IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs February 4, 2003

STATE OF TENNESSEE 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 Defendant, Ashley Nesbitt, was convicted by a jury of one count of first degree murder, two

counts of attempted first degree murder, and one count of aggravated robbery. The Defendant now

appeals as of right, challenging the sufficiency of the evidence. Finding the evidence insufficient

to support one of the attempted murder convictions, we reverse and dismiss the Defendant’s

conviction for the attempted first degree murder of Carl Turner. 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; Remanded

DAVID H. WELLES, J., delivered the opinion of the court, in which JERRY L. SMITH and NORMA

MCGEE OGLE, JJ., joined.

William C. Gosnell and Joshua B. Spickler, Memphis, Tennessee, for the appellant, Ashley Nesbitt.

Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General;

William L. Gibbons, District Attorney General; and Dan Woody and Tom Hoover, Assistant District

Attorneys General, for the appellee, State of Tennessee.

OPINION

On the night of April 11-12, 1995, murder victim Kenneth Allen was visiting Carl Turner

at Turner’s home, an apartment in Memphis, Tennessee. Also at the apartment were Aaron Cobb,

Dedrick Adams, Taurus Cooper, Demetrius Manning, and James Green. The men were playing dice

and dominoes in the living room/kitchen area of the apartment. Carl Turner’s wife, Barbara Turner,

was asleep in one of the bedrooms.

According to Cobb, the men heard a knock at the front 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
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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 gun” and told the men to “Drop it off.” Mills shot his gun once into the ceiling.

The Defendant then raised his gun, stating “You all heard him.” Some of the assembled men

dropped their 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 testified that those were the only

guns he saw and stated that he heard about twelve gunshots. After the shooting began, Cobb fled

through the back door of the apartment. Outside, he saw a gray car and an armed driver. Cobb

testified that, earlier that day, he had seen Mills in that car.

After the shooting stopped, Cobb returned to the apartment and found Allen, who had been

shot but was still alive. He and others helped 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 Defendant

and Mills when they entered the apartment. The Defendant sat down 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, the robbery commenced. Mills shot once in the air. Manning testified that the

Defendant “had the gun on [him] then.” When Mills shot in the air, Manning ran down the hall.

Subsequently, he heard “a whole lot of shots going off.” He ran into a bedroom and prepared 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

through 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 apartment on the night in question. He

and some of his friends were there playing dominoes and shooting dice. At about two o’clock in the

morning, 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 saying, ‘You all drop the money off.’” Cooper dropped his money on the floor, and so

did Cobb. By this time, the Defendant had also drawn his gun. Cooper testified that both guns were

revolvers. Cooper stated, “After we dropped the money on the floor, probably 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 back door, and Cooper hid behind the back door. When the shooting

stopped, he and Adams left the apartment; everyone 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 toward the front door, “made a quick turn and said, ‘Everybody put your

hands up. Drop it off.’” Mills pulled a pistol, and Turner noticed that the Defendant also had a gun

in his hand. When Mills fired the first shot, Turner ran to a bedroom, jumped out a window and ran.
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Turner testified that the only guns he saw in his apartment that night were the ones fired by the

Defendant and Mills.

 

Barbara Turner testified that she was asleep on the night in question. She stated that she

didn’t hear anything until her husband came in and woke her up, telling her to get in the closet. After

she was awake, she heard gunshots. Her husband jumped out the bedroom window, and she got in

the closet. After the gunfire ceased, she left the closet and headed toward the bathroom. On her

way, she looked into the living room and saw a man lying on the floor in a pool of blood. Another

man was standing over him, picking up money. She retreated into 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 broadcast by the dispatcher in response to the initial call to the police about the shooting.

He followed the car until it stopped. At that point, the driver got out and started walking away.

Officer Moore told him to stop and lay down and told the other two people remaining in the car to

stay inside. A few seconds later, other officers arrived and took the driver and the occupants of the

car into custody. Officer Moore continued to the crime scene. There, he found eleven bullet impacts

in Carl Turner’s apartment, five on the refrigerator. He testified that it appeared that bullets had

been fired from each end of the apartment. He found no guns at the scene, and none of the weapons

fired at the scene was ever recovered.

Officer Renwick Cowans assisted in taking the suspects into custody. He identified the

Defendant at trial as the person who had been lying 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 suspects 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 alternative counts of

premeditated murder and felony murder. He was also indicted for the attempted first degree

premeditated murders of Cobb and Turner and for the aggravated robbery of Cobb. The jury

convicted the 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 appeal is the sufficiency

of the evidence.

Tennessee Rule of Appellate Procedure 13(e) prescribes 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 beyond 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. Virginia,

443 U.S. 307, 319 (1979); State v. Smith, 24 S.W.3d 274, 278 (Tenn. 2000). In addition, because

conviction by a trier of fact destroys the presumption of innocence and imposes a presumption of

guilt, a convicted criminal defendant bears the burden of showing that the evidence was insufficient.

See McBee v. State, 372 S.W.2d 173, 176 (Tenn. 1963); see also State v. Buggs, 995 S.W.2d 102,
1

Carl Turner admitted during cross-examination that he had been told by a man nicknamed “Nausea” that

Dedrick Adams had had a gun that night. “Nausea” did not testify, however, and Turner maintained that he did not see

(continued...)

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105-06 (Tenn. 1999); State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992); State v. Tuggle, 639

S.W.2d 913, 914 (Tenn. 1982).

