State of Tennessee v. Samuel Armod Winkfield

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

June 2, 2009 Session

STATE OF TENNESSEE v. SAMUEL ARMOD WINKFIELD

Appeal from the Circuit Court for Madison County

No. 07-74 Donald H. Allen, Judge

No. W2008-01347-CCA-R3-CD - Filed March 9, 2010

Appellant, Samuel Armod Winkfield, was indicted by the Shelby County Grand Jury in

January of 2007 for first degree murder, felony murder, especially aggravated kidnapping,

tampering with evidence, and conspiracy to tamper with evidence for his role in the death of

James Charles Haney, a college student in Jackson, Tennessee. A mistrial was declared at

the conclusion of the first trial in July of 2007. Appellant was retried in January of 2008.

At the conclusion of the proof, the jury found Appellant guilty of second degree murder and

tampering with evidence. The jury deadlocked on the kidnapping charge. After a sentencing

hearing, Appellant was sentenced to an effective sentence of twenty-five years. After the

denial of a motion for new trial, Appellant initiated the appeal herein. On appeal, Appellant

complains that: (1) the trial court improperly allowed the State to admit Appellant’s

testimony from the first trial; (2) the evidence was insufficient to support the convictions for

second degree murder and tampering with the evidence; (3) the trial court improperly denied

the admission of Terrence McGee’s MySpace page in which he claimed to be “armed and

dangerous;” and (4) the trial court improperly sentenced Appellant to a twenty-five year

sentence. After a thorough review of the record, the judgments of the trial court are affirmed.

We determine: (1) that the former testimony of Appellant was admissible under Tennessee

Rule of Evidence 804(b)(1); (2) the trial court properly excluded the MySpace page from

evidence; (3) the evidence was sufficient to support Appellant’s convictions for second

degree murder and tampering with evidence; and (4) under the 2005 amendments to the

sentencing act, Appellant cannot appeal the weight given by the trial court to enhancement

and mitigating factors. As a result, the judgments of the trial court are affirmed.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which J OHN E VERETT W ILLIAMS and

C AMILLE R. M CM ULLEN, JJ., joined.

George Morton Googe, District Public Defender and Gregory D. Gookin, Assistant Public

Defender, Jackson, Tennessee, for the appellant, Samuel Armod Winkfield.

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

General; Jerry Woodall, District Attorney General; and Shaun A. Brown, Assistant District

Attorney General; for the appellee, State of Tennessee.

OPINION

On October 19, 2006, Billy England lived at 300 Roland Street in Jackson, Tennessee.

Around 10:10 a.m., he was leaving his home and heard what sounded like moaning coming

from somewhere nearby. At that time, he saw James Charles Haney, the victim, in the front

yard of another residence. Mr. Haney was partially clothed. Mr. England suspected the man

was drunk so he told him to go home. Mr. Haney entered the residence at 324 Roland

Avenue. Mr. England drove around the block and saw that the front door to 324 Roland

Avenue was still open. It was cold and raining, so Mr. England stopped and entered the

residence to check on Mr. Haney. When he got inside, Mr. England found Mr. Haney face

down on the floor. There were no visible injuries. Mr. England was unable to find a pulse,

so he called the police. Mr. England did not hear any gunshots or see anyone else around the

neighborhood at that time.

Officers responded to the scene at around 10:18 a.m. Sergeant Buckley Sain of the

Jackson Police Department entered the residence and found a “lifeless” Mr. Haney lying

face-down on the floor with gunshot wounds to the right leg and chest. Mr. Haney was

partially clothed at the time.

According to the medical examiner, the victim died of multiple gunshot wounds.

There was no stippling around the wounds, which indicated that the shots were fired from

more than three feet away. There was no alcohol or drugs in Mr. Haney’s system at the time

of his death.

