### FILED August 10, 199

9 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE MAY 1999 SESSION

STATE OF TENN ESSEE, ) ) Appellee, ) C.C.A. No. 03C01-9805-CR- 0 018 4 ) vs. ) Knox County ) ANDRE W LE E MO ATS, JR. , A.K .A, ) Hon. Ray L. Jenkins , Judge BUTCH MOATS ) ) Appellant. ) (First Degree Murder)

FOR THE APPE LLANT: FOR THE APPELLEE: M. JEFFREY WHITT (at trial and PAUL G. SUMM ERS Attorney at Law on appeal) Attorney General & Reporter 706 Walnut Street, Suite 902 Knoxville, TN 37902 MARVIN S. BLAIR, JR. Assistant Attorney Gener al RICHARD W. C LARK, III (a t trial) 425 Fifth Ave. N., 2d Floor Attorney at Law Nashville, TN 37243-0493 706 Walnut Street, Suite 903 Knoxville, TN 37902 WILLIAM E. DOSSETT District Attorney General FRED BRIGHT Assistant

District Attorney

General 400 Main, P.O. Box 1468 Knoxville, TN 37901-146 8

OPINION FILED:________________ AFFIRMED JAMES CURWOOD

WITT, JR., JUDGE1 Tenn. Code Ann. § 39-13-202(a)(1) (1990). 2 OPINION

The de fendant, Andrew Lee Moats, Jr., appeals from his jury conviction for first degree murder 1 in the Knox County

Crimi nal Court. The trial court imposed alife sentence in the Tennessee Depar tment of Correction. Inthis direct appeal,the defen dant cha llenge s the suf

fi cien cy of the evidence and contends there is inadeq uate proof of intent, deliberation and pre meditation to support his conviction fo r first degr ee murder. After a review of the record, the briefs of the parties, and the applicable law, w

e affirm.

The state presented the followi ng proof. Jeffery Mayes testified that he met the victim, Dallas Walker, at the victim’s hom e two days prior to the victim’s murder. Mayes

receiv ed over fi ve hun dred dollars from the victim to purchase marijuanafor the victim and Carl Neer. Mayes gave the defendant the money to purchase the mariju ana. Th e defendant and Mayes attempted to obtai n the marijuana, but they were unsuccessful.

Ric hard Breeden testifi ed that the day before the vic tim’s murder, June 8, 1990, he talked to the victim about the victim’s deal with the defendant. Breeden had recentlytraded his Jeep and an Intratec nine millimete r automatic pistol for the d efendant’s Lincoln Continental. Around dusk that evening, Breeden, the victim , Mar lene Walker, Chuck Walker and Bill Cox went to the defendant’s house i n Breeden’s Lincoln. The victim, the defendant and Mayes talked outside in front of the defendant’s home. Breeden was unabl e to hear this conversation, bu t he testified thatit was a very brief conversation and he saw no violent ge

stures. After this conversat ion, the five of them drove to Maynardville in search of the defendant’s3

Jeep. Four hundred dollars w as still owed on the

Lincoln for which Breeden traded the Jeep; therefore, Breeden was unable to obtain a clear title to the Lincoln. They did not locate the defendant’s Jeep, and they returned to Marlene Walker’s home.

Breeden testified that thefollowing morning, the victim and Carl N eer came to his house in the vic tim’s creme-colored For d Escort. The victim drove Neer and Breeden to the defendant’s home to inq uire about his money, but the defendant
was not at home. In the afternoon, Mayes call ed Breeden and told him that they had half the victim’s money, and they would obtain the other half by the end of the day. Mayes testified he told B reeden thatthe def endant h ad all the victim’s m oney. Breeden notified the victim of the situation. The victim returned to Breed en’s house with Carl Neer, and they drove to the defendant’s home again. The v ictim parked his car at a Mrs. Winner’s restaurant near the def endant’s home. Mayes exited the defendant’s home where he met Breeden near the street. Mayes told Breeden, w ho
was carrying a .25-c

aliber gun, it woul d take another 30-45 minutes to obtain the victim’s money. The v ic tim and Breeden left, but Breeden retu rned to the defendant’s house later to inquire about the victim’s money . Mayestestified that he
saw a nine millimeter gun laying in the passenger’s seat of Breeden’s Lincoln while he and Breeden were talking. Breeden testified that Maye s seemed very nervous during this meeting.

