State of Tennessee v. Christopher Lee Davis

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

June 3, 2011 Session

STATE OF TENNESSEE v. CHRISTOPHER LEE DAVIS

Appeal by Permission from the Court of Criminal Appeals

Criminal Court for Trousdale County

No. 07-55 John D. Wootten, Jr., Judge

No. M2008-01216-SC-R11-CD - Filed October 17, 2011

The defendant was convicted of aggravated robbery, carjacking, attempt to commit especially

aggravated kidnapping, and attempt to commit first degree murder. At issue is the legality

of the stop of a vehicle in which the defendant was a passenger, and whether the evidence

is sufficient to support the defendant’s conviction for attempt to commit first degree

murder. We conclude that reasonable suspicion existed to permit the officers to conduct a

brief investigatory stop of the car in which the defendant was a passenger. Further, we find

there was sufficient evidence for the jury to conclude that the defendant and his fellow

perpetrator planned and intended to kill the victim, and that the defendant’s conduct,

considered in light of the totality of the circumstances, constituted a substantial step

sufficient to support a conviction for attempted murder. The judgment of the Court of

Criminal Appeals is affirmed.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal

Appeals Affirmed; Case Remanded to the Criminal Court for Trousdale County

S HARON G. L EE , J., delivered the opinion of the Court, in which C ORNELIA A. C LARK,

C.J., JANICE M. H OLDER, G ARY R. W ADE, and W ILLIAM C. K OCH, J R., JJ., joined.

Comer L. Donnell, District Public Defender, William K. Cather, Assistant District Public

Defender, Lebanon, Tennessee, for the appellant, Christopher Lee Davis.

Robert E. Cooper, Jr., Attorney General and Reporter; Gordon W. Smith, Associate Solicitor

General; Benjamin A. Ball, Assistant Attorney General, Tom P. Thompson, District Attorney

General; Jason L. Lawson, Assistant District Attorney General, for the appellee, State of

Tennessee.

OPINION

Factual and Procedural Background

On June 12, 2007, the victim, Glen McDaniel, drove his black 2001 Chevrolet Monte

Carlo into a carwash bay in Hartsville, Tennessee. While Mr. McDaniel was washing his car,

he saw a gold Nissan Maxima pull into the carwash and noticed that the two men in the back

of the Maxima were staring at him. Mr. McDaniel continued washing his car until he was

confronted by two African-American men wearing bandanas1 over their faces who entered

his carwash bay from opposite sides. The men wore red shirts and red hats, and one of them

had a hat with a depiction of a $100 bill embroidered on it. Mr. McDaniel described one of

them as approximately six feet, three or four inches tall and heavy set with dark skin. The

other man, whom Mr. McDaniel identified at trial as being the defendant Christopher Lee

Davis (“Defendant”), was nearly the same height but thinner and with a lighter complexion.

The larger man walked up to Mr. McDaniel, pointed a pistol at his chest, and told him

to get into the Monte Carlo. Mr. McDaniel complied because he was afraid the man would

shoot him if he refused. The man with the pistol got in the passenger seat and kept his gun

pointed at Mr. McDaniel the entire time they were in the Monte Carlo. Defendant got in the

back seat behind Mr. McDaniel and kept a grip on Mr. McDaniel’s shoulders. The men

asked for $800, and Mr. McDaniel replied that he did not have that much money on him and

that he did not carry a wallet, but did have an ATM debit card. The men ordered him to drive

across the street to an ATM.

The gunman walked Mr. McDaniel up to the ATM, and Defendant held his hand over

one of the ATM video cameras. Defendant told Mr. McDaniel to get a receipt so they could

make sure that he had withdrawn all of the money in his checking account. Mr. McDaniel

completed the ATM withdrawal and gave the gunman the money and the receipt.

All three got back into the Monte Carlo, and Mr. McDaniel drove back to the

carwash. As they approached, they saw Lacy Smotherman, an acquaintance of Mr.

McDaniel, sitting in a parked car at the carwash, so the men told Mr. McDaniel to drive

down the street. He did, and when they turned the car around and returned to the carwash,

Ms. Smotherman was gone. Mr. McDaniel pulled his car into one of the carwash bays, and

the men ordered him to get out of the car.

1

In his statement to the police given the night of the robbery, Mr. McDaniel said that both men were

wearing red bandanas. At trial, he stated that he might have been mistaken about the color of one of the

bandanas and that it was possible that one man was wearing a red bandana and the other was wearing a black

bandana.

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Defendant pushed Mr. McDaniel against one of the walls in the carwash bay. Mr.

