# FILED October 13, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE JULY SESSION, 1999
STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9809- CR-00362 ) Appellee, ) ) DAVIDSON COUNTY V. ) ) ) HON. J. RANDAL L WYATT, JR. DONALD K. MOORE, JR. ) ) Appe llant. ) (SECOND DEGREE MURDER)

FOR THE APPELLANT : FOR THE APPELLEE : MONTE D. WATKI NS PAUL G. SUMMERS 1510 Pa rkway Tow ers Attorney General& Reporter Nashvill e, TN 37219 LUCIAN D. GEISE Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenue North Nashvill e, TN 37243 VICTO R S. JO HNS ON, III District Attorn ey Ge neral KATRIN NOVAK MI LLER Assistant Distri ct Attor ney General DERRICK SCRECHEN Assistant Distri ct Attor ney General Washington Square - Suit e 500 222 Se cond A venue N orth Nashvill e, TN 37201-1649

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

On Jul y 29, 1996, the David son Cou nty Grand Jury

indi cted Defen dant

Do nal d K. Moore, Jr. , for

one count of f irst degr ee murder and one count of felony m urder. Following a jury trialon May 11–12, 1998, Defendant was convi cted of one count of second degree m urder. After a sen tencing hea ring on June 15, 1998, the trial cou rt sentenced Defendant as a Range I standard offende r to a term of twen ty-one years in the Tennessee Department of Correctio n. In addit ion, thetrial cou rt orde red this senten ce to run co nsec utively to sente nces that ha d prev iously b een im pose d in another case. Defendant chall enges both his con victi on and his sentence, raisi ng the following i ssues: 1) whether t he evidence was suf ficien t to support

his convi ction; a nd 2) wheth er the tr ial cou rt erred when it ordere d his sentenc e to run cons ecutive ly to other s en tences that were previ ously imposed i n another case. After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.

I. FA CTS

Officer William Stokes of

the Metropol itan Nashvi lle Poli ce Depa r tment testif ied thatat approxi mately 11:30 p. m. on February 12, 1996, he recei ved a call to investi gate a body that was found in t he Hadley Park area of Nashvil le. When Stokes arrived, he observe d the bo dy of a wh ite male that had a bullet wound on the left side of the neck. Stokes al so observed a tr ail of blood between the body and a pavili on in the park

that was ap prox imately 100 y ards away. When Stokes approached the p avili on, he observed a s hell casi ng and a pool of bl ood. Offi cer-3-

Wayne Hugh es of th e Met ro Po lice De partm ent tes tified tha t the sh ell casin g was from a .380 automatic.

Yakuo Murp hy testif ie d that someti me during or after February of 1996, he had a conversation with Defendant about t he murder that occurred in Hadley Park. Murphy testified that D efenda nt stated th at h e had gone to Hadley Par k and seen a white man sit

ting on a par k bench. Defendant then stated th at the man said t hat he was looking f

or a prostit ute and Defendant ask ed him how much money he had. Def endant stated that wh en t he ma n sa id t hat he d id n ot h aveany mo ney , Defendant asked the man, “Have y ou ever danced wit h the Devil?” Defendant also stated that at t his point , he pull ed out a .380 and shot the man in the h ead. Defen dant furth er stated that the m an starte d to run a nd De fendan t “shot him up.”

Anton io Cartwright

testif ied that he waswith Defenda nt and Gd ongalay Be rry on Februa ry 12, 199 6. After De fendan t parted co mpan y with Cartwright and Berry at approximatel y 10:30 to 11: 00 p.m., Cartwrightwent to a resi dence about two or three b loc ks from Hadley Park. Ap proxima tely one h our later, D efenda nt cam e to the residence and tol d Cartwright that he had shot a whi te man in Hadley Park. Defendant also stated th at he shotthe man in the head bec ause he “w ouldn’t give it up.” In addition, Defendan t stated that when the man started to run, Defendant attempted to shoot hi m again, but t he gun jam med and would not fi re. Cartwright also testif ied that e arlier that eveni ng, he saw Berry give a .380 au tomatic to Defen dant.-4- Dr. Bruce Levy testifi ed thatthe autopsy report i n this case indicated that the fatal gunshot had been fi red from a distan ce o f on ly twoto t hre e fe et f rom t he v ict im.

II.SUFFICI ENCY OF THE EVI DENCE

Defendant conte nds th at the e videnc e was insuffic ie nt to su pport h is convicti on. We disagree.

