State of Tennessee v. Christopher Lee Davis

IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
June 3, 2011 Session

STATE OF TENNESSEE v. CHRISTOPHER LEE DAVIS

Appeal by Permission from the Court of Criminal Appeals
Criminal Court for Trousdale County
No. 07-55 John D. Wootten, Jr., Judge

No. M2008-01216-SC-R11-CD - Filed October 17, 2011

The defendant was convicted of aggravated robbery, carjacking, attempt to commit especially
aggravated kidnapping, and attempt to commit first degree murder. At issue is the legality
of the stop of a vehicle in which the defendant was a passenger, and whether the evidence
is sufficient to support the defendant’s conviction for attempt to commit first degree
murder. We conclude that reasonable suspicion existed to permit the officers to conduct a
brief investigatory stop of the car in which the defendant was a passenger. Further, we find
there was sufficient evidence for the jury to conclude that the defendant and his fellow
perpetrator planned and intended to kill the victim, and that the defendant’s conduct,
considered in light of the totality of the circumstances, constituted a substantial step
sufficient to support a conviction for attempted murder. The judgment of the Court of
Criminal Appeals is affirmed.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal
Appeals Affirmed; Case Remanded to the Criminal Court for Trousdale County

S HARON G. L EE , J., delivered the opinion of the Court, in which C ORNELIA A. C LARK,
C.J., JANICE M. H OLDER, G ARY R. W ADE, and W ILLIAM C. K OCH, J R., JJ., joined.

Comer L. Donnell, District Public Defender, William K. Cather, Assistant District Public
Defender, Lebanon, Tennessee, for the appellant, Christopher Lee Davis.

Robert E. Cooper, Jr., Attorney General and Reporter; Gordon W. Smith, Associate Solicitor
General; Benjamin A. Ball, Assistant Attorney General, Tom P. Thompson, District Attorney
General; Jason L. Lawson, Assistant District Attorney General, for the appellee, State of
Tennessee.
 OPINION

Factual and Procedural Background

On June 12, 2007, the victim, Glen McDaniel, drove his black 2001 Chevrolet Monte
Carlo into a carwash bay in Hartsville, Tennessee. While Mr. McDaniel was washing his car,
he saw a gold Nissan Maxima pull into the carwash and noticed that the two men in the back
of the Maxima were staring at him. Mr. McDaniel continued washing his car until he was
confronted by two African-American men wearing bandanas1 over their faces who entered
his carwash bay from opposite sides. The men wore red shirts and red hats, and one of them
had a hat with a depiction of a $100 bill embroidered on it. Mr. McDaniel described one of
them as approximately six feet, three or four inches tall and heavy set with dark skin. The
other man, whom Mr. McDaniel identified at trial as being the defendant Christopher Lee
Davis (“Defendant”), was nearly the same height but thinner and with a lighter complexion.

The larger man walked up to Mr. McDaniel, pointed a pistol at his chest, and told him
to get into the Monte Carlo. Mr. McDaniel complied because he was afraid the man would
shoot him if he refused. The man with the pistol got in the passenger seat and kept his gun
pointed at Mr. McDaniel the entire time they were in the Monte Carlo. Defendant got in the
back seat behind Mr. McDaniel and kept a grip on Mr. McDaniel’s shoulders. The men
asked for $800, and Mr. McDaniel replied that he did not have that much money on him and
that he did not carry a wallet, but did have an ATM debit card. The men ordered him to drive
across the street to an ATM.

The gunman walked Mr. McDaniel up to the ATM, and Defendant held his hand over
one of the ATM video cameras. Defendant told Mr. McDaniel to get a receipt so they could
make sure that he had withdrawn all of the money in his checking account. Mr. McDaniel
completed the ATM withdrawal and gave the gunman the money and the receipt.

All three got back into the Monte Carlo, and Mr. McDaniel drove back to the
carwash. As they approached, they saw Lacy Smotherman, an acquaintance of Mr.
McDaniel, sitting in a parked car at the carwash, so the men told Mr. McDaniel to drive
down the street. He did, and when they turned the car around and returned to the carwash,
Ms. Smotherman was gone. Mr. McDaniel pulled his car into one of the carwash bays, and
the men ordered him to get out of the car.

1
In his statement to the police given the night of the robbery, Mr. McDaniel said that both men were
wearing red bandanas. At trial, he stated that he might have been mistaken about the color of one of the
bandanas and that it was possible that one man was wearing a red bandana and the other was wearing a black
bandana.

