### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs February

4, 2003
STATE OF TENN ESSEE v. ASHLEY NESBITT
Direct Appeal from the Criminal Court for Shelby County No. 95-06195-200 John P. Colton, Jr., Judge

No. W2001-01663-CCA-R3-CD - Filed May 2, 2003

The Defend ant, Ash

l ey Nesbitt, was c onvicted by a jury of one count of first degree murde r, two counts of attempted first degree mu rd er , a nd on e c ou nt of ag gr av at ed ro bb er y. The Defendant now ap peals as of right, challenging the sufficiency

of the evidence. Finding the evidenc e insuff icien t to support one of the attempted murder convictions, we rever se and dismiss the Def en dant’s conviction for the attempted first degree murde r of Carl Tu rner. We affirm the remaining convictions.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed in Part; Reversed in Part; Rem

anded

D AV ID H. W ELLES , J., delivered the opinion of the court, in which J ERRY L. S MITH and N ORMA M C G EE O GLE , JJ., joined.

William C. Gosnell and Joshua B. Sp ickler, Memphis, T ennesse e, for the appell ant, Ashle y Nesbitt.

Paul G. Summers, Attorney Gene ral and Reporter; Braden H. Bouc ek, Assistant Attorney Genera l; William L. Gibbons, District Attorney General; and

Dan Woody and Tom Hoover , AssistantDistrict Attorneys Gene

ral, for the appellee, State of Tennessee

. OPINION

On the night of April 11-12, 1995, murder victim Kennet h Allen was visiting Carl Turner at Turner’s home, an apartment in Memphis, Tennessee. Also at the apartment we re Aaron Cobb, Dedrick Adams, Taurus Cooper, Demetrius Manning, and James Green. The men were play ing dice and dominoes in the living room/kitchen area of the apartment. Carl Turner’s wife, Barbar a Turner, was asle ep in one o f the bed rooms. According to Cobb, the men heard a knoc k at the fro nt door, and the Defendant and Ben Mills walked in. Cobb knew the Defendant and Mills because they

had gone to school together. The
new arrivals inquired

about drugs but were told that there weren’ t any. Cobb testified that Mills then-2-

got up from where he

was sitting and walked to the front door as if to leave. He then spun around, “came up with a g

un” and to ld the men

to “Drop it off.” Mill s sho t his gun onc e into the cei ling. The Defendant then raised his gun, stating “ You all heard him.” Some of the assembled men droppedtheir money on

the floor . Cobb also

dropped his watch on the floor. According to Cobb, the Defendant and Mills then “just started shooting.” Cobb testified that he saw both the Defendant and Mills firing their guns and described the guns as revolvers. He testifie d that thos e were

the only guns he saw and stated that he heard about twelve g unshots. After the shooting be g an, Cobb fled throu gh the back door of the apartment. Outside, he saw a g ray ca

r and an armed driver. Cobb testified that, earlier that day , he had seen Mills in that car.

After the shooti ng stopp ed, Cobb r eturned to the apartment and found Allen, who had been shotbut was still alive. He and others he lped Allen to the driveway to make it easier for the ambulance to pick him up. Allen subsequently died from a single gunshot wound which penetrated his lung.

Demetrius Manning arrived at Turner’s apartment with Cobb. He recognized the Defe ndant and Mills when they entere d the apar tment. The

Defend ant sat do wn next to him on the couch and Mills sat on the other couch. Mills and the Defendant made inquiries about drugs. When told there weren’t any, t he robbery c ommenced. Mills shot once in the air. Manning testified that the Defendant

“had the gun on [him

] then.” Whe

n Mills shot i n th e air, Ma nning ra n down the

hall. Su bs eq ue nt ly, he hear

d “a whol e lot of sh ots going off.” He ran in to a bedr oom and pr

epared to jump out a window but then realized that the shooting had stopped. He returned to the living room and found Allen lying on

the floor, shot. He then saw the Defendant coming back into the apartment throu gh the back door with his gun. Manning testified that the Defendant started shooting, and he ran to the bedroom and jumped out the window.

