State of Tennessee v. Wesley Jones

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs September 5, 2012

STATE OF TENNESSEE v. WESLEY JONES

Appeal from the Criminal Court for Shelby County

No. 10-06236 James C. Beasley, Jr., Judge

No. W2012-00301-CCA-R3-CD - Filed February 27, 2013

The Defendant-Appellant, Wesley Jones, appeals his conviction for first degree premeditated

murder. On appeal, he argues that (1) the trial court abused its discretion in allowing a

witness to be recalled to testify, and (2) the evidence is insufficient to support his conviction.

Upon review, we affirm the trial court’s judgment.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which T HOMAS T.

W OODALL and J EFFREY S. B IVINS, JJ., joined.

Mark Mesler, Memphis, Tennessee, for the Defendant-Appellant, Wesley Jones.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney

General; Amy P. Weirich, District Attorney General; and Pamela Fleming and Reginald

Henderson, Assistant District Attorneys General, for the Appellee, State of Tennessee.

OPINION

Trial. Stephanie Kimball testified that she was the daughter of the victim, Glenda

Kimball. She said that on Saturday, March 13, 2010, Sergeant Lundy informed her that her

mother’s body had been found. Kimball said that the last time she had seen or spoken to her

mother was “like a day or so before that[.]”

On cross-examination, Kimball stated that she also talked to Sergeant Lundy on

Friday, March 12, 2010, because she and her son had been unable to locate her mother that

day. During the March 12, 2010 conversation, Sergeant Lundy told her that he could not

give her any information about the body they had found near Lucille Price Park because they

had not yet identified the body. When asked if she told Sergeant Lundy that she had last seen

her mother at 7:00 a.m. on Friday, March 12, 2010, she responded, “No sir. I said it was the

day before.”

Erroll Davis testified that on the afternoon of March 12, 2010, he discovered the

victim’s body while picking up cans in a wooded area near Lucille Price Park in Memphis,

Tennessee. He stated that he immediately notified the sanitation department of the body and

then walked to a nearby fire station to show them the location of the victim’s body. Davis

said he remained at the crime scene before accompanying the police to the homicide division,

where he told the police that he did not know how the victim’s body got to the area near the

park and did not know who put the body there. Davis admitted that he had a prior felony

conviction for burglary of a motor vehicle and two misdemeanor convictions for theft.

On cross-examination, Davis said he signed a form consenting to give a saliva sample

containing his DNA. He also said that the police did not ask him to remove his shirt for the

purpose of examining his back during the interview.

Udell Shelton, an officer with the Memphis Police Department, testified that he

responded to a call that a body had been found near Lucille Price Park on March 12, 2010.

When he arrived at the scene at 7:15 p.m., he observed the victim’s body and protected the

crime scene until other officers arrived. Officer Shelton stated that there were no clothes on

the victim’s body and that there was no other evidence near the crime scene.

Autra Fitch testified that he had seen the victim, an acquaintance, around 7:15 to 7:30

p.m. on Thursday, March 11, 2010. Approximately ten minutes later, Fitch saw the victim

and Jones, whom he had known for several years, leave a store at the corner of Smith Avenue

and Bellevue Boulevard. When Fitch walked down Smith Avenue a short distance, he saw

the victim and Jones again. Once he found a ride home, Fitch saw the victim and Jones on

Capitol Street walking towards Lucille Price Park. A short time later, he saw them near a

bench in the park. Fitch said that this was the last time he saw the victim. On March 13,

2010, Fitch gave a statement to police about his observations and identified a picture of the

victim. He also identified Jones in a photo spread. Fitch admitted that he had a prior

conviction for conspiracy to commit money laundering. On cross-examination, he said that

the police never asked him to submit a DNA sample.

