### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs D ecember

4, 2001 STATE OF TENNESSEE v. MARIO JOHN SON Direct Appeal from the Criminal Court for Shelby County

No. 98-09944 J. C. McLin, Judge

No. W2001-00898-CCA-R3-CD - Filed January 16, 2002

The Appellant, Mario Johnson, was conv ic ted by a Shelby County jury for first-degree felony murder during t he perp etration of a robbery and was sentence d to life imprisonment with parole. On appeal, Johnson a

rgues tha t the evid ence pr esented at trial w as insuff

icient to support the verdict. After r eview, w e find no e

rror an d affirm

the judgme

nt of the Sh

elby Count

y Criminal C ourt. Tenn. R. App.P. 3; Judgm ent of the Criminal C ourt is Af

firmed.
D AVID G. H AYES , J., delive red the o pinion of t

he court , in which G ARY R. W ADE , P.J. and D AVID H. W ELLES , J., joined.
AC Wharton, Jr., Public Defender; Garland Ergude n, Assistant Public Defende r, Mem phis, Tennessee. Paul G. Summers, Attorney General and Reporter; Michael Moore , Sol icitor Gene ral; Kim R. Helper, Assistant Attorney General; William L. Gibbons, District Attorney General; and Patience Branham Johnson, Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION
Factual Ba

ckground

On the night of September 19, 199 7, Pedroza Mays, Franklin “Beanie” Carter, De metrius “Meady” Lay, and the Appellant drove to the Overlook Apartments in Frayser to “go holl er at some females.” The Appellant was driving the vehicle. After arriving at the apartments, they noticed someone s tanding ju st inside th e comple x. Mays de scribed

what took

place ne xt: [The Appellant] and [Carter] jumped out of the car. When they jumped out it seemed like they were chasing someone. And, when they jumped out, the car was still on, the doors we

re still opened. When

they jumped out, they chased them like into, like1 Sho rtly thereaf ter, Carter c omm itt ed suici de when a law enfo rcem ent o fficer k noc ked on h is doo r to quest ion him about a n unrel ated case. The shot gun used by Car ter to t ake his li fe was i denti fie d as t he same shotgun used i n the homicide of the vi ctim in t his cas e. 2 Th e A ppe llant w as ind icted fo r bo th fir st- degree pr emedita ted murder and fi rst -degre e fel ony murder. The jury ret urned ver dict s of gui lt y on each count. The tr ial court merged the verdi cts res ult ing i n the s ingl e convi cti on of first -degree felony m urder. -2- they chased

someone to the back. And I heard someone say, lay down. And, that’s when I he ard a gun shot. The Appellant and Carter soon returned to the vehicle. Mays notice d that the Appellant was carrying a sawed- off shotgun in his ha nd. Mays b ecame

frightened and began asking questions about what had just happe

ned. The Appellan t and Cart er told Mays that they were trying to rob the fleeing male. Although they denied shooting the victim, they stated that they had shot the gun into the air. Several days later, Ma

ys heard that a you

ng male ha

d been mur

dered a t that p articular locat ion. Once contact ed by law enforc ement of

ficers, Mays told p olice wha t had tra nspired t hat night. While the Appellant was detaine d in jail pe nding tria l, Michael Jackson, an inmate assigned to the same “pod,” overheard a con ve rsation between the Appellant and Mario Butler, another inmate. In that conversation, the Appellant told Butler that he ha d shot a young man during a robbery when the man began to run. In a subsequent conv ersation between Jackson and Butler, Butler told Jackson that the Appellant was referring to a murder w hich took place in Frayser. Nikeesha Cunningham testified that she was Carter’s girlfriend in September of 1997. 1 She recalled the Appella nt t elling Carter on the afternoon of September19 th that they were “ going to make a stang,” a term which is street slang for committing a robber y. Dr. O. C. Smith performed an autopsy on the seventeen-year-old victim. Dr. Smith determinedthat the cause of death was a shotgun wound to the back which was consistent with the v ictim standing or running at the time he was shot. He further determined that the gu n was fire d directly at the victim

and was fired from approximately seven yar ds away. Dr. Smith testified that death was not ins tantane ous but tha t the victim “lived for some time” after the wound was inflicted. The Appellant

did not testify at trial. Based upon the proof, the Appellant was convicted of first-degree felony murder. 2 I. Sufficiency of the Evidence The Appellan

t arguesthat the e

vidence present ed at tria l esta bl ishing his identity as the pe rpetrator

of the hom

icide is le gally insu fficien t to suppor

t the guilty

verdict . Specif

ically, th e Appellant asserts t hat “no w itness claimed to have seen [the] Appellant fire the gun.” Although the Appellant conced es that the re is evid ence to s upport hisconviction, he argues that the evidence does not rise to the required level of proof beyond a re asonable doubt.-3-

