State v. Willis6/30/2003
Jamie Marable was last seen in the early morning hours of September 9, 1990, with friends, including the defendant, Leslie Brian Willis, at the Golden Jukebox bar in Clarksville, Tennessee. Three days later, her body was found near Port Royal State Park.
After a lengthy investigation, the defendant was indicted in July 1997, on two counts of first degree murder; one count of first degree felony murder, the other count first degree premeditated murder. A jury acquitted him of first degree premeditated murder and convicted him of first degree felony murder, the underlying felony being rape, and sentenced him to life in prison. The defendant appealed his conviction, arguing, inter alia, that the evidence was insufficient to support the underlying felony of rape and, therefore, the felony murder conviction should be overturned. This court agreed, reversing the felony murder conviction and remanding the case for the defendant to be tried for second degree murder. See State v. Willis, No. 01C01-9802-CC-00068, 1999 Tenn Crim. App. LEXIS 715, (Tenn. Crim. App. July 15, 1999, at Nashville) perm. to appeal denied (Tenn. Oct. 23, 2000).
Prior to the retrial, the defendant moved for a dismissal, contending that second degree murder was not a lesser included offense of first degree felony murder. The motion was denied. On September 16, 2000, after a five-day jury trial, the defendant was found guilty of second degree murder and later sentenced to twenty-five years with the Tennessee Department of Correction. The defendant's motion for a new trial was denied. This timely appeal followed. The defendant raises the following issues:
(1) Whether the evidence was sufficient to sustain a conviction for second degree murder;
(2) Whether second degree murder is a lesser included offense of first degree felony murder;
(3) Whether the trial court erred in allowing the State to recall witness William Alley during its case in chief;
(4) Whether the trial court erred in allowing the testimony of TBI Agent Mike Breedlove, in violation of Tenn. R. Crim. P. 404(b), that the defendant threatened to break his neck; and
(5) Whether the trial court erred in sentencing the defendant to the maximum twenty-five years.
After a careful review of the record, we affirm the conviction.
I. Sufficiency of the Evidence
The defendant contends the evidence was insufficient to support his conviction for second degree murder. When sufficiency of the evidence is challenged, the relevant question for 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 or crimes beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); State v. Abrams, 935 S.W.2d 399, 401 (Tenn. 1996). The weight and credibility of the witnesses' testimony are matters entrusted exclusively to the jury as the triers of fact. State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996).
Importantly, although the evidence of the defendant's guilt is circumstantial in nature, circumstantial evidence alone may be sufficient to support a conviction. State v. Tharpe, 726 S.W.2d 896, 899-900 (Tenn. 1987); State v. Gregory, 862 S.W.2d 574, 577 (Tenn. Crim. App. 1993). However, in order for this to occur, the circumstantial evidence must be not only consistent with the guilt of the accused, but it must also be inconsistent with innocence and must exclude every other reasonable theory or hyp
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