### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs Jun e 3, 200 8

STA TE OF TEN NES SEE v. AQ UEL LIS QU INTE ZTU CKE R

Appeal f rom the Circ uit Court for Hardem an Coun ty No. 06-01-0192 J. We ber Mc Craw, Jud ge

No. W2007-02361-C CA-R 3-CD - F iled October 21, 2008

A Ha rd e man Co unty

jur y c onvic te d th e de fe nd ant, Aq ue lli s Q uin te z Tu c ke r, of on e c ount o f f

ir st de g re e fe lony mur de r, on e c ount of fi rs t deg re e pr e me dit a te d mur de r, on e c ount o f a tte mpt e d f

ir st d e g r e e m u r d e r , o n e c o u n t o f a g g r a v a t e d a s s a u l t , an d o n e c o u n t o f e s p e c i a l l y a g g r a v a t e d b u r g l a r y. The trial c ourt merg ed the two f irst deg ree murder convictions, and it also merg ed the de fenda nt’s attempted first de g ree murder and ag g ravated assault convic tions. The trial court se ntence d the de fe nd ant t o li fe in p ri so n on the fi rs t de g re e mur de r c on vic tio n, fi ft e e n y e ars on the a tte mpt e d f ir st de g re e mur de r c on vic tio n, and e ig ht y e ars on the e sp e c ia lly a g g ra vate d b ur g lary

c on vic tio n, wi th a ll
sentenc es to be ser

ved conc urre ntly . The de fenda nt a ppeals, a sserting that the evidenc e produc ed at trial was insufficient to support his convictions. After r eviewingthe re cord, w e conc lude that no

err or exists with respec t to the defe ndant’s a l l ega t i o n s. Howeve r, we further conclude that the defe ndant’s espe cially

ag g ravated burg lary

conviction was prec luded by statute. Acc ording ly , we modify that conviction to one for ag g ravated burg lary and rema nd the case to the trial cou rt for
sentenc ing on that offense

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Circ uit Court Aff

irm ed as Modif ied; Case Re m anded f

or Re sentencing.

D. K EL L Y T HOMAS , J R ., J ., delivere d the opinion of the cour t, in which J OS EP H M. T I PTON , P.J ., and A L AN E. G L EN N , J ., joined.

Matthew R. Armour, Somer ville, Tennesse e, for

the appe llant, Aquellis Quintez Tucker.

Rob e rt E. Coo pe r, Jr., Attor

ne y Ge ne ra l and

Re po rt e r; De sh e a

Du lany , A ssi sta

nt A tto rn e y

Ge ne ra l; D. Michae l D unavant, District Attorney Gene ral; J oe L

. VanDy ke, Assistant D is t ri ct At torney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

At trial, L ewis F uller testified that on Mar ch 30, 2005, he resided i n an apartment located on Hatc hie Ha

ve n D ri ve in B oli va

r. F ull e r sa id that the a

pa rtme nt b e lon g e d to a

fr ie nd , Co re y

Ed wa rd s. That af ternoon, F uller and the defe ndant, whom Fuller said he had known for f ive or six y ear s, were

conver sing at Edwar ds’ apa rtment. At one point during the conve rsation, the def endant sa id that heM a rc h 3 0 , 2 0 0 5 , w a s a W e d n e sd a y. 1

-2- wa s ti re d o f p e op le “ me ssi ngwi th h im, ” “ bo the ri nghim ,” and “ us ing him .” Th e de fe nd ant a lso tol d Fuller that if he “ didn’t have his $10.00 by Thursday or F riday . . . we we re g oing to throwdown.”

1 Fuller testified that he owe d the def endant $10 from “a deal that happene d ear lier [in] the month.” Fuller said that he fe lt threatene d, so he aske d th e defenda nt if he wa s threate ning him. The de fe nd ant d id n ot r e ply

and ins te a d le ft

the a pa rtme nt.

Fuller testified that the def

e n d a nt’ s b e h a v io r w a s tr o u b li n g b e cause Fuller

knew the de fenda

nt to be a g ood-nature d person. Acc ording ly , Fuller followed the de fenda

nt outside and ag ain aske d him what was wr ong . The de fenda nt a g ain said that he was tired of people messing with him, then he hit Fuller on the side of his hea d. Fuller ag ain aske d the def

endant what was wrong ; after the defe ndant hit Fuller a

second time, the two me n beg an to fig ht. During the alter cation, F uller pinned the def endant on the gro u n d

. I n an attempt to esc ape, the defe ndant bit Fuller’ s fing er, w hich led F u l l e r t o h i tt h e d e f

e n d an ti n an a t t e mp tt o f

r e e h i s f i n g e r f r o m t h e d e f

e n d an t ’ s m o u t h

. U l t i m a t e l y, the two men stopped fig hting a nd the def

endant lef t the apar tment complex.

