IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON OCTOBER 1999 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. NO.W1999-01935-CCA-R3-CD Appellee, ) ) HARDEMAN COUNTY VS. ) ) HON. JON KERRY BLACKWOOD, OSCAR POLK, J R., ) JUDGE ) Appellant. ) (First-Degree Murder - 2 Counts; ) Aggravated Assault - 2 Counts)

FOR THE APPE LLANT: FOR THE APPELLEE:
GARY F . ANT RIC AN PAUL G. SUMMERS District Public Defender Attorney General & Repor ter RICKEY GRIGGS CLI NTO N J. MOR GAN -and- Asst. Attorney General SHANA MCCOY-JOHNSON Cordell Hull Bldg., 2nd Fl. Asst. District Public Defenders 425 Fifth Ave., North P.O. Box 700 Nashville, TN 37243-0493 Somerville, TN 38068 ELIZABETH RICE C. MICHAEL ROBBINS District Attorney General 46 North Third St., Suite 719 Memphis, TN 38103 WALT FREELAND (On Appeal) Asst. District Attor ney General 302 Market St. Somerville, TN 38068-1600

OPINION FILED:

AFFIRMED JOHN H. PEAY, Judge 

# FILED
December 20, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk2 

### O P I N I O N

The defendant was convicted by a jury of two counts

of first-degree murder and two counts of aggrav ated assault. The defendant was sent enced to a term of life imprisonment for each first-degree murder conviction and a term of four years for each aggravatedassault conviction. The defendant’s subsequent motion for a new trial and/or judgmentof acquit tal was den ied by the tria l court. The defendant now appeals and contends that the evidence is insufficient to sustain his first-degree murder convictions. After a review of the recor

d and applicable law, w e find n o merit to the defendant’s contentions and thus affirm the judgment of the trial court.

The evidence presented at tri al establishe d tha t on July 26, 1997, the defendant went to a local gathering place known as “Luther Griggs” where he encountered Hester Harris and Ricco Lake. Accordin g to witnesses, the defendant asked Mr. Harris why

Mr. Harris no long er spoke to him. An argument e nsued, after which the def endant stood in the road, broke a beer bottle, and said something to the effect of , “Some of you boys going to die tonight.” The defendant then left Luther Griggs . Later that evening, the defendant w ent to a local club know n as DeJaVu. Mr. Harris and Mr. Lake also went to DeJaVu that evening. Ac cording to witnesse

s, the people on the dance floor at DeJaVu began to engage i n a form of dancing known as “g angster walking.” During this dance, people on the dance floor began bumpinginto each other. At some point, th e disc jockey turne d on the main ligh ts and asked the people on the dance floor to calm down. After the main lights w ere turned off, several shots w ere fired. Mr. Harris, Mr. Lake, Crystal Brown, and Sheena

Cashier were shot. Mr. Harris and Mr. Lake died as a result of their gunshot wounds.

At tr ial, Dennis Tucker testified that he had seen both the defendant and Kenneth Bills with guns

when they ran out of DeJaVu after t he shooting. Roshanta Harris testified that she realized the defenda nt had a gun seco nds before he started shooti ng. She testified that

she was approximately six or seven feet from the defendant when he began shooting. Another trial witness, Tony

Walker, testified that he was standing on the3

dance floor next to the defendant at the ti me of the shooting. Mr. Walker stated that he had seen the defendant shooting a gun and had seen Mr. Harris and Mr. Lake fall to the g round. Mr . Walker further testified that the defendant had fired four s hots in the direction of Mr. Harris and Mr. Lake and two shots in the direction of the disc jockey booth. Mr. Walker stated that at the time of the shooting he was also standing near Mr. Bills , but he had not seen Mr. Bills with a gun. Antrail Robertson and Michikia Beauregard were also present at th e time of the shooting and both testi fied that they had
seen the defendant firing a gun. Neith er witness hadseen anyone else with a gun at that time.

The defendant now contends th at the evidenc e with which he w as convicted
was insufficient to support his two fi rst-degree murder conv ictions. A defendant challengingthe sufficiency of the proof has the burden of illustratin g to this Court why the evidence is insufficient to suppo rt the v

erdict return ed by th e trier

of fact i n his or her
case. This Court will no t disturb a

verdict of guilt for l ack of sufficient evidence unless the facts contained in the record and any inferences which may be drawn from the facts are insufficient, as a matt

er of law , fo r 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).

When an accused challenges the sufficiency of the co nvicting evi dence, we must review t he ev idence in the light most fav orable to the prosecution in determining whether “any rational trier

of fact could have found the essential el em ents of the cr ime beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319 (1979). We do not reweigh or re-evaluatethe evidence and are required to afford the State the stron gest legitimateview of the proof contai ned i n the record as well a s all reasonable and leg itimate inferences which may be drawn therefrom. State v. Cabbage , 571 S. W.2 d 832, 835 (Tenn. 1978).

The defendant contends that the only proof tending to connect him to these crimes is the tes timony o f several Sta te witnesses. The defendant points out that a defense witness, Rhonda Cros s, testified that Mr. Bil ls was actually th e gunman and4

Stephani e Phinnessee testified that she saw Mr. Bills outside DeJaVu with a gun afte r the shooting. The defendant also attacks the credi bility of Mr. Walker who testified that the defendant fired the shots that killed Mr. Harris and Mr. Lake. The defendant argues that the facts established in the recor d are “wholly in sufficient to establish beyond reasonable doubt that it was the defendant who did the shooting on the night in question at the DeJaVu Club.”

It is wel l settled law that the i dentity of the defendant as the person w ho committed the crime for which he i s on trial is a questi on of fact for the determination of the jury after considerati on of all the competent proof. White v. State , 533 S.W.2d 735, 744 (Tenn. Crim. App. 1 975). In addition, questions c oncerning the credibil ity of witnesses, the weig ht and value to be given to the evi dence, as well as factual i ssues raised by the evidence are re solved by the trier

of fact, not this Court. Cabbag e , 57 1 S.W.2d 832, 835. A guil ty verdict rendered by the jury and appro ved by the trial judge accreditsthe testimony of the witnes ses for the State, and a presumption o f guilt replaces the presumption of innocence. State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). As it is within the prov

ince of the jury to determine the credibility of witnesses and the weight to be given to their tes

timony, it was proper

for the juryto accredit the testimony of the State’s witnesses identifyi ng the defendant as the gunman. The defendant has failed to illustratethat the proof contained in the record as well as all reasonable and legitimate in ferences which coul d be drawn t herefro m, was insu fficie nt for th e jury to find th e defend ant guilty beyond a rea sonable doubt. The defendant’s contentions are thus without merit.
Accordingly, the defendant’ s convictions are affirmed.

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_ JOHN H. PEAY, Judge

CONCUR:5

______________________________ NORMA M. OGLE, Jud ge

______________________________ ALAN E. GLENN, Ju dge