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### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE Assigned on

Briefs D ecember

18, 2001
STATE OF TENNESSEE v. ANDREW B. SIMPKINS
Direct Appeal from the Circuit Court for Montgomery County

No. 40631 John H. Gasaway, III, Judge

No. M2001-01737-CCA-R3-CD - Filed August 15, 2002

A Montgome

ry County jury convicte d the Def

endant of one coun t of crimi nal attem

pt to commit

first degree murder and one count of possession of a prohibited weapon. The Defend ant now a ppeals, asserting that the evidence was insufficient to support his convictions. After reviewing the rec ord, we find n o error

and thus a

ffirm the judgmen ts of the tr

ial cour t. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

R OBERT W. W EDEMEYER , J., delive red the o pin ion of the c ourt, in which J OSEPH M. T IPTON and T HOMAS T. W OODALL , JJ., joined.
Jeffry S. Grimes, Clarksville, Tennessee, f or the Ap pellant, Andrew B . Simpkins.

Paul G. Summers, Attorney Genera l and Repo

rter; Re nee W. T urner, A ssistant A

ttorney G eneral ; John W. Carne

y, Jr., Di strict Att

orney Ge neral; a nd Helen O. Young, Assis tant Distr ict Attorney General, for the Appellee, State of Tenne ssee.
OPINION

The Montgomery

County Grand Jury

indicted the Defendant, Andrew Simpkins, for one count of criminal attempt to com mit first degree murder and for one count of possession of a pro hibited weapon. Following a jury trial, the Defendant was convicted on both cou nts in th e indictmen t. The trial court sentenced the Defenda nt to twenty-five y

ears for the c

riminal a ttempt to commit first degree murder conviction and to two years f or the possession of a

prohibited weapon conviction. The cour

t ordered that the sentences be served concurr ently. The Def

endant subseque ntly filed a motion for new trial, which the trial court deni ed. On appeal, the Defendant
now challenges the sufficiency of the convicting evidence. We conclude that the e viden ce is sufficie nt to suppor

t the convictions and affirm the judg ments of th

e trial c ourt.2 I. FACTS The Defendant, an infantry so ld ie r i n t he Un it ed St at es Ar my, met his girlfriend, Genevieve Soler, at a fair

in June 1998. In July , the two b egan d atin g. Shortly there after, Soler told the Defendant

that her ex-boy friend, Jesse Lopez, along with tw o of his fr iends, ha d raped h er at a pa rt y. Soler told the Defendant that she was intoxicated and did not remember much of the alleged r ape. Over the next few months, the Defendant talked with Soler and several others a bout the rape and

his plans to exact revenge on the alleged rapists.

Soler testified that

after she told the Defendant about being raped by Lopez, the Defendant talked about the

rape al most every da y and repe atedly talked a

bout hurting or

“tak ing c are” of L opez. The Defendant also asked Soler where Lopez lived.

Janet Hern, a close friend

of Soler, testified that shortly afte r the Defendant and Soler began datin g, the Defendant

started asking her questions about L opez, including how he got home from school an d if she knew when he would be home alone. The De fendant told Hern to get L opez outside, and he would “takecare of the rest.” Hern claimed that the Defendant called her so ofte n to discuss Lopez that

she began avoiding his calls. The De fendant told Hern that

Lopez “should not live” for raping his girlfriend.

Joshua Caleb Sisson, the Defe n dant’s roommate at Fort Campbell from 1998 to 1999, testifie d that dur

ing a ro ad trip to

Memphis, the Defendant told Sisson that his girlfriend had been raped by her ex-boyfrie

nd. The Defendant appeared angry and disgusted and said that people who raped other pe opleshould be killed. Throughout the trip, the Defendant continued to talk about the rape.
Elan Banks, a former roommate

of the De fendant , testified that the Defendant talked about the alleged rape every day and told Ba nks th at he planned to kill the men who raped Soler. On several occasio ns, th e Defe ndant to ld Banks that he planned to go to L opez’s home, ring the doorbell , and shoot. The Def endant a sked Ba

nks to help

him get a gun so th at he could s hoot the alleged rapists. He also asked Ba nks to ride by L

opez’s house with him.

