### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON March 7, 2001 Sessi

on

STATE OF TENNESSEE v. RAIN THOM AS CHESHER

Appeal from the Circuit Court for Henry County No. 12936 Julian P. Guinn, Judge

No. W2000-01701-CCA-R3-CD - Filed May 14, 2001

A jury convicted the Defendant of first degree premeditated murder, and he was sen t enced to life imprisonment. In this direct appeal, the Defendant

contends that he received ineffective assistance of counsel at trial and challenges the sufficiency of the evidence. We affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

D AVID H. W ELLES , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J. and N ORMA M C G EE O GLE , J., joined.
Donald E. Parish, Huntingdon, Tennessee, for the appellant, Rain Thomas Chesher.

Paul G. Summers , Attor ney Gener al and Reporter; G

len C. Watson, Assista

nt Attorney G

eneral; Robert Radford, District Attorney General; and Steve Garrett, Assistant District Attorney Ge

neral, for the appellee, State of Tennessee.

OPINION

The Defendant, Rain

Thomas Chesher, w

as indicted for f

irst degree premeditated murder in connection with the stabbing death of his girlfriend, Cheryl Fain. A jury convicted the Defendant

as charged, and

he was sentenced to life imprisonment. In this direct appeal, the Defendant contends that he received ine

ffective assista

nce of counsel a

t trial because h

is lawyer f

ailed to fully

disclose a potential conflict of interest and because he did not object to the admission of

the recording of a 911 phone call. He al

so challe nges th e sufficiency of the evidence. While we agre e with the Defendant

that his lawyer should have objec ted to the admission o f the 911 call, we

find that this

error did not s o prejudice the De fendant as to enti

tle him to a new tria

l. We find no error

with respect to the alleged c

onflict of intere

st. We furth er find the evidence sufficient to sustain the Defendant’s co

nviction. Accord

ingly, we a

ffirm the judgme

nt of the trial cour

t.1 Lamb died prio r to the Defe ndant’s trial. His prelimin ary hearing testim ony was read to the jury and into the

trial record.

-2- Joe Lamb 1 was the Defendant’s uncl e, and he lived in the basement of the Defendant’s mother’s house. Lamb had known the victim fo r one and a half to two years and described her relationship

with the Defendant as “off and on a boyfriend and

girlfriend relationship.” On the June 1999 night in question, Lamb had gone to bed sometime before ten o’clock. The Defendant and his friendJimmy Dion Burr

were in the house

when Lamb we

nt to bed; the victim w

as not. Lamb

got up at about midnight a

nd wen t upstairs to turn the stereo off; while he was in the living room, he noticed the Defendant and the victim sitting at the kitchen table. It appeared as though the Defendant

was giving the victim a tattoo. Lamb also noticed Burr ly ing down on the couchin the living room. Lamb did not speak to anyone, nor anyone to him, and he returned to the basement after turning off the stereo.

At abou t three a.m., Lamb heard the Defendant stomping on the floor above him and hollering for him to come upsta irs. Lamb went up and found the Defendant “in a pretty disoriented state.” The victim was lying on the floor in front of the couch; the Defendant was holding a plastic bag over a wound in her

chest. Lamb testified that there was blood all over the carpet and all over the victim. The Defendant told Lamb, “she’s dead,” or “she’s dying ,” or “I killed her.”Lamb could notremember which o f the three stateme nts the Defendan

t actually ma

de because he w

as “pretty shook up.” The Defendant asked Lamb, “What can I do?” and L amb told h im to call 911. The Defendant

told Lamb that he could not do that, so Lamb stated that he would. The Defendant

told Lamb not to call 911. Lamb cal led the Defe nda nt’ s mo the r and tol d he r to com e ho me i mme dia tel y. Lamb then told the Defendant that hewas going to ca ll 911. When Lamb picked up the phone, the Defendant

left, taking a sm

a ll suitcase wit

h him. Lamb took over holding the plastic bag to the victim’s chest. While Lamb was on the phone with the 911 dispatcher and waiting for the police to arrive, Burr came in. Burr told Lamb that he had been outside hiding. Lamb test ified that Burr “wasn’t bloody or anything like that.”

