### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs D ec em be r 12, 200 6

STA TE OF TEN NES SEE v. JIM C ORB ETT C ORD ER

Appeal f romthe Cr im inal Cou rt for White County No. CR001920 Leon C. Burns, Jr., Judge

No. M2005- 02860-CCA -R3-C D - F iled Fe bruary 26, 2007

The de fenda nt, J im Corbett Corder, wa s convicted of attempted volunt ary

manslaug hter a nd
sentenc ed to four y ear s in prison. On appea l, the defe ndant ar g ues that the evidence is not sufficient to support his conviction. W e conc lude that the evide nce is suff icient and aff

irm the judg ment of the tr ia l c ou rt

.

Te nn. R . A pp. P . 3 App e al a s o f Rig ht ; J udgm e nt of t he Ci r c uit

Co ur t A ffirm e d.

D. K EL L Y T HOMAS , J R ., J
., delivere d the opi nion of t he court, in which N OR MA M C G EE O G LE and A L AN E. G L EN N , J J ., joined.

B i l l y K

. T o l l i s o n , M c M i n n v i l l e , T e n n e s s e e ( a t m o t i o n f o r n e w t r i a l a n d o n ap p e a l ) ; J o e L

. F i n l e y, J r. (a t trial) for the appellant, Jim Corbett Corder

Rob er t E. Cooper, Jr., Attorney Gene ral a nd Reporter ; Cameron L . Hy der, A ssistant Attorney Gene ral; Will iam Gi bson, District Attorney Gene ral; B eth Will is, Assistant Dist rict Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

I n September 2004 the defe ndant, J im Corbett Corder, wa s indicted by a White Countyg rand jury on one count of

attempted sec ond deg ree murder. Following a jury trial in J anuary

2005, the defe ndant was f

ound g uiltyof the lesse r-include d offe nse of attempted volunt ary manslaug hter. The de fe nd a nt f

ile d a mot ion fo r a ju dgment

of a c qu itt a l a ndmot ion fo r n e w t ri a l in Ma rc h 2 00 5; this motion was denied, and the defe ndant was sentenc ed to f our y ear s in prison as a Rang e I standard of fe nd e r. Th e de fe nd a nt a pp e a ls h is con vi cti on, a

rg uin g that th e e vid e nc e pr e se nte d a t tr ia l is ins uf fi c ie nt t o s up po rt

a jury ve rd ic t of g uil ty on the a tte mpt e d v olu nta ry ma ns laug hte r c ha

rg e . T his
court c oncludes that the e vidence was suff icient to support a g uilty verdic t a nd aff irms the judgme nt of the tr ia l c ou rt

.-2- FACTS

On J uly 25, 2004, Thomas Christopher “T .C.” Parks wa s watching television with a frie nd, Kenne th Kirby , at a White Countyhouse that Parks shar ed with his pare nts. Parks testified t hat he

saw a light blue f

lat -bed truc k pass by

his house. A fe w minutes later, Par ks hear d g unshots and went outside to investigate. He disc overe d a bull et hol e in the bed of Kirby ’s pickup truc k, which was parked outsi de the house. Parks t estified that he the n drove his own pickup tr uck to the end of the road, wher e he blocked the road by placing his truck across the road, with the driver’s side f acing the roa d. Parks stated he did this so t he per son who shot at his parents’ house cou l d not esca pe. Parks, who claimed that he did not have a g un with him when he lef t his parents’ house , then exited the vehicle and hid behind the r ear whee l on the passeng er’ s side. Parks claimed that he then stood and saw a man y elling profa nities at him and pointing a g un in Parks’ g ener al direc tion. Parks then testified that he sa t back down be hind the rea r passe ng er w heel; shortly there afte r, he he ard a

shot ri ng ou t a ndthe n f

e lt a pa in i n h is low e r g ro in. Re a lizin g that he ha d b e e n s ho t, P ark s th e n g ot i n hi s v eh i cl e an d drove ba ck to his pare nts’ house. I n the proc ess, Parks passe d the g unman, who Parks claims fire d additional shots at the truck, hitting it once . After arriving a t his parents’ house
, Parks’ pa rents ca lled 911, and Parks wa s transported to a local hospital.

At trial, both Parks and his fa ther testified tha t nobody from the Par

ks famil y had eve r interac ted with the def

endant pr ior to the incident of July25, 2004, and that neither fathe r nor son even kne w t he defenda nt’s name prior to the day in question. Parks’ father and Kirby both testified that they hear d the initial gunshots and sa w the bullet holes in Kirby ’s ca r. The two me n also ag ree d that T.C. Parks di d not take a g un with him when he we nt to block the end of the road. Like his son, Parks’ father testified tha t he did not know the identity of the shooter

at the time of the inc ident.