McDaniel asked Defendant to take his car and leave him at the carwash, but Defendant

refused, saying, “no, you’re going to go with us.” Mr. McDaniel testified that at this point,

“I thought I was dead to be honest with you.” He was standing with his chest pressed against

the wall and Defendant was trying to pull his hands behind his back. Mr. McDaniel looked

over his shoulder and saw that Defendant had a roll of black duct tape. Mr. McDaniel

testified that “I yanked my hands right back up . . . ‘cause I knew, you know, if I was duct

taped I was done for.” He struggled with Defendant, who shoved his face into the brick wall,

injuring his nose and face, and hit him in the eye. Defendant said, “get the gun, we’re going

to shoot this motherfucker right here.” Mr. McDaniel testified that during the incident

Defendant appeared to be the one in control of the situation, giving orders and instructions

to the other man.

Mr. McDaniel said that at this point, “I figured if I was going to get shot, I might as

well try to run.” He broke free from Defendant’ grasp and ran toward a nearby

restaurant. Defendant chased after him. The restaurant was closed. Mr. McDaniel ran

around the side and headed for a gas station. He came to a steep embankment and jumped

down the slope into the ditch. As he came over the other side and continued running toward

the gas station, Mr. McDaniel saw his Monte Carlo pull out of the carwash. He also saw a

black Chevrolet Impala pulling out at the same time. Mr. McDaniel reached the counter

inside the gas station, told the attendant to call the police because he had just been carjacked

and “those guys are trying to kill me,” and collapsed from exhaustion. The attendant revived

him, and the Sheriff’s Department arrived a few minutes later. That night, Mr. McDaniel

provided a written statement to law enforcement officers describing the incident.

The next day, Detective Chris Tarlecky of the Sumner County Sheriff’s Department

received information from Trousdale County law enforcement to “be on the lookout”

(“BOLO”) for the suspects in the carjacking and robbery. The BOLO dispatch contained the

basic facts of the incident, described the stolen vehicle as a 2001 black Monte Carlo with

custom wheels, provided a general description of the suspects, and identified the suspects’

vehicle as a gold Maxima. Later that day the abandoned Monte Carlo was discovered at the

Bledsoe Creek boat dock. Detective Tarlecky and another Sumner County Sheriff’s

Department officer drove to the boat dock.

Justin Scruggs, a friend of Mr. McDaniel, first discovered the Monte Carlo as he and

some relatives were driving by the boat dock. Mr. Scruggs, his mother Tammy Scruggs

Reed, and his uncle Jerry Scruggs pulled into the boat dock area and then called the Sumner

and Trousdale County Sheriff’s Departments. Mr. McDaniel was notified that his car had

been found, and he, his mother, and his girlfriend also drove to the boat dock area to identify

his car. Detective Tarlecky and the second Sumner County officer arrived in unmarked Ford

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Crown Victorias. Additionally, Trousdale County Sheriff Ray Russell and Detective David

Winnett arrived on the scene shortly thereafter, driving another unmarked Crown

Victoria. Detective Tarlecky testified that the stolen Monte Carlo’s doors were locked, but

that he could see that the CD player had been removed from the dashboard. He also observed

that the Monte Carlo’s wheels, which were custom after-market wheels that he valued at

around $2,000, were still on the car and that the car contained several other potentially

valuable items. Mr. McDaniel examined his car and confirmed that the CD player had been

ripped out of the dashboard and that his rear stereo amplifier was also missing.

Detective Tarlecky stated that as they were inspecting the stolen car, he and the other

officers observed a white Crown Victoria drive slowly by the boat dock and begin to make

a right turn into the parking area. Detective Tarlecky could see the driver and passenger,

who were African-American males, and he testified that “their eyes opened as big as saucers

when they saw us and the vehicle just jerked back off on to . . . the roadway.” He stated that

the turn back on the road “was a startled movement. They had looked down and saw us and

they abruptly turned back . . . It caught our attention the way they did it.” The white Crown

Victoria continued across the Bledsoe Creek bridge, then turned into a church parking lot,

turned around, and slowly drove back by the boat dock area again. Detective Tarlecky got

in his vehicle, activated its emergency lights, and initiated a stop of the Crown

Victoria. Detective Tarlecky identified the driver as James Phillips, and the passenger as

Defendant. Mr. Phillips consented to a search of the vehicle. Detective Tarlecky found a

Chevrolet key chain in the door panel on the driver’s side. He tossed the keys to Sheriff

Russell, who confirmed that the car keys fit the Monte Carlo. The officers then took Mr.

Phillips and Defendant into custody.

The search of the car also revealed several completed job application forms, one of

which had been filled out by Marcus Bradford and listed an address of 1100 Winwood Drive

in the nearby town of Castalian Springs. Detective Tarlecky went to the address and spoke

with Mr. Bradford, who confirmed that he lived there, and consented to a search of the

common areas of the house and his bedroom. In the living room, Detective Tarlecky found

a large speaker box and a CD player with part of a car dashboard attached to it. Detective

Tarlecky discovered a large amplifier of the same brand as Mr. McDaniel’s stolen amplifier

and a blue backpack in the “game room” of the house. The backpack contained a red hat

with a depiction of a $100 bill embroidered on it, and what Detective Tarlecky described as

a red “doo rag.” Detective Tarlecky also recovered from the house a wallet with Defendant’s

identification in it, a red T-shirt found in the dryer, a blue travel bag containing a roll of duct

tape, and a number of CDs and a black bandana found in Mr. Bradford’s room.

