IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE STATE OF TENNESSEE v. ORLANDO MALONE Direct Appeal from the Criminal Court for Bradley County

No. M-98-278 Carroll L. Ross , Judge

No. E1999-01347-C CA-R3-CD - Dec ided May 26, 2000 Defendant Orlando Malone was convicted by a jury of one count of first degree felony murder , two counts of attempted especially a ggravate d robbery, and one count of aggravated robbery. Fol lowing a sentencing hearing, the trial court imposed a total sentence of life plus twenty ye ars . D efendant

challenges his convictions, raising the following issue: whether the evidence wa s sufficient to support his convictions. The judgment of the trial court is affirmed. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
W OODALL , J. delivered the opinion of the court, in which W ADE , P.J. and T IPTON , J. joined. Charles M. Corn, District Public Defender, Richard Hughes, Assistant Public Defender, and Wayne Carter, Assistant Public

Defender, Cleveland, Tenne ssee, for the app

ellant, Orlando Ma

lone, at trial; Steve McEwen, Mou

ntain City, Tenness

ee, for the appe

llant, Orlando Mal

one, on appeal. Paul G. Summers, Attorney General and Reporter, Clinton J . Morgan, Assistan t Attorney Gener

al, Jerry N. Estes, District A ttorney Genera

l, Carl F. Petty, Assis

tant District A

ttorne y General, and Stephen D. Crump, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION I. FACTS Charles Massingill testified that he went to the upstairs apartment of Marcus Williams at 580 Dooley Street in Cleveland, Tennessee, at approximately 11:30 p.m. on May 22, 1998. Massingill subsequently

joined Williams, Er

ic Binion, and Kenn

eth Blair in sitting on the porch and drinking beer. At this point, D efendant and two other African-American males, Anthony Reid and Oneal Sanford, came upstairs an d Defendant aske

d Williams if he had change for a fifty-dollar bill. When Williams respond ed that he did not, Def endant and his com

panions went back

downstairs. Willia

ms, Blair, and Binion then went inside the apartment while Massingill remained outside.-2-

Massingill

testified that shor

tly thereafter,

Defendant and h

is companions came

up the stairs. One of Def

endant’s companions then forced Williams, Blair, and Binion to come out of the apartment and lie down while M

assingill remained sitting in a chair. Sanford then pointed a gun at Massingill’s eye and asked whether he had any money and Massingill took 79¢ out of his pocket. Reid then sh ot Blair and Sanford shot Massingill in the eye. Although Massingill did not se e Defendant holding a gun, he believed that Defendant was participating with Reid and Sanford. Eric Binion testified that h e was drinking beer with Williams, Massingill, and Blair at Williams’ apartment on the n ight of May 21/22, 19

98. While

they were drinking, D

efendant came up the stairs and asked whether they had change for a fifty dollar bill. When he was told n o , Defendant left.

Binion then went into

the apartment. Binion testified that shortly thereafter, Defendant entered the apartment, pointed a gun at him, and forced him to go out of the apartment. Defendant then searched Binion’s pockets and took his keys and approximately $30.00. During this time, the two other men were h olding Massingill and Blair at gunpoi

nt. Binion testified that at th is point, Defenda

nt searched Will

iams’ pockets and

st ated that Williams did not have anything. Blair then “mumbled something” and the shooting began. When he heard the shots, Binion fled through the apartment and jumped out the window, and he was shot in the hand while doing so. Binion subsequently observed the three assailants leavingin a white car with a temporary tag.
Marcus Williams testified that he was drinking beer with Massingill, Blair, and Binion at his apartment on the night of May 21/22, 1998. While they we re drinking, Def

endant came up th

e stairs, askedfor change for

a fifty dollar bill, and the

n went back downst

airs. Shortly thereafter, Defendant returned with Reid and Sanford and Defendant chased Binion into the apartment while Defendant was holding a gun. Williams testified that Defendant subsequently brought Binion out of the apartment and then searched Binion’s pockets. Defendant then pointed a gun at Williams, sear ched his pockets,

and told the others that he did n

ot have anything. D

efendant also se

arched Blair an

d Massingill. At this point, Blair “mumbled something” and the assailants shot Williams in the back and leg. Sergeant Randy Gates testified that on the night of May21/22, 1998, he responded to a report of a multiple s hooting at a two-story apartment building at 580 Dooley Street. When he arrived, Gates was informed that the three shooters were African-A merican males who left the scene in a white four-door vehicle with a temporary tag. Gatessubsequently obse rved that there w

ere six .22 caliber shell casings in the parking lot that appeared to have been fired from higher than ground level. Deputy