The de fenda nt’s testimonyat trial portra y ed a dif fer ent picture of the intera ction betwee n Parks and the defe ndant, both be fore and during the day in question. The def endant noted tha t on

one occa sion shortly befor e the incide nt leading to his arre st, the defe ndant invited a y oung man and his girlf riend to the de fenda nt’s campe r trailer for a cookout. The de fenda nt stated that the y oung

woman wa s using the r estroom in the bu s h es wh en Parks drove by and, upon see ing the woman, ba c ke d his truc k up se ve ra l tim e s, sp inn ing the tir e s. Se e ing thi s, the de fe nd a nt y ell ed at P ark s, tel l i n g him to leave. Shortly there afte r, the de fenda nt noticed some building ma terials, including some cinder

blocks and some 2x4s, were missing fro m the y ard outside his ca mper tra iler. The defe ndant noticed some 2x 4s and cinde r blocks outside the Parks r esidenc e; the def endant testified that he wa s unable to posit i v el y i d en t i fythe mater ials as his, but he neve rtheless be lieved the materia ls were his. The def endant we nt to the Parks residenc e to co n fr o n t T

. C . Parks, who the defe ndant claimed c ame outside the house with a shotg un, pointed it at the defe ndant, and told the defe ndant that he ( Parks) c ould do any thing he wanted to do.

The de fenda nt testified that on the day of the incide nt, he did not g o near the Parks re sidence and he did not shoot at it. Rather, the defe ndant claimed tha t he and a friend, D avid Stonebrea

ker,

wer e sh o o ti n g g u n s a t s o me b e e r c a n s o u ts id e th e d e f e n d a n t’ s tr a il e r

. Wh il e th e tw o me n wer e outside, the defe ndant claimed he hea rd some ac tivityfrom the r oad and w ent to the roa d to see what-3-

wa s h app e nin g . T he de fe nd a nt t e sti fi e d h e sa w a truc k p ull across the ro a d a fe w f e e t f ro m hi s drivewa y , and that a ma n g ot out of the truck with a shotgun. The de fenda nt then stated the g unman g ot b a c k in his truc k, mov e d it a sli g ht d ist a nc e , th e n g ot o ut o f the truc k a ndc ro uc he d b e hin d it

. Af te r w itn e ssi ng the g un ma n d o th is a c t se ve ra l ti me s, the de fe nd a nt wal ked to the e ndof his drivewa y and aske d the man “w hat the hell ar e y ou doing?” The defenda nt stated t hat the g unman then pointed his g un at the defe ndant and said “we have g ot y ou now.” The defe ndant stated that the
gu n m an then laug hed at the de fenda nt. The def endant sa id he was not c ompletely sure of the
g unman’s identity

at the time of the inc ident, but he b el i ev ed t h e g unman was T.C. Parks. The defe ndant then testified that the g unman cr awled ba ck a n d fo rt h sever al times behind the truck,

occa s i o n al l y s t anding and pointing his weapon at the defe ndant. Afte r this activity went on for

a while, the defe ndant claimed he asked Stonebreaker for a g un, which Stonebreaker g av e t o t he defe n d a n t, a n d th e d e f

e n d a n t s h o t u n d e r th e tr

u c k in a n a tt e mp t to s c ar e o f f th e g unman. The defe ndant then cla imed he saw the g unman put his gun in the back of his truc k and drive off. The de fe nd a nt sta te d he sh ot twi c e mor e a t th e truc k a ft e r the dr ive r atte mpt e d to ru n o ve r the de fe nd a nt.

J ack B ulakowski, an off

icer with the Wh ite CountySheriff’ s Depa rtment, testified that he was dispatche d to the Parks home to inve stiga te the shooting the eve ning it occ urre d. Bulakowski testified that Parks’ f

ather identified the de fenda nt as the shooter an d gav e a de scription of the d ef en d an t ’s b l u e a n d s i l v erfl at -b ed t ru ck

. As Bu l ak o ws k i d ro v e t h ro u gh t o wn l at ert h at ev en i n g, he noticed a

truck matc hing the description of the defe ndant’s vehicle. At that point, Bulakowski followed the truck to a restaur ant and c alled for backup. A fter the truck a nd the offic er e ntere d the parking lot, the office r ac tivated his blue lights. The office r then place d handcuf fs on Stonebrea

ker (the drive r), a nd the passenge r, who Bulakowski knew from prior e ncounter s as the def endant. The defe ndant pointed the off

icer to a toolbox , in which B ulakowski found a pistol and a .22 c aliber r ifle.

