### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs N ove mb er 6, 200 7

STATE OF TENNESS EE v . TREVOR FORD

Direc t Appeal from the Cr iminal Cou rt f or Shelby Coun ty No. 03-02258 Car olyn Wad e Blackett , Judge

No. W2007-00291-C CA-R 3-CD - Filed May 28, 2008

Fol low ing a jury tr ia l, De fe nd a nt wa s c on vic te d of on e c ou nt o f s e c on d d e gr e e mur de r. On app e a l, Def endant a rgues that the e vidence used to convict him wa s insufficient to sustain a conviction for any off ense gr eate r than voluntary manslaughter. After a thorough revie w of the rec ord, we aff irm the jud gme nt o f the tr ia l c ou rt

. Tenn. R. App . P. 3 Appeal as of Right; Judgment of the Cr iminal Cou rt A ffirm ed

T H O M A S T. W OOD ALL , J., delivere d the opi nion of t he court, in which J A M ES C UR W OOD W I TT , J R ., a ndJ. C. M C L IN , JJ., joined.

Robert Wilson Jones, Shelby Co u n ty Public De fende r; Gar land Ergüde n, Assistant Publ ic Def ender ; and Tre nt Hall, Assistant Publ ic Def ender , for the a

ppellant, Tre vor Ford.

R o b e r t E

. C o o p e r , J r

. , A ttorne y G e ne ra l a ndRe po rt e r; Da vidH. Fin dle y, As sis ta nt A tto rn e y G e ne ra l; W ill ia m L. Gib bo ns , Dis tr ic t Atto rn e y G e ne ra l; T if fani T a ylo r, As sis ta nt D ist ri c t A tto rn e y G e ne ra l; and De an De candia , Assistant District Attorney Gene ral, for the appe llee, the State of Tenne ssee.

OP IN ION

I. Bac kgr ound

On Janua ry 10, 2003, De fenda nt and a gr oup of fr i en d s , including the victim, met at a bar in Memphis called Rally Point. The group play ed p o o l and dra nk beer . During the e vening, the victim and Def

endant got into a “tussle” and punche s were thrown. The ma nageme nt asked them to l e a ve the ba

r. W hil e in the pa

rking lot
, the vic tim a nd De fe nd a nt c on tin ue d to “ ha ve wo rd s” wi th

eac h other but we re not physica lly assaulting each othe r.

Lisa C as h t est ified that she sa w the alter cation inside the ba r and w hat happe ned in the parking lot. Also, in the parking lot, Ms. Cash hear d the victim thre aten to kill Defenda nt. After the victim and Def

endant stopped ye lling at each othe r, De fenda nt got into an SUV with Ms. C ash, her boyfriend, Harry Jarr ett, and anothe r woman. A fter a few moments, Defe ndant jumped out of the-2-

SUV and got into the car with the victim. Ms. C ash testified that a bout thirty to forty minut es af ter the victim a nd Def

endant spe d off, she rec eived a phone ca ll from Def

endant. De fenda nt asked he r to come and pic k him up. She complied and picked him u p wh er e Def endant sa id the victim had dropped him off . Def

endant a pologized to Ms. Cash for his beha vior and “ tear ed up.”

Mr . J arr e tt te sti fi e d that he tr ie d to fo llo w the vic tim a ndDe fe nd a nt b e c a us e he wa s a fr a id of what the victim might do. Howeve r, beca use the victim was driving at a high rate of spee d, Mr. Jarr ett was una

ble to keep up a nd lost the car

. Mr. Jarr ett testified that Def endant c alled later

and that h is girlfriend we nt to pick him up and brought him back to Mr. Jar rett’s mother’ s home. Def endant a pologized for

almost hitt ing Mr. Jarr ett when he tried to break up the fight at the ba r and then Def endant started crying.

Tammie Howa

rd testi fi ed t h at s he wa s in her apa rtment on University Street whe n she

no tic e d a c ar p ull int o th e pa

rking lot aro un d tw o o’ c loc k on the mornin g of Ja nu ary 11 , 2 00 3. Ms. Ho ward t e s t i f

i e d t h a t s h e n o t i c e d t h e c ar b e c a u s e s h e t h o u g h t i t w a s h e r a u n t a n d e x p e c t e d he r t o knock on the door . When no one knocked on the door and she heard a car horn beep, Ms. Howar d got out of bed and w ent to the window. She stated that she saw the front of a small, gray car and a pe rs on sit tin g i ns id e the c ar. Ms. Ho wa rdthe n c a lle d h e r f

ia nc é to t e ll h im t o h ur

ry ho me . M s. Ho wa rd te sti fi e d that sh e he ard the c ar ho rn blo w a ga in, so sh e we nt ba c k to the wi nd ow