Dr. Karen Chancellor, the Chief Medical Examiner for Shelby County, testified that

she performed the autopsy on the victim. She stated that the victim’s body was unclothed

and was in the early stages of decomposition when it arrived at her office. During the

autopsy, Dr. Chancellor noticed that the inner lids of the victim’s eyes and inner portion of

her lips had pinpoint hemorrhages indicating that the victim had died from asphyxiation. The

victim also had superficial abrasions and bruises on her neck that were indicative of manual

-2-

strangulation. After considering the pinpoint hemorrhages and the injuries to the victim’s

neck, Dr. Chancellor concluded that the victim’s cause of death was manual strangulation.

She explained how an individual dies from manual strangulation:

[W]hen a person is manually strangled generally the assailant has his or her

hands around the neck . . . and the blood vessels that supply oxygen to the

brain are compressed. . . .

The thing is usually there’s some sort of struggle so that pressure is

intermittent. If the pressure is held constant for about ten seconds the person

will pass out. They will become unconscious and will not move, [and] if the

pressure is released after that point before irreversible brain damage has

occurred[,] they will wake up and all will be normal.

So in order to manually strangle someone the compression has to be

held for somewhere between two and three minutes in a constant way. During

that time a person will already become unconscious but the two to three

minutes lack of oxygen with compression around the neck causes irreversible

brain injury and the person will not wake up or cannot be revived.

Dr. Chancellor took swabs from the vaginal, oral, and anal orifices and collected a scalp hair

sample and a pubic hair sample, which were included in the sexual assault evidence kit. In

addition, she took fingernail clippings from the victim’s hands.

Dr. Chancellor opined that the time between the victim’s death and the time that the

body was discovered was approximately twenty-four hours. She also noted that the victim’s

body had some superficial abrasions on the back and buttocks and bruises to the left and right

sides of the chest. In addition, she observed some areas of bleeding from warts inside the

vaginal cavity and some irritation to the vaginal area, which was consistent with recent

sexual intercourse. She noted that there was some material, later identified as skin cells,

found underneath the victim’s fingernails on her right hand. In addition, the victim’s tongue

was bruised because she had bitten it. She stated that the abrasions on the victim’s neck were

consistent with scratch marks from the perpetrator’s fingernails.

Kevin Lundy, a sergeant with the Memphis Police Department, testified that he was

the case coordinator for this case. He arrived at the crime scene between 7:15 and 7:45 p.m.

on March 12, 2010, and was able to observe the victim’s body before it was moved. Sergeant

Lundy said that he and other officers searched the entire field near the body and were unable

to locate any clothing items, footprints, or drag marks. After talking with Autra Fitch about

seeing the victim and Jones together just prior to the victim’s death, Sergeant Lundy

-3-

determined that he needed to talk to Jones because Jones “would have been the last person

to be seen [with] the victim” prior to her death. He said that Fitch told him Jones was

wearing a waist-length, dark jacket and dark pants or jeans at the time he saw Jones with the

victim. He subsequently interviewed Jones and obtained samples of Jones’s DNA.

Sergeant Lundy said that during the interview, Jones admitted that he spent some time

with the victim on Thursday, March 11, 2010, the day before the victim’s body was found.

Jones said that he and the victim were at a store at the corner of Smith Avenue and Bellevue

Boulevard and that he was smoking some marijuana. The victim asked him for a cigarette,

and he told her he needed the cigarette to light his marijuana joint. Jones stated that when

the owner of the store came outside and informed them that they could not be there, Jones

and the victim left the store separately. Sergeant Lundy noted that during the interview,

Jones was wearing a dark jacket and jeans, which was consistent with Fitch’s description of

Jones’s clothing prior to the victim’s murder. Sergeant Lundy also noticed a scratch on

Jones’s arm, which Jones claimed he had received during a “scuffle” at a club when someone

tried to steal his money. When Sergeant Lundy asked Jones what other injuries he suffered

during the “scuffle,” Jones pulled his shirt up and showed him some other scratches on his

back. Photographs of these scratches were entered into evidence. During the interview,

Jones denied having any contact with victim and denied having sexual intercourse with her.

Sergeant Lundy said that Fitch later identified Jones in a photo spread as the individual who

was with the victim shortly before her death.

