IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs February 23, 2012

STATE OF TENNESSEE v. RIVERA L. PEOPLES

Appeal from the Criminal Court of Davidson County

No. 2010-A-459 Cheryl A. Blackburn, Judge

No. M2010-02162-CCA-R3-CD - Filed June 20, 2012

Rivera Peoples (“the Defendant”) appeals his jury conviction for first degree felony murder.

In his appeal, he asserts that the evidence presented at trial was insufficient to support his

conviction. After a thorough review of the record and the applicable law, we affirm the

Defendant’s conviction.

Tenn. R. App. P. 3 Appeal as of Right; Judgment

of the Criminal Court Affirmed

JEFFREY S. BIVINS, J., delivered the opinion of the Court, in which JAMES CURWOOD WITT,

JR., and D. KELLY THOMAS, JR., JJ., joined.

Nathan S. Moore, Nashville, Tennessee, for the appellant, Rivera Peoples.

Robert E. Cooper, Jr., Attorney General & Reporter; Meredith Devault, Senior Counsel;

Victor S. Johnson, III, District Attorney General; Bret Gunn and Brian Ewald, Assistant

District Attorneys General, for the appellee, State of Tennessee.

OPINION

Factual and Procedural Background

A Davidson County Grand Jury indicted the Defendant on counts of first degree

felony murder, attempted second degree murder, and employing a firearm during a dangerous
felony. The Defendant went to trial on August 9-11, 2010, on the indicted count of first

degree felony murder.

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The evidence at trial established that Linburg Thompson (“Victim Thompson”), a

fifty-three-year-old father of four, was killed on the night of December 10, 2008, while

working at Ace’s Market in Nashville. Gift Wilford Bonwe, another individual working at

Ace’s Market that evening, testified that Victim Thompson had taken out the trash, and,

while Victim Thompson was outside, Bonwe heard loud noises that sounded like the

slamming of the dumpster lid. As Bonwe walked toward the door, a lady rushed inside and

told him that there had been a shooting outside. Bonwe then called the police. Shortly

thereafter, a neighbor ran into the store and told Bonwe that Victim Thompson had been shot.

Bonwe ran outside and found Victim Thompson on the ground “gasping for his life.”

Unbeknownst to Bonwe, the lady who reported the shooting had also been shot, and when

Bonwe returned into the store, he found her crawling on the floor and asking for help.

The market had a video surveillance system that captured events taking place inside

the store and at the entrance to the store. The State played the video for the jury, and Bonwe

identified a young man who entered the market prior to the shooting as someone he had seen

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in the store since he began working at the store eight years ago. While in the store, the young

man held up various items and asked Bonwe what each item cost.

Antoinette Bell (“Victim Bell”) testified that she was shot at Ace’s Market on

December 10, 2008. She lived within walking distance of the store, and she was at the

market that night buying beer and cigarettes. Standing outside, she observed a silver car

across the street and noticed two men get out of the car and walk toward the store. As one

of the men walked into the store, Victim Bell asked him for a lighter. He told her that he did

not have one, but as he later walked back out of the store, he handed her a lighter. At

approximately the same time that the man with the lighter exited the store, Victim Thompson

walked out of the store with garbage. Once Victim Thompson walked around the corner

toward the dumpster, Victim Bell heard someone say, “go get the money out of the register.”

She then heard Victim Thompson respond, “I’m not going to gets**t, you go get it yourself.”

Immediately thereafter, she heard shots fired near the dumpster, and she ran into the store.

About a minute or so after running into the store, Victim Bell became dizzy and realized that

she herself had been shot. On cross-examination, Victim Bell stated that she did not notice

The record does not indicate what happened on the count of attempted second degree murder. 

1

Following the trial, the trial court dismissed the count of employing a firearm during a dangerous felony.

Bonwe did not identify the name of the individual who entered the store. However, a later witness, 2

Brian Moreland, who testified as an accomplice, stated that it was James Dowell, another accomplice, who

entered the store.

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how many people were in the silver automobile. She did not see the face of any other

individuals involved in the shooting except for the person from whom she asked for the

lighter.