After t h e fi gh t, Fuller r eturne d to the apar tment, where Edwar ds was also pre sent. Fuller testified that he a

nd Edwar ds “dozed off,” but afte r a while he aw oke whe n he hea rd a knoc k on the door. F uller said that he a nd Edwar ds ignor ed the knoc k, but he then hea rd a “ rea l strong be at at the door” a nd saw the door

“come fly ing ope n.” F uller said that he did not s ee an y b o d y enter

the
apar tment once the door

opened, so he g ot up to investigate. At that point, he saw the defe ndant
enter t h e apa rtment. Fuller

said that the def

endant shot him in the rig ht shoulder. This cause d Edwar ds to “jump[ ] up off the couch;” Fuller surmised that this action “stunned” the def endant, who then shot Edwar ds. After the def endant shot Edwa

rds, Fuller , who had be en lyi n g o n t he floor “play [i ng ] l ike [he] was dead,” saw a pocket knife on the kitchen c ounter. Fuller attempted to ge t the knife an d t h ro w i t at the def endant, but the de fenda

nt shot Fuller ag ain. Fuller then saw the defe ndant “f

umbling wi t h s o m et h ing in his hand.” At that point, Fuller “ ran at and cha rg ed” the defe ndant, but the def

endant shot F uller in the hea d befor e he rea ched the defe ndant. Fuller said that he wa s shot four times: twice in the shoulder, onc e in the ar m, and once in the head.

F ull e r t e sti fi e d tha t af

te r the sh oo tin g , he kn oc ke d on the do or to the a pa rtme nt n e xt doo r t o his . N ob od

y ans we re d, so he we nt to ano the r a pa rtme nt. No bo dy ans we re d the re , so he we nt a c ro ss the stree t to De we y Ha rris’ residence . Har ris called 911, a

nd the police a

nd an ambulanc e soon

arr ived. Fuller

said that he spoke to police the night of the shooting a

nd that he also talke d to police at the hospital a fe w day s afte r the shooting. Both times, he identifie d the def endant a s the shooter.

Fu l l er ad m i t t edt h at h e ro u t i n el y u s ed dru gs wi t h t h e d ef en d an tat t h e t i m e o f t h e s h o o t i n g. He sa id that on the day

of the shooting , he had not used d ru gs in two day s, but this l ack of using resulted f rom not having any

drug s i n h i s ap ar t m ent. Fuller furthe r admitted that he ha d a prior fo rg e ry c on vic tio n fo r whi ch he w a s in c arc e rate d f or thi rt e e n mo nth s, and

that he ha d p re vio us ly been c harg ed with a dr

ug -re lated off

ense.-3-

On cr o s s -e x am i n at i o n , Fu l l er s ai d t h at t h e s h o o t i n g o cc u rr edar o u n d 8 : 0 0 that evening . Fuller said it was dar

k in Edwards’ apar

tment a nd that only the TV light was on in the a partment. F uller said that he wa s far sighte d, wore g lasses, and did not see well at nig ht, y et he wa s still able to see the def endant’ s fac e. F uller said that a lig ht from outside the a p ar t m ent shining throug h the open door allowe d him to see the def endant, a lthough he admitted that he did not know what the defe ndant

was we aringand did not see a g un in the defe ndant’s hand. F uller admitted that he did not open the do or wh e n he he ard the fi rs t kn oc k be c a us e nume ro us pe op le fr e qu e nte d the a pa rtme nt, wi th s ome of the visitors doing dr

ug s there. F uller admitted that he ha d previously told police that the $10 he

o we d t h e d ef en d an t wa s fr o m a dru g d ea l t h at h ad o cc u rr ed s i x o r s ev en m o n t h s b ef o re t h e s h o o t i n g; when a sked why

he had te stified at trial that the tran s ac t i o n h ad occurre d the same month as the shooting, F uller re plied, “I don’t know what y ou mean a bout that.”

F ull e r s a id t

hat a lth ou g h h e tol d p oli c e that th e sh oo te r w a s name d Aq ue lli s, he wa s una

ble to provide police w ith the shooter’s last name . Fuller said that when a

p o l i ce m an as k ed if the shooter’s name was A quellis Tucker , Fuller said that it was. Fuller also admitted that he told police that he ha d k

no wn the de fe nd ant t

wo or thr e e y e ars

.

On re dir ec t , Fu l l er testified that Edwa rds was in poor he alth. Fuller noted that Edwa

rds “we nt to the kidney machine [be] cause his .

. . kidney was bad” and was al s o “o n a b re athing machine” and “took a lot of medication.” Fuller also said that Edwar ds had a “loose bone in his right hip” that cause d Edwar ds to w alk with a limp. Fuller testified that he had told police that h e had known the def

endant f or two or thre e y ear s, but two y ear s had elapsed between the incident and the trial date, thus ac counting for his testimony that he knew

the def endant f ive or six y ear s.

On re cross, F uller said that he had e arlier told defense counsel that he did not want to see the defe ndant g et hurt and that he could not say with absolute ce rtain t y t h at t h e defe ndant was the shooter. Howeve r, on further redire ct, Fuller said that the l ast thing he had told defe nse counse l at that ear lier mee ting wa s that the defe ndant was the shooter.