When an appellant challenges the suf ficiency of the evidence, this C our t is obliged to review th at challen ge acc ording to certain we ll-settled princ iples. A v erdict of guilty by the jury, appro ved by the trial ju dge, a ccred its the te stimo ny of the State’s witnessesand resolves all confl ict s in the testimon y in favor of the State. State v. Cazes , 875 S. W .2d 25 3, 259 (Ten n. 199 4). Alth ough an ac cuse d is orig inally cloaked with a presu mption of i nnocence, a jur y verdic t removes thi s pres umpti on and replaces it with one o f guilt. State v. Tug gle , 639 S.W.2d 913, 914 (T enn. 1982). Hence , on app eal, the bu rden of p roof rests with Defe ndant to demo nstrate the ins ufficiency o f the conv icting evide nce. Id. On appeal, “t he [S]tate is enti tled to the strongest legit imate v iew of theevidence as wel l as allreasonable and legitimate inferences that m ay be drawn therefrom.” Id. Where the suffici ency of the evidence is contested on appeal, t he rel evant ques tion for th e revie wing c ourt is whetherany rational trier of fact could h ave found the accused g uilty of every element of the offen se beyo nd a rea sonab le doub t. Jack son v. V irginia , 443 U. S. 307, 319, 99 S.Ct. 2781, 2789, 61 L. Ed.2d 560 (1979). I n conducting our evaluati on of the convic

ting eviden ce, this Court is pr ecluded from rewei ghing or recons idering the evidenc e. State v. Morgan , 929 S.W .2d 380, 383 (Tenn. Crim . App. 1996 ). Moreover, this Court

may not substi tute i ts own i nferences “for those dr

awn by the-5-

trier of fact from circum stantial evidence.” State v . Matt hews , 805 S.W.2d 776, 779 (Tenn. C rim. App. 199 0). Finally, Rule 13(e) of the Tennessee Rules o f Appella te Procedu re provides, “findi ngs of guilt in crimi nal actions whet her by the t rial cour t or jury shall be set aside if the evi dence is insuf ficien t to support

the findi ngs by the tri er of fact beyo nd a rea sonab le doub t.”

In order to establish t hat Defendant had committed second deg ree murder, t he State had to prove beyond a reasonabl e doubt that Defendant knowingly kill ed the victim. See Tenn. C ode Ann . § 39-13-210 (a)(1) (1997).

We conclude that when the evidence in thi s case is vi ewed in the light most favora ble to the State, as it must be, the evidenc e was sufficient for a ration al jury to find be yond a reaso nable doubt that Defendant committed the of

fense of second degree murder. The evid ence in thi s case establi shed that t he victim was shot in t he neck from a distance of two to three feet on February 12, 1996. The evidence also establi shed that a .380 shell casi ng was discover ed in the are a of Hadley Pa rk where the vic tim was shot. I n addi tio n, Ca r twright testif ied that h e saw Defendant wit h a .380 automatic on Febr uar y 12 , 19 96. Car

twr igh t al so t est if ied that on that sa me date, Defendant stated that he had shot a white man in the head because t he man “would n’t give it up” an d he trie d to sh oot the man again while theman ran away, but the gun would notfire. Similarly, Murphy testif ied that Defendant state d that he had shot a white man in Hadl ey Park after the man ind icated t hat he did not have any mone y.

Defendant esse ntially argues that the evidence in t his case was i nsuffic ient because the only ev idence t hat c onne cte d hi m to t he k il li ng i n Had ley Par k ca me-6-

from Cartw right an d Mur phy an d thes e two w itness es we re sim ply not c redib le
. Howeve r, “[t] he credibi lity of the wit nesses, the wei ght to be gi ven their t estimony, and the reconci liati on of con flicts in the eviden ce are matte rs entru sted e xclusive ly to the jury

as the triers of fact.” State v. Cribbs , 967 S.W.2d 773, 793 (Tenn. 1998). The jury obviou sly believed the testim ony of Cartwrigh t and Murph y.

In this case, Defendant essenti ally ask s us to reconsi der the e vidence and substitute a verdict

of not gui lty i n place of t he verdict found by thejury. That is not our functio n. Instead, we conclude t hat a rati onal jury could have found beyond a reaso nable doubt that Defendant had committe d the offens e of second d egree murder. See Tenn. R. App. P. 13(e). Defen dant is not entitl ed to reli ef on this issue.

