State of Tennessee v. Barry Smith, Julian Kneeland and Barron Smith

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

March 5, 2013 Session

STATE OF TENNESSEE v. BARRY SMITH, JULIAN KNEELAND, AND

BARRON SMITH

Appeal from the Criminal Court for Shelby County

No. 10-02543 John T. Fowlkes, Jr., Judge

No. W2011-02122-CCA-R3-CD - Filed December 5, 2013

The Defendants, Barry Smith, Barron Smith, and Julian Kneeland, were convicted by a

Shelby County Criminal Court jury of eight counts of aggravated assault, Class C felonies;

one count of reckless endangerment committed with a deadly weapon, a Class E felony; eight

counts of reckless endangerment, Class A misdemeanors; and one count of aggravated

criminal trespass, a Class A misdemeanor. See T.C.A. §§ 39-13-102, 39-13-103, 39-14-406

(2010). The trial court merged the eight counts of reckless endangerment with the eight

counts of aggravated assault. Defendant Barry Smith was sentenced as a Range I, standard

offender to five years for each aggravated assault conviction, one year for the reckless

endangerment committed with a deadly weapon conviction, and eleven months, twenty-nine

days for each misdemeanor conviction. The court ordered two of the aggravated assault

convictions to run consecutively and the remainder of the convictions to run concurrently,

for an effective ten-year sentence. Defendant Barron Smith was sentenced as a Range II,

multiple offender to seven years for each aggravated assault conviction, three years for the

reckless endangerment committed with a deadly weapon conviction, and eleven months,

twenty-nine days for each misdemeanor conviction. The court ordered two of the aggravated

assault convictions to run consecutively and the remainder of the convictions to run

concurrently, for an effective fourteen-year sentence. Defendant Julian Kneeland was

sentenced as a Range I, standard offender to four years for each aggravated assault

conviction, one year for the reckless endangerment committed with a deadly weapon

conviction, and eleven months, twenty-nine days for each misdemeanor conviction. The

court ordered two of the aggravated assault convictions to run consecutively and the

remainder of the convictions to run concurrently, for an effective eight-year sentence. On

appeal, the Defendants contend that (1) the evidence is insufficient to support their

convictions, (2) the trial court erred by allowing the jury to hear a 9-1-1 recording, and (3)

the court erred in sentencing. We affirm the Defendants’ convictions except the aggravated

assault convictions in Count 21, which we reverse and dismiss. We vacate the judgments for

the remaining aggravated assault and reckless endangerment convictions and remand the case

for entry of a single judgment for each aggravated assault conviction, noting merger of the

reckless endangerment convictions.

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

in Part; Reversed and Dismissed in Part; Vacated in Part; Case Remanded

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which J ERRY L. S MITH and

R OGER A. P AGE, JJ., joined.

Paul Guibao (on appeal) and Samuel Lee Perkins (at trial), Memphis, Tennessee, for the

appellant, Barry Smith.

Andre Bernard Mathis, Memphis, Tennessee, for the appellant, Barron Smith.

Marvin Earl Ballin (at trial and on appeal) and Richard S. Townley (on appeal), Memphis,

Tennessee, for the appellant, Julian Kneeland.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;

Amy P. Weirich, District Attorney General; and Theresa Smith McCusker and Jose Francisco

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

OPINION

This case arose from an August 8, 2009 shooting during a family barbecue in which

Erica Irby was injured. At the trial, Memphis Police Officer Terrance Wilson testified that

he responded to a call on August 8, 2009, at 2:00 p.m. and that the scene was chaotic when

he arrived. He found people coming from the house who told him a woman, later identified

as Erica Irby, had been shot. He said that the injured woman came out of the house and

showed him her wound in the buttocks area and that he called for an ambulance. He said that

when he went into the house, he found bullet holes in different areas of the walls and that a

few people were still there. He thought that about fourteen people came from the house but

that a few men left the scene. He identified a photograph of the house where the shooting

occurred and said it was in South Memphis behind a middle school. He requested more

officers to respond after he saw the number of people coming from the house. He said the

people told him that someone had shot at the house.

On cross-examination, Officer Wilson testified that he did not see Defendant Barron

Smith on August 8, 2009. He said that he could have received the call regarding the shooting

more than an hour after he started his shift at 2:00 p.m. and that he was unsure of the time.

He thought he remembered listing fourteen victims but said more people were probably at

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the house. He did not know if the victims were related and did not remember their names.

He said they told him the nicknames of two men who shot at the house. He wrote the names

of the victims, took statements from a couple of people at the scene, and submitted a report

with the information the victims told him.

Officer Wilson testified that his name was listed as the reporting officer on the crime

scene log, which usually listed everyone who came to the scene, but that he did not know

why the ambulance personnel were not listed. He said he saw an ambulance arrive but did

not see Ms. Irby get into or leave in the ambulance. He said that he saw Ms. Irby’s wound,

that there was a little blood, and that she had been grazed by a bullet. He did not remember

if bullet holes were in the front wall or the outside walls but said he saw bullet holes in the

inside walls.

Memphis Police Officer Thomas Ellis testified that he responded to the shooting with

the Crime Scene Unit on the evening of August 8, 2009, to collect evidence and photograph

the scene. He said that when he arrived, he spoke with the scene officer to obtain his

information for the report. He identified two aerial photographs of the house, which was

located in a residential neighborhood. He photographed the inside and outside of the house

and collected and transported the evidence to the property room. He identified photographs

of a spent 7.62 shell casing found in the street in front of the house, a spent shell casing near

the sidewalk, and other spent shell casings outside the front of the house. He said bullet

holes were on the outside of the house on the north side and inside the house. He identified

photographs of bullet holes in a shutter on the front of the house, the front porch ceiling, the

siding on the front of the house, and the north side of the house. He said that inside, he found

bullet fragments, several bullet holes, and blood on the floor.

Officer Ellis testified that he found approximately thirty bullet holes inside the house.

He said he found bullet holes in the interior walls, the photographs hanging on the walls, the

hallway, the bedroom doors, and the walls and identified photographs of the holes. He said

that inside the house, he collected five spent “7.62 times 39 Wolf” shell casings, three spent

nine-millimeter Luger shell casings, and two bullet fragments and that he did not recover

guns. He identified photographs of blood found on the floor. He said that outside the house,

he collected six 7.62 shell casings in the street, two spent nine-millimeter Luger shell casings

on the sidewalk in front of the house, a spent 7.62 shell casing in the front yard near the

porch, and a spent nine-millimeter shell casing in the front wall of the house.

On cross-examination, Officer Ellis testified that he received the call at 5:40 p.m. and

arrived at the scene at 6:00 p.m. but was unsure what time the shooting occurred. He was

unsure what type of gun shot 7.62 bullets. He did not try to obtain fingerprints from the shell

casings and was unaware if anyone attempted to find fingerprints on the casings after they

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were taken to the property room. He said he went to the front room, the stairwell, and the

bedroom and did not go through the entire house because he only photographed and collected

what the investigator instructed.

Officer Ellis testified that he had never been to the house before and did not know

how long the bullets had been there. He said he could not determine if the bullet holes were

made by guns shot inside or outside the house. He said all the photographs he took of the

bullet holes in the outside of the house were in the front.

Martha Ann Gray testified that she was home on August 8, 2009, preparing for a

barbecue when the shooting occurred. She said that she was inside when she heard gunfire

and that she saw the people shooting. She identified Defendant Barry Smith, also known as

“Skinny,” Defendant Barron Smith, also known as “Fat,” and Defendant Kneeland as the

shooters. She said Erica Irby, also known as “Shell,” Faith, Tonya, Krissy, Pam, Tiffany,

Chico, who was her brother, Mario, Gidget, and her nieces, nephews, and cousins, who were

young children, were at her house that day. She said that when the shooting began, she

looked out the window and that everyone ran into the house. She said she ran to a bedroom

and attempted to hide. She said that the shooting lasted for ten or fifteen minutes and that

during the shooing, she heard “hollering, bullets, people screaming, [and] bullets flying from

every angle.” She said that she called 9-1-1 when she was lying on the floor, that she was

placed on hold and hung up, and that she heard others in the house calling 9-1-1. She said

that she knew the Defendants because they had been to her house to play games, use the

computer, and talk with her nephew, cousin, and sons and that the Defendants had eaten and

stayed overnight at her house. She said she did not have a weapon and did not attack the

Defendants.

Ms. Gray testified that the police and an ambulance came to her house after the

shooting and that her niece Shell had been hit by a bullet and was treated. She said that she

did not invite the Defendants to her house on August 8, 2009, and that they did not have

permission to enter her house or to have a key to her house. She gave a statement to the

police about the shooting, identified the Defendants in photograph lineups, and verified her

signature on the lineups. She identified a photograph of her house and said the bullet holes

pictured were not there the night before the shooting. She said the bullets found were not

lying inside or outside her house before the day of the shooting. She identified the blood on

the floor as Shell’s and said it was not there before the shooting. She said that Shell, her

sister Faith, her sons, her cousin Herman, her young nephew Cavion and another young child

of a family friend, who were hiding in a dresser, her nephew Demario, and other children in

the closet with Shell and “Tan” were all hiding in the bedroom with her. She said she was

“scared to death” as she hid on the floor because she did not know if they were going to live.

