# FILED
April 30, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE OCTOBER 1998 SESSION
STATE OF TENNESSEE, * C.C.A. NO. 03C01-9803-CR -00117 APPELLEE, * HAMILTON CO UNTY VS. * Hon. Stephen M. Bevil, Judge EARL DEW AYNE HOLLOW AY, * (Second Degree Murder) APPELLANT. *

For Appellant : For Appellee : Tom Landis John Knox Walkup Doctors Building Attorney General and Repor ter Suite 327 744 McCallie Avenue Ellen H. Pollack Chattanooga, TN 37403 Assistant Attorney Gener al 425 Fifth Avenue North Nashville, TN 37243-0493 Barry A. Steelman Assistant District A

ttorney General Courts Building Suite 300 Chattanooga, TN 37402

OPINION FILED: ____________________

AFFIRMED

GARY R. WADE, PRESIDING JUDGE2 OPINION The defendant, Earl Dewayne H olloway, was c onvicted of second degree murder. The trial court imposed a twenty-two-year sentence with a release eligibility at e ighty-five percent of the term. See Tenn. Code Ann. § 40-35-501. In this appeal of right, the defendant pos es the following question: "will a convi ction for second degree murder stand w here the defendant was the vi ctim of an aggravated robbery by the deceased?"

We affirm the judgment of the trial court.
On September 5, 1995, Greg Vins on, a resident of the West Side housing project in Chatt anooga, encountered the defendant and Elmonte Sims, who sat in a car parked in the C ollege Hill Courts , a section of the West Side. When the defendant, who had known Vinson for several months, inqui red whether anyone had drugs, Vinson responded that he did not know. At that poi nt, the defendant and Sims left their vehicle and walked toward "the C ut," a narrow passagew ay between two tall apartment buildi ngs. A short time later , Vinson saw two in dividuals pointing guns at Sims. The defendant was also present, but no on e had pointed a weapon in his direct ion. The armed men quickly left "the C ut." The defendant and Sims remained. At that point, an indi vidual named Reginald H itchcock, who appeared to be unarm ed, "jus t came ou t of the b lue," ap proache d Sims, an d began to remove his rings. Vinson att

empted to stop the robbery but, before he could intervene, the defendant shot Hitchcock in the bac k, thereby causing hi s death.
On cross-examination, Vinson acknowledged that he had "done drugs" with the defendant about a year-and-a-half to two years earlier. He also acknowledged carry

ing a beeper on the day of the s hooting. He testified that th e3 entire incident took no more than two to three minutes.

Dubois Montrell Ross testified that he lived near "the Cut" and had witnessed the shooting of his friend, Reginald Hit chcock. Ross, who at the time of the shooting was with the victim's brother, Marlin Borgne, witnessed the robbery. He identified the robber as his cousin, Michael Franklin. Ross claimed that Franklin aimed a gun at Sims but not at the defendant. He testified that after Frank lin left, Hitchcock, who w

as unarmed, entered "the Cut" and star ted removing Sims' ri ngs. Ross recalled seeing Vinson push Hitchcock aw ay from Sims and try to pr event the robbery. At that point, Ross saw the defendant come from around the corner, remove his weapon from his belt, and shoot Hitchcock i n the back. Before leaving the scene of the shooting, the defendant poi nted the gun at Vinson and Ross

.

Ross stated that he saw Wayne W are holding a "12-gauge ... in his hand." When Ross told Borgne his brother h ad just been shot, Borgne ret rieved the gun from Ware and chased the defendant. When the defendant pointed the gun at Borgne, Borgne fired. The bul lets struck the defendant's car

.

Otis Smart, Jr., also w

itnessed the shooting. He recalled that he was walking home from the stor e when he saw the defendant "pull out a gun, put it to Hitchcock's back and sho[ o]t it." Smart testified that the victim did not have a weapon.
Dr. Frank King, the H amilton County Medical Examiner, performed an autopsy on the victim. He concluded that the vic tim died of a gunshot wound to the left upper back. Dr. King testified that the range of fire w as at least one to two feet from the victim's body. Test results indicated the pr esence of cocaine, marijuana,4 and alcohol.

