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

Briefs M ay 8, 2002 STATE OF TENNESSEE v. ERIC B. BL AKEMORE Direct Appeal from the Criminal Court for Shelby County No. 98-08053-53 Carolyn Wade Blackett, Judge

No. W2001-01929-CCA-R3-CD - Filed June 18, 2002

The Appe llant, Eric B. Blakemore, was convicted by a Shelby County jury

of one count of second degree murde r and o ne cou nt of a ttem pted s econd degree m urder. After a sente ncing h earing, Blakemorereceiv ed conc urrent s entence s of twent y- two y ears fo

r the mu rd er conviction and ten yearsfor the attempted murder conviction. Onappeal, Blakemore asserts that the evide nce presented at trial was insufficient

to support

his conviction for second degree murde r. Specifically, he

argues that the evidence presented supports the lesser off ense of voluntary

manslaughter. After review, we find the evidence legally

sufficient; accordingly , the judgment of conviction is affirmed. Tenn. R. App.P. 3; Judgm ent of the Criminal C ourt Aff

irmed.
D AVID G. H AYES , J., delivered the opinion of the court, in which J ERRY L. S MITH a nd A LAN E

. G LENN , JJ., joined.
Garland Erguden , Assistan

t Public De

fender ; AC Whar

ton, Jr., Sh

elby Count

y Pu blic D efender, Memphis, Tennessee, for the Appellant, Eric Blakemore.
Paul G. Summers, Attorney General and Reporter; Michael Moore , Solicitor General; J. Ross Dyer, AssistantAttorney

Genera l; William L . Gibbons, District A ttorney G eneral ; and Char

les Bell, Assistant District Attorney General, for the Appellee, State of Te nnessee.

OPINION
Factual Ba

ckground
Tameka Boyland, the victim, and the Appellant had maintained a rela

tionshipsince June of 1996. The Appellant

and the victim, who was five months pregnant with the Appellant’s child, wer e engaged to be married. On February 16, 1998, the

victim re ceived a

telephone call fr

om Dy nessa Lowe. Ms. Lowe

informed the victim

that she w as living

withthe Appellant and his two children.1 At the ti me of the vi cti m’s deat h, t he fet us would not

have been vi able outsi de the womb. -2- Both the victim

and Ms. Lowe confronted the Appellant and he admitted to dating both women at the same time.
The victim called the Appellant the next day a nd requested that he stop by her apartment

after work. The Appellant agreed and late r arri ved at the victim’s apartment where she lived with her mother, Glenda Ro y. M s. Roy was prese nt as the victim told the Appellant that their relation ship was over. Ac cording

to Ms. Roy, when the Appellant later left the r esidenc e “He wa s fine. Ca lm. In control. Just very calm about it.” At trial, the Appellant agreed that he had no pr oblem with the victim’s decision to end the relationship, stating “that was her choice and we c ame to an agreement withthat. You know, I love d her and cared for her, but that was the choice that she had decided upon and she made that choice.”
The next morning, on February 18, 1998, at

approxima

tely 8:00 a.m., Ms. Roy was awake ned by the victim who was screaming for the Appellant to put the gun down and not hurt her. Ms. Roy gathered the victim’s two children, ages two and four, and they ran downstairs. As Ms. Roy re ached t he bottom of the staircase, she saw the Appellant standing over the victim “with a sawe d-of f shotgun pointed at her

face.” Ms. Roy bega

n screaming for the Appellant not to hurt her daug hter. The Appellant then turned around, pointed the gun at Ms. Roy, a nd stated, “You don’t have any thing to do with this. This is not your business, go back upstairs.”
Ms. Roy ran bac

k up the stairca se with the children. When she r eached the upsta irs bedr oom, she placed the children in bed and kicked out a window so she could escape and get help. Ms. Roy jumped from the second story window a nd landed on the gro

und. As she

landed, s he hear

d “a boom” and desc ribed wh at took pla

ce next as follows:
I mean, it’s like he shot her. He shot her, y ou know. And I went next do or to try

to get some help, no one was home. And as I was knocking

on the door next door he c ame out of the house, and I saw him, he pointed the g un at me and I just started running across the courty ard. He shot at me, tried to shoot me in my ba ck. Ms. Roy ran to another

apartment directly

beside the victim’s apartme nt. Nicole

Jennings l et Ms. Roy inside and informed her that she had already called for emergency

