IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs August 7, 2012
STATE OF TENNESSEE v. JACKSON MARTIN
Direct Appeal from the Criminal Court for Shelby County
No. 10-07889 Mark Ward, Judge
No. W2012-00144-CCA-R3-CD - Filed February 1, 2013
A Shelby County Criminal Court Jury convicted the appellant, Jackson Martin, of attempted
second degree murder and two counts of carjacking. After a sentencing hearing, the trial
court merged the carjacking convictions and sentenced him to an effective sentence of
twenty-two years in confinement. On appeal, the appellant contends that (1) the trial court
erred by commenting to the jury about his failure to present alibi witnesses; (2) the trial court
erred by refusing to give the jury an alibi instruction; and (3) the evidence is insufficient to
support the convictions. Based upon the record and the parties’ briefs, we affirm the
judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court are
Affirmed.
N ORMA M CG EE O GLE, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL,
and R OGER A. P AGE, JJ., joined.
Barry W. Kuhn (on appeal) and Constance J. Barnes and Vincent Ores (at trial), Memphis,
Tennessee, for the appellant, Jackson Martin.
Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Robert William Ratton, III, and
Jessica Banti, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
The victim, Bendell “Slick” Jackson, testified at trial that he was a drug dealer. On
July 21, 2010, he planned to sell drugs to the appellant, whom he knew as “Jack,” and picked
up the appellant from the Studio Plus Hotel on Old Dexter Road. The appellant told the
victim that he needed to get money from an ATM, so the victim drove him to the Exxon on
Germantown Road. The appellant went into the gas station, came out, and got back into the
car. The victim asked if the appellant got the money, and the appellant said yes. The victim
said he knew the appellant did not have any money because “I seen him [walk] in and [walk]
straight back out.” The victim said he told the appellant, “‘Well, I’m going to go on and drop
you off because I know you ain’t got the money.’” The appellant tried to assure the victim
that he had the money to buy the drugs.
The victim testified that he drove back to the hotel and tried to get the appellant to get
out of the car. The appellant said he had the money, reached into his pocket, pulled out a
knife, and started stabbing the victim. The victim put up his arm and tried to get out of the
car, but his seatbelt was on. He opened the door while the car was still moving and was
hanging out of the car. He got back into the car, unhooked the seatbelt, and fell onto the
street. The appellant saw the victim still moving, got out of the car, and approached the
victim with the knife. The victim said he heard someone say, “‘What are you doing[?]’” The
appellant looked at the person, looked at the victim, got into the car, and drove away. The
victim saw an elderly couple, told them to call 911, and collapsed.
The victim testified that the appellant stabbed him twelve to fourteen times. At first,
the victim did not identify the appellant as his attacker because he did not want anyone to
know he was selling drugs. However, a police officer told him at the scene that he probably
would not live, so he decided to tell the officer about the appellant. Paramedics took the
victim to The Med, where he spent eight days and had two major surgeries. The day after
the stabbing, a police officer showed him a photograph array, and he identified the
appellant’s photograph. About two weeks after he was released from the hospital, he told
Sonja Torkell, the appellant’s girlfriend, that the appellant stabbed him. He acknowledged
that he gave several different versions of the events and said that he changed his story about
why the appellant stabbed him because he was on probation and afraid. He acknowledged
that drug charges were pending against him but said that the State had not made him any
offers in exchange for his testimony.
On cross-examination, the victim testified that at the time of the stabbing, he had been
selling drugs to the appellant for more than six months and that Torkell also was a regular
customer. He denied that Torkell “turn[ed] tricks” for him in exchange for drugs. On the
day of the stabbing, the victim was driving his girlfriend’s Nissan Sentra, a small car. After
the stabbing, the victim was bleeding profusely, and blood should have been on the appellant.
The victim had never sold drugs to the appellant at the hotel on Old Dexter Road prior to July
21, 2010, and he usually did not sell drugs in that neighborhood. The victim denied that two
other drugs dealers stabbed him on July 21 in retaliation for his selling drugs on their “turf.”
