The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs September 3, 2014
STATE OF TENNESSEE v. SHAWN O’NEAL TALIAFERRO
Appeal from the Circuit Court for Haywood County
No. 6740 Clayburn Peeples, Judge
No. W2013-01620-CCA-R3-CD - Filed November 24, 2014
A Haywood County jury convicted the Defendant, Shawn O’Neal Taliaferro, of second
degree murder and possession of a weapon by a convicted felon. The trial court sentenced
the Defendant, as a Range II offender, to serve consecutive sentences of forty years for the
second degree murder conviction and four years for the possession of a weapon by a
convicted felon conviction, for a total effective sentence of forty-four years. On appeal, the
Defendant asserts that: (1) the evidence is insufficient to support his convictions; (2) the trial
court improperly admitted hearsay evidence; and (3) the trial court erred when it sentenced
the Defendant as a Range II offender and imposed consecutive sentences. After a thorough
review of the record and applicable law, we affirm the trial court’s judgments.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which A LAN E. G LENN
and R OBERT L. H OLLOWAY, J R., JJ., joined.
Samuel J. Muldavin, Memphis, Tennessee, for the Appellant, Shawn O’Neal Taliaferro.
Herbert H. Slatery, III, Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Garry
G. Brown, District Attorney General; and Jerald M. Campbell, Assistant District Attorney
General for the Appellee, State of Tennessee.
OPINION
I. Background and Facts
This case arises from the shooting death of David Lee Capers (“the victim”), on
September 3, 2010. A Haywood County grand jury indicted the Defendant for first degree
murder and possession of a weapon by a felon. At a trial on the charges, the parties
presented the following evidence: Dr. James Caruso, a Shelby County medical examiner,
testified as an expert witness in the field of pathology. Dr. Caruso confirmed that he
performed the autopsy on the victim. Referencing photographs taken at the time of the
autopsy, Dr. Caruso identified two contact gunshot wounds, one to the victim’s temple and
one to the victim’s forehead. Dr. Caruso explained that a contact wound occurs when a
weapon is held up against the skin when fired. Dr. Caruso stated that, in his opinion, the
victim was shot six times total. He observed seven gunshot wounds on the victim, but
concluded that one of the wounds was the result of the re-entry of a bullet. Dr. Caruso stated
that he also found what he believed to be “an old bullet” in the victim’s right arm.
Dr. Caruso testified that the victim’s cause of death was gunshot wounds to his head.
He stated that, based on the area of the brain in which the victim sustained injury, the victim
could have had some ability to move after being shot prior to his death. Dr. Caruso testified
that the manner of death was homicide.
Dr. Caruso testified that his examination revealed abrasions on the victim’s upper
extremities, back, and hip. Dr. Caruso said that toxicology testing revealed an elevated blood
alcohol “too high to be legally driving a vehicle” and the presence of cannabinoid, an active
ingredient in marijuana.
William Whitson, a Lauderdale County Sheriff’s Department deputy, testified that he
was dispatched to the Ripley Police Department on September 3, 2010, to speak with a
subject who had witnessed a crime in Lauderdale County. When he arrived, he met with the
subject, Kendell Turner, who was “extremely upset and frightened.” Mr. Turner advised
Deputy Whitson that he had been in a van with the Defendant, the victim, and “a Vaughn
subject.” Mr. Turner recounted to the officer that, while driving down a road, the Defendant
shot the victim twice in the head. Deputy Whitson said that he instructed Mr. Turner to write
out his statement and requested that deputies be sent to the area where Mr. Turner alleged
the victim had exited the van. After writing his statement, Mr. Turner advised Deputy
Whitson that he also knew the residence where the Defendant might be found. After driving
by the residence, Deputy Whitson began searching the area where Mr. Turner last saw the
victim. After crossing over into Haywood County, Deputy Whitson observed blood on the
roadway where it appeared “something had been dragged.”
Deputy Whitson testified that, at this point, he stopped the car, and Mr. Turner became
“very upset” and began crying. Deputy Whitson said that he waited for another deputy to
arrive and then walked approximately fifty yards down the road before finding the victim’s
body in an eight to ten foot ditch off the side of Highway 19. He described the area as “very
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grown up,” concealing the victim’s body. He estimated that the victim would have been
there for “quite awhile” before being discovered had authorities not been actively looking
for his body.
Kendell Turner testified that the victim was his “best friend.” He stated that he was
also friends with the Defendant and Joseph Vaughn. Mr. Turner recalled Labor Day
weekend 2010. He said that the victim had come into town, and a group gathered at Paul
Haynes’s house. He said that the Defendant, the victim, and Joseph Vaughn were all present.