In addition to themeetings for which Bree den testified, Mayes

testified about a meeting in Marlene Walker’s driveway among Mayes, the vi ctim and the defendant, which

occurr ed on the

night befo re or the day of the victim’s murder. The victim asked M ayes about his money, and M ayes told the victi m that the defendant had the money. The victim and the defendant discuss ed something calmly, but Mayes w

as unable to hear the conver sation.4 Carl Neer testified that he arri ved at the victim’s ho use around 8:30 p.m. on the evening of the murder. Neer testified th at he was not t here in the morning as Breeden had testified. Neer testified that he, th e victim and Marlene Walker drove to Breeden’s house in the victim’s Ford Escort. The four of them went to the defendant’s house, Breeden knocked on the door, and Breeden returned t o the car saying no one was there . Th ey parked across the str eet from the defendant’s house at a fast food restaurant. Ne er described the meeting of Breeden and Mayes consistently with the testimony of Br eeden and Mayes. The victi m retu rned Breeden to his home and drov e Marlene Walker and Neer to the victim’s home.

Marlene Walker left the v ictim’s hom e , but returned ten to fifteen minutes later. Walker told the victim that the defenda nt h ad returned home and suggested that the victim should go to the defendant’s to retrieve h is money. The victim and Neer d rove to the defendant’s home around 11:00 p.m. on June 9, 1990. Because the victim did not see the defendant’s Jeep at the defendant’s home, he decided to park in a parking lot near the defendant’s home to watch and wait for the defendant. Neer testified that within five minutes a person exited the front door of the defend ant’s hom e. One to t wo mi nutes later, two more peopl e exited the defendant’s home. Neer saw a Jeep exit the defendant ’s home on a side street. The Jeep pulled in front of their car at an angle with the bright li ghts shining into the victim’s car. The bright lights remained on the victim and Neer as they lifted their hands to cover

their eyes. After ten to t welve seconds, the Jee p pulled door-to-door to the victim’s car. Acc

ording to Neer, the defendant, the driver in the Jeep, said the victim’s name and asked the victim if the v ictim had been looking for him. Neer did not hear the victim say anything. The defendant had a shotgun placed across his lap. The victim and Neer did n ot have guns in their h a nds at this tim e, but there
were two guns in the car which wer e visible. Neer

testified that the defendant shot5

the vi ctim in th e face within seconds or mi nutes of placing his Jeep door -to-door with the victim’s car. After bringing himself off the floorboard, Neer exited the vehicle with the .25-caliber gun and attempted to shoot at the Jeep. The gun would not discharge, and Neer th rew it in a nearby yard.
Mayeswas with the defendant w hen the victim was sh ot. Mayes testified that the defendant never talked about shooting someone that night. At first, Mayestestified that he saw the defendant p ut the sho tgun in the Jeep a few minutes prior

to the victim’s shooting at the defendant’s house. Mayes testified that the victim said something to the defen dant before the defendant shot him, but Mayescould nothear the conversation. Upon cross examination,Mayes testified that the shotgun was already in the J eep when he, the defendant and the def endant ’s girlfriend entered the Jeep. Additionally, Mayes confirmed his testimony

in a prior proceeding that the defendant kept the sho tgun in his Jeep most of the time . Mayes did not see the v

ictim w ith a gu n, but th e defe ndant s aid the victim had a gun. Mayes’s view into the victim’s car was partially b locked by the defendant because Maye s was in the back seat of the Jeep. After shooting the victim, the defenda nt quickl y drove away from the scene. The defendant or his girlfriend th rew the s hotgun out of the Jeep. The defen dant drove himself, his girlfriend and Mayes into Kentucky, but they returned a couple of days late r.

The defendant presented noproof. After hearing this ev idence, the jury found the defendant guilty of first degree murder.

The defendant contends the evidence is insuff icient to support his conviction. When an accused challenges the sufficiency of the evide nce , an appellate court’s standard of review is whether, after consideri ng the evidence in the light most favorable tothe prosecution, any rational trier of fact could have found the6

essential elements of the crime b eyond a re asonable doubt. Jackson v. Virginia , 443 U.S. 307, 324, 99 S. Ct. 2781, 2791-92 ( 1979); State v. Duncan , 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13( e). Thi s rule applie s to findings of guilt based upon direct evidence, cir cumstantial evidence, or a combination of direct and circumstantial evidenc

e. State v. Dykes , 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990).