She said that everyone hid because of the shooting and that they had no warning the shooting

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would occur. She identified a photograph of the front of her house from the day of the

shooting and identified “Tasha’s” baby carrier, which was still sitting on the front porch. She

said Tasha was inside the house at the time of the shooting.

On cross-examination, Ms. Gray testified that the shooting occurred around 3:00 or

4:00 p.m. She said she was in the living room when she heard the first shot and walked

toward the door. She said that after several shots, people started running into the house and

that she ran to the bedroom. She said she never saw the shooter and never saw anyone with

a gun. She did not see any of her family members with a gun. She said that she came to the

courthouse with some of the people who were in her house the day of the shooting. She said

that she saw them everyday and that they were family but that they did not discuss the case.

She said her sister, Cynthia Gray, was at the house at the time of the shooting. She admitted

that she did not see the shooters but heard other people call the shooters by name as they

were running into the house away from the shots.

Erica “Shell” Irby testified that Martha Gray was her aunt and that she was at Ms.

Gray’s house on August 8, 2009, around 6:30 or 7:00 p.m. She said that between twenty and

thirty people were there when she arrived, including Ethel Gray, Faith Harris, who was her

mother, Tasha Gray, Cynthia Gray, “a lot of kids and a lot of adults.” She said everyone was

preparing for a barbecue, which was normal for her family.

Ms. Irby testified that when she was at the party, she was grazed by a bullet on the

right side of her buttocks. She said that when she arrived, she and her friend Lashonda Gray

went to the porch where Ethel Gray, Gidget Lanier, and Darryl Gray were sitting and that

children were in the yard. She said that about ten people were outside, that she saw a silver

car approaching the house, and that they all ran inside the house when they heard gunshots.

She said that she heard more shots coming from the back of the house after she was inside

and that she hid in the closet with her four-year-old godson, Joell, and her sister, Lantondra

Harris. She said that she did not see from where the shots came or who was shooting when

she was in the closet but that bullets came from everywhere. She said that Martha Gray,

Ethel Gray, Herman, and a lot of young children hid in the same room with her and that she

could not remember everyone in the room because there were so many. She said her uncle,

Dale, was already in the house when the first shots were fired and that Martha Gray and her

husband were in the kitchen.

Ms. Irby testified that the shooting stopped and that she tried to run from the closet

through the living room. She said that when she was running, she heard another bullet and

felt “something.” She said her uncle was lying on the couch and told her to get down

because shots were being fired. She said that she crawled back to the closet and that when

her sister told her she was bleeding, she realized she had been shot. She said she was unable

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to sit down as the shooting continued. She said that after she returned to the closet, she saw

her cousin, Dercedes Gray, come from the back of the house toward the front.

Ms. Irby testified that she saw “Julian” and “Skinny” in the doorway shooting,

identifying Defendant Kneeland as Julian and Defendant Barry Smith as Skinny. She said

that she saw Kneeland using a silver and black gun and that he hesitated and backed away

as if he did not want to shoot but then began shooting. She said Kneeland and Barry Smith

pushed open the door, stood in front of the door, and shot into the house. She said that she

was standing in the middle of the living room when she saw them shooting and that she knew

them from the neighborhood.

Ms. Irby testified that Defendants Kneeland and Barry Smith stood beside each other

in the doorway, that Kneeland was on the right, and that Barry Smith was on the left. She

said that Kneeland paced the front porch when her aunt, Cynthia Gray, yelled that children

were inside but that after he stopped pacing, he began shooting again. She said that

Kneeland acted as if he was under pressure and did not want to “let his home boys down” but

that Barry Smith did not care and continued shooting. She said she did not see them reload

their guns but heard two pauses in the shooting. She said she did not see anyone other than

Kneeland and Barry Smith with guns that day.

Ms. Irby testified that she remained in the closet until the police arrived. She said that

an ambulance came to the scene and treated her wound and that she did not go to the hospital

for treatment. She said the shooting lasted about forty-five minutes to one hour. She said

that she did not remember the type of gun Defendant Barry Smith used and that she was

distraught and scared.

Ms. Irby testified that she made a statement and identified each Defendant in a

photograph lineup at the police station. At the trial, she identified Defendant Barron Smith

as Fat and said he was Defendant Barry Smith’s twin brother. She said she did not see

Barron Smith at the door shooting but saw him in the car as it approached. She said that she

was on the porch when she saw the car approaching but that she ran inside after she heard

gunshots. She said she did not see anyone with a gun when she heard the first shots. She

said all three Defendants were in the car when it approached.

Ms. Irby testified that a baby carrier was on the porch and that an eight-month-old

baby had been in the carrier when she saw the Defendants’ car approached. She said that the

baby’s father was her cousin, Ebony Payno, and that she grabbed the baby and ran inside

when the shooting began. She said Defendants Kneeland and Barry Smith never came

through the door but stood at the door.

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On cross-examination, Ms. Irby testified that she sat on the porch about five minutes

before she heard gunshots. She said seven to ten people were outside and fifteen to twenty

people were inside. She said that she ran inside and that when she reached the center of the

living room, she heard more shots, which she thought were coming from the back of the

house but was unsure. She said she saw Martha Gray inside the house on the left side

coming from the kitchen. She said she did not see anyone in the house with a gun or hear any

member of her family shooting. She agreed she was related to most of the people in the

house.

Ms. Irby testified that she was not in the closet for the entire forty-five minutes of

shooting. She said she came to the courthouse each day during the trial and sat in the witness

room with others who were testifying. She agreed that the people in the witness room were

her family members but denied talking about the case.

Ms. Irby testified that she went to the police station after the shooting, gave a

statement, and viewed photograph lineups. She said that although she did not see Defendant

Barron Smith shooting, she identified him in a photograph lineup and wrote on the lineup

that he and his twin brother “shot up” her aunt’s house.

Ms. Irby testified that Defendants Kneeland and Barry Smith pointed their guns in

the house but not at her. She said that people drank beer at the family barbecues but that she

had not had anything to drink. She reviewed her statement to the police and agreed she wrote

that she saw Defendants Barry Smith and Barron Smith enter through the back and that she

did not see Kneeland. She said, though, that she saw Kneeland when she left the closet after

she heard the pause in the shooting and went to the front room. Referring to the dates on the

photograph lineups, she said that she identified Barron Smith and Barry Smith on August 8,

2009, and identified Kneeland on August 12, 2009. She said she had known Kneeland for

years through mutual friends in the neighborhood and had been at the house with him many

times. She said the police called her after her initial statement and asked her to identify

Defendant Kneeland, but she did not remember the specifics of the conversation. She said

she did not remember what the Defendants wore the day of the shooting but knew that

Kneeland had a black shirt wrapped around his face.

Ethel Gray testified that she was at her aunt’s house on August 8, 2009, preparing for

a barbecue and that she had an altercation with Kentetra Matthews, who “used to go with

Skinny.” She said that five or ten minutes after the altercation, a gray car pulled up to where

Ms. Matthews was standing and that Defendants Barry Smith, Barron Smith, and Kneeland

were in the car. She thought “Kenisha” pulled a gun from her shirt and passed it to Barry

Smith.

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Ms. Gray testified that she saw Defendant Barron Smith step out of the car when

Defendant Barry Smith was driving. She said that her cousin grabbed her young nephew,

who was on the porch, and that she ran inside looking for somewhere to hide because she

was scared they were about to start shooting. She said more than twelve or thirteen people

were in the house, including Martha, her aunt Faith, her cousin Tonya, her son Cavion, her

nieces Micia Allen and Tonia Allen, Tonya Gray, her uncle Moon, and her uncle Dale. She

said that she ran to a bedroom and hid under a bed against a wall, that her son hid in the

drawer of a dresser in the same bedroom, and that her cousin Herman, Lantondra, and Ms.

Irby were in the bedroom hiding with her. She said she saw Ms. Irby get wounded in the

buttocks. She said that the shooting lasted about fifteen minutes and that the police and an

ambulance came to the scene. She said that the shooting ended when the Defendants used

all their bullets and that she did not know where they went after they finished shooting.

Ms. Gray testified that she gave a statement to the police about the shooting and

viewed photograph lineups. She said that she identified Defendant Barron Smith in one

photograph lineup and that her writing stated she saw him shoot. She identified Defendant

Barry Smith and Defendant Kneeland in two other photograph lineups. She saw Barron

Smith standing inside the front door shooting a gray gun, Kneeland in the car, and Barry

Smith driving the car but not in the house shooting.