Taurus Cooper testified that he was at Carl Turner’s apar tmenton the night in question. He and some of his friends were there play ing dominoes and shooting dice. At about two o’clock in the morni ng, the Defendant and Mills came in. Both men sat down. After a few minutes, Mills got up and went toward the front door. As he neared the door, he “spinned around with a

gun and shot in the ceiling say

ing, ‘You all drop the money off.’” Cooper

dropped his money

on the flo or, and so didCobb. By

this time, th

e Defe ndant had also dra wn his gun. Cooper testified that both guns were revolve rs. Cooper stated, “After we dropped the money on the flo or, proba

bly a second or two - five
or six seconds later, they

went to shooting - started shooting.” He testified that both guns were being fired. Cobb ran out the bac k door , and Cooper hid behind the back door. When the shooting stopped, he and Ad ams left t he apar tment; eve

ry one else

except Allen had already left. Allen was lying on the floor , shot.

Carl Turner testified that the Defendant and Mills entered the apartment and inquired about drugs while he and

his visitors were playing

dice and dominoes. When told there weren’ t any drugs available, Mills walked towar d th e front door, “made a quick turn and said, ‘Ever ybody put your hands up. Drop it off.’” Mills pulled a pistol, and Turner noticed t hat the De

fendant also had a gun in his hand. Wh

en Mills fi

red the f irst shot, Turner

ran to a bedroom, jumped out a window and ran.-3-

Turner testi fied t hat th e only gu ns he saw i n his apartment that night were the ones fired by the Defend ant and Mi lls.

Barbara Tu rner te stified that she was asleep on the night in question. She stated that she didn’thear an

yth ing until her husba nd came in and woke her up, telling her to get in the closet. After she was awa

ke, she heard g

unshots. Her husband jumped out the bedroom window, and she got in the closet. After the gunfire cea sed, she lef t the closet and headed toward the bathroom. On her
wa y, she looked into the living room and saw a man ly ing on the floor

in a pool of blood. Another
man was stand

ing ove r him, picking

up money . She retr

eated in to the bathroom and closed the door. She waited a few minutes and then left the apartment.

Officer Robert G. Moore was on his way to the crime scene when he saw a car matching the description broadca st by

the dispa tcher in response to the initi al call to

the po lice a bout the sh ooti ng. He followed the car until it stopped. At that point, the driver got out and started walking aw ay. Officer Moore

told him to stop and lay down and told the other two people re maining in the car to stay inside. A few seconds later, other officer s arrived and took the driver and the occupants of the
car into custody. Officer Moore continue d to the cr

ime scene. Ther

e, he fou nd eleve n bullet imp acts in Carl Turner’s apartment, five on the re frigerator. He testified that it appea red that bullets had been fired from each end of the apar tment. He found no guns at the scene, and none of the weapons fired at the scene was ever r ecovered.

Officer Renwick Cowans assistedin taking the suspects into custody . He identified the Defendant

at trial as the person who had been ly ing on the ground at Officer Moore’s direction. He testified that Officer Moore pulled the suspects over about fifteen minutes after the original dispatch and that the su spects were about two blocks from the crime scene when they were pulled over. He recovered money

from the Defendant’s pocket.

The Defendant was indicted for the first degree murder of Allen, on a lternative counts of premeditated

murder a

nd felony murder. He was a

lso indicte d for the attempted first degree prem editatedmurders of Cobb and Turner and for the ag gravated robbery of Cobb. The jur y convictedthe Defendant

on all of these counts, and the trial court merged the two murder convictions into one conviction for first degree murder. The only issue raised on this appea l is the sufficiency of the evidence.

Tennessee Ruleof

Appellate Procedure 13(e) presc ribes that “[f]indings of guilt in criminal actions whether by the

trial court or

jury shall be set aside if the evidence is insufficient to support the findings by the

trier of fact of guilt bey

ond a reasonable doubt.” Evidence is sufficient if, after reviewing 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. See Jackson v. V irginia , 443 U.S. 307, 3 19 (1979) ; Statev. Smith , 24 S.W.3d 274, 278 (Tenn. 2000). In a ddition, because conviction by a trier of

fact destroy s the presumption of inno cence and i mposes a presumption of guilt, a convicted criminal defendant bears the bur den of showing that the e

vidence was insuf ficient. See McBee

v. State , 372 S.W.2d 1 73, 176 (T enn. 1963 ); see also Stat e v. Buggs , 995 S.W.2d 102,1 Carl Turne r admitt ed during c ross- examination th at he ha d been told by a man nick named “Nausea” t hat Dedrick Adams had had a gun t hat night . “Nausea ” did not testi fy, however, and Turner maint ained that he did not

see (con tinued ...)
-4- 105-06 (Tenn. 1999); State v . Evans , 838 S.W.2d 185, 191 (Tenn. 1992); State v. Tu ggle , 639 S.W.2d 913, 914 (Tenn. 1982).

