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

Briefs N ovembe

r 7, 2001 STATE OF TENN ESSEE v. DARR OW LYNN WILLIAMS Direct Appeal from the Circuit Court for Tipton County

No. 3739 Joseph H. Walker, Judge

No. W2001-01825-CCA-R3-CD - Filed Nove mber 29, 2001

Defendant

appealshis conviction of se cond deg ree mur der follo wing a j ury

trial. He presents three issues for our review: (1) whether the evide nce was sufficient to support the conviction; (2) whether the trial court erred in failing to instruct the jury to disregard certain hearsa y testimony ; and (3) whether the trial cou

rt erred in failing to rule on defendant' s objection to a question asked by the prosecuting attorney . We affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed J OE G. R ILEY , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and T HOM AS T. W OODA LL , J., joined. C. Michael Robbins, Memphis, Tennessee (on appeal); Gary F . Antrican, District Public Defender; and David S. Stockton, Assistant District Public Defender (at trial), for the appellant, Darr ow Ly nn Williams. Paul G. Summers , Attorne y General and Repor

ter; P. Robin Dixon, Jr., A ssistant A ttorney Genera l; Elizabeth T. Rice, D istrict At

torney Genera l; and James W. Freeland, Jr., Assistant District Attorney General, for the appellee, State of Te nnessee.

OPINION The defendant shot and

killed Lar

ry Fa yne, his brother- in-law, on February 6, 1999. The defendant was indicted by the Tipton County Grand Jury for sec ond degree murder, convicted a s charged at a jury

trial, and sentenced to 15 y ears. This appeal followed.-2- FACTS On Februa

ry 6, 1999, th

e defendant and s everal

other g uests atte nded a pa rty at the residence of t he defe ndant ’s sis ter and her hu sband , Larry Fayne. Mos t guest s were d rinki ng a lcoholi c bevera ges. One guest, Dale Mason, jok ed with the de fe nd an t, an d t he de fe nd an t b ec am e a ng ry. Mason explained he was only joking, a nd he and the defendant shook hands. Shortly thereafte

r, the defendant left the residence. The defendant returned to the residence in a pproximately 15 minutes. He entered the kitche n where Larry

Fayne and others were talking. The defendant wa s angry and accused Fay

ne of having him “set up.” The defendant then knocked a drink out of Fay ne’s hand. Fay

ne’s wife, Lisa, who was the defendant’s sister, immediately pushed the defendant out the door telling him to calm down and leave the house. Lar

ry Fa yne, who wa s standing immediately be hind his wife, told the de fendant , “[t]his is my house too, y

ou know.” The defendant, with a pistol to his side, then fired a shot which struck Lar ry Fay

ne in the f

ace. F ayne was sti ll standing and backed up into

the kitchen. Shortl

y thereafter, defendant raised his hand and fired another shot

which struck Fay

ne in the chest. Fay

ne died as a result of these gunshot wounds. The defenda

nt was the n seen in t he back ya rd of the residence walk

ing in circles

. However, when the police arrived, the defendant f led. He was later captured and ar rested.

SUFFICIENCY OF THE EVIDENCE Defendant

contends the evidence is insufficien t to e stabl

ish a “ know ing”killi ng. We respectfully disa

gree. A. Standard of Review In determining the sufficiency of the evidence, this court does not reweigh or

reevaluate the evidence. Stat e v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978). A jury verdict approved by the trial judge accredits the state's witnesses and resolves all conflicts in favor of the state. State v. Bigbee , 885 S.W.2d 797, 803 (Tenn. 1994). On appeal, the state is entitled to the strongest legitimate view of the evidence an d a ll legitimate or reasonable inference s which may be dr awn therefrom. Id. Accord i ng ly, it is the appellate court's duty to affirm the conviction if the evidence, viewed under these standards, was sufficient for any rational trier of fact to have found the essential e lements of the offense bey ond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. V irginia , 443 U.S. 307, 319, 99 S. Ct. 2781 , 2789, 61 L . Ed. 2d 560 (1979); St ate v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994).1 A quest ion i s usua ll y not hearsay excep t on “rare o ccasions” where i t i s use d to pr ove an i mplici t as sert ion. N. Cohen et al ., Tennessee Law of Evidence § 8.01 [10 ] n.34 (4 th ed. 2000). This m ay well be one o f those “rare occ asion s” sinc e the re ma rk im plied ly asse rted th at def end ant h ad a g un in tend ing to shoo t the vic tim. -3- B. Analysis Second degree murder is the “knowing k illing of another.” Tenn. Code Ann. § 39-13- 210(a)(1). As to t he “kn owing” mental state, the state must prove bey ond a reasonable doubt that the defenda