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 Defendant pushed Mr. McDaniel against one of the walls in the carwash bay. Mr.
McDaniel asked Defendant to take his car and leave him at the carwash, but Defendant
refused, saying, “no, you’re going to go with us.” Mr. McDaniel testified that at this point,
“I thought I was dead to be honest with you.” He was standing with his chest pressed against
the wall and Defendant was trying to pull his hands behind his back. Mr. McDaniel looked
over his shoulder and saw that Defendant had a roll of black duct tape. Mr. McDaniel
testified that “I yanked my hands right back up . . . ‘cause I knew, you know, if I was duct
taped I was done for.” He struggled with Defendant, who shoved his face into the brick wall,
injuring his nose and face, and hit him in the eye. Defendant said, “get the gun, we’re going
to shoot this motherfucker right here.” Mr. McDaniel testified that during the incident
Defendant appeared to be the one in control of the situation, giving orders and instructions
to the other man.

Mr. McDaniel said that at this point, “I figured if I was going to get shot, I might as
well try to run.” He broke free from Defendant’ grasp and ran toward a nearby
restaurant. Defendant chased after him. The restaurant was closed. Mr. McDaniel ran
around the side and headed for a gas station. He came to a steep embankment and jumped
down the slope into the ditch. As he came over the other side and continued running toward
the gas station, Mr. McDaniel saw his Monte Carlo pull out of the carwash. He also saw a
black Chevrolet Impala pulling out at the same time. Mr. McDaniel reached the counter
inside the gas station, told the attendant to call the police because he had just been carjacked
and “those guys are trying to kill me,” and collapsed from exhaustion. The attendant revived
him, and the Sheriff’s Department arrived a few minutes later. That night, Mr. McDaniel
provided a written statement to law enforcement officers describing the incident.

The next day, Detective Chris Tarlecky of the Sumner County Sheriff’s Department
received information from Trousdale County law enforcement to “be on the lookout”
(“BOLO”) for the suspects in the carjacking and robbery. The BOLO dispatch contained the
basic facts of the incident, described the stolen vehicle as a 2001 black Monte Carlo with
custom wheels, provided a general description of the suspects, and identified the suspects’
vehicle as a gold Maxima. Later that day the abandoned Monte Carlo was discovered at the
Bledsoe Creek boat dock. Detective Tarlecky and another Sumner County Sheriff’s
Department officer drove to the boat dock.

Justin Scruggs, a friend of Mr. McDaniel, first discovered the Monte Carlo as he and
some relatives were driving by the boat dock. Mr. Scruggs, his mother Tammy Scruggs
Reed, and his uncle Jerry Scruggs pulled into the boat dock area and then called the Sumner
and Trousdale County Sheriff’s Departments. Mr. McDaniel was notified that his car had
been found, and he, his mother, and his girlfriend also drove to the boat dock area to identify
his car. Detective Tarlecky and the second Sumner County officer arrived in unmarked Ford

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Crown Victorias. Additionally, Trousdale County Sheriff Ray Russell and Detective David
Winnett arrived on the scene shortly thereafter, driving another unmarked Crown
Victoria. Detective Tarlecky testified that the stolen Monte Carlo’s doors were locked, but
that he could see that the CD player had been removed from the dashboard. He also observed
that the Monte Carlo’s wheels, which were custom after-market wheels that he valued at
around $2,000, were still on the car and that the car contained several other potentially
valuable items. Mr. McDaniel examined his car and confirmed that the CD player had been
ripped out of the dashboard and that his rear stereo amplifier was also missing.

Detective Tarlecky stated that as they were inspecting the stolen car, he and the other
officers observed a white Crown Victoria drive slowly by the boat dock and begin to make
a right turn into the parking area. Detective Tarlecky could see the driver and passenger,
who were African-American males, and he testified that “their eyes opened as big as saucers
when they saw us and the vehicle just jerked back off on to . . . the roadway.” He stated that
the turn back on the road “was a startled movement. They had looked down and saw us and
they abruptly turned back . . . It caught our attention the way they did it.” The white Crown
Victoria continued across the Bledsoe Creek bridge, then turned into a church parking lot,
turned around, and slowly drove back by the boat dock area again. Detective Tarlecky got
in his vehicle, activated its emergency lights, and initiated a stop of the Crown
Victoria. Detective Tarlecky identified the driver as James Phillips, and the passenger as
Defendant. Mr. Phillips consented to a search of the vehicle. Detective Tarlecky found a
Chevrolet key chain in the door panel on the driver’s side. He tossed the keys to Sheriff
Russell, who confirmed that the car keys fit the Monte Carlo. The officers then took Mr.
Phillips and Defendant into custody.

The search of the car also revealed several completed job application forms, one of
which had been filled out by Marcus Bradford and listed an address of 1100 Winwood Drive
in the nearby town of Castalian Springs. Detective Tarlecky went to the address and spoke
with Mr. Bradford, who confirmed that he lived there, and consented to a search of the
common areas of the house and his bedroom. In the living room, Detective Tarlecky found
a large speaker box and a CD player with part of a car dashboard attached to it. Detective
Tarlecky discovered a large amplifier of the same brand as Mr. McDaniel’s stolen amplifier
and a blue backpack in the “game room” of the house. The backpack contained a red hat
with a depiction of a $100 bill embroidered on it, and what Detective Tarlecky described as
a red “doo rag.” Detective Tarlecky also recovered from the house a wallet with Defendant’s
identification in it, a red T-shirt found in the dryer, a blue travel bag containing a roll of duct
tape, and a number of CDs and a black bandana found in Mr. Bradford’s room.

