State of Tennessee v. James Moore

05/07/2021

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs April 27, 2021, at Knoxville

STATE OF TENNESSEE v. JAMES MOORE

Appeal from the Criminal Court for Shelby County

Nos. 19-05109, C1907079 J. Robert Carter, Jr., Judge

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No. W2020-00641-CCA-R3-CD

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The defendant was convicted by a Shelby County jury of attempted first-degree murder

and employing a firearm during the commission of a dangerous felony. As a result of his

convictions, the defendant received an effective sentence of twenty-six years. On appeal,

the defendant contends the evidence was insufficient to establish his identity as the shooter

and insufficient to support a finding of premeditation. Upon our thorough review of the

record, the applicable law, and the briefs, we affirm the jury’s verdict.

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

J. ROSS DYER, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and

TIMOTHY L. EASTER, JJ., joined.

Tony N. Brayton, Assistant Public Defender, Memphis, Tennessee (on appeal) and Andy

Reid and Rob Felkner, Assistant Public Defenders, Memphis, Tennessee (at trial), for the

appellant, James Moore.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant

Attorney General; Amy P. Weirich, District Attorney General; and Matt McLeod and

Reagan Murphy, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

Facts and Procedural Background

In March 2019, the defendant, James Moore, and the victim, Antwan Parker, had

been friends for nearly fifteen years. Unfortunately, about that time, they had a “falling

out” over the defendant’s use of the victim’s vehicle. From the victim’s perspective, the

matter was resolved and there was no longer an issue between the two after the initial

argument on the subject. However, they did not speak to one another after the

disagreement.

In the early morning hours of May 2, 2019, both men were at the same nightclub.

While the two made eye contact that evening, they did not speak and did not interact with

one another while in the nightclub. Around 2:00 a.m., as the club was closing for the night,

the victim was leaving with his friends when he ran into Gladys Manuel. After speaking

with Ms. Manuel for a few minutes outside of the club, the victim offered to walk her to

her car.

As the victim and Ms. Manuel approached her vehicle, the victim heard someone

say, “What’s up?” Without looking to see who was speaking to him, the victim responded

and kept walking towards Ms. Manuel’s vehicle. The victim then heard the same voice

repeat the question, so he turned to see who was speaking to him.

When he turned, the victim discovered the defendant was standing just a few feet

away from him. The victim immediately informed the defendant, “I ain’t got time for that.

I was telling him I ain’t got time for that, I threw my hands up, I ain’t got time for that.”

The next thing the victim knew, the defendant shot him. According to the victim, the

defendant was no more than four feet away from him. The victim was unsure how many

times the defendant shot at him, describing the event as follows:

[i]t was so fast to the point when I was looking at him, you know, I seen the

fire come out of the gun, I didn’t know that I was getting hit at the moment.

I was really kind of shocked when I was hearing the gun shots. But I was

kind of shocked looking at him shooting me[,] and I fell backwards on the

ground and I turned myself around, he was still shooting.

By the end of the incident, the victim had been shot six times by the defendant. The victim

also testified that no items were taken from him prior to, during, or after the defendant shot

him. As a result of the defendant’s attack, the victim endured two surgeries, spent over a

month in the hospital and/or a rehabilitation facility, has extreme pain daily, still has a

bullet in his back, and is paralyzed.

A few days after the shooting, the victim, who was recovering in the hospital, was

contacted by law enforcement. The victim informed the officers that the defendant was the

individual who shot him. Later, the victim identified the defendant as the shooter from a

photo array as well.

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The Crime Scene Unit was called to the scene the night of the shooting. As they

searched the scene, the officers discovered five nine-millimeter shell casings, one spent

projectile, and numerous bullet fragments; however, no weapons were found at the scene.

In addition to the shell casings and fragments, the officers also located the victim’s jacket

which still had $20.16 in the pocket.

At the conclusion of the State’s proof, and following a full Momon colloquy, the

defendant elected not to testify and chose not to present any proof. Based on this evidence,

the jury found the defendant guilty of attempted first-degree murder and employing a

firearm during the commission of a dangerous felony. After a sentencing hearing, the trial

court sentenced the defendant to twenty years for attempted first-degree murder and six

years for employing a firearm during the commission of a dangerous felony to be served

consecutively for an effective sentence of twenty-six years’ confinement. The defendant

filed a motion for new trial which, after a hearing, was denied by the trial court. This timely

appeal followed.

Analysis

On appeal, the defendant contends the evidence is not sufficient to support the jury’s

verdict. More specifically, the defendant insists the State failed to prove his identity as the

shooter and failed to establish, if he was the shooter, that the defendant acted with

premeditation. The State submits that the victim’s testimony is legally sufficient to

establish the defendant’s identity as the shooter and that the evidence of premeditation is

legally sufficient. After our thorough review of the record and the applicable law, we agree

with the State and affirm the defendant’s convictions.

When the sufficiency of the evidence is challenged, the relevant question of the

reviewing 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); see also Tenn.

R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury

shall be set aside if the evidence is insufficient to support the findings by the trier of fact

of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn.

1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). All questions

involving the credibility of witnesses, the weight and value to be given the evidence, and

all factual issues are resolved by the trier of fact. See State v. Pappas, 754 S.W.2d 620,

623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the trial judge,

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

the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our Supreme

Court has stated the rationale for this rule:

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This well-settled rule rests on a sound foundation. The trial judge and

the jury see the witnesses face to face, hear their testimony and observe their

demeanor on the stand. Thus, the trial judge and jury are the primary

instrumentality of justice to determine the weight and credibility to be given

to the testimony of witnesses. In the trial forum alone is there human

atmosphere and the totality of the evidence cannot be reproduced with a

written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 212 Tenn. 464,

370 S.W.2d 523 (1963)). “A jury conviction removes the presumption of innocence with

which a defendant is initially cloaked and replaces it with one of guilt, so that on appeal a

convicted defendant has the burden of demonstrating that the evidence is insufficient.”

