IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs August 28, 2018

STATE OF TENNESSEE v. NICHOLAS WYATT BARISH

Appeal from the Criminal Court for Knox County

No. 97586 G. Scott Green, Judge

___________________________________

No. E2017-01794-CCA-R3-CD

___________________________________

The Defendant-Appellant, Nicholas Wyatt Barish, was convicted by a Knox County jury 

of two counts of first degree felony murder and one count of second degree murder, see

Tenn. Code Ann. §§ 39-13-202, -210, for which he received an effective sentence of life

imprisonment. In this appeal as of right, the Defendant argues that the evidence was 

insufficient to support his convictions of first degree felony murder because he did not 

have the requisite mental state to commit the predicate crimes of theft, burglary, and 

robbery. Upon review, we affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which THOMAS T.

WOODALL and TIMOTHY L. EASTER, JJ., joined.

Gerald L. Gulley, Jr. (on appeal) and Philip Lomonaco (at trial), Knoxville, Tennessee, 

for the Defendant-Appellant, Nicholas Wyatt Barish.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel;

Charme Allen, District Attorney General; and Kevin Allen, Assistant District Attorney 

General, for the appellee, State of Tennessee.

OPINION

On May 13, 2011, the Defendant struck the victim, Mathew E. Proctor, multiple 

times in the back of the head with a rock and left him face down in a river embankment, 

where the victim drowned as a result of his injuries. State v. Nicholas Wyatt Barish, No.

E2012-01353-CCA-R3-CD, 2013 WL 5436909, at *1 (Tenn. Crim. App. Sept. 27, 2013), 

perm. app. denied (Tenn. Mar. 5, 2014). Before leaving the scene, the Defendant 

returned to his car and put on a pair of gloves. He then entered the victim’s car in search 

of drugs and retrieved the victim’s cell phone, keys, and $420. Id. at *14. The victim’s 

01/04/2019
- 2 -

body was found later that night by two passing fishermen. The Defendant was developed 

as a suspect in the investigation and subsequently charged by presentment with 

alternative counts of felony murder based on theft, robbery, and burglary and additional 

counts of especially aggravated robbery and burglary. The Defendant entered a guilty 

plea to the burglary offense; however, he was convicted by a jury on the remaining 

charges. On appeal, this court reversed and remanded for new trial based on the trial 

court’s improper ex parte communications with the jury during its deliberations. Id. 

Upon remand, on December 12, 2016, the following proof was adduced at trial.

Michael Mays, records keeper for the Knox County Emergency Communications 

District, testified that he preserved the 911 call on May 13, 2011, reporting the finding of 

the victim’s body. The 911 call was played for the jury. 

John Scarlett testified that he was fishing with a friend on the evening of May 13, 

2011, when they found the victim’s body at the embankment of Turkey Creek Inlet. He 

said he “could tell [the victim] was dead” and called 911. He recalled a “little white car” 

at the scene. 

Christopher Marney testified that he had been friends with the Defendant for 

seventeen years and that the Defendant asked him to provide an alibi for the day of the 

victim’s murder. Marney said the Defendant “wanted me to say that I was with him

between the hours of three and nine[,]” that they were “[w]atching movies, cruising 

around, stuff like that[,]” and that he, the Defendant, and the victim “hooked up briefly 

[and] made an exchange[.]” After the police “immediately saw through” his alibi, he told 

the police that he had not seen the Defendant on May 13, 2011. On cross-examination, 

Marney clarified that the Defendant asked him to provide an alibi after the crimes 

occurred. 

Susano Sanchez testified that he worked with the victim in the days leading up to 

his murder. On May 13, 2011, Sanchez said the victim was frequently on his phone and 

that the victim showed him a “silver container, metal box” containing $3500 inside. On 

cross-examination, Sanchez admitted he had only known the victim for two days. 

Sanchez also said the victim’s money came from selling marijuana. 

Sergeant McKenzie Alleman of the Knox County Sheriff’s Office responded to 

the 911 call of the victim’s body found at the embankment and recorded a video of the 

crime scene, which was played for the jury at trial. She photographed the crime scene, 

explained that the victim’s body was lying face down in the water, and noted that there 

was “reddish brown staining” believed to be blood on rocks nearby. After the victim was 

taken out of the water, “scrapes and lacerations [] from his knees down his shins” and “a 

large injury to the side of the [victim’s] head” were visible. Sergeant Alleman further 
- 3 -

noted that the victim’s watch and wallet were found on his person. There was no cash 

inside the wallet, but the victim’s driver’s license and credit card were found inside. The 

victim’s hat was located near his body and his shoes were found floating in the water. 

