# FILED
September 22, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JULY 1988 SESSION

STATE OF TENN ESSEE , ) ) CCA NO: 02C01-9712-CC- 00461 Appellee, ) ) GIBSON COUNTY VS. ) ) Dick Jerman, Jr., Judge ) ANDREW COLE , ) (Attempted First Degree Murder - ) 1 Count; Attempted Second Degree Appellant. ) Murder - 1 Count)

FOR THE APPELLANT: FOR THE APPEL LEE: Clifford K. McGown, Jr. John Knox Walkup 113 North Court Square Attorney General & Repor ter P.O. Box 26 Waverly, TN 37185 Clinton J. Morgan (Appeal Only) Counsel for the State 425 Fifth Avenue North Tom W. Crider 2nd Floor, Cordell Hul l Building District Public Defender Nashville, TN 37243-04 93 107 South Court Square Trenton, TN 38382 Clayburn Peeples (Trial and Of Counsel on Appeal) District Attorney General Larry Hardister Assistant District A

ttorney General 110 South College Street, Sui te 200 Trenton, TN 38382

OPINION FILED:

AFFIRMED
Robert W. Wedemeyer, Special Judge 

### O P I N I O N2

On September 16, 1997, the appellant, Andrew Cole, was convicted by a jury of one count of attempted first degree murder, one count of attempted second degree murder,
one count of aggravated assaul t and one count of unlawful possession of a firearm. In this appeal, the appellant’s sole complai nt is that theevidence was insufficient to support either the attempted first degree murder o r attempted second degre e murder convictions. Following our review of the evidence, we affirm the convictions.

FACTS The testimony at

trial revealed that one year prior to being released from prison, the appellant learned that

his wife, Tammy Cole, was living w ith Johnny Crayton. According to Ms. Cole, the appellant had said upon his release from pri son he was going to kill Cole and Crayton. When the appellant was released from prison, he and Ms. Cole sporadically dated each other. Howev er, Ms. Cole was s

till seeing Mr. C rayton. On the night of December 19 a nd on the mo rning of Dece mber 20, 1996, the appellantagain threatened to kill both Cole and Crayton. On th e afternoon of December 20, Corwyn Williams gave th e appellant aride to Milan Box Company. The appellant told W illiams that he want

ed to pick up

his wife w

ho worked a

t the factory . At 3:30 p.m. tha t afternoon Ms. Cole had finished her shift at the factory and came out of the building w ith her uncle, John Hannah. The two pr oceeded to Mr. Crayton’ s automob ile w hen the appellantjumped outof Williams’ vehicle, pulled out a gun and ran to ward Mr. Crayton’s automobile. When he reached the vehicle, he beg an shooting into it. The first bullet came through the windshield and h it Mr. Crayton in the chest. Another bullet hit Ms. Cole in the leg while yet another shot hit Mr. Crayton in the back of the neck. The appellant shot Ms. C ole a sec ond ti me in the leg. When the autom obile eventually came to rest in a ditch, the appe llant fired a f inal shot befo re fleeing. Alth ough Mr. Hannah was not shot, a bullet passed through the rear passenger wind ow. Officer Jerry Hartsfield arrived on the scene where he determined that one shot had been fired through the front wi ndshield in front of the drive r, one shot had gone through the left rear passenger wi ndow and three shots had gone through the windo wat the driver’s door. After retrieving

the bullets that had been remov ed from Ms. Cole’s body, Hartsfield3

took them and the gun to the crime lab. Lab results indicated that the recovered gun w as used to shoot Cole and Crayto n. The appellant was found hiding under his gir lfriend’s bed. A .38 semi-automatic pistol w as found under the mattress. The appellant testified that he w as married toMs. Cole when the incident occurred. He explained that he

did not know that Mr. C rayton would be at the factory when he w ent to the factory to ta lk to Ms. Cole. The appellant said that, although he had notplanned to take any action, he “freaked out” when he saw Ms. Co le get in Crayton’s car. The appellantexplained that he carried a weapon daily after an earlier incident in which he was shot. On cross-examination the appellant admitted that he ha d two convictions of aggravated assault and one reckless endangerm ent. He also admitted that he had threatened two or

three times to kill Ms. Cole; however, he had not gone to the factory with the purpose of hurting anyone. On rebuttal, Officer Terry Jo nes testified that prior to the incident the appellant had told him that hewas “about ready to r eturn to the pen.” He added that if he did r eturn to prison, it would be bec

ause he had shot his wife and her boyfriend.

LEGAL ANALYSIS The appella nt’s onl

y compl aint is

that the eviden ce was insuffi cien t to support his convictions of attemp ted first degree murder and att empted second degree murder. When the sufficiency of the evidence is challeng ed, the st andard of review is whether, after viewing the evidence in the light most favorab le to the state, any rational tr ier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 318 (1979); State v. Evans , 838 S.W.2d 185, 190-91 (Tenn. 1992). On appeal, the state is entitled to the strongest le gitimate view of the evidence and all reasonable or legitimate inferences which may be draw n therefrom. State
v. Cabbage , 571 S.W .2d 832, 835 (T enn. 1978). T his Court will not reweigh the evidence, reevaluatethe evidence, or substitute its evidentiary inferences for those reached by the jury. State v. Carey , 914 S.W.2d 93, 95 (Tenn. Crim. App. 1995). In a crimi nal trial, great w eight is given to the result reached by the jury. Stat e v . Johnson , 910 S.W.2d 897, 899 (Tenn. Crim. App. 1995). Once approved by the trial court,4