Captain Steven Stanley with the Whit eville Police Depa rtment testified that in Ma rch 2005, he re sponded to this shooti ng while employ ed with the Bolivar Police Depa

rtment. Captain Stanley said t h at at ar o u n d 8:00 that evening , he re ceive d a ca ll notify ing him of the shooting. He then
proce eded to Dewe y Har

ris’ apa rtment, wher e he obse rved F uller wa lking towa rd him outside the

a pa rtme nt. Ca

pta in Stanle y or de re d Fu lle r ont o the g ro un d. F ull e r co mpl ie d an d the n to ld C a pta in Stanley that he had be en sho t ac ro s s t he stree t at 619 Hatchie Have n. Fuller also said that the sh oo te r, wh om F ull e r ini tia lly did no t ide nti fy
, wa s sti ll in the ho us e

. Ca pta in S tanle y

the n w e nt t o Edwar ds’ apa

rtment, wher e he observ ed Edwards lying on the floor. Captain Stanley , a ce rtified

em er gen cy

m ed i ca l t ec h n i ci an (E M T ), n o t edt h at E dwa rd s “w as i nre s p i ra t o ry d i s t re s s , h av i n g a whole lot of trouble br eathingat that point.” Captain Stanley did not assist E d wa rd s at that point beca use he be lieved that the shooter was still in the apartment. Captain Stanley did not find the sh oo te r i n th e a

pa rtme nt, so he re tur

ne d to F ull e r, wh o wa s still ou tsi de Ha rr is’ a pa rtme nt. Ca

pta in Stanle y te sti fi e d th a t he be lie ve d E dw ard s w a s d e a d w he n h e le ft the a pa rtme nt.-4-

Up o nre tu rn i n g t o Ha rr i s ’ ap ar t m en t , C ap t ai nS t an l ey as k edFu l l er

t o re co u n tt h e s h o o t i n g. The substanc e of Ful l er ’s o n -the-sc ene statement to Captain Stanley was the same as his trial testimony

. When Ca

ptain Stanley asked Fuller who had shot him, Fuller r eplied that “A quellis shot me.” F uller said that the shooting occur red ove r $1 0

. Fuller , who at that point was blee ding “prof usely ,” also said, “ Idon’t want to die.”

After Captain Stanley

finished talking to Fuller, he , along with Ca p t ai n Ba ker a nd Chief Anthony , beg an examining the c rime sce ne for phy sical evidenc e. Captain Stanley found two live .25 caliber

rounds nea

r the are a wher e Fuller had observe d the defe ndant “play ing w ith his hands.” He also rec overe d four spent .25 ca liber shell ca sings the nig ht of the shooting a nd one additional shell casingthe morning afte r the shooting . Captain Stanley observe d that the door fr ame ha d been br ok e n, and

he a lso saw a

blo od tr a il l e a din g fr om t

he a pa rtme nt t o th e do ors of ot he r a pa rtme nts

ne ar E dw ard s’ a

pa rtme nt. Ca

pta in Stanle y sa id t

hat he did no t f ind blo od on Ha rr is’ po rc h b e c a

us e Har ris “had taken hot bleac h water and wa shed [the blood] off of the porc h beca

use he sa id he didn’t want him bleedingon his porch.” C ap t ai n S t anley said that the evide nce f

ound at and ne ar the
ap ar t m en twa s co n s i s t en twi t h t h e v er s i o no f e v en t s Fu l l er h adp ro v i d ed

t h e n i gh to f t h e s h o o t i n g.

On cross-examination, Captain Stanley said that he and his two colleagues did not find any ph y s ic a l e v id e n c e th a t w o u ld h a v e p la c e d

th e d e f e n d an t at t

h e s c e n e

. H e a ls o a d mi tt e d th a t t he
po lic e did no t f ind a g un in t he de fe nd ant’ s c ar o r at hi s re sid e nc e and that no g un wa s r e g ist e re d in the defe ndant’s name. He said that the police wer e unable to f ind a footprint on the doorfr ame, a nd he said that the pol ice did not take any fing erpr ints from the door handle. Captain Stanley identified

sever al re asons for the failure t o d u st the doorknob for f inge rprints. First, no prints we re taken beca use the de fenda

nt had alre ady been identified as a suspect. Fur thermore
, the police knew that the def endant ha d been to the a

partment be fore the day

of the shooting and there fore they would be

un a ble to d e te rm ine “ if

[the pr int s we re ] f

ro m a pr e vio us oc c a sio n or fr om thi s o c c a sio n. ” Ca pta in Stanley also said that he kne w that sever al people visited the apar tment and there fore he wa s “not

sure wh a t a ll you

c ou ld h a ve pu lle d f

ro m th e re . Wh e n w e vis ua lly loo ke d, we did no t se e a

le g ibl e print.” He also noted that the police did not test blood that was found on a knife at t he crime scene

. Captain Stanley

said that the def

endant turne d himself in to police “one to two da y s” af ter the shooting. H e said that he was unaware of any of Fuller’s neig hbors say ing that they

had see n the defe ndant nea

r Edwa rds’ a partment the nig ht of the shooting.

On re d i re ct , C ap t ai nS t an l ey s ai d t h a t h e s p o k e w i t h De we y Ha rr i s af

t er t h e s h o o t i n g. Captain Stanley

said that Har

ri s h ad s p o ken to the def endant, a nd Har ris’ statement to police

corr oborate d Fuller ’s statement that the de fenda nt had bee n prese nt at t h e apartment with a g un. Ca pta in S tanle y

sa id that whe n the de fe nd ant t ur ne d h ims e lf

in t o p oli c e , th e de fe nd ant a pp e a re d to have “ a fa irly long scratch” on the side of his fac e. On r ecr oss, Captain Stanley said that his searc h of the a pa rtme nt r e ve a le d s e ve ra l pr e sc ri pti on me dic ine s th a t w e re pr e sc ri be d to Ed wa rd s.