As the investigation unfolded, officers learned that Mr. Haney lived at 324 Roland

Avenue with Terrence McGee. Appellant began living with them sometime in September

of 2006. The three men were students at Lane College in Jackson. They rented the property

from Mundt Rental Properties. At around 8:30 a.m. on the morning of October 19, 2006,

Mundt Rental Properties received a telephone call from someone complaining about the trash

in front of the house. An employee of Mundt Rental Properties, Teresa Trice, called Mr.

McGee’s cell phone number at around 10:00 a.m. that morning to tell them to move the trash

around to the back of the residence. Ms. Trice did not recognize the voice that answered the

phone to be that of Mr. Haney or Mr. McGee. She was assured by the person that answered

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the phone that the message would be relayed to Mr. McGee after he got out of class. Ms.

Trice remembered that the person who answered the phone was breathing heavily.

According to college records, Appellant received a tuition refund check of more than

$1,000 on October 17, 2006. Several weeks prior to the victim’s death, Appellant told Mr.

McGee that someone was stealing his marijuana. Appellant did not make any accusations

at that time to indicate that he thought a specific person was responsible for the thefts.

On October 18, 2006, the night prior to Mr. Haney’s death, several people were at the

residence at 324 Roland Avenue, including Mr. McGee, Appellant, and Mr. Haney. Mr.

McGee and Mr. Haney got into a brief verbal argument because Mr. McGee had failed to

pick up the laundry earlier that day. The next morning, October 19, 2006, Mr. McGee arose

at around 8:30 a.m. and got ready for class. Several other students had stayed the night at the

residence, and Mr. McGee dropped them off at school before going to class. When he left

the residence, Mr. Haney and Appellant were the only people present.

Mr. McGee dropped some people off at class and then decided to make a quick trip

to get the laundry prior to attending his own class. Mr. McGee got the laundry, then quickly

drove home and dropped off the laundry. At that time, Mr. Haney was still asleep on the

couch in the living room.

Mr. McGee ended up being about ten minutes late to class because he decided to take

the laundry back to the house. Mr. McGee’s class was over around 9:50 a.m. At the end of

class, he realized that he left his cell phone at home. Mr. McGee borrowed the cell phone

of a friend, Joe Elliot, to call his own cell phone. Appellant answered the phone, informed

Mr. McGee that something had happened to Mr. Haney, and instructed him to come home.

Mr. McGee described Appellant’s voice as “scared.”

Mr. McGee got into his car and drove quickly home. He pulled up in the alley behind

the house, and Appellant ran out the back door carrying a black trash bag and a .380 pistol.

It was the same .380 pistol that Mr. McGee had previously given to Mr. Haney. Mr. McGee

tried to go inside the house, but Appellant “yanked” him back into the car and informed him

“we’ve got to go.” Appellant even pointed the gun at Mr. McGee.

Appellant instructed Mr. McGee to drive the car to his girlfriend’s, Ciara Lasley’s,

apartment. On the way there, Appellant informed Mr. McGee that he was “sorry” but that

“[Mr. Haney] kept playing with me, playing with me and testing me and playing with me.”

Appellant took a stack of money out of his pocket. The money was neatly wrapped in the

same manner that the victim kept his money. Appellant denied that he had taken Mr.

Haney’s money.

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Appellant had exited the residence with Mr. McGee’s cell phone. During the car trip

to Ms. Lasley’s apartment, Appellant used the cell phone several times. He called Ms. Lasley

to get directions to her new apartment. Appellant also called someone named “Booky” 1 and

told him to “go get [Mr. Haney] he’s got two bullets in him.”

When they arrived at Ms. Lasley’s apartment, Appellant exited the vehicle with the

trash bag and the gun. He left the cell phone and told Mr. McGee to keep quiet. Mr. McGee

drove to the mall parking lot for about ten to fifteen minutes before returning to campus and

attending his remaining classes. Mr. McGee received a call from a friend at around 1:00 p.m.

that afternoon informing him that Mr. Haney was dead.

