### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs A pril 20, 20 04

STATE OF TENN ESSEE v. BRIAN KEITH JACKSON

Direct Appeal from the Criminal Court for Hamilton County

No. 238096 Rebecca Stern, Judge

No. E2003-00606-CCA-R3-CD May 26, 2004

The Defendant, Brian Keith Jackson, was found g uilty by a jury of sec ond degreemurder. In thi s direct appeal, he arg

ues (1) t hat the tr ial c ou rt erred by

refusing to play

a pornographic video tape for the jury after it was admi

tted into evi dence, and (2) t hat the e vidence is lega lly i nsuffic ient to sustain his conviction. Although the trial court did err by notplaying the

video in front of the ju ry, the error was harmless . Furthe rmore, b ecause

the evide nce is suf ficient t o sustain the Defendant’s convicti on, we af

firm the j udgmen

t of the tr ial cour t.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

D AV ID H. W ELLES , J., delivered the opinion of the court, in which J OE G. R ILEY an d T HOM AS T. W OODA LL , JJ., joined.
Mike A. Little, Chattanooga, Tenne ssee, for the appellant, Brian Keith Jackson.

Paul G. Summers, Attorney Gene ral and Reporter; John H

. Bleds oe, Assist ant Attor ney Genera l; Bill Cox, District

Attorney Gene

ral; and Mary Sullivan Moore, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

When the victim, Lester Childress, did not show up for work at the Casual Male Big and

Tall store on July 26, 2001, his manager and longtime friend James Davis, Jr. became concerned. Mr. Davis called two of the victim’s friends, Ronnie Roberts and Jason Caylor, whom he knew had a key to the victim’s house. The three of them went to the victim’s house, and, upon entering the victim’s bedroom, discovered his dead body on the floor, dressed only in underwear.

Michael Jones, a paramedic who responde d to the sc ene, and Royellen L amarre , a crime

scene technician, both tes tifie d that the y f ound the victim lay

ing fac e down on t

he floor of his bedr oom. Both described a large a mount of blood on the back of the victim’s neck and do wn hi s-2-

back. Mr. Jones also explained that he saw several puncture wounds at the top of the victim’s back. Ms

. La marre recovered a white knife handle, but the blade was not located. Marga ret Bash, who worked at the Te nnessee Burea u of I nvestig ation cr

ime lab, te stified th at the victim’s blo od w as located on the und

erwea r he was wearing , on a cha

ir in the bedroom, and on

the bedroom wall. She also found blood

on the knif

e handle , but she w as unable to deter mine whose

blood it was. Several witnesses testified that it was obvious that a struggle had occurr ed in the bedroom because blood was present , the bed was broke n, and the mattress and box spri

ngs wer e off of the bed r ails.

Hunter Greene wi th the T.B.I. crime lab te stified that swabs taken from the victim’s anus revealed the presence of semen and saliva. Fur therm ore, th ere wa s saliva o n the vict im’s penis

. However, Mr. Greene was unable to determine whose semen or saliva was present. No semen was detected in the victim’s mouth.

Frank King, the Hamilton County Medica l Examiner, testified thathe perf ormed the autopsy

on the victim ’s body . The vic tim died fr om multiple

stab wounds. Dr. King testified that he counted twenty-eig

htstab wounds on the vi ctim’s body. He thoug ht that three of those stab wounds were fatal because they

penetrated

three inches into

the victim ’s left up

per neck, cutting

into the c arotid artery and jugular vein. Dr. King also locate d a stab wound to the left chest area of the victim, and this wound

caused significant bleeding and c aused the victim’s left lung to collapse. Dr. King stated that these wounds, if untreated, would cause death in approximately half an ho ur. Dr. Ki ng estimated that the knife cam e into con tact with the victim ’s body

sixty t o seventy times. He

also surmised that the victim cou ld have survi ved had he received medical attention. I n addition, he found evidence of blunt force trauma. Ther e were bruises on

the victim’s body, the

front tooth was broken at the gum line, there was a hemorrha ge in the left ey

e, and two hemorrhages under the scalp, all caused b y bl

unt forc e. Dr. Ki

ng foun d twelve i ncisions on the vict

im’s hand s, which h e sa i d indicated a struggle. He

also characterized

those wounds as “defensive wounds.” Dr. King sa id that there was no tra

uma to the

victim’s n eck that

would indic ate strang

ulation. T

he victim had cocaine in his system, and Dr. King also found semen in the victim’s anus.