After the police and paramedics arrived, Lamb went into the ba th room and saw a pair of shorts on the floor with a knife lying on them. He recognized the knife as one he had given to the Defendant. He testifiedthat he thought the shorts were the Defendant’s because he thought that was what the Defendant had been wearing when he went to bed.
The recording of Lamb’s call to the 911 dispatcher was admitted into evidence and played for the jury with no objection from defens e counsel. The phone call lasted for several minutes beca use the dispatch er wanted La mb to stay on th

e line until the polic

e arrived. The p

hone call begins with Lamb telling the dispatcher, “there’s been a stabbing 405 North Brewer Street, you need to send an ambulance and a squad car.” Lamb identified the victim as his nephew’s g irlfriend and expla ined that she was still alive but had been stabbed in the chest. When the dispatcher asked i f the perpetrator was still there, L amb res ponded, “[t]he guy that did the stabbing run [sic],” and identified him as the Defend ant, “Rain Chesh

er.” Lamb a

lso offered a physical description and stated that the Defendant would “probably be driving an old y ellow Toyota Celica,” adding that the-3-

Defendant had been gone about ten minutes. In response to further questions from the dispatcher, Lamb again stated the Defendant’s name, spelling it, as the person who ha d stabbed the victim.
Gregory Alan U nde rwood, an officer with the Paris Police Department, testified that he arrived on the scene and saw Lamb and Burr in the living room. He explained that Burr was cooperativ e and never gav e him cause t o suspect t hat he was in volved wit h the stabb ing.

BrianCharles Byrd, an

agent with the Tennessee Bureau of Investig ation (TBI), testified that he investigated the scene and to ok photographs. One of the photographs depicts the couch in the living room with large bloodstains. Another depicts the pants in the bathroom, also bearing bloodstains. Byrd found in th ese pants a

wallet containing the Defendant’s Tennessee driver’s license. Byrd never developed any suspicions about Burr.
Joseph Payne Minor, a TBI forensic scie ntist, testified that the blood found on the knife blade matchedthe blood on the couch a nd the blood on the pa

nts found in the bath

room. This blood was from a human female.

Officer Dennis Earl French went to the Defendant’s residence at about five o’cloc k th at morning but did no t find t he Defendant home. French stayed and watc hed the house for approximately

one and a half hours, at which point the Defendant came out of the woods wearing

a camouflage c

oat, face paint a

nd a ball cap. Aft

er the Defenda

nt was taken into

cus tod y, Officer Jaque Bass in terviewed him. According to Officer Bass, the Defendant kept repe ating that he wanted something to eat and wanted a blood test. Off icer Bass testified that the Defendant “appeared arrogant.”

Pamela Sue Hudgins,

the victim’s oldest sister, testified that the Defendant had called her in February 1999 and told her that he wanted her to de corate and deliver a cake to the victim. The Defendant

wanted the cake to look like a broken heart with the words “you will reap w hat you sow”

or “what comes arou nd goes around” written on it. The D

efendant also re

quested Hudgins

to decorate the cake with bla

ck roses. When Hud

gins responded t

hat b lack roses meant death, the Defendant

“laughed.” Hudgins testified that she refused to make the cake, but did not warn her sister or tell the police about the Defendant’s request.
Jimmy Dion Burr testified that he had known the Defendant for fifteen year s. He had met the victim about four or five months prior to her death. Burr testified that the victim had arrived at the Defendant’s mother’s house at about ten-thirty or eleven o’clock tha t night. He and

th e Defendant

had been drinking beer all day; after the victim arrived, they went to a bar and drank some

more. The threesome stayed at the bar until about midnight and then walked back to the house. Burr testified that the Defendant was “holding his own” with the alcohol.

