### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON January 9, 2001 S ession STATE OF TENNESSEE v. RICKEY WILL IAMS Direct Appeal from the Criminal Court for Shelby County

No. 98-03611 Chris Craft, Judge

No. W1999-01701-CCA-R3-CD - Filed February 15, 2001

Defendant

challenges his conviction for premeditated first degree murder for which he received a sentence of life imprisonment. He presents the following issues for our review: (1) whether the evidence was sufficient to support the verdict; (2) whether the trial court erred in admitting evidence of a prior bad act; and (3) whether the trial court erred

in admitting hearsay. We affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J OE G. R ILEY , J., delivered the opinion of the court, in which D AVID G. H AYES and J OHN E VERETT W ILLI AMS , JJ., joined. Edwin C. Lenow , Memphis, Tenness ee, for the appe

llant, Rickey

Williams. Paul G. Summers, Attorney General and Reporter; Mark E.Davidson, Assistant Attorney Ge

neral; William L. Gibbons, District Attorney General; James A. Wax, Jr. and David N. Pritchard, Assistant District Attorneys General, for the appellee, State of Tennessee

.

OPINION Defendant

appeals his first degree murder conviction for which he received a life sentence. He atta cks the sufficiency of the evidence and the admission into evidence of a pr ior bad act and hearsay. We find no reversible error and affir m the judgment of the trial court.

FACTS
It is undisputed that th

e victim, Algeri

ne Bougard, w

as murdered in

her apar tment on or shortly after Decembe

r 1, 1997. It is u

nclear whether

th e d efendant and the

victim were actu

ally-2-

married, but it is clear that they had a relationship at one time. It is further clear that they were not living together during the months preceding the homicide. Testimony

at trial indicated the relationship between the defendant and the victim during the recent months preceding the homicide was far from harmonious and was, in fact, very violent. Frank Chambers testified that he was employed at the victim’s apartment complex and witnes sed an incident between the defendant and the victim in the summer of 1997. According to Chambers, the defendant forced his way into the

apartment

complex during the

early morn

ing hours after

being told he could not enter. When the victim and the defendant came back to the lobby of the complex, the victim informed the def

endant that he ha

d to leave the comp

lex. The defendan

t then hit the victim with an object in a brown sack, knocking her unconscious. Officer Frank Winston investigated an incident at the victim’s apartment on the night of June 30, 1997. T he victim had been cut and had numerous bruises on her body. The victim was e xtrem ely “numb, upset, [and] scared” and advised the officer that the defendant had beaten and raped her. The victim stated

the defendant gained

entrance to her

apartment throug

h the sliding gla

ss door, placed a knife to her throat, and forced her to have sex. A criminal charge was ini tiated against the defendant and was still pending at the time of the victim’s murder. Nekeisha Smith testified that she was a security guard at the complex and that on November 5, 1997, the victim came downstairs from her apartment. The victim stated she wanted to make a phone call to her husband to return her keys. According to Smith, the victim was “shaking, crying and bleeding from th

e head.” The vic

tim told Smith that her h

usband had beate

n her with “some wooden crutches.” DebrahThweatt testified that she was a nur se who tende d to the vic tim durin g a November hospital stay for treatment of a chronic intestinal disorder. According to Thweatt, near the end of November

1997, she heard the victim screaming in her hospital ro om. Upon ente ring the room, Thweatt observed the defendant beating the helpless

victim and demanding her purse. Thweatt was able to get between the defendant and the victim. However, the defendant was succe ssful in securing the purse, which also contained the victim’s keys. Just prior to fleeing, the def endant stated his intention to kill both the victim and Thweatt. As a result of the June 30, 1997, incident, the victim received assistance from the Memphis Sexual Assault Resource Cent er. The victim remained in contact with the coordinator, Susan Parkinson, from June until the time of her death

in December. The charges against the defendant were pending during this time. On December 1, 1997, the date of the victim’s release from th e hospital, she left a me ssage for Par kinson in dicating t hat “she was going home and that she was afraid and would [Parkinson] please help her.” The victim’s daughter picked up the victim from the hospital on December 1, 1997, and took the victim tothe victim’s apartment. The victim had an extra set of apartment keys which she used to gain entrance. The daughter went to the defendant’s parent’s residence to