On cross-examination, Sergeant Lundy stated that he had several conversations with

Stephanie Kimball, the victim’s daughter, around the time that the victim’s body was found

He said that when he talked to Kimball the night of March 12, 2010, he did not know the

identity of the body found in Lucille Price Park. Sergeant Lundy said he thought Kimball

had told him that the last time she had seen her mother was at 7:00 a.m. on Friday, March 12,

2010.

Sergeant Lundy said that on Saturday, March 13, 2010, Lawrence Goodwin asked to

talk to him because Goodwin had heard his name mentioned in conjunction with the victim’s

death. He talked to Goodwin before he interviewed Jones. Sergeant Lundy admitted that he

did not take a statement from Goodwin and did not ask him for a sample of his DNA. He

also admitted that he did not look at Davis’s, Fitch’s, or Jones’s fingernails after learning that

the victim had scratch marks on her neck. Sergeant Lundy acknowledged that he did not

have Fitch remove his shirt to determine whether he had scratch marks on his body. He also

acknowledged that he did not ask Jones to give him the jacket he was wearing during the

interview, even though the jacket matched Fitch’s description of the one Jones was wearing

shortly before the victim’s death. Sergeant Lundy admitted that Jones consented to giving

him a DNA sample and called him the day after his interview to give him his new cell phone

-4-

number. He said he did not send Davis’s DNA for testing because everything Davis had told

the police was consistent with the proof they had uncovered during their investigation.

Donna Nelson, a special agent forensic scientist with the Tennessee Bureau of

Investigation, testified that she performed DNA testing on the samples taken from the

victim’s body. She determined that none of the evidence collected in the sexual assault

evidence kit had the presence of semen. When she tested the fingernail scrapings from the

victim, she obtained a partial DNA profile that showed the presence of male DNA on the

victim. At that point, Agent Nelson recommended that Sergeant Lundy send the fingernail

scrapings to Orchid Cellmark, a private lab with more sensitive instrumentation for DNA

testing. Agent Nelson said that Jones’s DNA was consistent with the DNA found underneath

the fingernails of the victim’s right hand.

Huma Nasir, a forensic DNA analyst at Orchid Cellmark, testified that she performed

DNA analysis testing on the fingernail clippings from the victim. Ms. Nasir determined that

the predominate DNA profile belonged to Jones and the minor DNA profile belonged to the

victim. She also stated that the large amount of DNA found underneath the victim’s

fingernails on her right hand could have been there for only a short amount of time prior to

its collection because it would have been removed when the victim washed her hands. She

also stated that this DNA, which was in the form of skin cells, was consistent with the scratch

marks on Jones’s body.

Stephanie Kimball was recalled by the State for the limited purpose of clarifying when

she last saw her mother prior to the discovery of her mother’s body. Kimball testified that

her mother’s body was found on Friday, March 12, 2010. When asked when was the last

time she had seen her mother, she responded: “It was that Wednesday or that Thursday. I’m

sure it was that Thursday because I seen [sic] her on the side of the store. That Friday

morning she didn’t come home so me and my son started looking for her.”

ANALYSIS

I. Recall of Witness. Jones argues that the trial court abused its discretion in

allowing the State to recall Stephanie Kimball, the victim’s daughter, for the purpose of

clarifying when she last saw her mother. He asserts that Tennessee Rule of Evidence 615

“should be used to prevent witnesses who have already testified from listening to other proof

at trial and then being recalled to ‘clarify’ that testimony.” He claims that the State violated

“the spirit” of Rule 615 because Kimball’s testimony on recall that she last saw her mother

on Thursday, March 11, 2010, negated Sergeant Lundy’s testimony that Kimball told him

that she had last seen her mother at 7:00 a.m. on Friday, March 12, 2010. He claims that

Sergeant Lundy’s testimony on this point was particularly significant because it meant that

-5-

he was not the last person to see the victim alive. Jones further argues that the trial court, by

allowing the State to recall Kimball, “infringed on the province of the jury by deciding for

them which witness was to be believed on this crucial point [of] testimony.”