When they got back to the house, the Defendant got out his tattoo equipment and started working on a tattoo on the vic tim inthe kitchen. Burr went into the living room and laid down on the couch. The Defendant came in and told him to get up so they could go get some more beer. Burr-4-

declined, so the Defendant and the victim left

and were gone

twenty to twenty-fiv

e minutes. After they returned, the Defendant went to Burr, tapped him on the shoulder, and told him “to leave now

or die.” Burr became frightened and left; he went outside and knelt beside Lamb’s truck in front of the house. The Defendant subsequ e ntly came outside and hollered for Burr; Burr rema ined silent and hidden. The Defendant went back into the house and then returned outside a few minutes later. He again hollered for

Burr, and Burr stood up. Burr asked the Defendant what was going on and if the Defendant still

wanted to

kill him. The Defendant responded that he just wanted to talk. The Defendant

then told Burr that Burr

had two choices: h

e could “be an accomplice or a victim.” Burr told the Defenda

nt he wanted nothin

g to do with it; it was crazy. The Defendant then tapped Burr

on the cheek, smiled, and said, “You know what to do.” T

he Defendant the

n returned to

the house.

Burr remained outdoors and went to the side of the house, looking into one of the living room windows. He heard the victim say, “Don’t Rain, that hurts. Oh, please, I’ve got children.” Burr testifie d that when he heard the victim say that, he “knew what [the Defendant] was doing” and became convinced his own life was in danger. He went down the street and crossed it, hiding near

an abandoned house in some t all weed s. About twenty minutes later, he testified, he saw the Defendant come out the front door with a suitcase, get in his car, and leave.
On cross-examination, Burr admitted that he was in jail for hitting his ex-girlfriend.

Dr. O’Br yan C lar y Smi th p erfo rme d th e aut ops y on th e victim. He testified that she died from a stab wound to the chest that punctured her heart and one of herlungs. He also observed bruises t o the sides and the back of the victim’s head, a skin scrape on the right side of her neck
, tears in her lips, a

nd bruises to her to

ngue. Smith testif

ied that these

injuries were co

nsistent with an attempted stra

ngling or multipl

e blows with a fist.

The Defendant testified, claiming that he remembered no thing about how the victim had been stabbed. He stated that he h ad been “drinkin

g beer, eating

Vali ums an d sm oki ng cr ack” tha t da y, and he had no recollection about what had happened. He testified, “if I did something to her, which I don’t -- I

don’t know if I

didor not, but if I d

id it was totally

unintentionally

because I loved that woman.” He admitted that the knife was his, but he did not know if the pants were. He stated the cake incident occurred

in 1998 and claimed

that it was inspired by the Rolling Stones song, “Dead Flowers.” He explained that th e victim mentally

abused hi m and had broken up with him again, causing him to want to “send her something dirty.”
Psychologi

st John W. McCoy evaluated the Defendant prior to trial. McCoy testified that the Defendant initially told him that all he knew about the mur

der was that,

when he came out of the woods, the police were

at his house and ar

rested him. He did

not know why he had

been arrested until his mother

told him later about the stabbing. The Defendant told McCoy, “They are alleging that I killed her, that’s all I know.” He told McCoy that the last thing he remember ed about that night was giving the victim a tattoo and getting green tattoo ink on his face. Th

e Defendant als

o told McCoy “that he believed that all of [his prior] legal trouble and the current legal trouble that he was2 “Hearsay” is defined as “a stat ement, ot

her than one made by t

he declara

nt whil e testi fying at the t rial or hearing, offered in evidence to prove the truth of the ma tter asserted.” T enn. R. Ev id. 801(c ). Hearsay sta tements are generally inad missible. See Tenn. R. Evi d. 802.

-5- in was caused by alcohol and drugs.” Follow

ing his evaluatio

n, McCoy made

“no diagnosis

of any mental condition.”

On rebuttal, Michae

l John Little, a TB I forensic scientist, testified that

he analyzed a blood sample drawn from the De

fendant at nine-

twenty on the morning of the murder. He found no traces of cocaine but found Valium within the therapeutic range. J ohn W. Harri son, a TBI toxic ologist, analyzed the blood for alcohol content and determined the level to be .07 gram percent. He stated that this level indicated a level of approximately .15 gram percent about five hours earlier. He also testified that the presumptive level of intoxication was .10 gram percent.

INEFFEC TIVE AS SISTAN CE OF C OUNSE L The Defendant contends that his trial counsel committed errors during his representation that

were so grave and pre

judicial as to entit

le him to a new tria

l. Specifically, he contends that his trial lawyer should have declined his case because the lawyer had e arlier represented

the victim in a child

s upport ma tter not involving the Defendant. He also contends that his trial lawyer should have objectedto the introduction of the 911 tape as inadmissible hearsay 2 and that his lawy er’s failure to d o so renders the jury’s verdict unreliable. Upon our review of the record and relevant le ga l aut hor ity, we respectfully disagree with the Defendant and find that he is not entitled to a new trial on the basis of inef

fective assistan

ce of counsel.