I nvestig ator Pat B aker

with the Bolivar Police Depa rtment testified t hat he r esponded to the sh oo tin g . Upo n a

rr ivi nga t th e sc e ne , h e saw F ull e r l y ing on the g ro un d o uts ide Ha rr is’ a pa rtme nt.-5-

Fuller was blee ding “ pretty

badly ” fr om a hea d wou n d , a shoulder w ound, and an a rm wound. I nvestig ator B aker

noted that Fuller

said sever al times that he did not want to die, and he thought that Fuller was not g oing to survive the shooting. Investig ator B aker asked F uller to rec ount the

s h o o t i n g , an d F u l l e r d i d s o , w i t h t h e s u b s t an c e o f h i s s t a t e m e n tm i r r o r i n g t h a to f

h i s t r i a l t e s t i m o n y. Captain Stanley

then appr oache d Fuller

and aske d him what had happe ned. At t h at p o i n t , Fuller “re peate d the same story that he had told me j ust minutes ear lier.” I nvestig ator Bake r said that F uller identified the shooter

as “A quellis,” but he did not r emember whether Fuller said that the shooter’ s last name wa s Tucker

.

I nv e sti g a tor

B ake r sa id that on Ap ri l 1, F ull e r g a ve a state me nt in a Jac ks on ho sp ita l w hil e

rec overingfrom his injuries. Acc ording to I nvestig ator Bake r, t he st atement wa s “identica l” to the

one Fuller had g iven at the crime scene

. The office r said that he a lso interviewed the defe ndant af ter he turne d himself in to police. The de fenda nt told I nvestig ator Ba k er that he ar rived at Fuller’ s apar tment after

Fuller and Edwa

rds ca lled him to come over. A ccor ding to t h e d efe ndant, he a nd Fuller g ot into a phy sical alter cation, during which Edwar ds “jumped in.” The de fenda nt said that

a t o n e p o in t, F u ll e r

p u ll e d a g u n , w h ic h th e d e f

e n d an t w a s a

b le to g r a b an d p o in t at F u ll e r

. Then,

acc ording to the defe ndant, “the g un started g oing off.” I nvestig ator Ba ker said that this statement was inconsistent wit h both the evidenc e found at the crime sc ene a nd a stateme nt he took a stateme nt from Ha rris, which the office r said Ha rris made afte r speaking w ith the defe ndant.

I nvestig ator B aker

said that the Tenne ssee B urea u of I nvestig ation (TB I ) cr ime lab examined the shell ca sings take n from the a partment a

nd conclude d they

wer e fire d from the same wea pon. He also said that afte r Har ris informed police that he had rec eived a telephone ca l l fr o m t he defe ndant, the police se arc hed Ha rris’ phone rec ords and tra ce d a par ticular phone number to a cellular phone that the de fenda

nt had bee n using.

On cr oss-examination, I nvest i gator Bake r said that the police did not attempt to take fing erpr ints from the crime sc ene be cause the police kne w that th e d ef en d an t had bee n at the
apar tment before the shooting a nd, there fore , they knew that they wer e likely to find his prints there. He a lso sa id t

hat th e po lic e did

no t se arc h th e sh e ll c a sin g s or live a mmunit ion fo r f ing e rp ri nts be c a us e the surf

a c e s of the bu lle ts we re too sma ll t o le a ve a fi ng e rp ri nt w hic h c ou ld b e ma tc he d w ith
any deg ree of ce rtainty . He a lso said that the police did not chec k the knife f ound in the apar

tment fo r b loo d. I nv e sti g a tor B a ke r a lso a dmi tte d that the c e llu lar p ho ne wh ic h th e de fe nd ant s up po se dly

us e d to ca ll Harr is wa s n ot r e g ist e re d in the de fe nd ant’ s n a me , a

nd he a lso no te d th a t th e po lic e did not find the phone in the de fenda nt’s possession or in his vehicle or r esidenc e.

Dewe y Har ris testified that on Marc h 30, 2005, he lived in a n apar tment on Hatchie H aven Drive. That night, F uller ca me to Har ris’ door and reque sted help. Har ris called 911 for Fuller , who was blee ding pr ofusely

at the time. Harris testified t hat he spoke t o the defendant via telephone a fter the sh oo tin g , a lth ou g h H arr is g a ve dif fe ri ngdate s o n w hic h h e re c e ive d th e c a ll. At tr ia l, H arr is s a id that he spoke to the de fenda nt while t he police w ere looking f or him, some four or

five da y s after the shooting. H oweve r, in a stateme nt he g ave to Capta in Stanley on Marc h 31, 2005, the day afte r the sh oo tin g , H arr is s a id t hat th e de fe nd ant c a lle d h im at 2:30 the mor nin g a ft e r t

he sh oo tin g . H a rr is-6-

te sti fi e d th a t th e de fe nd ant t old him that “ he we nt i n a ft er [ Ful ler ]

. . . . H e wa sn ’t tr y ingto k ill [Ed wa rd s] . .

. . ” Ha

rr is a dmi tte d th a t in his state me nt to Ca pta in S tanle y , h e ha d s pe c if ic a lly sa id that the def

endant told him “Man, I

hate I killed those two g uy s.