Mr. Bradford told Detective Tarlecky that Michael Miller and Michelle Guardiola
were the lessees of the house. The officers contacted Mr. Miller and Ms. Guardiola, who

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returned home in a black Chevrolet Impala. Mr. Miller and Ms. Guardiola consented to a
search of the entire house and the Impala. In the black Impala, Detective Winnett found a
red T-shirt and what appeared to be car stereo wiring. Sheriff Russell participated in a
second search of the house; he testified that he discovered a lockbox and that a set of keys
fitting the lockbox were found among the personal items taken from Defendant after his
arrest. The lockbox contained a 40mm semi-automatic pistol and ammunition.

Defendant was charged with one count each of aggravated robbery, carjacking,
attempt to commit especially aggravated kidnapping, and attempt to commit first degree
murder.2 At the trial, the State presented the videotape recording from the ATM’s security
camera, and Mr. McDaniel identified the man in the red shirt and red hat as the gunman. Mr.
McDaniel testified that the carwash bays were well-lighted and that he was able to get a good
look at Defendant and clearly see his face. Mr. McDaniel positively identified Defendant as
being the man who sat behind him in the Monte Carlo, pushed him into the carwash bay wall,
hit him, tried to duct tape his hands, and pursued him after he ran.

The State also presented the testimony of Lacey Smotherman, who said that she was
at the carwash on the night of June 12, 2007, around 10:00 p.m. Ms. Smotherman knew Mr.
McDaniel because he was dating a friend of hers. Ms. Smotherman testified that she saw a
gold Nissan Maxima backed into one of the carwash bays. As she was emptying trash from
her car, she saw Mr. McDaniel’s Monte Carlo pulling around the carwash, driving
slowly. She saw three people in the car and observed that the passenger, an African-
American male, had a bandana covering his face. The passenger looked at her and then the
Monte Carlo drove off. Ms. Smotherman testified that she was surprised that Mr. McDaniel
had not spoken to her.

The State also presented the testimony of Deangelo Vaughn, who stated that he works
at a nearby auto parts store on Highway 25. Mr. Vaughn testified that in June of 2007, two
men drove into the store’s parking lot in a white Crown Victoria. The men entered the store
and offered to sell Mr. Vaughn a set of four 22-inch wheels for $500. The men said that the
wheels were on a car that was parked “over at the lake.” Mr. Vaughn testified that the $500
price for a set of 22-inch wheels is “not reasonable, it’s awfully cheap.” Mr. Vaughn told the
men he couldn’t leave the store, and they left. Later, Mr. Vaughn saw photographs of four
men in the local newspaper and recognized two of them as the men who had tried to sell him
the wheels. He contacted the Trousdale County Sheriff’s Department and provided a written
statement.

2
Three others also were charged with crimes related to the incident: James Phillips, Marcus
Bradford, and Michael Miller.

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 At trial, the parties stipulated that the police found Defendant’s fingerprints on a gold
Nissan Maxima later recovered by the investigating officers.

The jury convicted Defendant of all four crimes charged. The trial court sentenced
Defendant as a Range I, standard offender, to twelve years for each class B felony conviction
(aggravated robbery, carjacking, and attempt to commit especially aggravated kidnapping),
and to twenty-five years for attempt to commit first degree murder. The trial court imposed
a combination of concurrent and consecutive sentencing for an effective sentence of forty-
nine years. The Court of Criminal Appeals affirmed the convictions and length of sentences
and remanded “for the purpose of determining whether consecutive sentencing is appropriate
under the Sentencing Act and State v. Allen, 259 S.W.3d 671 (Tenn. 2008).” State v. Davis,
No. M2008-01216-CCA-R3-CD, 2010 WL 1837936, at *1 (Tenn. Crim. App. Apr. 19,
2010).

We granted Defendant’s application for permission to appeal and address the
following issues: (1) whether the trial court correctly determined that the law enforcement
officers had reasonable suspicion to conduct an investigatory stop of the car driven by Mr.
Phillips at the boat dock, and therefore properly denied Defendant’s motion to suppress; and
(2) whether the evidence is sufficient to support Defendant’s conviction for attempt to
commit first degree murder.

Analysis

Motion to Suppress

Defendant argues that the officers did not have sufficient reasonable suspicion to
initiate an investigatory stop of Mr. Phillips’s vehicle, and that all evidence discovered as a
result of the searches of the car and the Winwood Drive residence should be suppressed. The
State argues that, considering the totality of the circumstances, the officers had reasonable
suspicion to stop the vehicle and therefore the initial seizure and subsequent searches pass
constitutional muster. We agree with the State’s argument, as did the Court of Criminal
Appeals.