pick up her mother’s-3-

purse that had been tak

en by the de

fendant at the hos pit al; how ever , th e vi cti m’s apar tme nt k eys we re not in the purse. The victim’s battered, decomposed body was discovered in her apa rtment several days later. The investigation revealed that a key to the vic tim’s front door had been broken off in the lock. Another set of

keys was found on the couch. The sliding glass door on the balcony had been forced open, anda footprint was ob servable on the g lass. Fingerprints were lifted from the sliding glass door and from a beer can found in the kitchene tte on top of the t rash can. Both sets of fingerprints matched the prints of the defendant. The pathologist testified that the victim had been stabbed and strangled; the victim’s body had bruises all over it

; and the victim had

male ejaculate

in her mouth and va

gina. The patho

logist also testified that the bone in her throat had been broken

and healed four

times before this i

ncident. The cause of death was the stab wound with strangulation being a contributing factor.

SUFFICIENCY OF THE EVIDENCE Defendant

contends the evidence is insufficient to establish his identity as the perpetrator of this offense. We respectfully disagree. A. Standard of Review A defendant challenging the sufficiency of the proof

has the burden of illustrating why the ev idence is insufficient. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). W e review th e evidence in

the light most favorable to the prosecution to determine whether “any rational trier of fact could have found the es sential elements o f the crime bey

ond a reasonable

doubt.” Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979). We do not re weigh or reevaluate the evidence, but afford the state the strongest legi

timate view of the proof contained in the record as well as all reasonable and legitimate inferenc es whi ch may be dr

awn therefrom. State v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978). Evaluation of witness es’ credibi lity, the weigh t and value t o be gi ve n to the evidence, and resolution of factual issues raised by the evidence is left to the trier of fac t. Id. A guil ty verdict rendered by the jury and appr oved by the tri al judge accredits the testimony of the state’s witn

esses, and a presumption of guilt replaces the presumption of innocence. State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). Although the evidenc e of the defendant’s guilt is circumstantial in nature, circumstantial evidence alone may

be sufficient to support a conviction. Statev. Tharpe , 726 S.W.2d 896, 899-900 (Tenn. 1987); State v. Gregory , 862 S.W.2d 574, 577 (Tenn. Crim. App. 1993). However, in order for this to occur, the circumstantial evidence must be not only cons

istent with the gui

lt of the accused but it must also be inconsistent with innocence and must exclude every other reasonable theory or-4-

hypothesis except that

of guilt. Tharpe , 726 S.W.2d at 900. I n addition, “it

must establish such a certainty of guilt of the accused as to convince the mind beyond a rea sonable doubt that [the defendant] is the one who committed the crime.” Id. (quoting Pruitt v. State , 460 S.W.2d 385, 390 (Tenn. Crim. App. 1970)). While following the above guidelines , this Cour t must remember that the jury decides the weight to be given to circum stantial evidence and that “[t]he inferences to be drawn from such evidence, and the extent to which the circumstances are consistent with guilt and inco

nsistent with innocence are questions primarily for the jury.” Marable v. State , 313 S.W. 2d 451, 457 (Tenn. 1958); see also Gregory , 862 S .W.2d at 577; S tate v. Coury , 697 S.W.2d 373, 377 (T enn. Crim. App. 1985); Pruitt , 460 S.W.2d at 391. B. Analysis Viewing the evidence in a light most favorable to the state, we conclude the evidence is more than sufficient to support the verdict. During the five months preceding the victim’s murder, the defendant displayed an unrelenting pattern of violence toward the victim. The jury could conclude that on June 30, 1997, the defendant unlawfully entered the victim’s residence t hrough the sliding glass door from the balcony

and beat and raped the victim. The jury could reasonably conclude that on November 5, 1997,

the defendant be

at the victim with crutches. Th e jury could

reasonably conclude that at the end of November 1997, the defendant beat the bed-ridden victim in her hospital roomand took

her purse, which contained her keys. Furthermore , the jury could conclude that the defendant upon leaving the hospital room threatened to

kill the victim. In addition, the defendant’s fingerprints

were found on the sliding glass doo r and on a can of be er on top of a trash can in the kitchenette. The jury could reasonably c onclude that the key taken by the defendant was

broken off in the apartment doo r as the vict im’s other set of ke ys was found

on the couch. Ba

sed upon this evidence, the jury could reasonably conc lude that the defendant intentionally, after ex ercis ing reflectionand j ud gment, killed the victim by stabbing and strangling her. The de fendant was properly convicted of premeditated first degree murder.