Jimmy Woody testifie

d that on May 22, 1998 , he participate d in the chase of a

small white vehicle that matched

the description of the vehicle involved in the shooting on Dooley Street. Th e police officers eventually forced the white vehicle to stop and when Woody approached the-3-

vehicle , th e driver and the backseat passenger ran away. Defendant rema ined in the vehicle, however, and he was apprehended by Woody. Detective Steven Bennett testified that he responded to the call from the Dooley Str eet apartment on May 22, 1998. Whe

n he arrived, Ben

nett discove red five .22 cali ber shell casings

. Police officers subsequently discovered a .22 caliber semi-automatic, a .22 caliber revolver, and a .45 caliber semi-au

tomatic in the same

general area where

Defendant was apprehended. Defendant and the State stipulated that the shell casings found at the scene of the shooting were fired by one or more of these g

uns. Bennett testified that af

ter they were a

pprehended and

se arched, 94¢ was discovered on Defendant

and $40.67 was discovered on Sanford. When Bennett searched the vehicle, he found two boxes of .22 caliber rounds. Bennett also observed that thirty rounds were missing from one of the boxes. Dr. Charles Harlan testified that he performed an autopsy on the body of Kenneth Blair on May 22, 1998. Dr. Harlan opined that Blair’s death was caused by a .22 caliber bullet that

entered the right side of his head and traveled through his brain. II. ANALYSIS Defendant

contends that the evidence was insufficient to support any of his four convic

tions. We disagree. Where the sufficiency of the evidence is contested on appeal, the relevant question for the review ing court i s whether any rational trier of fact could have found the accused guilty of every element of the offense beyond a reasonable doubt. Jackson v. Virgini a , 443 U.S. 307, 319, 99

S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979)

. In determining the sufficiency of the evidence, this Court does notreweigh or reevaluate the evidence. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Nor may this Court substitute its inferences for those drawn by the trier of fact from circumstantial evidence. Liakas v. State , 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956). To the contrary, this Court is required to afford the State the strongest legitimate viewof the evidence contained in the record as well as all reasonable and legitimate inferences which may be drawn fr om the evidence. Statev. Tuttle , 914 S.W.2d 926, 932 (Tenn. Crim. App.1995). Since a verdict of guilt removes the presumption of a defendant’s innocence and replaces it with a presumption of guilt, the defendant has the burden of pro

of on the sufficie

ncy of the eviden

ce at the appella

te level. Statev. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982).

A.-4-

We conclude that there is absolutely no question that when the evidence is viewed in the light mo st favor able to the State, as it must be, the evidence was sufficient to support Defendant’s conviction for the aggravated robbery of Binion. Under Tennessee law, robbery is the “intent i onal or knowing theft of property from the person of another by violence or putting the person in fear.” Tenn. Code Ann. § 39-13-401(a) (1997). In addition robbery becomes aggravated when, as in this case, the robbery is accomplished with a deadly weapon. Tenn. Code Ann. § 39-13-402(a)(1) (1997). Binion testified that on the night in question, Defendant entered the apartment,pointed a gun at him, forced him to go out of the apartment, searched his pockets, and took Binion’s key s a nd approximately

