State of Tennessee v. Jackson Martin

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs August 7, 2012

STATE OF TENNESSEE v. JACKSON MARTIN

Direct Appeal from the Criminal Court for Shelby County

No. 10-07889 Mark Ward, Judge

No. W2012-00144-CCA-R3-CD - Filed February 1, 2013

A Shelby County Criminal Court Jury convicted the appellant, Jackson Martin, of attempted

second degree murder and two counts of carjacking. After a sentencing hearing, the trial

court merged the carjacking convictions and sentenced him to an effective sentence of

twenty-two years in confinement. On appeal, the appellant contends that (1) the trial court

erred by commenting to the jury about his failure to present alibi witnesses; (2) the trial court

erred by refusing to give the jury an alibi instruction; and (3) the evidence is insufficient to

support the convictions. Based upon the record and the parties’ briefs, we affirm the

judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court are

Affirmed.

N ORMA M CG EE O GLE, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL,

and R OGER A. P AGE, JJ., joined.

Barry W. Kuhn (on appeal) and Constance J. Barnes and Vincent Ores (at trial), Memphis,

Tennessee, for the appellant, Jackson Martin.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney

General; Amy P. Weirich, District Attorney General; and Robert William Ratton, III, and

Jessica Banti, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

The victim, Bendell “Slick” Jackson, testified at trial that he was a drug dealer. On

July 21, 2010, he planned to sell drugs to the appellant, whom he knew as “Jack,” and picked

up the appellant from the Studio Plus Hotel on Old Dexter Road. The appellant told the

victim that he needed to get money from an ATM, so the victim drove him to the Exxon on

Germantown Road. The appellant went into the gas station, came out, and got back into the

car. The victim asked if the appellant got the money, and the appellant said yes. The victim

said he knew the appellant did not have any money because “I seen him [walk] in and [walk]

straight back out.” The victim said he told the appellant, “‘Well, I’m going to go on and drop

you off because I know you ain’t got the money.’” The appellant tried to assure the victim

that he had the money to buy the drugs.

The victim testified that he drove back to the hotel and tried to get the appellant to get

out of the car. The appellant said he had the money, reached into his pocket, pulled out a

knife, and started stabbing the victim. The victim put up his arm and tried to get out of the

car, but his seatbelt was on. He opened the door while the car was still moving and was

hanging out of the car. He got back into the car, unhooked the seatbelt, and fell onto the

street. The appellant saw the victim still moving, got out of the car, and approached the

victim with the knife. The victim said he heard someone say, “‘What are you doing[?]’” The

appellant looked at the person, looked at the victim, got into the car, and drove away. The

victim saw an elderly couple, told them to call 911, and collapsed.

The victim testified that the appellant stabbed him twelve to fourteen times. At first,

the victim did not identify the appellant as his attacker because he did not want anyone to

know he was selling drugs. However, a police officer told him at the scene that he probably

would not live, so he decided to tell the officer about the appellant. Paramedics took the

victim to The Med, where he spent eight days and had two major surgeries. The day after

the stabbing, a police officer showed him a photograph array, and he identified the

appellant’s photograph. About two weeks after he was released from the hospital, he told

Sonja Torkell, the appellant’s girlfriend, that the appellant stabbed him. He acknowledged

that he gave several different versions of the events and said that he changed his story about

why the appellant stabbed him because he was on probation and afraid. He acknowledged

that drug charges were pending against him but said that the State had not made him any

offers in exchange for his testimony.

On cross-examination, the victim testified that at the time of the stabbing, he had been

selling drugs to the appellant for more than six months and that Torkell also was a regular

customer. He denied that Torkell “turn[ed] tricks” for him in exchange for drugs. On the

day of the stabbing, the victim was driving his girlfriend’s Nissan Sentra, a small car. After

the stabbing, the victim was bleeding profusely, and blood should have been on the appellant.

The victim had never sold drugs to the appellant at the hotel on Old Dexter Road prior to July

21, 2010, and he usually did not sell drugs in that neighborhood. The victim denied that two

other drugs dealers stabbed him on July 21 in retaliation for his selling drugs on their “turf.”

