IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
OCTOBER SESSION, 1998 January 6, 1999
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9711-CR-00496
)
Appellee, )
)
) KNOX COUNTY
VS. )
) HON. RICHARD R. BAUMGARTNER
YASMOND FENDERSON, ) JUDGE
)
Appe llant. ) (Second Degree M urder, Cons piracy)
ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF KNOX COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
DONALD A. BOSCH JOHN KNOX WALKUP
BEVERLEY S. CORNETT Attorney General and Reporter
2000 First Tennessee Plaza
Knoxville, TN 37929 MICH AEL J . FAHE Y, II
Assistant Attorney General
425 Fifth Avenu e North
Nashville, TN 37243
RANDALL E. NICHOLS
District Attorney General
FRED BRIGHT
Assistant District Attorney General
City-County Building
Knoxville, TN 37902
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE
OPINION
The Defendant, Yasmond Fenderson, pursuant to Tennessee Rule of
Appe llate Procedure 3(b), appeals as of right from his convictions for second
degree murde r and co nspiracy to commit second degree murder. The sole issue
for review is the sufficiency of the evidence. We affirm the verdicts of the jury as
approve d by the trial c ourt.
The facts of this case pertain to a killing committed during an attempt by
Defendant to recover a package of drugs from the victim, Major Kindell. The
victim’s wife, Linda Kindell, testified at trial as the State’s only eyewitness to the
events prece ding th e killing. A ccord ing to K indell, on the evening of October 16,
1993, she asked her husband to go to the grocery store to buy her a package of
cigarettes . Wh ile he was gon e, she heard a knock at the door. She answered
the knock but did not open the door, and the person outside asked for the victim.
Kindell told the visitor tha t her hus band w ould be back sh ortly.
Soon after the victim returned h ome from the store, the cou ple heard
another knock at the door. The victim answered the door while Kindell remained
upstairs. Kindell became curious because of the late hour, and she called down
to ask the victim who had come in. The victim instructed her to remain upstairs,
but Kindell grew concerned. She walked to the stairs and saw at least four men,
possibly five , talking to he r husba nd.
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Kinde ll proceeded downstairs to determine why the men were in her home,
and she heard her husband say, “Man , I didn’t take your stuff.” One member of
the group, w hom K indell called the “com mand er,” or the “talke r,” told her, “I had
to drop something because it got hot, an d your husb and w as be hind m e.” Kind ell
testified that sh e nam ed this perpe trator th e “com man der” “[b ]ecau se he did all
the talking [and] he was the only one that was asking questions. No one else
asked any questions but him.” This man, later identified by Kindell as Defen dant,
stood a pproxim ately three or four fee t away from her.
According to Kindell, Defendant then told the victim he wanted to search
the apartment and stated that he wanted to begin upstairs. As the victim moved
upstairs with Defendant and two other men, Kindell followed and observed a gun
in the hand of the man in front of he r. The fo urth m an follo wed K indell. Although
the victim did n ot want th e men to search , Kindell pe rsuade d him to p ermit it.
She testified , “I said, ‘W ell, Major, let him search. I want them to get out of my
house. Let them look for an ything. Th ey’ve got g uns. Let them loo k anywhere
they want to look.’”
Defendant claimed in his statement to police that he ultimately found the
item for whic h he searched: W hen aske d whether h e “got what [he] w ent there
to get, Defendant responded, “Ye ah. I go t what I g ot in.” H owev er, Kin dell
testified that just before the killing, De fendan t said to the victim, “If you didn’t get
the dope, you do know who got it.” Then, stated Kindell, Defendant “looked at
Major and he turned around and looke d at m e. He s aid, ‘Po p go [s ic] this
weas el!’” When Defendant made this statement, the man with the rifle asked
Defen dant, “Do you want me to take h im ou t?” Alth ough Kinde ll “can’t remember
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what Defendant said or whether [he] said anything right then,” she observed
Defendant walk out o f the room past the g unma n. The gunman then raised the
gun and Kindell jumped into the bedroom closet screaming. From the closet she
heard two or three shots fired.
Kinde ll, afraid that the perpetrators remained in the house, refused to come
out of the bedroom closet at her husb and’s first requ est to d o so. T he victim
again asked her to come out and help him, and Kindell then complied. She saw
two punctu re woun ds on the left side of the victim’s chest; then she began
screa ming, ran downstairs, and sat in a chair. A neighbor entered the home
through the still-open front door and went upstairs to attend to the victim; and
shortly thereafter an ambulance arrived. The victim was treated at the Unive rsity
of Tennessee Hosp ital in Kn oxville un til his death sixteen days later on November
2, 1993.
