# FILED
July 29, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE AT JAC KSON JULY 1997 SES SION

STA TE OF TENN ESSEE, ) ) NO. 02C01-9612- CR-00460 Appellee, ) ) SHELBY COUNTY VS. ) ) HON. CHR IS CRA FT, JUDGE TOMMY L. POINDEXTER, ) ) (Conspiracy to Commit Appellant. ) First Degree Murder)

FOR THE APPELLA NT : FOR THE A PPELLEE : DANIEL A . SEWARD JOHN KNOX WALKUP 707 Adams Avenue Attorney Gen eral and Repor ter P.O. Box 11207 Memphis, TN 38111- 0207 DEBORA H A . TULLIS Assistant Att orney Gener al Cordell H ull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashvil le, TN 37243 WILLIAM L. GIBBONS Distric t Attorney General JERRY R. KITCHEN Assistant

District Attorney

General Criminal J ustice Center , 3rd Floor 201 Poplar Avenue Memphis, TN 38103

OPINI ON FI LED:

AF FIRMED

JOE G. RI LEY, JUDGE1 The indictment and all other court doc uments list “Tommy;” however, we note that defendant signs his name “Tommie.” 2 OPINION

The defendant, T ommy L. Poindexter, 1 was conv icted by a Sh elby C ounty juryof conspiracy

to commit first degree murder and criminall y negli gent homicide. He was sentenced to consecutiv e sentences of

twen ty-four (24 ) years for the offense of conspiracy

to commit first degree murder and three ( 3) years for th e offense of criminally

neglige nt homicide. On appeal, he chall enges the sufficiency of the convicting evidence for conspiracy to commit first degree m urder. He further argues that the sentence of twenty-four (24) years is exces sive, and t he trial court
err ed in imposing consecutive sentences. H e does not appeal hi s convic tion or sentence for criminal ly negl igent homici de. We affirm the judgment of the trial court.

FACTS

In the early

morning hour

s of September 17, 1994, Mashaun Harr is, Ke i th Thomas, Derric k Dan te, T erry P oindex ter and defenda nt were outside of Rob’s Lounge in downtow n Memphis. As Marcus Brown was standing next to his car, Harris approached him and stole his nec klace. As H arris was attempting t o getin
a car, Brown shot Harris in th e bac k. Def end ant a nd th e oth ers d rove Harris to the Regional Medical Center (the Med) in Memphis. Gr ady Harrison, a security

officer at the Med, noticed two males bring ing Harris into the hospital. Harris on overheard one of the males telli ng the other on e, “let’s go get these bitches.” The two males subsequently left th e hospital. Later that evening , the defendant, his br other Terry , Xavie r Ben nett , FrederickStepton, Kevi n Po rte rfi eld, Eldrick Stephans, Harry Dillard, W arrick McBride, and Michael Thaddius armed themselves with various ty pes of weapons and headed for the Ri dgecrest Apa rtments in or der to “get” the person w ho shot3