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He acknowledged that in his prior stories about the stabbing, he claimed that the appellant

owed him money. He acknowledged that he gave four previous versions of the events and

that he told his girlfriend, “‘I hope after [the appellant’s] trial is over I get that last case

dismissed.’” He denied asking the State for help with his pending charges and stated, “I just

wish somebody would have sympathy for me. I’m not expecting nothing. . . . I can take care

of my other cases myself, you know, if nothing don’t happen, you know. I just want justice

done.”

Sonja Torkell testified that she and the appellant ended their relationship on July 3,

2010. On July 21, 2010, Torkell was working as a stylist at a hair salon. About 4:00 p.m.,

the appellant came into the salon, and Torkell gave him a haircut. Afterward, the appellant

said he had to cash his paycheck in order to pay for the haircut. About one and one-half

hours later, he returned to the salon, put a plate of food in Torkell’s station, and left. He still

had not paid for the haircut. Later, the appellant telephoned Torkell at the salon. She said

that he was very emotional, that he kept telling her he did not want her to hate him, and that

he said he was “sorry . . . about a lot of different things.” Torkell told the appellant that she

had to get back to work. About fifteen minutes later, the appellant telephoned Torkell for

a second time and asked for “Slick’s” telephone number. Torkell gave it to him and did not

hear from him again. She said the appellant carried a pocketknife “[p]retty much most days,

yeah, to work.”

On cross-examination, Torkell testified that the pocketknife was five to six inches

long unopened. She acknowledged that the victim sold drugs to her and that she had a

relationship with him prior to her relationship with the appellant. She denied exchanging sex

for drugs with the victim and said she had not bought drugs from him since he had been

released from the hospital. She denied hating the appellant and said the victim sold drugs

to him at the hotel one time prior to July 21, 2010.

Sergeant Andre Pruitt of the MPD testified that on July 22, 2010, he went to The Med

and spoke with the victim, who had at least eight stab wounds. A suspect had been

developed in the case, and Sergeant Pruitt showed the victim a photograph array. The victim

identified the appellant as the person who stabbed him. On cross-examination, Sergeant

Pruitt testified that he did not know if the victim was on medication at the time of the

identification. On redirect examination, Sergeant Pruitt testified that the victim had had

surgery the previous night but that the victim was able to give him a statement and tell him

what happened on July 21.

Audrey Hart testified that at 6:30 p.m. on July 21, 2010, she was outside watering her

flowers and heard someone yell for help. She said she saw a young African-American male

with “blood all down him” pacing back and forth. Hart called 911. The victim collapsed,

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and Hart tried to get information from him to give to the 911 operator. The victim told Hart

that he had been stabbed and carjacked. Hart did not ask the victim to identify his attacker.

On cross-examination, Hart testified that she did not see the victim get out of a car or a white

male with a knife chase the victim.

Officer Michael Chapman of the MPD testified that about 6:45 p.m. on July 21, 2010,

he was dispatched to the scene. He saw an African-American male lying on the street in a

pool of blood and people administering first aid. Officer Chapman spoke with the victim,

who was reluctant to give him any information. Officer Chapman saw a large cut and a

gaping wound on the victim’s neck and multiple stab wounds on the victim’s right side. He

thought the victim was going to die. He told the victim that the victim may die and that the

victim needed to tell the police what happened. The victim began talking about the stabbing.

Officer Hope Smith of the MPD testified that she responded to the stabbing. She said

that the victim was lying on a stretcher and that he was “cut up and bandaged.” Blood

droplets, a blue baseball cap, a t-shirt, a pair of gym shoes, and a brown belt were on the

street. Blood was on all of the clothing.

Sergeant James Woods of the MPD testified that on July 22, 2010, he responded to

a call about a car on fire in the Covington Pike Bottoms, a place where people rode four-

wheelers. He arrived at the scene about 8:00 a.m. He said the car was in the woods about

one-quarter mile off a dirt trail and was “burnt out.”

On cross-examination, Sergeant Woods testified that a Nissan emblem was on the

ground. He acknowledged that he did not know who drove the car into the woods.

Officer David Galloway of the MPD testified that on July 22, 2010, he went to the

Covington Pike Bottoms. He photographed the burned car and collected its “VIN plate.”