Mr. Bradford told Detective Tarlecky that Michael Miller and Michelle Guardiola

were the lessees of the house. The officers contacted Mr. Miller and Ms. Guardiola, who

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returned home in a black Chevrolet Impala. Mr. Miller and Ms. Guardiola consented to a

search of the entire house and the Impala. In the black Impala, Detective Winnett found a

red T-shirt and what appeared to be car stereo wiring. Sheriff Russell participated in a

second search of the house; he testified that he discovered a lockbox and that a set of keys

fitting the lockbox were found among the personal items taken from Defendant after his

arrest. The lockbox contained a 40mm semi-automatic pistol and ammunition.

Defendant was charged with one count each of aggravated robbery, carjacking,

attempt to commit especially aggravated kidnapping, and attempt to commit first degree

murder.2 At the trial, the State presented the videotape recording from the ATM’s security

camera, and Mr. McDaniel identified the man in the red shirt and red hat as the gunman. Mr.

McDaniel testified that the carwash bays were well-lighted and that he was able to get a good

look at Defendant and clearly see his face. Mr. McDaniel positively identified Defendant as

being the man who sat behind him in the Monte Carlo, pushed him into the carwash bay wall,

hit him, tried to duct tape his hands, and pursued him after he ran.

The State also presented the testimony of Lacey Smotherman, who said that she was

at the carwash on the night of June 12, 2007, around 10:00 p.m. Ms. Smotherman knew Mr.

McDaniel because he was dating a friend of hers. Ms. Smotherman testified that she saw a

gold Nissan Maxima backed into one of the carwash bays. As she was emptying trash from

her car, she saw Mr. McDaniel’s Monte Carlo pulling around the carwash, driving

slowly. She saw three people in the car and observed that the passenger, an African-

American male, had a bandana covering his face. The passenger looked at her and then the

Monte Carlo drove off. Ms. Smotherman testified that she was surprised that Mr. McDaniel

had not spoken to her.

The State also presented the testimony of Deangelo Vaughn, who stated that he works

at a nearby auto parts store on Highway 25. Mr. Vaughn testified that in June of 2007, two

men drove into the store’s parking lot in a white Crown Victoria. The men entered the store

and offered to sell Mr. Vaughn a set of four 22-inch wheels for $500. The men said that the

wheels were on a car that was parked “over at the lake.” Mr. Vaughn testified that the $500

price for a set of 22-inch wheels is “not reasonable, it’s awfully cheap.” Mr. Vaughn told the

men he couldn’t leave the store, and they left. Later, Mr. Vaughn saw photographs of four

men in the local newspaper and recognized two of them as the men who had tried to sell him

the wheels. He contacted the Trousdale County Sheriff’s Department and provided a written

statement.

2

Three others also were charged with crimes related to the incident: James Phillips, Marcus

Bradford, and Michael Miller.

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At trial, the parties stipulated that the police found Defendant’s fingerprints on a gold

Nissan Maxima later recovered by the investigating officers.

The jury convicted Defendant of all four crimes charged. The trial court sentenced

Defendant as a Range I, standard offender, to twelve years for each class B felony conviction

(aggravated robbery, carjacking, and attempt to commit especially aggravated kidnapping),

and to twenty-five years for attempt to commit first degree murder. The trial court imposed

a combination of concurrent and consecutive sentencing for an effective sentence of forty-

nine years. The Court of Criminal Appeals affirmed the convictions and length of sentences

and remanded “for the purpose of determining whether consecutive sentencing is appropriate

under the Sentencing Act and State v. Allen, 259 S.W.3d 671 (Tenn. 2008).” State v. Davis,

No. M2008-01216-CCA-R3-CD, 2010 WL 1837936, at *1 (Tenn. Crim. App. Apr. 19,

2010).

We granted Defendant’s application for permission to appeal and address the

following issues: (1) whether the trial court correctly determined that the law enforcement

officers had reasonable suspicion to conduct an investigatory stop of the car driven by Mr.

Phillips at the boat dock, and therefore properly denied Defendant’s motion to suppress; and

(2) whether the evidence is sufficient to support Defendant’s conviction for attempt to

commit first degree murder.

Analysis

Motion to Suppress

Defendant argues that the officers did not have sufficient reasonable suspicion to

initiate an investigatory stop of Mr. Phillips’s vehicle, and that all evidence discovered as a

result of the searches of the car and the Winwood Drive residence should be suppressed. The

State argues that, considering the totality of the circumstances, the officers had reasonable

suspicion to stop the vehicle and therefore the initial seizure and subsequent searches pass

constitutional muster. We agree with the State’s argument, as did the Court of Criminal

Appeals.

