State of Tennessee v. Carl J. Wagner

IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
May 23, 2012 Session Heard at Cookeville1
STATE OF TENNESSEE v. CARL J. WAGNER
Appeal by Permission from the Court of Criminal Appeals
Criminal Court for Davidson County
No. 2009-A-305 Steve Dozier, Judge
No. M2010-00992-SC-R11-CD - Filed October 12, 2012
We granted the State’s application for permission to appeal to determine whether the Court
of Criminal Appeals erred by finding the evidence insufficient to support the defendant’s
convictions of especially aggravated robbery and felony murder. Affording the State the
strongest legitimate view of the evidence presented at trial and the reasonable and legitimate
inferences that may be drawn from the evidence, we conclude that the evidence is sufficient
to support the defendant’s convictions. Accordingly, we reverse the judgment of the Court
of Criminal Appeals and reinstate the judgment of the trial court.
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal
Appeals Reversed; Judgment of the Trial Court Reinstated
C ORNELIA A. C LARK, J., delivered the opinion of the Court, in which G ARY R. W ADE, C.J.,
AND J ANICE M. H OLDER, W ILLIAM C. K OCH, J R., AND S HARON G. L EE, JJ., joined.
Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General;
Jeffrey D. Zentner, Assistant Attorney General; Victor S. (Torry) Johnson III, District
Attorney General; J. Wesley King, Assistant District Attorney General; and Pamela
Anderson, Assistant District Attorney General, Nashville, Tennessee, for the appellant, State
of Tennessee.
Michael A. Colavecchio, Nashville, Tennessee, for the appellee, Carl J. Wagner.
1
Oral argument was presented at Derryberry Hall on the campus of Tennessee Technological
University in Cookeville, Putnam County, Tennessee, as a part of the Boys State Supreme Court Advancing
Legal Education for Students (S.C.A.L.E.S.) project.
OPINION
I. Factual Background
On August 27, 2008, Carl J. Wagner, the defendant, shot nineteen-year-old Adriel
Charles Powell in the laundry room of a Nashville apartment complex located at 1601
Herman Street. The State charged the defendant with premeditated first degree murder, first
degree murder committed in the perpetration of, or attempt to perpetrate, robbery, and
especially aggravated robbery. The prosecution’s theory at trial was that the shooting
occurred during a drug deal as the defendant robbed the victim of a backpack containing
narcotics.
Officer William McKay of the Metropolitan Nashville Police Department (“Metro”)
arrived at the scene of the shooting shortly after a 3:25 p.m. report of “shots fired.” Four
bystanders in an outdoor courtyard told Officer McKay of a “dead person in the laundry
room.” Another bystander told Officer McKay of “a guy [inside the laundry room] with his
brains out.” As he approached the laundry room, Officer McKay noticed a bullet hole in the
shattered window next to the door. Because the door was closed and locked, Officer McKay
did not enter the laundry room, but he saw the victim, whom he described as obviously dead,
lying on the floor just inside the door. After securing the scene, Officer McKay called for
homicide detectives and remained at the scene until other officers arrived.
Metro Detective Michael Moss was on his way to the scene of the shooting when he
was redirected to the emergency room of Vanderbilt Children’s Hospital to investigate a
report of a person with gunshot wounds, later identified as the defendant. When he arrived,
Detective Moss spoke briefly with Thalis Smith, who had driven the defendant to the hospital
and assisted him into the emergency room. Detective Moss then interviewed the defendant
who said that he had been standing in a grassy area of the apartment complex when he heard
gunshots and fled. Realizing that he had been shot, the defendant ran to Mr. Smith, who
helped him into a vehicle and drove him to the hospital. According to Detective Moss, the
defendant said he knew Mr. Smith prior to the shooting and described Mr. Smith as “my
boy,” but the defendant denied any involvement in or knowledge of the shooting.
Before he left the hospital, Detective Moss collected several items from the
defendant’s belongings, including money totaling $51.25, a holster, Nike tennis shoes,
clothing, a lighter, and a bag of “green plant material,” which scientific testing later
identified as marijuana.
Detective Moss also arranged for Mr. Smith to return to the scene of the shooting,
where Metro Detective James Capps, the lead detective on the case, interviewed him.