Sergeant John Simpson of the MPD testified that he was the coordinator for this case

and arrived at the scene of the stabbing about 8:00 p.m. on July 21. The victim had been

airlifted to The Med. Sergeant Simpson viewed evidence and followed a blood trail on the

street to a large blood stain where the victim had collapsed. The officer spoke with witnesses

and took their statements. Through his investigation, he learned about the car the victim had

been driving and broadcast a BOLO, be-on-the-lookout, for the vehicle. He also entered the

car into the NCIC, a national database.

Sergeant Simpson testified that he went to The Med and checked on the victim. The

next morning, he learned that the victim’s girlfriend’s car had been found in the Covington

Pike Bottoms and went to the scene. He also spoke with the victim’s girlfriend. Then he

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went to the Studio Plus Hotel and arrested the appellant as he was coming out of his room.

The appellant had fresh burn marks on his arms and legs and dirt on his legs. Due to the

blistering on the appellant’s legs, he was transported to The Med for treatment. Sergeant

Simpson said the appellant was “high on some kind of drug.” The appellant told the officer

that he had been staying at the Studio Plus for about two months, was a drug user, had lost

his job, and had just received his last paycheck. The appellant also told Sergeant Simpson

that he did not have a car. However, Sergeant Simpson found a receipt for five dollars worth

of gasoline purchased by the appellant at 8:41 p.m. on July 21, 2010. Sergeant Simpson said

the appellant was the only suspect in the case.

On cross-examination, Sergeant Simpson testified that other officers executed a search

warrant for the appellant’s hotel room. They did not find any bloody clothes or a knife.

Sergeant Simpson did not find any physical evidence linking the appellant to the crimes, and

the appellant was not covered in dirt and mud at the time of his arrest. Sergeant Simpson

asked the appellant how he got the blisters on his legs, but the appellant did not tell him.

On redirect examination, Sergeant Simpson testified that on July 26, 2010, he went

to the Exxon gas station where the appellant reportedly visited the ATM and viewed the

store’s video surveillance. The video showed the appellant enter the store and go to the

ATM. The appellant stood at the ATM for about one minute and appeared to use the

machine. Sergeant Simpson said that a power outage at the store erased the video before the

police could copy it and that the victim never changed his story about who stabbed him. At

the conclusion of Sergeant Simpson’s testimony, the State rested its case.

James Bratton testified for the appellant that about 7:00 p.m. on July 21, 2010, he was

visiting Laverne Long at her home in a subdivision off Old Dexter Road. Bratton and Long

were standing in Long’s yard when Bratton heard a commotion. He said he looked and saw

the victim “get pushed away from the car or dumped out of the car.” Bratton said the victim

ran toward Long’s home and yelled, “‘I’ve been stabbed, I’ve been stabbed.’” The victim

collapsed. Bratton asked who stabbed him, but the victim did not tell him. Bratton said that

he saw at least one other person in the car and that the car sped away. He did not see a white

male get out of the car and chase the victim.

On cross-examination, Bratton testified that he was eighty-six years old. He said he

could read a newspaper but did not see objects far away as well as he saw them close up.

However, he stated, “I have better than average eyesight for my age.” He said that when he

first saw the victim, the victim was about forty to fifty yards away and was walking toward

him. He acknowledged that he did not see the victim get out of the car and that he was just

assuming someone pushed the victim out of the car.

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The appellant testified that he did not stab the victim or set the victim’s girlfriend’s

car on fire. At the time of the stabbing, the appellant had been buying drugs from the victim

for about six months. He said he and the victim usually met “out by the interstate or at

McDonald’s.” On July 21, 2010, the appellant’s car was being repaired, so he could not meet

the victim as usual. The victim came to the hotel where the appellant was staying, and they

met outside. The appellant asked the victim to take him to an ATM. The victim drove the

appellant to the Exxon station, and the appellant got $200 out of the machine. He said that

he had been drinking and taking Xanax and that he did not remember what time he left the

hotel with the victim.