Trey Mosby testified that in December of 2008, he lived within close proximity to

Ace’s Market. On the night of December 10, 2008, he was at home and observed a silver

Chevrolet Impala parked in front of his house. He noticed that there were four black males

sitting in the vehicle. Two of the men in the vehicle stepped out and walked toward the store.

He noticed that the vehicle’s rims were not typical hubcaps but were alloy wheels with

emblems. Mosby did not witness the shooting because he and his roommate left their

residence right after he observed the men getting out of the vehicle.

Brian Beech testified that he lived directly across the alley from Ace’s Market on

December 10, 2008. At the time of the shooting, Beech was asleep at home, but he awoke

to the sound of four gunshots. He jumped out of bed and ran toward the back of the house

to look out the window, at which point he observed a silver Chevrolet Impala driving up the

alleyway. The Impala stopped long enough for an individual to enter the back passenger seat

and then continued driving up the alleyway. Beech noticed that the vehicle had a “drive-out

tag,” “some factory rims or some polished rims,” and a “spoiler.” After the car drove away,

Beech walked outside and noticed that Victim Thompson was on the ground. Later, the

police escorted Beech to view a vehicle which he identified as the vehicle he had seen in the

alley.

Beverly Landstreet testified that on December 10, 2008, she lived next to the alley

near Ace’s Market. That evening, she heard some gunshots, and when she looked outside,

she observed a silver Impala driving slowly up the alleyway. She called the police and spoke

with officers once they arrived at the scene. Later, an officer escorted her and her roommate

to a location where they identified a vehicle as the one they saw driving in the alley.

Sergeant Monte Sands testified that he had been employed with the Berry Hill Police

Department for about twelve years. On the night in question, he received a call to respond

to the scene at Ace’s Market. Although Ace’s Market is right outside Berry Hill and

considered part of Metropolitan Nashville, Sands stated that he and other officers sometimes

responded anyway out of proximity. He arrived at Ace’s Market approximately two minutes

after receiving the call, within approximately a minute of two other Berry Hill officers.

When he arrived, he observed a black male lying in the alleyway next to the store. Sergeant

Sands immediately focused on the victim, and shortly after reaching Victim Thompson,

Victim Thompson stopped breathing. The fire department arrived and began attempts to

resuscitate the victim, which proved unsuccessful. Shortly thereafter, Sergeant Sands heard

a store clerk shouting that there was another victim inside the store. Sergeant Sands

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immediately entered the store to find Victim Bell, who had been shot in her torso and arm.

He asked her questions as medics began treating her, but she seemed to be overwhelmed by

pain and fear such that she could only tell him her name and date of birth. On crossexamination, Sergeant Sands acknowledged that he did not see any of the suspects and that

he played no part in the actual investigation of the shooting.

Lieutenant Matt Pylkas, Metro Police Department (“MPD”), testified that he was

working on the night of December 10, 2008. When he received the call about the shooting,

Lieutenant Pylkas assisted in searching for the suspects instead of going to the scene of the

incident. He received a description that the vehicle was “a silver Impala with a temporary

tag” and “an air foiler [sic] on the back.” Shortly after reaching the Edgehill area, he

observed a vehicle parked alone that matched the description received over the radio.

Lieutenant Pylkas exited his vehicle to peer inside the Impala. He observed a stocking cap

and some bandanas in the interior of the vehicle, and he placed his hand in front of the engine

area and noticed that it was “extremely hot,” indicating that the vehicle had been driven

recently.

Officer George Bowton, a crime scene investigator for the MPD, testified that on the

night of December 10, 2008, he responded to a call regarding a shooting at Ace’s Market.

As part of his responsibility at the scene, he drew a diagram depicting the scene of the

shooting and the location of evidence obtained. Additionally, he collected one bullet and two

shell casings as evidence. He identified the two shell casings as Winchester nine millimeter

Luger cartridge casings.

Lynette Mace, MPD Crime Scene Investigations, testified that her involvement with

the case included investigating the 1999 Chevrolet Impala identified by witnesses as the car

used in the commission of the shooting. Her investigation included photographing the

vehicle and articles located inside and obtaining those items to submit for analysis of

deoxyribonucleic acid (“DNA”), gunshot residue, and fingerprints.