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According to Detective Capps, Mr. Smith was “very anxious” during the interview and
repeatedly denied any knowledge of the shooting. Mr. Smith said he “didn’t want to be
there” and just happened to be standing on the street smoking a cigarette when the defendant
ran up and asked for help. Seeing the defendant had been shot, Mr. Smith drove him to the
hospital. Mr. Smith said nothing about knowing the defendant prior to the shooting.
As detectives conducted interviews, Metro Sergeant Danny Orr and Metro Crime
Scene Investigator Felicia Evans collected evidence and prepared detailed diagrams
documenting the location of the evidence found in the laundry room, the outdoor courtyard,
and the parking lot of the apartment complex. Investigator Evans swabbed thirteen distinct
“reddish-brown stains” at the scene, which DNA analysis later confirmed were bloodstains.
The first bloodstain, found on a vehicle in the parking lot, the second and third bloodstains,
found on the ground near the vehicle, a fourth bloodstain, found on top of the shattered
window glass in front of the laundry room door, and a fifth bloodstain, found on the interior
of the laundry room door, all matched the defendant’s DNA. A sixth bloodstain, found on
the interior laundry room door frame, a seventh bloodstain, found on the interior wall of the
laundry room, and an eighth bloodstain, found on the circular metal plate surrounding the
interior laundry room door knob, all matched the victim’s DNA.
Five other bloodstains, numbered nine through thirteen at trial, were found on the
railing next to the walkway outside the laundry room. The bloodstains numbered nine
through twelve at trial matched the defendant’s DNA and were drop-pattern stains. The
bloodstain numbered thirteen at trial matched the victim’s DNA and was described as a
transfer pattern stain, meaning the blood had been transferred from fabric onto the railing.
Investigators also recovered a pair of Nike flip flops outside the laundry
room—finding one sandal on the courtyard walkway and the other in the parking lot near the
vehicle where the defendant’s blood had been found.
Additionally, investigators found three nine-millimeter cartridge casings in the
courtyard—two on the walkway and one in the bushes in front of the laundry room.
Investigators also recovered a nine-millimeter magazine with six unspent Winchester
cartridges next to the walkway in the courtyard. A copper bullet jacket fragment was found
outside as well, near the shattered glass of the shot-out window.
Inside the laundry room, next to the victim’s body, investigators found two Federal
.45 caliber cartridge casings. A baseball cap located near the victim’s body was marked by
a bullet hole, and beneath the cap investigators found an intact .45 caliber bullet and a lead
fragment, likely from a bullet but lacking exterior identifying characteristics. Investigators
also recovered bullet fragments from the wooden laundry room door frame.
-3-
Special Agent Steve Scott of the Tennessee Bureau of Investigation (“TBI”)
examined the ballistics evidence and testified that the two .45 caliber cartridge casings and
the intact bullet found beneath the cap were fired from the same .45 caliber weapon. Agent
Scott determined that the bullet, bullet jacket, and bullet fragment recovered from the
victim’s body also had been fired from the same .45 caliber weapon.
Agent Scott testified that the three nine-millimeter cartridge casings were fired from
the same nine-millimeter weapon. With respect to the nine-millimeter magazine found
outside the laundry room, Agent Scott opined that it was designed for use with a Smith and
Wesson nine-millimeter semi-automatic pistol of the Sigma series. Agent Scott further
opined that the copper bullet jacket fragment and the bullet fragments recovered from the
laundry room door frame had rifling consistent with that type of Smith and Wesson handgun.
Despite the lack of exterior identifying characteristics, Agent Scott testified that the
fragment found beneath the cap was a copper-washed lead fragment “that is almost
exclusively seen in twenty-two caliber ammunition.” According to Agent Scott, the bullet
that passed through the window next to the laundry room door had been fired toward the
courtyard from a gun inside the laundry room, while the bullet recovered from the laundry
room door frame had been fired toward the laundry room from a gun in the courtyard.
At approximately 7:25 p.m. on the day of the shooting, Mr. Smith, the victim, and the
defendant were tested for gunshot residue. TBI Special Agent Laura Hodge testified that Mr.
Smith tested negative; the victim tested positive; and the defendant tested inconclusive.