The appellant testified that he and the victim returned to the hotel and that the victim

sold him crack cocaine inside the car. Then the appellant went to his room while the victim

went to the swimming pool to sell drugs. The appellant said he used the crack cocaine with

“a couple of people from out of town staying at the hotel.” Later, he went with them to a

home in Collierville. The appellant said that the woman who owned the home was not there,

so they stayed about one hour and then “rode around and partied” for most of the night. At

some point, they returned to the hotel and sat around the pool for about one hour. He said

that he did not remember the names of the people he was with on the night of July 21 and that

“I can’t really tell you exactly what we did or what time we came and went.” The next

morning, the appellant’s son took him to Walmart. His son dropped him off at the hotel

about 11:00 a.m., and the police arrested him as he was returning to his room. He said he

told Sergeant Simpson he had been drinking alcohol and using drugs on the night of July 21.

He said that he had a prior conviction for aggravated assault and that he kept a knife, about

six inches long, with him when he was working because he used the knife for construction

jobs.

On cross-examination, the appellant testified that he did not see the victim sell drugs

to anyone at the pool. The appellant left the hotel and went to Collierville with two men,

who were brothers. He said that he did not know what time he left with them or their names

but that they were from Georgia and were staying at the hotel while they worked for a

guardrail company. At the time of his arrest, the appellant had burns on his legs but not on

his arms. He said the burns resulted from a “cooking accident” on July 21 that occurred

before he took food to Sonja Torkell. Specifically, boiling water and butter spilled on his

legs while he was cooking shrimp. The appellant did not have a knife on his person when

he was arrested, and he did not remember where his knife was at the time of his arrest.

The jury convicted the appellant as charged of attempted second degree murder and

two counts of carjacking, Class B felonies. After a sentencing hearing, the trial court merged

the carjacking convictions and sentenced the appellant to eleven years for each conviction

to be served consecutively for an effective sentence of twenty-two years in confinement.

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II. Analysis

A. Trial Court’s Comment on the Appellant’s Credibility

The appellant contends that the trial court erred by commenting to the jury about his

failure to present alibi witnesses and that the trial court, in effect, improperly commented on

his credibility. The State argues that the appellant is not entitled to relief because he late-

filed his motion for new trial and that any error does not rise to the level of plain error. We

conclude that the trial court erred but that the error does not warrant relief.

Before trial, the State filed a motion, demanding that the appellant notify the State of

his intention to rely upon an alibi for the offense, which occurred at about 6:50 p.m. on July

21, 2010 at the intersection of Old Dexter and Town & Country. The appellant responded

to the motion, stating that he did not intend to offer an alibi defense and that he would notify

the State if an alibi defense developed.

At trial, the appellant testified that after he and the victim arrived back at the hotel,

he went up to his room to use the crack cocaine he had bought from the victim. The victim

went to the swimming pool to sell drugs. The appellant met up with two men, who were

brothers staying at the hotel. On direct examination, he testified that he did not know what

time he met them, but on cross-examination, he said, “The sun was going down, I believe.

It was about dusk. It was dusk.” He went to their room and then left with them. Later, the

appellant put five dollars worth of gasoline in their truck. On cross-examination, the State

asked, “So you don’t remember the names of the people that could be your alibi witnesses

here today?” Defense counsel objected, stating that “he has clearly testified he does not

remember these people. It was asked on direct, and it was asked on cross, and this is the

third time.”

In a jury-out hearing, defense counsel also argued that the question was improper

because the appellant “does not have to call any witnesses, and it’s improper to imply to the

jury that just because he took the stand that he has to also supply alibi witnesses to support

what he’s saying.” The trial court answered,

Well, I’m sitting here really struggling because the State put

down a notice for alibi witnesses, and then this man gets up here

and testified that he’s got all of these alibi witnesses that he

didn’t bother to tell the State about so they could subpoena them

to be here. . . . [S]o here the State gets ambushed with all these

people that he could have answered in his notice of alibi so that

they could have investigated and tried to have done something

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with it and he [gets] up here on the stand and now you want to

say he doesn’t have to produce any witnesses?

....

I can’t prevent him from testifying, but he -- there’s got

to be some fairness to this process, and when he gets up here for

the first time in the middle of the trial and says he’s got alibi

witnesses and he just testified under oath he could have found

out the names of those people from Georgia. The records were

probably available at the hotel.