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

Guilt may be found beyond a reasonable doubt where there is 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 standard of review for

sufficiency of the evidence “‘is the same whether the conviction is based upon direct or

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

State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). The jury as 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. Campbell, 245 S.W.3d 331,

335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)).

Moreover, the jury determines the weight to be given to circumstantial evidence and the

inferences to be drawn from this evidence, and the extent to which the circumstances are

consistent with guilt and inconsistent with innocence are questions primarily for the

jury. Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d 646, 662 (Tenn.

2006)). This Court, when considering the sufficiency of the evidence, shall not reweigh

the evidence or substitute its inferences for those drawn by the trier of fact. Id.

“The identity of the perpetrator is an essential element of any crime.” Rice, 184

S.W.3d at 662 (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. State v. Cribbs, 967 S.W.2d 773, 779 (Tenn. 1998). The identity of the

defendant as the perpetrator may be established by direct evidence, circumstantial

evidence, or a combination of the two. Thompson, 519 S.W.2d at 793. The identification

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

relevant proof. State v. Thomas, 158 S.W.3d 361, 388 (Tenn. 2005) (citing State v.

Strickland, 885 S.W.2d 85, 87 (Tenn. Crim. App. 1993)). As relevant in this case, “the

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testimony of a victim, by itself, is sufficient to support a conviction.” Strickland, 885

S.W.2d at 87 (citing State v. Williams, 623 S.W.2d 118, 120 (Tenn. Crim. App. 1981)).

Here, the victim testified he saw and made eye contact with the defendant while the

two were inside the club. Then, as the victim was walking Ms. Manuel to her car, the

victim heard someone call out to him twice. When he turned to look, the defendant was

standing no more than four feet from the victim. The defendant then shot the victim six

times. When questioned by police, the victim informed them that the defendant had shot

him. The victim later identified the defendant as the shooter from a photo array. Finally,

at trial and while under oath, the victim testified that the defendant was the individual who

shot him. Based on the law cited supra and the numerous identifications made by the

victim, the evidence is legally sufficient to establish the defendant’s identity as the shooter.

Next, the defendant contends the evidence is insufficient to establish that he acted

with premeditation. First-degree murder is the unlawful, intentional, and premeditated

killing of another. Tenn. Code Ann. §§ 39-13-201 (2018), -202(a)(1). In the context of

first-degree murder, intent is shown if the defendant has the conscious objective or desire

to cause the victim’s death. State v. Page, 81 S.W.3d 781, 790-91 (Tenn. Crim. App.

2002); Tenn. Code Ann. § 39-11-106(a)(18) (2019) (defining intentional as the “conscious

objective or desire to engage in the conduct or cause the result”). A premeditated act is

one which is

done after the exercise of reflection and judgment. “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 preexist 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. § 39-13-202(d). The question of whether a defendant acted with premeditation is a

question of fact for the jury to be determined from all of the circumstances surrounding the

killing. State v. Davidson, 121 S.W.3d 600, 614 (Tenn. 2003). Proof of premeditation

may be shown by direct or circumstantial evidence. State v. Brown, 836 S.W.2d 530, 541

(Tenn. 1992). As a result, the jury “may infer premeditation from the manner and

circumstances of the killing.” State v. Jackson, 173 S.W.3d 401, 408 (Tenn.

2005); see State v. Vaughn, 279 S.W.3d 584, 595 (Tenn. Crim. App. 2008). Some facts

which may be indicative of the existence of premeditation include the use of a deadly

weapon on an unarmed victim, the shooting of the victim after he had turned to retreat or

escape, the lack of provocation on the part of the victim, the defendant’s declarations of

his intent to kill, and the defendant’s failure to render aid to the victim. See, e.g., State v.

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Bland, 958 S.W.2d 651, 660 (Tenn. 1997), cert. denied, 523 U.S. 1083 (1998); State v.

Martin, 702 S.W.2d 560, 562-63 (Tenn. 1985), overruled on other grounds; Brown, 836

S.W.2d at 543; State v. Fugate, 776 S.W.2d 541, 545 (Tenn. Crim. App. 1988).

A defendant commits criminal attempt when he acts “with the kind of culpability

otherwise required for the offense . . . [and] [a]cts 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).

Viewed in the light most favorable to the State, the evidence shows that the

defendant and the victim had a disagreement concerning the defendant’s use of the victim’s

car about a month prior to the shooting and that the two individuals had not spoken to one

another since their “falling out.” Then, on the night of the shooting, the defendant, who

was armed, approached the unarmed victim. Despite the fact the victim did nothing to

provoke the defendant and actually held up his hands and told the defendant he did not

have time for “that,” the defendant shot the victim six times including several times after

the victim had fallen to the ground. The defendant then left the scene without rendering

aid to his victim. As a result of being shot by the defendant, the victim required two

surgeries, still has a bullet in his back, still has extreme pain, and is paralyzed. Based on

the proof presented, a rational jury could conclude from the defendant’s unprovoked use

of a deadly weapon on an unarmed victim, the infliction of multiple gunshot wounds, and

the defendant’s failure to render aid to his victim that the defendant’s actions were

premeditated. Accordingly, we affirm the jury’s verdict.

Conclusion

Based on the foregoing, we affirm the judgments of the trial court.

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J. ROSS DYER, JUDGE

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