Agent Hodge explained that gunshot residue consists of antimony, barium, and lead, and that
an inconclusive test result indicates the presence of one or more of those elements, but in
concentrations not consistent with gunshot residue. Because gunshot residue is “very fragile
evidence,” deposited “just on the surface of an individual’s hands” and can be easily rubbed
off or washed away, an inconclusive result does not rule out the possibility that the person
tested fired a gun. According to Agent Hodge, the likelihood of finding gunshot residue is
greater if the testing occurs soon after the firing, and she also explained that semi-automatic
handguns discharge gunshot residue down range, away from the shooter, leaving less residue
than other handguns.
The day after the shooting, August 28, 2008, Detective Capps interviewed the
defendant at Vanderbilt Hospital, where he remained for treatment of his injuries.2 The jury
heard an audio recording of the interview, and the State also introduced a transcript of the
2
The defendant was transferred from the emergency room of Vanderbilt Children’s Hospital and
admitted to Vanderbilt Hospital where he remained hospitalized for two days for treatment of the gunshot
wounds to his left upper arm and upper abdomen.
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interview as an exhibit. The defendant initially denied any involvement in the shooting,
telling Detective Capps that he lived in Clarksville and had been at the Herman Street
apartments visiting a female friend, “Rita,” and was shot while standing in the courtyard
outside the laundry room. However, as the interview progressed, the defendant changed his
story. While he initially claimed that he used the holster found among his belongings to
store coins and other items, the defendant eventually admitted that he had carried a .45
caliber semi-automatic handgun in the holster on the day of the shooting. The defendant said
he purchased the weapon some years earlier at “Grandpa’s,” a gun shop in Clarksville. The
defendant admitted that he frequently smoked marijuana, explaining that he had “picked up
the habit like bad” while serving in the military.3 The defendant claimed that he had bought
expensive, premium-quality marijuana in Clarksville and had brought it with him to
Nashville on the day of the shooting, but he had been reluctant to share it with Mr. Smith,
who came with him to Nashville, or Rita. When he learned from Rita that he could buy drugs
at the laundry room, he went there with approximately forty dollars, intending to buy less-
expensive marijuana to share with his friends.
The defendant said he met the victim and a second man outside the laundry room.
According to the defendant, the victim was carrying “a bag on his back,”4 and the defendant
believed the bag contained drugs. After opening the locked laundry room door with a key,
the victim entered, followed by the defendant, who was followed by the second man. The
victim walked into a separate room near the back of the laundry room with the backpack,
while the defendant and the second man remained near the door—the only means of entering
and exiting the laundry room. The defendant sat on a “ledge” to the right of the door, while
the second man stood nearby. They had waited only a few minutes when, according to the
defendant, the second man suddenly began shooting at him and then ran out the door into the
courtyard. The second man continued shooting, and the defendant fired back, shooting
through the window next to the door at least once.
When the shooting began, the defendant saw the victim run from the room at the rear
of the laundry room toward the door. As the victim approached the door, the defendant shot
him, but the victim continued toward the door, so the defendant shot the victim a second
time. The victim then fell to the floor in front of the door, and the defendant fled the scene,
losing his Nike flip flops as he ran.
3
According to the pre-sentence report in the record, the defendant served in the military from
October 1, 2003 to June 4, 2008.
4
Like the Court of Criminal Appeals, we will use the term “backpack” to refer to the victim’s bag.
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Although the defendant could not recall seeing the victim with a gun and said the
victim did not threaten him, the defendant said he shot the victim because he feared the
victim would shoot him. The defendant saw the second man run away from the courtyard,
but the defendant did not know whether the second man had been shot The defendant
repeatedly said the victim had a backpack. The defendant was not asked directly whether he
took the victim’s backpack.5 When asked whether he and the victim had a physical
altercation that would explain the victim’s torn shirt, the defendant denied touching the
victim and said he fled the scene immediately after shooting the victim, stating on one
occasion that he fled the scene before the victim fell to the floor. The defendant also denied
purchasing or stealing marijuana from the victim and explained that the marijuana found
among his belongings had been purchased in Clarksville before he came to Nashville. The
defendant said that he was “just trying to get some weed,” but the second man “was trying
to kill [him].” Although the defendant remembered Rita, Mr. Smith, and another man
driving him to the hospital and also recalled the two men physically carrying him into the
emergency room, he could not remember where he dropped the gun used in the shooting. He
suggested that Mr. Smith could possibly locate the gun, however.