The trial court disagreed with defense counsel’s argument that the State’s question shifted

the burden of proof to the appellant and stated, “I’m going to overrule your objection. . . .

And at some point, I think I have to instruct the jury that the State requested a notice of

alibi[.] . . . I will read what the [appellant’s] response was.”

When the jury re-entered the courtroom, the trial court instructed it as follows:

This is a criminal case, and the Defendant does not have

the burden or requirement to produce any witnesses, but both

sides have the power to produce those witnesses if they should

so choose.

The rule provides under Rule 12.1 that, “A District

Attorney General who desires disclosure of potential alibi

defense shall serve the Defendant with a request to be notified

of an intention to offer an alibi defense. That request shall state

the time, date and place at which the alleged offense was

committed.” So once the State makes this request and says

when the alleged offense was committed, the Defense is

required to issue a response.

....

In this case, a notice was requested, and the response that

was given by the Defense, if I can find it, . . . [“]that the

Defendant does not intend to offer a defense of alibi. If a

defense of alibi develops, Defendant Martin will promptly notify

the State.”

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So in this case, there has been no notice of alibi given

and no opportunity to investigate this from an alibi standpoint,

and so that’s all I am really going to tell you about this matter

other than what I have already told you, that both sides have a

right to subpoena and call witnesses, but there is no burden on

the Defendant to call witnesses. There is a burden, though,

under this rule to notify the State of potential alibi witnesses, so

that’s all I am going to say on the matter, and I’m going to let

the lawyers continue their questioning of this witness.

After the instruction, the State resumed cross-examining the appellant.

Tennessee Rules of Criminal Procedure, Rule 12.1(a)(1) provides,

A district attorney general who desires disclosure of a

potential alibi defense shall serve the defendant with a written

request to be notified of an intention to offer an alibi defense.

The request shall state the time, date, and place at which the

alleged offense was committed.

A defendant who intends to offer an alibi defense shall inform the district attorney general,

in writing, of the intention and must state “the specific place or places at which the defendant

claims to have been at the time of the alleged offense” and “the name and address of each

alibi witness on whom the defendant intends to rely.” Tenn. R. Crim. P. 12.1(a)(2)(A)(i), (ii).

If the defendant fails to comply with the Rule, the court may exclude the testimony of any

undisclosed alibi witness offered by the defendant; however, the rule does not limit the

defendant’s right to testify. Tenn. R. Crim. P. 12.1(d).

As this court has explained,

The Tennessee Constitution prohibits judges from

commenting on the evidence in a trial, but judges may “state the

testimony and declare the law.” Tenn. Const. art. VI, § 9. A

trial judge is obligated to “be very careful not to give the jury

any impression as to his feelings or to make any statement which

might reflect upon the weight or credibility of evidence or which

might sway the jury.” State v. Suttles, 767 S.W.2d 403, 407

(Tenn. 1989).

State v. Anthony Dewayne Hood, No. E2008-02298-CCA-R3-CD, 2010 Tenn. Crim. App.

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LEXIS 750, **25-26 (Knoxville, Sept. 10, 2010).

Turning to the instant case, we can appreciate the trial court’s concern about the

appellant’s trying to “ambush” the State. However, Rule 12.1, Tennessee Rule of Criminal

Procedure, clearly states that a defendant’s failure to notify the State of an alibi defense does

not affect the defendant’s right to testify. The trial court even commented during the jury-out

hearing about the appellant’s right to testify. Moreover, “[t]he purpose of cross-examination

. . . is to give opposing counsel an opportunity to lessen the effect of a witness’s testimony

by involving him in inconsistencies or contradictory statements thereby impeaching his

testimony.” McBee v. State, 372 S.W.2d 173, 180 (Tenn. 1963). In this case, the State was

zealously questioning the appellant about his inability to recall the names of the two men and

the specific times he met them or left the hotel with them, severely attacking his credibility.

While the trial court correctly instructed the jury that the appellant was under no obligation

to present witnesses, we must agree with the appellant that the instruction could have been

construed by the jury as a comment on the appellant’s credibility.

