# FILED November 24, 1998 Cecil Crowson, Jr. Appe llate Court C lerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON AUGUST SES SION, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9604-CR-00119 ) Appellee, ) ) VS. ) SHELBY COUNTY ) ) HON. W. FRED AXLEY DERRICK C. BROOKS, ) JUDGE ) Appe llant. ) (Felony-M urder)

ON APPEAL FROM THE J UDGMENT OF THE CRIMINAL COURT OF SHELBY COUN TY
FOR THE APPELL

ANT : FOR THE APPELLEE : BRE TT B. S TEIN JOHN KNOX WALKUP 236 Adams Avenue Attorney Generaland Reporter Memphis, TN 38103 MARVIN E. CLEMENTS, JR. Assistant Attorney General 425 5th Avenu e North Nashville, TN 37243 WILLI AM GIBBONS Distri ct Attorney General EDG AR A . PETE RSO N, IV Assistant Distri ct Attorney General Criminal Just ice Complex, Suite 301 201 Poplar Street Memphis, TN 38103 OPINION FILED ________________________ AFFIRMED DAVID H. WELL ES, J UDGE-2- 

# OPINION

The Defendant app e als as of right fr om his convict ion of fi rst degree murder. His con viction wa s ente red upon a j ury verdic t findi ng him guilt

y of
mur der com mit ted during t he perpetrat ion of an aggr avated burgla ry. He was senten ced to im prisonm ent for life. W e affirm the judgm ent of the tria l court.

In this ap peal, the Defendant argues three i ssues: (1) that t he evidence pr ese nted was insuffi cient to support the jury’s finding of guilt beyond a
reaso nable doubt; (2) that the tri al court erred i n allowing the State to i ntroduce
as evidence a pic

ture of t he victi m at the scene of the crime; and (3) that the tri al court erred in its instruction to the jury co ncerning the d efinition of re asonab le doubt.

We fi rst revi ew the basic facts. Andrew Ewing, who was a friend of the Defen dant, had been involved in an a ltercation with a m an nam ed Willie Fifer. The two men had foughtand E wing appa rently b elieve d he h ad a s core to settle
w ith Fifer. A t abou t 2:30 a .m. on Marc h 21, 1 994, E wing went to Fif er’ s residence. The Defendant accompanied him. Ewing was armed with a sti ck and the Defen dant w as arm ed with a pistol . The two men approached t he front door of Fifer’ s residence, and Ewing kicked in the do or. As the Defendant and Ewi ng entered the r

esidence, Fi fer ran down a hall and, after bei ng struck i n the head with the sti ck by Ewing, Fif er was able to gai n entrance i nto a bedroom occupied by Marlo Terry and Ter ry’s gi rlfr iend. Terr y leaned against t he bedroom doorin-3-

orderto try to kee p Ewin g or the D efenda nt from e nte rin g the bedroom. As he did so, the Defendant

fired f our shots from t he pistolthrough the c losed bedroom door. O ne of the shots struck and ki lled thevicti m, Marlo Terry. Both the Defendant and Ewing were charged with fel ony murderfor the k illing of th e victim during the perpetr

ation of a n aggravated burgl ary. The State charged that the Defendant and Ew ing had entered the reside nce of F ifer with the in tention to
com mit an aggravated assault. The jur y found both t he Defendant and Ewing guilty of felony

murder as charged.

The Defend ant first argu es that the evidenc e is insufficien t to suppo rt a findingthat at t he time he entered the dwelli ng, he intend ed t o co mm it an aggravated assau lt as charg ed in the in dictme nt. When an accused chall enges the s ufficiency o f the conv icting evide nce, the s tandard is wheth er, afte r reviewing the ev idenc e in the li ght most favor able to th e prosecuti on, any rati onal trier of fact co uld have found t he essentialelements of t he crime beyond a
reaso nable doubt. Jack son v . Virginia , 443 U.S. 307, 319 (1979). Questions concerning the credib ilit y of the witnesses, the weight and value to be given the evidence, as well as al l factua l issues r aised by the evi dence, are resolved by the trier of fact, not this Court. State v. Pappas , 754 S.W. 2d 62 0, 6 23 (Tenn . Cr im. App. 1987 ). Nor m ay this Court rew eigh or re evalua te the evid ence. State v. Cabbage , 571 S.W .2d 832 , 835 (Te nn. 197 8).