As we review the trial court’s decision, we are mindful that the “trial court’s findings

of fact in a suppression hearing will be upheld unless the evidence preponderates

otherwise.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). When the trial court has seen

and heard the witnesses testify, we must afford considerable deference to the factual

determinations made by the trial court. Madden v. Holland Grp. of Tenn., Inc., 277 S.W.3d

896, 898 (Tenn. 2009). Although “[t]he party prevailing in the trial court is entitled to the

strongest legitimate view of the evidence adduced at the suppression hearing as well as all

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reasonable and legitimate inferences that may be drawn from that evidence,” Odom, 928

S.W.2d at 23, the burden remains on the State to prove that a warrantless search or seizure

was constitutionally permissible. State v. Nicholson, 188 S.W.3d 649, 656-57 (Tenn. 2006);

State v. Henning, 975 S.W.2d 290, 298 (Tenn. 1998). “The issue of whether reasonable

suspicion existed to validate a traffic stop is a mixed question of fact and law.” State v.

Garcia, 123 S.W.3d 335, 342 (Tenn. 2003). We review the trial court’s application of law

to the facts de novo without a presumption of correctness. State v. Day, 263 S.W.3d 891,

900 (Tenn. 2008); State v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000).

Both the United States Constitution and the Tennessee Constitution guarantee that

persons will not be subjected to “unreasonable searches and seizures.” U.S. Const. amend.

IV; Tenn. Const. art. 1, § 7. The Fourth Amendment to the Constitution of the United States,

applicable to the states as recognized in Mapp v. Ohio, 367 U.S. 643, 655 (1961), provides:

The right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated, and

no [w]arrants shall issue, but upon probable cause, supported by [o]ath or

affirmation, and particularly describing the place to be searched, and the

persons or things to be seized.

Similarly, Article I, § 7 of the Tennessee Constitution provides:

[T]he people shall be secure in their persons, houses, papers, and possessions,

from unreasonable searches and seizures; and that general warrants, whereby

an officer may be commanded to search suspected places, without evidence of

the fact committed, or to seize any person or persons not named, whose

offences are not particularly described and supported by evidence, are

dangerous to liberty and ought not to be granted.

The protections of the Fourth Amendment and Article I, § 7 apply “to all seizures of

the person, including seizures that involve only a brief detention short of traditional

arrest.” State v. Berrios, 235 S.W.3d 99, 104 (Tenn. 2007) (quoting United States v.

Brignoni-Ponce, 422 U.S. 875, 878 (1975)). An officer’s stop of a vehicle by activating his

or her emergency lights constitutes a seizure. Day, 263 S.W.3d at 902; Garcia, 123 S.W.3d

at 343; State v. Binette, 33 S.W.3d 215, 218 (Tenn. 2000). At the point that Detective

Tarlecky activated his vehicle’s emergency lights and stopped the Crown Victoria, he seized

Mr. Phillips’s vehicle and its passengers without a warrant. We begin with the premise that

“[u]nder both the federal and state constitutions, a warrantless seizure is presumed

unreasonable, and evidence discovered as a result thereof is subject to suppression unless the

State demonstrates that the seizure was conducted pursuant to one of the narrowly defined

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exceptions to the warrant requirement.” Nicholson, 188 S.W.3d at 656; accord State v.

Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).

This Court has recognized “three distinct levels of interaction between citizens and

law enforcement officials.” State v. Ingram, 331 S.W.3d 746, 755-56 (Tenn. 2011). As we

observed in Ingram,

The first and most limited interaction is the brief police-citizen encounter,

which requires no objective justification and is limited to informal questioning

of the person involved. Day, 263 S.W.3d at 901. The next level is the brief

investigatory detention, which must be supported by reasonable suspicion of

wrong-doing and entitles the officer to conduct a stop and frisk under the

principles of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889

(1968). Day, 263 S.W.3d at 901. The third and most invasive level is the

full-scale arrest, which must be supported by probable cause. Id.; accord

[State v. ]Crutcher, 989 S.W.2d [295, 300 (Tenn. 1999)].

331 S.W.3d at 756; see also State v. Williams, 185 S.W.3d 311, 315 (Tenn. 2006). This case

involves a brief investigatory detention, which occurred when the officers pulled over the

white Crown Victoria driven by Mr. Philips. An exception to the warrant requirement exists

when a law enforcement officer “‘makes an investigatory stop based upon reasonable

suspicion, supported by specific and articulable facts, that a criminal offense has been or is

about to be committed.’” Williams, 185 S.W.3d at 318 (quoting Binette, 33 S.W.3d at 218);

see Terry v. Ohio, 392 U.S. 1, 20-21 (1968). We have defined “reasonable suspicion” as “‘a

particularized and objective basis for suspecting the subject of a stop of criminal

activity.’” Day, 263 S.W.3d at 903 (quoting Binette, 33 S.W.3d at 218). The standard for

determining reasonable suspicion is a lower standard than that for determining the existence

of probable cause:

Reasonable suspicion is a less demanding standard than probable cause not

only in the sense that reasonable suspicion can be established with information

that is different in quantity or content than that required to establish probable

cause, but also in the sense that reasonable suspicion can arise from

information that is less reliable than that required to show probable cause.