Ms. Gray testified that about five minutes elapsed between the time she saw

Defendants Kneeland and Barry Smith in the car and the time the shooting began. She said

that they got out of the car and started shooting and that she ran and hid because she was

terrified. She said bullets were coming from every angle of the house. She said that none

of her family had guns and that she did not have a weapon. She identified a picture of her

aunt’s house with a baby car seat on the front porch and said the baby was in the seat when

the Defendants arrived.

On cross-examination, Ms. Gray testified that at the time of the shooting, she did not

know Defendants Barron Smith and Barry Smith’s given names. She said that the

Defendants’ car stopped beside the bushes in front of her aunt’s house, that she was sitting

in the middle of the front porch, and that she ran inside before the shooting began. She said

that by the time she was able to get inside, shots were being fired. She said that the five

people on the porch ran inside when she did and that about twelve people were already

inside.

Ms. Gray testified that she had heard Defendant Barron Smith’s name but that she

knew him only as “Fat.” She said she wrote “Barron Smith” on the photograph lineup after

she saw the name tattooed on her cousin, who had previously dated him. She said that the

Defendants drove a gray car, that Defendant Barry Smith was driving, that Barron Smith was

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sitting on the front seat, and that Defendant Kneeland was on the back seat. She said that

Barron Smith jumped out of the car and came to the front door and that she never saw Barry

Smith or Kneeland at the front of the house. She said she was near Ms. Irby throughout the

incident. She said she heard more than ten shots but agreed that the statement she gave to

the police showed she heard six to eight shots.

Ms. Gray testified that after the shooting, she stayed at her aunt’s house until the

police arrived. She said that she did not remember anyone moving the chairs from the front

porch but that they were probably moved when everyone ran from the porch. She said the

baby carrier was the only thing left on the porch. She said that Defendant Barry Smith was

driving and that he never said anything to her or anyone else to her knowledge. She said that

Kenisha was on the backseat in the car with the Defendants and that she saw Kenisha pass

Defendant Barry Smith a weapon when the car stopped in front of the house. She said that

when she saw the car approach, she told everyone on the porch the Defendants were about

to shoot, that shooting began as soon as she made the statement, and that everyone on the

porch ran in the house. She said that her cousin grabbed the baby and that she helped her two

nieces, her nephew, and her son run in the house. She said she did not see anyone shooting

before she ran inside. She admitted she and the others in the house talked about what

happened that day.

Ms. Gray testified that the shooting occurred around 1:00 p.m. and lasted until about

1:15 p.m. and that the police arrived around 1:30 p.m. She said the ambulance came to treat

her cousin, Ms. Irby, who was also known as Erica Harris. She said that Cynthia Gray, also

known as Becky, was on the porch with her and that Martha Gray was in the house. She said

that the Defendants’ car came toward the front of the house and that the tree in the front yard

did not block her view of the car.

Ms. Gray testified that she did not know who was in the living room when she ran into

the house. She said that she hid under one of the beds in the bedroom and that her cousin

Marico hid under the other bed. She said she could see the front door from her position

under the bed and saw Defendant Barron Smith shooting.

Ms. Gray testified that she told the police that Defendant Kneeland had been shooting

but agreed his name was not in her written statement to the police on the day of the incident.

She said that she told the police four people were in the car and that she identified

Defendants Barron Smith and Barry Smith. She said that she did not know Kneeland’s name

but that she told the police she could recognize him in a photograph lineup.

Ms. Gray testified that she went to the police station four days after the shooting to

give another statement and to identify Defendant Kneeland in a photograph lineup. She said

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that each time she gave a statement, the police typed the statement and that she signed it. She

said she did not see Kneeland with a gun or see him shooting. She said she saw him in the

car but did not see him get out.

Cynthia Gray testified that she was at her sister’s house preparing for a barbecue on

August 8, 2009, and that her nephew, Darryl Gray, had a “real heated” argument with

Defendant Barron Smith. She said that she went into the house because she thought the

argument was becoming “confrontational” and that Barron Smith left in a gray car, which she

saw circle the block twice as she stood in the doorway. She said that the third time the car

circled, two men got out of the car and that she went to the back of the kitchen and laid on

the floor. She said she was on the floor about four minutes when the first shots were fired

through the side door window. She said that a few minutes later, Barron Smith came through

the door and kept shooting “like he owned the place” and that Defendant Barry Smith was

standing near the driveway shooting. She said that after she saw Barron Smith come in the

door, she crawled to the other side of the door and that she was scared for her life. She said

that he emptied his gun and left. She said that she stood up and tried to leave through the

back door but that someone she could not see was shooting in the back. She said she

returned to the floor and crawled to look out a window. She said that she saw Defendant

Kneeland shooting on one side of the house and that he ran and got into a gray car. She

named thirty-five people who were in the house, including Ethel Lynn and her brother Darryl

Gray, who were both listed as victims in the indictment, and said a lot of children were there.

Ms. Gray testified that the shooting lasted twenty to twenty-five minutes and that she

did not have a weapon. She said that many people called 9-1-1 and that she called and told

the dispatcher to send the police quickly because children were in the house. She said her

niece, Erica Irby, was shot. She said the police wrote the victims’ names and asked them

what happened. She said she went with the police and gave a statement. She viewed two

photograph lineups and identified Defendants Barron Smith and Barry Smith. She said that

she did not know them personally and did not know their real names at the time but that she

knew them because they visited her sister’s house and were friends with her sister’s children.

Ms. Gray testified that when the shooting stopped, she tried to check on everyone and

that people were hiding everywhere. She said that Defendant Barron Smith’s gun was black

and silver, that Defendants Kneeland’s and Barry Smith’s guns were both black, and that all

three guns were handguns. She said she did not see anyone in her family shooting at the

Defendants. She said that after the shooting, she saw the Defendants run to their car and

leave.

On cross-examination, Ms. Gray testified that she arrived at Martha Gray’s house

about 10:30 a.m. on August 8, 2009, and that everyone arrived about that time to bring food

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and to prepare for the barbecue. She said that Erica Irby and Ethel Gray were already there

and had brought her sister, who was Ms. Irby’s mother. Although she was unsure, she said

the shooting occurred around 2:45 or 3:00 p.m.

Ms. Gray testified that the altercation she saw was between Darryl Gray and

Defendant Barron Smith. She recalled testifying previously that the altercation was between

Darryl Gray and Defendant Barry Smith and said all three were arguing, “taking turns with

each other.” She said that she saw Barron Smith driving, that the car stopped down the

street, that one of the Defendants got out of the car, went into a house, and jumped back into

the car, and that the car circled the block twice before stopping again. She said three people

got out of the car with guns in their hands but did not remember in which hand they held the

guns. She said she ran to hide in the kitchen. She said that Barron Smith stood inside the

house at the front door, that she saw Kneeland get out of the car before she took cover, and

that she saw Barry Smith shooting in the driveway on the side of the house.

Reading from a statement she made August 8, 2009, at 8:36 p.m., Ms. Gray testified

that she told the police that she arrived at the house about 3:00 or 3:30 p.m. and that she saw

two men get out of the car. She agreed her previous statements were different from her

testimony at the trial but said she was nervous that day because of the shooting. She said she

was not familiar with guns. Reading again from her previous statement, she said she told the

police that she saw a black .38 with a brown handle and a nine-millimeter gun. She said that

she told the police she could have been wrong because she did not know guns well but that

her uncertainty was not reflected in her statement. She said that her statement did not have

information about Defendant Barron Smith’s shooting a black and silver gun and that the

statement did not contain many of the things she told the police.

Ms. Gray testified that Defendant Barron Smith was in the car when he and Darryl

Gray were arguing and that she was sitting on the porch when she saw them. She said she

did not see Mr. Gray display or shoot a gun. She said that more than twenty people were in

the house at the time of the shooting, including babies, pregnant women, and her sick sister.

Ms. Gray testified that she was unsure who was driving the car when it passed the

house as she was trying to take cover. She said she entered the house when the car parked

and saw the Defendants leave the car with guns. She said that Defendant Barry Smith did

not come into the house and that looking through a window after Defendant Barron Smith

stopped shooting, she saw Barry Smith fire two shots. She said she did not tell the police she

saw Barry Smith shooting and agreed the information was not in her statement. She said that

the police must have left information out of her statement because a lot was happening and

that she also could have left information out because she was shaken.

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Ms. Gray testified that she had to stand up at the trial to see a photograph because it

was of poor quality, not because of her eyesight. She said she was prescribed eyeglasses but

did not wear them. She said that she was both farsighted and nearsighted but that she could

see “pretty good.” She said that she arrived at the barbecue about 10:30 a.m., not 3:30 p.m.

as she told the police.