Ms. Lasley recalled receiving a telephone call from Appellant shortly before her 10:00

a.m. class. The call came from Mr. McGee’s cell phone. Appellant called her several more

times from the phone. Ms. Lasley skipped her 10:00 a.m. class and returned to her apartment

to find Appellant and Mr. McGee waiting on her in the parking lot. When she arrived, she

did not go to the car but instead went directly into her apartment. Ms. Lasley did not recall

if Appellant was carrying anything when he arrived.

Appellant asked Ms. Lasley for a ride to Memphis. She agreed. Ms. Lasley drove

Appellant to Memphis and dropped him off at a friend’s house before driving back to

Jackson.

Nicholas Parks, also known as Booky, was a mutual friend of Appellant, the victim,

and Mr. McGee. He received a call on October 19 in the morning. He was asleep when the

phone rang but noticed that the phone number was blocked by caller ID. When he answered

the phone, a voice instructed him to “go get [Mr. Haney], he has two bullets in him.” Mr.

Parks ignored the call and went back to sleep.

Cell phone records indicated that Mr. McGee’s cell phone received a call from Mundt

Rentals at 9:37 a.m. on October 19, 2006. Additionally, Mr. McGee’s cell phone made an

outgoing call to Ms. Lasley’s telephone at 9:42 a.m., received an incoming call from Joe

Elliot’s cell phone at 9:53 a.m., called Nicholas Park’s phone at 10:04 a.m. with the phone

number blocked, then made and received several more calls to and from Ms. Lasley’s phone,

beginning at 10:05 a.m. and concluding at 1:25 p.m.

After the victim’s body was discovered and the investigation began, Appellant was

located by authorities at his parents’ home in Memphis. He was later arrested and indicted

for his involvement in the death of the victim.

1

At one point in the transcript, this person is referred to as “Bookie.”

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After he was arrested, Appellant was incarcerated for a time in the Shelby County Jail

while he awaited trial. Larry Futtrell was an inmate in the Shelby County Jail along with

Appellant in November of 2006. Appellant told Mr. Futtrell about getting a tuition refund

check from Lane College. According to Mr. Futtrell, Appellant used the money to buy some

marijuana. Appellant admitted to Mr. Futtrell that he got into a fight with another man for

stealing drugs and shot him twice in the stomach with a .380 pistol. Appellant even told Mr.

Futtrell that he escaped by exiting through the rear of the residence and later had his

girlfriend drive him to Memphis. Mr. Futtrell explained that Appellant had tried to call

someone to go check on the victim after the shooting. Appellant was worried about the

phone calls that he had made on the morning of the shooting. When Mr. Futtrell came

forward with information about the case, authorities had not released any information about

the case to the public. In fact, investigators did not learn that Appellant had received a

tuition refund check until after talking with Mr. Futtrell.

Appellant was originally tried by a Shelby County Jury in July of 2007. At the

conclusion of the State’s proof, the jury found Appellant not guilty of felony murder and

conspiracy to commit tampering with evidence. At the conclusion of all of the proof, the jury

reported that they were deadlocked on the charges of first degree murder, especially

aggravated kidnapping, and tampering with the evidence. The trial court declared a mistrial.

Appellant was retried in January of 2008. At that trial, the State introduced

Appellant’s testimony from the original trial over objection of counsel for Appellant. The

trial court ruled that the former testimony was admissible. At the first trial, Appellant

testified that he received a refund check from Lane College and used that money to buy some

marijuana. On the day of the victim’s death, Appellant woke up late after Mr. McGee had

already left for school. At that time, the victim was asleep on the couch. Appellant walked

to a nearby convenience store to purchase some cigars and ran into Mr. McGee. Appellant

caught a ride to school with Mr. McGee, then rode back home. Appellant rolled a cigar and

went for a walk. When he returned to the residence, he saw the victim lying on the floor.

Appellant claimed that he was scared and went out the back door. Appellant then ran into

Mr. McGee, who told him to get into his car. When Appellant got in the car, he saw a .380

pistol on the seat. Appellant’s testimony essentially pointed the finger of guilt to Mr. McGee.