Both the Sixth Amendment to t he United Sta

tes Constitution and Article I, § 9 of the Tennessee Constitution guarantee a defendant the ri ght to representation by counsel. See State v. Burns , 6 S.W.3d 453, 461 (Ten n. 1999); Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). This right to counsel includes the right to effective counsel. See id. ; Strickland v. Washington , 466 U.S. 668, 686 (1984).

To determine whether counsel provided effective assi stance at trial, the court must decide whether counsel’s performance was withi n the range of c ompetence deman

ded of attorney

s in criminal cases. Baxter , 523 S.W.2d at 936; Hicks v. State , 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998). To succeed on

a claim that his or her counsel was ineffective at trial, a defendant bears the burden of showing that counsel made errors so serious that he or she was not functioning as counsel

as guaranteed un

der the Sixth Amendme

nt and that the def

icient represe

ntatio n prejud iced the defendant resulting i n a failure to produce a reliable result. Strickland , 466 U.S. at 687; Burns , 6 S.W.3d at 461; Hic ks , 9 83 S.W.2d at 245. To satisfy the second prong, the defendant must show

a reasonable probability that, but for counsel’s unreasonable error , the fact finder would have had reasonable

doubt regarding the defendant’s guilt. See Strickland , 466 U.S. at 694-95. Thi s reasonable

probability

must be “sufficient to undermine confidence in the outcome.” Id. at 694; see also Harris v. State , 875 S.W.2d 662, 665 (T enn. 1994); Owens v. State , 13 S.W.3d 742, 750 (Tenn. Crim. App. 1999).-6-

When reviewing trialcounsel’s actions, this Court should not use the be

nefit of hindsigh

t to second-guess

trial strateg y an d criticize counsel’s tactics. See Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982); Owens , 13 S.W.3d at 749. Counsel’s alleged errors should be judged at the time they

were made in light of a

ll facts a nd circumstance s. See Strickland , 466 U.S. at 690; Hicks , 983 S.W.2d at 246.

Claims of ineffective assistance of counsel are raised most f

requently i

n petitions for postconviction relief. Although s uch c laims are cognizable on direct appeal, “raising the issue of ineffectiveassistance on direct appea l is a ‘pra ctice fraught with peril.’” Thompson v. State, 958 S.W.2d 156, 161 (Tenn. Cri m. App. 1997) (citation omitted). This is because the defendant runs the risk of having the issuedec ided without the benefit of an evidentiary hearing, which might be the only way to demonstrate prejudice. Id. at 162. Under the current Post-Conviction Act, a defendant must prove his claim of ineffective assistance of counsel by “clea r and convincing” evidence. See Tenn. Code Ann. § 40-30-210(f). Our Supreme Court has held that this

same standard applies when the claim is brought on direct appeal. See State v. Burns , 6 S.W.3d 453, 461 n.5 (Tenn. 1999).

With respect to the Defend ant’s claim that his attorney had a conflict of interest sufficient to render his representation ineffective , we acknowledge that “an accused is entitled to zealous representationby an

attorney unfettered by a

conflicting interest.” State v. Thompson , 768 S.W.2d 239, 245 (Tenn. 1989). Also, “[t]o establish adenial of the sixth amendment right to counsel, it is sufficient to show that an actual conflict existed. If an attorney ac tively represents confl icting interests, no analysis of prejudice is nece ssary; it is pr

esumed that his divid

ed interests adve

rsely affected his representation.” Id. (citation omitted). Here, howev er, th ere was no active representationof conflicting interests. The record contains an affidavit from the Defendant’s lawyer which states that he rep

resented the vic

tim in “case numbe

r 96-CR-00051 in Cal

loway County Circuit Court as to the charge of Flagrant Nonsupport.” The case num ber indicat es that thi s charge

was brought in 1996, several years prior to counsel accepting the Defendant’s representation. There is no proof in the record which indicates that the charge against the victim in any way involved the Defendant. The Defendant asserts in his brief that “the duty of