In its review of the e

vidence , an appe

llate cou rt must af ford the State “the strong est leg itimate view of the evidence a s well as a ll reason able and

legit imate inf erences that may

be drawn therefrom.” Tuggl e , 639 S.W.2d at 914; see also Smith , 24 S.W.3d at 279. The court may not “re

weigh or re-evaluate the evidence” in the record below. Evans , 838 S.W.2d at 191; see also Buggs , 995 S.W.2d at 105. Likewise, sho uld the reviewing court find particular conf licts in the trial testimo ny, th e court must resolve them in favor of the jury verdict or trial court judgment. See Tuggl e , 639 S .W.2 d at 91 4. All quest ions invo lvin g the cre dibility of witnesses, the we ight and value to be given the evidenc e, and a ll factua l issues ar e resolv ed by

the trier of fact , not the a

ppellate courts. See State v. Mo

rris , 24 S.W.3d 788, 7 95 (Tenn . 2000); State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987).

We find the evidencesufficient to support both alternative counts of first degree murde r. At the time these crimes were committed, first degree premeditat ed murder wa s def ined as “[a ]n intentiona

l, p remeditated and deliberate killing of another.” Tenn. Code A nn. § 39-13-202(a)(1) (1991). An intenti onal killin g is comm itted whe n it is the a

ccuse d’s co nscious ob

jective t o cause the death. See id. § 39-11-302(a) (1991). A delibe r ate killing is one done with a “cool purpose.” See id. § 39-13-201(b)(1) (1991) . Finally, a pre meditated killing is “one done after the exercise of reflection and judgment.” Id. § 39-13-201(b)(2) (1991).
Our supreme court has stated, The elementsof preme ditation and deliberation are questions of fact to be resolvedby t he ju ry. These eleme n ts may be established by proof of the circumstances surrounding the killing. . . . [T]hereare sev eral fa ctors whi ch tend to support the existence of the se eleme nts including: the use of a deadly weapon upon an unarmedvictim; the particular cruelty of the

killing; declarations by

the defendant of an intent to kill; evi dence o f procur ement of a weapo n; p rep arations before the kill ing for concea lment of the crime ; and c almne ss im media tely after the ki llin g.
State v. Carruthers , 35 S.W.3d 516, 558 (Tenn. 2000) (citations omitted).
Here, the Defe

ndant and his accompl

ice ente red Carl Turner’ s apartme

nt armed withpistols. After a short time of

visiting, the Defendant and Mills drew their weapons and demanded that the other men “throw it down.” Mills fired a warning shot into the ceiling. After some of the victim s placed their money on the

floor, the Defendant and Mills opened fire. The victims who testified at trial stat ed that they saw no g uns other than the ones held by the Defendant and Mills; in o the r words, the Defendant opened fire upon unarmed victims, in the absence of any provocation. 1 The1 (.. .cont inu ed) Ad ams w ith a gun th at night.

2 Although the jury convi cted the Defenda nt of both counts of fi rst degree murder, the t rial court merged the verd icts and entered a single judgment of f irst degree murder. Howeve r, the trial court did not specifical ly note t he merger on the judg men t form. See State v. Redonna T. Hanna , No. 02C01-9806-CR-00165, 1999 W L 689414, at *8 (Tenn. Crim. App., Jackson, Sept. 7, 1999). Acc ord ingly, we m odify the judgme nt of fi rst degre e murde r ent ered by the trial cou rt to show that the Defendant’ s convictions for pre med itated m urde r and felony m urde r were merg ed into

one judg men t.
-5- Defendant

procured his gun prior

to entering the apartment, and a “g etaway ” vehicle was waiting for him behind the

apartme nt. The pr

oof at trial established that the Defendant change d clothes after leaving the apartment. The assailants also disposed of their weapons after leaving the scene of the crime. The Def

endant a nd Mills fir

ed at lea st eleve

n shots in the crowd

ed apar tment. One

of th e bullets struck a

nd killed K

enneth A llen. Thisproof is sufficient for the jury to have properly dra

wn the conclusion th at th e D ef en da nt op en ed fi re on hi s u na rm ed vi ct im s i nt en ti on al ly, de li be ra te ly, and withpremeditation. Accordingly , the proof is sufficient to support the Defendant’s conviction for the first degre e preme ditated mu

rder of Kenneth Allen, and this issue

is theref ore witho ut merit.