On January 15, 1999, four days be fore Lopez was shot, the Def endant purch ased a 1 2-gauge shotgun at Wal-Ma

rt. The sales associate at Wal-Mart completed a firear ms transaction report for
a New Englan d Farms Model SB1-1 01 sho tgun. The as socia te obt ained purch ase app roval throu gh the Tennessee Bureau of

Inve stigatio n (TBI

) instant c heck at 4 :57 p.m. The serial number for the Defendant’s gun was NM363294.

The Defend ant then w ent to a ne arby retail s tore, Gr andpa’s, to purchase shells for the shotgun. A systems analy st at Grandpa’s was able to match a rec eipt recovered dur ing th e invest igation wi th the date and item purchased. The rece ipt indicated that 12-gauge g ame load, number six bird shot, was purc

hased on January 15, 1999 a

t 5:2 8 p. m. The analyst testified that Grandpa’s is located down the street from the Wal-Mart store where the Defendant purchased the gun. She also testi fied tha

t Grandp a’s is an

Ace Har dware d ealer a nd uses Ac e Hardw are sac ks.3

Two days later, two of

the Defe ndant’s f riends, Elliott Tso and Kee Blackwater, visited the Defendant’s room. At that time, they saw the De

fendant sawing on a shotgun. Bla ckwater heard the Defendant ask Tso to help him stake out Lopez’s house.

The day befor

e the shooting, the Defendant display ed a sawed-off shotgun

to at le ast two people. Soler

testified that the Defendant produce d a short, black shotgun an d said he intended t o go to Lop ez’s house

and scar e him with it. Banks testified that, while riding in the Defendant’s car, the Defendant pulled a sawed-off shotg un from under the seat and placed it in Banks’ lap.

On January 19, 1999, the day of the shooting, the Defendant finished work around 4:30 p.m. Afterw ards, he w as r equ ire d t o at ten d a “ GI Party,” which is essentially a clea ning session at the barracks. Around 6:00 p.m., Soler talked with the Defendant on the phone. The Defendant asked Soler to call Lopez’s house to see if he wa s home. While talking to the Def endant, Soler hea

rd him tell his super

iors that h e had to leave the GI par

ty to take Soler

to the hospital, although Soler did not actually need to g o to the hospital. Because Soler was unwilling to call L opez herself, she asked

her friend, Johanna Pa schall, to make the call. Paschall called L opez and asked for “Rick.” She then calledSoler and said that she made the call, but did not know who answered the phone. Soler called the Defendant and told him that Lopez was not home, but that his pare nts were.

Jesse Lopez recalled rec eiving a phone call aroun d 7:0 0 p.m . the n ight o f the s hoot ing. Lopez testified that the caller asked for someone who did not live at the Lopez residence. L ess than half an hour later, at 7:22 p.m., the doorbell rang a t the Lopez’s house. Expe cting a visit from his friend, Michael, Lopez ran past his mother to answer the door. As he opened the door, he was shot in the face. Lopez did not see who wa s at the door and did not remember being shot.

Around 8:00 p.m., S oler and the Defe

ndant met a t Paschall’s house . Soler la ter told detectives that th e Defe ndant w as acting strangely . She reported that he was unusually quiet and asked Soler to hug him.

After meeting with Soler, the Defendant returned to the ba rra cks to see Ell

iott Tso. Ts o testified that the Defend ant arr ived around 10:00 p .m. The De fendant told Tso, “I got one .” He sa

id that he knocked on the door, shot the first person that answered, a nd ran. The Def

endant to ld Tso that the person he s hot was Lopez. He asked Tso if he w ould take the gun, but Tso refused. The Defendant

then told Tso that he hadput the sho tgun she lls inthe back of Tso’s truck. Tso found and removedthe shells from an Ace Hardware sac k. Tso testified that