confidentiality

owed to Ms. Fain

by [the Defenda

nt’s lawy er] crea ted a conflict of interest which should have resulted in [the Defendant’s lawyer] declining to represent [the Defendant].” The Defendant’s brief indicates that his lawy er should not have accepted his case because it “might [have] require[d] the disclosure of confidential information obtained in the course of representing [the victim].” We are puzzled by this a

rgument. The Defendant cites no confidential information gleaned during the course of the Fa in matter which defense counsel could or should have revealed to him in order to represent him, nor can we find any in the record before us. The prior representation was disclosed to the Defendant in a timely manner. No active con flict of inter est existed that we can discern from the record. The Defendant having failedto prove by clear and convi n cing evidence that his lawyer was ineffec tive as a result of a conflict of inter

est, we find this iss

ue to be without mer

it.

However, we ag ree w ith the Defe nda nt t hat his law ye r’s fa ilure to object to the admission of the 911 tape was deficient. The tape was certainly pre judicial because, during his conversation withthe d ispatch er, Lamb identifies the Defendant as the perpetrator. Although other testimony-7-

made clear that Lamb did not witness the stabbing and therefor e must have been making an assumption, the evidence was nonetheless damaging to the Defendant’s case. Absent some tactical

reason to the contrary

, defense counse

l should attempt to

exclude as much of the State’s evidence against his or her client as legally possible. Here, defense counse l failed to make the necess ary attempt, satisfying

the first prong n

ecessary to prove ineffec

tive assista

nce of counsel under Strickland

.
The State argues tha

t, even had the Defendant objected to the 911 tape at trial on the basi

s that it w as h ears ay, the evidence was still admissible under the“excited utterance” exception to the hearsay rule. See Tenn. R. Evid. 803(2). Accordingly, the State contends, defense counse l’s failure to make an objection did not prejudice the Defendant, and the Defendant therefore fails to satisfy the second prong required for a successful claim of ineffective assistance of counsel. We must

agree.

A statement which is

otherwise

inadmissible hearsay is admissible if it relates to a startling event or condition and was made while the declarant was under the stress of excitement caused by the event or condition. Tenn. R. Evid. 803(2). Thus, three requirements must be satisfied before a hearsay statement will qualify as an admissible excited utterance: first, there m ust be a star tling event or condition; seco

nd, the statement mu

st relate to the startling event or condition; and third, the declarant must still be under the stress of excitement from the event or condition when t h e statement is made. See State v. Carl McKissack , N o. W1999-01 136-CCA-R 3-CD, 2000

WL 674591, at *4 (Tenn. Crim. App., Jackson, May 24, 2000). We have no doubt that a fatal stabbing qualifies as a startling eve nt or condition. The

re is also no doubt that Lamb’s statements to the 911 dispatcher

related to the startling event or condition. The issue f or our determination

, then, is whether Lamb was still u

nder the stress

of excitement from the stabbing while he was talking to the 911 dispatcher. The requirement that the declarant still be under the stress or excitement caused by the event or condition is the one which “ relates most directly to the underlying r ationale for the [excited utterance] exception [to the hearsay rule].” State v. Gordon , 952 S.W.2d 817, 820 (Tenn. 1997). “The ultimate test is spontaneity and logical relation to the main event and where an

act or declarationsprings out of the transaction while the parties are still laboring under the excitement and strain of th e circumst

ances and at a time so near it as to preclude the idea of deliberation and fabrication.” State v. Smith , 857 S.W.2d 1, 9 (Tenn. 1993).

However, [t]he time interval is

but one consideration in determining whether a statement was made under stress or excitement: “Other relevant circumst ances i nclude the nature and seriousness of the event or condition; the appearance, behavior, outlook, and circumstances of the de clarant, including such characteristics as age and phy sical or mental condition; and the contents of the statement itself, which may indicate the presence or absence of stress.”

Gordon , 952 S.W.2d at 820 (quoting Neil P. Cohen, et al.
, Tennessee Law of Evidence § 803(2).2 at 534 (3rd ed. 1995)).-8-

The proof at trial e

stablished t hat Lamb called 911 only a short time after discovering the victim’s condition. He made the call while holding a plastic bag to the victim’s wound while she struggled to breathe. L

amb testified that

when he saw the vi

ctim he was “pret

ty shook up.”