Upon cross-examination, Kindell admitted that she identified someone
other than Defen dant from a p hotograph array on the da y prior to trial. However,
the jury also heard testimony that Kindell had not slept on the night prior to trial
because she had been traveling from West Tennessee to Knoxville.
Furthermore, she identified Defendant in a photograph array both on November
3, 1993 and also later on the day prio r to trial. A t trial, Defen dant did n ot dispute
his presence in the victim’s home the night of the crime; he dispute s Kind ell’s
charac terization o f his role as th e leade r in the offen se.
The State intro duced Defen dant’s taped statement to police through
Knox ville Police Investigator Stan M cCroskey. In the statement as transcribed,
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Defendant denied (1) that he knew the gunman was armed, (2) that he ordered
the victim’s killing, and (3) that he knew why the gunman shot the victim.
In this appeal, Defendant contends that the evide nce is insu fficient to
support convictions for second degre e mu rder an d con spirac y to com mit second
degree murder. Tennessee Rule of Appellate Procedure 13(e) prescribes that
“[f]indings of guilt in criminal actions whether by the trial court or jury shall be set
aside if the eviden ce is insuffic ient to sup port the finding by the trier of fact
beyond a reasonable doubt.” Tenn. R. App. P. 13(e). In addition, because
conviction by a trier of fact destroys the presumption of innocence and imposes
a presumption of guilt, a convicted criminal defendant bears the burden of
showing that the evid ence w as insufficie nt. McBe e v. State , 372 S.W.2d 173,
176 (T enn. 19 63); see also State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992)
(citing State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1976), and State v. Brown,
551 S.W .2d 329 , 331 (T enn. 19 77)); State v. Tug gle, 639 S.W.2d 913, 914
(Tenn . 1982); Holt v. State , 357 S.W .2d 57, 61 (T enn. 1962 ).
In its review of the eviden ce, an appe llate court must afford the State “the
strongest legitimate view of the evidence as we ll as all reas onable and legitim ate
inferences that may be drawn therefrom.” Tug gle, 639 S.W.2d at 914 (citing
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)). The court may not “re-
weigh or re-e valuate the evidenc e” in the rec ord belo w. Evans, 838 S.W.2d at
191 (citing Cabbage, 571 S.W .2d at 836). Likew ise, should the review ing court
find particular conflicts in the trial testimony, the court must resolve them in favor
of the jury ve rdict or trial cou rt judgm ent. Tug gle, 639 S.W.2d at 914.
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Second degree murder is a “knowing killing of another.” Tenn. Code Ann.
§ 39-13-210 (a)(1). The legislature has defined “k nowing” as re ferring to “a
person who ac ts know ingly with res pect to the condu ct or to circu mstances
surrounding the conduct when the person is aw are of the nature of the conduct
or that the circumsta nces exist.” Id. § 39-11 -302(b). In addition, “[a ] person acts
know ingly with respect to a result of the person’s conduct when the pe rson is
aware that the c onduct is reas onably certain to ca use the resu lt.” Id.
It is undisputed that Defendant did not kill the victim; the jury convicted him
based upon his crim inal responsibility for the conduct of another. Under the
approp riate section of our criminal responsibility statute, the State must p rove
that, “[a]cting with intent to promote or assist the commission of the offense, or
to benefit in the proceeds or results of the offens e, [Defen dant] solicit[e d],
direct[ed], aid[ed], or attempt[ed] to aid another person to commit the offense.”
Id. § 39-11 -402(2).
W e conclude that the State presented sufficient eviden ce to p ermit a jury
to find De fenda nt crim inally respo nsible for sec ond d egree murd er. Th e victim ’s
wife, Linda K indell, testified that Defendant acted as the leader of the group of
men by being the only person to demand return of his drugs. Defendant decided
that the group would move upstairs and searc h for the missing drugs, and he
ordered Kinde ll to sit down in the bedroom. In addition, he asserted owne rship
of the pack age of d rugs by te lling police th at he foun d what h e intende d to
retrieve at the house .
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Based upon the later dialogue between Defendant and the gunman, the
jury was entitled to conclude that Defendant knew the shooter was armed.