As we review the trial court’s decision, we are mindful that the “trial court’s findings
of fact in a suppression hearing will be upheld unless the evidence preponderates
otherwise.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). When the trial court has seen
and heard the witnesses testify, we must afford considerable deference to the factual
determinations made by the trial court. Madden v. Holland Grp. of Tenn., Inc., 277 S.W.3d
896, 898 (Tenn. 2009). Although “[t]he party prevailing in the trial court is entitled to the
strongest legitimate view of the evidence adduced at the suppression hearing as well as all

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reasonable and legitimate inferences that may be drawn from that evidence,” Odom, 928
S.W.2d at 23, the burden remains on the State to prove that a warrantless search or seizure
was constitutionally permissible. State v. Nicholson, 188 S.W.3d 649, 656-57 (Tenn. 2006);
State v. Henning, 975 S.W.2d 290, 298 (Tenn. 1998). “The issue of whether reasonable
suspicion existed to validate a traffic stop is a mixed question of fact and law.” State v.
Garcia, 123 S.W.3d 335, 342 (Tenn. 2003). We review the trial court’s application of law
to the facts de novo without a presumption of correctness. State v. Day, 263 S.W.3d 891,
900 (Tenn. 2008); State v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000).

Both the United States Constitution and the Tennessee Constitution guarantee that
persons will not be subjected to “unreasonable searches and seizures.” U.S. Const. amend.
IV; Tenn. Const. art. 1, § 7. The Fourth Amendment to the Constitution of the United States,
applicable to the states as recognized in Mapp v. Ohio, 367 U.S. 643, 655 (1961), provides:

The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and
no [w]arrants shall issue, but upon probable cause, supported by [o]ath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.

Similarly, Article I, § 7 of the Tennessee Constitution provides:

[T]he people shall be secure in their persons, houses, papers, and possessions,
from unreasonable searches and seizures; and that general warrants, whereby
an officer may be commanded to search suspected places, without evidence of
the fact committed, or to seize any person or persons not named, whose
offences are not particularly described and supported by evidence, are
dangerous to liberty and ought not to be granted.

The protections of the Fourth Amendment and Article I, § 7 apply “to all seizures of
the person, including seizures that involve only a brief detention short of traditional
arrest.” State v. Berrios, 235 S.W.3d 99, 104 (Tenn. 2007) (quoting United States v.
Brignoni-Ponce, 422 U.S. 875, 878 (1975)). An officer’s stop of a vehicle by activating his
or her emergency lights constitutes a seizure. Day, 263 S.W.3d at 902; Garcia, 123 S.W.3d
at 343; State v. Binette, 33 S.W.3d 215, 218 (Tenn. 2000). At the point that Detective
Tarlecky activated his vehicle’s emergency lights and stopped the Crown Victoria, he seized
Mr. Phillips’s vehicle and its passengers without a warrant. We begin with the premise that
“[u]nder both the federal and state constitutions, a warrantless seizure is presumed
unreasonable, and evidence discovered as a result thereof is subject to suppression unless the
State demonstrates that the seizure was conducted pursuant to one of the narrowly defined

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exceptions to the warrant requirement.” Nicholson, 188 S.W.3d at 656; accord State v.
Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).

This Court has recognized “three distinct levels of interaction between citizens and
law enforcement officials.” State v. Ingram, 331 S.W.3d 746, 755-56 (Tenn. 2011). As we
observed in Ingram,

The first and most limited interaction is the brief police-citizen encounter,
which requires no objective justification and is limited to informal questioning
of the person involved. Day, 263 S.W.3d at 901. The next level is the brief
investigatory detention, which must be supported by reasonable suspicion of
wrong-doing and entitles the officer to conduct a stop and frisk under the
principles of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889
(1968). Day, 263 S.W.3d at 901. The third and most invasive level is the
full-scale arrest, which must be supported by probable cause. Id.; accord
[State v. ]Crutcher, 989 S.W.2d [295, 300 (Tenn. 1999)].

331 S.W.3d at 756; see also State v. Williams, 185 S.W.3d 311, 315 (Tenn. 2006). This case
involves a brief investigatory detention, which occurred when the officers pulled over the
white Crown Victoria driven by Mr. Philips. An exception to the warrant requirement exists
when a law enforcement officer “‘makes an investigatory stop based upon reasonable
suspicion, supported by specific and articulable facts, that a criminal offense has been or is
about to be committed.’” Williams, 185 S.W.3d at 318 (quoting Binette, 33 S.W.3d at 218);
see Terry v. Ohio, 392 U.S. 1, 20-21 (1968). We have defined “reasonable suspicion” as “‘a
particularized and objective basis for suspecting the subject of a stop of criminal
activity.’” Day, 263 S.W.3d at 903 (quoting Binette, 33 S.W.3d at 218). The standard for
determining reasonable suspicion is a lower standard than that for determining the existence
of probable cause:

Reasonable suspicion is a less demanding standard than probable cause not
only in the sense that reasonable suspicion can be established with information
that is different in quantity or content than that required to establish probable
cause, but also in the sense that reasonable suspicion can arise from
information that is less reliable than that required to show probable cause.

