IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON AUGUST SES SION, 1998 FILED November 24, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9604-CR-00119 ) Cecil Crowson, Jr. Appe llate Court C lerk Appellee, ) ) VS. ) SHELBY COUNTY ) ) HON. W. FRED AXLEY DERRICK C. BROOKS, ) JUDGE ) Appe llant. ) (Felony-M urder)

ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF SHELBY COUN TY

FOR THE APPELLANT: FOR THE APPELLEE: BRE TT B. S TEIN JOHN KNOX WALKUP Adams Avenue Attorney General and Reporter Memphis, TN 38103 MARVIN E. CLEMENTS, JR. Assistant Attorney General 5th Avenu e North Nashville, TN 37243 WILLIAM GIBBONS District Attorney General EDG AR A . PETE RSO N, IV Assistant District Attorney General Criminal Justice Complex, Suite 301 Poplar Street Memphis, TN 38103 OPINION FILED ________________________ AFFIRMED DAVID H. WELLES, JUDGE OPINION The Defendant appeals as of right from his conviction of first degree murder. His con viction wa s entered upon a jury verdict finding him guilty of murder com mitted during the perpetration of an aggravated burglary. He was senten ced to im prisonm ent for life. W e affirm the judgm ent of the tria l court.

In this appeal, the Defendant argues three issues: (1) that the evidence presented was insufficient to support the jury’s finding of guilt beyond a reaso nable doubt; (2) that the trial court erred in allowing the State to introduce as evidence a picture of the victim at the scene of the crime; and (3) that the trial court erred in its instruction to the jury co ncerning the d efinition of reasonable doubt.

We first review the basic facts. Andrew Ewing, who was a friend of the Defen dant, had been involved in an a ltercation with a m an nam ed Willie Fifer.

The two men had fought and E wing appa rently b elieve d he h ad a s core to settle with Fifer. A t abou t 2:30 a .m. on Marc h 21, 1 994, E wing went to Fifer’s residence. The Defendant accompanied him. Ewing was armed with a stick and the Defen dant w as arm ed with a pistol. The two men approached the front door of Fifer’s residence, and Ewing kicked in the do or. As the Defendant and Ewing entered the residence, Fifer ran down a hall and, after being struck in the head with the stick by Ewing, Fifer was able to gain entrance into a bedroom occupied by Marlo Terry and Terry’s girlfriend. Terry leaned against the bedroom door in -2- order to try to kee p Ewin g or the D efenda nt from e ntering the bedroom. As he did so, the Defendant fired four shots from the pistol through the closed bedroom door. One of the shots struck and killed the victim, Marlo Terry. Both the Defendant and Ewing were charged with felony murder for the k illing of th e victim during the perpetration of an aggravated burglary. The State charged that the Defendant and Ew ing had entered the reside nce of F ifer with the in tention to com mit an aggravated assault. The jury found both the Defendant and Ewing guilty of felony murder as charged.

The Defendant first argu es that the evidenc e is insufficien t to suppo rt a finding that at the time he entered the dwelling, he intended to commit an aggravated assau lt as charg ed in the in dictme nt. When an accused challenges the sufficiency o f the conv icting evide nce, the s tandard is wheth er, after reviewing the ev idenc e in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reaso nable doubt. Jack son v . Virginia , 443 U.S. 307, 319 (1979). Questions concerning the credibility of the witnesses, the weight and value to be given the evidence, as well as all factual issues raised by the evidence, are resolved by the trier of fact, not this Court. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim.

App. 1987 ). Nor m ay this Court reweigh or re evalua te the evid ence. State v. Cabbage, 571 S.W .2d 832 , 835 (Te nn. 197 8).

A jury verd ict approv ed by the trial judge ac credits the State’s w itnesses and resolves all conflicts in fa vor of the S tate. State v. Grace, 493 S.W.2d 474,

-3- (Tenn. 1973 ). On a ppea l, the Sta te is en titled to th e stron gest le gitimate view of the e viden ce an d all inference s therefro m. Cabbage, 571 S.W.2d at 835.

Because a verdict of guilt removes the presumption of innocence and replaces it with a presumption of guilt, the accused has the burden in this court of illustrating why the evidence is insufficient to support the verdict returned by the trier of fact. State v. Tug gle, 639 S.W .2d 913 , 914 (Te nn. 198 2); Grace, 493 S.W.2d at 476.

An assault occurs if a person intentionally, knowingly, or reck lessly causes bodily injury to another, intentionally or know ingly ca uses anoth er to rea sona bly fear imminent bodily injury, or intentionally or knowingly causes physical contact with anoth er and a reas onab le person would regard the co ntact a s extre mely offensive or provocative. Tenn. Code Ann. § 39-13-101. The assault is an aggravated assau lt if it causes se rious bod ily injury to an other pe rson or if the person comm itting the a ssault us es or disp lays a de adly we apon. Id. § 39-13- 102(a)(1).

We believe that the evidence introduced by the State is su fficient to support the finding of the jury that the Defendant entered the residence where the victim was killed with the intention of participating in an aggravated assault.