At some point, these four men decided to leave Mr. Haynes’s house to go see the victim’s
sister. Mr. Turner explained that he drove the men in his mother’s van to Northcrest where
the victim’s sister, “Ashley,” lived. They remained there for twenty to thirty minutes before
going to a liquor store. Next, the men decided to go and get money from the victim’s mother.
Mr. Turner testified about the seating arrangement in the van as they drove to see the
victim’s mother. He said that he was in the driver seat, the victim was seated in the front
passenger seat, the Defendant was seated in the back passenger seat directly behind the
victim, and Joseph Vaughn was seated in the passenger seat directly behind the driver. As
he drove down Highway 19 toward Brownsville, the victim was talking about his life in
Decatur, Illinois, and showing pictures of his baby when Mr. Turner heard a “pow” like
someone had “slapped [the victim] in the head.” Mr. Turner stated that upon hearing the
“loud clap noise” he reflexively applied the car brakes. He looked over at the victim, who
was slumped over, and saw blood coming from the right side of the victim’s head. He said
that he saw the Defendant pulling “[a] little chrome gun” away from the victim’s head.
Mr. Turner testified that he continued driving and then heard a gun fired multiple
times. He applied the brakes again slowing the van, and the victim jumped out of the van.
Mr. Turner recalled that the Defendant stated “y’all know what this mother f**ker did to
me.” He said that he believed the Defendant was referencing “bad blood” between the victim
and Defendant. In response to the victim’s flight, the Defendant said “f**k that mother
f**ker ain’t dead,” and he ordered Mr. Turner to stop. Mr. Turner said that he turned the van
around and headed back toward Ripley telling the Defendant that the victim was dead. The
Defendant continued to tell Mr. Turner to stop the van. Mr. Turner did not stop and
continued driving back toward Ripley while the Defendant searched for bullets or shells in
the van. The Defendant told Mr. Turner to explain the blood in the van to his mother by
saying that the victim had borrowed the car.
Mr. Turner testified that he assured the Defendant he would not “tell on [him]” and
told the Defendant he “just want[ed] to get out.” Mr. Turner stopped the car, he and Joseph
Vaughn exited the van, and the Defendant drove away. Mr. Turner stated that he never saw
the van again but that he was told that “it got burnt up.” Mr. Turner said that one of Mr.
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Vaughn’s relatives came and picked up him and Mr. Vaughn, and that he later went to the
police about the shooting.
On cross-examination, Mr. Turner testified that earlier on the day of the shooting he
had been at Mary Nabers’s house playing Xbox, drinking, and smoking marijuana. He said
that he had not been employed for four or five years. Mr. Turner agreed that he had felony
convictions for possession of cocaine and aggravated assault.
Joseph Vaughn testified that he was friends with the Defendant, the victim, and Mr.
Turner. Mr. Vaughn recalled that he and the Defendant were at Paul Haynes’s home on
September 3, 2010, when the victim and Mr. Turner arrived in a van. At some point, he, the
Defendant, the victim, and Mr. Turner drove to Northcrest to see the victim’s sister. Mr.
Vaughn said that Mr. Turner drove the van, the victim sat in the front passenger seat with the
Defendant seated directly behind him, and he sat behind Mr. Turner. After visiting with the
victim’s sister, the men left Northcrest to go see the victim’s mother. Mr. Vaughn said that
the men were seated in the same positions in the vehicle as he had earlier described. He
recalled that as they drove down Highway 19, they talked and listened to the radio, “normal
stuff,” when the Defendant shot the victim. He said the Defendant fired one or two shots at
first, followed by five or six more gun shots. Mr. Vaughn stated that he observed the
Defendant firing the gun and that he threw up his hands because he “didn’t know what was
going on.”
Mr. Vaughn testified that he asked the Defendant what he was doing, and the
Defendant replied that the victim had “crossed him.” Mr. Vaughn said that he believed the
Defendant was referring to an incident that occurred in Illinois in 2008. He confirmed that
he observed the victim bleeding from his head. After the first round of gunfire, the victim
was “slumped over on the window.” Mr. Vaughn said that the victim turned around and
asked the Defendant why the Defendant shot him and that the Defendant then fired the gun
for the second time at the victim. The victim and the Defendant wrestled over the gun and
then the victim opened the van door and “fell out.” Mr. Vaughn said that the van was
moving at the time the victim exited but not “very fast.” He said that Mr. Turner was crying
and driving at the time. He described Mr. Turner as “in shock.” Mr. Turner turned the van
around at his next opportunity and began to drive back to Ripley. Mr. Vaughn said that the
Defendant wanted Mr. Turner to stop the van to find the victim but that Mr. Turner did not
stop.