In its review of the evidence, an appellate court must afford the State “the strongest legitimate

view of the evidence as well as all reasonable and legitimate inferences that may be drawn

therefrom.” Tuggle, 639 S.W.2d at 914; see also Smith, 24 S.W.3d at 279. The court may not “reweigh or re-evaluate the evidence” in the record below. Evans, 838 S.W.2d at 191; see alsoBuggs,

995 S.W.2d at 105. Likewise, should the reviewing court find particular conflicts in the trial

testimony, the court must resolve them in favor of the jury verdict or trial court judgment. See

Tuggle, 639 S.W.2d at 914. All questions involving the credibility of witnesses, the weight and

value to be given the evidence, and all factual issues are resolved by the trier of fact, not the appellate

courts. See State v. Morris, 24 S.W.3d 788, 795 (Tenn. 2000); State v. Pappas, 754 S.W.2d 620,

623 (Tenn. Crim. App. 1987).

We find the evidence sufficient to support both alternative counts of first degree murder. At

the time these crimes were committed, first degree premeditated murder was defined as “[a]n

intentional, premeditated and deliberate killing of another.” Tenn. Code Ann. § 39-13-202(a)(1)

(1991). An intentional killing is committed when it is the accused’s conscious objective to cause

the death. See id. § 39-11-302(a) (1991). A deliberate killing is one done with a “cool purpose.”

See id. § 39-13-201(b)(1) (1991). Finally, a premeditated killing is “one done after the exercise of

reflection and judgment.” Id. § 39-13-201(b)(2) (1991). 

Our supreme court has stated, 

The elements of premeditation and deliberation are questions of fact to be

resolved by the jury. These elements may be established by proof of the

circumstances surrounding the killing. . . . [T]here are several factors which tend to

support the existence of these elements including: the use of a deadly weapon upon

an unarmed victim; the particular cruelty of the killing; declarations by the defendant

of an intent to kill; evidence of procurement of a weapon; preparations before the

killing for concealment of the crime; and calmness immediately after the killing.

State v. Carruthers, 35 S.W.3d 516, 558 (Tenn. 2000) (citations omitted).

Here, the Defendant and his accomplice entered Carl Turner’s apartment armed with pistols.

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 victims

placed their money on the floor, the Defendant and Mills opened fire. The victims who testified at

trial stated that they saw no guns other than the ones held by the Defendant and Mills; in other

words, the Defendant opened fire upon unarmed victims, in the absence of any provocation.1 The
1

(...continued)

Adams with a gun that night.

2

Although the jury convicted the Defendant of both counts of first degree murder, the trial court merged the

verdicts and entered a single judgment of first degree murder. However, the trial court did not specifically note the

merger on the judgment form. See State v. Redonna T. Hanna, No. 02C01-9806-CR-00165, 1999 WL 689414, at *8

(Tenn. Crim. App., Jackson, Sept. 7, 1999). Accordingly, we modify the judgment of first degree murder entered by

the trial court to show that the Defendant’s convictions for premeditated murder and felony murder were merged into

one judgment.

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Defendant procured his gun prior to entering the apartment, and a “getaway” vehicle was waiting for

him behind the apartment. The proof at trial established that the Defendant changed clothes after

leaving the apartment. The assailants also disposed of their weapons after leaving the scene of the

crime. The Defendant and Mills fired at least eleven shots in the crowded apartment. One of the

bullets struck and killed Kenneth Allen. This proof is sufficient for the jury to have properly drawn

the conclusion that the Defendant opened fire on his unarmed victims intentionally, deliberately, and

with premeditation. Accordingly, the proof is sufficient to support the Defendant’s conviction for

the first degree premeditated murder of Kenneth Allen, and this issue is therefore without merit.

The jury also convicted the Defendant of the first degree felony murder of Kenneth Allen.

In April 1995, first degree felony murder was defined as the “reckless killing of another committed

in the perpetration of or attempt to perpetrate any first degree murder, arson, rape, robbery, burglary,

theft, kidnapping or aircraft piracy.” Tenn. Code Ann. § 39-13-202(a)(2) (1991). The proof at trial

established that the Defendant opened fire upon his victims in conjunction with robbing them. Allen

was killed as a result. This proof is sufficient to support the Defendant’s conviction of first degree

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 Defendant’s guilt of the first degree

premeditated murder of Kenneth Allen also establishes his guilt of the attempted first degree

premeditated murder of Aaron Cobb. The only difference in the relevant proof is that, fortunately,

none of the bullets fired by the Defendant and Mills struck Aaron Cobb. 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 verdict on this charge.

We are forced to reach a different conclusion, however, with respect to the Defendant’s

conviction of the attempted first degree premeditated murder of Carl Turner. The proof at trial

established that, prior to opening fire on the victims, the Defendant’s accomplice fired a shot into

the ceiling. At that point, Carl Turner ran from the room, woke his wife, and jumped from a

bedroom window. By the time the Defendant and Mills opened fire at the victims, Carl Turner had

left the room and was no longer in danger of being shot by the perpetrators. Accordingly, we must
3We recognize that a panel of this Court, of which the undersigned judge was a member, addressed this same

issue in Mills’ direct appeal and found the evidence sufficient to support this particular conviction. See State v. Ben

Mills, No. W1999-01175-CCA-R3-CD, 2002 WL 925260 (Tenn. Crim. App., Jackson, May 3, 2002). However, on the

basis of our review of the record now before this Court, we must disagree with the prior panel on this issue. 

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reverse the Defendant’s conviction for the attempted first degree premeditated murder of Carl

Turner, and dismiss that charge.3

With respect to the Defendant’s conviction of the aggravated robbery of Aaron Cobb, we find

the evidence sufficient. 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). 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 money. Cobb testified 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 which the jury could properly conclude that the Defendant committed the aggravated

robbery of Aaron Cobb. Accordingly, this issue is without merit.

The Defendant’s conviction of the attempted first degree premeditated murder of Carl Turner

is reversed and the charge is dismissed. In all other respects, we affirm the judgment of the trial

court. This case is remanded solely for the purpose of modifying 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. WELLES, JUDGE