. . . [Edwards] just g ot in the way .”

On cr oss-examination, Harris said the defenda nt called him three or four day s after

the shooting, a

nd that by this point, he had hear d about t he shoot ing from another person. He said that h e h ad n o idea how F uller g ot shot, nor did he car e about the c ircumstance s surrounding the sh oo tin g

. On re dir e c t, H arr is s a id t hat F ull e r w a s n ot a

fr ie nd of his , a nd he a lso no te d th a t he wo uld not have lied to the police to help Fuller

.

Joshu a Cha pma n, an inma te a t th e Ha

rd e man Coun ty Jail , tes tif ie d tha t in July and Au g us t 2005, he wa s locked up “ on the same side of the jail as [the defe ndant].” He said that one day the de fe nd ant “ br a g g [ed ] a

bo ut ho w he g ot ro bb e d and he we nt ba c k ho me and got a gun and c [a]me back a nd killed one g uy

and shot another

one.” Cha

pman said he ha d never

met the def

endant be fore thi s c on ve rs a tio n a

nd he ha d ne ve r he ard

a bo ut t his c a se . Ch a

pma n te sti fi e d th a t th e de fe nd ant t old him that the defe ndant said that t he gun “ha d been put in a vi[s] e,” me aning that the g un had bee n

c ut u p a ft e r t he sh oo tin g . Ch a

pma n te sti fi e d th at he tol d th e po lic e a bo ut t his discus sio n a ft e r i t

occur red.

On cr oss-examination, Chapman said that the defe ndant related the details of the shooting

w h i l e t h e y w e r e t o g e t h e r

i na j a i l c e l l

. C h a

p m ans a i d

t h a to t h e r

p r i s o n e r s w e r e i nt h e c e l l t h a td a y, but to the best of hi s knowledg e, none of t he other prisoners made a stateme nt to the police re g arding the def endant’ s statements. Chapman admitted that afte r bonding out of jail in 2005, he was a rre sted in M iss iss ipp i, w hic h le d to his mis sin g a c ourt date in Ha

rd e man County and

be ingpla c e d in

ja il
ag ain. He was release d from jail i n late 2005 and put on pr obation, but after a thef t char g e in Shelby County , he wa s returne d to the Har deman County J ail and cha

rge d with violating his probation. Chapman said that he a lso had prior burg lary char g es and ha d used illeg al drug s in the past.

Willi e L a mon t H arr is t e sti fi e d th a t he saw t he de fe nd ant t

he nig ht o f t

he sh oo tin g . H a rr is testified that he sa

w a sc ar on the defe ndant’s fa ce a nd that h e h ea rd fr o m other pe ople who we re prese nt that e vening that the defe ndant g ot into a fig ht w ith F uller. Har ris said that t h e d ef

endant said nothing a

bout the argument, and Ha rris denie d seeingthe def endant lea

ve the location where he, the de fenda

nt, and the other

persons ha d g ather ed.

Dr. Ke nneth Snell testified t hat he perf ormed Corey Edwar ds’ autopsy . Dr. Snell testified that at the time of his death, E d wa rd s exhibi ted sy mptoms of hy

perte nsive hea

rt disease , more

c omm on ly

kn ow n a s h y

pe rt e ns ion , a

nd that he su ff

e re d f rom end state re na l di se a se . D r. Sne ll observe d that Edwar ds “had e vidence of surg ical g raf ts in his arms that would be used f or dialy sis.” Dr. Snell also testified that Edwa rds died of a

single gu n s h o t wo u nd to the chest. F ollowing Dr

. Sne ll’ s te sti mony , th e state of fe re d a sti pu la tio n whe re by

TB ISpe c ia l A g e nt S te ve Sc ott , a fo re ns ic

s ci en t i s twh o ex am i n edt h e b u l l et fr agm en t s re co v er edfr o m t h e v i ct i m s as we l l as t h e s h el l ca s i n gs

rec overe d from Edwar ds’ apar tment, w ould ha

ve testified that the shell casing s wer e fire d from the

same fi re arm

and that th e bu lle t f

ra g me nts pu lle d f

ro m E dw ard s a

nd fu lle r b or e “ the same c la ss-7-

char acte ristics and similar individual chara cter istics with eac h other; howe ver, the simil arities ar e insufficient for

conclusive ide ntification of [the two bullets] toge ther.”

The de fenda

nt did n ot testify

or pre sent witnesses on his beha lf. After rec eiving the evidenc e, the jury convicted the defe ndant of the char g ed offe nses. The trial c ourt merg ed the de fenda nt’s two first deg ree murder c onvictions as well as his convictions for at t em p ted first deg ree murder a nd
ag g ravated assault. This appe al followed.