. She c ou ld

now see the person inside the car beca use the interior light wa s on. Ms. H owar d then saw the man get out of the c ar a nd wipe the e xterior a nd then open the pa ssenger door. At this point, she stated sh e sa w a n a

rm “ fl op ” ou t of the c ar. Ms. Ho wa rdwa s f ri gh te ne d a nda ga in c a lle d h e r f ia nc é to t e ll hi m t o co m e h o me. Ms. Howar d testified that the per son she saw slumped ove r in the ca r wa s definitely dec ease d. Ms. H owar d identified Def endant from a photo line- up and in c ourt as the man she obser ved get out of the car and wipe dow n the ca

r’s e xterior.

Eddie Gra ndberry, Ms. Howar d’s fianc é, testified that he spoke to De fenda nt in the parking lot when he ( Mr. Grandberry) arrived home. Mr. Grandberry told Def endant he could not park the

car in the lot and that he would have to move it. Mr. Grandbe rry testified that the Def endant

c omp lie d a nddr ov e a way. Mr . G ra nd be rry a lso ide nti fi e d D e fe nd a nt i n a ph oto arr a y a ndin c ou rt

.
Offic er K en Fox responde d to a 911 ca ll about a dea d person in a ca r. The c ar w as located outside Ms. Howard’ s bedroom window a nd she stated f rom her b ed ro o m s h e could “see stra ight thr ou gh the c ar. ” He fo un d th e vic tim ’s bo dy slu mpe d o ve r i n th e fr on t se a t of a gr a y Fo rdFoc us

. Offic er Fox found c ash, marijuana , and a CD pla yer in the ve hicle.

Dr. O.C. Smith performe d the autopsy and testified that the victim was shot twice. One of the s h o t s wa s fata l. Dr. Smith t estified that the victim tested positive for c ocaine and his blood alcohol conte nt was .14.

On Janua ry 12, 2003, Serge ants Eric H utchinson and Tim o t h y S i ms took Defenda nt’s statement. Serge ant Sims passed awa y befor e the tria l so o n l y S er g eant Hutc hinson testified. Sergea nt H utchinson testified that Def endant was cooper ative and expre ssed remor s e. S er geant Hutchinson rea d Def

endant’ s statement i nto evidenc e. In hi s statement, Defenda nt told the office rs that he was responsible for the victim’s de ath and that he was trying to pr otect himself. De fenda nt-3-

also said that he kne w the victim kept a gun unde r his seat an d h e believed that the victim was

rea ching for it. De fenda nt the n stated that he and the victim be gan “tussling a nd arguing” in the car and that the victim gra

bbed for Def endant’ s gun. During this altercat i o n t h e gun went off twice

. Def endant said he jumped out a nd ran away, but the n returne d to the car and found the victim alive. Def endant state d that he panicke d and drove the car into another pa

rking lot and ca lled Ms. Cash for a ride . Def

endant told th e o ffice rs he wa s scar ed to ca ll 911. Defe ndant ende d his statement by saying he wa s sorry and that he was “ just trying to protect myself.”

Def endant did not testify at trial, nor did he offe r any othe r proof

.

II. Ana lys is

Def endant’ s sole argume nt on appea l i s t hat there was insuffic ient evidenc e to sustain a conviction for a ny offe nse greater than vol untary manslaughter. De fenda nt was convic ted of sec ond degre e murde r. Second de gree murder is “ the knowing killing of another .” T.C.A. § 39-13- 210(a) (2003). Rega

rding second de gree murder, a “re sult of conduct” of

fense , State v. Ducke r, 27 S.W .3 d 8 89 , 8 96 (T e nn .2 00 0) , “ kn ow ing ly” is d e fi ne d a s b e ing a wa re that a per so n’ s is “ re a so na bly

certain to c ause the result.” T.C. A. § 39-11-302( b). Voluntary ma nslaughter is “the intentional or knowing killing of another in a state of passion produce d by adequate provoc ation sufficie nt to lead a per son to act in an irr ational manner .” T.C.A. § 39-13- 211(a)

.