The State read into evidence the depositions of Officer Thomas E. Simpkins, MPD,

and Officer Belinda Shea, MPD. Officer Simpkins stated in his deposition that he found

fingerprints on approximately seven compact discsthat he submitted for fingerprint analysis.

In Officer Shea’s deposition, she testified as an expert in latent fingerprint identification.

She analyzed latent fingerprints submitted in this case by Officer Simpkins and Officer

Mace. From the compact discs submitted, she found prints matching those of the Defendant

and an individual named Brian Moreland. From the prints lifted from an amplifier located

in the trunk, Officer Shea matched a finger print to that of the Defendant. Finally, on a box

of dryersheets,she identified prints as matching those of an individual named James Dowell.

Officer Shea acknowledged that she analyzed several prints that she could not match

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conclusively to certain individuals. She also agreed that she could not discern the age of a

fingerprint from her analysis.

Brian Moreland testified that he was involved in an attempted robbery at Ace’s

Market on December 10, 2008. He stated that the other individuals involved in the attempted

robbery were the Defendant, Dowell, and Harris. He had known these other men for

approximately a few months prior to the incident, and he identified the Defendant and Harris

as brothers. On the night of the shooting, the four men determined that they needed some

money, so they decided to drive around the area until they found a place to rob. Moreland

confirmed that they were riding in the Defendant’s car and that the Defendant was driving.

They took with them gloves, hats, bandanas, and two guns, and they eventually decided to

rob Ace’s Market.

Moreland further testified that upon reaching the store, Dowell exited the vehicle and

walked toward the store. Atsome point, Dowell entered the store, and the Defendant listened

by cell phone from the car. When Dowell left the store, the Defendant drove the car up to

the side of Ace’s Market to retrieve Dowell. As Dowell was about to get into the car, Harris

jumped out of the car. Harris confronted a man standing outside, “and when the dude swung

at [Harris], [Harris]shot” the man twice. Immediately thereafter, Harris approached the front

of the store, and, although Moreland could not see Harris at this point, Moreland heard

another gunshot. Harris returned to the vehicle, and the four men drove away to the Edgehill

Housing Development, where Harris’s girlfriend lived and where Harris was staying at the

time.

Moreland stayed at Harris’s girlfriend’s residence for a few hours, and at some point,

the four men saw police surrounding the Defendant’s vehicle from the window. The police

eventually knocked on the door, but no one answered the door. Moreland acknowledged that

he had been charged with the same crime as the Defendant, and, although he had not been

promised anything for his testimony, he hoped that his testimony would be beneficial to the

resolution of his case.

On cross-examination, Moreland agreed that he never intended for anyone to get shot

or hurt. He also acknowledged that, when Harris jumped out of the vehicle, Harris was

acting on his own accord and Moreland did not know what Harris was doing. However, on

redirect examination, Moreland admitted that all of the men were planning to get out of the

car but that Harris simply jumped out of the car sooner than Moreland anticipated.

Detective Jill Weaver, MPD, testified that she interviewed approximately fifteen

individuals throughout the investigation of this case, including all four individuals allegedly

involved in the attempted robbery. The State played a video that consisted of Detective

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Weaver interviewing the Defendant. In the video, the Defendant explained that on the night

of the shooting he went to the mall with his brother in the Defendant’s vehicle. When they

returned from the mall, he left his vehicle at his residence, and his daughter’s mother picked

him up and drove him to Fairview for the evening. The Defendant also referred to his

association in the “GD’s,” which Detective Weaver explained was a reference to a gang

called the Gangster Disciples.

Jerome Bonsu testified that he owns an automobile dealership on Dickerson Pike. He

identified a bill of sale from his company bearing the name of the Defendant as the purchaser

of a gray Chevrolet Impala on November 24, 2008. Bonsu confirmed that he sold the vehicle

to the Defendant. He also identified a reference sheet included with the Defendant’s file that

listed phone numbers for Antonio Harris, Brian Moreland, James Dowell, and Shamika

Harris. On the bill of sale, the Defendant also provided his cell phone number.