At the second trial, Appellant called two witnesses in his behalf. Deidre Robinson and

Arsenio Henderson testified that they spent the night at 324 Roland Avenue the night prior

to the victim’s death. They both recalled a short verbal altercation between Appellant and

the victim over the laundry. Neither Ms. Robinson nor Mr. Henderson felt that the argument

was a big deal. Mr. Henderson even testified that “they are roommates and they do this all

the time. I didn’t think nothing of it.”

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At the conclusion of all of the proof, the jury found Appellant guilty of second degree

murder and tampering with evidence. The jury deadlocked on the charge of especially

aggravated kidnapping and a mistrial was declared as to that charge.

At a sentencing hearing, the trial court sentenced Appellant to twenty-five years for

the second degree murder conviction and six years for the conviction for tampering with the

evidence. The trial court ordered the sentences to run concurrently, for a total effective

sentence of twenty-five years.

The trial court denied a motion for new trial and this appeal was initiated. On appeal,

Appellant has several complaints: (1) the trial court erred by allowing his former testimony

to be read into the record; (2) the evidence was insufficient to support the convictions; (3)

the trial court erred by excluding the picture and caption entitled “Armed and Dangerous”

from Mr. McGee’s MySpace page; and (4) the trial court gave Appellant an excessive

sentence.

Analysis

Appellant’s Prior Testimony as Evidence

Appellant complains on appeal that the trial court improperly allowed the State to

introduce Appellant’s testimony from the first trial in their case-in-chief. Specifically,

Appellant complains that the introduction of the testimony violates his constitutional rights

because he was “stripped” of the ability to decide whether to testify when the trial court

allowed the former testimony to be read into evidence. Appellant additionally argues that

the “former testimony” exception of Tennessee Rule of Evidence 804 does not apply to a

defendant. The State disagrees, citing Harrison v. United States, 392 U.S. 219 (1968).

Tennessee Rule of Evidence 801(c) defines hearsay as “a statement, other than one

made by the declarant while testifying at the trial or hearing, offered in evidence to prove the

truth of the matter asserted.” Hearsay statements are generally not allowed into evidence.

Tenn. R. Evid. 802. However, the Tennessee Rules of Evidence provide for exceptions to

the hearsay rule. See Tenn. R. Evid. 803 & 804. These exceptions have been carved out

because they “bear sufficient indicia of reliability and trustworthiness to warrant admission.”

State v. Henry, 33 S.W.3d 797, 802 (Tenn. 2000). One such exception when the declarant

is unavailable is that the declarant’s former testimony may be admissible. Tenn. R. Evid.

804(b)(1). This Court reviews a trial court’s ruling whether a witness is unavailable under

an abuse of discretion standard. State v. Summers, 159 S.W.3d 586, 596 (Tenn. Crim. App.

2004); Hicks v. State, 490 S.W.2d 174, 179 (Tenn. Crim. App. 1972).

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Unavailability of a witness is defined in Tennessee Rule of Evidence 804. It includes

instances in which the declarant:

(1) is exempted by ruling of the court on the grounds of privilege from

testifying concerning the subject matter of the declarant’s statement; or

(2) persists in refusing to testify concerning the subject matter of the

declarant’s statement despite an order of the court to do so; or

(3) demonstrates a lack of memory of the subject matter of the declarant’s

statement; or

(4) is unable to be present or to testify at the hearing because of the declarant’s

death or then existing physical or mental illness or infirmity;

(5) is absent from the hearing and the proponent of a statement has been

unable to procure the declarant’s attendance by process; or

....

A declarant is not unavailable as a witness if exemption, refusal, claim of lack

of memory, inability, or absence is due to the procurement or wrongdoing of

the proponent of a statement for the purpose of preventing the witness from

attending or testifying. Tenn. R. Evid. 804(a).