Next, we will determine the effect of the error. As noted by the State, the appellant

late-filed his motion for new trial. See Tenn. R. Crim. P. 33(b). A defendant’s failure to file

a timely motion for new trial deprives the defendant “of the opportunity to argue on appeal

any issues that were or should have been presented in the motion for new trial.” State v.

Martin, 940 S.W.2d 567, 569 (Tenn. 1997). However, Tennessee Rule of Appellate

Procedure 36(b) provides that “[w]hen necessary to do substantial justice, [this] court may

consider an error that has affected the substantial rights of a party at any time, even though

the error was not raised in the motion for a new trial or assigned as error on appeal.”

Therefore, the appellant will be entitled to relief only if the trial court’s error rises to the level

of plain error. We may only consider an issue as plain error when all five of the following

factors are met:

(a) the record must clearly establish what occurred in the trial

court; (b) a clear and unequivocal rule of law must have been

breached; (c) a substantial right of the accused must have been

adversely affected; (d) the accused did not waive the issue for

tactical reasons; and (e) consideration of the error is “necessary

to do substantial justice.

State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994) (footnotes omitted); see

also State v. Smith, 24 S.W.3d 274, 283 (Tenn. 2000) (adopting the Adkisson test for

determining plain error). Furthermore, the “‘“plain error” must be of such a great magnitude

that it probably changed the outcome of the trial.’” Adkisson, 899 S.W.2d at 642 (quoting

United States v. Kerley, 838 F.2d 932, 937 (7th Cir. 1988)).

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Upon review of the record, we conclude that the trial court’s error was not of such

magnitude that it changed the outcome of the trial. The victim testified that the appellant

stabbed him on the evening of July 21, 2010, and he identified the appellant in a photograph

array shortly after the crimes and at trial. The victim never changed his story about the

appellant’s being his attacker. According to the victim, he drove the appellant to an ATM

prior to the stabbing in order for the appellant to withdraw money to buy drugs. Sergeant

Simpson testified that he viewed video showing the appellant entering the store and standing

at the ATM machine, supporting the victim’s version of the events. In addition, the appellant

admitted being with the victim in the victim’s girlfriend’s car before the stabbing. The

victim testified that after the stabbing, the appellant drove away in the car. The next day, the

car was located, completely burned, in the woods. The appellant was arrested later that

morning and had burn marks on his arms and legs that required medical evaluation at a

hospital. Moreover, although the appellant did not have a car, a receipt showed he put

gasoline into a vehicle after the stabbing, and a knife that the appellant was known to carry

was never located. The State’s proof against the appellant was strong. Therefore, we

conclude that consideration of the error is not necessary to do substantial justice and that the

appellant is not entitled to relief.

B. Alibi Instruction

Next, the appellant contends that the trial court erred by refusing to give an alibi

instruction. The State argues that an alibi instruction was not required in this case. As with

the previous issue, this issue has been waived because the appellant late-filed his motion for

new trial. In any event, we agree with the State. Therefore, the appellant is not entitled to

plain error relief.

A defendant has a “constitutional right to a correct and complete charge of the law.”

State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990). Accordingly, trial courts “should give a

requested instruction if it is supported by the evidence, embodies a party’s theory, and is a

correct statement of the law.” State v. Phipps, 883 S.W.2d 138, 150 n.20 (Tenn. Crim. App.

1994). Moreover, we have previously noted that “[w]e must review the entire [jury] charge

and only invalidate it if, when read as a whole, it fails to fairly submit the legal issues or

misleads the jury as to the applicable law.” State v. Forbes, 918 S.W.2d 431, 447 (Tenn.

Crim. App. 1995). A charge resulting in prejudicial error is one that fails to fairly submit the

legal issues to the jury or misleads the jury about the applicable law. State v. Hodges, 944

S.W.2d 346, 352 (Tenn. 1997).

This court has previously defined “alibi” as “‘[a] defense based on the physical

impossibility of a defendant’s guilt by placing the defendant in a location other than the scene

of the crime at the relevant time.’” State v. Looper, 118 S.W.3d 386, 416 (Tenn. Crim. App.

