### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs S ep te m be r 13, 200 5
STATE OF TENNESS EE v . ERIC FI ELDS

Direc t Appeal from the Cr im inal Cou rt for Shelby Coun ty

No. 02-06193-95 J. C . McLin, Jud ge

No. W2004-02881-C CA-R 3-CD - F iled Janu ary 17, 2006

Following a jury

trial, Def endant, Eric Fie lds, was convicte d of the following offe nses and re ceive d the following concur

rent sente nces: a g g ravated robbe ry of Yousef

Nahha s, a Class B f

elony , twelve y ear s; conspirac y to posse ss mor e than thre e hundre d g rams of c ocaine with intent to sell or deliver, a Class A felony , twenty -five y ear s; attempted second deg ree murder of Offic er D arie t Wallace, a Cla ss B fe lon y , tw e lve y e ars ; a g g ra vate d r ob be ry of Of fi c e r Wa lla c e , a

Cla ss B fe lon y , tw e lve y e ars ; and unlawf

ul possession of a handg un, a C l as s E felony , two y ear s. The trial c ourt sentenc ed D e f e n d a n t a s a R a n g e I, s t a n d ar d o f f e n d e r , f o r h i s c o n s p i r a c y

d ru g c o n v i c t i o n , a n d a s a R a n g e II, multipl e off

ender , for his re maining c onvictions. The convictions wer e the result of a jury trial, and the total eff

ective se ntence of twenty -five y ea rs was the result of a ne g otiated ag ree ment of the parties done i n lieu of a se ntencing determination by the trial court. I n his appea l, Defe ndant challeng es the suff

iciency of the c onvicting e vidence . After revie w, we a ffirm the judgme nts of the tr ia l c ou rt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Trial Court Affi rm ed

T H O M A S T. W O O D A LL , J ., delivere d the opinion of the court, in which G AR Y R. W ADE , P.J ., and D AVI D G. H AYES , J ., joined.

Rob e rt Wils on Jone s, Di stric t Pu bli c De fe nd e r; To ny N. B ray ton , As sis ta nt Pub lic De fe nd e r; Am y Ma y ne , A ssi stant P ub lic De fe nd e r; a ndRob e rt Go wan, As sis ta nt P ub lic De fe nd e r, Me mph is, Te nn e sse e , f

or the app e lla nt, Eric F ie lds

. Paul G . Su mme rs , A tto rn e y Ge ne ra l a nd Re po rt e r; Re ne e W. Tu rn e r, As sis ta nt A tto rn e y Ge ne ra l; Willi a m L . G ibb on s, Di stric t A tto rn e y Ge ne ra l; Ja me s L a mme y , A ssi stan t D i s t ri c t A tt o rn e y G e ne ra l; and Va nessa King , Assistant District Attorney Gene ral, for

the appe llee, the State of Tenne ssee.-2- OP IN ION

I. Bac kgr ound
Muhammad Elamin testified that, on Fe bruar y 19, 2002, he was sitti ng in a ca r with Cortez Thomas and Ma

rio Fie lds at a Philli ps 66 g as station in Memphis when a man, later ide ntified as Mr. Nahha s, approa ched the m asking if they wanted to buy

some coc aine. M r. Thomas aske d Mr. Nahha s about the quantit y of cocaine he had for sale, and Mr. El amin said that Mr. Nahha s told them that he had a

bout thr ee kilogr ams. Mr. Thomas exchang ed telephone numbers with Mr. Nahhas, and Mr. Elamin and his companions lef t the g as station. Whil e they wer e driving , Mr. Elamin said that Mr . T ho ma s to ld the m th a t “ he was goin g to t ake the c oc a ine .” De fe nd a nt, wh o is Ma ri o F ie lds ’ brother, w as not with the men at this time.

