# FILED
January 22, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JANUARY 1999 SESSION

STATE OF TENN ESSEE, ) ) NO. 02C01-9803-CR-00091 Appellee, ) ) SHELBY COUNTY VS. ) ) HON. JOSEPH B. DAILEY, POASO PITTS, ) JUDGE ) Appellant. ) (Attempted First Degree Murder)

FOR THE APPELLANT : A.C. WHARTON, JR. Shelby County Public

Defender WALKER GWINN (on appeal) Assistant Public Defender DIANNE M. THACKERY (at trial) Assistant Public Defender 201 Poplar Avenue, Suite 201 Memphis, TN 38103-1947 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter CLI NTO N J. MOR GAN Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 WILLIAM L. GIBBONS District Attorney General DAVID C. HENRY Assistant

District Attorney

General 201 Poplar Avenue, Suite 301 Memphis, TN 38103-1947

OPINION FI LED:

AFFIRMED JOE G. RILEY, JUDGE1 Defendant was in dicted under the n

ame “Poaso Pitts.” T

he record also r

eflects the names “Elpaso Pitts” and “El Paso Pitts” at various places. 2 OPINION A Shelby County jury found defendant, Poaso Pitts, 1 g uil ty of one count of attempted first degree murder agai nst Ricky Green and one count of aggravated assault against Clifford Roy. The trial court se ntenced de fendant to concurrent Range I senten ces of twe nty-three years and t hree years , respect ively. In thi s appeal as of right, defendant contends ther e was insufficient evidenc e of premeditation upon which to base the conviction of attempted first degree murder. We disagree and AFFIRM the judgment of the t rial court.

FACTS On April 23, 1996, defendant was at the home of Ricky Green. An argument ensued and Green ordered defendant to leave. Defendant left amidst threats that he would kill Green. Approxi m atelythirty minutes later,defendant returned. He burst int o the trailer, pushed Green, an d pointed a loaded pistol at him. Green “broke and run (sic)” and hid behind a nearby chair. Green’s guest , Clifford Roy, also ran when he caught sight of the pistol , and heard multiple shots fired. Green testified there were three bullet holes in the chair behind which he hid, and one in the ceiling. Officer M arlon Evans testified he found one bullet hole in the chair and one in the ceiling. The defens

e offered no proof.

SUFFICIENCY OF THE EVIDENCE Defendant claims insufficient evidence of premeditation as required for a finding of guilt on the attemptedfirst degree murder charge. In support of this claim he assert

s that th ere was

no evid ence to s how his mind wa

s “so fa r fre e from excitement and passion as to be capable of preme ditation.” When suffi cien cy of the evidence is challenged, the standard of review is3

whether, after viewing the ev idence in the light most favorable t o the state, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 318, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); State v. Evans , 838 S.W.2 d 185, 190-91 (Tenn. 1992); Tenn. R. App. P. 13(e). On appeal, the state is entitled to the st rongest legitimate view of the evidence and all reasonable or legit imate inferences which may be drawn therefrom. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). This court will not reweigh or reevaluate the evi dence, nor substitute its evidenti ary inferences forthose reached by the jury. State v. Carey , 914 S.W.2d 93, 95 (Tenn. Crim. App. 1995). Fur thermore, in a criminal tr ial, great weig ht is given to the re sult reached by the jury. State v. Johnson , 910 S.W.2d 897, 89 9 (Tenn. Crim. App. 1995). Under Tennessee law applic able at the time of this offense, A person comm its cri minal attempt who, acting with the kind of culpability

otherwise requir

ed for the offense: . . .[a]cts with intent to complete a course of action or cause a result that would constitute the offense, under the ci rcumsta nces surrounding the conduc t as the person believesthem to be, and the conduct constitutes a substantial step toward the commission of the offense. Tenn. Code Ann. § 39-12-101(a)(3)

. The 1995 ame ndment to the Tennessee Code provides the applicable definition of first degree murder as, “[a] premedita ted and intentional killin g of another.” Tenn. Code Ann. § 39-13-202(a)(1). Premeditation is def ined as “an act done after

the exercise of reflection and judgment. . .[meaning] that the intent to kill
m ust have been formed prior to the ac t itself.” Tenn. Code Ann. § 39-13-202(d)

. It also requires that the accused be “sufficiently free from exci tement and passion as to be capable of premeditation.” Id. The existence of premeditation is a jury question and may be inferred from the manner and circumstances of the ev ent. State v. Bland , 958 S.W.2d 651, 660 (Tenn. 1997)(c itat ions omitted). Howev er, use of a deadly weapon upon an unarmed victim and defendant’s declarations of his intent to kill m ay provide evidence of premeditation. Id

. Viewing the evidence in the light most favorable to the state, the defendant has not overco me the pr esumpti on of gui lt create d by the jur y’s ve rdic t. The4

evidence was sufficient for a rational trier of fact to find that defendant displayed a premeditated intent t

o kill G reen and

attempte

d to do so . Defe ndant argue d with Green and then threatened to kill him when ordered to leave the premises. Thir ty minutes passed and defendant returned to Green’s home with a loaded pistol. He then tried to carryout his thr eats by firing the pistol in Green’s direction at close rang e, as evidenced by the fact that at least one bullet went int o the chair behind which Green was hidin g. This issue is without merit.

CONCLUSION Based upon the foregoing, the ju dgment of the trial court is AFFIRMED.

______________________________ JOE G. RILEY, JUDGE

CONCUR:

______________________________ DAVID G. HA

YES, JUDGE

______________________________ JOHN EVERETT WILLIA MS, JUDGE