### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Bri efs Octobe r 30, 2001

STATE OF TENNESSEE v. JERMAINE DRIVER
Direct Appeal from the Criminal Court for Shelby County No. 00-01552 Joseph P. Dailey, Judge

No. W2001-00376-CCA-R3-CD - Filed F ebruary 8, 2002

The d efendant, Jermaine Driver, appeals his conviction of attempted first-deg ree murder, which
was base d on an assau lt by the defend ant an d two o ther m en upo n the v icti m. Aft er a tho rough review of the record, we conclude that the re is suff icient ev idence t o establis h that the

assault
was a preme ditated a

nd intentional attem

pt to kill the

victi m. The judg ment of the trial cou rt is affirmed.
Tenn. R. App. P. 3 Appeal of Right; Judgment of the Criminal Court Affirmed

J OHN E VERE TT W IL LI AMS , J., delivered the opinion of the court, in which D AVID G. H AYES and J AMES C URWOOD W ITT , J R ., JJ., joined.
Charles W. Gilchrist, Jr., Memphis, Tennessee, for the appellant, Jermaine Driver.

Paul G. Summers, A ttorney Genera l and Repo

rter; Kim R. Helper , Assistan

t Attorne y General ; William L. Gibbons, District Attorney General; and Jennifer Smith N ichols, Assistant District Attorney Gene

ral, for the appellee, State of Tennessee

.

OPINION

The defenda nt, Jermaine Driver, and his brother, Anthony Driver, were indicted on one count of attempted first-degree murder . The defenda nt was tried separately

from his brother. A jury convicted the defendant, and the trial court senten c ed the defendant to twenty -five (25) y ears as a standard Range I offender. The defendant’s motion for new trial was denied, an d thi s t imely appeal f ollowed. On appea

l the def endant r aises a s ingle is sue: whe th er there wa s sufficient evidence to support his conviction for attempted first-deg ree murder.

Facts
According to his testimony , the vi ctim, Dona ld Walton, h ad known t

he defe ndant and his brother, Anthony Driver , for sever al year s. The victim admitted that he had purchased crack cocaine from Anthony Driver on several occasions over a period of y ears. The eve nts tha t-2-

culminated in the instant offense began on a Monday , when the defendan t asked to use the victim’s car. The victim testified that he had al low ed Ant hony Driv er to u se his car in e xcha nge for crack c ocaine in th e p ast. Afte r telling the defe ndant tha t he had to

have his c ar back

in time to go to work the next morning, he agreed to allow the defendant to us e his car for three ho urs in exch ange for twenty dollars w orth of crack cocaine. A fter three hours, the victim met the defendan t and made a second deal for three more hours in exchange for more crac k cocaine. At midnight , when the

time for t

h e second d eal expired, the victim agreed to allow the defenda nt
a nd Anthony

Driver t o keep the

car as l ong as th

ey drove him

to work a

t se ven o’cl ock in th e morning. In exchang e, Anthony Driver gave the victim more crack coc aine.

On Tuesday morning , the defendant picked the victim up an d drove him to work as agreed. That afternoon, both the defendant and Anthony Driver arrived to pick the v ic tim up from work, and he made another dea l with the br others allowing them to keep the car another three hours. At nine o’clock p.m. on Tuesday , the victim made a deal with Anthony Driver f o r three more hours. A cco rding to the terms of the deal, the victim was supposed to get his ca r back at midnight but at six o’clock the ne xt m ornin g the victim still did not have his car. The victim called the defendant and told him that he needed his car to drive to wor k. Shortly thereafter, the defe

ndant ar rived in th

e victim ’s car and

asked to make ano ther dea l. The victim refused and drove himself to work.

The victim testified that he looked for the brothers when he got off work on Wednesday in order to pay the defe

ndant money he owed for crack cocaine and to re turn tools that had been left in the trunk of his car. However, the victim did not see eit her the defendant or Anthony Driver the r est of the d ay on We dnesday . While driving to his grandmother’s house after w ork
on Thursday, the victim saw the defendant and Anthony

Driver. He parked his car on the side of the street , and he and the passenger in his car got out of the c ar. The victim opened the trunk of the car so that the defend a nt could retrieve the two tire jacks and lug wre nches that had been left in the trunk. At this time, the defenda nt toldthe victim that he had been looking for him. The victim did not respond but continued to stand by while the de fendant removed the tools from the trunk of the ca r. Anthon

y Driver wa s also pre sent, and he told the victim that he owed the victim forthe extra t

ime he ke pt the ca r. Anthon

y Driver a

lso told the

victim tha

t the victim owed th e defendant money for c

rack cocaine t

hat h e purchased from the defendant on Tue sday. Anthony Driver repeated the statement, “I owe you but y

