### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE May 23, 2001 Ses sion
STATE OF TENNESSEE v. LARRY D. UPSHAW Direct Appeal from the Criminal Court for Knox County

No. 67242 Ray L. Jenkins, Judge

No. E2000-02262-CCA-R3-CD July 23, 2001
The defendant, Larry D. Upshaw, w as convicted

of second degree murder. The trial court imposed a senten ce of 38 years in the Department of Correction. The sole issue on appeal is whether the evidencewas sufficient to support his conviction for second degree murder. The judgment of the trial court is affirmed.

Tenn. R. App. P. 3; Ju

dgment of the Trial

Court Affirmed.
G ARY R. W ADE , P.J., d elivered the opinion of the court, in which T HOMAS T. W OODALL and R OBERT W. W EDEMEYER , JJ., joined. Leslie M. Jeffress, Knoxville, Tennessee, for the appellant, Larry D. Upshaw.
Paul G. Summers, Attorne y General & Reporter; Peter M. Coughlan, Assistant Attorney Ge

neral; andRobert L. Jolley

, Jr., Assistant Distr

ict Attorney

General, for th

e appellee, State

of Tennessee.
OPINION
On the night of Septe

mber 24, 1998, Off

icer Chris Bell of the Knoxville Police Department was patrolling theWestern Heights Housing Development when he received a call that a stabbing hadjust occurred in the area. Upon his arrival at the scene, he found that the victim, Le roy Page, had suffered a stab wound to the chest. A neighbor, Billie Asher, held a towel to the victim's stomach area. Officer Bell determined that the victim was alive but unresponsive to questions.
The victim was unconscious when Gary Brent Sey mour, a licensed paramedic, arrived at the scene. The hea

rt rate and breathing of the victim were stable at first but deteriorated soon after he was placed on the stre

tcher. Sey

mour performed CP

R on the victim until the ambulance arrived at the hospital.
Ava Cospy testified that she lived with the victim and that their relationship had ex tended over a period of five years. She recalled that when she ar rived home from work at around 5:00p.m.1 The context of the testi mony suggests t

hat when the vi

ctim "shook his head," it was an affirmat ive response. -2- on the evening of the murder, the defendant and the victim were in her kitchen. No one else was in the residence. She left for the grocery store and, upon her return, the two men were still in the kitchen. Ms. Cospy took a nap and when she awoke,the defendant was the only other person in her house. The victim return

ed and Ms. Cospy

left to purchase

beer. Upon her return, the defendant and victim wereon the front porch. No others were present. About 10 minutes later, Ms. Cospy heard the victim call to her from the porch, saying that he had been stabbe d. No one else was on the porch. She then rushed across the street to call for an ambulance.
Billie Asher testified that the victim had introducedher t o th e def end ant earl ier in t he d ay. She r ecalled that after 5:00 p.m. on the night of the murder, she saw no one on the porch with the victim other than the defendant. At one point during the e vening, Ms. Ashe

r went to the victim’s apart ment

in order to get a cigarette from Ms. Cospy. Some 15 to 20 minutes later, Ms. Cospy arrived at her door saying that the victim had been stabbed. As Ms. Asher atten ded to the victim, she asked, "Was the M.

F. [that] did th

is to you sitting on the porch?" The victim responded,

" [Y]eah. " When she asked whether "the man on the porch [did] this to [him]," the victim "shook his head" affirma

tively and so

on lost consciousne

ss. 1 Ms. Asher acknow

ledged that she

did not use the defendant’s

name when she ask

ed the question, e

xplaining that she c

ould not remember

it.
Tim Snoderly of the Kno

xv il le Police Department testified that when he investigated the homicide, he found blood on the victim’s front porch. A closed pocketknife and a knife handle were in the front yard. Officer Snoderly recalled that when he and other officers arrived at the

defendant’s residence, the defendan t, who was o utside, "ke pt walking" past them. When the officers caught up withthe defendant moments later and asked about the incident at the apartmen t complex, the defendant claimed that he was not there. Officer Snoderly testified that the defendant later admitted to being at the apartment comple x, but denied being

at the unit occupie

d by the victi

m. Offic e r Snoderly acknowledged that the murder weapon was never located and that no blood was found on the defendant's shoes. He

described the victim’s apartment as a "drug house," where cocaine was cut andcooked. Officer Snoderly also testified that Robert Kirkendol, who was jogg ing on the night of the murder, stated th

at about 45 minute

s bef ore police arrived, he saw several individuals on the victim’s porch, including

at least three ma

les and one femal

e. He also confirmed that

Kirkendol had seen two white males running away from the location.
Dr. Sandra El

kins, Knox Cou nty Medical Examiner, testifie

d that the victim had

a single knif e stab wound, which had penetrated the pulmonary artery , to the left area of his chest. She indicatedthat the stab wound was 3.6 inches in depth a nd that the victim would have lost consciousness "within a matter of minutes" after sustaining the wound. It was Dr. Elk ins' opinion that one having a wou

nd of that nature c

ould talk coheren

tly until losing

consciousness. On

crossexamination, Dr. Elkins acknowledged that there was nothing to indicate that the knife used to stab the victim had a serrated edge. She confirmed that blood drawn during the autopsy tested positive for cocaine.-3-