Ms. Gray testified that no one told her anything about the shooting, that she was there

and saw it, and that she made a 9-1-1 call. She said she viewed the photograph lineups and

told the police she could identify the shooters. Her statement said that she identified

Defendants Barron Smith and Barry Smith and that she was “120 percent” sure of their

identity. She said that she told the police that if they showed her a photograph, she could

identify the third shooter but that she did not know his name at the time. She admitted

someone told her his name. She said two Tashas were at the house, Tasha Gray and another

Tasha, who was Shell’s friend. She said she did not know Defendant Kneeland’s name but

knew who he was because his father ran a church close to where she previously lived and

because she was a school parent where he attended school. She said Kneeland wore blue

jean shorts and a white t-shirt with a black shirt draped over his neck the day of the shooting.

Eddie Heaston, a 9-1-1 dispatcher and the keeper of records, testified that every 9-1-1

call was recorded from the time the line was answered until the call was disconnected. He

agreed his office had a business duty to record the calls and said the call recordings were kept

for eighteen months unless a request was made to hold them longer. He agreed the

recordings were kept in the course of regularly conducted 9-1-1 operator and office business

activity. He identified and said he had listened to the full recording of the calls received on

August 8, 2009, beginning at 5:08 p.m., from the same location as the shooting. He

identified a “slightly edited” version of the recording, which he had heard, and it was played

for the jury.

On cross-examination, Mr. Heaston testified that all the calls originated from cell

phones in the area of the address of the shooting. He said that during one of the calls, the

caller said someone at the house had called her, told her about a shooting, and asked her to

call 9-1-1 and that the dispatcher typed that the call was from a woman at an address on the

same street as the shooting. He said, though, that the cell phone towers gave the vicinity of

a call, not the exact address.

The 9-1-1 recording contained multiple calls from different people. Several people

were screaming but much of the communication was indiscernible. The first female caller

asked for the police because someone was shooting. A male caller gave the intersection

where the house was located. A female caller gave the address of the house and her phone

number to the ambulance dispatcher and said someone had been shot but would not answer

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questions. Another female caller gave the address of the house, and another caller reported

that a female victim had been shot. Tasha Allen called 9-1-1, requested police, and said

someone called and told her that “Fat” shot at her aunt’s house and that her cousin had been

shot. She said she was not there but someone had called her. A male caller requested the

police and an ambulance and said his female cousin had been shot and was bleeding from her

buttocks.

Upon this evidence, Defendants Baron Smith, Barry Smith, and Kneeland were each

convicted of eight counts of aggravated assault, one count of reckless endangerment

committed with a deadly weapon, eight counts of reckless endangerment, and one count of

aggravated criminal trespass. See T.C.A. §§ 39-13-102, 39-13-103, 39-14-406. The trial

court merged the eight counts of reckless endangerment with the eight counts of aggravated

assault. Defendant Barry Smith received an effective ten-year sentence. Defendant Barron

Smith received an effective fourteen-year sentence. Defendant Julian Kneeland received an

effective eight-year sentence. This appeal followed.

I

The Defendants contend that the evidence is insufficient to sustain their convictions.

They assert that the evidence is insufficient to establish their identity as the shooters because

the witness testimony was inaccurate and contradictory. They also assert that the evidence

did not show six of the eight victims named in the indictment were placed in fear of

imminent bodily injury. They argue that the victims in Counts 13, 17, 21, 29, 33, and 37 did

not testify and that the witnesses who did testify did not state that the other six were in fear

of imminent bodily injury. The State counters that the evidence is sufficient.

Our standard of review when the sufficiency of the evidence is questioned on appeal

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). We do not reweigh the evidence but

presume that the trier of fact has resolved all conflicts in the testimony and drawn all

reasonable inferences from the evidence in favor of the State. See State v. Sheffield, 676

S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

Questions about witness credibility are resolved by the jury. See State v. Bland, 958 S.W.2d

651, 659 (Tenn. 1997).

“‘A crime may be established by direct evidence, circumstantial evidence, or a

combination of the two.’” State v. Sutton, 166 S.W.3d 686, 691 (Tenn. 2005) (quoting State

v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998)). Circumstantial evidence alone may be

sufficient to support a conviction. State v. Richmond, 7 S.W.3d 90, 91 (Tenn. Crim. App.

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1999); State v. Buttrey, 756 S.W.2d 718, 721 (Tenn. Crim. App. 1988). The standard of

proof is the same, whether the evidence is direct or circumstantial. State v. Dorantes, 331

S.W.3d 370, 379 (Tenn. 2011). Likewise, appellate review of the convicting evidence “‘is

the same whether the conviction is based upon direct or circumstantial evidence.’” Id.

(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

Relevant to this appeal, aggravated assault occurs when a person “[i]ntentionally or

knowingly commits an assault . . . and . . . [c]auses serious bodily injury to another [or] [u]ses

or displays a deadly weapon[.]” T.C.A. § 39-13-102(a)(1)(A)(i)-(ii) (2010). An assault

occurs when a person “(1) Intentionally, knowingly or recklessly causes bodily injury to

another; (2) Intentionally or knowingly causes another to reasonably fear imminent bodily

injury[.]” Id. at § 39-13-101(a)(1)-(2) (2010). “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.” Id. at § 39-11-302(b) (2010). “When acting knowingly suffices to

establish an element, that element is also established if a person acts intentionally.” Id. at §

39-11-301(a)(2) (2010). “[A] person . . . acts intentionally with respect to the nature of the

conduct or to a result of conduct when it is the person’s conscious objective or desire to

engage in the conduct or cause the result.” Id. at § 39-11-302(a).

Reckless endangerment is committed when a person “recklessly engages in conduct

that places or may place another person in imminent danger of death or serious bodily

injury.” T.C.A. § 39-13-103(a) (2010). Reckless endangerment is a Class A misdemeanor

unless it is committed with a deadly weapon, in which case it is a Class E felony. Id. at § 39-

13-103(b)(1)-(2).

Aggravated criminal trespass occurs when a person “enters or remains on property

when: (1) [t]he person knows the person does not have the property owner’s effective

consent to do so; and (2) [t]he person intends, knows, or is reckless about whether such

person’s presence will cause fear for the safety of another[.]” T.C.A. § 39-14-406(a)(1)-(2)

(Supp. 2013). “Enter” means “intrusion of the entire body.” Id. at 39-14-406(b). When the

aggravated criminal trespass is committed in a habitation, it is a Class A misdemeanor. Id.

at § 39-14-406(c).

A. Identity

With regard to the Defendants’ argument that the testimony about their identities was

insufficient, we acknowledge that the evidence was conflicting. The duty of the jury, as the

trier of fact, was to resolve those inconsistencies by crediting the evidence worthy of belief

and discrediting the evidence that was less trustworthy. On appeal, the defendant has the

burden of demonstrating that the evidence is insufficient. State v. Tuggle, 639 S.W.2d 913,

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914 (Tenn. 1982). The appellate court resolves all conflicting testimony in favor of the jury’s

verdict and the trial court’s judgment. Id.

In the light most favorable to the State, each of the eye witnesses identified the

Defendants at the trial and in photograph lineups after the shooting. Although on cross-

examination she denied seeing the shooters, Martha Ann Gray identified the Defendants as

the shooters during direct examination and in photograph lineups and was familiar with them

because they had been to her house, eaten, and stayed the night. Darryl Gray argued with

Defendants Barry Smith and Barron Smith shortly before the shooting, and the Defendants

left in a gray car with Barron Smith driving. They circled the block twice before stopping

down the street where one Defendant got out, went inside a house, and returned to the car.

The car continued and stopped in front of the house where the shooting occurred. Ethel Gray

saw the Defendants arrive at the house in a gray car with Barry Smith driving, Barron Smith

on the front seat, and Defendant Kneeland on the back seat and saw a weapon passed to

Barry Smith. Cynthia Gray saw three people leave the car with guns in their hands and

described the Defendants’ guns. Ethel Gray and Cynthia Gray saw Barron Smith enter

through the front door shooting. Although Erica Irby denied seeing Barron Smith at the door

shooting, she saw him in a silver car with Kneeland and Barry Smith as it approached the

house. Cynthia Gray saw Kneeland get out of the car before she took cover, saw him

shooting on one side of the house, and saw him get into a gray car after he finished shooting.

She also saw Barry Smith shooting in the driveway on the side of the house. Erica Irby saw

Kneeland and Barry Smith standing in front of the door shooting into the house when she

was standing in the middle of the living room.

Although inconsistencies exist in the witnesses’ statements to the police and their

testimony at the trial, the record shows that approximately thirty bullet holes were found

inside the house, that the shooting lasted from ten minutes to one hour, and that all three

Defendants were seen at the house during the shooting with guns. We conclude that a

rational trier of fact could have resolved the conflicts in favor of the State and found that the

Defendants were the shooters.