III . CONSECUTI VE SENTENCI NG

Defendant contends that the tri al court erred w hen it o rdere d the s enten ce in this case to run c onse cutively to sen tence s previo usly im pose d in anothe r case. W e disagree.

Consec utive sentencing is governed by Tennessee Code Annotated section 40-35-115. The trial court has t he discr etion to order c onse cutive s enten cing if it finds that one or more of the required st atutory criteria exist. State v. Black , 924 S.W.2d 912, 917 (Tenn. Cri m. App. 1995). Fur ther, t he court is

req uired t o determine whether the consecutive sentence s (1) are reasonably rel ated to the severity of the off

enses committed; (2) serve to protect the p ublic f rom further criminal conduct by t he offender; and (3) are congruent with gene ral pri nciples of senten cing. State v. Wilkerson , 905 S.W .2d 933, 939 (Tenn. 199 5).-7- Th e record indi cates that before he was conv icted and sentenced for the offense in thi s case, Defendant was convicted of felo ny murderan d esp ecially aggravated robbery i n another case. In addit ion, Defenda nt rec eived conse cutive senten ces of life an d twenty ye ars for his tw o convictio ns in the o ther case
.
In itially, Defendant contends that consecut ive senten cing is improper becaus e the offens es in the previ ous case were committed after he commit ted the offe nse in this case. Specif icall y, Defendant a rgues that a trialcourt doesnot h ave the authority to order a sentence to run consecutively to a sentence for an offensethat was com mitted later in time. T his Co urt has previo usly rejected th is argum ent. In State v. Blanton , 926 S.W.2d 953, 961 (Tenn. Crim. App. 1996), thi s Court held t hat forpurposes of consecu tive sentencing, it is irr eleva nt that t he convicti on and sentencing for the prior offense occurred after t he convicti on and sentencing f or the later offense. “In other

words, it is imma terial whether sen tence one is c onsecutive to sentence two, or vice versa, as the se ntences are consecutive in e ither case.” Id. Thus, the tri al court w as no t prohib ited from orderin g the s enten ce in this case to run consecu ti vely to the sentences previous ly imposed, even though those sentences were for of

fenses committed af

ter the of

fense in t his case.

Defendant als o contends that consecu tive sente ncing is i mproper because the requirements of

section 40- 35-115 and Wilkerson have not been sat isfied
.
In determiningthat the se ntence in this case should ru n cons ecutively to the sentences in t he previ ous ca se, t he trial cour t fo und t hat De fe ndant was a dangerous offender whose b ehavior indica tes little or no regard for human life and who has no hesitation in committi ng a crime in which the risk to human life is high.-8-

See Tenn. C ode Ann . § 40-3 5-115( 4) (1997). We agree. Indeed, the evidence indicates that after D efenda nt appro ached the victim a nd the victim sta te d that he di d not have any money, Defendant taunted the vict im by asking “ Have you ever danced with the Dev il?” and t he Defe ndan t then s hot the victim in the neck at close range . In addit ion, the evidence indi cates that while thevicti m was running awa y from the park, Defend an t attempted t o shoot him again andwas prevented f rom doing so only

by the fact

that the gu n jammed and would not fi re.

The trialcourt made no expres s findi ng that the Wilkerson test wassatisf ied in this case, however we conclud e in our de novo revie w that it was . First, consecu tive sentencing is reas onab ly related to the severi ty of t he offenses. Indeed, Defendant was convicted of three s erious vi olent fel onies. I n additi on, Defendant committed the offense in thi s case by taunti ng and then shooti ng the victim at cl ose range for no ap parent re ason a t all. Secon d, conse cutive sen tencing w ill serve to protect the pub lic from futu re crimina l conduc t by Defen dant. De fendan t clearl y poses a great ri sk to the safety of t he public. Although therecord d oes no t indicate the exa ct date, D efend ant ap paren tly com mitted the felo ny mu rder an d esp ecially aggravated robbery only a short time after he committed t he brutal and senseless kill ing in this case. Finally, consecutive sentencing i s clearl y congruent wi th general principl es of sentenci ng. Defendant i s not enti tled to r elief on this i ssue.

According ly, the j udgment of t he trial cour

t is AFFIRMED
.

____________________________________ THOMAS T. W OODALL, Judge-9-

CONCUR:

___________________________________ JERRY L. SMITH, Judge

___________________________________ NORMA McG EE OGLE, Judge