Elmonte Sims, who had known the defendant fo r several years, was a witness for the defense. Char ged with first degr

ee murder for his role in the shooting, Sims acknowl edged that his trial date h ad not been set. He recalled that when he arrived at the

defendant's house on the day of the shooti ng, the defendant said that Vinson had been by and had arranged a "deal for some [cr ack cocaine]." Whe n the thre e met at Co llege Hill A partmen ts, Vinso n told the m he need ed five hundred dollars but said they could pay when they

were able. He recal led that Vinson then instructed them to r eturn in thirty minutes

because he was still "cooking up the drug."

Sims testified that he and the defendant re turned to meet Vinson around 6:15 p.m., when a "bunch of gu ys jumped out from behind the buil ding with guns." On e individu al approa ched Sim s carrying a r ifle. Sim s recalled that he sa w a shotgun, a small revolver, and a pistol with the trigger guard missing. He remembered that the person with the shotgun stole the money from his pockets. Sims, who admitted that he car ried a gun with him at

that time, testified that as one of the assailants held a small c aliber weapon against the defendant's head, another held a weapon to his head. H e claimed that Reginald H itchcock then arrive d, pointing a pistol at Sims and the defendant. Sims stated that Hitchcock then removed his necklace. When one o f the assailants left the area, he passed his weapon to Michael Franklin. Sims testified that when Hitchcock ran towards him with the pistol aimed i n his direction, the defendant int ervened, shooting Hit

chcock. Sims stated that he and the defendant then l eft the area as quickly as possible.

On appeal, of course, the state is entitled to the strongest legitimate5 view of the evidence a nd all reasonable inferences w hich might be drawn ther efrom. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses, the wei ght to be given their testimony, and the reconci liation of conflicts in the proof are matters entruste d to the jury as the tri er of fact. Byrge v. State , 575 S.W.2d 292, 295 (T enn. Crim. App. 1978). When the sufficiency of the evidence is challenged, the relevant question is whether, after reviewing the evidence in the lig ht most favorable to the state, any rational trier of fact could have found the essential elements of the crime beyond a rea sonable doubt. State v. Willia ms , 657 S.W.2d 405, 410 (Tenn. 1983); Tenn. R. App. P. 13 (e).

By use of these guidelines, we must conclude that the evidence is sufficient to support the defendant's conv iction. At the time of the offense, second degree murder was defined as a "knowing killi ng of another." Tenn. Code Ann. § 39-13-210(a). Our code defines "knowing" as follows:

"Knowing" refers to a pers on who acts knowing ly with respect to the conduct or to c ircumstances surrounding the conduct when the person i s aware of the nature of the conduct or that the circumstances exist. A perso n acts knowingly with respect to a result of the person's conduct when the person is aware that the conduct is reasonably certain to c ause the result. Tenn. Code Ann. § 39-11-302(b).

The defendant argues that "as a matter of law this homicide cannot be more than voluntary mansl aughter." He contends that the robbery qualified as "adequate provocation" and that he was in a justifiable state of passion when the shooting occurred.

The witnesses for the state, how ever, testified that the defendant pulled his weapon and shot t he unarmed victim in the back at a close range. It w

as6 the jury's preroga

tive to accredit the enti re testimony and theory of the state that the victim was unarmed and not a threat to the defendant. The state w itnesses testified that Sims was the vic

tim of the robbery, not the defendant. That presented a factual issue. "When the evidence is conflicting , the jury must resolv e these conflicts, under proper instructions, and decide whether the homicide is murder or manslaughter ." State v. Robert Zandi , No. 02C01-9703-CC-00122, slip op. at 5 (Tenn. Crim. Ap p., at Jackson, Jan. 15, 1998). H ere, the trial judge pr ovided instructions on manslaughter, self-defense, and defense of anothe r. The jury rejected ea ch of those alterna tives and conclud ed the defen dant had comm itted a "knowing kill ing" and was thus guilty

of second degree murder. This c ourt may not reweig h the evidence nor substitute i ts own view for that properly reached by the finder of fact.
Accordingly, the j udgment of the trial court is affirmed.

__________________________________ Gary R. Wad e, Presiding Judge CONCUR:

________________________________ David H. Wel les, Judge

________________________________ Thomas T. W oodall, Judge