A N A LY S IS

The de fenda

nt’s sole issue on appea l is that the evidence produce d at trial wa s insufficient to sustain his convictions. An appellate c ourt’s standar d of review when the def endant que stions the

su ff ic ie nc y of the e vid e nc e on a pp e a l is “ wh e the r, a ft e r vie wi ng the e vid e nc e in the lig ht mos t favor able to the pr osecution, any rational trier

of fa ct could have found the e ssential elements of the

c ri me be y on d a re a so na

ble do ub t.” J acks on v. Virg ini a , 443 U.S. 307, 319, 99 S. C t. 2781, 2789 (1979) ( emphasis in orig inal). The appellate court doe s not rewe igh the evidenc e; rather, it presume s that the jury

has re solved all conflicts in the testimony and dra wn all re asonable infere nces from the evidenc e in favor of the state. See S tate v. Sheffield, 676 S.W .2d 542, 547 (Tenn. 1984); State v. Cabbag e, 571 S.W .2d 832, 835 (Tenn. 1978)

. Qu e sti on s re g ard ing wi tne ss cr e dib ili ty , co nf lic ts i n testimony , and the we ight a nd value to be g iven to e vidence wer e resolved by the jury . See State v. Bla nd, 958 S.W .2d 651, 659 (Tenn. 1997) . A g uilty verdic t removes the pr esumption of innocenc e and re place s it with a presumption of g uilt, and on appea l the defendant has the burden of illustrating why the evidenc e is insufficient to support the jury ’s ver dict. I d.; State v. Tug g le, 639 S.W.2d 913, 914 (T en n

. 1 9 8 2 ). This standar d applies to finding s of g uilt based upon direc t evidence
, circ umstantial evidence , or a c ombination o f b o t h direc t and circ umstantial evidence . State v. Penderg rass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).

Identity of De

fendant as Perpetrator

Be fore addre ssing whe ther the ev i d en ce was suffic ient to establish the elements of the of f e n s e s f o r w h ic h th e d e f

e n d an t w a s c o n v ic te d
, w e a d dr e s s th e d e f e n d an t’ s a s s e rti o nth a t t

he evidenc e wa s insufficient to establish that the defenda nt actua lly committed the offe nses. I n support of his argument, the defe ndant emphasizes that there was no phy sical evidenc e placing the def endant at th e crime scene a

nd that the only

witness who identified the de fenda nt as the per

petrator was Fuller , who the defe ndant asser ts “made inc onsistent statements and admitted to having very poor ey esig ht.” Howe ver, w e find the de fenda nt’s arguments unpersua sive.

“[T] he identification of a def endant a s the person who committed the offe nse for which he is on trial is a question of fac t f or the deter

mination of the jury upon consideration of all competent proof.” State v. Strickland, 885 S.W .2d 85, 87 (Tenn. Crim. App. 1993) (citing State v. Crawf ord, 635 S.W .2d 704, 705 (Tenn. Crim. App. 1982) ). This court ha s consistently held that “the testimony of a vic tim, by

itself, is sufficient to support a conviction.” I d. (citing State v. Wil liams, 623 S.W .2d 118, 120 (Tenn. Crim. App. 1981) ); see also State v. Hill, 987 S.W .2d 867, 870 (Tenn. Crim. App.-8-

1998); State v. McMaha n, 614 S.W .2d 83, 85 (Tenn. C ri m. App. 1981). In this case, F uller

c on sis te ntl y

ide nti fi e d th e de fe nd ant a s the pe rs on wh o br ok e int o the a pa rtme nt and

sh ot b oth him

and Ed wa rd s. F ull e r i de nti fi e d th e de fe nd ant a s th e pe rp e tr a tor bo th a t tr ia l and

in t wo state me nts he g ave to police , including one statement he g ave to police the nig ht of the shooting. Furthe rmore, the location of the blood, knife, shell ca sings, a nd live rounds found at the scene substantiated Fuller ’s testimony

about the ac tions of the victims and shoot er i n t h e apar tment. There fore , we conclude that the evidenc e wa s sufficient f or a r ational trier of

fac t to find bey ond a re asonable doubt that th e de fe nd ant w a s th e pe rp e tr a tor of the se of fe ns e s.
Sufficiency of Ev idencefor Indicted Offense s

The de fenda

nt was convic ted of fir st deg ree preme d i t at ed m u rder and first de g ree felony murder. A conviction for first deg ree felony murder, a s char g ed in the indictment, re quires proof of a “killin g o f another committed in the perpe tration of or attempt to perpetrate any . . . burg lary .” Tenn. Code Ann. § 39-13-202( a)( 2) (2003) . A conviction for first deg ree preme ditated murder require s proof that the de fenda nt committed a “pr emeditated a nd intentional killi ng .” I d. § 39-13- 20 2( a )( 1) . T he fi rs t de g re e mur de r s ta tut e e xpla ins the te rm “ pr e me dit a tio n” a s f

oll ow s:

“ [P]re me dit a tio n” is a

n a c t do ne a ft e r th e ex e rc ise of re fl e c tio n a

nd jud g me nt. “Preme ditation” means that the i ntent to kill must have be en for med prior to the a ct itself. I t is not nece ssary that the purpose to kill pre- exis t in the mind of the acc used for an y d ef

i n i t e per iod of time. The mental state of the a ccuse d at the time the

acc used alleg edly

decide d to kill m ust be ca ref ully considere d in order to de termine wheth e r th e a c c u s e d

w a s s u f f ic ie n tl y f r e e f r o m e xc it e me n t a

n d p a s s io na s to be
capa ble of pre meditation.