In re vie wi ng De fe nd a nt’ s c ha lle ng e to the su ff ic ie nc y o f the c on vic tin g e vid e nc e , w e mus t revie w the evide nce in a light most favor able to the prosec ution in determining whe ther 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 t he cri me be yo nda re a so na ble do ub t. Jackson v. Vir ginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed.2d 560, 573 (1979). O nce a jury finds a

defe ndant guilty, his or her pre sumption of innocence is removed a nd re p l ac ed on appea l w i t h a p re s u m ption of guilt. S tate v. Black, 815 S.W.2d 166, 175 ( Tenn. 1991). T he de fe nd a nt h a s th e bu rd e n o f ov e rc omi ng thi s pr e su mpt ion
, a nd the Sta te is e nti tle d to the str on ge st legitimate view of the evidenc e along with all rea sonable inferenc es which may be draw n from that evidenc e. Id.; State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982) . The jury is pre sumed to have resolved a ll conflicts and dra wn any r easona ble infer ence s in f

avor of the State. State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984). Questions conce rning the cr edibility of witnesses, the weight and value to be given the e vidence , and all fa ctual issues ra ised by the evide nce a re r esolved by the trier of fac t and not this court. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997) . These r ules are applicable to findings of guilt pre d i ca t ed upon direc t evidence , circ umstantial evidence , or a combination of both direc t a nd circ umstantial e vidence

. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990)

.

In State v. Johnson, 909 S.W.2d 461 (Tenn. Crim. App. 1995), this Court dealt with the issue of a second degree murder c onviction versus a voluntary manslaughter c onviction. In that ca se, the de fe nd a nt b a se d h is arg ume nt on mutua l c omb a t. H ow e ve r, thejury d id n ot a gr e e a ndfo un d h im guilty of second degr ee mur der. We determined that “whe ther the a cts constitute a knowing killing (s e c on d d e gr e e mur de r) or a kil lin g d ue to ‘ adeq uat e pr ov oc a tio n’ (v olu nta ry ma ns laug hte r) is a question for the jury.” Johnson, 909 S.W.2d at 464.-4-

In the instant ca se, it was we ll w i t hin the jury’s pre rogative to find De fenda nt guilty of second de gree murder. T he jury he ard the evidenc e and c hose to reje ct the asse rtion that Defe ndant sh ot the vic tim

du ri ng a fi gh t. T he jury in ste a d b e lie ve d th a t D e fe nd a nt kno wi ng ly s ho t th e vic tim

. In State v. Williams, 38 S.W.3d 532, 239 (T en n

. 2 0 01), our Supre me Court aff irmed this Court’s holding in Johnson restating that it i s a jury question as to whe ther a killing was know i n g o r t he

re su lt o f s uf

fi c ie nt p ro vo c a tio n. Gr e a t w e igh t is giv e n to the jury ve rd ic t in a c ri min a l tria l; i t

acc redits the state’ s witnesses and r esolves all conflicts in f avor of the state. State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994); State v. Har ris, 839 S.W.2d 54, 75 (Tenn. 1992) . “The infere nces to b e dr a wn fr om s uc h ev ide nc e , a ndthe e xte nt t o w hic h th e c ir c ums ta nc e s a re c on sis te nt w ith gu ilt and inconsistent with innocenc e ar e questions . . . for the jury.” Mar able v. State, 313 S.W.2d 451, 45 7 ( Te nn . 1 95 8) (c itatio n o mit te d) ; se e a lso Sta te v. Gr e go ry , 8 62 S.W. 2d57 4, 57 7 ( Te nn . Crim. App. 1993).

The e vidence prese nted in the instant case allowed the jury to determine w hether Def endant shot the victim knowingly or as a result of adequate provocation. The evidenc e sho we d t h at Def endant a nd the victim had ar gued all nigh t

. When the group wa s leaving the ba r, De fenda nt

c ho se to ge t out of

the c ar h e wa s in a ndge t in to the vic tim ’s c ar. Furthe r, be fo re De fe nd a nt g ot i nto the ca r with the victim, De fenda nt r etrieve d his gun from anothe r vehic le. Also, the fa ct that there

wer e two gunshots permits an inferenc e by the j ury t hat the shooting did not occur a s a re sult of a “tussle.” La stly, Defenda nt admitted in his st atement to police that the victi m wa s alive af ter the shooting and that he did not call 911 or se ek other assistance . Because the jury is the judge of the fac ts of a ca se and in light of our holding in Johnson, there was sufficient evidenc e to convict Def endant of second de gree murder. A ccor dingly, Defe ndant is not entitled to relief.

CO NC LU SION

For the fore going rea sons, the judgment of the trial court is affirmed.

___________________________________ THOMAS T. WO ODALL, JU DGE