Yeargan, 958 S.W.2d at 632 (quoting Alabama v. White, 496 U.S. 325, 330 (1990)); see also

United States v. Sokolow, 490 U.S. 1, 7-8 (1989).

The trial court’s determination of whether a police officer’s reasonable suspicion is

supported by specific and articulable facts is an objective, fact-intensive inquiry. Williams,

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185 S.W.3d at 318. It requires the court to consider the totality of the circumstances

established by the proof. Day, 263 S.W.3d at 903. These circumstances include, but are “not

limited to, objective observations, information obtained from other police officers or

agencies, information obtained from citizens, and the pattern of operation of certain

offenders.” State v. Watkins, 827 S.W.2d 293, 294 (Tenn. 1992).

In the present case, the trial court found that the officers articulated a reasonable

suspicion for making an investigatory stop of Mr. Phillips’s car, and the evidence does not

preponderate otherwise. On the morning of June 13, 2007, Detective Tarlecky received a

BOLO dispatch concerning a carjacking that occurred in Hartsville the previous night. The

dispatch contained information describing the stolen car and a general description of the

suspects based on Mr. McDaniel’s statement. The stolen vehicle was found approximately

two hours later. Detective Tarlecky arrived at the crime scene and observed that the stolen

Monte Carlo was only partially stripped of valuable parts – a set of custom wheels that he

valued at approximately $2,000 remained on the car. Detective Tarlecky testified that based

on his past law enforcement experience, he knew that car thieves often return later to the car

to finish removing the valuable parts. This Court has observed that in determining whether

police had reasonable suspicion supported by specific articulable facts, “[a] court must also

consider the rational inferences and deductions that a trained police officer may draw from

the facts and circumstances known to him [or her].” Id.

Shortly after the Monte Carlo was found, the officers and others gathered at the boat

dock saw a white Crown Victoria with two male African-American occupants meeting the

general description of the suspects provided in the BOLO dispatch begin to enter the parking

lot where the stolen car had been left. When the Crown Victoria’s occupants saw the people

around the stolen car at the boat dock, the driver abruptly turned the car back onto the

roadway in a change of direction. The officers then observed the Crown Victoria turn around

in a nearby church parking lot and slowly drive back by the boat dock going the other

direction. Detective Tarlecky testified that in his experience, making a turn when noticing

a police presence often means “that they don’t want the police to take notice to

them.” Moreover, Detective Tarlecky testified that he was able to see the expressions on the

occupants’ faces when they began to pull in to the boat dock area, stating that they appeared

startled and “their eyes opened as big as saucers when they saw us and the vehicle just jerked

back off on to . . . the roadway.”

Defendant argues that Detective Tarlecky’s decision to make an investigatory stop of

the vehicle was based on nothing more than a “hunch” or a “gut feeling” and the fact that the

car’s occupants were African-American men. Defendant correctly points out that “an officer

making an investigatory stop must be able to articulate something more than an ‘inchoate and

unparticularized suspicion or “hunch.”’” Day, 263 S.W.3d at 902 (quoting Terry, 392 U.S.

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at 27). We also generally agree that making a stop of a vehicle based on nothing more than

the race and gender of the occupants would not satisfy the reasonable suspicion standard;

however, the officers in this case stopped the vehicle for reasons other than merely the race

and gender of its occupants. Considering the totality of the circumstances, the evidence does

not preponderate against the trial court’s decision not to suppress the evidence because the

officers articulated specific facts, as described above, supporting their reasonable suspicion

of the occupants of the Crown Victoria.

We have previously recognized that “a location’s characteristics are relevant in

determining whether the circumstances are sufficiently suspicious to warrant further

investigation, . . . and that nervous, evasive behavior is also a pertinent factor in determining

reasonable suspicion.” Nicholson, 188 S.W.3d at 661 (citing Illinois v. Wardlow, 528 U.S.

119, 124 (2000)). In the present case, the officers had reasonable suspicion to make a brief

investigatory stop based on these factors: the location (a boat dock area connected to criminal

activity in that it contained a car stolen the night before), the fact that the stolen car had not

been completely stripped of valuable parts, the abrupt and evasive behavior of the Crown

Victoria’s driver, the startled and suspicious demeanor and appearance of the occupants that

was directly observed by Detective Tarlecky, and the fact that the occupants matched the

general description of the suspects as described by the BOLO dispatch. Because the stop of

the vehicle was legal and the subsequent searches of the Crown Victoria, the Impala driven

by Mr. Miller, and the residence were conducted with valid consent, the trial court did not

err in refusing to suppress the evidence discovered by the police.

