# FILED

March 12, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON APRIL 1998 SESSION

STATE OF TENNESSEE ) ) NO. 02C01-9709-CR-00368 Appellee, ) ) SHELBY COU NTY v. ) ) Hon. Joseph B. Da iley, Judge GARY CARR ) ) (Attempted Murder) Appellant. ) (Attemp ted Robb ery) )

For the Appellant : For the Appellee : Walker Gwinn John Knox Walkup Assistant Public Defender Attorney General & Repor ter 201 Poplar Avenue Memphis, TN. 38103 Douglas D. Himes (on appeal) Assistant Attorney Gener al 425 Fifth Avenue North Ronald S. Johnson Nashville, TN. 37243 Assistant Public Defender 201 Poplar Avenue, 2nd Floor William L. Gibbons Memphis, TN. 38103 District Attorney General (at trial) David C. Henry Assistan t District Attorney 201 Poplar Avenue, 3rd Floo r Memphis, TN. 38103

OPINION:________________________ AFFIRMED IN PART; REVERSED IN PART WILLIAM M. BARKER, SPECIAL JUDGE1 The appellant was origi nally

indict ed on three count

s: (1) at

tempted first

degree premeditat

ed mur der; (2) atte mpte d felony m urder; an d (3) attem pted es pecially aggr avated ro bbery. Th e State dism issed the charge of attem pted felon y murd er befor e the cas e was s ubm itted to the jury. 2 OPINION The appellant, Gary Carr, appeals as of right from the conv ictions he received in the Criminal Court of Shel by County. After a jur y trial, the appellant was convicted of atte mpted f irst degre e murder and atte mpted es pecially a ggravated r obbery. 1 The trial court sentenced him as a Range I standard offender to tw enty four (24) years for the attempted murder and to twenty two (22) years for the attempted robbery. The sentences were ordered to run concurrently to each other for a total eff ective sentence of twenty four (24) years. On appeal, the appellant contends th at the dual convictions w ere based upon the same criminal episode in violation of the principles of dou ble jeopardy. He also challenges the sufficiency of the convicting evi dence, specifically cl aiming that the evidence of identity w

as insufficient to prove that h e was the shooter. After a careful review of the record, we conclude that the appellant is entitled to partial relief on evidentiary grounds different from tho se argued on appeal. The evidence was insufficient as a matter of law to sustai n the conviction of attempted especially aggr

avated robbery. We, therefore, rever se that conviction and affirm the remaining conviction

of attempted first degree murder and the sentence of twenty four (24) years. BACKGROUND On November 16, 1995, a man, later identified as the appellant, enter ed a Parkway Food Mart in Shelby County. The appellant approached the store’s cash register where the victim, Khaled Ateyy at, was working . After the two men exchanged greetings, the appellant brandished a pistol and began cursing at the vic tim. The victim turned away

and was shot in the back by the appellant. The victim fell to the2 The victi m testifi ed that t he five shot s were fire d in the di rection of his head. He st

ated that

he mov ed his he ad from side to side to avoid be ing struck by the bullets. 3 floor and pushed the store securi ty alarm. The appellant fired five additional shots at the victim, striking him with two bullets while he was on the floor. 2 The appellant left the store when his pistol ran out of am munition. The victim thereafter climbed to his feet and man aged to retrieve a gun from behind the store counter. As the victi m approached the front door, he observ ed the appellant reenter the store. The victim immedi ately dropped to his knees and fired two shots in the direction of the appellant. The appel lant then fled, without inju ry, from the store. Officer Bridgett White of the Memphis Police Department testified at trial th at she responded to the emergency call and found the victim l ying on the floor. Both the victim and a fellow employee, Roger Linwood, told Officer W hite that the culprit was a regular customer who had been in the store a few hours before the shoo ting. Mr. Linwood testified that he w as working in the bac

k of the store when the shootin g occurred. He stated that he observed the appellant enter the f ront door and approach the cash register. When shots were fired, Mr. Linwood got down on the floor and looked towards the reg ister. He testified that he witnessed the incident, but remained in the back of the store until the victim yelled for a ssistance. Three days after the shooting,both the victim and Mr. Linwood were show n a photographic lineup consisting of six pictures. Outside the presence of each other, they viewed the photog raphs and each positively identified the appellant as the shooter. At trial, the tw o men again identified the appellant as the shooter. Based upon the above evidence, the jury convicted appellant of attem pted first degree murder and attempted especi ally aggravat ed robbery. The appellant challenges those convictions on appeal. DISCUSSION The appellant first challenges the sufficien cy of the convicting evidence. He contends that the evidence of identity was insufficient to prove beyond a reasonable4

doubt that he was the shooter. Although we find that the i dentification evidence w as sufficient in this case, w e conclude that there was n o evidence that the appellant intended to commit robbery. Whe n an accu sed chall enges the suffici ency of th e convicti ng evidenc e, we must review the ev

idence in the light most fav orable to the State to determine w hether a rational trier of fact could have found the essential elements o f the offenses beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Duncan , 698 S.W.2d 63, 67 (Tenn. 1985). We do not reweigh the evidenc

e and are required to afford the St ate the strongest legitimate view of the proof contained in the record as well as all reasonab le and legitimate inferences which may be drawn