At that point, Detective Chris I sham with the Whit e County Sheriff’ s Depa rtment arrived at the re staurant. Earlier in the evening, I sham had int ervie wed Parks at the hospital and conduc ted a
g unshot residue test on his hands. He also had sea rche d Parks’ truc k but found no wea pons. At the
restaur ant, I sham identified himself to t he defenda nt, to which the defenda nt (who I sham believe d was intox icated) replied, “ I shot the mother-f

—er.” I sham then M irandized the defendant a nd asked him to remain silent. I sham also testified that he per formed g unshot residue tests on Stonebrea ker

a ndthe de fe nd a nt. Th e se g un sh ot re sid ue kit s, a lon g wi th the on e c on du c te d o n Pa rk s, we re se nt t o the Te nn e sse e B ur e a u o f Inv e sti g a tio n ( TB I ) f or fu rthe r a na ly sis

.

Jame s D a vis wi th the TB I te sti fi e d tha t he co nd uc te d tes ts on the thr e e g un sh ot r e sid ue kit s that I sham had sent to the TBI

. Parks’ test was inconclusive, but the tests on the other two men w ere both positi ve for

g unshot residue.

A N A LY S IS

An appe llate court’s standard of revie w when the defe ndant questions the suffic iency of the evidenc e o n ap p e a l is “ w h e th e r , a f te r v ie w in g th e e v id e n c e in th e li g h t mo s t f a v o r ab le to the
prosec ution, any rational trier of fa ct could have found the e ssential elements of the crime be y ond-4-

a re asonable doubt.” J ac k s on v. Virg inia, 443 U.S. 307, 319 (1979)

. T h e c o u rt d o es n o tre we i gh the evidenc e; ra ther, it presume s that the jury has resolved all conflicts in the testimonyand dra wn all rea sonable infere nces from the evidenc e in f avor of the state. See State v. Sheff ield, 676 S.W .2d 542, 547 (Tenn. 1984) ; State v. Cabbag e, 571 S.W.2d 832, 835 (Tenn. 1978)

. Questions reg arding wit n es s cr edibility , conflicts in testimony , and the we ight a nd value to be g iven to evidenc e we re resolved by

the jury . See S t at e v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). A g uiltyverdic t

remove s the presumption of innoce nce a nd repla ces it with a pre sumption of guilt, and on appe al the de fe nd a nt ha s the bu rd e n of illu str a tin g wh y the e vid e nc e is i ns uf

fi c ie nt t o s up po rt

the jury ’s ve rd ic t. I d. ; State v. Tug g le, 639 S.W.2d 913, 914 (Tenn. 1982).

Attempted voluntary

manslaug hter re quires the a ttempted intentional or knowing killing of

a no the r “ in a

state of pa ssion pr od uc e d b y

a de qu a te pr ov oc a tio n s uf fi c ie nt t o le a d a

re a so na ble person to ac t in an irrational manne r.” Te nn. Code Ann. §§ 39-12- 101; 3 9 -13-211(a) ( 2003). Reg arding the requisite mental states, a person acts intentionally “whe n it is the per son’s conscious ob je c tiv e or de sir e to e ng a g e in the c on du c t or c a us e the re su lt, ” whi le a pers on a c ts kno wi ng ly “whe n the per son is awar e of the nature of the conduct or that the circ umstances exis t,” or “whe n the person is aw are that the conduc t is reasona bly certain to cause the result.” Tenn. Code Ann. § 39- 11- 30 2( a )- (b ) (2 00 3). A p e rs on c omm its c ri min a l a tte mpt wh o, a c tin g wi th the kin d o f c ulp abil ity otherwise r equire d for the of fense :

(1 ) Inte nti on a lly

e ng a g e s in a c tio n or c a us e s a re su lt that wo uldc on sti tut e a n o ff e ns e if the circ umstances surr ounding the conduct wer e as the person be lieves them to be;

(2) Ac ts with int ent to cause a result that is an element of t he off ense, a nd believes the conduc t will cause the r esult without further c onduct on the per son’s part; or

(3 ) A c ts w ith int e nt t o com pl ete a c ou rs e of

a c tio n o r c a us e a

re su lt tha t w ou ld constitute the offe nse, under the circ umstances surrounding the conduc t as the per son believes the m to be, and the c onduct constitutes a substantial s t ep toward the commission of the offe nse.

Tenn. Code Ann. § 39- 12-101(a )(2) (2003).