He also testified that he couldn’t remember exactly what the Defendant had s aid to him about what had happened because “there

was a lot going through my head at that time.” Lamb testified that he was “upset” when Burr came in while he was still on the phone to the dispatcher.

The record contains an audiotape of the 911 call. This Court has listened to the tape and acknowledges that Lamb sounds neither hysterical nor highly agitated. However, this Court has no basis from which to

draw conclusions

regarding L

amb’s state of mind

simply from th

e tone of his voice. People react different ly to times of

high stress and excitement. Lamb’s own testimony indicates that h e was upset d uring the time he was on the phone with the dispatcher, and the circumstances in which he found himself certainly support that assertion. The natur e an d seriousness of the event were grave -- Lamb was

trying to assist a dying woman. Tha t Lamb suspected his own nephew of the crime added to the stressful circumstances facing him. The content of the 911 call -- the need for assista

nce to a fatally stabbed woman -- also indicates the presence of stress. Thus, the relevant circumstances s

urrounding the 9 11 call indicate that Lamb was speaking while under the stress of ex citement ca used by the sta bbing.

It is the Defendant’s burden to show, by clear and convincing e vi dence , that the tape was inadmissible. We find that the Defendant has failed to do so. Indeed, had defense counsel objected and the trial court ruled the tape admissible as an excited utterance, we would be reviewing the trial court’s ruling for an abuse of discretion. See State v. McLeod
, 937 S.W.2d 867, 872 (Tenn. 1996) (trial court’s adm issio n of hearsay reviewed for abuse of discre tion). Under the circumstances surrounding the 911 call, we would have found no such abuse.
Accordingly, while we agree w ith the Defendant that

his trial lawyer should have objected to the admission o f the 911 a udiotape, we hold that his failure to do so did not so prejudice the Defendant

as to call into question the reliability of the jury’s verdict. Moreover, as set forth below, we find that the evidence is sufficient to support the Defendant’s conviction even without the 911 tape. The Defendant has therefore failed to prove that he received ineffective assistance of counsel at trial, and this is sue is without merit.

SUFFICI ENCY OF THE EVI

DENCE We turn now to the Def endant’s claim

that the evidence is insuf ficient to sustain h

is conviction. Tennessee Rule of Appellate Procedu re 13(e) pr escribes that “[f ]indings of guilt in criminal actions whether by the trial court or jury shall be set

aside if the evide

nce is insufficient to support the findings by

the trier of fac

t of guilt bey

ond a reasonable

doubt.” Evidence

is sufficient if, after reviewin

g the evidence

in the light most fa

vorable to th

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

nd a reasonable

doubt. See Jackson

v. Virginia , 443 U.S. 307, 319 (1979) ; State v. Smith , 24 S.W.3d 274, 278 (Tenn. 2000). In addition, bec ause conviction by a trier of fact destroy s the presumption of innocence and imposes a presumption of guilt, a convicted criminal defendant

bears the burden of showing that the evidence-9-

was insufficient. See McBee v. State, 372 S.W.2d 173, 176 (T enn. 1963); see also State v. Buggs
, 995 S.W.2d 102, 105-06 (Tenn. 1999); State v. Evans
, 838 S.W.2d 185, 191 (T enn. 1992); State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982).

In its review of the e

vidence, an appe

llate court must af

ford the State “th

e strongest leg

itimate view of the evidence as well as all reasonable and legitimate inferences that may be draw n therefrom.” Tuggle , 639 S.W.2d at 914; see also Smith , 24 S.W.3d at 279. The court may not “reweigh or re-evaluate the evidence” in the record below. Evans , 838 S.W.2d at 191; see also Buggs , 995 S.W.2d at 105. Likewise, should the reviewing co urt find particular conflicts in the trial tes tim ony, the court must resolve them in favor of the jury verdict or trial court judgment. Tuggle
, 639 S.W.2d at 914. All que stions involving the

credibility

of witnesses, the w

eight and value

to be giventhe evidenc e, and all factual is sues are resolve d by the trie

r of fact, not the

appellate court

s. See State v. Morris , 24 S.W.3d 788, 795 (Tenn. 2000); State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987).