Agent Richard Littlehale, Tennessee Bureau of Investigation (“TBI”), testified as a

communications analyst in crime investigations. He received phone records for the cell

phone numbers of the Defendant, Moreland, Dowell, and Harris, which were admitted as

evidence at trial. Each cell phone record included a reference to the cell tower used to

transmit each call. He then calculated the distance from that tower to pertinent locations in

the case. He explained that in an urban area, cell towers were approximately one or two

miles apart. Calls customarily are transmitted from the cell tower that is closest to the

location of the cell phone. From his calculation, a call made by the Defendant at the

approximate time of the shooting was transmitted from a tower point six four three (0.643)

miles from the scene of the shooting.

Dr. Thomas Deering, a medical examiner and forensic pathologist with Forensic

Medical Management Services, testified that he performed an autopsy on Victim Thompson.

He stated that in his examination, he found one bullet still within Victim Thompson’s body

and other wounds indicating the entrance and exit of an additional bullet. Both of the

gunshot paths were in the victim’s left abdomen. One bullet penetrated ribs, the small

intestine, the large intestine, and the aorta. The other bullet fractured the top of the hip bone.

Dr. Deering discovered a significant amount of blood in Victim Thomspon’s abdomen. He

opined that the first bullet was fatal but that one could potentially survive had he or she only

received the bullet that fractured the hip. Dr. Deering concluded that Victim Thompson died

as a result of multiple gunshot wounds to the abdomen.

Cassaundra Waters testified that in December of 2008, she had been dating the

Defendant for about a month. She worked with Lisa Anderson, the girlfriend of Harris, and

because Waters was separated from her husband at the time, she also lived with Anderson.

According to Waters, on the evening of December 10, 2008, the Defendant left with Harris

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to go to the mall. After they returned to Anderson’s residence, police came to the door, but

no one answered the door. Waters could not recall whether the Defendant spent the night at

Anderson’s residence that night. The next day, Waters and the Defendant observed a news

story on television regarding the shooting at Ace’s Market. The Defendant told Waters that

the Defendant, Harris, Dowell, and Moreland went to the store that evening with the purpose

of robbing it.

Jamesia Dowell, sister of Dowell, testified that she has had a relationship with the

Defendant and that they had two children together. In December of 2008, she lived in

Fairview. Early one morning, the Defendant woke Jamesia by calling her to request that she

say that he was in Fairview if anyone asked her about his whereabouts on the night of

December 10, 2008. She acknowledged that he was not, in fact, in Fairview on that date.

Agent Alex Brodhag, TBI, testified as an expert in the field of firearms identification.

He analyzed two fired nine millimeter cartridge cases and two fired nine millimeter jacketed

bullets obtained in this case. From his analysis, he determined that the two bullets had been

fired from the same firearm and that the two cartridge cases had been fired from the same

firearm. However, he could not confirm that the bullets and cartridge cases were both fired

from the same firearm.

AgentJames Russell Davis, II, TBI, testified as an expert in the field of microanalysis.

He explained that when a weapon is fired, gunpowder settles on all the objects in close

proximity to the weapon. He tested gloves found throughout the Defendant’s Impala

including: one glove from the trunk, two pairs from the rear seat area, and a pair located in

the glove box. From his analysis, Agent Davis discovered that there was gunshot residue on

all the gloves tested.

Agent Michael Turbeville, TBI, testified as an expert in the field of DNA analysis.