“Former testimony” is defined as:

Testimony given as a witness at another hearing of the same or a different

proceeding or in a deposition taken in compliance with law in the course of the

same or another proceeding, if the party against whom the testimony is now

offered had both an opportunity and a similar motive to develop the testimony

by direct, cross, or redirect examination.

Id. Former testimony admitted under Rule 804(b)(1) is substantive evidence. State v. Stacey

Philander Baldon, No. W2000-00524-CCA-R3-CD, 2001 WL 128586, at *5 (Tenn. Crim.

App., at Jackson, Feb. 12, 2001), perm. app. denied (Tenn. June 4, 2001). It is well-settled

that the “invocation of the privilege against self-incrimination renders a witness unavailable.”

State v. Howell, 868 S.W.2d 238, 250 (Tenn. 1993) (citing State v. Armes, 607 S.W.2d 234,

237 (Tenn. 1980)).

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The State cites Harrison v. United States, 392 U.S. 219 (1968), to support their

argument that Appellant’s testimony from his first trial is admissible herein. In Harrison,

the defendant was originally tried on a charge of felony murder. At his first trial, the

prosecution introduced three confessions allegedly made by defendant while in police

custody. After the admission of these confessions, the defendant took the stand and testified

to his own version of the events. The jury found the defendant guilty. On appeal, the

conviction was reversed when the court determined that the confessions admitted at trial had

been illegally obtained. Id. at 220. At a second trial, the prosecution did not admit

defendant’s confessions into evidence, but did read into evidence the defendant’s testimony

from his first trial. The defendant was convicted again and the conviction was affirmed on

appeal. Id. at 221. On appeal to the United States Supreme Court, the Court had to decide

whether the testimony from the defendant’s first trial was properly admitted against the

defendant at his second trial. The Court noted that it did not “question the general

evidentiary rule that a defendant’s testimony at a former trial is admissible in evidence

against him in later proceedings.” Id. at 222. In so doing, the Court explained,

[a] defendant who chooses to testify waives his privilege against compulsory

self-incrimination with respect to the testimony he gives, and that waiver is no

less effective or complete because the defendant may have been motivated to

take the witness stand in the first place only by reason of the strength of the

lawful evidence adduced against him.

Id. The Court then carved out a narrow exception to the general rule, noting:

Here, however, the petitioner testified only after the Government had illegally

introduced into evidence three confessions, all wrongfully obtained, and the

same principle that prohibits the use of confessions so procured also prohibits

the use of any testimony impelled thereby-the fruit of the poisonous tree, to

invoke a time-worn metaphor . . . .

Id.

Because the confessions had been illegally obtained, the Court determined that the

relevant question was no longer whether the defendant made a knowing decision to testify,

but rather focused on the motivation for the defendant’s testimony. Id. at 223. The Court

held that, if the defendant testified “in order to overcome the impact of confessions illegally

obtained and hence improperly introduced, then his testimony was tainted by the same

illegality that rendered the confessions themselves inadmissible.” Id. After stating the

general rule, the Court determined that the Government failed to demonstrate that the

defendant’s decision to testify at his first trial was not motivated by the introduction of the

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illegally obtained confessions and, therefore, reversed the defendant’s conviction. Id. at

224-226. Tennessee has cited Harrison with approval in several cases. See e.g., State v.

Valentine, 8112 S.W.2d 328, 332-33 (Tenn. 1995) (applying Harrison to prevent waiver of

review of search and seizure issues when the defendant testifies at trial); State v. Cazes, 875

S.W.2d 253, 266 (Tenn. 1994) (noting that per Harrison, “[a] defendant who chooses to

testify waives his privilege against compulsory self-incrimination with respect to the

testimony he gives.”).

In the case herein, Appellant testified at the first trial. That trial resulted in a mistrial.