The jury also convicted

the Defendant of the first degree felony murde r of Kenneth Allen. In April 1995, first degree felony murder was defined as the “reckless killing of a nother committed in the perpetration of or attempt to perpetrate any first degree murder, arson, rape, ro bb er y, b ur gl ar y, theft, kidnapping or aircraft piracy .” Tenn. Code Ann. § 39-13-202(a)(2) (1991). The proof a t trial established that the Defend ant opened fire up on his vict ims in conjunction with robbing them. Allen
was killed as a result. This proof is sufficient to support the Defendant’s conviction of first deg ree felony murder

. 2

The Defendant was also convicted of attempting to commit the first degree premeditated murder of Aaron Cobb. The same proof which establishes the Defend ant’s guilt of the

first degree pr emeditated murder of Kenneth Allen also establishes his guilt of the attempted first deg ree premeditated

mu rd er of

Aa ro n C ob b. Th e o nl y di ff er en ce in th e r el ev an t p ro of is th at , f or tu na te ly,
none of the bullets fired by the Defendant and Mills struck Aaron C o bb. Nevertheless, Mr. Cobb
was in the line of fire when the Defendant and Mills began shooting, and the evidence is therefore sufficient to support the jury’s ve rdict on this charge.

We are forced to reach a different conclusion, however, with respect to the Defendant’s conviction of the attempted first degree premedita te d murder of Carl Turner. The proof at trial established that, prio

r to opening fire

on the vic tims, the D efenda nt’s acc omplice f

ired a sh ot into the ceiling. At that point, Carl Turner ran from the room, woke his wife, and jumped fr om a bedroom window. By the time the D efendant and Mills opened fire at the victims, Carl Turner had left the room and was no longer in dange r of being shot by the

perpetr ators. Ac cording ly, we must3 We recognize that a panel of this Court, of which the undersi gned judge was a m emb er, ad dress ed this same

issue in Mil ls’ dire ct a ppeal and f ound t he evi dence s uff ici ent to s upp ort this p arti cular c onvic tion. See State v. Ben M ills , No. W 1999-01 175-CC A-R3-CD , 2002 W L 9252 60 (Tenn. Crim. App., Jacks on, May 3, 2002). However, on the basis o f our re view o f the reco rd no w be fore this C ourt, we must d isagree with the p rior p anel o n this issue.

-6- revers e the Defendant’s conviction for the attempted first deg ree premeditated murder of C arl Turner, and dismiss that charge. 3

With respect to the Defendant’s conviction of the ag gravated robbery of Aaron Cobb, we find the evidenc e suffic ient. Robb ery is definedas 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). The robbery is aggravated

when it is accomplished with a deadly weapon. See id. § 39-13-402(a)(1). The proof established that the Defendant and Mills drew their handguns on a crowd of people, including Aaron Cobb, and demanded that they “throw

it down,” meaning

their mone

y. C obb testif

ied that, in response to the Defendant and Mills’ demands, he threw his money on the floor. When the Defendant

was taken into custody a

few minutes later, he had cash in his pocket. This evidence was sufficient from whic

h the jury could properly c onclude that the Defendant committed the aggravated robbery of Aaro n Cobb. Ac cording ly, this issue i s without me rit.

The Defendant’s conviction of the att empted first degree premeditated mur der of Carl Turner is revers ed and the

charg e is dismiss ed. I

n all othe r respects, we affirm th e judgment of the trial court. Th is case is remanded solely f

or the purpose of modify

ing the judgments to reflect that the convictions for premeditated first degree murder and felony -murder are merged into one conviction for premeditated first degree murder.

___________________________________

DAVID H. WEL

LES, JUDGE