he and the

Defend ant were

close friends and that

he was unsure of what to do. Tso decided to turn the shells over to detectives and to allow them to search his truck.
Investigators testi fied th at the y intervi ewed t he Defe ndant the da y after the shoot ing. Initially , the Defendant

told detectives that he did not own a shotgun. He also said that during the time the shooting occurred, he had gone to a shoppette on the Kentucky side of the Fort Ca

mpbell post to purchase a sandwich, chips, a snack ca ke, and a drink. After review ing the sales re ceipts4

from this particular shoppette, detectives wer e unable to corro borate t he Defe ndant’s purchase s. They also became awa re of his gun pur chase. I n a second intervie

w, the De fendant admitted t

o pu rchasing the shotgun, but claimed it was stolen from his car on the same day it was purc hased

. The Defend ant did

not report the gun stolen. During this interview, the Def endant maintained that he had gone to the shoppette at the time of the shooting.

The Clarksville Police Department, along with in vestiga tors from the Unite d States Ar

my Crim i nal Investigation Command (CI D), conducted a search of the ba rracks and the surrounding
areas. Underneath a military conics, a steel storage container r esembling a dumpster, located t w en tythree to thirty fe et from the building in which the Defendant lived, investiga tors found a bag containing a shotgun. The gun had been wr apped i n f

elt similar to that found in a military-issue blanket. The shotgun was a New Engla nd Farm s firearm 12-gauge , the same type the D efendant purchased

at Wal-Mart only day s before the shooting, with a partial serial number of N M 36. The remainder

of the serial number had been destroyed. How ever, the TBI was able to restore seven of the eight digits of the serial number on the shotgun. With the exception of

the sing le missing

digit, the restored number matched the serial number on the Defendant’s shotgun. I

nside the Defendant’s room, investigators found a notepad with the names of the three alleged rapists. Lopez’s phone number was written beside his name. From Elliott Tso’s truck, detectives recovered a pla stic Ace Hardware sack, similar to those used at Grandpa’s, c ontaining the rec eipt for s hotgun s hells purchased

at Grand

pa’s. They

also disc overed a

silver ha

cksaw si mila r to the one Tso and Blackwater

saw the Defendant using to saw on the shotgun. Tso led investigators to the actual shells that the Defendant left

in his truck. The TBI conc luded that shot and wadding recovered from the crime scene was consistent with the size and weight specification of the shells recover ed from Elliott Tso’s truck.

While incarcerated, the Defenda nt told another inmate, Kenneth Buckler, about the sho o ting. According to Buckler, the Defendant claimed that he shot someone in the facebecause the victim and some other people had raped the Defe ndant’s girlfriend. The Defenda nt told Buckler

that he was
an gr y, that he had planned the shooting, and that he had staked out the victim. He said that he had sawedoff a shotgun, gone to the victim’s home, knocked on the door, and shot as soon asthe victim answered. The Defendant told Buckler that he cleaned off the gun, wrapped it in a poncho liner, and placed it under the barracks.

II. AN ALYS IS

The Defendant claims that insufficient evidence was pr esented at trial to convict him of criminal attempt

to commit first degree murder and of possession of a prohibited weapon. When an accused challen ges t

he suffi c iency

of the ev

idence, an appellate cou rt’s standard of r

eview is whether, after considering the evidence in the light most

favora ble to the prosecution, any rational trier of fact could have found the essential elements of the crime bey ond a rea sonable

doubt. Tenn. R. App. P. 13( e); Jackson v. V irginia , 443 U.S. 307, 324 (1979); State v. Duncan , 698 S.W.2d 63, 67 (Tenn. 1 985). Thi s rule ap plies to findings o f guilt b ased upo n direct evidenc e, circumst ant ial5

evidence, or a combination of both direct and ci rcumstantial evidence. State v. Pe nderg rass , 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). In determining the sufficiency of the evidence, this Court should not re-weigh or

re-eva luate the evidence. State v. Matthews , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Nor m ay this Courtsubstitute