A determination of whether “ade quate pr ovocation” e x isted at t he time of the of fense is left
to the jury . Se e Sta te v. John so n, 90 9 S.W. 2d 46 1, 46 4 (T e nn

. Cr im. Ap p. 19 95 ); Sta te v. De nn is Hodg es, No. W2004-02716-CCA-R3-CD, 2005 WL 237275 4 at *4 (Tenn. Crim. App. Sept. 27, 2005). I n this case, Par

ks testifi ed t h at h e d ro v e to t he end of the roa d in front of the de fenda nt’s house and the n parke d his truck ac ross the roa d, blocking it. The defenda nt testified t hat after Parks blocked the r oad, the defe ndant and Parks eng ag ed in a n arg ument befor e Parks pointed his g un at the def endant a nd beg an a pattern of c raw ling a round behind the truc k and t h en s tanding and
po int ing his g un a t th e de fe nd a nt. Ta ke n in the lig ht m os t f

a vo rabl e to the state , a

jury c ou ld conclude that t h ese a ctions constituted adequa te provoc ation for pur poses of the voluntary manslaug hter statute.-5-

The de fenda nt arg ues that he fired under Par ks’ truck to sca

re him off , and that the de fenda nt fi re d a t the truc k in se lf

de fe ns e a s Pa

rk s d ro ve a wa y . H ow e ve r, the de fe nd a nt’ s a c tio ns app e ar t o this court to be the ac tions of a man intending to kill s omeone, as is require d to sustain a conviction of attempted voluntary

manslaug hter. A similar finding was rea ched by this court in L ay

v. State, 501 S.W .2d 820 (Tenn. Crim. App. 1973). I n L ay , the def endant, a blind man, awoke late one nig ht to find his daug hter talking with a man outside the defe ndant’s residenc e. I d. at 822. The de fenda nt repeatedly

asked the visitor to leave, which the visitor refuse d to do. I d. A short time later, the defe ndant hea

rd his door ra ttle, at w hich point the defe ndant fired in the direc tion of the door, not meaning to hit the visi tor. I d. Neve rtheless, the de fenda nt’s shot hit the vi sitor. I d. I n reje cting the defe ndant’s self-de fense claim and stating the evidenc e supported a conviction for at tempted voluntary manslaug hter, this court stated:

I f this de fe nd a nt h a d, in the c ou rs e of his c on ve rs a tio n w ith [the vis ito r], a dv ise d h im that he wa s arme d, and voice d some prohibition to his entry , or informe d him that
any attempt at entry

would be at his own pe ril, we would be require d to take a differ ent view of

the situation here. U nder t h e ci rcumstances existi ng we think defe ndant is g uilty. . . of an attempt to commit voluntary manslaug hter.

I d. at 825.

T h e f ac t s o f t h i s ca s e a re s o m ew h at s i m i l art o t h o s e p re s en t ed i n L ay

. As P ar k s we n tt h ro u gh his pattern of c raw ling behind the truck a nd occa sionally standing up, the def

endant did not attempt
to s pe a k to Park s o r d isc e rn the re a so ns be hin d Pa rk s’ a c tio ns . Nor

didthe de fe nd a nt g o in sid e his house or c all the police. Rathe r, he stood at the end of his driveway watching the events a nd asked his friend Stonebre aker

to give him a g un. And whil e the defe ndant claims that he fire d his weapon in an attempt to sc are off Parks, the defe ndant did not shoot into t he air or in a dire ction awa y

from the truck—he shot unde r the truc k in the direc tion of Parks, who the de fenda nt knew wa s crouc hing b e h i n d t h e t ru c k

. F u r t h e r m o r e , t h e d e f e n d a n t a d m i t t e d s h o o t i n g a tP ark s ’ t ru c k a s P ark s d r o v e a w a y, and the de fend ant readily admitted to a police of

fice r that he ( the def

endant) shot Parks. Such

e vid e nc e make s c le ar tha t th e de fe nd ant i nte nd e d to kil l Pa rk s w he n th e de fe nd a nt s ho t a t Pa rk s. This mental state, couple d with the provocation outlined above, w as ade quate f or the jury to find the defe ndant g uiltyof attempted voluntary manslaug hter.

CONCL USI ON

Parks’ a cti o n s ad eq u at el y

p ro v o k ed t h e d ef

en d an tfo r p u rp o s es o f t h e v o l u n t ar y m an slaug hter
statut e , a ndthe de fe nd a nt’ s f ir ing se ve ra l ti me s a t Pa

rk s sh ow s th a t th e de fe nd a nt ha d the int e nt t o-6-

kill as require d under the criminal attempt statute. As such, t he evidence was sufficient to support a convic tion for attempted voluntary manslaug hter. The judgme nt of the trial court is affirmed.

___________________________________ D. KEL L Y THOMAS, JR ., J UDGE