$30 .0 0. This evidence is unquestionably sufficient to support the conviction for aggravated robbery. B.
We also conclude that

when the evidence is viewed in the light most favorable to the State, the evid ence wa s sufficient to supp ort Defendant’ s convictions for t he attempted espe

cially aggravated rob

bery of Williams a

nd the attempted e

specially aggra

vated robbery of

Massingill. As previously stated, robbery is the “intentional or knowing theft of property from the person of another by violence or

putting the person i

n fear.” Tenn. Code Ann. § 39-13-401(a) (1997). In addition, robbery become s especially aggr

avated when it is

accomplishedwith a deadly weapon and the victim suffers serious bodily injury. Tenn. C ode A nn. § 39-13-403(a) (1997). Further, “[a] person commits criminal attempt who, acting with the kind of culpability otherwise required for the offense . . . [a]cts with intent to ca use a result thatis an element of the offense, and believes the conduct will cause the result without further conduct on the p er son’s part.” Tenn. Code Ann. § 39-12-101(a)(2) (1997). Williams testified that on the night in question, Defendant pointed a gun at his head, searched his pockets, and reported that there was no money in the pocke

ts. Williams also testif

ied that shortly thereafter, he was shot in the back and in the leg. Williams testified that af

ter Defendant p

ointe d a gun at his head and searched him, Defendant searched Massingill. Massingill testified that he was subsequently shot in the eye and he still has blurriness in his ey

e as a result.
We note that it i s irrelevant t hat there was no proof that Defendant was the one who shot Williams and Massingill. Und er Tennessee la

w, “[a] person i

s criminally respo

nsible for an off

ense committed by the conduct of another if: . . . [a]cting with int ent to promote or assist the commission of the offense, or to benefit in the proceeds or results of the offense, the person solicits, directs,

aids, or attempts to aid another person to commit the offense.” Tenn. Code Ann. § 39-11-402(2) (1997). Williams’ testimony indicates that Defendant was clearly acting with intent to promote

or assist the co mmissio n of the offenses and he clearly aided in their commission. Further, the proof that-5-

Defendant

fled the scene of the offenses in the same vehicle as Reid and Sanford also indicates that he had been acti

ng with intent to promote or

assist their crimin

al misconduct. Thu

s, Defendant is criminally

responsible for t

he serious bodily

injuries to Williams and Massingill, even if he was not the one who actually shot them. In short, the evidence was suffi cie nt to support Defendant’s convictions for the attempted especially aggravated robbery of Williams and the attempted espec ially aggravated rob

bery of Massingill. C. We conclude tha

t when the evidenc

e is viewed in the li

ght most favorable

to the State, the evidence was sufficient to support Defendant’s conviction for the first degree felony murder of Blair. Under Tennessee law, “[f]irst degree murder is: . . . [a] killing of another committed in the perpetration of or attempt to perpetrate any . . . robbery.” Ten n. Code Ann. § 39-13-202(a)(2) (1997). Massingill

testified that during the events in question, Reid shot Blair. Dr. Harlan testified that Blair’s death was caused by a .22 caliber bullet that entered the right side o f his hea d and traveled through his brain. T

here is no question

that Blair was kill

ed dur ing the perpetration or att empt to perpetrate a robbery. As previously mentioned, it is irrelevant that Reid, r ather tha n Defendant,

fired the shot tha

t killed Blair beca

use Defendant is

criminally responsible for the actions of Reid and Sanford under Tennessee Code Annotated section 39-11-402(2). D. Defendant’s argument essenti ally amounts to a co

ntention that the pr

oof was insuffic

ien t because the State’s case

“was fraught with many inconsistencies.” Specifically, Defendant relies on inconsistencies in the testimony of Williams, Massingill, and Binion about whether Defendant had a gun, whether Def

endant robbed or

searched anyon

e, and whether D

efendant fired

any shots. However, “[t]he credibi

lity of the wit

nesses, t he weight to be given their testimony, and the reconciliation of conflicts in the evidence are matters entrusted exclusively to the jury as the triers of fact.” State v. Cribbs , 967 S.W.2d 773, 793 (Tenn. 1998). We will not second

guess the jury in the resolution of any conflicts in the proof.
In this case, Defendant essentially asks us to reconsider the evidence and substitute a verdict of not guilty in place of the verdict found by th e jury. That is

not our function. Instead, we conclude that a rational jury could have found beyond a reasonable doubt that Defendant committed the four offenses for which he was charged. See Tenn. R. App. P. 13(e). Defendant is not entitled to relief on this issue. Accordingly, the judgment of the trial court is AFFIRMED.