The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
AUGUST SESSION, 1999
FILED
October 6, 1999
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9809-CC-00287
Cecil Crowson, Jr.
)
Appellate Court Clerk
Appellee, )
)
) MADISON COUNTY
VS. )
) HON. WHIT LAFON,
KEL VIN LE E YO UNG , JR., ) JUDGE
)
Appe llant. ) (First Degree M urder)
ON APPEAL FROM THE JUDGMENT OF THE
CIRCUIT COURT OF MADISON COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
BILL ANDERSON, JR. PAUL G. SUMMERS
142 North Third Street, Third Floor Attorney General and Reporter
Memphis, TN 38103
J. ROSS DYER
Assistant Attorney General
425 Fifth Avenu e North
Nashville, TN 37243
JERRY W OODALL
District Attorney General
JAMES W. THOMPSON
Assistant District Attorney General
Lowell Thomas State Office Building
Jackson, TN 38301
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE
OPINION
The Defendant, Kelvin Lee Young, Jr., was tried before a jury and convicted
of first degree mu rder. 1 He was sentenced to imp risonm ent for life . He ap peals
as of right, arguing that the evidence presented at trial is ins ufficien t to sup port his
conviction . We disagree and affirm the judgm ent of the tria l court.
Tennessee Rule of Appellate Procedure 13(e) prescribes that
“[f]indings of guilt in criminal actions whether by the trial court or jury shall be set
aside if the evidence is insufficient to support the finding s by the trier of fac t of guilt
beyond a reasona ble doubt.” Tenn . R. App. P. 13(e). In addition, because
conviction by a trier of fact destroys the presumption of innocence and imposes
a presumption of guilt, a convicted criminal defendant bears the burden of
showing that the evid ence w as insufficie nt. McBe e v. State, 372 S.W.2d 173, 176
(Tenn. 1963); see also State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992) (citing
State v. Grace, 493 S.W .2d 474, 476 (Tenn. 1976), and State v. Brown, 551
S.W.2d 329, 33 1 (Ten n. 1977 )); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.
1982); Holt v. State , 357 S.W .2d 57, 61 (T enn. 1962 ).
In its review of the evidence, an appellate court must afford the State “the
strongest legitim ate view of the e videnc e as w ell as all reaso nable and legitim ate
inferences that ma y be draw n therefro m.” Tug gle, 639 S.W.2d at 914 (citing State
v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)). The court may not “re-weigh or
re-evalua te the evidence” in the reco rd below . Evans, 838 S.W.2d at 191 (citing
1
Tenn. Code Ann. § 39-13-202.
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Cabbage, 571 S.W .2d at 836 ). Likewise, shou ld the reviewing co urt find particular
conflicts in the trial testimony, the cou rt must resolve the m in favor of the jury
verdict or trial co urt judgm ent. Tug gle, 639 S.W.2d at 914.
The State’s proof showed that the Defe ndan t and h is co-de fenda nt, Ce dric
White, were upset with the victim because the previous evening the victim had
robbed co-defendant White. White testified that the victim had taken his jewelry,
money and dru gs. W hite had o btained the drug s from th e Defe ndant fo r the
purpose of resale . When W hite told the Defendant about the robbery, the
Defen dant told W hite, “Rob bing you is just like robb ing me .”
Wh ite testified that the Defen dant arm ed hims elf with a 9 mm . sem i-
autom atic pistol and provided White with a .380 pistol. Thus armed, the two men
proceeded in the Defe ndan t’s vehic le to the A llenton Heigh ts hou sing co mple x in
Jackson, to look for the victim. They found the victim walking near a parking lot.
Wh ite testified that he shot the victim in the leg and the victim began running and
slid under a parked van seeking cover. The Defendant had also fired his gun at
the victim. The Defendant’s gun had then jammed but the Defe ndant w as able to
get it unjammed. White testified that when the victim crawled under the van,
Wh ite tried to persu ade the Defen dant to leave because they had “already done
enough,” He said the Defe ndant re spond ed “ma n, he ain’t d ead, he ain’t dead .”
The Defendant immediately ran over to the van under which the victim was laying,
got down on the ground and fired several shots at the victim. T he Defen dant next
went around to the other side of the van and shot again. The two men then fled
the scene.
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Another witness, Carna Bruce, testified th at she was a t her m other’s
apartment in Allenton Heights when she heard gunshots. She immediately went
outside where she saw the victim fall to the ground and crawl under a van. She
then saw the Defen dant on the grou nd sho oting up u nder the van. She saw
Ced ric Wh ite standing near the van. She said she heard multiple shots and that
the Defendant was the only one on the ground by the van. On cross-examination,
this witness stated that sh e did n ot actu ally see the gun in the Defendant’s hand,
but that she saw the Defendant on the ground looking up under the van while the
shots were being fired.
Dr. J.T. Franscisco performed the autopsy on the victim. He stated that the
cause of death was multiple gunshot wounds. He described multiple bullet
wounds to the body of the victim, so numerous that he could not tell exactly how
many times the victim had been s hot. Although several of the wounds would have
been life-threaten ing, one b ullet entere d at the ba ck of the victim’s head and
exited out of the front of the head . That bullet tore the b rain stem an d in Dr.
Fran scisco ’s opinion, this wound was “an instantly fatal wound. . . life would be
extinguished very rapidly.” He sta ted tha t after this wound, the victim would not
have been able to run, limp or crawl under a van.
Not surprisingly, the jury returned a verdict finding the Defendant guilty of
the first degree premeditated murder of the victim. Although the Defendant
argues that the evidence presented is insufficient to support the finding by the jury
of guilt beyon d a rea sona ble do ubt, we conc lude th at the e videnc e is clea rly
sufficient.
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The Defendant argues that the conviction cannot stand because the verdict
is based on the uncorroborated testimony of the co-defendant, Cedric White.
Although the Defendant acknowledges that White’s testimony was corroborated
to a large ex tent by the tes timon y of Ca rna B ruce, h e argu es tha t Ms. B ruce’s
testimony was so inconsistent and contradictory that it must be totally disregarded.
Of cours e, the ru le is well established in Tennessee that a defendant cannot
be convicted on the uncorro borated testimon y of an ac comp lice. See Sherrill v.
State, 321 S.W.2d 811, 814 (Tenn. 1959). To corroborate the testimony of an
accomplice, “there should be some fact testified to, entirely independent of the
acco mplic e’s evidence, which, taken by itself, leads to the inference, not only that
a crime has been committed but also that the defendant is implicated in it.” Clapp
v. State, 30 S.W.214, 217 (Ten n. 1895). The corroboration must consist of some
fact or circumstance which affects the identity of the defen dant. In add ition, it is
for the jury to determine the degree of evidence necessary to corroborate the
testimony of an accomplice, and it is sufficient “if there is some other evidence
fairly tending to conne ct the defenda nt with the com mission of the c rime.” Id.
As the Defendant concedes, the testimony of Ms. Bruce clearly corroborates the
testimony of co-defendant and accomplice Cedric White.
Although the Defendant argues that Ms. Bruce’s testimony is entitled to no
credibility and that the tes timon y shou ld be re jected in its entir ety, we again point
out that this court may not re-weigh or re-evalua te eviden ce in the re cord. As we
have also note d, if there are conflicts in the trial testimony, we must resolve them
in favor of the jury verdict.
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Because we find no merit to the Defendant’s appeal, the judgment of the
trial court is affirmed.
____________________________________
DAVID H. WELLES, JUDGE
CONCUR:
___________________________________
JERRY L. SMITH, JUDGE
___________________________________
JAMES CURWOOD WITT, JR. JUDGE
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