The State responds that Jones has waived this issue because he failed to include a

transcript from the motion for new trial hearing in the appellate record. In addition, the State

asserts that the trial court did not abuse its discretion in allowing it to recall Kimball. Finally,

the State contends that even if the trial court abused its discretion in allowing Kimball to be

recalled, this error is harmless in light of the overwhelming evidence of Jones’s guilt. We

conclude that the trial court did not abuse its discretion in allowing the State to recall

Kimball.

Kimball initially testified at trial that she spoke to Sergeant Lundy on Saturday, March

13, 2010, and that the last time she had seen or spoken to her mother was “like a day or so

before that[.]” On cross-examination, when asked if she told Sergeant Lundy that she had

last seen her mother at 7:00 a.m. on Friday, March 12, 2010, she responded, “No sir. I said

it was the day before.” Sergeant Lundy testified that he thought Kimball had told him that

the last time she had seen her mother was at 7:00 a.m. on Friday, March 12, 2010.

The trial transcript shows that the rule of sequestration was requested and that the

witnesses were placed under the rule and excluded from the courtroom. Stephanie Kimball

testified as the State’s first witness and was excused. The record indicates that Kimball

remained in the courtroom following her testimony and stayed for the duration of the trial.

The State, at the close of its case-in-chief, requested that it be allowed to recall Kimball to

clarify the day when she last saw her mother. The State asserted that it needed to clarify this

fact because Sergeant Lundy had testified that he thought Kimball had told him the last time

she saw her mother was at 7:00 a.m. on Friday, March 12, 2010, and because Kimball had

informed the State that this was not what she told Sergeant Lundy. The State asserted that

if Kimball were allowed to be recalled, she would testify that she last saw her mother on

Wednesday or Thursday morning and that she and her son were actively looking for her

mother on Friday morning.

The defense objected, arguing that the State had already had an opportunity to clarify

Kimball’s testimony on this point. The court noted that Kimball had already testified that she

told Sergeant Lundy she had last seen her mother the day before March 12, 2010. Then the

defense argued that recalling Kimball would be improper because Kimball had been listening

to the testimony of all of the other witnesses at trial. The State responded that it should be

allowed to recall Kimball because she was not changing her testimony. The court stated that

although it would not normally allow the State to recall a witness, it would permit the State

to recall Kimball for the limited purpose of clarifying when she last saw her mother prior to

-6-

the discovery of her mother’s body. Before allowing the State to recall Kimball, the trial

court gave the following instruction to the jury: “Alright, ladies and gentlemen, I have

agreed to allow Ms. Stephanie Kimball to resume the stand for the limited purpose of

clarifying a particular issue, so she’s going to be recalled at this point.”

On recall, Kimball testified that her mother’s body was found on Friday, March 12,

2010. When asked about the last time she had seen her mother, she responded: “It was that

Wednesday or that Thursday. I’m sure it was that Thursday because I seen her on the side

of the store. That Friday morning she didn’t come home so me and my son started looking

for her.” The defense declined to cross-examine Kimball after she was recalled to testify.

Tennessee Rule of Evidence 615 provides the current rule regarding sequestration of

witnesses:

At the request of a party the court shall order witnesses, including rebuttal

witnesses, excluded at trial or other adjudicatory hearing. In the court’s

discretion, the requested sequestration may be effective before voir dire, but

in any event shall be effective before opening statements. The court shall

order all persons not to disclose by any means to excluded witnesses any live

trial testimony or exhibits created in the courtroom by a witness. This rule

does not authorize exclusion of (1) a party who is a natural person, or (2) a

person designated by counsel for a party that is not a natural person, or (3) a

person whose presence is shown by a party to be essential to the presentation

of the party’s cause. This rule does not forbid testimony of a witness called at

the rebuttal stage of a hearing if, in the court’s discretion, counsel is genuinely

surprised and demonstrates a need for rebuttal testimony from an

unsequestered witness.