In deter mini ng the sufficiency of the evi dence, this court should not reweigh or reevaluate the evi dence. State v. Ma tthews , 80 5 S.W.2d 77 6, 779 (Tenn. Crim. App. 1990). Questions concerning th e credibility of the w itnesses, the weight and value of the evi dence, as w ell as all factual issues raised by the evidence are resolved by the trier of fact. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Nor may this c ourt substitute its inferenc es for those drawn by the trier of fact from the evidence. Liakas v. State , 199 Tenn. 298, 305, 286 S.W.2 d 856, 859 (1956); Farmer v. State , 574 S.W.2d 49, 51 ( Tenn. Crim. App. 1978). On the contrary, this cour

t must afford the State of Tennessee the strong est legitimate view of the evidence contained in the record as well as all reasonable and legitimate inferences which may be draw n from the evidence. Cabbage , 571 S.W.2d at 835.

The statute governing this offense defined first degree murder as “an intentional, premeditated and deliberate ki lling of another.” Tenn. Code Ann. § 39- 13-202(a)(1) (1990) (amended 1995). “‘Int entional’ refers to a person who act s intentionally with respect to . . . a result of the conduct when it is the person’s consciousobjective or desire to . . . cause the result.” Tenn. Code Ann. § 39-11- 106(a)(18) (1990). Thestatutorydefinition of a deliberate act is one performed with
a cool purpose, while a premeditated act occurs after reflecti on and judgment. See Tenn. Code Ann . § 39-13- 201(b)(1 )-(2) (199 0) (amen ded 1995 ). Additio nally, premeditation has been describedas “a previously formed design or intent to ki ll.”7

State v. West , 844 S.W.2d 144, 147 (Tenn. 1992) (citations omitted). O ur supreme court distinguished in tent and prem editation fro m deliberation by saying “ even if intent. . . and premeditation . . . may be formed in an instant, deliberation requires
some period of reflection, during which the m ind is ‘free from the influence of excitement, or passion.’” State v. Br own , 836 S.W.2d 530, 540 (Tenn. 1992) (quoting Clarke v. State , 402 S.W.2d 863, 868 (Tenn. 1966)).

In State v. B rown , 836 S.W.2d 530, 543 (Tenn. 1992), our s upreme court stated, “The law in Tennessee has long recognized that once the homicide has been established, it is presumed to be murder i n the second degree.” In this case, the state must prove the element s of intent, premeditation and deliber ation beyond a re a sonable doubt before a murder is elevated to murde r in the first degree. Brown , 836 S.W.2d at 543 (citi ng Bailey v. State , 479 S.W.2d 829, 833 (Tenn. Crim. App. 1972))

. A jury may infer the el ements of premeditation and deliberation from the circumstances surroun ding the killing. See State v. Bland , 958 S.W.2d 651,660 (Tenn. 1997). However, there must be some evidence adduc ed at trial from which the j ury may infer premeditati on and deliberation. See State v. West , 844 S.W.2d 144, 1 48 (Tenn. 1 992). Facts from which a jury could infer premeditation and deliberation are use of a deadl y weap on u pon an unarmed victim, procurement of a weapon prior to the killing, decla rations of an intent tokill, preparationsmade prior to the killing for the murder itself or conce alment o f the
mur der, and the relationship betwee n the defendant and the victim from w hich a motive may be inferred. See id. at 4-5; Brown , 836 S.W.2d at 541-42 (citation s omitted).

The defend ant’s the ory at trial was that he shot the vi ctim in selfdefense. The jury rejected the defendant’s theory that he acted in self-defense. A finding that the def endan t did not act in self-defense does not equate to a finding8

of premeditation and deliberation

. See State v. West , 844 S.W.2d 144, 148 (Tenn. 1992).