Sergeant Alleman then identified photographs of the victim’s white BMW that 

was located across the street from the crime scene and noted that the driver’s window 

was down and the driver’s door was not completely closed. Inside the victim’s car, 

Sergeant Alleman found a “sprinkler head with 38 unknown pills” and multiple single 

serve plastic bags similar to those later found at the Defendant’s house. The Defendant’s 

car was also inventoried and inside there was “a plunger style syringe” and “a bent spoon 

that appeared to be drug paraphernalia.” Sergeant Alleman testified that she, Detective 

Dale Dantzler, and Detective Walt Smith executed a search warrant at the Defendant’s 

house. She collected evidence from the Defendant’s bedroom, including a “silver tin 

box” containing single serve plastic bags similar to those found in the victim’s car and 

other drug paraphernalia. She also noted that the Defendant’s fishing poles in the garage 

were covered in cobwebs, which indicated that they had not been used recently. Sergeant 

Alleman testified that she did not recover the victim’s cell phone but that Chief Cowan 

retrieved a “red and silver” LG cell phone located “on the side of the road.” On crossexamination, Sergeant Alleman testified that the victim’s car was also inventoried and 

inside they found “a green leafy substance and a pipe[.]” 

The trial court held a jury-out hearing to determine whether Keri Weatherford, the 

victim’s girlfriend at the time of his death, was unavailable for purposes of admitting her

former testimony. After hearing from the victim witness coordinator and criminal 

investigator for the Knox County Attorney General’s office, the trial court determined 

that Weatherford was an unavailable witness subject to an instanter subpoena and, 

without objection, the State read her former testimony into the record. On the final day 

of trial, Weatherford was arrested and brought to the courthouse. Defense counsel chose 

not to call her as a witness. 

In her prior testimony, Weatherford testified that she was the victim’s girlfriend 

and lived with him in his parents’ house. She described the victim as someone who was 

very clean and did not like to get dirty. She said he “was a great swimmer” and enjoyed 

scuba diving and fishing. She confirmed that she was bisexual, that the victim was 

straight, and that she did not know the victim to have relations with other men. She said 

she met the Defendant several years prior because the victim was the Defendant’s friend 

and drug dealer. She agreed she never knew the victim and the Defendant to have a 

relationship other than through drugs. She said the victim earned money by selling drugs 

and explained that he would “keep everything in this little tin Eddie Bauer box and then 

at night instead of taking his stuff into his parents’ house, he hid them in the sprinkler 

system outside in the yard.” She testified that the victim used his cell phone to sell drugs 
- 4 -

and that his phone “never left his hand or his pocket.” She confirmed that the victim 

owned a white BMW and said he never left the car unlocked. On May 13, 2011, 

Weatherford said she, the victim, and several friends were drinking at a local bar when 

the victim had to “make a run.” She said the victim left between 6:30 p.m. and 7:30 p.m.

to sell drugs, that he said he would “be back in 15” minutes, and that he left his bar tab 

open. She asserted that the victim “wouldn’t go somewhere and get dirty” because he 

planned to return to the bar. She confirmed that she did not see any bruises or lacerations

on the victim or “any open gashes on his skull” that night, but said he “bumped his head”

on a door earlier that evening. 

Captain Brad Hall of the Knox County Sheriff’s Office testified that he obtained 

the phone records of the victim and the Defendant for the days leading up to the victim’s

murder. The records showed that the last person who contacted the victim was the 

Defendant. The victim’s phone was last connected to a cell tower at 8:11 p.m. on the 

night of his murder, and Detective Hall explained this could be because the phone lost 

power, was turned off, or did not have access to a tower. Captain Hall also obtained a 

video recording of the traffic cameras from May 13, 2011. The video recording showed 

the victim and the Defendant traveling the same route to a Domino’s parking lot shortly 

before 8:00 p.m. Shortly after 8:00 p.m., both men could be seen exiting the side street

connected to Domino’s and traveling the same route to their “ultimate destination” at the 

embankment across from a U.S. Cellular store. Captain Hall obtained surveillance 

footage from U.S. Cellular which showed the Defendant and the victim parking their cars 

across from the embankment at 8:11 p.m. At 8:13 p.m., the video showed both men walk 

across the street and go out of view down the embankment. At 8:17 p.m., the victim 

briefly returned to the street and then went back down to the embankment. At 8:23 p.m., 

the Defendant returned to the street alone, walked across the street, and opened the doors 

of his car. The Defendant then opened and leaned into the front door and trunk of the 

victim’s car. The Defendant then returned to his own car and drove away. On crossexamination, Captain Hall explained that the Defendant and the victim exchanged 

multiple text messages the day before and the day of the victim’s murder. Captain Hall 

agreed that the text messages “appear” to show that the Defendant owed money to the 

victim. 