B. Fear of Imminent Bodily Injury

“The element of ‘fear’ is satisfied if the circumstances of the incident, within reason

and common experience, are of such a nature as to cause a person to reasonably fear

imminent bodily injury.” State v. Gregory Whitfield, No. 02C01-9706-CR-00226, slip op.

at 4 (Tenn. Crim. App. May 8, 1998), perm. app. denied (Tenn. Dec. 7, 1998). “A victim’s

fear of imminent bodily injury may be proven with circumstantial evidence.” State v. Jessie

James Austin, No. W2001-00120-CCA-R3-CD, slip op. at 5 (Tenn. Crim. App. Jan. 25,

2002) (concluding that although only one victim testified, circumstantial evidence was

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sufficient to show that the defendant’s actions caused both victims to reasonably fear

imminent bodily injury), perm. app. denied (Tenn. July 15, 2002); see also State v. Harry

Jamieson, No. W2003-02666-CCA-R3-CD, slip. op. at 9 (Tenn. Crim. App. Dec. 23, 2004)

(concluding that the evidence was sufficient to infer that two victims who did not testify

reasonably feared imminent bodily injury when another witness testified that the defendant

confronted the victims with a gun, ordered them to the floor, and pointed the gun at the two

victims, who were hysterical as they lay face down on the floor during the robbery).

In the light most favorable to the State, the evidence shows that Erica Irby, Ethel

Gray, Lantandra Harris, Mario Gray, Darryl Gray, Dercedes Gray, and Cavion Gray, who

were the victims in Counts 5, 9, 13, 17, 29, 33, and 37, were in the house when the

Defendants were shooting. Erica Irby hid in a closet during the shooting and was struck by

a bullet. Ethel Gray ran and hid under a bed because she was scared and saw Ms. Irby get

shot. Lantandra Harris hid in the same bedroom as Martha Ann Gray and Ethel Gray and in

the closet with Erica Irby. Martha Ann Gray said Mario was at her house that day. Darryl

Gray was on the porch with others when Ms. Irby arrived for the barbecue, and Cynthia Gray

saw him at the house. Dercedes Gray came from the back of the house toward the front

during the shooting when Ms. Irby was hiding in the closet. Ethel Gray’s son, Cavion, hid

in a drawer of a dresser in the bedroom.

The witnesses who were inside the house at the time of the shooting testified that they

were scared. Martha Ann Gray said that she feared for her life and was “scared to death” as

she hid on the floor. She said everyone ran into the house and hid when the shooting began.

During the shooting, she heard “hollering, bullets, people screaming, [and] bullets flying

from every angle.” She called 9-1-1 when she was lying on the floor and heard others in the

house calling 9-1-1. Ms. Irby testified that she was distraught and scared because she had

never been in a similar situation and that bullets came from everywhere. She said that when

she arrived, about ten people were outside and that they ran inside the house when they heard

gunshots. Ethel Gray said that she ran inside and hid because she was terrified the

Defendants were about to start shooting and that bullets came from every angle of the house.

Cynthia Gray said she was scared for her life. Officer Wilson said the scene was chaotic

when he arrived. Officer Ellis found approximately thirty bullet holes inside the house,

collected eight shell casings and two bullet fragments inside, found blood on the floor, and

collected eight spent shell casings on the sidewalk in front of the house, one spent shell

casing in the front yard near the porch, and another spent shell casing in the front wall of the

house.

This court has concluded that fearfulness may be shown by a concern for self-defense,

the inability to concentrate, and turning to the police for help. See State v. Tommy Arwood,

Jr., No. 01C01-9505-CC-00159, slip op. at 6 (Tenn. Crim. App. May 24, 1996); see also

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State v. Jamie John Schrantz, No. W2002-01507-CCA-R3-CD, slip op. at 4 (Tenn. Crim.

App. Dec. 2, 2003). Although the record does not show any self-defense was attempted, self-

preservation was. The record reflects that Erica Irby, Ethel Gray, Lantandra Harris, Mario

Gray, Darryl Gray, Dercedes Gray, and Cavion Gray all hid inside the house during the

shooting. Martha Ann Gray called 9-1-1 for help and heard others do the same. The

witnesses who testified at the trial said they feared for their lives. We conclude that the

circumstances of the incident would reasonably cause the victims in Counts 5, 9, 13, 17, 29,

33, and 37 to fear imminent bodily injury and that the evidence is sufficient as to these

counts.

Regarding the Defendants’ argument that the record does not show Autumn Allen, the

victim named in Count 21, was in the house, we find no evidence that Ms. Allen was present

during the shooting. Ms. Allen did not testify, and nothing in the record shows she was there.

A rational trier of fact could not have found the essential elements of aggravated assault upon

Ms. Allen without evidence of her presence at the house where the shooting occurred. The

Defendants’ convictions for aggravated assault against Autumn Allen are reversed, and the

charge is dismissed.

II

The Defendants contend that the trial court erred in allowing the jury to hear the 9-1-1

recording over their hearsay objections. The State responds that the court properly allowed

the evidence.

During the trial, a jury-out hearing was held to determine whether the 9-1-1 recording

would be admitted as evidence. The prosecutor sought to introduce the recording as a

business record. The Defendants objected, contending that the recording was hearsay. They

argued that an authentication issue existed because the recording was a “convolution” of 9-1-

1 recordings and that it was unclear who was making the statements during portions of the

recordings. The State responded that the recording was admissible hearsay under Tennessee

Rule of Evidence 803 because it is a record of a regularly conducted business activity and

that one of the State’s witnesses, the 9-1-1 supervisor, could identify the dispatchers in the

recording. Defendant Barron Smith responded that authentication of the dispatchers was not

the issue but rather the identification of the callers.

After listening to the recording, the trial court determined that the “individuals

involved were really suffering from the incident[.]” The court stated that the callers sounded

scared and that chaos and screaming were audible. It found that the recording satisfied “all

the requirements” and that the declarants were operating under the excitement of the events.

The court overruled the objections and ordered the statements about an earlier shooting at the

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house be redacted. Defendant Kneeland renewed his hearsay objection before the tape was

played for the jury. The court found that “besides the business act, [the calls] are excited

utterances” and allowed the tapes to be played as an exception to the hearsay rule.

“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the

trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tenn. R. Evid.

801(c). Hearsay is not admissible unless admission is authorized by the evidence rules or by

other controlling provisions of law. Id. at 802. One exception to the hearsay rule is for an

excited utterance, “[a] statement relating to a startling event or condition made while the

declarant was under the stress of excitement caused by the event or condition.” Id. at 803(2).

Our supreme court has stated three prerequisites to admission pursuant to the excited

utterance exception:

The first requirement is “a startling event or condition” that “‘suspend[s] the

normal, reflective thought processes of the declarant.’” State v. Stout, 46

S.W.3d 689, 699 (Tenn. 2001) (quoting State v. Gordon, 952 S.W.2d 817, 820

(Tenn. 1997)) (other internal quotations omitted) [(abrogated by statute on

other grounds as stated in State v. Odom, 137 S.W.3d 572, 580-81 (Tenn.

2004))]. Second, the statement must “relate to” the startling event or

condition. Id. This broad requirement offers “considerable leeway” such that

“the statement may describe all or part of the event or condition, or deal with

the effect or impact of that event or condition.” Gordon, 952 S.W.2d at 820

(quotation omitted); [Neil P.] Cohen et al., [Tennessee Law of Evidence] §

8.07[3][c] at 8-76 [(5th ed. 2005)]. The third and final requirement dictates

that the declarant make the statement while “under the stress or excitement

from the event or condition.” Stout, 46 S.W.3d at 699-700. This requirement

considers a variety of factors, including the interval of time between the

startling event and the statement. Id. at 700.

State v. Franklin, 308 S.W.3d 799, 823 (Tenn. 2010) (footnotes omitted). The “ultimate test”

for determining the admissibility of an excited utterance is “spontaneity and logical relation

to the main event and where an act or declaration springs out of the transaction while the

parties are still laboring under the excitement and strain of the circumstances and at a time

so near it as to preclude the idea of deliberation and fabrication.” State v. Smith, 857 S.W.2d

1, 9 (Tenn. 1993).

The qualifying startling event occurred when the Defendants shot handguns at the

house where a group had gathered for a family barbecue. Testimony at the trial established

that the people at the house ran to hide when the shooting began. The witnesses at the trial

testified that they were scared for their lives. In the 9-1-1 recording, the callers screamed and

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cried. The statements in the recording related to the startling event because they described

the location of the shooting, what happened, and who was injured. Mr. Heaston testified that

the calls originated from cell phones at the address of the shooting on the day of the shooting.

The callers made the statements while “under the stress or excitement from the event or

condition” because they called 9-1-1 during or immediately after the shooting. Although

testimony varied about the time of the shooting, all witnesses agreed that the shooting

occurred sometime in the afternoon on August 8, 2009. The 9-1-1 calls began at 5:08 that

afternoon. Cynthia Gray testified that she called 9-1-1 around the time of the shooting.