Viewed in the light most favorable to the state, the evidence shows the victim and the defendant were invol ved in a drug deal. The victim gav e the defendant over five hundred dollars, but never received any drugs nor was his moneyreturned. The victim att empted numerous times to contact the defendant
ove r a two-day period pr ior to his murder. At one po int, the victim and the defendant talked, but there was no testimony regarding what was said during this conversation. However, it is clear that the defendant knew the victim w as a ttempting to contact him during thi s period of time. Neer testified tha t the victi m felt “ripped off” by the defendant when he had not received drugs or his mon ey. Breeden, Neer and Mayes testified regar ding all the firearms inv

olved in the various meetings. Neer testified that during the encounter with the defendant, there were two guns in the victim’s car. Mayes test ified that the defendant had a shotgun across his lap when he was talking to the v ictim.

When the defendant approached the victim’s car, he firs t parked directlyfacing the car with hi s bright lights s hining on the victim an d Neer for ten to twelve seconds. This time interv al gave the defendant adequate ti me to decide whataction he wa nted to ta ke next. He pulled his Jeep door-to-door with the victim’s car so that he and the victim were in close proximity and conversed with

the victim while holding a shotgun across his lap. Without any evidence of provocation
or threatening conduct by the victim, the defendant shot the v ictim in the face at near point blank range.

From the evidence introduced at trial, a r ational jury could find that the defendant intentiona l ly shot the victim from the evidence introduced at trial. See9

West , 844 S.W.2d at 148. Additionally, these facts create an inference that th e defen d ant reflected upon the course of action h e would take with a c lear head. There was a shotgun laying across t h e defendant’s lap when he placed his Jeep door-to-door

with the victim’ s car. Obviously , the defendant prepared f or a confrontation with the victim du ring the ten to twelve second interval when the Jeep’s bright lights were shining on the victim and Neer. Thedefendant’s Jeep was taller than the victim’s car which gave the defendant a tactical advantage. From his higher viewpoint, the defendant quickly lifted his

shotgun and shot the victim in the f a ce. Accordingly, a rational jury could find the defendant formed a design to kill and deliberately shot the v ictim.

In analyzing the suffici en cyof the proof of deliberation and premeditation, we have ex amined a number of Tennessee cases, includin g State
v. Donald Wallace , No. 01C01-9711-CC-00526 (Tenn. Crim. App., Nashv ille, Sept. 30, 1998) (no application for per m. app. filed) . In Donald Wallace , this court reversed Wallace’s fir st degre e murder conviction becaus e the state failed to establish that the killing of the victim waspremeditated. Wallace an d the victim, his girlfriend, appeared to be enjoying an amiable r elationship when they were with friends earlier in the day; how ever, later, the

defendant, accompanied by the vi ctim, erraticallydrove his vehicl e into a commercial parking lot and “proceededto slap the victim in the fac e and then shoot her in the presence of numerous witnesses.” Donald Wallace , slip op. at 10. This court said that the cond uct was “no t indicat ive of the ‘exercise of reflection and judgment.’” Id

. The court noted that there was an “absence of motive [and] . . . planning activity.” Id ., slip op. at 11.

On the other hand, in t he prese nt case, the state offered proof of motive and that the d efendant planned for the shooting by placing the shotgun
across his lap before maneuvering his vehicle to a position where he and the victim10

were in close proximity

. Significantly, the defendant stopped his vehicle and shined his headlights onto the vic tim for several seconds be fore pulling alongside the victim’s car. Based upon all the circumstances, the record reveals evidence which supports the jury’s inference that the elementsof first degree murder wer e present beyond a reasonable doubt.

Based upon the fact that one of the two pistols which were laying on the floorboard hump prior to the shooting was found in the floor beneath the victim’s body , the defendant argues that the victim had grabbed the weapon a nd that this circum stance supports his theory of sel f-defense. Quite possibly it does, but th e juryhas de clined t o attach any significanc e to this equivocal ph

ysical fact of the gun’s discovered posi

tion, and noone testified that the victi m reached for or used the weapon. As pointed out above, the appellate court may not reweig h nor reevaluatethe evidence. Factual issues are res olved by the trier of fact. Cabbage , 571 S.W.2d at 835. Furtherm ore, we ma y not subst itute an y inferen ce which we maydraw about the

final position of the

pistol fo r the inf erences d rawn by the j ury. Farmer , 574 S.W.2d at 51.

Based upon the foregoing reasons, the judgmentof the trial court is affirmed.

________________________________ JAMES CURWOOD WITT, JR., JUDGE

CONCUR:11

_______________________________ JOHN EVERETT WILLIAMS, JUDGE

_______________________________ ALAN E. GLENN, JUDGE