Mr. Vaughn testified that, once they arrived in Flippin, Mr. Vaughn and Mr. Turner
“jumped out and ran.” Approximately twenty minutes after he and Mr. Turner fled from the
van, the Defendant called Mr. Vaughn’s cellular telephone to ask where Mr. Turner was. He
said that he and Mr. Turner waited on the side of the road until his cousin, Lester, came to
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get them.
Mr. Vaughn testified that he observed the Defendant shooting “toward the [victim’s]
face area.” He said that the Defendant fired the gun until he ran out of bullets.
Ashley Allen, the victim’s sister, testified that she had known the Defendant, Mr.
Vaughn, and Mr. Turner “all [her] life.” Ms. Allen stated that her brother called her on the
morning of September 3, 2010, when he arrived in Memphis. She said that she saw the
Defendant that morning on Walker Street and informed him that her brother was on his way
to Ripley. Ms. Allen denied any knowledge of “bad blood” between the victim and the
Defendant. Later in the day on September 3, 2010, the victim came to her home for fifteen
to twenty minutes. Ms. Allen identified a photograph the victim had taken of her during this
visit. She pointed out where the Defendant was located in the photograph behind her. She
recalled that the men arrived in a white van with Mr. Turner driving, the victim in the front
passenger seat, and the Defendant and Mr. Vaughn in the back seat. Ms. Allen stated that
this was the last time she saw the victim.
Cathy Ferguson, a Tennessee Bureau of Investigation (“TBI”) special agent, testified
that she responded to the area of Haywood and Lauderdale County line on Highway 19 to
assist in a homicide investigation. She said that the victim’s body was found a half mile
across the county line into Haywood County. Agent Ferguson identified photographs taken
at the crime scene. She said that there was an “intermittent” blood trail, seventy-two feet in
length, along the roadway leading up to where the victim’s body was found. She testified
that she measured the distance between the road and the top of the victim’s head and that it
was thirty feet. Agent Ferguson agreed that had Mr. Turner not provided information on
where to search, it would have taken “some time” to find the victim due to the overgrowth
of ragweed and grass along the road. She said the victim’s body would not have been visible
from a car driving along Highway 19.
Agent Ferguson testified that a bus ticket was found in one of the victim’s pockets.
The bus ticket indicated that the victim had arrived in Memphis, Tennessee, on September
3, 2010, at 8:25 a.m. from Decatur, Illinois. The victim’s Illinois driver’s license was also
found on his person. While at the scene, Agent Ferguson learned that the Lauderdale County
Sheriff’s Department had received a report of a van on fire in a field in Lauderdale County.
The owner of the vehicle was determined to be Mr. Turner’s mother, Mary Turner. Agent
Ferguson stated that the fire department was dispatched to the fire at 10:20 p.m. on
September 3, 2010. Agent Ferguson described the status of the van as “basically
incinerated.” She identified a cartridge casing that was recovered from the passenger front
area of the burned van but stated she found nothing else of “evidentiary value.”
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Agent Ferguson testified that the Defendant had already been taken into custody by
the time she arrived at the crime scene. She was not involved in the Defendant’s arrest but
interviewed him on September 4, 2010. She stated that the Defendant waived his rights and
agreed to speak with her. She recalled that the Defendant had an eighth grade education and
could not read or write other than his own name, so Agent Ferguson read the Miranda rights
to him. The Defendant appeared to understand the rights and signed the waiver form. As
Agent Ferguson began asking the Defendant questions, he became “very agitated.” The
Defendant denied any involvement in the victim’s death or recently having seen the victim.
At some point he admitted to having seen the victim on September 3, 2010. He said that he,
the victim, and Mr. Turner drove around in Mr. Turner’s mother’s van. He said they went
to Paul Haynes’s house and the victim’s sister’s home before he was dropped off at his home
between 8:00 and 9:00 p.m. Agent Ferguson said that she told the Defendant she did not
believe he was being truthful and that the Defendant became “very aggravated” and “upset,”
requesting to be returned to his jail cell.