He tested a number of items in an attempt to discover DNA profiles on the items. On a pair

of black gloves recovered from the rear passenger area of the Defendant’s Impala was a

mixture of DNA matching Harris, Dowell, the Defendant, and a female. He also matched

the DNA found on a black bandana in the glove box to Harris. Regarding the pair of gloves

found in the glove box, one glove had DNA consistent with that of Harris and Dowell, with

the possibility of Moreland and a female as additional contributors. The corresponding glove

contained DNA matching that of Harris and Dowell, with the possibility of the Defendant

and a female as additional contributors. A black bandana from the rear passenger area of the

vehicle matched the DNA of Harris and Dowell. Based on the analysis of an additional pair

of gloves retrieved from the rear passenger area of the vehicle, Agent Turbeville discovered

DNA on one glove consistent with that of Harris, Dowell, and Moreland, with the possibility

of a match to the Defendant and a female. With regard to the corresponding glove, he

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discovered DNA consistent with that of the Defendant, Dowell, and Moreland, with the

possibility of Harris and a female as additional contributors. From a bandana found in a

pocket in the back passenger seat, Agent Turbeville discovered DNA matching that of the

Defendant and Moreland. Another bandana found in that pocket contained DNA consistent

with that of Dowell. Agent Turbeville opined that tennis shoes found in the car matched the

Defendant’s DNA as well as a female’s DNA. A white shirt retrieved from the rear

floorboard contained DNA consistent with that of the Defendant and a female. Additionally,

Agent Turbeville obtained nasalsecretion from the shirt that matched the Defendant’s DNA.

At the conclusion of the State’s proof, the Defendant moved for a judgment of

acquittal, and the trial court denied the motion. The Defendant then took the stand and

testified that on the evening of December 10, 2008, he drove to the mall with his brother,

Harris, and Dowell to buy shoes for his daughter. The State asked the Defendant why he did

not mention to the police that Dowell went with him to the mall. He responded, “I guess,

when you tell one lie, you’ve just got to continue. You have to build on that lie. So when

you tell one lie, you’ve got to continue to tell another lie to cover that first one up.” After

returning from the mall to the Edgehill area, Harris asked to borrow the Defendant’s car.

According to the Defendant, Harris, Dowell, and Moreland then left for approximately

fifteen to twenty minutes. When they returned, Harris told the Defendant that someone had

been shot.

At the close of proof, the jury deliberated and returned a verdict of guilty for first

degree felony murder. The trial court sentenced the Defendant to an automatic life sentence.

The Defendant filed a motion for new trial, which the trial court subsequently denied. He

now appeals, arguing that the evidence is insufficient to support the jury’s verdict.

3

ANALYSIS

Sufficiency of the Evidence

Our standard of review regarding sufficiency of the evidence is “whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.” Jackson

v. Virginia, 443 U.S. 307, 319 (1979). See also Tenn. R. App. P. 13(e). After a jury finds

a defendant guilty, the presumption of innocence isremoved and replaced with a presumption

The Defendant timely filed a notice of appeal, but he inadvertently listed the wrong case number. 3

He then filed a corrected notice of appeal on November 12, 2010, two days after the filing deadline.

However, because the Defendant timely filed the initial notice of appeal and the State has raised no issue as

to the corrected notice of appeal, we will treat the Defendant as having appealed in a timely manner. 

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of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Consequently, the defendant

has the burden on appeal of demonstrating why the evidence was insufficient to support the

jury’s verdict. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

The appellate court does not weigh the evidence anew. Rather, “a jury verdict,

approved by the trial judge, accredits the testimony of the witnesses for the State and resolves

all conflicts” in the testimony and all reasonably drawn inferences in favor of the State. State

v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, “the State is entitled to the strongest

legitimate view of the evidence and all reasonable or legitimate inferences which may be

drawn therefrom.” Id. (citation omitted). This standard of review applies to guilty verdicts

based upon direct or circumstantial evidence. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn.

2011) (citing State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). In Dorantes, our

Supreme Court adopted the United States Supreme Court standard that “direct and

circumstantial evidence should be treated the same when weighing the sufficiency of such

evidence.” Id. at 381. Accordingly, the evidence need not exclude every other reasonable

hypothesis except that of the defendant’s guilt, provided the defendant’s guilt is established

beyond a reasonable doubt. Id.

The weight and credibility given to the testimony of witnesses, and the reconciliation

of conflicts in that testimony, are questions of fact. State v. Cabbage, 571 S.W.2d 832, 835

(Tenn. 1978). Furthermore, it is not the role of this Court to reevaluate the evidence or

substitute its own inferences for those drawn by the jury. State v. Winters, 137 S.W.3d 641,

655 (Tenn. Crim. App. 2003) (citation omitted).