Knox County Sheriff’s Detective Dale Dantzler testified that he reviewed the cell 

phone records of the Defendant and the victim and confirmed that the last person to 

contact the victim on the night of his murder was the Defendant. On May 16, 2011, the 

Defendant was pulled over by police for driving on a revoked license and gave a 

statement regarding the instant crimes, which was played for the jury at trial. After the 

interview, the Defendant took Captain Clyde Cowan and Lieutenant Mark Webber to the 

location where the Defendant “smashed” the victim’s phone on the side of the road. 

Detective Dantzler confirmed that he was present when the Defendant gave “sworn prior 
- 5 -

testimony” at his previous trial, which was also played for the jury. On crossexamination, Detective Dantzler confirmed that the Defendant did not tell him that he 

robbed the victim of his phone and keys. Detective Dantzler was unsure whether testing 

was performed on the victim’s phone but confirmed it was given to the forensic computer 

crimes unit. He recalled “a green leafy substance and a pipe” found in the victim’s car 

and the State stipulated that a scale was also found inside. Asked if there were any facts 

that showed the victim’s cell phone and keys were down at the bottom of the hill under 

the bridge, Detective Dantzler said, “No.” On redirect, Detective Dantzler identified the 

victim’s cell phone on the evidence log but confirmed it was not an exhibit at trial. 

In his May 16, 2011 recorded statement to police, the Defendant initially admitted 

to meeting the victim the night of his murder for “two minutes.” After the Defendant was 

Mirandized and waived his rights, he explained that he visited the victim at his house 

around 2:30 p.m. on May 13, 2011, to buy drugs and stayed for approximately twenty 

minutes. The Defendant said he returned home by 3:00 p.m. and his friend, Chris 

Marney, came over around 3:30 or 4:00 p.m. The Defendant said he and Marney later

met a lady named Suzanne to buy more drugs around 4:30 p.m. Around 7:45 p.m., the 

Defendant said he spoke to the victim and that the Defendant, the victim, and Marney

met beside Domino’s to exchange drugs and money. The Defendant said the victim then 

left to meet someone else and the Defendant immediately went home. He said Marney 

left around 9:30 or 10:00 p.m. and then the Defendant visited his brother, Lewis Barish,

until around 1:00 a.m. The Defendant said he never met the victim at the embankment

and that he did not speak to the victim again after their exchange on May 13, 2011. The 

Defendant said he learned of the victim’s death the next day from mutual friends. 

When pressed by the police, the Defendant gave a different version of events. He 

explained that after he met the victim at Domino’s, they went down to the embankment to 

go fishing. He said the victim fell, hit his head on the rocks, and then drowned in the 

water. He said he was too scared to call 911 and feared that he would be held responsible 

for the victim’s death. He said he then put on gloves and searched the victim’s car for 

drugs and money. He admitted that he took the victim’s keys and phone, threw the keys 

in the woods, and was willing to show the police where he smashed the victim’s phone

on the side of the road. He said he returned his fishing poles to his garage. When further 

pressed by the police, the Defendant said he tried to save the victim and performed 

cardiopulmonary resuscitation (CPR) on the victim, but the victim drowned almost 

immediately. The Defendant said he left the victim face up with half of his body in the 

water. He also admitted to taking a tin metal box which he believed contained money 

from the victim’s car and said he threw it in the woods with the keys. The Defendant

asserted, “I did not hit him in the back of the head with a rock.” 
- 6 -

In his prior sworn testimony from his first trial, the Defendant testified that he 

lived with his father and had known the victim for four to five years. The Defendant 

admitted that he was addicted to drugs and used the syringes found in his house to inject 

them. He explained that the victim was his drug dealer but in the weeks before the 

victim’s murder their relationship turned into a secret “sexual” relationship. He said he 

and the victim would have sex “anywhere that was convenient,” including on the 

embankment where the victim was killed and in the backseat of cars. He said Keri 

Weatherford was not the victim’s girlfriend and believed she was a lesbian. On the day 

before the murder, the Defendant said he purposefully ignored the victim’s calls and texts 

because he owed the victim money. He admitted that his previous statement to the police 