During the second trial, the State attempted to call Appellant as a witness. The trial court

questioned Appellant, who made the decision not to testify in the second trial. As a result,

the trial court declared Appellant unavailable as a witness. The State was then permitted to

introduce Appellant’s testimony from the first trial under the former testimony exception to

the hearsay rule. The testimony was read into the record in front of the jury and certain

portions were redacted. At the first trial, unlike the defendant in Harrison, Appellant

testified of his own free will, not to explain illegally obtained incriminating evidence. In

fact, Appellant testified that he had no role in the murder of the victim and had not thrown

away any evidence of the crime. In the case herein, the trial court noted that Appellant

testified freely at the first trial. We agree with the State that the trial court properly admitted

the prior testimony. The State complied with the requirements of Tennessee Rule of

Evidence 804 to show that Appellant was unavailable and properly moved to introduce his

former testimony. Appellant’s former testimony was properly admitted.

Introduction of MySpace Page as Impeachment Evidence

Appellant next complains on appeal about the trial court’s decision to exclude the

introduction of Mr. McGee’s MySpace internet page during cross-examination. Appellant

filed a motion prior to trial to allow the introduction of a picture of Mr. McGee from his

MySpace page that contained a picture of Mr. McGee with the caption “armed and dangerous

. . . I repeat armed and dangerous.” Counsel for Appellant sought to use the information in

an attempt to impeach the credibility of Mr. McGee. On appeal, Appellant specifically

argues that the trial court abused its discretion and the exclusion of the evidence amounted

to “an unreasonable restriction on Appellant’s right to cross-examine” the witness in order

to show his lack of credibility. The State disagrees, stating that the trial court properly

utilized Rule 608(b) of the Tennessee Rules of Evidence and determined that the information

had no probative value and would only serve to confuse the jury.

Tennessee Rule of Evidence 608(b) allows a party to ask a witness about specific

instances of conduct that are probative of the witness’s untruthfulness in order to attack the

credibility of the witness. The trial court must first determine that the alleged conduct has

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probative value and that there is a reasonable factual basis for the inquiry. See Tenn. R. Evid.

608(b)(1). The trial court must also determine that “the probative value of the evidence,

supported by specific facts and circumstances, substantially outweighs its prejudicial effect.”

Tenn. R. Evid. 608(b)(2). The trial court’s ruling will only be disturbed upon a finding of

an abuse of discretion. See State v. Roberts, 943 S.W.2d 403, 408 (Tenn. Crim. App. 1996),

overruled on other grounds by State v. Ralph, 6 S.W.3d 251, 257 (Tenn. 1999).

At trial, during the cross-examination of Mr. McGee, counsel for Appellant attempted

to enter into evidence a print out from Mr. McGee’s MySpace webpage that showed a picture

of Mr. McGee with the caption “armed and dangerous.” Counsel for Appellant argued that

the caption impeached Mr. McGee’s testimony in which he claimed that he was afraid of

Appellant when Appellant pointed a gun at him. Further, counsel for Appellant argued that

the statement impeached Mr. McGee’s veracity as a witness because he admitted at the first

trial that he was not “armed and dangerous,” he only used the statement on his webpage to

further his career as a rap artist. The trial court had ruled on the matter at the first trial,

deeming the picture and caption inadmissible. The trial court reviewed its ruling from the

first trial and again deemed the matter inadmissible. The trial court determined that the

probative value of the evidence did not substantially outweigh its prejudicial effect. Further,

the trial court did not “believe that [t]his goes to the witness’ character for truthfulness or

untruthfulness.”

The trial court conducted a jury out hearing on the matter and determined that the

evidence was not admissible because it was not probative. We determine that the trial court

followed the proper procedure and did not abuse its discretion. The statements of a witness

on a personal webpage designed to further a musical career are clearly unrelated to any

particular instance of conduct that would show the witness’s character or reputation for

truthfulness as a witness. The trial court properly determined that the evidence was irrelevant

and that its probative value was not outweighed by the risk of undue prejudice. This issue

is without merit.