A j ury verd ict approv ed by the trial judge ac credits the State’s w itn esse s and resolves all conflicts in fa vor of the S tate. State v. Grace , 493 S.W.2d 474,-4-

476 (Tenn. 1973 ). On a ppea l, the Sta te is en titled to th e stron gest le gitim at e view of the e viden ce an d all inference s therefro m. Cabbage , 571 S.W.2d at 835. Because a verdict of guil t removes the presumption of innocence and repl aces it with a presum p tion of gu ilt, the accused has t he burden in t his court of illustrati ng why the evidence is insuffi cient to support t he verdictreturned by t he trier of fact. State v. Tug gle , 639 S.W .2d 913 , 914 (Te nn. 198 2); Grace , 49 3 S.W.2d at 476.

An assault occurs if a person intentionally, knowingly, or reck lessly causes bodily injury to another, intenti onally or know ingly ca uses anoth er to rea sona bly fearimminent bodily injur y, or intenti onally or knowingly causes physical contact with anoth er and a reas onab le person would regard the co ntact a s extre mely off ensive or provocative. Tenn. Code Ann. § 39-13-101. The assault i s a n aggravated assau lt if it causes se rious bod ily injury to an other pe rson or if th e pers on comm itti ng the a ssault us es or disp lays a de adly we apon. Id. § 39-13- 102(a)(1).

We believe that the evi dence introduce d by the State is su fficient to support the findi ng of the jury that t he Defendant entered the residence where the victim was killed with t he intention of part icipating i n an aggravated ass aul t. Andrew Ewing had an altercation with Willie Fifer. Ewing’s girlfri end testi fied that Ewing had said he was goi ng to ge t back at Fifer because of t heir previ ous altercat ion. Ewing’ s uncle rode wi th Ewing to Fifer’s house. On th e way to the house, Ewing stopped the ve hicle at a house, honked the h orn, and the-5-

Defendant cam e out a nd go t in the car. They d rove further, and Ewing stopped the car and said “

There the house is rig ht there. ” Andrew Ewing and the Defendant got outof the car and together wal ked up to theFifer house. Ewing
was armed with alarge stick, a nd the D efenda nt was a rmed w ith a load ed pis tol. Ewing kicked in th e door, a nd both Ewing and the Defe ndant entered the residence. As Fifer re treate d down a hallway, he was struck wit h the sti ck by Ewing
. He gained entrance into a bedr oom, and Marlo Terry t ried to kee p the door to the bedroom cl osed so that the intruders could not get in. The Defendant fired four roundsfrom the pistol t hrough the door, and one of the shots struck and k illed Ma rlo Terry . In hi s statement, the Defendant sai d that he shot the gun through the door

because “I t hought somebody in ther e was going to get

a gun and shoot at me with it.” He said that he did not mean to ki ll anybody and di d not even know the name of the i ndividualhe kill ed.

From this evi dence, we believe the jury coul d have found eit her that t he De fendantenter

ed the r eside nce fo r thepurpos e of ai ding An drew Ew ing i n committing an aggravated assault, that the Defendant entered the d welling for th e purpose of committi ng an aggravated assault himself , or that the Defendant entered both for the purpose of assist ing Ewing and committing t he aggravated
assau lt himself. Th is issue is w ithout me rit.