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He acknowledged that in his prior stories about the stabbing, he claimed that the appellant
owed him money. He acknowledged that he gave four previous versions of the events and
that he told his girlfriend, “‘I hope after [the appellant’s] trial is over I get that last case
dismissed.’” He denied asking the State for help with his pending charges and stated, “I just
wish somebody would have sympathy for me. I’m not expecting nothing. . . . I can take care
of my other cases myself, you know, if nothing don’t happen, you know. I just want justice
done.”
Sonja Torkell testified that she and the appellant ended their relationship on July 3,
2010. On July 21, 2010, Torkell was working as a stylist at a hair salon. About 4:00 p.m.,
the appellant came into the salon, and Torkell gave him a haircut. Afterward, the appellant
said he had to cash his paycheck in order to pay for the haircut. About one and one-half
hours later, he returned to the salon, put a plate of food in Torkell’s station, and left. He still
had not paid for the haircut. Later, the appellant telephoned Torkell at the salon. She said
that he was very emotional, that he kept telling her he did not want her to hate him, and that
he said he was “sorry . . . about a lot of different things.” Torkell told the appellant that she
had to get back to work. About fifteen minutes later, the appellant telephoned Torkell for
a second time and asked for “Slick’s” telephone number. Torkell gave it to him and did not
hear from him again. She said the appellant carried a pocketknife “[p]retty much most days,
yeah, to work.”
On cross-examination, Torkell testified that the pocketknife was five to six inches
long unopened. She acknowledged that the victim sold drugs to her and that she had a
relationship with him prior to her relationship with the appellant. She denied exchanging sex
for drugs with the victim and said she had not bought drugs from him since he had been
released from the hospital. She denied hating the appellant and said the victim sold drugs
to him at the hotel one time prior to July 21, 2010.
Sergeant Andre Pruitt of the MPD testified that on July 22, 2010, he went to The Med
and spoke with the victim, who had at least eight stab wounds. A suspect had been
developed in the case, and Sergeant Pruitt showed the victim a photograph array. The victim
identified the appellant as the person who stabbed him. On cross-examination, Sergeant
Pruitt testified that he did not know if the victim was on medication at the time of the
identification. On redirect examination, Sergeant Pruitt testified that the victim had had
surgery the previous night but that the victim was able to give him a statement and tell him
what happened on July 21.
Audrey Hart testified that at 6:30 p.m. on July 21, 2010, she was outside watering her
flowers and heard someone yell for help. She said she saw a young African-American male
with “blood all down him” pacing back and forth. Hart called 911. The victim collapsed,
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and Hart tried to get information from him to give to the 911 operator. The victim told Hart
that he had been stabbed and carjacked. Hart did not ask the victim to identify his attacker.
On cross-examination, Hart testified that she did not see the victim get out of a car or a white
male with a knife chase the victim.
Officer Michael Chapman of the MPD testified that about 6:45 p.m. on July 21, 2010,
he was dispatched to the scene. He saw an African-American male lying on the street in a
pool of blood and people administering first aid. Officer Chapman spoke with the victim,
who was reluctant to give him any information. Officer Chapman saw a large cut and a
gaping wound on the victim’s neck and multiple stab wounds on the victim’s right side. He
thought the victim was going to die. He told the victim that the victim may die and that the
victim needed to tell the police what happened. The victim began talking about the stabbing.
Officer Hope Smith of the MPD testified that she responded to the stabbing. She said
that the victim was lying on a stretcher and that he was “cut up and bandaged.” Blood
droplets, a blue baseball cap, a t-shirt, a pair of gym shoes, and a brown belt were on the
street. Blood was on all of the clothing.
Sergeant James Woods of the MPD testified that on July 22, 2010, he responded to
a call about a car on fire in the Covington Pike Bottoms, a place where people rode four-
wheelers. He arrived at the scene about 8:00 a.m. He said the car was in the woods about
one-quarter mile off a dirt trail and was “burnt out.”
On cross-examination, Sergeant Woods testified that a Nissan emblem was on the
ground. He acknowledged that he did not know who drove the car into the woods.
Officer David Galloway of the MPD testified that on July 22, 2010, he went to the
Covington Pike Bottoms. He photographed the burned car and collected its “VIN plate.”