Detective Capps testified that investigators were unable to locate anyone other than
the defendant willing to admit to firsthand knowledge of the shooting. Rita refused to
cooperate in the investigation, and the police were unable to locate Mr. Smith, despite
searching for him in the vicinity of both Clarksville, Tennessee, and Oak Grove, Kentucky.
Still photographs obtained from video surveillance at Vanderbilt Children’s Hospital
confirmed the defendant’s statement that Mr. Smith and another man, whom investigators
were never able to identify, physically carried the defendant into the emergency room.
Investigators recovered neither the gun the defendant used in the shooting nor the
victim’s backpack containing drugs. However, investigators confirmed the defendant’s
statement that the defendant was the registered owner of a .45 caliber semi-automatic
handgun that he had purchased from “Grandpa’s” gun shop in Clarksville.
Dr. Bruce Levy, Chief Medical Examiner for the State of Tennessee and Medical
Examiner for Davidson County, performed the victim’s autopsy on August 28, 2008. Dr.
Levy ruled the victim’s death a homicide caused by at least two gunshots. Dr. Levy opined
that a single bullet likely entered the left side of the victim’s neck, exited on the right side,
re-entered the victim’s shoulder, and exited the top part of his right arm. Dr. Levy opined
5
The Court of Criminal Appeals’ statement that the defendant told the police that he grabbed the
victim’s backpack as he fled the laundry room, State v. Wagner, No. M2010-00992-CCA-R3-CD, 2011 WL
2893098, at *5 (Tenn. Crim. App. July 20, 2011), is not supported by the record.
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that these wounds did not penetrate the victim’s spinal cord or impact any significant blood
vessels. However, Dr. Levy said the other bullet that entered the left side of the victim’s
head would have produced “immediate unconsciousness rapidly progressing to death . . .
within a m[a]tter of . . . a few minutes at most.”
The State introduced photographs showing the position of the victim’s body, blood
smears on the victim’s hands and arms and on the floor nearby, and the victim’s torn shirt,
which had been ripped at the shoulder area.
Following a Momon6 colloquy, the defendant elected not to testify and rested without
presenting any evidence.
During closing argument, the State argued that the defendant went to the laundry room
intending to rob the victim of drugs. The State also suggested that a fourth man, likely Mr.
Smith, had been involved in the shooting and the robbery. The State contended that the
defendant shot and killed the victim, removed the victim’s backpack containing drugs, and
had been on his way out the door when he was shot, probably by an associate or friend of the
victim. Based on the photographs of the scene, the State argued that the position of the
victim’s body, tears in the victim’s shirt, and blood smears on the victim’s arms and hands
and the floor near his body, proved that the victim’s body had been moved and his backpack
taken after the shooting. As for proof showing that the defendant removed the backpack
containing drugs, the State pointed to the victim’s blood on the courtyard railing along the
path by which the defendant fled the scene, its proximity to the drop-pattern stains of the
defendant’s blood, and the expert testimony indicating that the victim’s blood had been
transferred to the railing from fabric. The State argued that this evidence, while largely
circumstantial, established beyond a reasonable doubt that the defendant had taken the
backpack containing drugs from the victim’s person after the shooting and transferred the
victim’s blood from the backpack to the railing as he fled.
Based on the evidence, the jury convicted the defendant of first degree murder
committed in the perpetration of, or attempt to perpetrate, robbery (“felony murder”). The
jury also convicted the defendant of especially aggravated robbery and second degree
murder—a lesser-included offense of the charge of premeditated first degree murder. The
trial court merged the second degree murder conviction with the felony murder conviction
6
See Momon v. State, 18 S.W.3d 152 (Tenn. 1999).
-7-
and imposed a life sentence by operation of law for the felony murder conviction 7 and a
twenty-two year concurrent sentence for the especially aggravated robbery conviction.8
The defendant raised a single issue on appeal—the sufficiency of the evidence to
support his convictions. Specifically, the defendant argued that the proof showed he acted
in self-defense, or alternatively, that he and the victim had been engaged in mutual combat
at the time of the shooting. The defendant argued that he should have either been acquitted
or convicted of the lesser-included offense of voluntary manslaughter.