ou owe [the defendant],” several times.
According to a deal

th e victim had m ade with the defendant earlier in the wee k, he owed him twen ty dollars. In the victim’s opinion, however, he no long er owed the defendant any money because o f the extra t ime the br others ha d kept his c ar. Howe

ver, he e ventuall y responded

to Anthony

Driver’ s stateme

nts by say ing “I ’m ti red of

hearing this” and pulling fifteendollars from his pocket. The victim handed the fifteen dollars to the defendant, and the defendant pu sh ed it aw ay. Th e v ic ti m r es po nd ed “I g ue ss yo u want a twent y.” He told the defendant he would go to his grand mother’s house t o get the rest of the money . The defendant ag reed but tol d him that he would have to leave his car there and wa lk to his grandmother’s house. The victim refused to walk. At this point, the passenger from the victi m’s car, who had b een list ening to the conversation, pulled five dollars from his pocket and tried to hand it to the de fendan t. The defendant refused the money and swung at the victim with one of the lug-3-

wrenc hes that had been in the victim’s trunk. The victim is six feet, five inches tall and w as abl e to block each of the defenda nt’s swing s wit h his left h and. On th e fourth swing, t he victim caught the lug wrench and took it fro m the defendant. The defendant turned a nd ran away because, in th e vict im’s opin ion, he was a fraid that t he vic tim w as go ing to hit him back with the lug wre nch. How ever, th

e victim ma

intains tha

t he did not

plan to hit t

he defe ndant.

The altercation occur

red on th e side of the street and there were “many people ”standing nearby watching was what happening. A nthony Driver wa s standing a few feet aw ay leaning agains ta wood plank. However, he was not involved until the defendant ran away . Once the defendant left, Anthony Driver

approached the victim and began hitting him in the leg s with a pi ece of wood, w

hich the victim belie

ved was s maller th an a two- by- four. The victim te stifie d that he wanted to leave but that he did not because he would have had to turn his b ack to Anthony Driver in order to get into his car. I n his opinion, “ you should alway s face y our attackers.” The vi ctim stil l had t he lug w rench that he had taken from the defendant. He r aised the lug wre nch an d said that h e was “t ired o f bein g h it.” Just a s he was about to hit Anthony Driver with the lug wrench, he chang ed his mind. In stead, he said “thisis for noth

ing, ab solutely
n othing.” The lug wrench slipped from his hand and fell to the g round. Anthony Driver retrieved the lug wrench and the two men stood facing each other.

Afte r being g one for l ess than t wo minutes , the def

endant r eturned with anoth

er ma n

. Both of them were carry

ing pieces of wood

similar to the one that Anthony Drive r used to hit the victim in the legs. All three men began hitting the victim, and at some point he fell on th e g round. The victim cov ered hishead whi le the thr ee men hit him repe atedly . Then the y a ll stopped hi tt in g h im an d b eg an to wa lk aw ay. As the y were leaving, the victim’s friend, who had been watching what happened, informed Anthony Dri ver that

th ey had “

hurt him bad.” Anthony Driver responded, “that’s what he g ets.”

After the assa

ult was over, the victim tried to stand but could not. He heard sirens in the distance and was taken to the hospital by ambulance. He was ho spitalized for a week. The victim and his mother te stified about the injuries he sustained. He had a fractured skull, a lacerated liver, two broken fingers, and an injur y to his shoulder. Bec ause of his head injury , the victim was unable to s peak for a period of time after the assault. Although he has undergone speechand physical ther

ap y, he i s still unab le to arti culate h is though ts the way

he was a ble to before the assault.
Analysis

The defenda

nt contends that the evidence was insufficient to support his conviction for attemptedfirst-degree murder. The defendant concedes that the evidence adduced at trial est ablished that he assaulted the victim but alleges that there was no evide nce that the defen dan t had the intent to kill the victim.

When a defendant challenges the suf ficiency of

the evidence , the sta

ndard of review i s whether, after c onsidering the e vidence in the lig

ht most favorable to the prosecution, any rational trier of

fact could have f

ound the e ssential e

lements of

the crime

bey ond a rea sonable-4-

doubt. Tenn. R. A

pp. P. 13(e ); Jackson v. Vi rginia , 443 U.S. 307, 324, 99 S. Ct. 2781, 2791-92, (1979). Questionsconcer ning the credibi li ty o f th e witnesses, the weight and value of the evidence, and all f

actu al i ssues raised by the e vidence are resolved by

the trier of fact. State v. Cabba ge , 571 S.W.2 d 832, 835 (Te nn. 1978) . This Cour t must aff

ord the st

ate the s tronge st legitima te view of the ev iden ce conta ined in the

record as well a s all rea sonable a nd legit imate inferences which may be dr awn from the evidence. Cabba ge , 571 S.W.2d at 835. Therefore , this Court may not rewe

igh o r reevaluate the evidence or substitute its infere nces for those drawn by the trier of fact from the evidence. State v. Matthews , 805 S.W.2d 776 , 779 (Tenn. Crim. App. 1990). Furthermore, it is the defendant’s burde n to demonstr

ate that t he evide nce is insufficient

because a j ury’s fi nding of guilt removes the presumption of innocence and replaces it with one of guilt. State v. Tu ggle , 639 S.W.2d 913, 914 (Tenn. 1982).