Sergeant John Simpson of the MPD testified that he was the coordinator for this case
and arrived at the scene of the stabbing about 8:00 p.m. on July 21. The victim had been
airlifted to The Med. Sergeant Simpson viewed evidence and followed a blood trail on the
street to a large blood stain where the victim had collapsed. The officer spoke with witnesses
and took their statements. Through his investigation, he learned about the car the victim had
been driving and broadcast a BOLO, be-on-the-lookout, for the vehicle. He also entered the
car into the NCIC, a national database.
Sergeant Simpson testified that he went to The Med and checked on the victim. The
next morning, he learned that the victim’s girlfriend’s car had been found in the Covington
Pike Bottoms and went to the scene. He also spoke with the victim’s girlfriend. Then he
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went to the Studio Plus Hotel and arrested the appellant as he was coming out of his room.
The appellant had fresh burn marks on his arms and legs and dirt on his legs. Due to the
blistering on the appellant’s legs, he was transported to The Med for treatment. Sergeant
Simpson said the appellant was “high on some kind of drug.” The appellant told the officer
that he had been staying at the Studio Plus for about two months, was a drug user, had lost
his job, and had just received his last paycheck. The appellant also told Sergeant Simpson
that he did not have a car. However, Sergeant Simpson found a receipt for five dollars worth
of gasoline purchased by the appellant at 8:41 p.m. on July 21, 2010. Sergeant Simpson said
the appellant was the only suspect in the case.
On cross-examination, Sergeant Simpson testified that other officers executed a search
warrant for the appellant’s hotel room. They did not find any bloody clothes or a knife.
Sergeant Simpson did not find any physical evidence linking the appellant to the crimes, and
the appellant was not covered in dirt and mud at the time of his arrest. Sergeant Simpson
asked the appellant how he got the blisters on his legs, but the appellant did not tell him.
On redirect examination, Sergeant Simpson testified that on July 26, 2010, he went
to the Exxon gas station where the appellant reportedly visited the ATM and viewed the
store’s video surveillance. The video showed the appellant enter the store and go to the
ATM. The appellant stood at the ATM for about one minute and appeared to use the
machine. Sergeant Simpson said that a power outage at the store erased the video before the
police could copy it and that the victim never changed his story about who stabbed him. At
the conclusion of Sergeant Simpson’s testimony, the State rested its case.
James Bratton testified for the appellant that about 7:00 p.m. on July 21, 2010, he was
visiting Laverne Long at her home in a subdivision off Old Dexter Road. Bratton and Long
were standing in Long’s yard when Bratton heard a commotion. He said he looked and saw
the victim “get pushed away from the car or dumped out of the car.” Bratton said the victim
ran toward Long’s home and yelled, “‘I’ve been stabbed, I’ve been stabbed.’” The victim
collapsed. Bratton asked who stabbed him, but the victim did not tell him. Bratton said that
he saw at least one other person in the car and that the car sped away. He did not see a white
male get out of the car and chase the victim.
On cross-examination, Bratton testified that he was eighty-six years old. He said he
could read a newspaper but did not see objects far away as well as he saw them close up.
However, he stated, “I have better than average eyesight for my age.” He said that when he
first saw the victim, the victim was about forty to fifty yards away and was walking toward
him. He acknowledged that he did not see the victim get out of the car and that he was just
assuming someone pushed the victim out of the car.
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The appellant testified that he did not stab the victim or set the victim’s girlfriend’s
car on fire. At the time of the stabbing, the appellant had been buying drugs from the victim
for about six months. He said he and the victim usually met “out by the interstate or at
McDonald’s.” On July 21, 2010, the appellant’s car was being repaired, so he could not meet
the victim as usual. The victim came to the hotel where the appellant was staying, and they
met outside. The appellant asked the victim to take him to an ATM. The victim drove the
appellant to the Exxon station, and the appellant got $200 out of the machine. He said that
he had been drinking and taking Xanax and that he did not remember what time he left the
hotel with the victim.