Mr. Elamin said that Mr. Thomas a nd Mr. Fie lds picked him up around 7:00 p.m . the fo llo wi ng e ve nin g
. Mr

. Th oma s the n pic ke d up De fe nd a nt, a nd the g ro up ro de aro un d f or a wh ile listening to music. Mr. Thomas r ece ived a c all from Mr. Na hhas, and Mr . Thomas ar

rang ed to meet Mr. Nahha s at the front desk of the Bay mont Inn. Mr. Thomas told Mr. Elamin to drive the car , and he and Mr . Fields would meet Mr. Nahha s to c omplete the transac tion. Mr. T homas told Defe ndant to wait in the car

for f ive minutes, and then to come to Room 310, Mr. Nahhas’ motel r oom. Mr. Elamin said that all of the men but him wer e armed. He did n o t n o t i ce what ty pe of w eapon Mr

. Fields wa s car

ry ing, but De fendant had a 9-mm pistol, and Mr. Thomas was a rmed with a r evolver

. M r
. T h o m a s w a s d r i v i n g a g r e e n T o yo t a

C a m r y.
Mr. Elami n s ai d t h at he par ked Mr. Thoma s’s Camry at the B aymont I nn, and he and Def endant waited in the car while Mr. Thomas and Mr. Fields went inside the motel. Acar pulled in behind the Camry , blocking their exit. Mr. Elamin said he g ot out and aske d the driver to move his c ar
. T h e man to ldh im to w a it

. M r
. E lami n s a idth e man r e a c h e d f o r a g u n , a n d Def

endant opened f ire. Mr. Ela min ran into a nea rby field whe re he was a

pprehe nded by police officer s a short tim e la te r. Mr . E la min sa id h e he ardabo ut t e n g un sh ots fi re d inthe mot e l’ s p arking lot

. Offic er D arie t Wallace testi fied that the M emphis Police Depa rtment set up a re verse sting operation during w hich Mr. Nahhas volunteer ed to act as the seller of the coc aine. Of

fice r Wallace parke d his gre en M i t s u b ishi Galant at the Ramada I nn acr oss the street f

rom the B aymont I nn. L ie ute na nt H e nry

Willi a ms r a dio e d h im th at con ta c t ha d b e e n ma de wi th the su sp e c ts. Sho rt ly there afte r, a ma n ran out of the motel and into the street wh er e h e wa s s t ru ck bya truc k. Offic er Wallace drove across t he st ree t to the B aymont I nn and pulled his vehicle in behind the Camry . He g ot out and told Defe ndant and Mr. Elamin that he was with the Memphis Poli ce D epartment’s vice
an d n ar co t i cs u n i t

. Of

fi ce r W al l ac e s ai d t h at De fe n d an t b ro u gh t h i s we ap o n u p an d s t ar t ed fi ri n g. Offic er Wallac e re turned fire and moved for cover ag ainst the building. Of

fice r Wallace said he lef

t the key in the ignition and the motor r unning w hen he e x ited his car. D efe nd an t g ot into Officer Wallace’ s car

and drove off.-3-

Of fi c e r P a tric k F ox wa s in c ha rg e of pr oc uring three kil og rams o f c oc a ine fo r the re ve rs e sting ope ration. He g ave the cocaine to L ieutenant Williams who, in t u rn , gav e the drug s to Mr. Nahha s. Mr. Nahha s was located in Room 310, and police office rs occupie d Room 308. Offic er F ox said he wa s assig ned to appr ehend any suspects lea ving or entering Room 310 once the transac tion was in prog ress. He h ear d a commotion in Room 310, and the other police of fice rs rushed in. Offic er F ox hear d two g unshots, and one of the suspects ra n from the room. Offic er F ox said that he dre w his wea

pon, and the suspec t dropped his g un but continued running. Office r F ox chase d the
man ou t o f t h e motel. The ma n was take n into custody afte r he w as struck by

a truc k when he attempted to cr oss the street. Of fice r F ox said he saw Offic er W allace ’s M itsubishi leave the motel’s parking lot. He saw muzzl e fl as h co m i n g from the ve hicle, and hefired on the vehicle a s it sped
away . Offic er F elipe B oy ce a lso saw the drive r of the Mit s ubishi fire his wea pon, and he too returne d fire.