Yeargan, 958 S.W.2d at 632 (quoting Alabama v. White, 496 U.S. 325, 330 (1990)); see also
United States v. Sokolow, 490 U.S. 1, 7-8 (1989).

The trial court’s determination of whether a police officer’s reasonable suspicion is
supported by specific and articulable facts is an objective, fact-intensive inquiry. Williams,

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185 S.W.3d at 318. It requires the court to consider the totality of the circumstances
established by the proof. Day, 263 S.W.3d at 903. These circumstances include, but are “not
limited to, objective observations, information obtained from other police officers or
agencies, information obtained from citizens, and the pattern of operation of certain
offenders.” State v. Watkins, 827 S.W.2d 293, 294 (Tenn. 1992).

In the present case, the trial court found that the officers articulated a reasonable
suspicion for making an investigatory stop of Mr. Phillips’s car, and the evidence does not
preponderate otherwise. On the morning of June 13, 2007, Detective Tarlecky received a
BOLO dispatch concerning a carjacking that occurred in Hartsville the previous night. The
dispatch contained information describing the stolen car and a general description of the
suspects based on Mr. McDaniel’s statement. The stolen vehicle was found approximately
two hours later. Detective Tarlecky arrived at the crime scene and observed that the stolen
Monte Carlo was only partially stripped of valuable parts – a set of custom wheels that he
valued at approximately $2,000 remained on the car. Detective Tarlecky testified that based
on his past law enforcement experience, he knew that car thieves often return later to the car
to finish removing the valuable parts. This Court has observed that in determining whether
police had reasonable suspicion supported by specific articulable facts, “[a] court must also
consider the rational inferences and deductions that a trained police officer may draw from
the facts and circumstances known to him [or her].” Id.

Shortly after the Monte Carlo was found, the officers and others gathered at the boat
dock saw a white Crown Victoria with two male African-American occupants meeting the
general description of the suspects provided in the BOLO dispatch begin to enter the parking
lot where the stolen car had been left. When the Crown Victoria’s occupants saw the people
around the stolen car at the boat dock, the driver abruptly turned the car back onto the
roadway in a change of direction. The officers then observed the Crown Victoria turn around
in a nearby church parking lot and slowly drive back by the boat dock going the other
direction. Detective Tarlecky testified that in his experience, making a turn when noticing
a police presence often means “that they don’t want the police to take notice to
them.” Moreover, Detective Tarlecky testified that he was able to see the expressions on the
occupants’ faces when they began to pull in to the boat dock area, stating that they appeared
startled and “their eyes opened as big as saucers when they saw us and the vehicle just jerked
back off on to . . . the roadway.”

Defendant argues that Detective Tarlecky’s decision to make an investigatory stop of
the vehicle was based on nothing more than a “hunch” or a “gut feeling” and the fact that the
car’s occupants were African-American men. Defendant correctly points out that “an officer
making an investigatory stop must be able to articulate something more than an ‘inchoate and
unparticularized suspicion or “hunch.”’” Day, 263 S.W.3d at 902 (quoting Terry, 392 U.S.

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at 27). We also generally agree that making a stop of a vehicle based on nothing more than
the race and gender of the occupants would not satisfy the reasonable suspicion standard;
however, the officers in this case stopped the vehicle for reasons other than merely the race
and gender of its occupants. Considering the totality of the circumstances, the evidence does
not preponderate against the trial court’s decision not to suppress the evidence because the
officers articulated specific facts, as described above, supporting their reasonable suspicion
of the occupants of the Crown Victoria.

We have previously recognized that “a location’s characteristics are relevant in
determining whether the circumstances are sufficiently suspicious to warrant further
investigation, . . . and that nervous, evasive behavior is also a pertinent factor in determining
reasonable suspicion.” Nicholson, 188 S.W.3d at 661 (citing Illinois v. Wardlow, 528 U.S.
119, 124 (2000)). In the present case, the officers had reasonable suspicion to make a brief
investigatory stop based on these factors: the location (a boat dock area connected to criminal
activity in that it contained a car stolen the night before), the fact that the stolen car had not
been completely stripped of valuable parts, the abrupt and evasive behavior of the Crown
Victoria’s driver, the startled and suspicious demeanor and appearance of the occupants that
was directly observed by Detective Tarlecky, and the fact that the occupants matched the
general description of the suspects as described by the BOLO dispatch. Because the stop of
the vehicle was legal and the subsequent searches of the Crown Victoria, the Impala driven
by Mr. Miller, and the residence were conducted with valid consent, the trial court did not
err in refusing to suppress the evidence discovered by the police.