The appellant testified that he and the victim returned to the hotel and that the victim
sold him crack cocaine inside the car. Then the appellant went to his room while the victim
went to the swimming pool to sell drugs. The appellant said he used the crack cocaine with
“a couple of people from out of town staying at the hotel.” Later, he went with them to a
home in Collierville. The appellant said that the woman who owned the home was not there,
so they stayed about one hour and then “rode around and partied” for most of the night. At
some point, they returned to the hotel and sat around the pool for about one hour. He said
that he did not remember the names of the people he was with on the night of July 21 and that
“I can’t really tell you exactly what we did or what time we came and went.” The next
morning, the appellant’s son took him to Walmart. His son dropped him off at the hotel
about 11:00 a.m., and the police arrested him as he was returning to his room. He said he
told Sergeant Simpson he had been drinking alcohol and using drugs on the night of July 21.
He said that he had a prior conviction for aggravated assault and that he kept a knife, about
six inches long, with him when he was working because he used the knife for construction
jobs.
On cross-examination, the appellant testified that he did not see the victim sell drugs
to anyone at the pool. The appellant left the hotel and went to Collierville with two men,
who were brothers. He said that he did not know what time he left with them or their names
but that they were from Georgia and were staying at the hotel while they worked for a
guardrail company. At the time of his arrest, the appellant had burns on his legs but not on
his arms. He said the burns resulted from a “cooking accident” on July 21 that occurred
before he took food to Sonja Torkell. Specifically, boiling water and butter spilled on his
legs while he was cooking shrimp. The appellant did not have a knife on his person when
he was arrested, and he did not remember where his knife was at the time of his arrest.
The jury convicted the appellant as charged of attempted second degree murder and
two counts of carjacking, Class B felonies. After a sentencing hearing, the trial court merged
the carjacking convictions and sentenced the appellant to eleven years for each conviction
to be served consecutively for an effective sentence of twenty-two years in confinement.
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II. Analysis
A. Trial Court’s Comment on the Appellant’s Credibility
The appellant contends that the trial court erred by commenting to the jury about his
failure to present alibi witnesses and that the trial court, in effect, improperly commented on
his credibility. The State argues that the appellant is not entitled to relief because he late-
filed his motion for new trial and that any error does not rise to the level of plain error. We
conclude that the trial court erred but that the error does not warrant relief.
Before trial, the State filed a motion, demanding that the appellant notify the State of
his intention to rely upon an alibi for the offense, which occurred at about 6:50 p.m. on July
21, 2010 at the intersection of Old Dexter and Town & Country. The appellant responded
to the motion, stating that he did not intend to offer an alibi defense and that he would notify
the State if an alibi defense developed.
At trial, the appellant testified that after he and the victim arrived back at the hotel,
he went up to his room to use the crack cocaine he had bought from the victim. The victim
went to the swimming pool to sell drugs. The appellant met up with two men, who were
brothers staying at the hotel. On direct examination, he testified that he did not know what
time he met them, but on cross-examination, he said, “The sun was going down, I believe.
It was about dusk. It was dusk.” He went to their room and then left with them. Later, the
appellant put five dollars worth of gasoline in their truck. On cross-examination, the State
asked, “So you don’t remember the names of the people that could be your alibi witnesses
here today?” Defense counsel objected, stating that “he has clearly testified he does not
remember these people. It was asked on direct, and it was asked on cross, and this is the
third time.”
In a jury-out hearing, defense counsel also argued that the question was improper
because the appellant “does not have to call any witnesses, and it’s improper to imply to the
jury that just because he took the stand that he has to also supply alibi witnesses to support
what he’s saying.” The trial court answered,
Well, I’m sitting here really struggling because the State put
down a notice for alibi witnesses, and then this man gets up here
and testified that he’s got all of these alibi witnesses that he
didn’t bother to tell the State about so they could subpoena them
to be here. . . . [S]o here the State gets ambushed with all these
people that he could have answered in his notice of alibi so that
they could have investigated and tried to have done something
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with it and he [gets] up here on the stand and now you want to
say he doesn’t have to produce any witnesses?
....
I can’t prevent him from testifying, but he -- there’s got
to be some fairness to this process, and when he gets up here for
the first time in the middle of the trial and says he’s got alibi
witnesses and he just testified under oath he could have found
out the names of those people from Georgia. The records were
probably available at the hotel.