Moreover, Kindell testified to having stated, to everyone present, including
Defen dant, that one of the intruders carried a gun. F urther more , the jury could
easily have found that the gunm an wa s reas onab ly certain his shots would cause
the result— death o f the victim. See State v. Meade, 942 S.W.2d 561, 564-65
(Tenn. Crim. A pp. 1996) (eviden ce sufficient for secon d degree m urder where
defendant shot one victim five or six times, including once exec ution-style); State
v. Freeman, 943 S.W.2d 25, 29 (Tenn. Crim. App. 1996) (evidence sufficient for
second degree murder where defendant fired rifle approximately thirty-nine times
into victim’s vehicle while defen dant k new ve hicle was oc cupied ); State v. Baxter,
938 S.W.2d 697, 701 (Tenn. Crim. App. 1996) (evidence sufficient for second
degree murd er whe re defe ndan t stabb ed victim in stomach, chased victim, rolled
victim over, and stabbed him in chest holding knife with b oth han ds); State v.
Sum mera ll, 926 S.W.2d 272, 275 (Tenn. Crim. App. 1995) (evidence sufficient
for secon d degre e murd er where defend ant threatened victim a nd sh ortly
thereafter shot him ); State v. Maru ja Paquita Coleman, No. 01C01-9401-CR-
00029, 1997 WL 438169, at *3 (Tenn. Crim. App., Nashville, July 31, 1997)
(evidence sufficient for secon d degre e murd er where defend ant set fire to victim
after victim h ad cha sed de fendan t and thro wn pep per into he r eyes).
Regarding criminal responsibility, in the crucial moments before the killing,
Kindell, the only testifying eyewitness, stated that Defendant declared, “Pop go
[sic] this wease l,”1 turned, and walked out of the room past his companions. As
1
Defendant points out that the transcription of Kindell’s initial statement to police
contains the statement, “Pop go [sic] the weasel.” (Emphasis added.) Kindell testified at trial
that Defendant actually said, “this weasel,” and that her statement was incorrectly transcribed.
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Defendant passed b y, the gunm an asked , “Do you want me to take him out?”
Although Kinde ll did not hear what, if anything, Defendant said in response, the
jury was within its purview to conclude either that Defendant gave an affirma tive
verbal response or that he in some other way communicated his assent to the
shooting. In addition, the jury could have appropriately construed the term “Pop
go [sic] this weasel” as an order or an announcement of the victim’s fate. In that
sense, the question “Do you want me to take him out?” served as verification of
the directio n. This iss ue lacks merit.
Next, Defendant challenges the sufficie ncy of th e evide nce to convic t him
of consp iracy to com mit seco nd deg ree mu rder. In this sta te,
[t]he offense o f conspira cy is com mitted if two (2) or more people,
each having the cu lpable menta l state required for the offense which
is the object of the conspiracy and each facilitating commission of
an offens e, agre e that o ne (1) o r more of them will enga ge in
conduct which constitutes such an offense.
Tenn. Code Ann. § 39-12-103(a). Furthermore, “[n]o person may be convicted
of consp iracy to com mit an offe nse un less an o vert act in pu rsuanc e of such
conspiracy is alleged and proved to have been done by the person or by another
with whom the person c onspired.” Id. § 39-12 -103(d).
This Court has stated, “The unlawful confederation may be established by
circumstantial evidence and the conduct of the parties in the execution of the
criminal enterprise.” Rand olph v. Sta te, 570 S.W.2d 869, 871 (Tenn. Crim. App.
1978). Based upon the foregoing discussion of statements made by Defendant
and the gunman prior to the shooting, we conclude that the State presented
We find no distinction in language that is significant to our review.
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sufficient evidenc e to perm it a jury to find that Defendant and the gunman formed
an agreem ent to com mit a kno wing killing. Cf. State v. Rand all Scott, No. 01C01-
9307-CR-00240, 1996 WL 4318, at *8 (Tenn. Crim. App., Nashville, Jan. 5, 1996)
(stating that “[a]lthou gh there was no direct proo f that the defendant a nd his
codefe ndants agreed du ring that period of tim e to commit the kidnapping, that
can be properly inferred from their acts”). In addition, commission of the killing
by the shoo ter, a me mber o f the agre emen t, satisfied the overt act required for
conviction of consp iracy. This issue also lacks m erit.
In conclusion, we affirm Defend ant’s convictions for second degree murder
and cons piracy to com mit second degree m urder.
_______________________________
DAVID H. WELLES, JUDGE
CONCUR:
_________________________________
GARY R. WADE, PRESIDING JUDGE
__________________________________
THOMAS T. WOODALL, JUDGE
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