nt was aw are tha

t his condu ct was re asonably certain to cause the result. Statev. Ducker , 27 S.W.3d 889, 896 (Tenn. 2000); Tenn. Code Ann. § 39-11-106(a)(20). The defendant contends he was emotionally upset an d angry about offe nsive conduct directed towardhim, which

he believed was c aused in p art by the victim , Lar

ry Fay ne. He a rgues t he first shotwas fired while his hand was down by his side, although he acknowledges the se cond shot was firedwhen his hand was raised. He contends he acte d in a “sta te of pas sion produ ced by adequa te provocation suffic ie nt to lead [him] to act in

an irra tional man

ner;” therefor

e, he ar gues he could only be g uilty of voluntary

manslaughter. See Tenn. Code Ann. § 39-13-211(a). Whether acts co nsti tute a knowi ng kil ling, so as to support second degree murder, or a killing due to adequa

te provoc ation, so

as to support a conviction for voluntary manslaughter, is a question for the jury. State v. Johnson , 909 S.W.2d 461, 464 (Tenn. Crim. App. 1995). Here, the defendant left the residence but came back shortly ther eafter armed with a pistol. After the defendant phy sically

con f ronted the victim, defendant’s sister pushed the defendant out the door. The defendant then fired one shot s triking the victim

in th e face an d, whi le the victi m was s till stand ing, firedanother shot striking the victim in the chest. It wa s the jury’s prer ogative to find that the killing was knowing and convict the defe ndant o f second degree murder as opposed to voluntary manslaughter. The evidence wa s sufficient to support the verdict.

HEARSAY EVIDENCE One of the guests in the kitchen testified that, just prior to thefirst shot being fired, the victim stated, “[o]h, y ou’re g oing to shoot m e now?” Defendant contends this was inadmissible hearsay and, although no objection was made, this testimony constituted plain error. By fa il in g t o m ak e a co nt em po ra ne ou s o bj ec ti on to th e t es ti mo ny, defendant has waived this issue. State v. Thompson , 36 S.W.3d 10 2, 108 (Te nn. Crim. App. 2000). Furthermore, we reject defendant’s claim that the admissionof this testimony was plain error. If t he re ma rk wa s h ea rs ay, it cle arly qualifi ed under the excited utterance exception to the hearsay rule. 1 See Tenn. R. Evid. 803(2); State v. Gordon , 952 S.W.2d 817, 820 (Tenn. 1997). This issue is without merit.-4- FAILUR E TO RULE UP ON OBJECTION Stephanie Richardson, another sister of the defendant , was pre sent in the kitchen when the defendant returned to the residence. She testified she immediately went down the hall to call 911 when she saw the defendant. The prosecutor then asked, “Did you call bec ause you know about your brother and what he’s capable of?” The witness responded, “No, I . . . .” Defense counsel objected, cutting the witne ss off in

the middle of

her sentence. She then testified she called 911 bec ause “he came back mad.” Defendant contends the trial court’s failure to rule upon the objection prejudiced him by impermissibly

introducing character evidenc e. The witness testified she called 911 because the defenda nt was ang ry. This was not an impermissible character refere nce, and the defendant was not prejudiced in any way by the failure of the trial court to rule upon the objection. This issue is without merit.

CONCLUSION We find no error in the record; therefore , we affirm the judgment of the trial court.

___________________________________ JOE G. RILEY, JUDGE