The trial court disagreed with defense counsel’s argument that the State’s question shifted
the burden of proof to the appellant and stated, “I’m going to overrule your objection. . . .
And at some point, I think I have to instruct the jury that the State requested a notice of
alibi[.] . . . I will read what the [appellant’s] response was.”
When the jury re-entered the courtroom, the trial court instructed it as follows:
This is a criminal case, and the Defendant does not have
the burden or requirement to produce any witnesses, but both
sides have the power to produce those witnesses if they should
so choose.
The rule provides under Rule 12.1 that, “A District
Attorney General who desires disclosure of potential alibi
defense shall serve the Defendant with a request to be notified
of an intention to offer an alibi defense. That request shall state
the time, date and place at which the alleged offense was
committed.” So once the State makes this request and says
when the alleged offense was committed, the Defense is
required to issue a response.
....
In this case, a notice was requested, and the response that
was given by the Defense, if I can find it, . . . [“]that the
Defendant does not intend to offer a defense of alibi. If a
defense of alibi develops, Defendant Martin will promptly notify
the State.”
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So in this case, there has been no notice of alibi given
and no opportunity to investigate this from an alibi standpoint,
and so that’s all I am really going to tell you about this matter
other than what I have already told you, that both sides have a
right to subpoena and call witnesses, but there is no burden on
the Defendant to call witnesses. There is a burden, though,
under this rule to notify the State of potential alibi witnesses, so
that’s all I am going to say on the matter, and I’m going to let
the lawyers continue their questioning of this witness.
After the instruction, the State resumed cross-examining the appellant.
Tennessee Rules of Criminal Procedure, Rule 12.1(a)(1) provides,
A district attorney general who desires disclosure of a
potential alibi defense shall serve the defendant with a written
request to be notified of an intention to offer an alibi defense.
The request shall state the time, date, and place at which the
alleged offense was committed.
A defendant who intends to offer an alibi defense shall inform the district attorney general,
in writing, of the intention and must state “the specific place or places at which the defendant
claims to have been at the time of the alleged offense” and “the name and address of each
alibi witness on whom the defendant intends to rely.” Tenn. R. Crim. P. 12.1(a)(2)(A)(i), (ii).
If the defendant fails to comply with the Rule, the court may exclude the testimony of any
undisclosed alibi witness offered by the defendant; however, the rule does not limit the
defendant’s right to testify. Tenn. R. Crim. P. 12.1(d).
As this court has explained,
The Tennessee Constitution prohibits judges from
commenting on the evidence in a trial, but judges may “state the
testimony and declare the law.” Tenn. Const. art. VI, § 9. A
trial judge is obligated to “be very careful not to give the jury
any impression as to his feelings or to make any statement which
might reflect upon the weight or credibility of evidence or which
might sway the jury.” State v. Suttles, 767 S.W.2d 403, 407
(Tenn. 1989).
State v. Anthony Dewayne Hood, No. E2008-02298-CCA-R3-CD, 2010 Tenn. Crim. App.
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LEXIS 750, **25-26 (Knoxville, Sept. 10, 2010).
Turning to the instant case, we can appreciate the trial court’s concern about the
appellant’s trying to “ambush” the State. However, Rule 12.1, Tennessee Rule of Criminal
Procedure, clearly states that a defendant’s failure to notify the State of an alibi defense does
not affect the defendant’s right to testify. The trial court even commented during the jury-out
hearing about the appellant’s right to testify. Moreover, “[t]he purpose of cross-examination
. . . is to give opposing counsel an opportunity to lessen the effect of a witness’s testimony
by involving him in inconsistencies or contradictory statements thereby impeaching his
testimony.” McBee v. State, 372 S.W.2d 173, 180 (Tenn. 1963). In this case, the State was
zealously questioning the appellant about his inability to recall the names of the two men and
the specific times he met them or left the hotel with them, severely attacking his credibility.
While the trial court correctly instructed the jury that the appellant was under no obligation
to present witnesses, we must agree with the appellant that the instruction could have been
construed by the jury as a comment on the appellant’s credibility.