Sufficiency of the Evidence – Attempt to Commit First Degree Murder

Defendant argues that the evidence was insufficient to support his conviction for
attempt to commit first degree murder. The standard of appellate review in assessing a
challenge to the sufficiency of the evidence 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). “In making this determination, we afford the prosecution the strongest
legitimate view of the evidence as well as all reasonable and legitimate inferences which may
be drawn therefrom.” State v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010). In determining
the sufficiency of the evidence, we do not reweigh the evidence, State v. Smith, 24 S.W.3d
274, 279 (Tenn. 2000), since questions regarding witness credibility, the weight to be given
the evidence, and factual issues raised by the evidence are resolved by the jury, as the trier
of fact. Majors, 318 S.W.3d at 857. “‘Because a verdict of guilt removes the presumption
of innocence and raises a presumption of guilt, the criminal defendant bears the burden on
appeal of showing that the evidence was legally insufficient to sustain a guilty

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verdict.’” State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011) (quoting State v. Hanson, 279
S.W.3d 265, 275 (Tenn. 2009)).

To determine the elements of the offense of attempt to commit first degree murder,
we review the statutory definitions of first degree murder and criminal attempt. At the time
of the offense, Tennessee Code Annotated section 39-13-202(a) (2006) defined first degree
murder in pertinent part as “[a] premeditated and intentional killing of
another.” “Premeditation” is defined as meaning “that the intent to kill must have been
formed prior to the act itself. It is not necessary that the purpose to kill pre-exist in the mind
of the accused for any definite period of time.” Tenn. Code Ann. § 39-13-
202(d). “‘Intentional’ refers to a person who acts intentionally with respect to the nature of
the conduct or to a result of the conduct when it is the person’s conscious objective or desire
to engage in the conduct or cause the result.” Tenn. Code Ann. § 39-11-302(a).

Criminal attempt is defined at Tennessee Code Annotated section 39-12-101, which
provides in pertinent part that:

(a) A person commits criminal attempt who, acting with the kind of culpability
otherwise required for the offense:
....
(3) Acts with intent to complete a course of action or cause a result that would
constitute the offense, under the circumstances surrounding the conduct as the
person believes them to be, and the conduct constitutes a substantial step
toward the commission of the offense.
(b) Conduct does not constitute a substantial step under subdivision (a)(3),
unless the person’s entire course of action is corroborative of the intent to
commit the offense.

As is apparent from the language of the criminal attempt statute, a defendant who acts
with the required culpable mental state “may be convicted of criminal attempt based on
conduct constituting a substantial step toward the commission of the offense.” State v.
Richardson, 251 S.W.3d 438, 443 (Tenn. 2008). Defendant argues that the evidence was
insufficient to support the conclusions that (1) he intended to kill Mr. McDaniel with the
requisite premeditation, and (2) his conduct constituted a substantial step toward the
commission of murdering Mr. McDaniel. The State argues that the jury was entitled to
conclude that Defendant and his fellow perpetrator planned and intended to kill Mr.
McDaniel, and that Defendant’s conduct, considered in light of the totality of the
circumstances, constituted a substantial step sufficient to support a conviction for attempted
murder. We agree with the State’s position.

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 The existence of the element of premeditation is a question of fact to be resolved by
the jury. State v. Suttles, 30 S.W.3d 252, 261 (Tenn. 2000). Premeditation “may be
established by proof of the circumstances surrounding the killing” or attempted killing. Id.;
State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997). In Suttles and Bland, we identified
several factors that tend to support a finding of premeditation, including “the use of a deadly
weapon upon an unarmed victim; the particular cruelty of the killing; declarations by the
defendant of an intent to kill; evidence of procurement of a weapon; preparations before the
killing for concealment of the crime, and calmness immediately after the killing.” Suttles,
30 S.W.3d at 261; Bland, 958 S.W.2d at 660. Similarly, a defendant’s intent to kill may be
inferred by the jury from the evidence establishing the surrounding facts and
circumstances. State v. Lowery, 667 S.W.2d 52, 57 (Tenn. 1984); State v. Inlow, 52 S.W.3d
101, 105 (Tenn. Crim. App. 2000).