assistance. Shortly there after, Ms. Jennings heard another knock at her door. When she opened the door this time, the vi ctim fell inside the doorway a

nd collapsed. The postmortem examination revealed that the victim died as a result of a gunshot wound to the neck with additional involvement to the lower portion of the jaw. 1 The medical examiner estimated that the range of fire was be tween three feet and eig

hteen feet based upon the pellet spread pattern.-3- ANALYSIS Sufficiency of the Evidence
A jury conviction remove s the presumption of innocence with which a defendant is cloaked and replaces it with one of guilt, so that on appeal, a convicte d defendant has the burden of demonstrating that the e

vidence is insuffi cient. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). In determin

ing the s ufficie

ncy of the ev

idence, this Court does not re weig h or reevalua te the evidence. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1 978). The defenda nt must establish that the evidence presented at trial was so defic ient that no rati onal trier of fact could have found the essential elementsof the of fense beyond a re asonable doubt. Jackson v. Virgini a , 443 U.S. 307, 319, 99 S. Ct. 2781 , 2789 (19 79); State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994), cert. denied , 513 U.S. 1086, 115 S. Ct. 743 (1995); T enn. R. Ap p. P. 13(e ). The Sta

te is entit led to the str onges t legitima te view of the evidence and all reasonable inferences which may

be draw n theref

rom. State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992), cert denied, 507 U.S. 954, 113 S. Ct. 1368 (1993).
The Appellant contends that the evidence present ed at tria l is insuff icient to s upport his conviction for second

degree murder. Second degree murder is define d as the “knowing killing of another.” See Tenn. Code Ann. § 39-13-210(a)(1). "[A] person acts knowingly with respect to a result of the pe rson's c onduct wh

en the pe rson is aw are tha

t the cond uct is rea sonably

certain to cause the result." Tenn. Code Ann. § 39- 11-302(b ). Volunta ry manslaug

hter, on t he other hand, is “the intentional or knowin g killi ng o f another in a state of passion produced by adequate provocation sufficient to lead a re asonable person to act in an irrational manner.” Te nn. Code Ann. § 39-13- 211(a). The Appellant contends that the victim’s homicide r esulted fr om “passi on and ad equate provocation” based upon the victim’s threats that she would have her ex-boy friend h ire someo ne to kill the App ellan t, after learning of his relationship with Dy nessa Lowe. The issue of w hat const itutes adequate provocation is a question of fact which must be dec ided under the particu la r facts of each case by

the jury. State v. Johnson , 909 S.W.2d 4 61, 464 ( Tenn. Crim. App. 1995). When the evide

nce is co nflicting , the jury must resolve these

conflic ts under p

roper in str

uction s, which were provided in t his case , and decide whether the homicide is murder or manslaug hter. Thus, it was for

the jury to determine whether the killing of the victim by the Appellant oc curred in a s tate of p assion pr

oduced b y pr

ovocatio n or whet

her the A

ppellant ’s action

was simply retribution for termination of the parties’ relationship.
In the present case, Ms. Roy testified that she was present with the victim and the Appellant the night prior to th

e murder and listen

ed as the victim told

the Appellant that

their relationship was over. According to Ms. Roy , the Appellant was calm throughout the even ing and it appea red as if nothing was wro ng when he left later that n ight. Ms. R oy recalls hearin g no threats b y th e victim to have the Appellant killed. The Appellant corroborated this testimony by acknowledging that he was not upset abo

ut the par ties’ bre ak-up. N onethele ss, Ms. Roy was awake ned the next morning by her daug hter’s screams. Ms. Roy witnessed the Appellant placing a sawed-of f shotgun to th e victim’s head. The Appellant admits that he fired the shot which resulted in the vi cti m’s dea th . In this case, the jury

obviously rejected the

Appellant’s claim of provocation, as is their pr erogative.-4-

We find that

a rational trier

of fact could have found bey ond a reasonable doubt that the Appellant knowing ly k

illed the v ictim. CONCLUSION
After review, we find

that the e vidence introduc ed at tria

l, taken in t

he light most favo

rable to the State , is more th an suffi cient to support the Appellant’s conviction for second degree murde r. Thus, we a

ffirm the judgmen t of the She

lby County Criminal Court.

___________________________________ DAVID G. HAYES, JUDGE