Sufficiency of the Evidence – Attempt to Commit First Degree Murder

Defendant argues that the evidence was insufficient to support his conviction for

attempt to commit first degree murder. The standard of appellate review in assessing a

challenge to the sufficiency of the evidence is “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). “In making this determination, we afford the prosecution the strongest

legitimate view of the evidence as well as all reasonable and legitimate inferences which may

be drawn therefrom.” State v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010). In determining

the sufficiency of the evidence, we do not reweigh the evidence, State v. Smith, 24 S.W.3d

274, 279 (Tenn. 2000), since questions regarding witness credibility, the weight to be given

the evidence, and factual issues raised by the evidence are resolved by the jury, as the trier

of fact. Majors, 318 S.W.3d at 857. “‘Because a verdict of guilt removes the presumption

of innocence and raises a presumption of guilt, the criminal defendant bears the burden on

appeal of showing that the evidence was legally insufficient to sustain a guilty

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verdict.’” State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011) (quoting State v. Hanson, 279

S.W.3d 265, 275 (Tenn. 2009)).

To determine the elements of the offense of attempt to commit first degree murder,

we review the statutory definitions of first degree murder and criminal attempt. At the time

of the offense, Tennessee Code Annotated section 39-13-202(a) (2006) defined first degree

murder in pertinent part as “[a] premeditated and intentional killing of

another.” “Premeditation” is defined as meaning “that the intent to kill must have been

formed prior to the act itself. It is not necessary that the purpose to kill pre-exist in the mind

of the accused for any definite period of time.” Tenn. Code Ann. § 39-13-

202(d). “‘Intentional’ refers to a person who acts intentionally with respect to the nature of

the conduct or to a result of the conduct when it is the person’s conscious objective or desire

to engage in the conduct or cause the result.” Tenn. Code Ann. § 39-11-302(a).

Criminal attempt is defined at Tennessee Code Annotated section 39-12-101, which

provides in pertinent part that:

(a) A person commits criminal attempt who, acting with the kind of culpability

otherwise required for the offense:

....

(3) Acts with intent to complete a course of action or cause a result that would

constitute the offense, under the circumstances surrounding the conduct as the

person believes them to be, and the conduct constitutes a substantial step

toward the commission of the offense.

(b) Conduct does not constitute a substantial step under subdivision (a)(3),

unless the person’s entire course of action is corroborative of the intent to

commit the offense.

As is apparent from the language of the criminal attempt statute, a defendant who acts

with the required culpable mental state “may be convicted of criminal attempt based on

conduct constituting a substantial step toward the commission of the offense.” State v.

Richardson, 251 S.W.3d 438, 443 (Tenn. 2008). Defendant argues that the evidence was

insufficient to support the conclusions that (1) he intended to kill Mr. McDaniel with the

requisite premeditation, and (2) his conduct constituted a substantial step toward the

commission of murdering Mr. McDaniel. The State argues that the jury was entitled to

conclude that Defendant and his fellow perpetrator planned and intended to kill Mr.

McDaniel, and that Defendant’s conduct, considered in light of the totality of the

circumstances, constituted a substantial step sufficient to support a conviction for attempted

murder. We agree with the State’s position.

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The existence of the element of premeditation is a question of fact to be resolved by

the jury. State v. Suttles, 30 S.W.3d 252, 261 (Tenn. 2000). Premeditation “may be

established by proof of the circumstances surrounding the killing” or attempted killing. Id.;

State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997). In Suttles and Bland, we identified

several factors that tend to support a finding of premeditation, including “the use of a deadly

weapon upon an unarmed victim; the particular cruelty of the killing; declarations by the

defendant of an intent to kill; evidence of procurement of a weapon; preparations before the

killing for concealment of the crime, and calmness immediately after the killing.” Suttles,

30 S.W.3d at 261; Bland, 958 S.W.2d at 660. Similarly, a defendant’s intent to kill may be

inferred by the jury from the evidence establishing the surrounding facts and

circumstances. State v. Lowery, 667 S.W.2d 52, 57 (Tenn. 1984); State v. Inlow, 52 S.W.3d

101, 105 (Tenn. Crim. App. 2000).

Considering the totality of the facts and circumstances surrounding the crimes

committed against Mr. McDaniel in the course of the robbery, carjacking, and assault, the

evidence is sufficient to demonstrate that a rational trier of fact could conclude that

Defendant and his co-perpetrator, with premeditation, planned and intended to kill Mr.