was not true and that he did not meet the victim until around 8:00 p.m. at Domino’s to 

exchange drugs and money. The Defendant said they then decided to go to the 

embankment to have sex. He explained that he and the victim drove separately and 

parked across the street from the embankment. He said the victim put his phone on the 

car charger before both men went down to the embankment. The Defendant confirmed 

that he did not have a gun, knife, or weapon with him. He said the victim briefly returned 

to the street to check on his car and then returned to the embankment. The Defendant 

then told the victim he had “started to develop feelings” for the victim at which point the 

victim implied he was only interested in sex. The Defendant said he “lost it,” he “freaked 

out,” that “rage took over, and [he] tackled” the victim. He said he was on top of the 

victim when he grabbed a rock and hit the victim in his head “more than twice.” He said 

the bruising on the victim’s arm “must have been when I grabbed his arm when he tried 

to hit me.” The Defendant explained that the men eventually ended up in the water and 

that he thought the victim was dead when he stopped moving. The Defendant said he 

then returned to his car, put on gloves, and “rifled through [the victim’s] car for pills or 

money.” He confirmed that he found $420 but no drugs in the victim’s car. On May 16,

2011, the Defendant was arrested and gave consent to the police to search his person, car, 

and house. The Defendant said he asked Chris Marney to provide an alibi and admitted 

to lying to the police because he was “scared,” “freaked out,” “embarrassed,” and “tried 

to cover it up.” 

On cross-examination, the Defendant agreed that he could not dispute Keri 

Weatherford’s testimony that she shared a room with the victim and was the victim’s 

girlfriend. The Defendant confirmed that his house was approximately one to two miles 

from the embankment and that the house was empty the night of the murder. He agreed 

that the victim liked to maintain his appearance and that he did not like to get dirty when 

dressed nicely. He confirmed that he knew the victim was a successful drug dealer and 

that he kept money in the silver tin box and drugs in the sprinkler head. The Defendant

said he did not steal the sprinkler head the night of the murder because it was behind the 

seat and he did not look back there. He described the method he used to ingest drugs, 

confirming that he used a spoon and syringe similar to those found in his house and car. 
- 7 -

Regarding the night of the murder, the Defendant said he knew the victim was at the bar 

before they met and that he only intended to make a brief exchange with the victim. He 

denied that the victim’s last call was with the Defendant because he said he saw the 

victim talking on his phone before they went down to the embankment. After hitting the 

victim in the head multiple times, the Defendant thought the victim was dead and said he 

left him face down in the water. He denied taking the victim’s wallet, cash, or cell phone 

from his pockets and said, “[T]hat was not my intention at the time.” He said he knew 

the victim kept a stash of pills on his person or in his car and that he wanted those drugs. 

He agreed that this was the first time he claimed that he killed the victim after being

“provoked” by the victim.

Dr. Christopher Lochmuller, an expert in pathology and autopsy and the Chief 

Deputy Medical Examiner for Knox County, testified that he examined the body of the 

victim and concluded that the manner and cause of death was homicide, specifically 

“drowning due to fresh water emersion with incapacitation due to blunt force injuries of

[the] head.” He explained that the victim’s lungs were filled with water and “aspirated 

plant material” and that there were “four distinctly separate impact sites on the back of 

the [victim’s] head associated with bruising of the brain and some hemorrhage around a 

part of the brain.” There were also scrapes and bruises across the victim’s body and “a 

pattern injury on the left arm consistent with an imprint of four fingers[,]” indicative of 

the victim being grabbed from the side or from behind. Dr. Lochmuller testified that the

toxicology report showed the presence of oxycodone, alprazolam, and marijuana in the 

victim’s system. Regarding the blunt force injuries, Dr. Lochmuller opined that for

“[s]omeone as healthy as this individual, those injuries should not have been fatal by 

themselves.” Dr. Lochmuller confirmed that these injuries could not have happened from 

the victim “rolling and somersaulting down a rocky terrain.” He opined that the victim 

was likely attacked from behind because “[i]t would be difficult to strike somebody with 

an object on the back of the head if you were in front of them.” On cross-examination, 

Dr. Lochmuller said he saw blood on the rocks at the crime scene and confirmed that a 

rock could have been used to cause the victim’s blunt force injuries. He agreed that the 

injuries on the victim’s back could have been consistent with “falling down hard [] on 

these rocks” or “being dragged” across the rocks. 