The Defendant next argues that the trial co urt err ed in all owing the int roduction of a photograph of the vi ctim’s body as it la y at the scene of

the crime. The photograph was offer ed to show the posi tion of t he body in rel ation1 In the bri efs submitt ed on behalf ofthe D efen dan t, cou nse l inacc urate ly qu otes from the tria l cou rt’s jury inst ructi on and

ad ds lan gu ag e w hich is n ot c on tain ed in th e in stru ctio n p rov ide d in the re co rd. F ur the r, c ou ns el’s cita tion to the rec ord on this issu e is inc orre ct a nd ina ccu rate as to b oth vo lum e a nd pa ge of th e re co rd. Counsel is advised to exercise more care in the preparation of appellate briefs. -6- to the doo r and oth er objects in the room
. The photograph was cle arly releva nt. Because all relevant evidence is gen erally ad missible, this photograph was adm issible unles s it should have been excluded because i ts probative value was subs tantially outweighed by the danger of unfair pr

ejudice. State v. Banks , 564 S.W.2d 947, 95 1 (Tenn . 1978). W h ile som e bloo d is sho wn on the vict im’s clothi ng in the photograph, the photograph i s not such that we consider

it to b e gru esom e or horr ifying. T he trial ju dge d id not abuse his discr etion in admittin g the pho tograph . This issue is without m erit.

As his fina l issue, th e Def enda nt argu es tha t the trial ju dge e rred in instruct ing the jury concerning the definition of “reason able doubt.” We first n ote that t he Defendant neit her objected to this portion of the charge nor requested additionalinstruct ions conce rning the mean ing of “reas onable doubt.” Although
we agree with the State th at the D efend ant ha s waiv ed this issue for f ailure to request a particul ar jury i nstructi on and fail ure to objec t to the i nstructi on given, we el ect to p roceed a nd c onsi der themerits of t his

cl aim. 1

The tri al court’ s instr uction concer ning the meaning of “ reasonable doubt” was as foll ows:

A rea so na ble do ub t is a doubt based upon reason and common sense after careful and imparti al consi derati on of all the evidence i n this case. It is not necessar y that the defendant’ s guil t be pro ve d b ey on d a ll po ssib le dou bt,a s absolute certai nty of gui lt i s not demanded by the law to convi ct of any criminal charge.-7- A reasonable doubt i s just t hat -- a do ubt th at is reasonabl e after an examination of all t he facts of t his case. If you find t he State hasnot pr o ve n e very e lem en t be yo nd a re as on ab le doubt, then you should find the defendant not gui lty.
The Def end ant a rg ues that these i nstruct ions are so conf using and contr adictor y that the jury could have “easily appl ied a lesser burden of proof as that whichis re quired in orde r to co nvict.” The De fen da nt a ckn ow led ge s th at t his Co urt ha s uph eld virt ua lly id en tica l jury in structi ons con cerning re aso nab le dou bt bu t “resp ectfully disag

rees ” with t hes e de cision s of th is Co urt.

We do no t fin d the j ury ins tructio n to be co ns titu tion ally de ficie nt. W e fin d n o re as on ab le li keli hood that the j ury understood t his i nstruct ion to permi t them to convic t the Defendant af te r anything but a process of car eful del iberat ion or upon anythi ng less than pr oof beyonda re as on ab le dou bt. See State

v. Jam es E arlSo me rville , No. 02C01-9608-CC-00289, 1997 WL 6276 30, at *3 (Tenn. Cr im
. App., Jackson, Oct. 13, 199 7), perm. to appeal deni ed , (Ten n. 19 98); State v. Derek Denton , No. 02C01-9409-CR-00186, 1996 WL 432338, at *7-9 ( Tenn. Crim. App., Jackson, Aug. 2, 199 6); State v. Jose Hol mes, No. 02C01-9505-CR-00154, 1997 WL 759429, at *3- 4 (T enn. C rim
. App ., Jackson, Dec

. 10, 1 997

), perm. to appeal deni ed , (Ten n. 19 98); State v. M elvin Ed ward Henning , No.

02C 01-9 703 -CR -001 26, 1 997

WL 661 455, at *7

-9 (T enn . Crim. App

., Jac kson, Oc t. 24, 19 97).
The judgment of the t rial court i s accordingl y affi rmed.

____________________________________ DAVI D H. WEL LES, JUDGE-8--9-

CONCUR:

___________________________________ JERRYL. S MITH , J UDGE

___________________________________ JOHN K. BYERS, SENI OR JUDGE