Offic er Tr oy

Be rry found a r evolver

in the hallway

betwee n Rooms 312 and 311. I n Room 310, he found one brick of c ocaine on the floor a nd two bricks of co ca i n e o n top of the bathroom
va nity . A 9- mm p ist ol w a s fo un d un de r the sin k inRoo m 31 0. Of fi c e r G e ra ld P a ig e fo un d a 9- mm pistol behind the Camry

in the motel’s parking lot, and t h re e 9 -m m spent ca sings outside the Camry ’s front pa sseng er’ s door. The State e ntere d a stipulation, a gre ed t o b yDef endant, that the t h r e e 9

- m ms h e l l c a s i n g s w e r e f i r e d b y t h e p i s t o l f

o u n d n e x tt o t h e C a m r y.
Mr. Nahha s said that he wa s using the public te lephone at a Phill ips 66 g as station w hen a
car drove up. A man rolled down his c ar window and told him t hat he ( Mr. Nahha s) did not need to m ake a te le ph on e c a ll b e c aus e he (the ma n) ha d d ru g s f or sa le . T he ma n sho we d Mr. Nahh a s a bag filled with cocaine. Mr. Nahhas told the man that he did not nee d to buy any drug s because he sold drug s. Mr. Nahha s said that he told the man he sold drug s so that the man would lea ve. The man aske d him h o w m u ch cocaine he had, and Mr . Nahha s told him eleve n kilogr ams. A sec ond
car pulled up, and Mr. Na

hhas g ot ba ck into his truck. Mr. Nahha s identified Mr. Thomas a nd Mr. Mario F ields as two of the oc cupants of the first ca r.
Mr. Nahha s left the g as station, and the two car s followed him. One of the ca rs g ot in front of him and motioned for him to pull over. Mr . Nahha s pulled into an Amoco station and rolled dow n his window. One of the men aske d Mr. Nahha s to follow the m s o that the man could buy Mr. Nahha s’ coc aine. Mr. N ahhas sa id th at h e t o l d t h e man that he ha d alre ady arr ang ed to sell the
cocai n e t o s o m eo n e else , but he would ca ll him i f the sale did not go throug h. The man told Mr. Nahha s that he and his friends wer e member s of the g olden teeth g ang , and their a rea of control wa s north of the 240 L oop on L amar Avenue

. The man showe d Mr. Nahha s a bag of money and aske d Mr. Nahha s for this telephone numbe r. Mr. Nahhas said he did not have a telephone number, a nd the man wr ote two numbers on a scra p of pape r and h anded it to M r. Nahhas. Mr. Nahhas drove
a way , a ndthe c ars didno t f oll ow him

. Mr. Nahha s rec orded the license tag numbers of the two vehicles an d ca l l ed L ieutenant Wil liams with the information about the propose d drug t ra nsaction. Mr. Na hhas said that he ha d previously

worke d wi t h L ieutenant Williams, and he volunteere d to pose as an out- of-town dr ug-4-

seller. Mr. Nahhas called one of t he telephone num bers on the s cra p of paper and arr ang ed a me eting at t he Baymont I nn. L ieutenant Williams equipped Room 310 with an audio and video tape rec order and stationed his men in Room 308. Mr

. Nahha s waited f or the men in fr ont of the motel. When the y wa lke d u p, the me n to ld M r. Nahh a s th e y we re no t arm e d, a ndon e of th e men pu lle d u p h is shirt. Mr. Nahhas said that he noti ced that the m en had their hands in their pockets but assumed that they wer e ca rrying c ash.

On e of the me n s e arc he d Ro om 3 10 wh e n M r. Nahh a s a ndthe oth e r m e n f ir st a rrive d, wh ile the oth e r m a n ma de su re the a djo ini ng do or wa s lo c ke d. Mr . N ahh a s said that he a sk e d th e me n if they had brought scales wit h them to weig h the cocaine, and the m en drew out their weapons. The men aske d him where he had hidden the drug s, and Mr. Nahha s pointed to the mattress. One of the men told Mr. Nahha s to g et on the floor beca use he was g oing to kill him. Mr. Nahhas la id down on the floor. Police of

fice rs enter ed the r oom, and Mr. Nahha s hear d about eig ht gunshots. One of the suspects wa s killed at the scene
. During his te stimony , Mr. Nahha s did not identify which of the men play ed what role during the incident, but he identified Mr. Thoma s and Mr. F ields as the two assailants. Mr. Elamin testified that Ma rio Fie lds and Ad o nis Thomas went up to the room, and other proof

showed that Adonis Thomas wa s the one that wa s killed.