A fi rst degree premeditated murder is a killing done intentionally and with premeditation. See Tenn. Code Ann. § 39-13- 202(a)(1). An intentional killing occurs when it is the defendant’s

“ conscious objective or desire to engage in” the killing or to cause the death. Id. § 39-11-302(a). A premeditated killing occurs when “done after the exercise of reflection and judgment.” Id. § 39- 13-202(d). That i

s, “the intent to kill

must have bee n formed p

rior to the act itself ,” althou gh “[i]t is not necessary that the

purpose to kill pre-exist in the mind of the accused for any definite period of time.” Id. “The mental state of theaccused at thetime the accused allegedly decided to kill must be carefully

considered in

order to de termine whether the accused was sufficiently free from excitement and passion as to be capable of premeditation.” Id.
Before a jury may infe r premedita tion, the p roof must i nclude the f ollowing: (1) fa cts about ho w and what the defendant did prior to the actual killing which show he was engaged in activity directe d toward the killing, that is, planning activit y ;
(2) f act s about the defen

dant’s prior rela

tionship and conduc

t with the victim from which motive may be inferred; and
(3) facts about the nature of the killing from which it may be inferred that the manner of killi

ng was s o particu lar and exacting that the defendant must have intentionally killed according to a preconceived design.

Statev. Schafer , 973 S.W.2d 269, 273 (Tenn. Crim. App. 1997) (citation omitted). In this case, all three of these evidentiary requirements have been met. That the Defendant planned to kill the v

ictim is obvious from his statements to Burr tha t he “leave now or die” and that Burr could “be an accomplice or a victim.” As to motive, the proof established that theDefendant had had an on-again off-again romantic relatio

nship with the victim i

n which, he testified, she mentally abused him, “run-10-

[sic] around with

other men,” and repeatedly broke up with him. The proof also established that the Defendant

had made at least one prior effort to revenge himself on the victim by attempting to se nd her a thre at ening cake. One of the psychologists who evaluate d the Defendant reported that the Defendant

had stated to him that it w as wrong to commi

tmurder, “

unless a p erson des erves it. ” We think this proof establis

hes the Defenda

nt’s motive of punish

ing the victim for

romantically disappointing him. Finally, the proof established that the Defendant hit an

d/or strangled t

he victim, eventually

killing her with his own knife by a single stab wound through her hear tand one l ung: evidence sufficient to allow a trier of fact to conclude that the killingwas designed and intended.

Thus, the evidenc e was suffici ent to prove that the Defendant formed the intent to kill the victim after some amoun

t of reflection a

nd judgment. The evidence was also sufficient to prove that it was the Defenda

nt w ho actually stabbed the victim to death. Lamb testified that he found the victim on the floor covered with blood and the Defendant holding a plastic bag to her chest, asking Lamb what he should do. When L

amb told him to call

911, the Defendant refused and tried to stop Lamb from calling. WhenLamb did call, the Defen

dant left the sce

ne, taking a suitc

ase with him. The Defendant did not go home but hid in the woods. Blood found on the Def endant’s knife matchedth e blood found on the c ouch and on the pa

nts containing the

Defendant’s wa

llet. This blood was that of a human female.

Prior to his attack on the victim, the Defendant threatened Burr, telling h

im to either leave the house or die. The D

efendant later

asked Burr to

assist him in committing a crime. Burr refused, but subsequently heard

the victim state to the Defendant, “Don’t Rain, that hurts. Oh, please, I’ve got children.”

The criminal investig

ation revealed n

o other suspects in

th e stabbi ng. The Defend ant himself testified that he did not know how the victim came to be stabbed. He admitted that sometimes he blacked out just from being

“very mad. ” He testified tha t the victim had ment

ally abused

him. He admitted that the mu

rder weapon wa

s his.

This proof was mor e than suffi cient to prove tha t the Defendant in

tentionally a

nd with premeditation stabbed the victim to death. The Defendant’s issue regarding the sufficiency of the evidence is ther

efore without mer

it.
The judgment of the trial court is affirmed.

___________________________________ DAVID H. WELLES, JUDGE