McDaniel. They procured a pistol and kept it pointed at Mr. McDaniel, who was unarmed,

throughout the robbery. They forced Mr. McDaniel to withdraw all the money he could from

his checking account at the ATM, demanding and procuring a receipt to prove he had done

so. They made him drive back to the carwash bay, where they forced him against one of the

walls. Although Mr. McDaniel pleaded with them to take his car and leave him at the

carwash, Defendant said, “no, you’re going with us.” At this point, the assailants had been

presented with the opportunity to take everything of value from their victim that they possibly

could have, and still insisted on taking him with them. When Mr. McDaniel saw Defendant

approaching with a roll of black duct tape, which the defendants had clearly procured in

advance and planned to use in binding him, he began to struggle. Defendant hit Mr.

McDaniel in the face and ordered his companion, who was nearby and also in the carwash

bay, to “get the gun, we’re going to shoot this motherfucker right here.” His use of the

words “right here” support an inference that the defendants’ plan had been to shoot Mr.

McDaniel somewhere else after they had bound him. After Mr. McDaniel was fortunately

able to break free and run, Defendant pursued him in a footrace.

From these circumstances, the jury was entitled, but not required, to reach the

conclusion that the defendants acted with premeditated intent to kill Mr. McDaniel, and that

the only reason Mr. McDaniel was still alive was that he was able to escape and

run. Defendant expressed his intention to shoot his victim. A defendant’s verbal expression

of intent to commit a crime obviously supports the conclusion that he or she acted with the

requisite intentional behavior. See State v. Fowler, 3 S.W.3d 910, 911 (Tenn. 1999)

(defendant’s expressed intention to pay $200 as a “finder’s fee” for an underage boy from

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whom he wanted “straight sex” supported conviction for attempted statutory rape); State v.

Taylor, 63 S.W.3d 400, 408 (Tenn. Crim. App. 2001) (defendant twice stating his intent to

forcibly “engage in unlawful sexual penetration” of minor victim supported conviction for

attempted rape); Inlow, 52 S.W.3d at 105 (defendant’s making prior statements “that could

easily have been interpreted as threats” supported conviction for attempted second degree

murder); State v. Elder, 982 S.W.2d 871, 875 (Tenn. Crim. App. 1998) (defendant’s

statement prior to shooting victim “You think I’m playin’; I’ll kill you” supported conviction

for attempted murder); State v. Bradfield, 973 S.W.2d 937, 948 (Tenn. Crim. App. 1997)

(during course of struggle with victim, defendant’s statement that he was going to “shoot

[his] ass” and reaching for concealed pistol sufficient to support attempted first degree

murder conviction).

The same circumstances described above also support a conclusion that Defendant’s

conduct constituted “a substantial step toward the commission of the offense” of

murder. Tenn. Code Ann. § 39-12-101(a)(3). The Tennessee General Assembly codified the

law of criminal attempt in 1989 to include the “substantial step” requirement. See Act of

May 24, 1989, ch. 591, § 1, 1989 Tenn. Pub. Acts 1169, 1184-85.3 In enacting the 1989

criminal attempt statute, the legislature based the attempt statute on the Model Penal Code.4

3

Before 1989, “the law of criminal attempt, though sanctioned by various statutes, was judicially

defined.” State v. Reeves, 916 S.W.2d 909, 910-11 (Tenn. 1996). The pre-1989 common law of attempt

required “(1) an intent to commit a specific crime; (2) an overt act toward the commission of that crime; and

(3) a failure to consummate the crime.” Id. at 911. In Reeves, we determined that in passing the criminal

attempt statute, the legislature intended not to retain the common law distinction illustrated in Dupuy v. State,

325 S.W.2d 238 (Tenn. 1959) between “mere preparation,” which was insufficient to prove a criminal

attempt, and an “overt act” toward the commission of a crime, which the State was required to prove under

the common law formulation of criminal attempt. 916 S.W.2d at 911. The Reeves Court recognized that

“the Dupuy approach to attempt law has been consistently and effectively criticized” as overly rigid,

restrictive, and unworkable. Id. at 913.

4

The Model Penal Code, Section 5.01, provides in pertinent part:

(1) Definition of attempt. A person is guilty of an attempt to commit a crime if, acting with

the kind of culpability otherwise required for commission of the crime, he:

(a) purposely engages in conduct that would constitute the crime if the attendant circumstances were

as he believes them to be; or

(b) when causing a particular result is an element of the crime, does or omits to do anything with the

purpose of causing or with the belief that it will cause such result without further conduct on his part;

or

(c) purposely does or omits to do anything that, under the circumstances as he believes them to be,

is an act or omission constituting a substantial step in a course of conduct planned to culminate in

(continued...)

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Reeves, 916 S.W.2d at 913. The inclusion of the “substantial step” requirement brought

Tennessee in line with a majority of states. 2 Wayne R. LaFave, Substantive Criminal Law

2d ed. § 11.4(e), at 226 (2003).

