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

anuary 10, 2001
STATE OF TEN

NESSEE v. ROB

ERT 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 t o twent y-five y ears in the Tenne

ssee Departmen

t of Correction. O

n appeal, Ervin raises one issue for our

review: Whether the evidence produced at trial was sufficient to support the verdict. After r

eview, we find the

evidence suffic

ient and affirm th

e judgment. Tenn. R. App. P. 3; Judgm ent of the Circuit

Court Affirmed.

D AVID G. H AYES , J., delivered the opinion of the court, in which J OHN E VERET T W ILLIAM S and A LAN E. G LENN , 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 19

99, a Lauder

dale County G

rand Jury re

turned an indictme

nt ag ainst the Appellant, Robert

Ervin, charging him w

ith attempted first

degree murde

r. Following a ju

ry trial, the Appellant was found

guil ty o f attempted second degree murder. The trial court sentenced the Appellant as a persistent offender to twenty-five y ears 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 produc

ed at tr ial w as insufficient to support the verdict. After review, we find no error . Therefore, th

e judgment of the

Lauderdale

County Cir

cuit Co urt is affirmed.

Background1 The “sh ank,” an inmate-fashioned weapon, was descri bed as a 10-inch, rod-li

ke object. It

had one sharp edge and wa s covered on one end with material.
-2- 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 ag grav ate d ki dna ppi ng, e ight cou nts of r obb ery w ith a d eadly weapon, two counts of bur glar y, and one count of assault with intent to commit robbery. On that same da y, a t 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 locke d from the outside. Since this p

articular pod ha

d 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 stabb ing Selby. B ecause 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 , th e Appellant threw t he shank down and r

eturned to his cell. Selby

was taken to a nearby hospital where he was treate d for multiple stab wounds to his back and head.

At trial, the Appella

nt testified that it w

as Selby who i

nstigated the inc

ident. According to the Appellant, Selby charged at him with the shank and the Appellant somehow manage d to avoid the attack, removed t

he we apon from Selby, and then used it to stab Selby in self-defe nse. The Appellant also testified th

at he and Selby ha

d encountered di

sagreements in

the past and most recently had had a dispute over money prior to the stabbing incident. According to the Appellant, Selby had pr

eviously lost

a bet with the Appe

llant and had ref

used to pay h

im. I. Sufficiency of the Evidence

The Appellant argues that the evidence produced at t rial was insuffic

ient 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 se

rious enough so th

at death could have reasonably been anticipated.”

A jury conviction removes the presumption of innocence with which a defe

ndant 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 de termining the sufficiency of the evidence, this Court does not reweigh or re evaluate the evidence. State v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978). Likewise, it is not the duty of this Courtto revisit questions of witness credibility on appeal, that func

tion being within

the province of the trier of fact. See genera lly State v. Adkins , 786 S.W.2d 642, 646 (T enn. 1990); State v. Burlison , 868 S.W.2d 713, 718-19 (Tenn. Crim. App. 1993). Instead, the defendant mus t establish that the evidence presented at trial was so deficient that no reasonable trier of fact could have found-3-

the essential elements of

the offense beyond a reasonable doubt. Jackson v. Virgini a , 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 ev idence and all reasonable inferences which may be drawn therefrom. Statev. 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 kil ling of another." T ENN

. C ODE A NN . § 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 i s reasonably certain to cause the result. T ENN

. C ODE A NN . § 39-11-106(a)(20) (1997). Attempted sec ond degree murder may be proven by showing that the defendant "inten tionally

acted with the requisite culpability to commit the offense of murder in the secon d degree" and the defendant "could have been convic ted of murder in the second degree ... if he had actually killed the victims ." See Statev. 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 ge nerally T ENN

. C ODE A NN . § 39-12-101(a) (1), (2), (3) (1 997). Whether the a tte mpt to kill o r killing of one person by another occ ur s under circumstances which justifies the act under the doctrine of self-defense,

or is the result

of some other motive

, it remains a ques

tion of fact to

be determined by the j ury unde

r proper instructions and from consideration of all the evidence. The jury is not obligated to believe the App

ellant’s version o

f events as to

self-defense. The

issue of self-de

fense in a murder or attempted mur der 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 showe r displaying a shank and immediately

began attack ing the vict im who was s till hand cuffed and sh ackled. Alt hough the Appellant testified that he acted in self-defense, he admitted that he stabbedthe victim at least five to seven times in the back and head. Co nsidering these

factors, in the lig

ht 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., tha

t the Appellant' s conduct was rea sonably ce

rtain to cause

the victim's death, bas ed upon the use of a deadly weapon, the number of wounds inflicted, the seriousness of t h e wounds and the Appellant ’s past history

of conflict with

the victim. See T ENN

. C ODE A NN

. § 39-12- 101(a)(2); Ten

n. R. App. P. 13(e).

Thus, this issue is wit

hout merit.

CONCLUSION-4-

We conclude, as a ma

tter of law, that th

e evidence pre

sented is more tha

n su fficient t

o 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