Of fi c e r E ri c Hu tc his on re sp on de d to a c a ll fr om Me tho dis t N orth H os pit a l th a t a ma n w ith
a g unshot w ound, who was later identified as Def endant, had arrived at the emer g ency room. Offic er Hutchison said that Def

endant told him his name wa s Tyrone H ead and that he had be en shot by an unknown assailant a s he g ot out of his car in south Memphis. O ffice r Hutchison said that he alre ady knew a bout the shooting at the B aymont I nn. He g ot the addre ss of Def endant’ s female companion
a n d d is p a tc h e d o f

f ic e r s to th e ap ar tm e n t c o mp le x. Serg eant Scottie Dale Brannon discovered Office r W allace ’s car at the address pr ovided by Def endant’ s friend. The car

was locke d, but the eng ine was still running . Serg eant B rannon notice d
sever al bullet hole s in the car ’s exterior fra me. Donna N elson, a for ensic scie ntist wit h the T.B .I ., perf ormed a DNA a naly sis on a blood sta in f ound on the Mitsubishi ’s driver ’s seat, and she testified that th e DN A s a mpl e ma tc he d th e sa mpl e take n f ro m D e fe nd a nt.

J enny Rebec ca F elice and Carl Wil liams w ere watching television when Def endant a rrived at M s. Fe li c e ’ s ap ar tm e n t at 5 7 0 6 T a n g le O ak s D r iv e lo o k in g f o r M s
. F e li c e ’ s r o o mm a te , N efisa. Nef isa was not home, and Def endant asked Mr. Wil liams to drive him to the hospital. Ms. Felice
sa id that sh e he ardDe fe nd ant tel l Mr. Williams that he ha d b e e n s ho t in “ a de a l g on e ba d. ” Ms. Fe lice ca lled Nef

isa, and the four of them drove to the hospital a fter Nef isa arrived at Ms. Fe lice’s
apa rt me nt.-5-

II. Su ff iciency of the Evid ence
A. Standard of Review

I n exam ini ng wh e the r the e vid e nc e is s uf fi c ie nt t o s up po rt

De fe nd a nt’ s c on vic tio ns , w e mus t revie w the evidenc e in a light most fa vorable to the prosec ution in determining w hether a rational tr ie r o f f a c t c ou ld h a ve fo un d a ll the e sse nti a l e le me nts of the cri me bey on d a

re a so na ble do ub t. J ac k so n v . V irg ini a , 443 U.S.307, 319, 99 S. Ct. 2781, 2789, 61 L . Ed. 2d 560 (1979). O nce a jury finds a def

endant g uilty , his o r h er presumption of innocenc e is remove d and re place d with a presumption of g uilt. State v. Black , 815 S.W .2d 166, 175 (Tenn. 1991) . The d ef en d an t has the burden of overc oming this presumption, and the State is entitled to the s trong est leg itimate view of the evidenc e along with all rea sonable infe renc es which may be dra wn from that e vidence

. Id .; Sta te
v . Tu gg le , 639 S.W. 2d 91 3, 91 4 (T e nn . 198 2) . T he jury is p re su me d to ha ve re so lve d a ll c on fl ic ts and dra wn any

rea sonable infe renc es i n favor of the State. State v. Sheffield, 676 S.W .2d 542, 547 (Tenn. 1984) . Questions conce rning th e cr edibi lityof witnesses, the w eig ht and value to be g iven the e vid e nc e , a nda ll f

a c tua l is su e s raise d b y

the e vid e nc e are re so lve d b y the tr ie r o f f

a c t a ndno t th is court. State v. Bland , 958 S.W .2d 651, 659 (Tenn. 1997). These rules are applica ble to finding s of g uilt predicate d upon direc t evidence , circ umstantial evidenc e, or a combination of bot h direc t and circ umstantial evidence

. Sta te v . M att he ws , 805 S.W .2d 776, 779 (Tenn. Crim. App. 1990)