its inferences for those drawn by the trier of fact from the evidence. Stat e v. Buggs , 995 S.W.2d 102, 1 05 (Tenn . 1999); Liak as v. State , 286 S.W.2d 856, 859 (Tenn. 1956). Questions concerning the credibility of the witnesse s, the weight and va lue of the e vidence , as well a s all factual issues ra

ise d b y the evidence are resolved by the trier of fact. Liakas , 286 S.W.2d at 859. This Court must afford the State of Tennessee the stronge st legitimate view of the evidence containedin the record, as well as all reasonable inferences w hich may be dra

wn from the evidence. State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992). Because a verdict of guilt against a defendant
removes the presumption of innocence and raises a pres u mption of guilt, the convicted criminal defendant bears the burden

of showin g that the eviden ce was legally

insuffic ient to sustain a

guilty verdict. Id.

The Defendant first argues that insuffic ient evid

ence wa s presen

ted to supp ort his conviction for attempte d first de gree m urder. I n order t o convict t

he Defendant of attempted first degr ee murder, the State

was req uired to p

rove tha t the Def endant, a cting w it h the k ind of cul pability otherwis e required for this offense, acted “with intent to cause a result that is an element of the offense, and believe[d] the condu ct [would] c ause the result without further conduct on the person’s part,” Tenn. Code Ann. § 39-12-101(a)(2), and that the result intended was the “ premeditated and intentional killing of another.” Id. § 39-13-202(a)(1).
Viewing the evide

nce in the light most favorable to the State, the evidence showed that the Defend ant repe atedly

stated hisintention t

o hurt or k

ill Lop ez. In

fact, he described to friends the exact method he

would emp loy : He would go to the front door, knock or ring the doorbe ll, and shoot the first person to answer. The Defendant purc hased a shotgun in anticipation of the shooting. He then lied to detectives about owning a gun. After the shooting, the appellant went to a

friend’s room to report that he “got one.”

The State had the burden of proving the element of premeditation. State v. We st , 844 S.W.2d 144, 147 (Tenn. 1992). Premeditation necessitates “the exercise of reflection and judgment.” Tenn. Code Ann. § 39-13-202(d). “ The element of premeditation requires a previously formed design or intent to kill.” West , 844 S.W.2d at 147.

The proof se

t out above

indicate s that the a

ppellant threate ned to hur

t or kill the

victim several months prior to the shoo ting. Ad di ti on al ly, th e a pp el la nt pu rc ha se d a sh ot gu n f ou r d ays before the shooting. Two day s later, he was seen sawing on the gun. Also, he attempted to remove the serial number used to identify the weapon. Further , the appe llant asked two frie

nds to help him stake out the victim’s home. Immediately prior to the shoot ing, the appellant asked his girlfriend to call to se e if the victim was home. This evidenc e clear ly s upports the mental elements necessary to prove criminal attempt to commit first degree murder.6

The Defendant next argues that insufficient evidence was presented to support his conviction for possession of a prohibitedweapon, defined in pertinent part as follows: “A person commits an offense who intentionally or knowingly possesses . . . [a] short-barrel rifle or shotgun . . . .” Tenn. Code Ann. § 39-17-1302(a)(4) . The Defendant claims that although the State proved that he possessed the prohi

bited wea pon, it did n ot establi sh th at he pos sessed it in Tennes see. While investigating the shooti ng of Jes se Lo pez, dete ctives re

moved shot

and wadd

ing fro m the crim

e scene that was consistent with the type alleg edly purcha sed by the Def end ant days bef

ore the shoot ing. Additionally, several witnesse s testified to se ei ng th e D ef en da nt sa wi ng on a s ho tg un da ys before. A jury

could have reasonably

found that the Defendant used the sawed-off shotgun and the recovered shot to shoot the victim. Because the sho ot ing occurred in Tenness ee, the e

vidence is suff icie ntto establish that the Defendant possessed the prohibited weapon in Tennessee when he used it to shoot the victim.

From this evidence, a rational trier of fact couldhave fou

nd the ess ential el ements of both crimes beyond a

reasonable doubt. Accordingly , the judgments of the trial court is AFFI RMED.

________________________________ ROBERT W. WEDEMEYER, JUDGE