Martha Ann Gray called 9-1-1 while she was hiding on the floor during the shooting. They

both heard others in the house calling 9-1-1.

Regarding the statements made on the 9-1-1 recording by Tasha Allen, who was not

at the house but was told by someone at the scene that a shooting had occurred, there are two

levels of out-of-court statements involved: (1) Ms. Allen’s statements to the dispatcher and

(2) the unknown caller’s statements to Ms. Allen that shooting had occurred at her aunt’s

house and that Defendant Barron Smith was one of the shooters. As stated above, the

unknown caller’s statements to Ms. Allen qualified as excited utterances. However, Ms.

Allen’s statements to the dispatcher relayed information she received from a third party, and

she lacked personal knowledge of the matter.

“The only competency requirement for an excited utterance under Rule 803(2) is that

the declarant must have had an opportunity to observe the facts contained in the extrajudicial

statement.” State v. Land, 34 S.W.3d 516, 529 (Tenn. Crim. App. 2000). An excited

utterance is inadmissible if the declarant lacked personal knowledge. Id. Rule 603 provides

that “[a] witness may not testify to a matter unless evidence is introduced sufficient to

support a finding that the witness has personal knowledge of the matter. Evidence to prove

personal knowledge may, but need not, consist of the witness’s own testimony.” Personal

knowledge may be inferred from the statements and the surrounding facts and circumstances.

Land, 34 S.W.3d at 529. “[T]he party offering the testimony must introduce sufficient

evidence to support a jury finding that the witness had personal knowledge of the matter.”

Id. No evidence in the record shows that Ms. Allen had personal knowledge that her aunt’s

house or her cousin were shot. The State failed to show that Ms. Allen either saw or

otherwise perceived the shooting, and the record suggests she did not.

The trial court did not err in admitting the 9-1-1 recording as an excited utterance but

erred in admitting Ms. Allen’s portion of the recording because she lacked personal

knowledge of the events. We conclude, however, that the error was harmless. See T.R.A.P.

36(b). The other callers, who were at the house during the shooting, told the dispatchers

information similar to that Ms. Allen relayed. Further, the evidence at the trial corroborated

the information.

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A. Defendant Barry Smith

Defendant Barry Smith argues that the discernable portions of the recording were

irrelevant and played upon the emotions of the jury. The State argues that the issue is waived

because the Defendant did not object to relevancy at the trial. In the alternative, it argues that

the court did not abuse its discretion in admitting the tape and that the Defendants were not

prejudiced.

Generally, relief is unavailable to “a party responsible for an error or who failed to

take whatever action was reasonably available to prevent or nullify the harmful effect of an

error.” T.R.A.P. 36(a). A party may not assert one basis for excluding evidence at the trial

and a different basis on appeal. State v. Adkisson, 899 S.W.2d 626, 635 (Tenn. Crim. App.

1994). Because Defendant Barry Smith failed to make a contemporaneous objection to the

admission of the 9-1-1 recording on any basis other than hearsay, he has waived his issue

concerning the recording’s relevance. See Tenn. R. Evid. 103(a)(1).

B. Defendant Barron Smith

Defendant Barron Smith argues that Tasha Allen’s 9-1-1 call was not an excited

utterance because she stated she was not at the house where the shooting occurred and that

her call was prejudicial, not harmless, because she was the only caller to name him as a

shooter. He also argues that the 9-1-1 recording was not properly authenticated because it

was admitted under the excited utterance exception, that the State only authenticated it as a

business record, and that the callers and the dispatchers were not identified.

Regarding Ms. Allen’s 9-1-1 call, as we discussed above, the trial court erred in

admitting Ms. Allen’s portion of the recording. Although Ms. Allen was the only caller to

identify one of the shooters by the name “Fat,” Martha Ann Gray, Ethel Gray, and Cynthia

Gray identified Defendant Barron Smith by his nickname, “Fat,” at the trial and testified that

he was one of the shooters. The error was harmless. See T.R.A.P. 36(b).

Regarding Defendant Barron’s argument that the hearsay statements were not

authenticated as excited utterances, we acknowledge that pursuant to Rule 901(b)(5) the

voices on the 9-1-1 tape could be identified “by opinion based upon hearing the voice at any

time under circumstances connecting it with the alleged speaker.” Tenn. R. Evid. 901(b)(5).

We note, though, that this provision of Rule 901 is an illustration only, not a limitation. Id.

The rule provides that the “requirement of authentication or identification as a condition

precedent to admissibility is satisfied by evidence sufficient to the court to support a finding

by the trier of fact that the matter in question is what its proponent claims.” Tenn. R. Evid.

901(a). Once this foundation is presented, the “‘trier of fact then makes the ultimate decision

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of whether the item is actually what it purports to be.’” State v. Hinton, 42 S.W.3d 113, 127

(Tenn. Crim. App. 2000) (quoting Cohen et al., § 901.1 at 613 (3d ed. 2005)).

Eddie Heaston testified that he was the custodian of the 9-1-1 recording. He

explained that the calls were recorded from the time the line was answered until the call was

disconnected and said the call recordings were kept for eighteen months. Before the

recording was played for the jury, he stated that he had listened to the recording of the calls,

that the calls were from August 8, 2009, and that the first call was made at 5:08 p.m. that day.

He stated during cross-examination that all the calls originated from cell phones in the area

of the address of the shooting. We believe that this evidence was sufficient for the trial court

to determine that the jury could find that the recording was of the 9-1-1 calls made

concerning the shooting on August 8, 2009. The jury was then free to determine whether the

recording was of the 9-1-1 calls involved in this case and the weight it should receive.

C. Defendant Julian Kneeland

Defendant Kneeland argues that contrary to the trial court’s ruling, the business record

exception is inapplicable to the 9-1-1 recording. He also argues that the trial court’s failure

to consider whether the declarants had personal knowledge was an abuse of discretion, that

the statements were irrelevant, and that the recording was prejudicial.

Regarding the argument that the business record exception is inapplicable to the 9-1-1

recording, we agree. To the extent the State argued and the trial court found that the 9-1-1

recording should be admitted pursuant to the business records exception to the hearsay rule,

the recording does not qualify for admission pursuant to that rule. See Tenn. R. Evid. 803(6).

The business records exception to the hearsay rule “specifically requires that the declarant

have ‘a business duty to record or transmit’ information.” Id., Advisory Comm’n Cmts.

Because the callers in the recording were the declarants of the statements, not the 9-1-1

supervisor or operators, who had a business duty, the recording would not have been

admissible under the business records exception. See Tony A. Phipps v. State, No. E2008-

01784-CCA-R3-PC, slip op. at 12 (Tenn. Crim. App. Oct. 11, 2010) (concluding that an

audio recording of a 9-1-1 call did not qualify for admission through the business records

exception to the hearsay rule because the declarant did not have a business duty to record or

transmit the information). In any event, the recording was properly admitted under the

excited utterance exception to the hearsay rule as stated above.

Regarding Defendant Kneeland’s argument that the trial court failed to consider the

declarants’ personal knowledge, “[t]he only competency requirement of an excited utterance

under Rule 803(2) is that the declarant must have had an opportunity to observe the facts

contained in the extrajudicial statement.” Land, 34 S.W.3d at 529. The personal knowledge

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requirement applies to excited utterances. State v. Stanley Phillip Chapman, No. W2004-

02404-CCA-R3-CD, slip op. at 22 (Tenn. Crim. App. Nov. 2, 2005), perm. app. denied

(Tenn. Mar. 27, 2006).

The trial court found that the “individuals involved were really suffering from the

incident,” that “something horrible had happened at the house,” and that the recording

satisfied “all the requirements.” Mr. Heaston’s testimony shows that the calls were made

on the day and at the time of the shooting. A victim described by some of the callers as a

cousin was shot in her buttocks, and Ms. Irby, who was the cousin of many of the people in

the house, was shot in her buttocks. The record reflects that the court found the phone calls

were based on personal knowledge. The records supports the trial court’s findings.

Regarding Defendant Kneeland’s argument that the 9-1-1 recording was irrelevant,

relief is unavailable to “a party responsible for an error or who failed to take whatever action

was reasonably available to prevent or nullify the harmful effect of an error.” T.R.A.P. 36(a).

A party may not assert one basis for excluding evidence at the trial and a different basis on

appeal. Adkisson, 899 S.W.2d at 635. Because Defendant Kneeland failed to make a

contemporaneous objection to the admission of the 9-1-1 recording on any basis other than

hearsay, he has waived his issue concerning the recording’s relevance. See Tenn. R. Evid.

103(a)(1). We conclude that the trial court did not abuse its discretion.

III

The Defendants contend that the trial court erred in several ways during sentencing.

The State contends that the court properly sentenced the Defendants.