The Defendant contends that the evidence is not sufficient to support his first degree

felony murder conviction. First degree felony murder is defined as “[a] killing of another

committed in the perpetration of or attempt to perpetrate any first degree murder, act of

terrorism, arson, rape, robbery, burglary, theft, kidnapping, aggravated child abuse,

aggravated child neglect or aircraft piracy.” Tenn. Code Ann. § 39-13-202(a)(2) (Supp.

2007). Therefore, we first must consider whether the evidence was sufficient for the jury to

determine that the Defendant committed one of the underlying felonies required to convict

the Defendant of first degree felony murder. The State’s theory of the case was that the

Defendant committed an attempted aggravated robbery under the theory of criminal

responsibility.

Robbery is defined as “the intentional 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)

(2006). A robbery becomes aggravated when it is “[a]ccomplished with a deadly weapon or

by display of any article used or fashioned to lead the victim to reasonably believe it to be

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a deadly weapon.” Tenn. Code Ann. § 39-13-402(a) (2006). Criminal attempt is defined in

pertinent part as:

[one] who, acting with the kind of culpability otherwise required for the

offense:

(1) Intentionally engages in action or causes a result that would

constitute an offense, if the circumstances surrounding the

conduct were as the person believes them to be;

(2) Acts with intent to cause a result that is an element of the

offense, and believes the conduct will cause the result without

further conduct on the person’s part; or

(3) Acts with intent to complete a course of action or cause a

result that would constitute the offense, under the circumstances

surrounding the conduct as the person believes them to be, and

the conduct constitutes a substantialstep toward the commission

of the offense.

Tenn. Code Ann. § 39-12-101(a)(1)-(3) (2006). Thus, a defendant commits criminal attempt

4

when he or she engages in “conduct constituting a substantial step toward the commission

of the offense.” State v. Davis, 354 S.W.3d 718, 730 (Tenn. 2011) (quoting State v.

Richardson, 251 S.W.3d 438, 443 (Tenn. 2008) (overruled on other grounds)).

A person is criminally responsible for an offense committed by another person when,

“[a]cting with intent 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) (2006). Our supreme court

has explained that our criminal responsibility statute is premised on the view that “in addition

to the primary criminal actor, aiders and abettors should be held accountable for the criminal

harms they intentionally facilitated or helped set in motion.” State v. Hatcher, 310 S.W.3d

788, 811 (Tenn. 2010) (quoting State v. Sherman, 266 S.W.3d 395, 408 (Tenn. 2008)).

While a person’s mere presence during the commission of a crime is not sufficient to confer

criminal liability, it is not necessary that one physically commit the underlying offense;

encouragement of the principal actor will establish such liability. Sherman, 266 S.W.3d at

408. A person convicted under a theory of criminal responsibility is considered a principle

The jury charge in this case is not included in the record. Therefore, we are unable to determine 4

which of these provisions the trial court utilized in its charge to the jury.

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offender as if they committed the underlying offense themselves. Hatcher, 310 S.W.3d at

811.

The Defendant contendsthat the State failed to presentsufficient evidence to establish

that the Defendant was criminally responsible for the attempted aggravated robbery at Ace’s

Market. He argues that the only proof placing him at the scene showed that he stayed in the

vehicle during the entirety of the incident. Moreover, because Moreland testified that the

original plan was for all four men to enter the store to rob it, the Defendant asserts that his

staying in the vehicle evidences his desire to withdraw from the robbery.

Victim Bell testified that as she was standing outside the store, Victim Thompson

exited the store with trash to place in the dumpster. She then heard an individual say to

Victim Thompson, “go get the money out of the register,” and she heard Victim Thompson

respond, “I’m not going to get s**t, you go get it yourself.” Victim Bell immediately heard

gunshots, and she ran into the store. Moreover, Moreland testified that when Harris exited

the vehicle, he approached Victim Thompson to confront him. In Moreland’s words, “when

the dude swung at [Harris], [Harris] shot” Victim Thompson. Thus, the evidence sufficiently

established that Harris attempted to commit an aggravated robbery by demanding money

from Victim Thompson and using a gun in the commission thereof. Moreover, in the process

of attempting to commit the robbery, the evidence sufficiently established that Harris shot

Victim Thompson.

