# FILED
September 26, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF CRIMIN AL APPEALS OF TENN ESSEE AT JACKSON MARCH 1997 S ESSION

STATE OF TENNESSEE, ) ) No. 02-C-01- 9601-CR-00040 APPELLEE, )

) Shelby Count

y v. ) ) John P. Colton, Jr., Judge REGINALD O. WEBB, ) ) (Second Degree Murder) APPELLA NT. )

FOR TH E APPEL LANT: FOR THE APPELLEE: W . Mark Wa rd John Knox Walkup Assistant Publ ic Defender Attorney Gen eral & Repor ter 147 Jefferson, Suite 900 500 Charlotte A venue Memphis, TN 38103 Nashvil le, TN 37243-0497 (App eal O nly) Clinton J. M organ Loyce D. Lambert Assistant Att orney Gener al Assistant Publ ic Defender 450 James Roberts on Parkway 201 Poplar Avenue, Suite 201 Nashvil le, TN 37243-0493 Memphis, TN 38103- 1947 (Tria l Only) William L. Gibbons Distric t Attorney General OF COUNSEL: 201 Poplar Avenue, Suite 301 A C Wh arton, Jr. Memphis, TN 38103- 1947 Public Defender 201 Poplar Avenue, Suite 201 James M. Lammey, Jr. Memphis, TN 38103- 1947 Assistant D istrict A ttorney Gener

al 201 Poplar Avenue, Suite 301 Memphis, TN 38103- 1947

OPINION FILE D: _____________________________

_ AFFIRMED
Joe B. Jo nes, Pre siding Jud ge


### O P I N I O N1 The defendant te stified his name is Reginald Orlando Monr oe. However, he stated he also goes by the name of Reg inald O. Webb. 2 The ap pellant, Reg inald O. Webb 1 (defendant), was convic ted of murder in th e second degree, a Class A felo ny, b y a jury of his peers. The trial cour t found that the defendant was a sta nd ard offender and imposed a Rang e I sentence cons isting of confinementfor twenty (20) year

s in the Depar

tm ent of Correcti on. In this C ourt the def endant contends (a) the evidence was insuffici ent, as a matter of law, to support a finding by a rati onal trier of fact that he wa s guilty

of murder in the s econd degree, a nd (b) the trial court co mmit ted error of prejudicial di mensions by i nstructing the jury on flight following the commission of a criminal offense. After a thoroug h review of the record and the briefs submitted by the parties, it is this Court’s opi nion the judgment of the trial court should be affirmed. On the eveningof December 18, 1993, the victim, Quinton Mitchell, and some of his friends visited the Club River City. The nightclub w as located at th e intersecti on of Jackson Avenue and Dunlap Str ee t in Memphis. When the club closed on the morni ng of December

19, 1993, at app roximat ely 3:30 a.m., there was a confrontation between the vic tim, the defendant, and some of the def endant’s friends. It appears ther e was an ear lier confrontation and fight the week before betw een some of the defendant’s friend s and relatives of the victi m. The victi m shouted obsceniti es to these indi viduals an d called them cowards. As the defendant and his friends were walking acr oss Jackson A

venue in front of the nightclub, the victim walked toward the def endant and his frien ds. W hen Ontario Simpson, known as “Little Man” to most of the witnes ses, objected to the c omm ents mad e by the vict im, the vic tim struck S impson wit h his fist. The defendant testified he thoug ht Simpson was too small to fight the victim who was a much larger man. The defendant asked the v ictim: “Why don’t you fight me?” A fistfight erupted between the defendant and the v ictim. Afriend of the def endant and a frien d of the victim made several attempts to stop t he fight. Eventually, these friends wer e able to separat e the def endan t and th e victim, a nd the p arties qui t fighti ng. A friend of the defendant retrieved a motor vehi cle and pulled onto Jackson Avenue.3