The Court of Criminal Appeals listed the defendant’s arguments, but “perceive[d] a
greater issue concerning the sufficiency of the evidence . . . in that the defendant’s confession
alone provides the only evidence that a backpack was taken from the victim.” Wagner, 2011
WL 2893098, at *5. The Court of Criminal Appeals recited the rule that “a conviction
cannot be based solely on a defendant’s confession.” Id. (internal quotation marks omitted).
After finding “no evidence” corroborating the defendant’s confession “concerning the
existence of the backpack or its taking,” the Court of Criminal Appeals held the evidence
insufficient to support the defendant’s conviction of especially aggravated robbery. Id.
Because it found the proof of especially aggravated robbery insufficient, the Court of
Criminal Appeals stated that the evidence was “ipso facto” insufficient to support the
defendant’s conviction of felony murder. Id. However, the Court of Criminal Appeals found
the evidence sufficient to support the defendant’s conviction of second degree murder and
remanded to the trial court for re-sentencing on that conviction. Id. at *6.
We granted the State’s application for permission to appeal.
II. Analysis
A. Standard of Review
Appellate courts evaluating the sufficiency of the convicting evidence must determine
“whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). Because a guilty verdict removes
the presumption of innocence and replaces it with a presumption of guilt, on appeal a
defendant bears the burden of showing why the evidence is insufficient to support the
7
See Tenn. Code Ann. § 39-13-208(c) (2010).
8
Despite merging the second degree murder conviction with the felony murder conviction, the trial
court also imposed a twenty-two year concurrent sentence on the second degree murder conviction.
-8-
conviction. State v. Parker, 350 S.W.3d 883, 903 (Tenn. 2011). This Court affords the State
the strongest legitimate view of the evidence presented at trial and the reasonable and
legitimate inferences that may be drawn from the evidence. State v. Bland, 958 S.W.2d 651,
659 (Tenn. 1997). “The credibility of the witnesses, the weight to be given their testimony,
and the reconciliation of conflicts in the proof are matters entrusted to the jury as the trier of
fact.” State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008) (citing Byrge v. State, 575
S.W.2d 292, 295 (Tenn. Crim. App. 1978)). This Court neither re-weighs the evidence nor
substitutes its inferences for those drawn by the jury. Bland, 958 S.W.2d at 659.
Circumstantial and direct evidence are reviewed under the same standard of review. State
v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). Circumstantial evidence alone is sufficient
to support a conviction, and the circumstantial evidence need not exclude every reasonable
hypothesis except that of guilt. Id. at 381.
B. Sufficiency of the Evidence - Especially Aggravated Robbery
“Especially aggravated robbery is robbery . . . (1) [a]ccomplished with a deadly
weapon; and (2) [w]here the victim suffers serious bodily injury.” Tenn. Code Ann. §
39-13-403(a) (2010). “Robbery is the intentional or knowing theft of property from the
person of another by violence or putting the person in fear.” Tenn. Code Ann. §
39-13-401(a) (2010). “A person commits theft of property if, with intent to deprive the
owner of property, the person knowingly obtains or exercises control over the property
without the owner’s effective consent.” Tenn. Code Ann. § 39-14-103 (2010).
The crux of the Court of Criminal Appeals’ holding that the evidence is insufficient
to support the defendant’s conviction of especially aggravated robbery is its statement that
“no evidence corroborates the defendant’s confession concerning the existence of the
[victim’s] backpack or its taking [from the victim].” Wagner, 2011 WL 2893098, at *5. As
the Court of Criminal Appeals correctly pointed out, a criminal conviction cannot be based
solely on a defendant’s uncorroborated confession.9 See State v. Banks, 271 S.W.3d 90, 140
(Tenn. 2008); State v. Housler, 193 S.W.3d 476, 490 (Tenn. 2006); State v. Smith, 24
S.W.3d 274, 282 (Tenn. 2000); Ashby v. State, 139 S.W. 872, 875 (Tenn. 1911); Williams
v. State, 80 Tenn. 211, 212-13 (1883). However, this rule does not entitle the defendant to
relief because, contrary to the Court of Criminal Appeals’ statement, the defendant’s
9
This rule requiring corroboration of a confession is known as the corpus delicti rule. United States
v. Brown, 617 F.3d 857, 860 (6th Cir. 2010). In this appeal, the State has not asked us to abrogate or modify
the corpus delicti rule. Another pending appeal presents the questions of whether the corpus delicti rule
should be abrogated or modified. State v. Bishop, No. W2010-01207-SC-R11-CD (Tenn. Aug. 15, 2012)
(order granting Tennessee Rule of Appellate Procedure 11 application and requesting additional briefing on
the corpus delicti rule).