Police investig ators be gan to in quire of the victim ’s frien

ds rega rding withwhom the victim had been spending

time short

ly b efore h

is death. The victim was a homosexual, and his friend Mr. Davis testified t hat, on July 7, 2001, less than three weeks be fore his death, the victim met the Defend ant. The Defend ant came in the store where the victim and Mr. Davis worked. Mr. Davis testified that the Defendant and the victim flirted with each other for about an hour. I n the days and weeks following, the Defendant and the victim beg an a personal relationship. Mr. Davis testified that the victim began to have “feeling s” for the Defendant, and he was “ very happy .”

Detective Ralph Freeman

testified that

he learned that the Defendant was the la st person seen with the victim. The Defendant was located in Georgia two days after the victim’s body was discovered. The Defendant initially said that he had not seen the victim for a week, and he did not know the victim was dead. However, Det. Fre eman said that the Defendant did not seem surprised by the victim’s death. W hen Det. Freema n confronted the D efenda nt with inc onsistenc ies in his st or y, he “star

ted cry ing” an d “wante d to go a

head and get it o ff his ch est b ecause it had been1 The De fenda nt failed to expla in in hi s st atement how or at wh at point

the eve nt moved from the vict im’s li ving room i nt o hi s be droom.

-3- bothering him.” Detective Michael Mathis testified that the Defendant admitted to having a sexual relationship with the victim; then he admitted to being involved in the victim’s death.

Inhis statement to the police, the Defendant explained that he met the victim at the clothing store. He said that the victim told him t hat if he would like to “party ,” to give him a call, and the victim gave h im his tele

phone num

ber. Ac cording

to the Defe

ndant’s s tatement , sometime later he met the victim

at a homosexual bar called the Tool Box. The two of them drank, smoked marijuana, and exchanged phone numbers

. On another occ asion , he w ent w ith th e vic tim to the T ool B ox, where the victim was employed as a female impersonator; then they went to the victim’s house. On another occasion, the victim left a message for the D efendant to call him, which he did. The victim thencame and picked up the Defendant, who ha d already been drinking vodka and “smoking.” They arrived at the victim’s house

just befo re se ven o’clock. The Defendant told the police that, when they went insid

e the vic tim’s house , the vict imbrought out a television and VCR. The victim began playing a pornographic videotape depicting men having sex. The Defendant asked the victim to stop the tape, and he did . The Def endant to ld the polic e that the victim the

n perfor med oral sex on him.

The Defendant told the police that, when the oral sex was over, he went to the bathr oom to urinate. When he returned from the bathroom, the victim, wearing only underwea

r, “yank[ed] [the Defend ant’s] pants down.” The Defendant speculated that the victim wanted

to “take [his] ass.” He told the victim “that ain’t gonna happen” and began

to le av e. Ho we ve r, th e v ic ti m a sk ed hi m t o s ta y, and he did. He sat down on the couch and lit a cigar ette. After a few

minutes, the victim push[ed] [the Defendant] down and [got] on top of [him].” According to the Defendant, this occurred in the living room. The two men struggled, and the Defend ant spotted “a butter knife or some kind of knife” on the cha

ir in the vi ctim’s be droom. 1 He desc ribed the kn ife as havin g a white handle. He grabbed the knife and stabbed the victim “quite a fe w times try ing to get him off.” However, the victim said nothing and did not let go of the Defendant. The knife broke, and the D efenda nt, still being held by the victim, got his belt, and wr apped it around the victim’s neck. The victim struggle d until he passed

out from bei ng strangled. When the Defenda nt saw that the victim was no longer movi ng, he to ok th e b el t a nd th e v ic ti m’ s k eys and left the house in the victim’s car. Hetold police that he did not lock the door behind him. He then drove around for awhile bef ore abandoning the car in a church p arking

lot.

The Defendant testified at trial. He recounted how he met the victim at the men’s clothing store, and stated that

they drank an d smoked ma

rijuana togethe r about f our times. The last time he

was with the victim

was at the victim’s house. The victim brought out a pornogra phic video, which he play ed while he and the Defendant smoked marijuana. T he victim performed oral sex on th e Defendant

on the couch in the victim’s living room. The Defendant tes tifie d that he went to the bathroom , and, when

he came out, the victim, who had taken off his clothes and was we aring only underwear, “grab[bed] [him] from behind.” The Def endant sa id, “Plea se don’t d

o this,” a nd he fel t the victim’s erect penis on his back, “humping” him. The two of the

m fought , and the Defendant-4-

grabbed a knife. The Def

endant te stified th at, altho ugh he w as stabbi

ng the victim with

the knife, the victim did n

ot respon d. Eventu ally the victim

let go of the Defendant, but he grabbed him again. At that point, the Defendant took his belt an

d wrappe d it aroun

d the vict im’s neck . When the v

ictim

was no longer moving, the Defenda nt left in the victim’s car and drove around for awhile be fore leaving the car in a church parking lot. The Defendant testified that he was afrai d the victim was going to rape h im, and tha

t was why

he killed him.