Harris, i.e. , Bro wn. Alt hou gh Bro wn did notlive at the Ridgecr est Apartments, h e had been there earl ier that afternoon with his roommate. Defenda nt , Stephans, McBr ide, Thaddius and D illard tr aveled to the Ri dgecrest Apartments in a car. All five men wer e dressed in da rk clot hing an d
were armed. Defendant was carry ing an AK-47 assaul t weapon. They approached Prentiss Walton and Eric Isom, who were standi ng outsideby Isom’s car. The five
men began shootingat Walton and Isom. Melba F rost, a resi dent at the Ridgecrest Apartments, overheard some of the men sayi ng things such as, “I gothim”and “let’s get him” d uring the shootin g. At approx imatel y thesame ti me, Alo nzo Wallac e was retur ning to hishome at the Ridgecrest Apa rtments. He stopped his car and attempted to avoid the gunfire. When the shooting subsided fo r a moment, Wallace backed his car into a parking spot. Someone began to shoot at his car. Wallace was wounded, got out of h is car , ran to hi s apa rtme nt an d col laps ed by h is ma ilbo x. Ben nett, St epton, Porterfiel d and Terry P oindexter d rove in a separate car to the apartment c omplex. By the time they reached the complex, they could already hear shots being fired. Bennett, St epton and Porterf ield got out of their car and fire d the ir weap ons a t som e peo ple s tand ing on a sec ond floo r balc ony. Subs eque ntly, defendant visited Harris in t he hospital. During his conversati on with Ha rris, defendant s aid, “ [w]e got them. We sprayed them bitches.”After H arri s was relea sed fro m t he hospi tal, defendant told hi m that he killed those “folks” at t he Ridgecrest Apartments and that he was shooting an AK47. W allace died as a res ult of a gunshot w ound to the c hest. The bu llet recovered from his body w as consistent with that being fired from an AK-47. Defendant was indicte d along w ith others for the con spiracy to commit a fel ony, to wit: murder in the fir st degree of M arcus Brow n. He was also indict ed for the first degree murder of Alonz o Wallace. The jury conv icted him of conspi racy to commit first degree murder of Brown and criminall y negli gent homicide of W allace. He was sentenced as a Range I, S tandard Offender to twenty-four ( 24) years for t he4

conspiracy charge. That sentence was ordered torun consecutivelyto a sentence of three (3) years for crimin ally neglig ent homicide. F rom the convi ction and sentence for conspiracy, def endant brings this appeal.

SUFFICIENCY OF THE EVIDENCE

Defendant asserts that the evidence is insuff icient to support a finding of guilt of conspiracy to commit murder in the first de gre e. He c laims that there is no evidence in the record to suggest that he went to the Ridgecrest Apartments to kill Brown. He further arg ues that the jur y’s findingof guilt of consp iracy i s inconsist ent with the finding that

he was g uilty of the c riminally neglige nt homicide ofWallace. Therefore, he maintains that the ver

dict is cont rary to the law and the evidence. A. When an accused chal lenges the s ufficiency of the ev idence, this court must review the record to determine if theevidence addu ced during the trial was sufficient “to support the findings by the trier of f act of guil t beyond a reas onable doubt.” Tenn. R. App. P. 13( e). This rul e is applica ble to findings of guilt pre dicated upon direct evidence, circumstantial evidence or a co mbinati on of direct and circumstanti al evidence. Stat e v. Brewer , 932 S.W.2d 1,19 (Tenn. Crim. App. 1996). In determining the sufficiency of the evidence, this court does not reweigh or re-evalu ate the evidence. State v. Ca bbage , 571 S.W .2d 832, 835 (Tenn . 1978). Nor may this court substitute it s inferences for t hose drawn by the tri er of fact from circumstanti al evidence. Liakas v. State , 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956). To the contrary , this court is requi red to afford the State of Tennessee the stron gest le gitimate view of the evidence contained in the record a s well as all reasonable and l egiti mat e inf eren ces wh ich m ay be d rawn from the evidenc e. State v. Tuttle , 914 S.W .2d 926, 932 (Tenn . Crim. App.1995). Questions conc erning the c redibilit y of the witness es, the wei ght and val ue to be give n the evidenc e a s well as all factual issues raised by the evidence are resolved by the tri er of fact, not thi s court. Id . In State v. Grace , the Tennessee5

SupremeCourt st at ed, “[a] gui lty verdict by the jury , approved by

the trial j udge, accreditsthe testimony of the witnes ses for the State an d re solves all conflicts in favor of the theory of the State.” 493 S.W .2d 474, 476 (Tenn . 1973). Becau se a verdict

of guilt remov

es the presumpti on of innocence and replaces it

with a pr

esumption of guil t, the accused has the burden in this court of illustrat ing why t he evidence i s insufficient tosupport the verdict retur ned by the tr ier of fact. Sta te v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982); State v. Grace , 493 S.W.2d at 476. B. A defe ndan t co mmit s th e cr ime o f con spi rac y i f: (a) . . . two

(2) or more people, each hav ing the cul pable mental state required for the off ense which i s the object of the conspiracy and each acting fo r the pur pose of promoting or facilitati ng commissio n of an offense, agree that one(1) or more of them will engage in conduct which constitutes such o ffense.