-9-
confession is not the only evidence the prosecution relied upon to establish the existence or
taking of the victim’s backpack.
In fact, the prosecution relied upon circumstantial evidence independent of the
defendant’s statement to establish that the victim’s backpack containing drugs was stolen
after the shooting. In particular, the prosecution introduced photographs showing the
position of the victim’s body, the tearing of the shoulder-area of the victim’s shirt, and blood
smears on the victim’s hands and arms as well as on the floor near his body. This
circumstantial proof, along with the defendant’s statement, is sufficient to support the jury’s
finding that the victim had a backpack that someone removed from the victim’s body after
the shooting.
Furthermore, to prove that the defendant removed the victim’s backpack containing
drugs and fled the scene with it, the prosecution introduced evidence showing that the
victim’s blood had been transferred from fabric to the walkway railing outside the laundry
room. The medical examiner testified that the nature of the victim’s injuries eliminated the
possibility that the victim left the laundry room after the shooting and transferred his own
blood to the railing. The prosecution also showed that the victim’s blood on the railing was
near the drop-pattern stains of the defendant’s blood and along the path the defendant said
he fled after the shooting. No proof was offered to show that the victim’s blood was on the
defendant’s clothing. The first officer at the scene of the shooting testified that the laundry
room door had been locked when he arrived. This testimony supported the prosecution’s
theory that the victim’s blood had been transferred to the railing by the perpetrator of the
crime.
As further proof that the defendant stole the victim’s backpack containing drugs, the
prosecution relied upon the defendant’s admission that he frequently smoked marijuana, the
defendant’s statement that he went to the laundry room to buy drugs from the victim, the
defendant’s statement that the victim’s backpack contained drugs, the absence of drugs from
the victim’s person and the laundry room after the shooting, and the marijuana found among
the defendant’s belongings at the hospital shortly after the shooting. This proof supported
the prosecution’s theory that the defendant removed the victim’s backpack containing drugs
after the shooting.
Although the prosecution relied entirely on circumstantial evidence to prove that the
defendant removed the victim’s backpack containing drugs, circumstantial evidence alone
is sufficient to support a conviction and need not exclude every reasonable hypothesis except
that of guilt. Dorantes, 331 S.W.3d at 380-81. Although the defendant claimed that he
purchased the marijuana found among his belongings in Clarksville prior to the shooting, the
jury implicitly rejected this alternative explanation, as was its prerogative. This Court neither
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re-weighs the evidence nor substitutes its inferences for those drawn by the trier of fact.
Bland, 958 S.W.2d at 659. Thus, we conclude that a rational trier of fact could have found
that the defendant intentionally or knowingly removed the victim’s backpack containing
drugs without the victim’s effective consent.10
The evidence is also sufficient to support the jury’s findings of the violence, use of
a deadly weapon, and serious bodily injury elements of especially aggravated robbery. A
firearm11 is by definition a deadly weapon,12 and the defendant admitted shooting the victim
twice with a .45 caliber semi-automatic pistol. The medical examiner confirmed that the
victim had been shot at least twice with a .45 caliber weapon. The medical examiner also
described the victim’s serious bodily injuries,13 stating that one of the wounds caused almost
immediate death, while the other bullet caused injuries to the victim’s neck, shoulder, and
arm. Viewed in the light most favorable to the prosecution, the evidence sufficiently
supports the jury’s verdict finding the defendant guilty of especially aggravated robbery.
10
We note that during closing argument defense counsel agreed that the prosecution had introduced
sufficient proof to show that the defendant took the victim’s backpack containing drugs, although defense
counsel maintained that the evidence failed to show that the defendant did so intentionally or knowingly.
For example, defense counsel stated:“[The defendant] did not have the intent to rob until after he shot Mr.