To rebut the testimony of the State’s witness, Janice Mum, that she kne w the victim to be “sweet, ” “kind,” a

nd “ge ntle,” th e defen se calle d James Tat um. He tes tified tha

t when the

victim

was on cocaine, he was “flirtatious,” “forward,” and a “horn dog.” Mr . Tatum rec ount ed one incident where the victim “forced himself” on him by

grabb ing him

and stick ing his tongue in

his

ear. The St ate then

rebutte d the testi

mony of Mr. Ta

tum with the

testimony

of Doug las Clay

cart. Mr. Claycar

t dated the victim for eight y ears inthe late 1980s. He testified regarding the victim’s aversion to violence.

The first issue raised by

the Defe ndant is whether th e trial c ourt err ed by refusin g to play for the jury the p orn ograp hic video tape tha t the Def endant a nd the vic tim watch ed toge ther. Shor

tly before the killing, the victim and the Defendant watched approximately two and one-half hours of the video in

the victim’s living room before the Defendant re quested that it be turned off. The video depicted men engaged in ho mosexual a cts, including oral sex and anal sex. Also, a warning appeared at the be ginning

of the vid

eo in whic

h a woman

dressed inbu siness attire discussed ho mo se xu al it y, sexually transmitted diseases, and the dang ers of unprotected sex, partic

ularly anal

sex.

The Defendant moved that the videotapebe introduced as evidenceto support his argument that the victim

initiated a homosexual assault. More specifically, the Defendant requested that the jury view only

the warn ings ann ounced a t t he begi nnin g o f the video. Defense counsel stated, “I don’t want to play the entire

video. What I would like to do is play the very beginning that does not involve any

pornog raphic s cenes.”

The St ate o bjected on the grounds that the defense ha d not established

that this was the actual video shown immediately prior to the victim’s death. T he State argued that if any portion of

the video wa s play

ed, then t he entir e three and one- half hour

sexually explicit video should be played.

The trial court ruled that the videotape could be admitted into evidence, but dec lined to play the tape for the jury

in open court. In so ruling, the judg e stated,

If [the jury ] want[s] to wa

tch it back in

the jury room, I

am going to let it -- I

am not goingto play it right now

into evide

nce. The y c an watch it if

they want. You

can ask her the nature of it. You can ask her some things on it, like did she see that opening part. I am n

ot going to play it right n ow. I mean it is goi ng to b e so di sgust ing. The jury has alre ady

said they don’t wa nt to see it

.2 The recor d does not ref lect whet her t he ju ry v iewe d the vide o or any porti on there of. The judge inst ructed the jury that if any of the video was to be viewed, the ent ire jury must view it together.

-5- The trial judge did allow

defense counsel t o question

Ms. La marre, the crime

scene technician who viewed the entire video, regarding the openi ng porti on of the v

ideo. Dur ing his examination o f Ms. Lamarre, defense counsel actually read verbatim the video’s opening segment reg arding the dangers of unprotected anal sex. The Defendant argues on a ppeal that the tape was relevant to show why he did not want to engage in anal sex with the vi ctim and that the victim was att empting to lure him

into such activity by

showing him the video.

The decision to admit or exclude evidence is gene rally left to the trial court’s discretion. See State v. James , 81 S.W.3d 751, 760 (Tenn. 2002). However, the issue before us is not whether the trial court erred by admitting the videotape into evidence. Neither party objected to the videotape being admitted, and we can infer that, because the trial court allowed the tape into evidence, it found the tape t o be rel evant , pres umabl y to the De fendan t’s cl aim of self- defens e. At o ne poi nt th e judge stated, “The video has been introduced. I f the jury wishes to see it back in the jury r oom, the jury

ma y. I am not going to let them play it in the courtroom.” The issue, then, is whether the judge e rred by not requiring the evidence to be presented in open court. We conclude that the court did err. Once the trial court

determined that the videotape or portions thereof were relevant and admissible, it should have pu bl is he d t ha t e vi de nc e t o t he ju ry. It was error f or the trial judge to simply a llow the jurors to decide for themselves whether they wanted to view evidence deemed by the judge to be admissible and relevant to the defense. 2

However, in light of all the other evidence in this case, we believe the tria l court’s error

in this regard was harmless. The jury heard from several witnesses that the victim and the Defendant watched over two hours of a graphic homosexual video shortly before the De fendant killed the victim. The jury

was also made awa

re that the video de

picted in detail men havin

g anal i ntercou rse and e ngaging in various other se x acts. Most importantly, defense counsel wa s permitted to re a d verbatim what was said during the opening portion

of the vide o reg ardi

ng th e dan

ger s of a nal se x. Thus, the portion of the video which the Defendant requested to be played in ope

n court was indeed communicated to the jury ve rbatim. Therefore, the trial court’s err or in not showing the video for the jury to view

in open court does not

“affirmatively

appear to have affected the result of the trial on the mer

its.” Ten n. R. Crim. P. 52(a); see also Tenn. R. App. P. 36(b).