Agent Ferguson testified that the victim’s cell phone was recovered from the Medical
Examiner’s office along with his clothing. Agent Ferguson said that the last activity on the
victim’s cell phone was at 7:41 p.m. on September 3, 2010. Agent Ferguson stated that she
also obtained the Defendant’s cell phone and call records. She noted that there were three
significant gaps in the Defendant’s telephone usage on September 3, 2010, one of which was
during the time frame that the victim was killed. She said that the Defendant received a
telephone call at 7:25 p.m. and then 8:15 p.m. was the next time he used his cellular
telephone to place a call. The Defendant made or received a total of 159 telephone calls on
September 3, 2010. The telephone records showed that the Defendant called Mr. Turner at
8:20 p.m. and Mr. Vaughn at 8:27 p.m. Agent Ferguson said that, in reviewing the telephone
records, she also noted a significant increase in phone calls from 8:15 p.m. until 10:20 p.m.,
when the van was found burning. She stated that, in her experience, when a crime has been
committed there is either an increase in cell phone usage or gaps in cell phone usage. She
explained that the gap in telephone usage from 7:25 p.m. to 8:15 p.m. was consistent with
the time frame authorities believed the victim was shot and that the increased cellular
telephone usage at 10:20 p.m. would be consistent with the Defendant needing to obtain a
ride after burning the van in the field.
Teri Arnie, a TBI forensic scientist, testified as an expert witness in the field of
firearms identification. Agent Arnie testified that she examined a fired cartridge case found
in the interior of the van and six fired bullets recovered from the victim’s body. As to the
fired cartridge case found in the van, Agent Arnie was able to determine that the case was
a Winchester 25 auto caliber cartridge case. Agent Arnie said that the bullets recovered from
the victim’s body were also 25 caliber and consistent with the cartridge case recovered from
the van.
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Robert P. Miles, III, a TBI forensic scientist, testified as an expert witness in the field
of gunshot primer residue analysis. Agent Miles stated that he performed an analysis on the
Defendant’s clothing worn the night of the shooting. He said that his examination and
analysis of the clothing revealed the presence of particles unique to gunshot primer residue.
He noted that the particles were located on the Defendant’s hat, indicating that the hat was
near a gun when it was fired or came into contact with a recently fired gun.
Jennifer Shipman, a TBI forensic scientist, testified as an expert in the field of
serology and DNA analysis. Agent Shipman tested six swabs containing blood taken off the
roadway. The DNA profile from the swabs matched the blood standard for the victim.
Frank Hubbard, a Decatur, Illinois Police Department detective, testified that in
October 2007, he investigated a shooting crime involving the victim and the Defendant in
Illinois. Initially, the victim denied involvement in the shooting, but later, through his
attorney, identified the Defendant as the shooter. Subsequently, the Defendant was charged
and convicted of a felony in Illinois.
The State submitted a certified copy of the Defendant’s prior aggravated assault
conviction in Lauderdale County Circuit Court in support of Count 2 of the indictment,
possession of a weapon by a convicted felon.
Markee Barbee testified on the Defendant’s behalf. Mr. Barbee stated that he was
thirty-four years old and lived in Ripley, Tennessee. He said that he had been convicted of
felony possession of marijuana with the intent to sell. Mr. Barbee stated that he knew Mr.
Vaughn, Mr. Turner, the Defendant, and the victim “from around town.” He said that he did
not see any of these men, except for the Defendant, on September 3, 2010. He recalled that
the Defendant was on “Eddie’s porch” “right at dark” and the two began to talk. Mr. Barbee
told the Defendant he was going to a street festival in Halls, Tennessee, and the Defendant
joined him. They remained in Halls until 10:00 or 10:30 p.m. The Defendant left in a
separate car, and Mr. Barbee did not see the Defendant again that night.
On cross-examination, Mr. Barbee agreed that the Defendant was his first cousin. As
to the specific time he first saw the Defendant and went to Halls, he did not know and
maintained that it was “dark.” He estimated that they were in Halls “probably hour and a half
probably two hours.”
Jennifer Moody testified that she was friends with the Defendant’s wife. She stated
that she saw the Defendant on September 3, 2010, in Ripley, Tennessee. She explained that
she and the Defendant’s wife attended church together in Dyersburg. She stated that she
drove the Defendant’s wife home after the service ended at 10:35 p.m. She estimated that
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the drive time from the church to the Defendant’s home was approximately a half hour.
When they arrived, the Defendant’s wife exited the car and spoke to the Defendant who was
in the yard working on a car.
On cross-examination, Ms. Moody stated that she arrived at the Defendant’s home “a
little bit after 11:00” p.m. and that she observed the Defendant and his wife interact before
leaving. She stated that she could not explain why the Defendant would have called his wife
at 11:17 p.m. and twice at 11:23 p.m., given her observation of their interaction “a little bit
after 11:00.”
Based on this evidence, the jury convicted the Defendant of the lesser-included
offense of second degree murder and possession of a weapon by a convicted felon. The trial
court sentenced the Defendant as a Range II offender to serve forty years for the second
degree murder conviction and four years for the possession of a weapon by a convicted felon
conviction. The trial court ordered these sentences to be served consecutively, for a total
effective sentence of forty-four years in the Tennessee Department of Correction. It is from
these judgments that the Defendant now appeals.