At the sentencing hearing, Defendant Barry Smith chose not to make a statement. His

family was present at the sentencing hearing to support him. Counsel said that the family and

Barry Smith were cooperative with him in getting the matter resolved and that he thought

Barry Smith regretted what happened. Counsel also stated that although Barry Smith was

in town at the time of the shooting, he had been away at school on a basketball scholarship

before he was arrested.

Defendant Barron Smith stated that he was sorry about what happened to the Gray

family and that he was not a violent person. He said that he had seven- and ten-year-old

daughters and that he needed to be released to be with them because he loved being a father.

He said he attended school in Arkansas and did not get into trouble. He said that he had a

drug conviction when he was eighteen years old, that he did not know much about the law

then, and that he “took the first thing so [he could] get back out” because he had a child. He

said that he did not commit the crimes the State alleged but that the jury convicted him. He

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said that he had been incarcerated for two years, that he needed to get out of jail, and that his

incarceration was hurting his “folks.” He said the basketball coach at LeMoyne-Owen

Community College wanted him to re-enroll in school and participate in the basketball

program. Four of Barron Smith’s family members were in the courtroom to support him

during sentencing.

Defendant Kneeland stated that he understood the jury convicted him but that he was

not the person the State portrayed because if he were, he would have had a record before the

current convictions. He said he had two daughters and a family willing to support him. He

said he was trying to return to his life. He apologized for the situation with the Gray family.

The court read nine letters of support for Kneeland, and his father, stepmother, and other

family members were in the courtroom to support him during sentencing. Counsel stated that

a job was available for Kneeland should the court sentence him to probation.

Ms. Irby testified that the incident had a tremendous impact on the life of her family.

She said that she knew the Defendants were not bad or violent people but that they should

be held accountable for their actions. She said the Defendants knew what they were doing

when they chose to use guns that day. She said her family moved from the neighborhood

after the shooting. She said that she lived with the incident everyday and that it was “by the

grace of God” that she was still alive. She said that she was shot and that she did not think

justice was being served.

The trial court noted that the offense was a “bad one” and that it was “mindful” of the

victims’ testimony. It stated that the Defendants continued to deny the charges but that a jury

had convicted them. The court found that the Defendants “really show[ed] a total disregard

for the value of human life,” that the facts of the case were “horrific,” and that the offenses

were “an act of terrorism, human terrorism.” The court also noted “the extreme nature of the

offenses.”

In enhancing the Defendants’ sentences, the trial court applied enhancement factor

(10) because the offenses involved victims other than those named in the indictments.

T.C.A. § 40-35-114(10) (“The defendant had no hesitation about committing a crime when

the risk to human life was high.”). It found that although the factor did not apply to

aggravated assault convictions when the victims were each identified in the indictment, the

factor was applicable when there were victims who were not named in the charges. The

court found that ten victims were identified in the indictments and that the trial testimony

showed more than ten people were in the house, including children and adults.

The trial court applied enhancement factor (8) to Defendant Barron Smith’s sentence

because he was on probation at the time he committed the present offenses. T.C.A. § 40-35-

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114(8) (“The defendant, before trial or sentencing, failed to comply with the conditions of

a sentence involving release into the community.”). The court found that “this enhancement

factor is applicable when the defendant is being sentenced for a crime committed while on

probation or some other form of sentencing involving release in the community.”

In determining consecutive sentencing was appropriate, the trial court relied on the

facts as presented by the victims and credited by the jury’s verdict. The court found that the

Defendants were dangerous, that their behavior indicated no regard for human life, and that

they showed no hesitation about committing a crime where the risk to human life was high.

It determined that the sentences without consecutive sentencing were “inadequate” and that

consecutive sentencing related to the seriousness of the offenses involved.

In denying probation, the trial court reviewed the enhancement factors, presentence

reports, facts and circumstances of the offenses, criminal history, and expectation of

rehabilitation. The court relied on the Defendants’ backgrounds and found the facts of the

offenses were “just too extreme.” The court noted the offense was “another one of those

cases involving gun violence in our neighborhood” and found probation would depreciate

the seriousness of the offenses and would not provide deterrence.

The trial court sentenced Defendant Barry Smith as a Range I, standard offender to

five years for each aggravated assault conviction, one year for the reckless endangerment

committed with a deadly weapon conviction, and eleven months, twenty-nine days for each

misdemeanor conviction. The court sentenced Defendant Barron Smith as a Range II,

multiple offender to seven years for each aggravated assault conviction, three years for the

reckless endangerment committed with a deadly weapon conviction, and eleven months,

twenty-nine days for each misdemeanor conviction. The court sentenced Defendant

Kneeland as a Range I, standard offender to four years for each aggravated assault

conviction, one year for the reckless endangerment committed with a deadly weapon

conviction, and eleven months, twenty-nine days for each misdemeanor conviction. For each

Defendant, the trial court merged the eight counts of reckless endangerment with the eight

counts of aggravated assault and ordered Count 5 to be served consecutively to the remainder

of the convictions, which were to run concurrently.

The Tennessee Supreme Court adopted the present standard of review for sentencing

in State v. Bise, 380 S.W.3d 682, 706 (Tenn. 2012). The length of a sentence “within the

appropriate statutory range [is] to be reviewed under an abuse of discretion standard with a

‘presumption of reasonableness.’” Id. at 708. In determining the proper sentence, the trial

court must consider: (1) any evidence received at the trial and sentencing hearing, (2) the

presentence report, (3) the principles of sentencing and arguments as to sentencing

alternatives, (4) the nature and characteristics of the criminal conduct, (5) any mitigating or

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statutory enhancement factors, (6) statistical information provided by the administrative

office of the courts as to sentencing practices for similar offenses in Tennessee, (7) any

statement that the defendant made on his own behalf, and (8) the potential for rehabilitation

or treatment. T.C.A. §§ 40-35-102, -103, -210; see State v. Ashby, 823 S.W.2d 166, 168

(Tenn. 1991); State v. Moss, 727 S.W.2d 229, 236 (Tenn. 1986).

Challenges to a trial court’s application of enhancement and mitigating factors are

reviewed under an abuse of discretion standard. Bise, 380 S.W.3d at 706. We must apply

“a presumption of reasonableness to within-range sentencing decisions that reflect a proper

application of the purposes and principles of our Sentencing Act.” Id. at 707. “[A] trial

court’s misapplication of an enhancement or mitigating factor does not invalidate the

sentence imposed unless the trial court wholly departed from the 1989 Act, as amended in

2005.” Id. at 706. “So long as there are other reasons consistent with the purposes and

principles of sentencing, as provided by statute, a sentence imposed by the trial court within

the appropriate range should be upheld.” Id.

A. Defendant Barry Smith

Defendant Barry Smith contends that the trial court erred in ordering two of his

aggravated assault convictions to run consecutively. He argues that he is not a dangerous

offender under Tennessee Code Annotated section 40-35-115(b)(4) and that the court failed

to analyze whether consecutive sentencing was needed to protect the public or related to the

severity of the offense.

In determining Defendant Barry Smith’s sentence, the trial court found no previous

felony convictions. The court noted that the presentence report showed he had four

misdemeanor convictions, that he did not finish high school but earned his GED, and that he

had listed one job, which could not be verified by the probation officer. The court applied

enhancement factor (10). T.C.A. § 40-35-114(10). He received an effective ten-year

sentence.

Regarding Defendant Barry Smith’s argument that the trial court erred in ordering

consecutive sentencing, the determination of concurrent or consecutive sentences is a matter

left to the discretion of the trial court and should not be disturbed on appeal absent an abuse

of discretion. State v. Blouvet, 965 S.W.2d 489, 495 (Tenn. Crim. App. 1997). Consecutive

sentencing is guided by Tennessee Code Annotated section 40-35-115(b) (2010), which

states, in pertinent part, that the court may order sentences to run consecutively if it finds by

a preponderance of the evidence that “[t]he defendant is a dangerous offender whose

behavior indicates little or no regard for human life and no hesitation about committing a

crime in which the risk to human life is high.” Id. § 40-35-115(b)(4). Our supreme court

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concluded that when the imposition of consecutive sentences is based on the trial court’s

finding the defendant to be a dangerous offender, the court must also find “that an extended

sentence is necessary to protect the public against further criminal conduct by the defendant

and that the consecutive sentences must reasonably relate to the severity of the offenses

committed.” State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995); see State v. Lane, 3

S.W.3d 456, 461 (Tenn. 1999).

The trial court noted the “horrific” facts and “the extreme nature of the offenses” and

determined that consecutive sentencing related to the seriousness of the offenses involved.