Next, we will determine the effect of the error. As noted by the State, the appellant
late-filed his motion for new trial. See Tenn. R. Crim. P. 33(b). A defendant’s failure to file
a timely motion for new trial deprives the defendant “of the opportunity to argue on appeal
any issues that were or should have been presented in the motion for new trial.” State v.
Martin, 940 S.W.2d 567, 569 (Tenn. 1997). However, Tennessee Rule of Appellate
Procedure 36(b) provides that “[w]hen necessary to do substantial justice, [this] court may
consider an error that has affected the substantial rights of a party at any time, even though
the error was not raised in the motion for a new trial or assigned as error on appeal.”
Therefore, the appellant will be entitled to relief only if the trial court’s error rises to the level
of plain error. We may only consider an issue as plain error when all five of the following
factors are met:
(a) the record must clearly establish what occurred in the trial
court; (b) a clear and unequivocal rule of law must have been
breached; (c) a substantial right of the accused must have been
adversely affected; (d) the accused did not waive the issue for
tactical reasons; and (e) consideration of the error is “necessary
to do substantial justice.
State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994) (footnotes omitted); see
also State v. Smith, 24 S.W.3d 274, 283 (Tenn. 2000) (adopting the Adkisson test for
determining plain error). Furthermore, the “‘“plain error” must be of such a great magnitude
that it probably changed the outcome of the trial.’” Adkisson, 899 S.W.2d at 642 (quoting
United States v. Kerley, 838 F.2d 932, 937 (7th Cir. 1988)).
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Upon review of the record, we conclude that the trial court’s error was not of such
magnitude that it changed the outcome of the trial. The victim testified that the appellant
stabbed him on the evening of July 21, 2010, and he identified the appellant in a photograph
array shortly after the crimes and at trial. The victim never changed his story about the
appellant’s being his attacker. According to the victim, he drove the appellant to an ATM
prior to the stabbing in order for the appellant to withdraw money to buy drugs. Sergeant
Simpson testified that he viewed video showing the appellant entering the store and standing
at the ATM machine, supporting the victim’s version of the events. In addition, the appellant
admitted being with the victim in the victim’s girlfriend’s car before the stabbing. The
victim testified that after the stabbing, the appellant drove away in the car. The next day, the
car was located, completely burned, in the woods. The appellant was arrested later that
morning and had burn marks on his arms and legs that required medical evaluation at a
hospital. Moreover, although the appellant did not have a car, a receipt showed he put
gasoline into a vehicle after the stabbing, and a knife that the appellant was known to carry
was never located. The State’s proof against the appellant was strong. Therefore, we
conclude that consideration of the error is not necessary to do substantial justice and that the
appellant is not entitled to relief.
B. Alibi Instruction
Next, the appellant contends that the trial court erred by refusing to give an alibi
instruction. The State argues that an alibi instruction was not required in this case. As with
the previous issue, this issue has been waived because the appellant late-filed his motion for
new trial. In any event, we agree with the State. Therefore, the appellant is not entitled to
plain error relief.
A defendant has a “constitutional right to a correct and complete charge of the law.”
State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990). Accordingly, trial courts “should give a
requested instruction if it is supported by the evidence, embodies a party’s theory, and is a
correct statement of the law.” State v. Phipps, 883 S.W.2d 138, 150 n.20 (Tenn. Crim. App.
1994). Moreover, we have previously noted that “[w]e must review the entire [jury] charge
and only invalidate it if, when read as a whole, it fails to fairly submit the legal issues or
misleads the jury as to the applicable law.” State v. Forbes, 918 S.W.2d 431, 447 (Tenn.
Crim. App. 1995). A charge resulting in prejudicial error is one that fails to fairly submit the
legal issues to the jury or misleads the jury about the applicable law. State v. Hodges, 944
S.W.2d 346, 352 (Tenn. 1997).
This court has previously defined “alibi” as “‘[a] defense based on the physical
impossibility of a defendant’s guilt by placing the defendant in a location other than the scene
of the crime at the relevant time.’” State v. Looper, 118 S.W.3d 386, 416 (Tenn. Crim. App.