Considering the totality of the facts and circumstances surrounding the crimes
committed against Mr. McDaniel in the course of the robbery, carjacking, and assault, the
evidence is sufficient to demonstrate that a rational trier of fact could conclude that
Defendant and his co-perpetrator, with premeditation, planned and intended to kill Mr.
McDaniel. They procured a pistol and kept it pointed at Mr. McDaniel, who was unarmed,
throughout the robbery. They forced Mr. McDaniel to withdraw all the money he could from
his checking account at the ATM, demanding and procuring a receipt to prove he had done
so. They made him drive back to the carwash bay, where they forced him against one of the
walls. Although Mr. McDaniel pleaded with them to take his car and leave him at the
carwash, Defendant said, “no, you’re going with us.” At this point, the assailants had been
presented with the opportunity to take everything of value from their victim that they possibly
could have, and still insisted on taking him with them. When Mr. McDaniel saw Defendant
approaching with a roll of black duct tape, which the defendants had clearly procured in
advance and planned to use in binding him, he began to struggle. Defendant hit Mr.
McDaniel in the face and ordered his companion, who was nearby and also in the carwash
bay, to “get the gun, we’re going to shoot this motherfucker right here.” His use of the
words “right here” support an inference that the defendants’ plan had been to shoot Mr.
McDaniel somewhere else after they had bound him. After Mr. McDaniel was fortunately
able to break free and run, Defendant pursued him in a footrace.

From these circumstances, the jury was entitled, but not required, to reach the
conclusion that the defendants acted with premeditated intent to kill Mr. McDaniel, and that
the only reason Mr. McDaniel was still alive was that he was able to escape and
run. Defendant expressed his intention to shoot his victim. A defendant’s verbal expression
of intent to commit a crime obviously supports the conclusion that he or she acted with the
requisite intentional behavior. See State v. Fowler, 3 S.W.3d 910, 911 (Tenn. 1999)
(defendant’s expressed intention to pay $200 as a “finder’s fee” for an underage boy from

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whom he wanted “straight sex” supported conviction for attempted statutory rape); State v.
Taylor, 63 S.W.3d 400, 408 (Tenn. Crim. App. 2001) (defendant twice stating his intent to
forcibly “engage in unlawful sexual penetration” of minor victim supported conviction for
attempted rape); Inlow, 52 S.W.3d at 105 (defendant’s making prior statements “that could
easily have been interpreted as threats” supported conviction for attempted second degree
murder); State v. Elder, 982 S.W.2d 871, 875 (Tenn. Crim. App. 1998) (defendant’s
statement prior to shooting victim “You think I’m playin’; I’ll kill you” supported conviction
for attempted murder); State v. Bradfield, 973 S.W.2d 937, 948 (Tenn. Crim. App. 1997)
(during course of struggle with victim, defendant’s statement that he was going to “shoot
[his] ass” and reaching for concealed pistol sufficient to support attempted first degree
murder conviction).

The same circumstances described above also support a conclusion that Defendant’s
conduct constituted “a substantial step toward the commission of the offense” of
murder. Tenn. Code Ann. § 39-12-101(a)(3). The Tennessee General Assembly codified the
law of criminal attempt in 1989 to include the “substantial step” requirement. See Act of
May 24, 1989, ch. 591, § 1, 1989 Tenn. Pub. Acts 1169, 1184-85.3 In enacting the 1989
criminal attempt statute, the legislature based the attempt statute on the Model Penal Code.4

3
Before 1989, “the law of criminal attempt, though sanctioned by various statutes, was judicially
defined.” State v. Reeves, 916 S.W.2d 909, 910-11 (Tenn. 1996). The pre-1989 common law of attempt
required “(1) an intent to commit a specific crime; (2) an overt act toward the commission of that crime; and
(3) a failure to consummate the crime.” Id. at 911. In Reeves, we determined that in passing the criminal
attempt statute, the legislature intended not to retain the common law distinction illustrated in Dupuy v. State,
325 S.W.2d 238 (Tenn. 1959) between “mere preparation,” which was insufficient to prove a criminal
attempt, and an “overt act” toward the commission of a crime, which the State was required to prove under
the common law formulation of criminal attempt. 916 S.W.2d at 911. The Reeves Court recognized that
“the Dupuy approach to attempt law has been consistently and effectively criticized” as overly rigid,
restrictive, and unworkable. Id. at 913.
4
The Model Penal Code, Section 5.01, provides in pertinent part:

(1) Definition of attempt. A person is guilty of an attempt to commit a crime if, acting with
the kind of culpability otherwise required for commission of the crime, he:

(a) purposely engages in conduct that would constitute the crime if the attendant circumstances were
as he believes them to be; or
(b) when causing a particular result is an element of the crime, does or omits to do anything with the
purpose of causing or with the belief that it will cause such result without further conduct on his part;
or
(c) purposely does or omits to do anything that, under the circumstances as he believes them to be,
is an act or omission constituting a substantial step in a course of conduct planned to culminate in
(continued...)

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Reeves, 916 S.W.2d at 913. The inclusion of the “substantial step” requirement brought
Tennessee in line with a majority of states. 2 Wayne R. LaFave, Substantive Criminal Law
2d ed. § 11.4(e), at 226 (2003).

