# FILED
January 15, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JANUA RY SESSION, 1998

STATE OF TENN ESSEE, ) ) No. 02C01-9703-CC-00122 Appellee ) ) HARDIN COUNTY vs. ) ) Hon. C. Creed McGinley, Judge ROBERT ZAN DI, ) ) (Second Degree Murder ) Appellant )
For the Appellant : For the Appellee : Richard W. DeBerry John Knox Walkup Asst. District Publi c Defender Attorney General and Repor ter P. O. Box 663 Camden, TN 38320 Janis L. Turner Assistant Attorney Gener al Criminal Justice Div

ision Guy T. Wilkinson 450 James Robertson Parkwa y District Public Defender Nashville, TN 37243-0493
G. Robert Radford District Attorney General John Overton Asst. District Attor

ney General Hardin County Courthouse Savannah, TN 38372

OPINION FILED: AFFIRMED
David G. Hay

es Judge1 The appellant was indicted for prem editated first degree murder.
2 The rifle

was identi fied as a 7. 62 caliber , Norinco Arms, SKS assaul t rif le. 2 OPINION
The appellant, Robert Zandi, appeal s his conviction for second degree murder following a jur

y trial in the Hardi n County Circuit Co urt. 1 On appeal, he contends that the evidence w as insufficient to convict h im of this offense.

After a review of the rec ord, we affirm the judgment of the tr ial court.

Background
Shortly after midnight on December 14, 1995, Virgini a Hamm was awakened by three gunshots from outsi de her mobile home. Looking outs ide her window, she observed the appellant “hol lering” and “cussin g” at William “Andy” Hamm and Bobby Plunk. Virginia and Andy Hamm were married, how ever, they had separated and were living i n separate mobile homes located on ad jacent lots. The appellant resided with his mother, Virginia Hamm. Johnny Gilmore, who was s

taying with Andy Hamm, also heard the gu nshots. Moments later, Gil more observed the appellant carrying a rifle “hollering and fussing and carrying on.” He then heard the appellant state that he was going to kill “Andy [Hamm] and Bobby [Plunk].” With the victim following,the appellant then returned to hi s mother’s residence. Insi de, Hamm told his wife that “R obert is going to hav

e to leave because I can’t h ave any friends because of him.” The appellant asked his mother if she agreed with Andy and she replied that she did. With out hesitation, the appellant, who was in possession of the rifle, fired one s hot, striking the v ictim in the chest. 2 The bullet, fired from an approximate distanc e of eight feet, entered the appellant’ s chest, traversing the lungs, aorta and spinal cord. F rantically, Ms. H amm attempted to3

telephone “911.” Howev er, her efforts were thw arted when the appellant pull ed the telephone line from the wall.The appellant, at this point, g rabbed a .22 pistol and fled the scene in his 1982 Pontiac Firebird. He was finally apprehended on May 1, 1996, when an officer with th e Illinois Commerce Commiss ion Police in Rock Isl and, Illinois, stopped a commerci al moving van for v arious violations r

elating to federal and state interstate commerce regulations.
The appellant testified in his ow n defense at trial. His testimony revealed a rather unconventional famili al relationship. In 1967, August and Virginia Za ndi adopted the appellant, who w as six years old.In 1976, Andy Hamm, who w as sixteen years old, came to live in the Zandi household as a foster child. The appellant was fourteen years old at this time. Sometime thereaf ter, the relationship between Virginia Zand i and Andy Hamm became sexual . When Andy Hamm was eighteen years old, the two “cleaned out” the Zan di’s bank account and left tow n. In 1981, when the victim w as twenty-one year

s old and Ms. Hamm was thi rty-eight, they were married. Because of his mother’s affair wi th Hamm, the appellant refused to speak with his mother for approximately tw elve years after their

marriage. However, at the time of the murder , the appellan t had “come to a n understandi ng” with his mother and had been residing, on and off, with her for three years. Virginia Hamm testified that the appellant had ne ver accepted Hamm.
The appellant testified that the initial reason for the encounter bet ween himself and the victim w as because Andy and Bobby w ere working on a tr