Turning to whether there was sufficient evidence that the Defendant was criminally

responsible, Moreland testified at trial that the four men decided to rob Ace’s Market because

they needed some money. The Defendant drove the other three men to and from the store

in his own car. According to Moreland, Dowell initially exited the car alone and entered the

store, but the Defendant listened to Dowell’s interactions in the store by cell phone.

Although Moreland acknowledged that he was surprised when Harris jumped out of the car,

Moreland also admitted that all of the men were about to exit the car and Harris merely

jumped out earlier than Moreland anticipated.

In Tennessee, it is well-established that an accomplice’s uncorroborated testimony

cannot be the sole basis of a defendant’s conviction. State v. Bough, 152 S.W.3d 453, 464

(Tenn. 2004); see also State v. Bane, 57 S.W.3d 411, 419 (Tenn. 2001); Monts v. State, 379

S.W.2d 34, 43 (Tenn. 1964). Specifically,

There must be some fact testified to, entirely independent of the accomplice’s

testimony, which, taken by itself, leads to the inference, not only that a crime

has been committed, but also that the defendant is implicated in it; and this

independent corroborative testimony must also include some fact establishing

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the defendant’s identity. This corroborative evidence may be direct or entirely

circumstantial, and it need not be adequate, in and of itself, to support a

conviction; it is sufficient to meet the requirements of the rule if it fairly and

legitimately tends to connect the defendant with the commission of the crime

charged.

Bough, 152 S.W.3d at 464 (quoting Bane, 57 S.W.3d at 419).

In the case before us, Mosby, who lived close to Ace’s Market, testified that he

observed a silver Chevrolet Impala parked outside his house shortly before the shooting with

four black males sitting inside. Beech, who lived across the alley from Ace’s Market,

observed the silver Chevrolet Impala driving up the alleyway and picking up an individual.

Moreover, cell phone recordsindicated that the Defendant wassomewhere in close proximity

to Ace’s Market at the time of the shooting, and several witnesses identified the Defendant’s

car as the vehicle used in the commission of the shooting. Finally, Waters, the Defendant’s

then girlfriend, testified that the day after the shooting, the Defendant told her that he and the

three other men had gone to Ace’s Market the night before with the purpose of robbing it.

Therefore, the evidence presented at trial provided ample corroboration to Moreland’s

testimony that the Defendant “acted with the intent to promote or assist the commission” of

the attempted aggravated robbery. See Tenn. Code Ann. § 39-11-402(2).

To the extent the Defendant’s testimony contradicts the testimony of the State’s

witnesses, we will not disturb the jury’s implicit credibility findings. See State v. Sheffield,

676 S.W.2d 542, 547 (Tenn. 1984), superseded by statute on other grounds as stated in State

v. Barone, 852 S.W.2d 216, 218 (Tenn. 1993). The State presented ample evidence for the

jury to conclude that the Defendant, with the intent to rob Ace’s Market, aided Harris by

driving his vehicle to and from the scene as well as listening on his cell phone as Dowell

entered the store. Thus, there is sufficient evidence to establish that the Defendant was

criminally responsible for the attempted aggravated robbery at Ace’s Market.

We must also determine whether there was sufficient evidence to determine that

someone was killed in the commission of the above felony. Testimony established that

Victim Thompson died as a result of multiple gunshot wounds to the abdomen. Additionally,

according to Victim Bell, Victim Thompson sustained those fatal gunshot wounds

immediately after telling the man confronting him that he would not take money from the

store’s cash register. The State clearly presented sufficient evidence to establish that an

individual died in the commission of the attempted aggravated robbery. Therefore, the

evidence is sufficient to support the Defendant’s first degree felony murder conviction, and

he is entitled to no relief.

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CONCLUSION

For the reasons articulated above, we affirm the Defendant’s conviction for first

degree felony murder.

_________________________________

JEFFREY S. BIVINS, JUDGE

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