In order to establish the criminal attempt element required t o prove a ttempted first-degree murder, the stat e m ust first prove that the defendant acted with the requisite culpability required for premeditated fir st degre e murder, and second that the act or acts were in furtherance of the attemptedcrime. See Tenn. Cod e Ann. § 39 -12-101( a); Wya tt v. State , 24 S.W.3d 319, 323 (Tenn. 2000).
Attempted first-d egree murder as alleged in the indictment also requires proof that the attemptedmurder was premeditated and intentional. Tenn. Code Ann. § 39-1 3-2 02(a)(1). Once
a homicide or attempt ed homic ide is esta blished, it is presum

ed to be th

e offen se of mur

der in the second degree or an attemptto commit murder in the second degree. St at e v . B oyd , 909 S.W.2d 50, 53 (Tenn. Crim. App. 1995). In order t o elevate the offense to first-deg ree murder or
an attempt thereof, the state ha s the b urden to overcome that presumption by proving that the
mur derwas inte ntional and premeditated. Id. A person acts intentionally “ when it is the person’s conscious objective or desire to engag e in the conduct or cause the result.” Tenn. C o de Ann. § 39-11-106(a)(18). I ntent, which can seldom be proven by direct evidence, may

be deduced or inferred by

the trier of fact from the chara cte r of the assault, the nature of the act and from all the circumstances of the case in evidence. State v. H olland , 860 S.W.2d 53, 59 (Tenn. Crim. App. 1993). “‘Premeditation’ is an act done after e xercise of ref

l ection and judgment.” Tenn. Code Ann. § 39-13-202(d). Although p rem editation require s that “the

intent to kill must have been formed prior

to the ac t itself[, it

] is not nece ssary

that the purpose to

kill pre- exist in the mind of the accused for any definite period of time.” Id. In addition , the element of premeditation is a question of fact to be de termined by the jury

. State v. Suttles , 30 S.W.3d 252, 261 (Tenn. 2 000). Although the jury may not eng age in s peculat

ion, it may

infer pr emedit atio n from the manner and circu msta nces of the offense. State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997) ; State v. Bordi s , 905 S.W.2d 2 14, 222 (Tenn. Crim. App. 1995 ). The Te nnessee Supreme Courthas rec ognized s e veral c ircumstances from which a jury may infer pr

emeditation, inclu ding: evidence of procurement of a we apon; the nature of the kill i ng or at tempt ed kil ling, including the defendant's use of a dea dly wea pon upon an unarmed victim; and the killing or attemptedkilling o f the vic tim while th e victim is retreating or

attempting to escape. Bland , 958 S.W.2d at 660; Bordis , 905 S.W.2d at 221-22.. With respect to the n ature of the at tempted kill ing, repeat

ed shots or

blows will not alone e stablish pr emeditat ion but ma

ybe considered along with other circumstances in assessing the existence of pre meditation. State v. Brown , 8 3 6 S.W.2d 530, 542 (Tenn. 1992).-5-

In the instant case, considering the proof in the light most fa vorable to the state, we conclude that there was sufficient evidence to support the def endant’s conviction for attempted first-degree

murder bey ond a reasona bl e doubt. The evidence concerning the nature of the
assau lt, the circu mstances surrounding the assault, the use of a dea dly weapon on a

n unarmed victim , and t he se ri ou sn es s o f t he in ju ri es su pp or t a n i nfer en ce th at th e d ef en da nt in te nt io na ll y, andwith prem

editation , attemp ted to k ill the victim. The defendant began his assault with a deadly weapon b y swinging

a lug wr ench at t he victim ’s head. Unsucce ssful in hisattempts t o strike the victim with the l ug wrench, the d efendant ran away and procured another weapon. He then returned with another person, who also had a we apon. The defendant , along with two other men, then continued the a ssault upon the unarmed victim by re peatedly hitting him in the hea d withboards and a lug wrench. The a ssault co ntinued even after the victim fell to the ground and resultedin life thr

eatening injuri es. The vic t im was hospitalized for a week to treat his fractured skull and multiple internal injuries. Based upon such evidence, the jury could have fou n d beyond a reasonable doubt tha t the defendant intended and attempted to commit first-degree murder. This issue is without merit. Accordingly , the judgment of the trial court is affirmed.

___________________________________ JOHN EVERETT WILL

IAMS, JUDGE