. . . (d) No person may be conv icted ofconspiracy to commit an off ense unless an overt ac

t in pu rsuance of such conspiracy is alleg ed and proved to have been doneby the person or by

another wi th whom the person conspir

ed. Tenn. Code Ann. § 39-12 -103. At the time of the homicide, fir

st degree mur

der was defined as the “inten tional, premeditated and del iberate kil ling of another .” Tenn. Code Ann. § 39-13-202(a)(1)(199 1). C. In the case sub judice , we find that there is sufficient evidence in the record to support a findingthat defendant cons pired to kill M arcus Brow n. After defe ndant’s frie nd H arr is was s hot, a se cur ity gua rd h eard tw o of Harris ’ companions say, “l et’s go g et these bitches .” Later that evening , defendant and eight(8) others

armed themselves with weapons to find Brown. Thei r plan wa s to “get” the guy w ho shot Harri s. Defendant subseq uently admitt ed to Harris that they had “sp rayed them bitches.” He admitted to killing the “folks” at the Ridgecrest Apartments and that he w as carry ing an AK-47. Although h is co- conspirators testified that they di d not intend to ki ll Brow n, the jury could logi cally i nfer that they intended to kill Br

own due to thei r stated intent ions and vi olent conduct. Further, the6

defe ndant and t he co -co nspi rat orscomm itt ed overt act s in furt hera nce o f th e conspiracy

. Althou gh the ve rdict s are not n eces saril y i n consistent, any seeming inconsistency is irre levant. There is no req uirement ofconsistency in a juryverdict

. Wiggins v. State , 498 S.W.2d 92, 93-94 (Tenn. 197 3); State v. Gennoe , 851 S.W.2d 833, 836 (Te nn. Cr im. App. 1992); State v. Hicks , 835 S.W.2d 32, 36 (Tenn. Crim

. App. 1992). This issue has no mer it.

SENTENCING

In his final assignment of error, def endant claims that the trial court imposed
an excessi ve sentence for the conspiracy

charge. H e further arg ues that the tri al court improper ly impo sed consecutiv e sentences. H owever , the transcr ipt of the sentencing hearing is absent from the record. It is the appella nt’s duty t o have prepared an adequate record in ord er to allow a meaningful review on appeal. Tenn. R. App. P. 24; State v. Ballard , 855 S.W.2d 557, 560 (Tenn. 1993) ; Stat e v. Bunch , 646 S.W.2d 158, 16 0 (T enn. 1983); State v. Ca rey , 914 S.W.2d 93, 97 (Tenn. Crim. App. 199 5); State v. Goodwin , 909 S.W.2d 35, 43 (Tenn. Crim. App. 1995); State v. Banes , 874 S.W.2d 73, 82 (Te nn. Crim. App. 1993). When no evidence is preserved in the record for review, we are precluded from con sidering the issue. State v. Ro berts , 755 S.W .2d 833, 836 (Tenn . Crim. App. 1988). Moreover, th is is sue is waived since the defendant ha s failed to make appropriate references to therecord. Tenn. C rim. App. Rul e 10(b); State v. Turner , 919 S.W.2d 346, 358 (Tenn. Cri m. App. 1995); State v. Hill , 875 S.W.2d 278, 283- 84 (Tenn. Crim. App. 1993); State v. Ki llebrew , 760 S. W.2d 228, 231 (Tenn. C rim. App. 1988); see also

Tenn. R. App. P. 27(a)( 7) and (g). This issue i s without merit.

CONCLUSI ON7 We find that there i s sufficient ev idence for a rati onal trier of fact to conclude that defendant is gui lty

of conspiracy

to commit first degree murder

. Furthermore, any issue reg arding sent encing has been waived as the record does not contain a transcript

of the sentencing hearing. Accordingly, the judgmen t of the trial court is affirmed.

JOE G. RILEY , JUDGE

CONCUR:

JOE B. JONES, PRESIDING JU DGE

DAVID H. WELLE S, JUDGE