PRIOR BAD ACT The defendant contends the trial court erred in allowingFrank Chambers to testify about the defendant striking the victim in the summer of 1997. The state contends thi s evidence was pr

operly admitted as a prior bad act under Tenn. R. Evid. 404(b). We agree with the state.
Tenn. R. Evid. 404(b) provides that evidence of other crimes or a

cts, although not

admissible to prove the character

of a person in order to show action in conformity with the character tra it, may be admissible for othe

r purposes. Prior t

o allowing such pr

oof, the trial cou

rt should con duc t a j uryouthearing, determine whether there is a material issue other than conduct conforming with the character trait, and must exclude the evidence if its probative value is outweighed by the dang er of unfair prejudic

e. Tenn. R. Evid. 40

4(b); State v. West

844 S.W.2d 144, 149 (Tenn. 1992).-5-

Gen eral ly, this rule is one of exclusion, but there areexceptions. State v. Jones , 15 S.W.3d 880, 894 (Tenn. Crim. App. 1999). The generally recognized exceptions to the rule allow evidence off ered to p rov e mo tiv e, i den tit y, intent, absence of mistake, opportunity, or a common scheme or plan. Bunch v. State, 605 S.W.2d 227, 229 (Tenn. 1980). Our standard of review of the trial court’s determinations under Tenn. R. Evid. 404(b) is whether the trial court’s ru ling wa s an abuse of discretion. State v. Dubose, 953 S.W.2d 649, 652 (Tenn. 1997). The TennesseeSupreme Court has determined that evidence of a defendant’s prior acts of violence and threats against the victim is admissible under Tenn. R. Evid. 404(b) in a murder case because these acts are relevant to showing the defendant’s hostility toward the victim, the settled purpose to harm the victim, and the intent and motive for the killing. State v. Smith , 868 S.W.2d 561, 574 (Tenn. 1993).
In this case the trial court conducted a jury-out hearing, determined the evidence wa s relevant under Smith

to establish the de

fendant’s hostilit

y toward the victim andintent , determined that its probative value was not outweighed by the danger of unfair prejudic

e, and instructed

the jury as t

o how they should v

iew this evidence. Under these circumstances, we conclude the trial court did not abuse its discretion in admitting this evidence. This issue is without merit.

HEARSAY
In his final issue t he defendant contends his rights to confrontation and due process were violated when “witnesses Frank Winston, Nekeisha Smith, Susan Parkinson, Debrah Thweatt and Heather Cook, testified abo

ut hearsay statements and [the

] indictment [charg

ing the defenda

nt with assault on June 17, 1997].” The state contends this issue is waived. In the argu

ment portion of his b

rief, defendan

t simply alleg

es there was no way

the Appellant cou

ld defend agai

nst all the hearsay statements th e State introduced. Further, the Appellant was denied the right to confront and cross-examine the witnesses who had accusatory

allegations, and thereby his rights under the Confrontation and Due Process Claus es of the United Sta

tes a nd T ennessee Constitutions were violated. The defe nda nt d oes not ide nti fy the testimon y of any particular witness and doe s not in any way identify what portion of his or her testimony was objectionable. This issue is waived since the defendant has fail e d to make appropriate references to the record. Tenn. Crim. App. Rule 10(b); Statev. Schaller , 975 S.W.2d 313, 318 (T enn. Crim. App. 1997); State v. Turner , 919 S.W.2d 346, 358 (Tenn. Crim. Ap

p. 1995); see also

Tenn. R. App. P. 27(a)(7) and (g).-6- CONCLUSION
We conclu de the evidence was sufficient to support the guilty verdict, and the trial c ourt committed no evidentiary errors. Accordingly , we affirm the judgment of the trial court.

___________________________________ JOE G. RILEY, JUDGE