. B

. A g g r a v a t e d R o b b e r y
Def endant a rg ues that the ev i d ence was insuffic ient to support his conviction of the ag g ravated robbe ry

of Mr. Nahhas bec ause the re w as no ev i d en ce t h at either Mr. Fie lds or Mr. Th oma s a c tua lly

too k p os se ssi on of

the c oc a ine in M r. Nahh a s’ ro om.
The off ense of robbery “is the intentional o r k n o wi n g t heft of pr operty from the pe rson of
a no the r b y

vio le nc e or

pu tti ng the pe rs on in fe ar. ” Te nn . Code An n. § 39- 13 -4 01 (a ). A r ob be ry is elevated to ag g ravated robbery if the offe nse is acc omplished with a deadly wea pon. Id. § 39-13- 402(a) (1). The State pursue d Def

endant’ s conviction of agg ravated robbery under a theory of criminal responsibility . Criminal responsibilit y is not a separ ate of

fense but “s o l ely

a theory by which the St a te may p r o v e th e d e f

e n d a n t’ s g u il t o f

th e a ll e g e d o f

f e n s e
. . . b a s e do n th e c o n d u c t o f a nother person.” State v. Lemac ks , 9 96 S.W. 2d 16 6, 17 0 (T e nn . 199 9) . A pe rs on is c ri min a lly re sp on sib le for the conduct of another if, “[a]cting with intent to pr omote or assist the commission of the offe nse, or to b e ne fi t in the pr oc e e ds or re su lts of the of fe ns e , th e pe rs on so lic its , d ir e c ts, a ids , o r atte mpt s to aid another person to commit the offense[.] ” Tenn. Code Ann. § 39-11-402( 2). “This C ourt has noted that, under

the theory

of criminal responsibilit y , prese nce and companionship with the perpe trator of a felony befor e and a fter the commission of the crime a re c ircumstance s from which
an individual’s pa

rticipation may be infe rre d.” State v. Mic kens , 123 S.W. 3d 35 5, 39 0 (T e nn . Crim. App. 2003). It is not necessary that the def

endant take a phy sical part in the commission of the crime; “ [m ]ere enc ourag ement of the principal will suffice .” Id

. (c i t i n g Sta te v . B all , 973 S.W .2d-6-

28 8, 29 3 ( Te nn . Crim. Ap p. 19 98 ); State v. McBee , 644 S.W .2d 425, 428 (Tenn. Crim. App. 1982)). To be c riminally

responsible, the de fendant must “‘in some way associate himself with the venture , act with knowledg e that an o ff en s e is to be committed, and shar e in the criminal intent of the principal in the fir st deg ree .’” State v. Max ey , 898 S.W .2d 756, 757 (Tenn. Crim. App. 1 994) (q u o t i n g He mb re e v . S tate , 546 S.W .2d 235, 239 (Tenn. Crim. App. 1976) ). Apply ing the se principles, w e conc lude that the evide nce is suff icient to support Def

endant’ s conviction of a g g rava

ted robbe ry

under a theory of cri m i n al re sponsibili ty . Prior to the drug transac tion, Mr. Thomas picked Def endant up and drove the g roup to the desig nated location of the drug transac tion. Mr. Thomas told Defe ndant to wait in the ca r for about five minutes, and the n come to Mr. Na

hhas’ motel room. All three men were a rmed. The circ umstances surr ounding the offe nse, both befor e and a fter its commission, are sufficient to support a finding the De fendant was criminally

responsible for

Mr. Fie lds’ and Mr. Thoma s’ ac tions in R oom 310.

De fe nd a nt co nte nd s tha t Mr. Nahh a s wa s not r ob be d b y Mr . F ie lds a ndMr . T ho ma s b e c aus e there was no e vidence that either ma n actua lly took possession of the coc aine be fore the police office rs interve ned. View ing the evidenc e in a li g ht most favor able to the S tate, Officer Fox testified th at he delivere d approximately three kilogr ams of coc aine to Lieutenant Williams who, in t urn, g ave the coc aine to Mr. Na

hhas in Room 310. Mr. Nahhas sa id that he indicated to Mr. F ields and Mr. Thomas that the cocaine was under the mattress af ter the me n drew their we apons. Police off icer s intervene d. Offic er Fox testified that he was in the hallway when one of the suspec ts fled Room 310 and droppe d his revolver

betwee n Rooms 311 and 312. Offic er Fox also testified t hat he found one brick of c ocaine on the floor ne ar the b at h ro o m door and two bric ks of coc aine on the bathroom
va nity in R oo m 31 0 a ft e r the su spec t f le d. B a se d o n th e fo re g oin g , th e e vid e nc e is s uf fi c ie nt t o support a rational trier of fac t’s finding that Mr. Nahhas was robbed at gunpoint, and that the r obbers too k p os se ssion of th e co c a ine that w a s h idd e n u nd e r the ma ttr e ss i n M r. Na hh a s’ mot e l r oo m. Def endant is not entitled to relief on this iss ue. C. Conspi rac y

to Possess C ocaine

Def endant a rg ues t hat t he evidence was i nsufficie nt to support his conviction of c onspiracy to possess more than thre e hundre d g rams o f co ca i n e beca use he w as not with Mr. Thomas, Mr. F ie lds a ndMr