therefrom. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Questions concerning the credibility of the wi tnesses, the weight and value to be given the evidence, as well as all factual issues raised by the evidence, are resolved by the tri er of fact, not this court. Cabbage , 571 S.W.2d at 835. We will not disturb a verdict of g uilt for lack of sufficient evi dence unless the facts contained i n the record and any inferences which may be drawn from the facts are insuff icient, as a matter of law, for a rational trier of fact to find the defendant guilty beyond a reasonable doubt. State v. Tuggle , 639 S.W.2d 913, 91 4 (Tenn. 1982). In this case, the record shows that two eyewitnesses, the victim and Mr. Linwood, recogniz

ed the shooter as a customer w ho shopped at the convenient stor e. Based upon their observati ons, they positively identified the appellant as the s hooter both before trial and during trial. We conclude that the identification w as sufficient for a rationale trier of fact to find that the appellant was the shoo ter. Jackson , 443 U.S. at 319, 99 S.Ct. at 2789; Duncan , 698 S.W.2d at 67. Upon further review o

f the record, however, we must address whether the convicting evide nce was sufficient as a matter of law to prove that the appe llant pe rp et ra te d t he sh ooti ngwi th in te nt

to co mm it fi rs t d eg re e m ur

de r a nd ro bb er

y. We3 The State contends that the appel lant reent ered the stor

e to complete t he act of robber y. That argument is specul ative at best. There was si mply no showing of what the appel lant i ntended to do at that point in the crimina l episode

. 5 conclude that the evidence supports the conviction of attem pted first degree murder, but not the conviction of attempted especially aggr avated robbery. First degree premeditated murder is defined as “[a] premedi tated and intentional killing of another.” Tenn. Code Ann. § 39-13-20 2(a)(1) (Supp. 1995). Attempted first degree murder i s committed when the accused ac ts with premeditation and intent to cause the killi ng of the victim and believ es his conduct will cause the killing without further conduct; or with premeditation, the accused acts with intent to cause death under the circumstanc es surrounding the conduct as he believes them to be, and the conduct constitutes a substantial step toward the commission of the killing. Tenn. Code Ann. § 39-12-101(a)(2), (3) ( Supp. 1995). The evidence in this case s hows that the appellant w as a regular customer at the convenient store and had been in the store earlier before the shooting. When the appellant entered the store on the evening of November 16, 1 995, he approached the victim and without pr

ovocation began shooting his pistol at the vic

tim’s head. The victim was struc

k by three bullets at close range, but somehow s urvived the brutal attack. The appellant continued to shoot at th e victim until his pistol was empty. He then exited the store, but r eturned a few moments later. The r ecord is unclear as to why he reentered the st ore. 3 Nevertheless, the ev idence shows that he fled after the victim attempted to shoot him with a gun found under the store cou nter. The above evidence strong ly supports the jury ’s finding that the appellant shot the victim with specific intent to kill, and that his actions constituted a substantial step towards the commission of a k illing. Moreove r, based upon reasonable inferences drawn from the entire cri minal episode, there was e vidence for the jury t

o find that appellant’s conduct was premeditated.4 Robbery is def ined in Tenn. Code Ann. § 39-13-401 as “the int entional or knowing thef

t of property fro m the person of anoth er by violenc e or putting the pers on in fear.” 6 The State relied upon the same cri minal conduct to prove that the appellant attempted to commit especially aggravated robbery. Especially aggravated robbery is robbery 4 accomplished with a deadly weapon where the victim suffers serious bodily injury. Tenn. Code Ann. § 39-13-403(a)(1), (2) (Supp. 1995). Attempte d especially aggravated robbery is committed when the accused either intentionally or knowingly acts with intent to caus e the robbery and believ es that his conduct wil l cause the robbery without further conduct; or intentionally or knowingly acts with intent to commit the robbery under the cir cumstances surrounding the conduct as he believes them t o be, and the conduct constitutes a substantial step toward the commission of robbery. Tenn. Code Ann. § 39-12-101(a)(2) , (3) (Supp. 1995). The appellan t’s act of shoo ting the victim mult iple times at clo se range established the especially aggravated nature of the crime. Moreover, the ac ts of entering the convenient s tore and shooting the vi ctim may have constitute d a substantial step towards the completion of a robbery. Nevertheless, there w as no evidence that the appellant i ntended to rob the victim or otherwise remove any property from the store. U nder Tenn. Code Ann. § 39-12-101(a) , the prosecution had the burden of proving beyond a reasonable doubt that the appellant acted with specific intent to commit robbery. As a matter of law, that burden was not satisfied in th is

case. Having determined that the conviction of attempted especi ally aggravat ed robbery should be rev

ersed, we need not address the alleged double jeopardy violation. CONCLUSION Based upon the foregoing, the conv iction of attempted especially aggravated robbery is rever

sed. The remaining convi ction of attempted first degree mur der and the sentence of twenty four (2 4) years are affirmed.7 __________________________________ WILLIAM M. BARKER, SPECIAL JUDGE

CONCUR:

______________________________ DAVID G. HAYES, JUDG E

______________________________ JOE G. RILEY, JUDGE