Lewis Barish, the Defendant’s brother, identified the house where officers 

performed the search warrant as his father’s house where the Defendant lived. He 

identified the Defendant’s fishing poles in the garage and agreed that the garage was in 

the same or similar condition in the photographs as it was when the Defendant was 

arrested. On cross-examination, he admitted that he did not take the photographs of the 

house and garage and was not present when they were taken. 
- 8 -

On December 15, 2016, the Defendant was convicted of two counts of first degree 

felony murder (counts one and three) and one count of the lesser included offense of 

second degree murder (count two). See Tenn. Code Ann. §§ 39-13-202, -210. The trial 

court merged counts two and three into count one and imposed a life sentence. On 

January 9, 2017, the Defendant filed a motion for new trial, which was amended on 

August 30, 2017. The trial court denied the motion on August 31, 2017. It is from this 

judgment that the Defendant appeals.

ANALYSIS

On appeal, the Defendant argues that the evidence is insufficient to sustain his 

convictions for first degree felony murder. The Defendant does not dispute that he

murdered the victim. Instead, the Defendant asserts that the theft and burglary were 

“crime[s] of opportunity after the killing” as evidenced by the fact that the victim’s wallet 

and watch were still on his person, and the burglary and theft of the victim’s car

happened after the murder. The State responds that the evidence at trial, including the 

Defendant’s own admissions, is sufficient to support the Defendant’s convictions and the

determination that the Defendant had the requisite mental state prior to or concurrent with 

the killing. As to the Defendant’s convictions for felony murder in counts one and three, 

we agree with the State. Because the Defendant was convicted of the lesser-included 

offense of second degree murder in count two, we disregard his argument addressing that 

issue on appeal. 

“Because a verdict of guilt removes the presumption of innocence and raises a 

presumption of guilt, the criminal defendant bears the burden on appeal of showing that 

the evidence was legally insufficient to sustain a guilty verdict.” State v. Hanson, 279 

S.W.3d 265, 275 (Tenn. 2009) (citing State v. Evans, 838 S.W.2d 185, 191 (Tenn. 

1992)). “Appellate courts evaluating the sufficiency of the convicting evidence must 

determine ‘whether, after viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements of the crime 

beyond a reasonable doubt.’” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012) 

(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see Tenn. R. App. P. 13(e). 

When this court evaluates the sufficiency of the evidence on appeal, the State is entitled 

to the strongest legitimate view of the evidence and all reasonable inferences that may be 

drawn from that evidence. State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011) (citing 

State v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010)).

Guilt may be found beyond a reasonable doubt where there is direct evidence, 

circumstantial evidence, or a combination of the two. State v. Sutton, 166 S.W.3d 686, 

691 (Tenn. 2005); State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998). The standard of 

review for sufficiency of the evidence “‘is the same whether the conviction is based upon 
- 9 -

direct or circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) 

(quoting Hanson, 279 S.W.3d at 275). The jury as the trier of fact must evaluate the 

credibility of the witnesses, determine the weight given to witnesses’ testimony, and 

reconcile all conflicts in the evidence. State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 

2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)). Moreover, 

the jury determines the weight to be given to circumstantial evidence, the inferences to be 

drawn from this evidence, and the extent to which the circumstances are consistent with 

guilt and inconsistent with innocence. Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 

184 S.W.3d 646, 662 (Tenn. 2006)). When considering the sufficiency of the evidence, 

this court “neither re-weighs the evidence nor substitutes its inferences for those drawn 

by the jury.” Wagner, 382 S.W.3d at 297 (citing State v. Bland, 958 S.W.2d 651, 659 

(Tenn. 1997)). 

As relevant in this case, felony murder is “[a] killing of another committed in the 

perpetration of or attempt to perpetrate any . . . burglary [or] theft[.]” Tenn. Code Ann. §

39-13-202(a)(2). The culpable mental state required for a felony murder conviction is the 

intent to commit the underlying felony, namely burglary and theft in this case. Tenn.

Code Ann. § 39-13-202(b); see Wagner, 382 S.W.3d at 299. “A person commits 

burglary who, without the effective consent of the property owner . . . enters any freight 

or passenger car, automobile, truck, trailer, boat, airplane or other motor vehicle with 

intent to commit a felony, theft or assault or commits or attempts to commit a felony, 

theft or assault.” Tenn. Code Ann. § 39-14-402(a)(4). “A person commits theft of 

property if, with intent to deprive the owner of property, the person knowingly obtains or 

exercises control over the property without the owner’s effective consent.” Tenn. Code 

Ann. § 39-14-103(a).