The purpose of Rule 615 is to ensure that a witness’s testimony is not improperly influenced

by the other proof presented at trial. However, the Advisory Commission Comment to Rule

615 states: “If a witness inadvertently and unintentionally hears some trial testimony, the

sense of the rule would permit the judge to allow the witness to testify if fair under the

circumstances.” Tenn. R. Evid. 615, Advisory Comm’n Comment.

A trial court has “wide discretion in determining whether to impose the sanction of

excluding the evidence of the witness suspected of having violated the rule.” State v.

Richard Anthony, 836 S.W.2d 600, 605 (Tenn. Crim. App. 1992) (citing State v. Moffett,

729 S.W.2d 679, 681 (Tenn. Crim. App. 1986)); see State v. Wicks, 729 S.W.2d 283, 286

(Tenn. Crim. App. 1987) (“The trial judge has broad discretion in the decision regarding the

-7-

exclusion of witnesses in accordance with the rule, and unless this discretion is abused his

action will not be reversed.”).

The State argues that this issue is waived because Jones failed to include in the

appellate record the transcript from the motion for new trial hearing. Although such an

omission may, in some cases, result in a waiver of an issue on appeal, we conclude that the

record before us is sufficient to review Jones’s claim. We also conclude that Jones was not

prejudiced by the State’s recall of Stephanie Kimball because her testimony on recall was

substantially the same as her initial testimony. As we will explain in the next section, the

evidence against Jones was overwhelming. Jones’s DNA, in the form of skin cells, was

found underneath the fingernails of the victim’s right hand, Jones had scratches on his body,

Fitch saw Jones with the victim the night of March 11, 2010, and the victim’s body was

found approximately twenty-four hours later in the same area. We conclude that Jones has

failed to demonstrate that a violation of the rule of sequestration occurred or that the trial

court abused its discretion in allowing the State to recall Kimball.

II. Sufficiency of the Evidence. Jones also argues that the evidence is insufficient

to sustain his conviction for first degree premeditated murder. He contends that there was

no proof of premeditation because the evidence suggested that the victim’s death resulted

from a physical altercation rather than a premeditated attack. He asserts that there was no

evidence that he had sexual intercourse with the victim. He also asserts that his DNA under

the victim’s fingernails and the scratches on the right side of his back were more consistent

with a physical altercation than an attack. Finally, he contends that the jury failed to consider

the issue of premeditation before rendering its verdict after thirty-three minutes.

The State responds that Jones has waived this issue for failing to make appropriate

references to the record and that the evidence is sufficient to support Jones’s conviction. We

agree that the evidence is sufficient to sustain the conviction for first degree premeditated

murder.

The State, on appeal, is entitled to the strongest legitimate view of the evidence and

all reasonable inferences which may be drawn from that evidence. State v. Bland, 958

S.W.2d 651, 659 (Tenn. 1997). When a defendant challenges the sufficiency of the evidence,

the standard of review applied by this court is “whether, after reviewing 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). Similarly, Rule 13(e) of the Tennessee Rules of Appellate Procedure states,

“Findings of guilt in criminal actions whether by the trial court or jury shall be set aside if

the evidence is insufficient to support a finding by the trier of fact of guilt beyond a

reasonable doubt.” Guilt may be found beyond a reasonable doubt in a case where there is

-8-

direct evidence, circumstantial evidence, or a combination of the two. State v. Matthews,

805 S.W.2d 776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331

(Tenn. 1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The trier of fact must

evaluate the credibility of the witnesses, determine the weight given to witnesses’ testimony,

and reconcile all conflicts in the evidence. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996).

When reviewing issues regarding the sufficiency of the evidence, this court shall not

“reweigh or reevaluate the evidence.” Henley v. State, 960 S.W.2d 572, 578-79 (Tenn.