This Court first addressed the “substantial step” requirement in State v. Reeves. In

Reeves, two twelve-year-old schoolgirls plotted to kill their teacher by putting rat poison in

her coffee. 916 S.W.2d at 910. The teacher entered the classroom and saw the girls leaning

over her desk; after they ran back to their seats, a purse belonging to one of the girls that had

been left beside the teacher’s coffee cup was found to contain a packet of rat

poison. Id. This Court observed that applying the pre-1989 common law analysis that

sharply distinguished “mere preparation” from an “overt act” would likely have required

reversal of the convictions for attempted murder, id. at 914, and stated that the earlier

approach severely undercuts “the primary objective of the law – that of preventing inchoate

crimes from becoming full-blown ones.” Id. at 913. We affirmed the convictions for

attempted murder, finding that under the circumstances the defendants took a substantial step

toward the commission of poisoning their teacher, concluding,

We hold that when an actor possesses materials to be used in the commission

of a crime, at or near the scene of the crime, and where the possession of those

materials can serve no lawful purpose of the actor under the circumstances, the

jury is entitled, but not required, to find that the actor has taken a “substantial

step” toward the commission of the crime if such action is strongly

corroborative of the actor’s overall criminal purpose.

Reeves, 916 S.W.2d at 914. This holding is applicable to the case at bar. Although

Defendant did not have actual possession of the handgun during his struggle with Mr.

McDaniel and at the time he told his companion to “get the gun” because they were going

to shoot the victim “right here,” both the co-defendant gunman and his weapon were “at or

near the scene of the crime” – inside the carwash bay – and Mr. McDaniel testified that

Defendant appeared to be the one in control and in charge during the encounter. In Reeves,

we affirmed the attempted murder conviction of Ms. Reeves even though the rat poison was

not in her actual possession, but in her co-defendant’s purse which was lying near the

teacher’s coffee cup. 916 S.W.2d at 910.5

4

(...continued)

his commission of the crime.

5

The co-defendant, Ms. Coffman, did not appeal her conviction in that case.

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This case also bears some similarities to the facts presented in Bradfield, where the

defendant carried a concealed pistol in his shoe at a sentencing hearing and became involved

in a struggle with the courtroom bailiff. 973 S.W.2d at 941-42. The Bradfield defendant

“reached for his gun and as the two struggled for the weapon, the defendant informed the

deputy that he might as well give up because the defendant was going to ‘shoot [his]

ass.’” Id. at 947-48. The officers succeeded in wrestling the gun from the defendant without

harm. Id. at 942. The Court of Criminal Appeals concluded that

The jury could infer the defendant took a substantial step toward his stated

goal, namely shooting the victim. Though not a necessary inference, the jury

certainly could have inferred the defendant meant to shoot and kill the

victim. The evidence is, in other words, sufficient to support the conviction

for attempted first-degree murder.

Id. at 948.

Ultimately, the question of whether a defendant has taken a substantial step toward

the commission of a crime sufficient to support a conviction for criminal attempt is

necessarily a heavily fact-intensive inquiry determined by the specific circumstances shown

in each individual case; indeed, the comments of the Tennessee Sentencing Commission to

section 39-12-101 provide that “[b]ecause of the infinite variety of factual situations that can

arise, subdivision (a)(3) leaves the issue of what constitutes a substantial step for

determination in each particular case.” See also Jeffrey F. Ghent, Annotation, What

Constitutes Attempted Murder, 54 A.L.R. 3d 612 §2[a] (1973) (“The authorities agree that

it is impossible to formulate a general rule or definition of what constitutes an attempt (to

murder), which may be applied as a test in all cases, and that each case must be determined

on its own facts with the assistance of general guiding principles.”). Under the facts

presented here, considering the totality of the circumstances and affording the State the

strongest legitimate view of the evidence and the reasonable inferences therefrom, we concur

with the judgment of the trial court and the Court of Criminal Appeals that the evidence was

sufficient for the jury to find that Defendant took a substantial step toward killing Mr.

McDaniel, and thus to convict Defendant of attempt to commit first degree murder. The

evidence supports an inference that Mr. McDaniel was very close, in both a spacial and

temporal sense, to becoming a shooting victim and possibly a murder victim. The jury was

entitled, but not required, to draw this inference.

Conclusion

We affirm the Defendant’s convictions. Because neither the State nor Defendant has

appealed the ruling of the Court of Criminal Appeals that the case should be remanded for

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the purpose of determining whether consecutive sentencing is appropriate under the

Sentencing Act and State v. Allen, 259 S.W.3d 671 (Tenn. 2008), the case is remanded to the

Criminal Court for Trousdale County for that purpose. It appears from the record that the

Defendant is indigent; therefore, costs on appeal are assessed to the State of Tennessee.

_________________________________

SHARON G. LEE, JUSTICE

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