable doubt and the jury must find the following: (1) the elementsof the cr ime
or crimes that accompanied the targe t crime; (2) that the de fenda nt was cr iminally responsi ble pursuant to Tennessee Code Annotated section 39-11-402; and (3) that the other crimes that were committed were natural and probable conseque nces of the target crime. Id.

When Defe ndant and the others slipped out of their bedroom window that night, Ter r y Wallace was armed with a .38 revolver and Defenda nt carried a 12-gaug e shotgun. All three changed into black clothing before leaving De fendant’s grandmother’s house. Their plan was to rob the neighborhood grocery store which they often fr

equented. When they a

rrived, Defendant shot Mr. Modhime while Mr. Wallace shot Mr. Morshid who later died . The men, i ncluding Defend ant, s earched the victims’ pockets extracting what money they could. The f

ollowing day, D efe ndant , along with Mr. Wallace, bought new clothe s and shoe s, saw a mo vie and ha d somethin g to eat, all on the proceeds of the robbery

. Alth ough he cites no author ity a s support, Defend ant also a ppears t o argu e that he

can only be crimin ally

responsi ble for mu

rder in th e first de gree s ince his c o-defe ndant wa s convict

e d o f felony murder b ased on Mr . Morshid’ s killing d uring th e perpe tration of a robber y. I n other w ords, if Defendant is responsible for Mr. Wallace’s conduct, then he is only responsible for fe

lony murder, and his conviction for second degree murde r should be overturned. While it was true that the jury could have convicted Defendant of felony murder unde r a th eo ry o f criminal responsibility, they chose to convict him of second degree murde r. Second degree

mu rd er is cl ea rl y a

lesser-included-10-

offense of felony murde

r. State v. Locke , 90 S.W.3d 663, 669 ( Tenn. 200 2); State v. E ly , 48 S.W.3d 710, 721-22 (Tenn. 2001).

Based on the foregoing, we find that the e vidence was sufficient to sustain Defend ant’ s conviction for second degree murde r beyond a reaso nable dou

bt. Defe ndant is not entitled to relief on this issue.
Conclusion

After a caref ul revie w of the r

ecord, w e affir

m the judgments of th

e trial c ourt.

___________________________________ THOMAS T. WOODALL , JUDGE