1997). This court has often stated that “[a] guilty verdict by the jury, approved by the trial

court, accredits the testimony of the witnesses for the State and resolves all conflicts in favor

of the prosecution’s theory.” Bland, 958 S.W.2d at 659. A guilty verdict also “removes the

presumption of innocence and replaces it with a presumption of guilt, and the defendant has

the burden of illustrating why the evidence is insufficient to support the jury’s verdict.” Id.

(citing State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982)).

“In the absence of direct evidence, a criminal offense may be established exclusively

by circumstantial evidence.” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (citing

Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973); Marable v. State, 313 S.W.2d 451, 456-

58 (Tenn. 1958)). However, “[t]he jury decides the weight to be given to circumstantial

evidence, and ‘[t]he inferences to be drawn from such evidence, and the extent to which the

circumstances are consistent with guilt and inconsistent with innocence, are questions

primarily for the jury.’” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting Marable,

313 S.W.2d at 457). This court may not substitute its inferences for those drawn by the trier

of fact in cases involving circumstantial evidence. State v. Sisk, 343 S.W.3d 60, 65 (Tenn.

2011) (citing State v. Lewter, 313 S.W.3d 745, 748 (Tenn. 2010)). We note that the standard

of review “‘is the same whether the conviction is based upon direct or circumstantial

evidence.’” State v. Hanson, 279 S.W.3d 265, 275 (quoting State v. Sutton, 166 S.W.3d 686,

689 (Tenn. 2005)); State v. Carruthers, 35 S.W.3d 516, 557 (Tenn. 2000). The court in

Dorantes specifically adopted the standard for circumstantial evidence established by the

United States Supreme Court in Holland:

“Circumstantial evidence . . . is intrinsically no different from

testimonial evidence. Admittedly, circumstantial evidence may in some cases

point to a wholly incorrect result. Yet this is equally true of testimonial

evidence. In both instances, a jury is asked to weigh the chances that the

evidence correctly points to guilt against the possibility of inaccuracy or

ambiguous inference. In both, the jury must use its experience with people and

events in weighing the probabilities. If the jury is convinced beyond a

reasonable doubt, we can require no more.”

Dorantes, 331 S.W.3d at 380 (quoting Holland v. United States, 348 U.S. 121, 140 (1954)).

-9-

“The identity of the perpetrator is an essential element of any crime.” State v. Robert

Wayne Pryor, No. M2003-02981-CCA-R3-CD, 2005 WL 901140, at *3 (Tenn. Crim. App.,

at Nashville, Apr. 19, 2005) (citing State v. Thompson, 519 S.W.2d 789, 793 (Tenn. 1975)).

The State has the burden of proving “the identity of the defendant as the perpetrator beyond

a reasonable doubt.” Id. (citing State v. Sneed, 908 S.W.2d 408, 410 (Tenn. Crim. App.

1995)). The State may prove the perpetrator’s identity using only circumstantial evidence.

Rice, 184 S.W.3d at 662 (citing State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002)). The

identification of the defendant as the perpetrator is a question of fact for the jury after

considering all the relevant proof. State v. Strickland, 885 S.W.2d 85, 87 (Tenn. Crim. App.

1993) (citing State v. Crawford, 635 S.W.2d 704, 705 (Tenn. Crim. App. 1982)).

First degree murder is the premeditated and intentional killing of another person.

T.C.A. § 39-13-202(a)(1) (2006). Premeditation is defined as “an act done after the exercise

of reflection and judgment.” Id. § 39-13-202(d). This section further defines premeditation:

“Premeditation” means 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. The mental state of the accused

at the time the accused allegedly decided to kill must be carefully considered

in order to determine whether the accused was sufficiently free from

excitement and passion as to be capable of premeditation.

Id. “‘Premeditation’ is the process of thinking about a proposed killing before engaging in

the homicidal conduct.” State v. Brown, 836 S.W.2d 530, 540-41 (Tenn. 1992) (quoting C.

Torcia, Wharton’s Criminal Law § 140 (14th ed. 1979)).