The defendant stopped the vehicle, the dr iver ope ned the trunk of the v ehicle, and the defendant retrieved a pistol from t he trunk. He then began walking tow ards the vi ctim and two of his friends w ho were s tanding in front of a fast food establi shment. When one of the victim’ s friends saw that the defend ant was ar med with a pi stol, he told the victi m to
run. The victim stood there for a second . The victim and his friends then ran around th e side of the building to an alley and began runningdown the al ley. The defendant c hased the victim. He fired six shots from the pistol. One of the projec tiles str uck the vi ctim in the back. He died shortly

after being sh ot. An autopsy was performed by Dr. Jerry T. Fra ncisco. He testified the v ictim died from the gunshot wound to the back. The projectile struck large vessels in the chest and the heart. The bull et then exit ed through the victim’ s chest. The defendant an d his witnesses admitted the def endant and the victim fo ught until the friends separated the combatants. However, all o f thes e witness es denied that the defendant was armed w ith a pistol and the defendantshot the victim. According to these witnesses, they heard t he gunshotswhile the d efen dant an d the victim were still f ighting. They said after they heard g unshots, they fled in a vehi cle.

I.

The defendant contends the evidence is insufficient, as a ma tter of law, to support his conviction for murder in the second de gree. He argues the record establish es th e offense of voluntary manslaughter.

A.

When an accused chal lenges the s ufficiency of theconvicting evidence, this Court must review the record to determine if theevidence addu ced attrial is sufficient "to suppo rt the finding by

the trier of fact of guilt beyond a reasonable dou bt." Tenn. R. App. P. 13 (e). This rule is app licable t o find ings of gu ilt base d upon direct ev idence, circumstantial evidence, or a comb inat ion of direct and circumstanti al evidenc e. State v. Dy kes , 8034

S.W.2d 250, 253 (Tenn. Crim. App.), per . app . denied (Tenn. 1990). In determining the sufficiency of the convicti ng evidence, this Cour t does not reweigh or reeval uate the evide nce. Stat e v. Mat thews , 805 S.W.2d 776, 77 9 (Tenn. Crim

. App.), per . app . denied (Tenn. 1990). N or may this Court substi tute its inferences for those drawn by the tri er of f act from circumstantial ev idence. Liakas v. State , 199 Tenn. 298, 305, 286 S.W.2d 856, 859, cert
. denied , 352 U.S. 845, 77 S.Ct. 39, 1 L.Ed. 2d 49 (1956). To the contrary, this Court is required to afford the St ate of Tenne ssee the strongest legitimateview

of the evidence contained in the record as well as all reasonabl e and le gitimateinferences w hich may be dr awn from the ev idence. State v. C abbage , 57 1 S.W .2d 832, 835 (Tenn . 1978). Quest ions co ncerning th e credibili ty of the w itnesses, the weight and value to b e given the evidenc e, as well as all factual i ssues raise d by the evidence ar e resolve d by the trier of fact, not this C ourt. Cabbage , 571 S.W.2d at 835. In Stat e v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973), ou r Supreme Cour t said: "A guilty

verdict by the jur

y, approved by the trial judg e, accredits the testimony

of the witnes ses for

the State an d resolves all conflicts in fav

or of the theory

of the State." Since a verdic

t of guilt removes the pre sumption ofinnocence and replaces i t with
a pres umption of guilt, the accused, as the appellant, ha s the burden in this Court o f illustrat ing why t he evidence i s insufficient to support the verdicts re turned by thetrier of fact. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). This Cou rt will not disturb a verdict of guilt due to

the sufficiency

of the evide nce unless the facts contained i n the record are insufficient, as a matter of law, for a r

ational tri er of fact to find that the accused is guilt y beyond a

reasonable doubt. Tuggle , 639 S.W.2d at 914.

B.