. El a min wh e n th e y fi rs t e nc ou nte re d M r. Nahh a s. F urthe rm or e , a lth ou g h M r. El a min testified that Mr. Thomas a nd Mr. Fie lds discussed taking the coc aine on F ebrua ry 19, 2002, there
was no e vidence that these p l an s wer e discussed a fter Mr . Thomas picked D efe ndant up the fo l l o wi n g ev en i n g.
Con sp ir acy

re qu ir e s th a t “ tw o ( 2) or mor e pe op le , e a c h h a vin g the c ulp able me nta l st a te require d for the of

fense which is the objec t of the consp i ra cy an d eac h acting for the pur pose of p ro m o t i n g o r fa ci l i t at i n g co m m i s s i o n o f an o ff en s e, agr ee t h ato n e ( 1 ) o r m o re o f t h em wi l l en gage in c on du c t w hic h c on sti tut e s such offe ns e .” Te nn . Co de An n. § 3 9- 12 -1 03 (a ). Som e ov e rt a c t in the pursuanc e of the conspirac y must be proved to have been do n e bythe def endant or another-7-

member of the conspira cy
. Id . § 39 -1 2- 10 3( d) ; State v. Thornton , 10 S.W. 3d 22 9, 23 4 (T e nn . Crim. App. 1999). To prove the exis tence of a co n s p i ra t o ri al relationship, the St ate may show that a “ mutual i m p l ied under standing ” existed betwee n the parties. Sta te v . Shrop sh ire , 874 S.W .2d 634, 641 (T en n
. Crim. App. 1993). A formal ag ree ment is not necessa ry
. Id. T h e c o n s p ir a c y maybe demonstrated by circ umstantial e vidence and the conduct of the parties while undertaking the illega l activity

. Id . “‘Conspirac y im p lies conce rt of desig n and not participation in every detail of execution.’” Id

. (q u o t i n g Ra nd olp h v . S tate , 570 S.W .2d 869, 871 (Tenn. Crim. App. 1978) ).

I n the instant case , the evidenc e showed that Mr. Thom as arrang ed to purc hase c ocaine from Mr. Nahha s, and that he told Mr. F ields and Mr

. E l am i n t h at he planne d to take the c ocaine

. Although D efe ndant was not with the men at this t ime, Mr. Thomas picke d him up the following evening befor e the drug transac tion, and Def endant a ccompa nied the men to the B aymont I nn wher e Mr. Thomas had a

rra ng ed to purc hase the cocaine. Def endant, Mr. T homas and Mr. F ields were
arm e d. Mr . E la min te sti fi e d that Mr

. Th oma s de sig nate d him to be the drive r o f the ve hic le , a ndtol d Def endant to wa it five or ten minutes bef ore g oing to Mr. N ahhas’ motel room. Def en d ant fired upon the police office r who attempted to bloc k the men’s e scape , and then f led the sce ne in Off

icer Wallace’ s vehicle. In establishing D efe ndant’s parti ci p at i o n in the conspirac y , the State nee d not show that Def

endant pa rticipated in e very

detail of the c onspiracy ’s execution. Sta te v . A lc or n , 741 S.W .2d 1 35, 140 (Tenn. Crim. App. 1987) . Ba sed on Mr. Elamin’s testimony and De fenda nt’s
c on du c t bef

or e , during a nd a ft e r the c ri min a l off e ns e , w e c on c lud e that th e e vid e nc e is s uf fi c ie nt t o find Def endant g uiltyof conspira cy to posse ss mor e than three hundred g rams of cocaine bey ond a
re a so na ble do ub t. D. Attempted Second D eg ree Murder Although not e ntirely

clea r fr om his brief, it appea

rs that Def

end ant ar g ues that he did not kn ow ing ly

a tte mpt to kill Of

fi c e r Wa llace b ecaus e Of fi c e r Wa lla c e didno t id e nti fy him se lf a s a po lic e of fi c e r be fo re Of

fi c e r Wal la c e ini tiate d the g un fi re
. Re g ard le ss, De fe nd a nt’ s iss ue e sse nti a lly cente rs on the cr edibilityof the witnesse s which is properly left to the jury

for r esolution.