Powell in self-defense and pick[ed] up the backpack. That’s misdemeanor theft . . . .” Defense counsel also
stated: “But, after [the victim] was shot in the head, my client pick[ed] up his twenty-two revolver and
backpack. That’s just . . . I mean, you’ve got to believe that, right? Cause the blood there is outside and
there’s [the victim’s] blood outside, and I don’t know if there is any other way to look at it.” Additionally,
in the brief filed in the Court of Criminal Appeals, defense counsel argued that the defendant “defended
himself and subsequently, while bleeding profusely and certainly in a state of shock, took the backpack
instinctively.” Of course, as the trial court here properly instructed the jury, argument and statements of
counsel are not evidence and should be disregarded if not supported by the evidence. See, e.g., Banks, 271
S.W.3d at 137. Defense counsel’s statements concerning the defendant taking the victim’s backpack are
supported by the proof introduced at trial. Unlike defense counsel, we also conclude that the proof is
sufficient to support the jury’s finding that the defendant intentionally or knowingly took the victim’s
backpack containing drugs.
11
“‘Firearm’ means any weapon designed, made or adapted to expel a projectile by the action of an
explosive or any device readily convertible to that use[.]” Tenn. Code Ann. § 39-11-106(a)(11) (2010).
12
“‘Deadly weapon’ means [a] firearm or anything manifestly designed, made or adapted for the
purpose of inflicting death or serious bodily injury[.]” Tenn. Code Ann. § 39-11-106(a)(5)(A) (2010).
13
See Tenn. Code Ann. § 39-11-106(a)(34) (defining “serious bodily injury”); State v. Farmer, No.
W2009-02281-SC-R11-CD, 2012 WL 3594242, at *4 (Tenn. Aug. 22, 2012) (discussing “serious bodily
injury” as used in section 39-11-106(a)(34)).
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C. Sufficiency of the Evidence - Felony Murder
The evidence is also sufficient to support the jury’s verdict finding the defendant
guilty of felony murder. As relevant to this appeal, felony murder is defined as “[a] killing
of another committed in the perpetration of or attempt to perpetrate . . . robbery.” Tenn.
Code Ann. §39-13-202(a)(2) (2010). The culpable mental state required for conviction is the
intent to commit the underlying felony, in this case, robbery or attempted robbery, not the
intent to commit murder. Tenn. Code Ann. § 39-13-202(b). A killing that precedes,
coincides with, or follows the commission of an underlying felony will be considered “in the
perpetration of” the underlying felony, so long as there is a connection in time, place, and
continuity of action. State v. Pierce, 23 S.W.3d 289, 294-97 (Tenn. 2000); State v. Buggs,
995 S.W.2d 102, 106 (Tenn. 1999). Determining whether a defendant intended to commit
the underlying felony, and at what point the intent existed, is a question of fact to be decided
by the jury after consideration of all the facts and circumstances. Buggs, 995 S.W.2d at 107.
Viewed in the light most favorable to the prosecution, the proof established that the
defendant and a friend traveled to Nashville from Clarksville to obtain drugs at the Herman
Street apartment complex. The defendant armed himself with a weapon before leaving
Clarksville, although, according to his own statement, he ordinarily did not carry a gun. The
defendant admitted entering the laundry room with the victim and said the victim had a
backpack containing drugs. The defendant also admitted shooting the victim more than once
with the weapon he brought to the drug buy, and the prosecution’s proof fully corroborates
this admission. Although the defendant claimed that he shot the victim in self-defense, the
defendant admitted shooting the victim as the victim ran toward the door of the laundry
room, and the defendant conceded that the victim did not threaten him and that he did not see
the victim with a gun. As was its prerogative, the jury rejected the defendant’s claim of self-
defense and accredited the prosecution’s theory and proof that the defendant shot the victim
during the perpetration of, or attempt to perpetrate, robbery. Again, this Court neither re-
weighs the evidence nor substitutes its inferences for those drawn by the jury. Bland, 958
S.W.2d at 659. The defendant’s challenge to the sufficiency of the evidence is without merit.
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III. Conclusion
Viewed in the light most favorable to the prosecution, the evidence is sufficient to
support the defendant’s convictions of especially aggravated robbery and felony murder.
Accordingly, we reverse the judgment of the Court of Criminal Appeals and reinstate the
judgment of the trial court. It appearing the defendant is indigent, costs of this appeal are
taxed to the State of Tennessee.
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CORNELIA A. CLARK, JUSTICE
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