Tenn. Code Ann. § 39- 13-202(d) (2003). The prese nce of preme ditation is a question for the jury and may be established by proof of the circ umstances surr ounding the killing. State v. Bla nd

, 958 S.W. 2d 65 1, 66 0 ( Te nn

. 19 97 ). Our su pr e me c ourt

ha s n ote d th e fo llo wi ngfa c tor s th a t de mon str a te the exist ence of pre meditation: the us e of a dea dly wea pon upon an unar

med victim, the particula

r

crue lty of the killing, de clar ations by the def endant of an int ent t o kill, evidenc e of procure ment of

a we a po n, pr e pa

ratio ns be fo re the kil lin g fo r c on c e a lme nt of the c ri me , a nd c a lmn e ss i mme diate ly afte r the killing. I d. Additional fac tors cited by this court from which a jury may infer pr emeditation inc lud e “ pla

nn inga c tiv iti e s b y

the a pp e lla nt p ri or to t he kil lin g , the app ell ant’ s p ri or re la tio ns hip wi th t he vic tim , a

nd the natur e of

the kil lin g .” State v. Ha lake , 1 02 S.W. 3d 66 1, 66 8 ( Te nn . Cr im. App. 2001) (c iting State v. Ge ntry , 881 S.W .2d 1, 4-5 (Te nn. Crim. App. 1993)).

The defenda

nt was also convicted of ag g ravated assault and attempted first deg ree murder

a g a ins t F ull e r. As re le va

nt t o this c a se , a per so n co mmi ts as sa ult by “ [i]nte nti on a lly

or kn ow ing ly

c a us [ing ] bod ily

inj ur y to a no the r. ” Te nn . Co de Ann. § 39- 13 -1 01 (a )( 1) (2 00 3) . A g g ra vate d a ssa ult
, a s c ha rg e d in th e ind ic tme nt, is c omm itt e d b y a pe rs on wh o “ [i]nte nti on a lly

or kn ow ing ly

c omm its

an assa ult . . . and . . . [u] ses or display s a dea dly wea pon.” I d. § 39-13-102( a)( 1)(B ). Tenne ssee’ s criminal code states that “[a] person commi t s criminal attempt who, a cting with the kind of culpability

otherwise r equire d for the offe nse . . . ac ts with int ent to cause a re sult that is an element-9-

of the off ense, a nd believes the conduct will ca use t he result without further conduct on the person’s part.” I d. § 39-12-101( a)( 2).

F ina lly , the de fe nd ant wa s convic te d of es pe c ia lly a g g ra vate d bur g lary

. As re le va nt t o th is

case , burg lary

is committ ed by

a per son “who, without the ef fec tive consent of the proper ty owner

. . . [e ]nte rs a bu ild ing oth e r tha n a hab itatio n (or any po rt ion the re of ) n ot o pe n to the pu

bli c , w ith int e nt t o c omm it a

fe lony

. . . o r a ssa

ult .” I d. § 3 9- 14 -4 02 (a)(1). The ind ic tme nt i n th is c a se identified “murde r” a s the relevant felony

. Ag g ravated burglar y is burg lary of a habitation. I d. § 39- 14-403(a ). Espec ially

ag g ravated burg lary

is defined a s “[b] urg lary of a habitation or building othe r than a ha bitation . . . [w] here the victim suff ers serious bodily

injury .” I d. § 39-14-404( a)( 1)-( 2).

I n this c ase, the evidenc e ref lects that on the afte rnoon of Marc h 30, 20 0 5
, t h e d ef endant informed F uller that he w as t ired of people “messing” with him, and that if Fuller did not repay

the $10 he owe d the def

endant, the two me n would “throw dow n.” F uller and the defe ndant then g ot into a phy sical alter cation bef ore the defe ndant left Edwa rds’ a partment. That evening , the d e f e n dant bro k e d o w nE dw ar d s ’ d o o r , e n te r e d th e a p artm e n t, an d

s h o t F u ll e r

f o u r ti me s an d

E dw ar d s once, kil lin g Ed wa rd s and inj ur ing F ull e r. Th is e vid e nc e wa s su ff ic ie nt t o c on vic t th e de fe nd ant o f f ir st deg ree felony murder. Reg arding the def endant’ s convictions for pr emeditated f irst deg ree murder

and a tte mpt e d f

ir st d e g re e mur de r, the de fe nd ant’ s ann ounc inghis int e nt t o c a us e ha rm to F ull e r i f F ull e r d id n ot r e pa

y the mon e y

he ow e d th e de fe nd ant, the de fe nd ant’ s le a vin g Ed wa rd s’ a pa rtme nt, and his re t u rn i n g sever al hours later with a g un was e vidence of pre meditation. The def endant’ s brea king dow n the apartment door and shooting F uller four times and Edwar ds once w as evide nce that the defendant a cted intentionally . This evidence was suff icient to convict the de fenda nt of
ag g ravated assault and attempted first deg ree murder. Although there is no evidenc e in the re cord
sug g esting that the def

endant thre atene d to kill or o t h erw ise harm Edw ards, suc h a finding is not

nece ssary to sustain a conviction for pr emeditated f irst deg ree murder in this ca se:
Rather, the [first deg ree murder] statute simply require s proof that the de fen d ant’s objective wa s to kill a pers o n , i

. e., “cause the re sult.” I n short, if the evide nce demonstrates that the defe ndant intended to “c ause the result,” the death of a per son, and that he d id so with premeditation and deliber ation, then the killing of another
, even if not the intended victim (i

. e., int ended r esult), is [premeditated] first deg ree murder.”

