IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs January 10, 2001

STATE OF TENNESSEE v. ROBERT ERVIN

Direct Appeal from the Circuit Court for Lauderdale County

No. 6710 Jon Kerry Blackwood, Judge

No. W2000-01035-CCA-R3-CD - Filed January 31, 2001

Robert Ervin, also known as Muhammad Jabbar, was convicted of attempted second degree murder

and sentenced to twenty-five years in the Tennessee Department of Correction. On appeal, Ervin

raises one issue for our review: Whether the evidence produced at trial was sufficient to support the

verdict. After review, we find the evidence sufficient and affirm the judgment.

Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed.

DAVID G. HAYES, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and

ALAN E. GLENN, JJ., joined.

Gary F. Antrican, District Public Defender, Somerville, Tennessee, for the Appellant, Robert Ervin.

Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Lucian D.

Geise, Assistant Attorney General, Elizabeth T. Rice, District Attorney General, and Tracey Brewer,

Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

In January of 1999, a Lauderdale County Grand Jury returned an indictment against the

Appellant, Robert Ervin, charging him with attempted first degree murder. Following a jury trial,

the Appellant was found guilty of attempted second degree murder. The trial court sentenced the

Appellant as a persistent offender to twenty-five years in the Tennessee Department of Correction

and ordered his sentence be served consecutive to sentences he was already serving. On appeal, the

Appellant argues that the evidence produced at trial was insufficient to support the verdict. After

review, we find no error. Therefore, the judgment of the Lauderdale County Circuit Court is

affirmed.

Background
1

The “sh ank,” an inmate-fashioned weapon, was described as a 10-inch, rod-like object. It had one sharp edge

and wa s covered on one end with material.

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On the date of June 6, 1998, the Appellant was an inmate at the West Tennessee State Prison

where he was serving multiple sentences stemming from his convictions for first degree murder, two

counts of aggravated kidnapping, eight counts of robbery with a deadly weapon, two counts of

burglary, and one count of assault with intent to commit robbery. On that same day, at

approximately 9:00 A.M., correctional officers, Gregory Shaw and Patricia Taylor, were escorting

the Appellant from his cell to the shower. As is typically done, when the Appellant entered the open

shower stall, his handcuffs and leg shackles were removed and the shower door was locked from the

outside. Since this particular pod had three showers, the two officers returned to retrieve the next

showering prisoner, Mark Selby. 

As the two officers and Selby approached the shower stall occupied by the Appellant, the

Appellant suddenly bolted out of the stall, brandishing a shank,1 and began stabbing Selby. Because

Selby was still in handcuffs and shackles, he fell to the floor and was unable to escape the attack.

After stabbing Selby five to seven times, the Appellant threw the shank down and returned to his

cell. Selby was taken to a nearby hospital where he was treated for multiple stab wounds to his back

and head.

At trial, the Appellant testified that it was Selby who instigated the incident. According to

the Appellant, Selby charged at him with the shank and the Appellant somehow managed to avoid

the attack, removed the weapon from Selby, and then used it to stab Selby in self-defense. The

Appellant also testified that he and Selby had encountered disagreements in the past and most

recently had had a dispute over money prior to the stabbing incident. According to the Appellant,

Selby had previously lost a bet with the Appellant and had refused to pay him.

I. Sufficiency of the Evidence

The Appellant argues that the evidence produced at trial was insufficient to support his

conviction for attempted second degree murder. Specifically, he argues that the State presented “no

proof concerning an intent to kill [the victim] or intent to cause injuries serious enough so that death

could have reasonably been anticipated.”

A jury conviction removes the presumption of innocence with which a defendant is cloaked

and replaces it with one of guilt so that, on appeal, a convicted defendant has the burden of

demonstrating that the evidence is insufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

In determining the sufficiency of the evidence, this Court does not reweigh or reevaluate the

evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Likewise, it is not the duty of this

Court to revisit questions of witness credibility on appeal, that function being within the province

of the trier of fact. See generally State v. Adkins, 786 S.W.2d 642, 646 (Tenn. 1990); State v.

Burlison, 868 S.W.2d 713, 718-19 (Tenn. Crim. App. 1993). Instead, the defendant must establish

that the evidence presented at trial was so deficient that no reasonable trier of fact could have found
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the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

319, 99 S. Ct. 2781, 2789 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994), cert. denied,

513 U.S. 1086, 115 S. Ct. 743 (1995); Tenn. R. App. P. 13(e). Moreover, the State is entitled to the

strongest legitimate view of the evidence and all reasonable inferences which may be drawn

therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992), cert denied, 507 U.S. 954, 113 S. Ct.

1368 (1993).

In the present case, the Appellant was convicted of attempted second degree murder. Second

degree murder is the "knowing killing of another." TENN. CODE ANN. § 39-13-210(a)(1) (1997).

A person acts knowingly with respect to a result of the person's conduct when the person is aware

that the conduct is reasonably certain to cause the result. TENN. CODE ANN. § 39-11-106(a)(20)

(1997). Attempted second degree murder may be proven by showing that the defendant

"intentionally acted with the requisite culpability to commit the offense of murder in the second

degree" and the defendant "could have been convicted of murder in the second degree ... if he had

actually killed the victims." See State v. Dale Nolan, No. 01C01-9511-CC-00387 (Tenn. Crim. App.

at Nashville, Jun. 26, 1997), perm. to appeal denied, (Tenn. Mar. 2, 1998) (citations omitted). See

generally TENN. CODE ANN. § 39-12-101(a)(1), (2), (3) (1997). Whether the attempt to kill or

killing of one person by another occurs under circumstances which justifies the act under the doctrine

of self-defense, or is the result of some other motive, it remains a question of fact to be determined

by the jury under proper instructions and from consideration of all the evidence. The jury is not

obligated to believe the Appellant’s version of events as to self-defense. The issue of self-defense

in a murder or attempted murder prosecution is always a question of fact to be determined by the

trier of fact.

In this case, Officer Shaw testified that the Appellant burst out of the shower displaying a

shank and immediately began attacking the victim who was still handcuffed and shackled. Although

the Appellant testified that he acted in self-defense, he admitted that he stabbed the victim at least

five to seven times in the back and head. Considering these factors, in the light most favorable to

the State, we find the evidence more than sufficient to support the jury's verdict of attempted second

degree murder, i.e., that the Appellant's conduct was reasonably certain to cause the victim's death,

based upon the use of a deadly weapon, the number of wounds inflicted, the seriousness of the

wounds and the Appellant’s past history of conflict with the victim. See TENN.CODE ANN. § 39-12-

101(a)(2); Tenn. R. App. P. 13(e). Thus, this issue is without merit.

CONCLUSION
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We conclude, as a matter of law, that the evidence presented is more than sufficient to

support a finding by the jury that the Appellant is guilty of attempted second degree murder. Tenn.

R. App. P. 13(e). The judgment of the Lauderdale County Circuit Court is affirmed.

___________________________________ 

DAVID G. HAYES, JUDGE