Sufficiency of the Evidence

Appellant argues that the evidence is insufficient to support his convictions for second

degree murder and tampering with the evidence. Specifically, Appellant claims that the

testimony of Mr. McGee and Mr. Futtrell was not credible and that he could not be convicted

of tampering with evidence because there was no official investigation pending at the time

Appellant “allegedly” threw items out of the window of Mr. McGee’s car.

When a defendant challenges the sufficiency of the evidence, this Court is obliged to

review that claim according to certain well-settled principles. A verdict of guilty, rendered

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by a jury and “approved by the trial judge, accredits the testimony of the” State’s witnesses

and resolves all conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W.2d

253, 259 (Tenn. 1994); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the

accused is originally cloaked with a presumption of innocence, the jury verdict of guilty

removes this presumption “and replaces it with one of guilt.” State v. Tuggle, 639 S.W.2d

913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with the defendant to

demonstrate the insufficiency of the convicting evidence. Id. The relevant question the

reviewing court must answer is whether any rational trier of fact could have found the

accused guilty of every element of the offense beyond a reasonable doubt. See Tenn. R. App.

P. 13(e); Harris, 839 S.W.2d at 75. In making this decision, we are to accord the State “the

strongest legitimate view of the evidence as well as all reasonable and legitimate inferences

that may be drawn therefrom.” See Tuggle, 639 S.W.2d at 914. As such, this Court is

precluded from reweighing or reevaluating the evidence when considering the convicting

proof. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews,

805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Moreover, we may not substitute our own

“inferences for those drawn by the trier of fact from circumstantial evidence.” Matthews,

805 S.W.2d at 779. Further, questions concerning the credibility of the witnesses and the

weight and value to be given to evidence, as well as all factual issues raised by such

evidence, are resolved by the trier of fact and not the appellate courts. State v. Pruett, 788

S.W.2d 559, 561 (Tenn. 1990).

A conviction for second degree murder requires proof that the defendant unlawfully

and knowingly killed another. T.C.A. §§ 39-13-201, -210(a). 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. T.C.A. § 39-11-302(b). Intent, which can seldom be

proven by direct evidence, may be deduced or inferred by the trier of fact from the character

of the assault, the nature of the act and from all the circumstances of the case in evidence.

State v. Inlow, 52 S.W.3d 101, 104-05 (Tenn. Crim. App. 2000); State v. Holland, 860

S.W.2d 53, 59 (Tenn. Crim. App. 1993). Because second degree murder is a “result-of-

conduct” offense, a defendant is guilty if he “acts intentionally, meaning that he acted with

a conscious objective or desire to cause the death of the alleged victim.” State v. Page, 81

S.W.3d 781, 787-88 (Tenn. Crim. App. 2002).

The proof at trial, in a light most favorable to the State, indicated that the victim was

unarmed at the time he was shot multiple times. There was testimony from Mr. McGee that

Appellant failed to render aid to the victim even after he claimed he knew the victim was

shot. Further, there was testimony and cell phone records that indicated someone,

presumable Appellant, called Mr. Parks from Mr. McGee’s cell phone to report that the

victim had “two bullets in him.” Mr. Futtrell also testified that Appellant confessed to the

murder of the victim while the two were incarcerated in the Shelby County Jail. The jury is

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responsible for accessing the credibility of the witnesses. Pruett, 788 S.W.2d at 561. The

evidence was sufficient to support a conviction for second degree murder.

The elements of tampering with evidence are found at Tennessee Code Annotated

section 39-16-503. Tennessee Code Annotated section 39-16-503 states, “(a) It is unlawful

for any person, knowing that an investigation or official proceeding is pending or in progress,

to: (1) Alter, destroy, or conceal any record, document or thing with intent to impair its

verity, legibility, or availability as evidence in the investigation or official proceeding . . . .”

At trial, there was testimony that Appellant was in possession of the .380 caliber pistol

that was used to shoot the victim, and that pistol was never recovered by police. We

determine that the evidence was sufficient to sustain the conviction for tampering with the

evidence, i.e., the pistol used to kill the victim. This issue is without merit.