Andrew Ewing had an altercation with Willie Fifer. Ewing’s girlfriend testified that Ewing had said he was going to ge t back at Fifer because of their previous altercation. Ewing’s uncle rode with Ewing to Fifer’s house. On the way to the house, Ewing stopped the vehicle at a house, honked the horn, and the

-4- Defendant cam e out a nd go t in the car. They d rove further, and Ewing stopped the car and said “There the house is right there.” Andrew Ewing and the Defendant got out of the car and together walked up to the Fifer house. Ewing was armed with a large stick, a nd the D efenda nt was a rmed w ith a load ed pis tol.

Ewing kicked in th e door, a nd both Ewing and the Defendant entered the residence. As Fifer re treated down a hallway, he was struck with the stick by Ewing. He gained entrance into a bedroom, and Marlo Terry tried to keep the door to the bedroom closed so that the intruders could not get in. The Defendant fired four rounds from the pistol through the door, and one of the shots struck and killed Marlo Terry. In his statement, the Defendant said that he shot the gun through the door because “I thought somebody in there was going to get a gun and shoot at me with it.” He said that he did not mean to kill anybody and did not even know the name of the individual he killed.

From this evidence, we believe the jury could have found either that the Defendant entered the residence for the purpose of aiding Andrew Ewing in committing an aggravated assault, that the Defendant entered the dwelling for the purpose of committing an aggravated assault himself, or that the Defendant entered both for the purpose of assisting Ewing and committing the aggravated assau lt himself. Th is issue is w ithout me rit.

The Defendant next argues that the trial court erred in allowing the introduction of a photograph of the victim’s body as it lay at the scene of the crime. The photograph was offered to show the position of the body in relation

-5- to the doo r and oth er objects in the room . The photograph was cle arly releva nt.

Because all relevant evidence is generally admissible, this photograph was adm issible unles s it should have been excluded because its probative value was subs tantially outweighed by the danger of unfair prejudice. State v. Banks, 564 S.W.2d 947, 95 1 (Tenn . 1978). W hile som e bloo d is sho wn on the vict im’s clothing in the photograph, the photograph is not such that we consider it to be gruesome or horr ifying. T he trial ju dge d id not abuse his discretion in admitting the pho tograph . This issue is without m erit.

As his fina l issue, th e Def enda nt argu es tha t the trial ju dge e rred in instructing the jury concerning the definition of “reason able doubt.” We first n ote that the Defendant neither objected to this portion of the charge nor requested additional instructions conce rning the mean ing of “reas onable doubt.” Although we agree with the State th at the D efend ant ha s waiv ed this issue for failure to request a particular jury instruction and failure to object to the instruction given, we elect to proceed and consider the merits of this claim.1

The trial court’s instruction concerning the meaning of “reasonable doubt” was as follows:

A reasonable doubt is a doubt based upon reason and common sense after careful and impartial consideration of all the evidence in this case.

It is not necessary that the defendant’s guilt be proved beyond all possible doubt, as absolute certainty of guilt is not demanded by the law to convict of any criminal charge.

In the briefs submitted on behalf of the Defendant, counsel inaccurately quotesfromthe trial court’s jury instruction and adds language which is not contained in the instruction provided in the record. Further, counsel’s citation to the record on this issue is incorrect and inaccurate as to both volum and page of the record. Counsel e is advised to exercise more care in the preparation of appellate briefs.

-6- A reasonable doubt is just that -- a doubt that is reasonable after an examination of all the facts of this case.

If you find the State has not proven every element beyond a reasonable doubt, then you should find the defendant not guilty.

The Defendant argues that these instructions are so confusing and contradictory that the jury could have “easily applied a lesser burden of proof as that which is required in order to convict.”

The Defendant acknowledges that this Court has upheld virtually identical jury instructions concerning reasonable doubt but “respectfully disagrees” with these decisions of this Court.

We do not find the jury instruction to be constitutionally deficient. We find no reasonable likelihood that the jury understood this instruction to permit them to convict the Defendant after anything but a process of careful deliberation or upon anything less than proof beyond a reasonable doubt. See State v. James Earl Somerville, No. 02C01-9608-CC-00289, 1997 WL 627630, at *3 (Tenn. Crim. App., Jackson, Oct. 13, 1997), perm. to appeal denied, (Tenn. 1998); State v. Derek Denton, No. 02C01-9409-CR-00186, 1996 WL 432338, at *7-9 (Tenn. Crim. App., Jackson, Aug.

2, 1996); State v. Jose Holmes, No. 02C01-9505-CR-00154, 1997 WL 759429, at *3-4 (Tenn. Crim.

App., Jackson, Dec. 10, 1997), perm. to appeal denied, (Tenn. 1998); State v. Melvin Edward Henning, No. 02C01-9703-CR-00126, 1997 WL 661455, at *7-9 (Tenn. Crim. App., Jackson, Oct.

24, 1997).

The judgment of the trial court is accordingly affirmed.

____________________________________ DAVID H. WELLES, JUDGE

-7- -8- CONCUR:

___________________________________ JERRY L. SMITH, JUDGE

___________________________________ JOHN K. BYERS, SENIOR JUDGE

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