This Court first addressed the “substantial step” requirement in State v. Reeves. In
Reeves, two twelve-year-old schoolgirls plotted to kill their teacher by putting rat poison in
her coffee. 916 S.W.2d at 910. The teacher entered the classroom and saw the girls leaning
over her desk; after they ran back to their seats, a purse belonging to one of the girls that had
been left beside the teacher’s coffee cup was found to contain a packet of rat
poison. Id. This Court observed that applying the pre-1989 common law analysis that
sharply distinguished “mere preparation” from an “overt act” would likely have required
reversal of the convictions for attempted murder, id. at 914, and stated that the earlier
approach severely undercuts “the primary objective of the law – that of preventing inchoate
crimes from becoming full-blown ones.” Id. at 913. We affirmed the convictions for
attempted murder, finding that under the circumstances the defendants took a substantial step
toward the commission of poisoning their teacher, concluding,

We hold that when an actor possesses materials to be used in the commission
of a crime, at or near the scene of the crime, and where the possession of those
materials can serve no lawful purpose of the actor under the circumstances, the
jury is entitled, but not required, to find that the actor has taken a “substantial
step” toward the commission of the crime if such action is strongly
corroborative of the actor’s overall criminal purpose.

Reeves, 916 S.W.2d at 914. This holding is applicable to the case at bar. Although
Defendant did not have actual possession of the handgun during his struggle with Mr.
McDaniel and at the time he told his companion to “get the gun” because they were going
to shoot the victim “right here,” both the co-defendant gunman and his weapon were “at or
near the scene of the crime” – inside the carwash bay – and Mr. McDaniel testified that
Defendant appeared to be the one in control and in charge during the encounter. In Reeves,
we affirmed the attempted murder conviction of Ms. Reeves even though the rat poison was
not in her actual possession, but in her co-defendant’s purse which was lying near the
teacher’s coffee cup. 916 S.W.2d at 910.5

4
(...continued)
his commission of the crime.
5
The co-defendant, Ms. Coffman, did not appeal her conviction in that case.

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 This case also bears some similarities to the facts presented in Bradfield, where the
defendant carried a concealed pistol in his shoe at a sentencing hearing and became involved
in a struggle with the courtroom bailiff. 973 S.W.2d at 941-42. The Bradfield defendant
“reached for his gun and as the two struggled for the weapon, the defendant informed the
deputy that he might as well give up because the defendant was going to ‘shoot [his]
ass.’” Id. at 947-48. The officers succeeded in wrestling the gun from the defendant without
harm. Id. at 942. The Court of Criminal Appeals concluded that

The jury could infer the defendant took a substantial step toward his stated
goal, namely shooting the victim. Though not a necessary inference, the jury
certainly could have inferred the defendant meant to shoot and kill the
victim. The evidence is, in other words, sufficient to support the conviction
for attempted first-degree murder.

Id. at 948.

Ultimately, the question of whether a defendant has taken a substantial step toward
the commission of a crime sufficient to support a conviction for criminal attempt is
necessarily a heavily fact-intensive inquiry determined by the specific circumstances shown
in each individual case; indeed, the comments of the Tennessee Sentencing Commission to
section 39-12-101 provide that “[b]ecause of the infinite variety of factual situations that can
arise, subdivision (a)(3) leaves the issue of what constitutes a substantial step for
determination in each particular case.” See also Jeffrey F. Ghent, Annotation, What
Constitutes Attempted Murder, 54 A.L.R. 3d 612 §2[a] (1973) (“The authorities agree that
it is impossible to formulate a general rule or definition of what constitutes an attempt (to
murder), which may be applied as a test in all cases, and that each case must be determined
on its own facts with the assistance of general guiding principles.”). Under the facts
presented here, considering the totality of the circumstances and affording the State the
strongest legitimate view of the evidence and the reasonable inferences therefrom, we concur
with the judgment of the trial court and the Court of Criminal Appeals that the evidence was
sufficient for the jury to find that Defendant took a substantial step toward killing Mr.
McDaniel, and thus to convict Defendant of attempt to commit first degree murder. The
evidence supports an inference that Mr. McDaniel was very close, in both a spacial and
temporal sense, to becoming a shooting victim and possibly a murder victim. The jury was
entitled, but not required, to draw this inference.

Conclusion

We affirm the Defendant’s convictions. Because neither the State nor Defendant has
appealed the ruling of the Court of Criminal Appeals that the case should be remanded for

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the purpose of determining whether consecutive sentencing is appropriate under the
Sentencing Act and State v. Allen, 259 S.W.3d 671 (Tenn. 2008), the case is remanded to the
Criminal Court for Trousdale County for that purpose. It appears from the record that the
Defendant is indigent; therefore, costs on appeal are assessed to the State of Tennessee.

_________________________________
SHARON G. LEE, JUSTICE

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