Sentencing

Appellant complains that the trial court imposed an excessive sentence. Specifically,

Appellant complains that the trial court improperly applied enhancement factors to give him

the maximum possible sentence for second degree murder. Appellant does not content that

there is no evidence to support the enhancement factors, i.e., that Appellant was on judicial

diversion at the time of the offense, a gun was used in the commission of the offense, and

Appellant has a history of criminal behavior. Appellant essentially complains about the

weight assigned to the enhancement factors by the trial judge.

“When reviewing sentencing issues . . . , the appellate court shall conduct a de novo

review on the record of the issues. The review shall be conducted with a presumption that

the determinations made by the court from which the appeal is taken are correct.” T.C.A. §

40-35-401(d). “However, the presumption of correctness which accompanies the trial court’s

action is conditioned upon the affirmative showing in the record that the trial court

considered the sentencing principles and all relevant facts and circumstances.” State v.

Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). We are to also recognize that the defendant bears

“the burden of demonstrating that the sentence is improper.” Ashby, 823 S.W.2d at 169.

In making its sentencing determination, a trial court, at the conclusion of the

sentencing hearing, first determines the range of sentence and then determines the specific

sentence and the appropriate combination of sentencing alternatives by considering: (1) the

evidence, if any, received at the trial and the sentencing hearing; (2) the presentence report;

(3) the principles of sentencing and arguments as to sentencing alternatives; (4) the nature

and characteristics of the criminal conduct involved; (5) evidence and information offered

by the parties on the enhancement and mitigating factors; (6) any statistical information

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provided by the administrative office of the courts regarding sentences for similar offenses,

(7) any statements the defendant wishes to make in the defendant’s behalf about sentencing;

and (8) the potential for rehabilitation or treatment. T.C.A. §§ 40-35-210(a), (b), -103(5);

State v. Williams, 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995). When imposing the

sentence within the appropriate sentencing range for the defendant:

[T]he court shall consider, but is not bound by, the following advisory

sentencing guidelines:

(1) The minimum sentence within the range of punishment is the sentence that

should be imposed, because the general assembly set the minimum length of

sentence for each felony class to reflect the relative seriousness of each

criminal offense in the felony classifications; and

(2) The sentence length within the range should be adjusted, as appropriate, by

the presence or absence of mitigating and enhancement factors set out in §§

40-35-113 and 40-35-114.

T.C.A. § 40-35-210(c) (2006).

At the outset we note that Appellant committed the criminal offenses at issue in

October of 2006, therefore, the 2005 amendments to the sentencing act apply to our review

of his sentencing. The 2005 amendments to the sentencing act made the application of the

enhancement factors advisory in nature. See T.C.A. § 40-35-114; State v. Jackie Lynn Gray,

No. M2007-02360-CCA-R3-CD, 2008 WL 2579175, at *5 (Tenn. Crim. App., at Nashville,

June 28, 2008), perm. app. denied, (Tenn. Dec. 29, 2008); State v. Troy Sollis, No. W2007-

00688-CCA-R3-CD, 2008 WL 1931688, at *3 (Tenn. Crim. App., at Jackson, May, 2, 2008).

In fact, “[T]he 2005 amendments [to the sentencing act] deleted as ground for appeal a claim

that the trial court did not weigh properly the enhancement and mitigating factors.” State v.

Carter, 254 S.W.3d 335, 344 (Tenn. 2008). After a review of the transcript from the

sentencing hearing, it is clear that the trial court considered the nature and characteristics of

the criminal conduct involved, Appellant’s history and background, the mitigating and

enhancement factors, and the principles of sentencing. See id. at 345-46. The record

supports the existence of each applied enhancement factor. The trial court’s imposition of

a twenty-five year sentence for the felony of second degree murder is affirmed. This issue

is without merit.

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Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed.

___________________________________

JERRY L. SMITH, JUDGE

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