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2003) (quoting Black’s Law Dictionary 72 (7th ed. 1999)). A trial court must instruct the

jury on the defense of alibi when it is “fairly raise[d]” by the proof. Manning v. State, 500

S.W.2d 913, 915 (Tenn. 1973). The defense of alibi has been said to have been fairly raised

in three sets of circumstances:

(1) where the defendant’s alibi has been corroborated by other

credible witnesses[;] (2) where the victim has been unable to

identify the defendant[;] [or] (3) where the proof against the

defendant is wholly circumstantial[.]

Id. at 916 (citations omitted.) The trial court is obligated to instruct the jury on alibi

regardless of any request by the defendant. See Poe v. State, 212 Tenn. 413, 370 S.W.2d

488, 490-91 (Tenn. 1963). Failure to give an instruction constitutes reversible error. Id. at

490-91.

We conclude that the trial court did not err by failing to give an alibi instruction. The

appellant could not provide a name for the brothers and did not remember what time he used

drugs with them or left the hotel with them. The appellant’s alibi was not corroborated by

other witnesses, the victim identified the appellant as his attacker shortly after the stabbing

and at trial, and the victim’s testimony about the stabbing is direct evidence of the appellant’s

guilt. Therefore, we conclude that the defense of alibi was not fairly raised by the proof.

Given that a clear and unequivocal rule of law was not breached, the appellant is not entitled

to plain error relief. See Adkisson, 899 S.W.2d 626, 641-42.

C. Sufficiency of the Evidence

Finally, the appellant contends that the evidence is insufficient to support his

convictions. For the attempted second degree murder conviction, the appellant argues,

without any explanation, that the evidence fails to show he acted knowingly. For the

carjacking convictions, the appellant does not explain why the evidence is insufficient. The

State argues that the evidence is sufficient. We agree with the State.

When an appellant challenges the sufficiency of the convicting evidence, the standard

for review by an appellate court 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);

Tenn. R. App. P. 13(e). The State is entitled to the strongest legitimate view of the evidence

and all reasonable or legitimate inferences which may be drawn therefrom. State v. Cabbage,

571 S.W.2d 832, 835 (Tenn. 1978). Questions concerning the credibility of witnesses and

the weight and value to be afforded the evidence, as well as all factual issues raised by the

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evidence, are resolved by the trier of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

This court will not reweigh or reevaluate the evidence, nor will this court substitute its

inferences drawn from the circumstantial evidence for those inferences drawn by the jury.

Id. Because a jury conviction removes the presumption of innocence with which a defendant

is initially cloaked at trial and replaces it on appeal with one of guilt, a convicted defendant

has the burden of demonstrating to this court that the evidence is insufficient. State v.

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

Second degree murder is the knowing killing of another. Tenn. Code Ann. §

39-13-210(a)(1). A person acts knowingly with respect to a result of the person’s conduct

when the person is aware that the conduct is reasonably certain to cause the result. Tenn.

Code Ann. § 39-11-106(a)(20). Criminal attempt requires that one act “with the kind of

culpability otherwise required for the offense . . . [and] with intent to cause a result that is an

element of the offense, and believes the conduct will cause the result without further conduct

on the person’s part.” Tenn. Code Ann. § 39-12-101(a)(2).

Carjacking is defined as “the intentional or knowing taking of a motor vehicle from

the possession of another” and can be accomplished by use of (1) a deadly weapon or (2)

force or intimidation. Tenn. Code Ann. § 39-13-404(a). Count 2 of the indictment alleged

that the appellant committed carjacking by use of a deadly weapon, and count 3 alleged that

the appellant committed carjacking by use of force or intimidation.

Taken in the light most favorable to the State, the evidence shows that the victim

drove the appellant back to the hotel and tried to get him to get out of the car. The appellant

pulled out a knife and began stabbing the victim. The victim managed to unhook his seatbelt

and fell onto the street. The appellant got out of the car and walked toward the victim, but

when someone called out to the appellant, the appellant got into the car and drove away. We

conclude that the State presented sufficient evidence for a jury to find beyond a reasonable

doubt that the appellant knowingly stabbed the victim and that he intentionally took the

vehicle from victim’s possession by the use of a deadly weapon and force.

III. Conclusion

Based upon the record and the parties’ briefs, we affirm the judgments of the trial

court.

_________________________________

NORMA McGEE OGLE, JUDGE

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