The Defendant argues that the proof in this case was insufficient to prove that he 

had the culpable mental state to commit theft or burglary when he killed the victim. 

Therefore, we must determine whether the evidence supporting his underlying 

convictions satisfies the felony murder rule. The felony murder rule applies when the 

killing is “‘done in pursuance of the unlawful act, and not collateral to it.’” State v.

Banks, 271 S.W.3d 90, 140 (Tenn. 2008) (quoting Rice, 184 S.W.3d at 663). In other 

words, “‘[t]he killing must have had an intimate relation and close connection with the 

felony . . . and not be separate, distinct, and independent from it.’” State v. Thacker, 164 

S.W.3d 208, 223 (Tenn. 2005) (quoting Farmer v. State, 296 S.W.2d 879, 883 (Tenn. 

1956)).

“A killing that precedes, coincides with, or follows the commission of an 

underlying felony will be considered ‘in the perpetration of’ the underlying felony, so 

long as there is a connection in time, place, and continuity of action.” Wagner, 382 

S.W.3d at 299 (citing State v. Pierce, 23 S.W.3d 289, 294-97 (Tenn. 2000); State v.
- 10 -

Buggs, 995 S.W.2d 102, 106 (Tenn. 1999)). There should also be a causal connection 

between the killing and the underlying felony. Buggs, 995 S.W.3d at 106 (citing Farmer, 

296 S.W.2d at 884; State v. Severs, 759 S.W.2d 935, 938 (Tenn. Crim. App. 1988)). 

Requiring this causal connection supports the deterrent effect of the felony murder rule 

by excluding killings that are “collateral to and separate from the underlying felony.” 

Pierce, 23 S.W.3d at 296.

In a felony murder case, the “intent to commit the underlying felony must exist 

prior to or concurrent with the commission of the act causing the death of the victim.” 

Buggs, 995 S.W.2d at 107. If the underlying felony and killing were part of a continuous 

transaction with no break in the chain of events and the felon had not reached a place of 

temporary safety between the events, felony murder is sufficiently established. Pierce, 23 

S.W.3d at 295. “[W]hether a defendant intended to commit the underlying felony, and at 

what point the intent existed, is a question of fact to be decided by the jury after 

consideration of all the facts and circumstances.” Wagner, 382 S.W.3d at 300 (citing 

Buggs, 995 S.W.2d at 107). As applicable in this case, “a jury may reasonably infer from 

a defendant’s action immediately after a killing that the defendant had the intent to 

commit the felony prior to, or concurrent with, the killing.” Buggs, 995 S.W.2d at 108 

(citing State v. Addison, 973 S.W.2d 260, 266 (Tenn. Crim. App. 1997); State v.

Johnson, 661 S.W.2d 854, 861 (Tenn. 1983); State v. Holland, 860 S.W.2d 53, 59 (Tenn. 

Crim. App. 1993)).

The evidence, when viewed in the light most favorable to the State, is sufficient to 

sustain the Defendant’s convictions for first degree felony murder. The proof established 

that on May 13, 2011, the Defendant was aware that the victim had a substantial amount 

of drugs and money because the victim was a known drug dealer. At his first trial, the 

Defendant admitted that he became angry with the victim, struck him in the head with a 

rock multiple times, and left him face down in a river embankment. The medical 

examiner confirmed that there were “four distinctly separate impact sites on the back of 

the [victim’s] head associated with bruising of the brain and some hemorrhage around a 

part of the brain.” Moreover, the surveillance footage confirmed that the Defendant and 

the victim parked their cars across from the embankment at 8:11 p.m., and both men 

walked across the street to the embankment at 8:13 p.m. At 8:17 p.m., the victim briefly

returned to the street and then went back down to the embankment. Six minutes later, the 

Defendant returned to the street alone, opened the doors of his car, and put on gloves. He

then opened and leaned into the front door and trunk of the victim’s car. The Defendant 

returned to his own car and drove away. The surveillance footage corroborates the 

Defendant’s admission that he riffled through the victim’s car and took his keys, phone, 

and a tin can where the victim kept his money. Based on this evidence, a rational jury 

could have reasonably inferred that the Defendant had the intent to commit theft and
- 11 -

burglary prior to, or concurrent with, the killing of the victim. Accordingly, we conclude 

that the evidence is sufficient to sustain the Defendant’s convictions.

CONCLUSION

Based on the foregoing reasoning and analysis, we affirm the judgments of the 

trial court.

____________________________________

 CAMILLE R. MCMULLEN, JUDGE