The record supports the court’s findings that the nature of the offenses was extreme and

consecutive sentencing was reasonably related to the severity of the offenses. See Lane, 3

S.W.3d at 461. Although the court made no specific finding that the public needed

protection from Defendant Barry Smith’s further criminal conduct, we conclude that the

record supports the trial court’s imposition of consecutive sentencing. After an argument

between one of the Defendants and Darryl Gray, Barry Smith and his codefendants shot

handguns multiple times into a house occupied by more than ten people, including young

children, and struck one victim. His conduct warrants a finding that the sentences are

necessary to protect the public. We determine that the record supports the imposition of

consecutive sentences because Barry Smith is a dangerous offender, the sentences reasonably

relate to the severity of the offenses, and the sentences are necessary to protect the public.

B. Defendant Barron Smith

Defendant Barron Smith contends that the trial court erred in its application of

enhancement factors. He also contends that the court erred in ordering two of his aggravated

assault convictions to run consecutively because it did not consider public protection or the

severity of the offense. He argues the court made its determination based on what could have

happened instead of what actually happened.

In determining Defendant Barron Smith’s sentence, the trial court found that he was

a Range II, multiple offender because he had two previous felony convictions. The court

applied enhancement factors (8) and (10). T.C.A. § 40-35-114(8), (10). The court noted that

his presentence report included an inmate disciplinary report showing he was found guilty

of assaulting another inmate while in jail, that he dropped out of school, that he had smoked

marijuana but had allegedly quit, and that no employment information was provided. He

received seven years for each aggravated assault conviction, three years for the reckless

endangerment committed with a deadly weapon conviction, and eleven months, twenty-nine

days for each misdemeanor conviction. The court ordered two of the aggravated assault

convictions to run consecutively and the remainder of the convictions to run concurrently.

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Defendant Barron Smith argues that the trial court erred in applying enhancement

factor (10). He argues that high risk to human life and potential for bodily injury were

inherent to the offenses of aggravated assault and reckless endangerment and could not be

used to enhance his sentence. Enhancement factor (10) is generally inapplicable to an

aggravated assault conviction because “there is necessarily a risk to human life and the great

potential for bodily injury whenever a deadly weapon is used.” State v. Nix, 922 S.W.2d 894,

903 (Tenn. Crim. App. 1995). However, this court has concluded that when factor (10) is

inherent in the offense against the victim, it may apply if a person other than the victim was

in the area of risk. State v. Zonge, 973 S.W.2d 250, 259 (Tenn. Crim. App. 1997). The trial

court found that ten victims were identified in the indictments and that the trial testimony

showed more than ten people were in the house, including children and adults. The record

supports the court’s findings.

Defendant Barron Smith argues that everyone in the house was a victim named in the

indictment because Count 42 identified the victims as “Martha Gray, Cynthia Gray, and the

Children of the Gray family.” The indictment says “children.” The record shows that in

addition to the named victims, other adults, not only children, were at the house during the

shooting. Even if the description “children of the Gray family” was broadly interpreted to

mean all those present who were part of the extended Gray family, Martha Ann Gray said

that a child of a family friend hid in a dresser drawer. Cynthia Gray said that a woman

named Tasha, who was “Shell’s” friend, was at the house. Both of these victims are

identified as friends, not members of the Gray family. The trial court properly applied factor

(10).

Defendant Barron Smith argues that the trial court erred in applying enhancement

factor (8) because his failure to comply with the conditions of a sentence was based on his

being charged with the present offense. He argues that factor (8) should only apply when a

defendant has failed to comply with a condition of a sentence involving a release into the

community that is not the subject offense and that factor (13)(C) applies when the defendant

commits an offense while on probation. See T.C.A. § 40-35-114(8), (13)(C) (“At the time

the felony was committed, one (1) of the following classifications was applicable to the

defendant . . . Released on probation”).

Enhancement factor (8) contemplates a previous history of unwillingness to abide by

the conditions of release status and, therefore, cannot be triggered solely by the commission

of the offense for which the defendant is being sentenced. State v. Hayes, 899 S.W.2d 175,

186 (Tenn. Crim. App. 1995). The trial court improperly applied factor (8). However,

enhancement factor (13)(C) specifically addresses the enhancement of a sentence for a felony

committed while a defendant is on probation. Defendant Barron Smith concedes that factor

(13)(C) applies. The court’s misapplication of factor (8) does not invalidate the sentence

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because other reasons consistent with the purposes and principles of sentencing support the

within-range sentence. See Bise, 380 S.W.3d at 706.

Regarding Defendant Barron Smith’s argument that the trial court erred in ordering

consecutive sentencing, as noted above, the circumstances of the offense support the court’s

finding that Barron Smith is a dangerous offender whose behavior indicated little or no

regard for human life and had no hesitation about committing an offense when the risk to

human life was high. The record supports the court’s finding that consecutive sentencing

was reasonably related to the severity of the offenses, which is reflected in its determination

that consecutive sentencing related to the seriousness of the offenses involved. See Lane, 3

S.W.3d at 461. Although the court made no specific finding that the public needed

protection from Barron Smith’s further criminal conduct, we conclude that the record

supports the trial court’s imposition of consecutive sentencing. As stated above, after an

argument between one of the Defendants and Darryl Gray, Barron Smith and his

codefendants shot handguns multiple times into a house occupied by more than ten people,

including young children, and struck one victim. Further, according to an inmate disciplinary

report in the record, Barron Smith assaulted another inmate while incarcerated for the current

offenses, indicating he committed more violent acts. His conduct warrants a finding that the

sentences are necessary to protect the public. We determine that the record supports the

imposition of consecutive sentences because Barron Smith is a dangerous offender, the

sentences reasonably relate to the severity of the offenses, and the sentences are necessary

to protect the public.

C. Defendant Julian Kneeland

Defendant Julian Kneeland contends that the trial court erred in enhancing his

sentence under enhancement factor (10). He argues that risk to human life is inherent in the

offense of aggravated assault and that although the factor applies to people other than the

victims named in the indictment, Count 42 included “children of the Gray family.” He

argues that because the shooting occurred during a family barbecue, the people at the house

were children of the Gray family and that no proof established that at least one person was

not a family member and was in the zone of danger. He also contends that the court erred

in ordering two of his aggravated assault convictions to run consecutively because he was

a dangerous offender without making the required factual findings that consecutive

sentencing was necessary to protect the public and related to the seriousness of the offense.

In determining Defendant Kneeland’s sentence, the trial court found that he had

several misdemeanor convictions, that he had finished high school and attended some

college, and that he had held several jobs for various amounts of time. It took note of several

letters of support it received on the Defendant’s behalf. The court applied enhancement

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factor (10). T.C.A. § 40-35-114(10). He received four years for each aggravated assault

conviction, one year for the reckless endangerment committed with a deadly weapon

conviction, and eleven months, twenty-nine days for each misdemeanor conviction. The

court ordered two of the aggravated assault convictions to run consecutively and the

remainder of the convictions to run concurrently.

Regarding Defendant Kneeland’s argument that the trial court erred in applying

enhancement factor (10), this court has concluded that when factor (10) is inherent in the

offense against the victim, it may apply if a person other than the victim was in the area of

risk. Zonge, 973 S.W.2d at 259. Ten victims were identified in the indictment, and trial

testimony showed more than ten people were in the house, including children and adults,

during the shooting. The language in Count 42 identifying the victims as “Martha Gray,

Cynthia Gray, and the Children of the Gray family” does not preclude the application of

factor (10). The record shows that in addition to the victims named in the indictment, other

adults, not only children, were at the house and that at least two victims named in testimony

but not in the indictment were identified as friends of the Gray family. The trial court

properly applied enhancement factor (10).

Regarding Defendant Kneeland’s argument that the trial court erred in ordering

consecutive sentencing, we conclude that the court properly imposed consecutive sentences.

As noted above, the circumstances of the offense support the court’s finding that he is a

dangerous offender whose behavior indicated little or no regard for human life and no

hesitation about committing an offense when the risk to human life was high. The record

supports the court’s finding that consecutive sentencing was reasonably related to the severity

of the offenses. Although the court made no specific finding that the public needed

protection from Kneeland’s further criminal conduct, we conclude that the record supports

the court’s imposition of consecutive sentencing. After an argument between one of the

Defendants and Darryl Gray, Kneeland and his codefendants shot handguns multiple times

into a house occupied by more than ten people, including young children, and struck one

victim. His conduct warrants a finding that the sentences are necessary to protect the public.

We determine that the record supports the imposition of consecutive sentences because

Kneeland is a dangerous offender, the sentences reasonably relate to the severity of the

offenses, and the sentences are necessary to protect the public.

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In consideration of the foregoing and the record as a whole, we affirm the Defendants’

convictions except the aggravated assault convictions in Count 21, which we reverse and

dismiss. We vacate the judgments for the remaining aggravated assault and reckless

endangerment convictions and remand the case to the Shelby County Criminal Court for

entry of a single judgment for each aggravated assault conviction, noting merger of the

reckless endangerment convictions.

____________________________________

JOSEPH M. TIPTON, PRESIDING JUDGE

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