The Defend

ant’s se cond issue

is whethe

r the evi dence is

l eg al ly sufficie

nt to suppor

t his convictionfor second degree murde r. Tennessee Rule of

Appellate Procedure 13(e) presc ribes that “[f] indi ngs of guilt

in crimina

l acti ons whether by

the trial court or jury

shall be set aside if the evidence is in sufficien t to suppor t the findi

ngs by the trier of fact of guilt bey ond a rea sonable doubt.” A convicted criminal defendant who challenges the sufficiency of the evidence on appeal bears the burden of demonstrating why the evidence is insufficient to support the verdict , becau se
a verdict of guilt destroy s the pr esumpti on of innocence and imposes a presumption of guilt. See State v. Evans , 108 S.W.3d 2 31, 237 (T enn. 2003 ); State v. Carruthers , 35 S.W.3d 516, 557-58 (Tenn. 2000); State v. Tu ggle , 639 S.W.2d 913, 914 (Te nn. 1982) . This Cour t must reje ct a-6-

convicted criminal defendant’s challenge to the suff iciency of the evidence if, after considering the evidence in a ligh

t most f avorab le to the prosecution, we determine that any rational trier of fact could have found the essential elements of the crime bey ond a reasonable doubt. See Jackson v. Virgini a , 443 U.S. 3 07, 319 (1 979); State v. H all , 8 S.W.3d 593, 599 (Tenn. 1999).

Onappeal, the State is entitled t o the stro ngest le gitimate view of the eviden

ce and a ll

reasona ble and legitimate inferences which may be drawn therefrom. See Carruthers , 35 S.W.3d at 558; Hall , 8 S.W.3d at 599. A guilty verdict by the trier of fact

accredits the testimony of the State’s witnesses and resolves all conflicts in the evidence in favor of the prosecution’s theor y. See State

v. Bla nd , 9 58 S.W.2d 651, 659 (Tenn. 1997). Questions about the credibility of witnesse s, the weight and value of the evidence, as well as all factual issues raised by the evidence areresolved by the trier of fact, and this Court will not re-weigh or re -evaluate the evidence. See Evans , 108 S.W.3d at 236; Bland , 958 S.W.2d a t 659. Nor

will this C ourt subs titute its own inferences drawn from circumstantial evidence for those drawn by the trier of fact. See Evans , 10 8 S.W.3d at 236-37; Carruthers , 35 S.W.3d at 557.

Our criminal code defines second degree murder as

“[a] knowing killing of another.” Tenn. Code Ann. § 39-13-210(a)(1). A person acts knowingly when that person “is aware that the conduct is reasonably c ertain to cause the result.” Id. § 39-11-302(b).

Essentia lly the Defendant argues that the e v ide nce is not sufficient to support a second degree murder conviction because he acted in self-def ense. However, whether he acted in self -defense was

a question of fact for the jury to decide, and, as we sta ted ab ove, t his C ourt d oes no t re-we igh or reevaluate the evidence. See Evans , 108 S.W.3d a t 236; Bland , 958 S.W.2d at 659. The Defendant testified at trial that he acted in self-defense, and the trial judge in structed

the jurors on their

duty to find the Defend

ant not g uilty if they deter

mined that he acted in self-defense. Neve rtheless, the jury discounted

or discr edited th e Defe

ndant’s t estimony , as it was entitled t o do, and f

ound him g

uilty of se co nd de gr ee mu rd er . Q ue st io ns of th e c re di bi li ty o f w it ne ss es ar e a ls o l ef t t o t he ju ry, notthis Court. See Evans , 108 S.W.3d a t 236; Bland , 958 S.W.2d at 659. The victim’s death was preceded by at least twenty-e ight

stab wounds and multiple inflictions of blunt force trauma. Given the brutal and violent nature of this killing, we do not hesitate to find that a rational juror co uld h ave found beyond a r ea so na bl e d ou bt th at th e D ef en da nt kn ow in gl y k illed the v ic tim. This issue is without merit.
The judgment of the trial court is affirmed.

___________________________________ DAVID H. WEL

LES, JUDGE