The existence of premeditation is a question of fact for the jury to determine and may

be inferred from the circumstances surrounding the offense. State v. Rosa, 996 S.W.2d 833,

837 (Tenn. Crim. App. 1999) (citing Brown, 836 S.W.2d at 539). “[T]he 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” may

support the existence of premeditation. Bland, 958 S.W.2d at 660 (citing Brown, 836 S.W.2d

at 541-42; State v. West, 844 S.W.2d 144, 148 (Tenn. 1992)). This Court has also noted that

the jury may infer premeditation from any planning activity by the defendant before the

killing, evidence concerning the defendant’s motive, and the nature of the killing. State v.

Bordis, 905 S.W.2d 214, 222 (Tenn. Crim. App. 1995) (citation omitted).

The State first argues that Jones has waived this issue for failing to make appropriate

references to the record. “Issues which are not supported by argument, citation to authorities,

-10-

or appropriate references to the record will be treated as waived in this court.” Tenn. Ct.

Crim. App. R. 10(b). Failure to comply with this basic rule will ordinarily constitute a

waiver of the issue. State v. Hammons, 737 S.W.2d 549, 552 (Tenn. Crim. App. 1987). In

addition, Tennessee Rule of Appellate Procedure 27 provides that an appellant’s brief must

contain, among other requirements, a statement of the issues presented for review; a

statement of the case, including the nature of the case, the course of proceedings, and the

lower court’s disposition; a statement of facts, specifying the facts relevant to the issues

presented for review along with appropriate references to the record; a statement of the

applicable standard of review; and arguments containing citations to authorities and

references to the record. Tenn. R. App. P. 27(a). Although we agree that Jones failed to

make appropriate references to the record in the argument section of his brief regarding this

issue, we will nevertheless address his issue on appeal.

Viewed in the light most favorable to the State, we conclude that the evidence was

sufficient to sustain Jones’s conviction for first degree premeditated murder. Significantly,

Jones admitted to police that he was with the victim the day before her body was found. The

evidence showed that Jones was the last person seen with the victim prior to her death. In

addition, Fitch testified that the evening of March 11, 2010, he saw Jones and the victim

leave a store and walk into Lucille Price Park. Davis said he found the victim’s body in a

remote area near this park approximately twenty-four hours later. Officer Shelton stated that

there were no clothes on the victim’s body and that there was no other evidence at the crime

scene. Dr. Chancellor testified that the victim’s cause of death was manual strangulation and

that the evidence from the autopsy revealed that the victim had engaged in sexual intercourse

shortly before her death. She also observed a material, later identified as skin cells,

underneath the fingernails of the victim’s right hand. Sergeant Lundy testified that during

his interview with Jones, he observed scratches on Jones’s arm and back. In addition, he

stated that at the time of the interview, Jones was wearing clothes consistent with Fitch’s

description of Jones’s clothing prior to the victim’s murder. Special Agent Nelson testified

that Jones’s DNA was consistent with the DNA found underneath the fingernails of the

victim’s right hand and that she recommended that Sergeant Lundy send the fingernail

scrapings to Orchid Cellmark, a private lab for further DNA testing. Huma Nasir, a forensic

DNA analyst at Orchid Cellmark, testified that the skin cells containing DNA that were

found underneath the fingernails of the victim’s right hand matched Jones’s DNA and were

consistent with the scratch marks on Jones’s body. Although Jones told the police that he

had no physical contact with the victim, that he did not have sexual intercourse with the

victim, and that the scratches on his body were from a fight in a club, the jury was free to

discredit this evidence. Given this proof, a reasonable jury could have found premeditation

beyond a reasonable doubt based on the nature and cruelty of the killing, which consisted of

the victim being manually strangled as she clawed to get a breath. We conclude that the

evidence was sufficient to support Jones’s conviction.

-11-

CONCLUSION

Upon review, we affirm the trial court’s judgment.

______________________________

CAMILLE R. McMULLEN, JUDGE

-12-