Before an accused can beconvicted of murder in the second degr ee, the State of Tennessee must prove beyond a rea sonable doubt the accused “ knowing ly kil led” the vic tim. Tenn. Code Ann. § 39-13 -210(a). Before an accused can be convi cted of voluntary manslaughter, the State of Tennessee must prove beyond a reas onable doubt the acc used5

(a) intentionall y or know ingly killed the v ictim and (b) the accused was “i n a state of passion produced by adequate provocation sufficien t to lead a reaso nable person to act in an irrational manner.” Tenn. C ode Ann. § 39-13-211(a) . As a gener al rule, w hether the
acc used killed the victim i n the heat of passion as defined by the statute is a q ue stio n which the j ury mu st res olve when determining whether the killing in question was murder in the second degree or voluntary manslaughter. In this case, the jury rejected the defendant’s arg ument that he killed the victim in
a state of passion by

finding the defendant g uilty of murde r in the secon d degree. The evide nce s upp orts the ve rdict of t he ju ry. As previous ly stated, the friends of thedefendant an d the victim were successful in stopping the fight. The victim retreated to the corner of a build ing. He was not ar med. The defendant walked into the middle of Jackson Avenu e. He sig naled his friend who had broughthim to the nightclub to stop his motor vehicle. He obtained a pi stol from the tru nk of the vehicl e. When the victim reali zed the d efendant w as armed, he ran around the
corner of a building with two of his friends. The defendant g ave chase. As the three men ran along an alley

behind the buil dings on thenorth side of Jac kson, the defendant fired six shots. One of these shots struck the victim. W hen the shots were fired, the victim did not pose a thr eat to the defendant. In fact, the vic tim was r unning away from the defendant. In short, thejury could concludefrom these facts sufficient time had elapsed between the fight and the fatal shooting for any state of passion w hich may have existed to dissipate. The defendant could and shoul d have gott en into the vehicl e he stopped and left the area. After

killingthe victi m, the defendant left the sc ene in this sa me vehicle. This Court concludes there is sufficient evidence contained in the record to sup port
a finding by

a rational t rier offact the defendant was guilty of murder in thesecond degre e beyond a reas onable doubt. Tenn. R . App. P. 13(e) . Thus, this i ssue is w ithout merit.

II.

When the trial court advis ed counsel the court was going to i nstruct the j ury on the law of flight, defense counsel objected to givi ng the instr uction. Couns el argued that while6

the defendant left the situs of the crime, he di d not hide from the police or conceal hims elf. The State of Tennessee urged the tr ial court to includ e a fligh t instruc tion in th e charge given to the jury . The trial court subseque ntly instructed the jur y on fligh t. The defendant relies u pon this Court ’s opinion i n State v. W hittenmeir , 725 S.W.2d 686 (Tenn. Crim. App. 1986), per . app . denied (Tenn. 1987). In W hittenmeir , this Court held the evidenc e must establis h (a) the acc used must leave the situs of the c rime and, subsequently , (b) hide, evade, or conceal himself w ithin the communit yor lea ve the c ity. This Court recog nized the hol ding in W hittenmeir in State v. Pay ton , 782 S.W.2d 490, 498 (Tenn. Crim. Ap p.), per . app . denied (Tenn. 1989). In Payton , the accused l eft the situs of the crime. However, he subsequently returned. The defendant attempted to evade the police when the police attem pted to take him into custody. He was arrested when he slipped and fell to the ground. This Court held that a flight inst ruction was properly given by the tri al court. In ruling , this Cour t said: “The defendant ’s evasion of author ities, no matter how brie f, met the second part of the [ W hittenmeir ] test.” 782 S .W.2d at 498. In this case, t he defendant left the scene of the murder w ith h i s friend in a motor vehicle. The d efe nda nt kn ew his i den tity was known to the witnes ses. Thus, he spen t the nightwith a friend. The police called th e defendant ’s mother and ex-girlfriend in an effort to locate the defendant. His m other notifi ed him t he poli ce we re loo king for him

. Later that day, he we nt to t he poli ce station. His mother a ccompan ied hi m. Given these circumstances, the trial court prop erly charged the j ury on the fli ght. The holding in Payton supported the g iving of the instructi on. This issue is

without mer it.

__ ________________

_____________________ _ JOE B. JONES, PRESID ING JUDGE7

CONCUR:

___________________________________ GARY R. WADE, JUDGE

___________________________________ CURWOOD W ITT, JUDGE