The off ense of second de g ree murder is de fined a s “a kno wi n g killing of a nother.” Tenn. Code Ann. § 39-13- 2 1 0 (a )( 1 ). A p erson a cts knowing ly with respec t to a result of the pe rson’s conduct whe n the per son is awa re that the conduct is re asonably certain to cause the re sult. Id . § 39- 11-106(a )(20) . As rele vant her e, “[a] person comm i t s criminal attempt who, a cting with the kind of c ulp abil ity

oth e rw ise re qu ir e d f

or the of fe ns e [of se c on d d e g re e mur de r] .

. . a c ts w it h inte nt t o cause a re sult that is an element of the offe nse, and be lieves the c onduct will cause the re sult without further conduct on the pe rson’s part . . . .” Id. § 39-12-101( a)( 2).

I ntent is seldom proved by direc t evidence , but may be deduced or inferr ed bythe trier of fac t from the defendant’s conduct, the nature of t he act, and from all of the c ircumstance s surrounding the commission of the offe nse. State v. Inlow , 52 S.W .3d 101, 105 (Tenn. Crim. App. 2000) (citing-8-

State v. Holland , 860 S.W .2d 53, 59 (Tenn. Crim. App. 1993)). Mr. El amin testified that Def endant
was a rmed, a nd that Mr. Thom as t old Def endant to wait five minutes and then come up to Room 310 wher e the dr

ug transac tion was to take plac e. Of fice r W al l ac e b locked Mr. E lamin’s and Def endant’ s exi t with his car bef ore D efe ndant could join Mr. Thomas and Mr. Fields. Off icer Wal la c e te sti fi e d tha t he ide nti fi e d hims e lf a s a poli c e of fi c e r, a t whic h p oin t D e fe nd a nt r a ise d h is
wea pon and commenc ed firing . Offic er Wallac e said that De fendant c ontinued firing at him as he att em p t ed to s eek she lter ag ainst the side of the building . The thrust of de fense counsel’s c losing
arg ume nt at tria l w a s th a t th e re wa s o nly Mr

. El a min ’s te sti mon y that De fe nd a nt wa s the on e wi th the wea pon in the parking lot, or alternatively , that Offic er Wallac e did not identify himself, or wa s no t c le ar a

bo ut h is p os iti on , be fo re Of fi c e r Wal la c e c omm e nc e d f ir ing . T he se iss ue s w e re pr op e rl y rese rved f or the jury ’s resolution, and the jury obviously resolved any conflicts in the t estimony or iss ue s of the c re dib ili ty of the wi tne sse s in fa vo r o f the State ’s wi tne sse s a s e vid e nc e d b y its ve rd ic t. Viewing the evidenc e in a lig ht most favorable to the State, we conclude that a rational trier of fa c t c ou ld f

indDe fe nd a nt g uil ty

of a tte mpt e d se c on d d e g re e mur de r b e y on d a re a so na ble do ub t. Def endant is not entitled to relief on this iss ue.
We note that Def

endant included a second issue in his brief in which he arg ues that the trial court e rre d in allowing O ffice r Eddie Per ry to testify that a prospe ctive witness, Travis Young , had
esca ped. In appea

rs that the inclusion of thi s i s sue wa s inadverte nt because the re cord doe s not indicate that Offic er Perry testified at Def endant’ s trial. Nonethele ss, D efe ndant did not pr esent a ny arg uments o r ref

ere nces to the r ecor d in support of the issue, and the issue is acc ording ly waived. Tenn. R. Ct. Crim. App. 10; Tenn. R. App. P. 27.
CO NC LU SION

Af te r a tho ro ug h r e vie w o f the re c or d, we a ff ir m th e jud g me nts of

thetr ia l c ou rt

.

___________________________________ THOMAS T. WOODAL

L , J UDGE