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2003) (quoting Black’s Law Dictionary 72 (7th ed. 1999)). A trial court must instruct the
jury on the defense of alibi when it is “fairly raise[d]” by the proof. Manning v. State, 500
S.W.2d 913, 915 (Tenn. 1973). The defense of alibi has been said to have been fairly raised
in three sets of circumstances:
(1) where the defendant’s alibi has been corroborated by other
credible witnesses[;] (2) where the victim has been unable to
identify the defendant[;] [or] (3) where the proof against the
defendant is wholly circumstantial[.]
Id. at 916 (citations omitted.) The trial court is obligated to instruct the jury on alibi
regardless of any request by the defendant. See Poe v. State, 212 Tenn. 413, 370 S.W.2d
488, 490-91 (Tenn. 1963). Failure to give an instruction constitutes reversible error. Id. at
490-91.
We conclude that the trial court did not err by failing to give an alibi instruction. The
appellant could not provide a name for the brothers and did not remember what time he used
drugs with them or left the hotel with them. The appellant’s alibi was not corroborated by
other witnesses, the victim identified the appellant as his attacker shortly after the stabbing
and at trial, and the victim’s testimony about the stabbing is direct evidence of the appellant’s
guilt. Therefore, we conclude that the defense of alibi was not fairly raised by the proof.
Given that a clear and unequivocal rule of law was not breached, the appellant is not entitled
to plain error relief. See Adkisson, 899 S.W.2d 626, 641-42.
C. Sufficiency of the Evidence
Finally, the appellant contends that the evidence is insufficient to support his
convictions. For the attempted second degree murder conviction, the appellant argues,
without any explanation, that the evidence fails to show he acted knowingly. For the
carjacking convictions, the appellant does not explain why the evidence is insufficient. The
State argues that the evidence is sufficient. We agree with the State.
When an appellant challenges the sufficiency of the convicting evidence, the standard
for review by an appellate court is “whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979);
Tenn. R. App. P. 13(e). The State is entitled to the strongest legitimate view of the evidence
and all reasonable or legitimate inferences which may be drawn therefrom. State v. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978). Questions concerning the credibility of witnesses and
the weight and value to be afforded the evidence, as well as all factual issues raised by the
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evidence, are resolved by the trier of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).
This court will not reweigh or reevaluate the evidence, nor will this court substitute its
inferences drawn from the circumstantial evidence for those inferences drawn by the jury.
Id. Because a jury conviction removes the presumption of innocence with which a defendant
is initially cloaked at trial and replaces it on appeal with one of guilt, a convicted defendant
has the burden of demonstrating to this court that the evidence is insufficient. State v.
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
Second degree murder is the knowing killing of another. Tenn. Code Ann. §
39-13-210(a)(1). A person acts knowingly with respect to a result of the person’s conduct
when the person is aware that the conduct is reasonably certain to cause the result. Tenn.
Code Ann. § 39-11-106(a)(20). Criminal attempt requires that one act “with the kind of
culpability otherwise required for the offense . . . [and] with intent to cause a result that is an
element of the offense, and believes the conduct will cause the result without further conduct
on the person’s part.” Tenn. Code Ann. § 39-12-101(a)(2).
Carjacking is defined as “the intentional or knowing taking of a motor vehicle from
the possession of another” and can be accomplished by use of (1) a deadly weapon or (2)
force or intimidation. Tenn. Code Ann. § 39-13-404(a). Count 2 of the indictment alleged
that the appellant committed carjacking by use of a deadly weapon, and count 3 alleged that
the appellant committed carjacking by use of force or intimidation.
Taken in the light most favorable to the State, the evidence shows that the victim
drove the appellant back to the hotel and tried to get him to get out of the car. The appellant
pulled out a knife and began stabbing the victim. The victim managed to unhook his seatbelt
and fell onto the street. The appellant got out of the car and walked toward the victim, but
when someone called out to the appellant, the appellant got into the car and drove away. We
conclude that the State presented sufficient evidence for a jury to find beyond a reasonable
doubt that the appellant knowingly stabbed the victim and that he intentionally took the
vehicle from victim’s possession by the use of a deadly weapon and force.
III. Conclusion
Based upon the record and the parties’ briefs, we affirm the judgments of the trial
court.
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NORMA McGEE OGLE, JUDGE
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