a jury verdict accr edits the wit nesses presented by the state and resolves all conflicts in favor of the state. State v. Willia ms , 657 S.W.2d 405, 41 0 (Tenn. 1983). A jury’s guilt y verdict removes the presumption of innoc ence enjoyed by the defendant at trial and raises
a presumption of guilt. State v. Tuggle , 639 S.W.2d 913, 914 ( Tenn. 1982). The defendant then bears the burden of overcoming this presumption of guilt on appeal. State v. Black , 815 S.W.2d 166, 17 5 (Tenn. 1991). The appellant’s primary argument is that the evidence was i nsufficient to prove the mental state required for either attempted first or second degr ee murder. In stead, he argues that the evidence points to attempted voluntary manslaughter. A. Attempted First Degr ee Murder In order to convict the appe l lant of attempted first degree murder, th e State was required to

prove that the appellant, acting with the ki nd of culpability otherw ise required for this offense acted “with int ent to cause a result that is an element of the offense, and believesthe conduct will caus e the result without

further conduct on the person’s part “ and that the resu l t intended was the “premeditated and intentional killi ng of another.” Tenn. Code Ann. §§ 39-12-101(a) and 39- 13-202(a)(1) (1997). Viewing the evidence in the light most favorable to the State, the evidence sho wed that the appellant threatened to kil l Ms. C ole on more than one occasion. In fact, he renewed his threat th e evening before the incident and again on the morning of the incident. With a gun on his person, the appellant as ked someone to transport him to the factory where Ms. Cole wor ked. When Ms. Cole exited the building , the appellant ran toward her and fired shots into the car. The appell ant paused and shot again. When the vehicle came to rest in a ditch, the appellant ran ov er to it and shot at least tw ice more. The State had the burden of proving the element of premeditation. Premeditati on necessita tes “the ex ercise of reflection and judgment .” Tenn. Code Ann. § 39-13- 201(b)(2). Premeditation includes ins tances of homicide committed by poi son or lying in wait and requiring a prev iously formed design or intent to kill. State v. West , 844 S.W.2d 144, 147 (Tenn. 1992).

The proof set out above indicates that the appellant threatened the victim on at least5

three occasions. In addition, the appellant ca rried a gun with him to the factory on the afternoon of the incident. Further, the appellant ran toward the vehicle and fired shots into it. Witnesses testified that the appellant returned to fire additional shots. This evidence clearlysupports the mental elements necessary to prove attempted first degree murder.

The appellant argues

that the proof supports his position that he went to the factory to ta lk with the victim. It was only when he saw the victim getting into Crayton’s car that he “lost it.”

Further, h e claims

that he possessed the gun merely for self defense against another individual. These asser tions are merely chall enges to the credibilit y of the witnesses. Such a determination can only be made by the jury. Here , the jury accredited the State’s testimony. On appeal , we will not r eweigh the evidence or judge credi bility

. Accordingly, this

issue has no merit.
B. Attempted Second Degree Mur der The appellantalso challenges the jur y’s verdict finding

him guilty of the

attempted second degree murder of Mr. Cra yton. Although his attack is somewhat general, it appears that he is contending that the mental element require d fo r attempted second degree murder was not supported with sufficient evidence. Instead, he insists that the proof clearly showed a passionate and impuls ive. To support a conviction of atte mpted secon d de gree murder, the proof must establish that the appellant knowing ly attempted to kill Cr ayton, witho ut adequa te provocation and with th e belief that his c onduct wo uld result in Crayton’s death without further conduct on his part. State v. Belle , No. 03C01-9503-CR-00094 (Tenn. C rim. App. Mar. 6, 1996). The testimony

revealed that the appellant knew while in prison that Ms. Cole was sleeping with Mr. Crayton. Further, upon his release from prison, he knew that Ms. Cole continued to see Mr. Crayton. In fact, the appellantwas also seeing someone else. The appellanthad included Mr. Crayton in his death threats made to Ms. Cole on at least three occasions. On the afternoon of the incident, the appel lant carried a gun w ith him to the factory w here his wife worked. A s Ms. Cole exited w

ork that date and proceeded to6

Crayton’s vehicle, the appellant r an toward the vehicle

and fired shots int o the window closest to Crayton. When the car came to a rest in the d itch, the appellant paused and walked back to the vehicle and fired additional shots. He successfully hit Mr. Crayton with two of his shots resulti ng in a lengthy hospi tal stay. Thi s reco rd is clear that the appell ant acted knowingly . Further, the proof fails to support adequate provocation. Al though he knew Cray

ton was sleeping w

ith Ms. Cole, the appellant’s knowledge was l ong held. He knew while in prison and when he w as released. Nothing in the record indicates that s ome event happened on the day in question to supply the provocati o n and impulsiveness to reduce his actions to attempted voluntary manslaughter. Again, most of appellant’s c omplaints are credib ility challenges. These
were resolved by the

jury in favor of the State . We will notusurp that role. This issue is similarly without merit.

CONCLUSION Because this Court has found that the evidence was su ff icient to support both convictions, the appellant’s issues are without merit. Accordingly, the judgment of the trial court is AFFIRMED.

ROBERT W. WEDEMEYER, Special Judge

CONCUR:

JOE G. RILEY, Judge

CURWOOD W ITT, Judge