uck and making too much noise. He stated that it was after midnight and “Plunk had held the throttle down for, I know, at least ten minutes, just flooring it” and he couldn ’t sleep. He related, howev er, that what he was r

eally upset about was the death of his father, August Zandi, on S eptember 30, his recent job lay -off on August 30, and “the last twenty y

ears.” In acknowledg ing his actions, he ex plained, “I just blew

up and I lost control and I shot him.”4 Based upon this evidence, the jury convicted the appellant of second degree murder.

I. Sufficiency of the Evidence
In his only issue, the appellant contends that the evidence is insuff icient, as a matter of law, to support a c onviction for second degr ee murder. However, he concedes that the proof establishes that he is guilty of v

oluntary manslaughter. The trial court charged the jury on both offenses and the jur y found the appellant guilty of second degree murder.

Whe n an accu sed chall enges the suffici ency of th e convicti ng evidenc e, we must review the evidence in the light most favorable to the prosecution in determining whether “ any rational trier of fact could have found the essential elements of the crime beyond a reasonable doub t.” Jackson v. Virginia , 443 U.S. 307, 317, 99 S.Ct. 2781, 2789 (1979).We do not reweigh or re-eval uate the evidence and are requir ed to afford the State the strongest l egitimate view of the proof contained in the record as well as all reasonabl e and legitimate inferences which may be drawn

therefrom. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978).
Questions concerning the credibility of witnesses, the weight and v alue to be given to the evidenc

e, as well as factual is

sues raised by the ev

idence are solved by the trier of fact, not this cour t. Cabbage , 571 S.W.2d at 835. A guilty verdict rendered by the jury and approved by the tria l judge accredits the t estimony of the witnesses for the State, and a presumption of guilt replac es the presumption of innocence. State v. Grace , 493 S.W.2d 474, 47 6 (Tenn. 1973).5 A defendant challenging the suffici ency of the proof has the burden of illustrating to this court why the evidence is insufficient to support the verdict returned by the trier of fact in his or her case. This court will not dis

turb a verdict of guilt for lack of sufficient ev idence unless the facts contained in the record and any inferences which may be dr awn from the facts are insufficient, as a matter of law, for a rational trier of fact to find th e defendant guilty beyond a reasonable doubt. State v. Tuggle , 639 S.W.2d 913, 91 4 (Tenn. 1982).
In this case, the appellant w as convicted of second degr ee murder or the “knowing killing of another.” Tenn. Code Ann. § 39-13-210(a)(1) (1995 Supp.). He argues that the evidence supports only volunta ry manslaughter w hich is defined as “the intentional or know ing killing of another in a state of passion produced by adequate provocation sufficient to lead a reasonable person to act in an irrational manner.” Tenn. Code Ann. § 39-13-211( a)(1991).
When the evidence is conflicting, the j ury must resolve thes e conflicts, under proper instructions, and decide whether the homicide is murder or manslaughter

. Thus, in this

case, it w

as for the jur

y to determi ne whether the killin g of Andy Ha mm by the appellant occurred in a state of passion produced by provocation from the “last twenty years” or whet her the appella nt simply meant t o violently end a lon gstanding hostility.The jury found the latter and the trial judge approv ed this verdict. We agree. The record establishes, beyon d a reasonable doubt, that the appell ant (a) unlawfully ki lled the victim and (b) did so knowingly

.

Accordingly, w

e conclude, as a matter of law , that the evidence is suffici ent to support a finding by the j ury that the appellant is guilty of second degr

ee murder. Tenn. R. App. P. 13(e).6 The judgment of the trial court i s affirmed.

____________________________________ DAVID G. HAYES, Jud ge
CONCUR:

_______________________________ JOE B. JONES, Pres iding Judge

______________________________ JOE G. RILEY, Judge