Millen v. St ate, 988 S.W.2d 164, 168 (Tenn. 1999). As such, we c onclude that the e vidence was sufficie nt to convict the def endant of preme ditated first deg ree murder.

The e vidence was a lso sufficie n t t o convict the defenda nt of the re maining of

fense . The

e vid e nc e ind ic a te s th a t th e de fe nd ant in it ially thr e a te ne d F ull e r o ve r F ull e r’ s su pp os e d f a ilure to repa y a debt he owed the de fenda nt. Severa l hours afte r the initial alterc ation, the def endant br oke int o E dw ard s’ a

pa rtme nt w iththe int e nt t o c omm it mur de r or a ssa ult

. Whil e the de fe nd ant w a s in Edwar ds’ apar

tment, he shot F uller four times, se riously injuring him. This e vidence was suff icient
to convict the defe ndant of espec ially ag g ravated burg lary . Finding that the evidenc e wa s sufficient-10-

to support the defe ndant’s convic tions, we deny him relief.

Modification of Especially Aggravated Burglary Conv iction

Although not a ddresse d by either pa rty , this court notes that the defendant’s c onviction for
espec ially ag g ravated burg lary

in addition to the other offe nses is prec luded by T en n essee Code Anno ta ted sect io n 39- 14 -4 04 (d ) w hic h s ta te s th a t “ [a]c ts w hic h c on sti tut e an o ff e ns e un de r t

his section may

be prose cuted unde r t his section or any other applicable section, but not both.” See, e.g
., State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993); State v. Oller, 851 S.W .2d 841, 843 (Tenn. Crim. App. 1992) . The pra ctical import of subsec tion (d) is suc h that the defe ndant could not have be en found guilty

of es p ec i all y

ag g ravated burg lary , in which serious bodily injury of F uller

was an element of the offe nse, and of ag g ravated assault, in which Fuller ’s serious bodily injury was

a lso an e le me nt. Th e re fo re , th e de fe nd ant’ s c on vic tio n f or e sp e c ia lly

a g g ra vate d b ur g lary , a

Cla ss B f elony
, s h al l b e modified to one for ag g ravated burg lary , a Class C felony , and re manded f or

s en t en ci n g.

En try of R e v ise d J

ud gm e nts

Finally , we note that althoug h at the sentenc ing hear ing the trial cour t merg ed the de fenda

nt’s two first deg ree murder c onvictions, as well as his convictions for attempted first deg ree murder a nd
ag g ravated assault, the merg ers of those offe nses for se ntencingpurposes a re not prope rly

ref lected on the j udg ment forms. The judgment for ms for the de fenda

nt’s preme ditated first deg ree murder (Count 2) and a g g ravated assault (Count 4) g uilty verdic ts state, “def

endant is not convicte d nor
sentenc ed in this count.” The tr ial court’s notations are c orre ct, as “ the trial court’s entry of only one judgme nt of conviction imposing only o n e s en tence . . . protec ts the defe ndant from r ece iving mul tip le punis hme nts fo r t he same of

fe ns e .” State v. Ad dis on , 9 73 S.W. 2d 26 0, 26 7 (T e nn . Cr im. App. 1997). How ever , the judg ment forms m ust be correc ted, pursuant to Rule 36 of the Te nnessee Rul e s o f C ri min a l Pr oc e dure , to pr op e rl y re fl e c t th e me rg e r. As to C ount 1 , th e jud g me nt s ha ll ref lect a c onviction for first de g ree murder a nd a life sentenc e as well as a notation that the verdic t of g uilt as to Count 2 is merg ed with the convic tion in C ount 1. L ikewise, the judgme nt as to Count 3 s ha ll r e fl e c t a

c on vic tio n f

or a tte mpt e d f

ir st d e g re e mur de r a

nd a se nte nc e of

fi ft e e n y e ars , a s w e ll
as a notation that the verdict of guilt as to Count 4 is merg ed with the convic tion in C ount 3.

CONCL USI ON

The e vidence produce d at trial was sufficie nt f or a jury to f

ind be y ond a rea sonable doubt that the de fe nd ant w a s g uil ty

of fe lony mu rder, atte mpt e d f ir st d e g re e mur de r, and

a g g ra vate d a ssa

ult

. Acc ording ly , the judg ments of the trial c ourt are aff irm ed as to those offe nses. Howe ver, a s the defe ndant’s convic tion for espe cially ag g ravated burglar

y is prec luded by statute, the j udg ment of

c on vic tio nf

o r e s p e c i a l l y

a g g r a v a t e d

b u r g l ar y i s m o d i f i e d t o a g g r a v a t e d

b u r g l ar y

. T h e c a s e is

rema nded to the trial c ourt for res entencing a s to that offense , as we ll as for the e ntry of re vised judgme nts that properly

ref lect the mer g er of the defe ndant’s first deg ree murder convictions and the-11-

me rg e r o f h is c on vic tio ns fo r atte mpt e d f ir st d e g re e mur de r a

nd a g g ra vate d a ssa

ult

.

___________

_ _ _ _ _ _ _ _ _ ___________ D. KEL L Y THOMAS, JR ., J UDGE