A jury conviction removes the presumption of innocenc e with

which a defendant is cloaked and replac es it w ith one of guilt , so that on appeal, a convicted defendant has the bur den of demonstrating that the evidence is insufficient. State v. Tu ggle , 639 S.W.2d 913, 914 (Tenn. 1982). In determin

ing the suf

ficienc y of the evidence , this cour t does n o t reweigh or reevaluate the evidence. State v. Cabbage , 571 S.W.2 d 832, 835 (Tenn. 197 8). Likewise, it is notthe duty of this court to revisit questionsof witnes s credibility on appeal, that functionbeing within the province of the trier of fact. See generally State v. Adkins , 786 S.W.2 d 642, 646 (Tenn. 199 0); State v. Burlison , 868 S.W.2d 713, 718-19 ( Tenn. Cr im. App. 1993). Instead, the defendant must establish that the evidence presented at trial was so deficient that no reasona ble trier of fa ct could have found the essential elements of the offense beyond a rea sonable doubt. Jackson v. Virgini a , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994), cert. denied , 513 U.S. 1086, 115 S. Ct. 743 (1995); Tenn. R. App. P. 13(e). T he State is en titled to the stronge st legitimate view of the evidence and all reasonable inferences which may be drawn therefrom. State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992), cert. denied , 507 U.S. 954, 113 S. Ct. 1368 (1993). Additionally, a crime may be established by circumstantial evidence alone. State v. Tharpe , 726 S.W.2d 896, 899-900 (Tenn. 1987). However, before an accused may be convicted of a criminal offense based only upon circumstantial evidence, the facts and circumst ances “ must

be so strong and cogent as to exclude every other reasonable hypothesis save the guilt of the defendant.” State v. Crawford , 470 S.W.2d 610, 612 ( Tenn.197 1). In oth er word s, a conviction may not rest so lely upon conjecture, guess, speculation, or a mere possibility. Tharpe, 726 S.W.2d at 900. Instead, a “web of guilt must be woven around the defendant from which he cannot escape

and from which facts and circumstances [ the fac t finder] could draw no other reasonable inference save the guilt of the defendant beyond a reasonable doubt.” State v. Sexton , 917 S.W.2d 263, 265 (Tenn. Crim. App. 1995)(emphasis added). The Appellant was convicted of felony murder during the per petration of a

robbery. Felony murder is defined as “the killing of another committed

in the perp etration

of or atte mpt to perp etrate any first degree murder, arson, rape, r obbery, burglary, theft, kidnapping . . . .” Tenn. Code Ann. § 39-13-20 2(a)(2 ). Robber y is th e “intentio nal or knowing theft of property from the person of another by violence or putting the person in fear.” Te nn. Code Ann. § 39-13-401(a).
In the present case, Mays testified that he was present

on the night in question. Mays stated that the Appellant jumped out o f the vehicle, along with Carter, and chased a young ma le. Mays further testified that he hea

rd someone y ell “lay down” and then heard a gunshot. Mays then watched as the Appellant returned to the car with a sawed- off shotgun in his hand. The Appellant admitted that his intention was to rob the victim and that he had fired the gun. Carter’s girlfriend testified that she had overheard the Appellant planning to commit a robbery with Carter earlier

that sameday. Morever, inmate Jackson testified that he had previously overhe ard the Appellant admit that he had shot and killed a young male during a robbery when the young man f led. The testimony of Dr. Smith e stablishe d that the victim die d as a

result of a gunshot wound to the back through the use of a shotgun. The medical examiner also testified that the marks on the body we re consistent with someone who was standing or running at the time of the wound.-4-

We find that the circumstantial evidence established at trial was such that a rational trier of fact could hav e drawn

“no other

reasona ble infe rence s ave the g

uilt of the [Appell ant] beyond a reasona ble doubt.” Accordingly, we conclude that the evidence prese nted at trial was sufficient to support the jury’s verdict

. CONCLUSION
Af terre viewing the evidence, in the light most favorable to the State, we find that the evidence pr esented at trial is sufficient to support the Appellant’s conviction for felony murder during the perpetration of a robbery. The judgment of the tria l court is affirmed.

___________________________________ DAVID G. HAYES, JUDGE