Roberta Jean Upshaw, the defendant’s sister, claimed that the defendant was at the home they shared at 9:00 p.m. on the night of the murder. She testified that the defendant came inside for a few minutes before leaving to go to the store.
The defe nda nt d id n ot t est ify.
On rebuttal by the state, Officer Snoderly te stified that Ms. Upshaw never mentioned that she saw the defendant at 9:00 p.m. on the night of the murder. He recalled her saying that the defendant returned to their residence at 11:30 p.m. The defendant argues that the evidence was insufficient to support a conviction for second degree murder. He claim

s th at the c onvic tion was ba sed en tirel y on cir cumst antia l evid ence. In particular, he maintains that the circumstantial evidence did not "exclude every other rea s on able theory or hypothesis except that of guilt," and did not establish beyond a reasonable doubt that he committed the crime.
O n appeal, the state is entitled to the strongest legitimate view o f the evidence and al l reasonable

inferences which might be drawn therefrom. State v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978). The c redibilit y of the witnes ses, the wei gh t to be given their testimony, and the reconciliationof conflicts in the proof are matters entrusted to the jury as the trier of fact. Byrge v. State , 575 S.W .2d 292, 295 (Tenn. Crim. App. 1 978). When the suff iciency of

the evidence is challenged, the relevant question is whether, after reviewing the e

vidence in the lig

ht most favorable to the state, any rational trier of fact could have found the essential eleme nts of the crime beyond

a reasonable

doubt. Tenn. R. App.

P. 13(e); State v. Williams , 657 S.W.2d 405, 410 (Tenn. 1983). A guilty verdict, approved by the trial judge, accredits the testimony of the witnesses for thestate and resolves all conflicts in the proof in favor of the state's theory. State v. Hatchett , 560 S.W.2d 627, 630 (Tenn. 1978).
A person commits the crime of second degr ee murder if he knowingly kills another. See Tenn. Code Ann. § 39-13-210. Here, Ms. Asher testified that she saw no one on the victim’s porch on the night of the murder except the defendant fr om "five o’ clock on." While she could not remember

his name, Ms. Asher had been introduced to the defendant. After the defendant was stabbed, Ms. Asher, who was aware that the victim and the defendant had previously be en together, askedthe victim if the person sitting wit h him on the porch ha

d committed the stab

bing. The victim answered, "[Y]eah." He then confirmed the identification by shaking his head in an affirmative manner when Ms. Asher asked, "Did the man on the porch do this to y ou?" Officer Snode

rly said the defendant attem

pted to "walk awa

y" from him a

nd other officer

s when they a

rriv ed at his residence. Initiall

y, t he defendant denied that he had been at the apartment complex when the stabbing took place, but he later admitt ed that he had bee

n at an apartment

near that of the v

ictim. Ms. Cospy left the defendant and the victim together on the porch when she e ntered the residence. No one else was present. Only 10 minutes later, she heard the victim calling to her that he had been stabbed.-4-

The defendant conte

nds that this eviden

ce does not "unerrin

gly point the

finger of gui

lt" because others were seen on the victim’s front porch shortly before the crime was committed. He argues that any of

the victim's "drug customers" may have killed him. It was the function of the jury to reconcile any

conflicting testimony and to weigh the value of circumstantial evidence

. That the victim, just before his death, was abl e to i den tif y his ass ail ant is p art icu lar ly co mpe lli ng te sti mon y. It is well established that the identification of a defendant as the person who committed the of

fense for which he is on tri al is a factual issue to be determined by the jury. State v. Strickland , 885 S.W.2d 85, 87 (Tenn. Crim. App. 1993) (cit ing State v. Crawford , 635 S.W.2d 704, 705 (Tenn. Crim. App. 1982)). The testimony of a witness identifying the perpetrator is sufficient in and of itself to support a conviction. Id . at 87-88. In o ur view, the evide

nce was sufficie

nt.

___________________________________ GARY R. WADE, PRESIDING JUDGE