II. Analysis
The Defendant asserts that: (1) the evidence is insufficient to support his convictions,
(2) the trial court improperly admitted hearsay evidence, and (3) the trial court erred when
it sentenced the Defendant as a Range II offender and imposed consecutive sentences.
A. Sufficiency of the Evidence
The Defendant contends that the evidence is insufficient to support his convictions.
He asserts that the lack of physical proof tying him to the crime and the inconsistency of the
eye witnesses’ testimony at trial precludes a verdict of guilt. The State responds that there
is sufficient evidence upon which a jury could find the Defendant guilty beyond a reasonable
doubt of second-degree murder and possession of a handgun by a convicted felon. We agree
with the State.
When an accused challenges the sufficiency of the evidence, this Court’s standard of
review is whether, after considering the evidence in the light most favorable to the State,
“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); see Tenn. R. App. P.
13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d
247, 276 (Tenn. 2002)). This standard applies to findings of guilt based upon direct
evidence, circumstantial evidence, or a combination of both direct and circumstantial
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evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999) (citing
State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990)). In the absence of direct
evidence, a criminal offense may be established exclusively by circumstantial evidence.
Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973). “The jury decides the weight to be
given to circumstantial evidence, and ‘[t]he inferences to be drawn from such evidence, and
the extent to which the circumstances are consistent with guilt and inconsistent with
innocence, are questions primarily for the jury.’” State v. Rice, 184 S.W.3d 646, 662 (Tenn.
2006) (quoting Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958)). “The standard of
review [for sufficiency of the evidence] ‘is the same whether the conviction is based upon
direct or circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011)
(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).
In determining the sufficiency of the evidence, this Court should not re-weigh or
reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).
Nor may this Court substitute its inferences for those drawn by the trier of fact from the
evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999) (citing Liakas v. State, 286
S.W.2d 856, 859 (Tenn. 1956)). “Questions concerning the credibility of witnesses, the
weight and value to be given the evidence, as well as all factual issues raised by the evidence
are resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). “A
guilty verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses
for the State and resolves all conflicts in favor of the theory of the State.” State v. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978), superseded by statute on other grounds as stated in State
v. Barone, 852 S.W.2d 216, 218 (Tenn.1993)) (quotations omitted). The Tennessee Supreme
Court stated the rationale for this rule:
This well-settled rule rests on a sound foundation. The trial judge and the jury
see the witnesses face to face, hear their testimony and observe their demeanor
on the stand. Thus the trial judge and jury are the primary instrumentality of
justice to determine the weight and credibility to be given to the testimony of
witnesses. In the trial forum alone is there human atmosphere and the totality
of the evidence cannot be reproduced with a written record in this Court.
Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523,
527 (Tenn. 1963)). This Court must afford the State of Tennessee the “‘strongest legitimate
view of the evidence’” contained in the record, as well as “‘all reasonable and legitimate
inferences’” that may be drawn from the evidence. Goodwin, 143 S.W.3d at 775 (quoting
State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of guilt against a
defendant removes the presumption of innocence and raises a presumption of guilt, the
convicted criminal defendant bears the burden of showing that the evidence was legally
insufficient to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn.
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2000) (citations omitted).
As charged in this case, “[s]econd degree murder is . . . [a] knowing killing of
another.” T.C.A. § 39-13-210 (2012). “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. § 39-11-302(b). “To establish that a defendant committed a second degree
murder, the State has the burden of proving beyond a reasonable doubt that (1) the defendant
killed the victim, and (2) the defendant committed the killing with a ‘knowing’ state of
mind.” State v. Parker, 350 S.W.3d 883, 904 (Tenn. 2011).
The evidence, considered in the light most favorable to the State, shows that the
Defendant was with the victim on the evening of September 3, 2010. Mr. Turner drove his
mother’s white van while the victim sat in the front passenger’s seat with the Defendant
seated directly behind him. The men had been to Northcrest to visit the victim’s sister and
were driving on Highway 19 toward Brownsville when the Defendant shot the victim
numerous times. The victim opened the car door, fell out, and died along the roadside due
to the gunshot wounds. The victim’s body was found near where he fell out of the car.
Thereafter, the Defendant took possession of Mr. Turner’s mother’s white van, which was
later found burning in an open field. This is sufficient evidence upon which a jury could find
the Defendant knowingly killed the victim.
The Defendant contends that the inconsistencies in the testimony of the witnesses at
trial necessitated that “no reasonable jury” could have accredited their testimony. We
reiterate that the trier of fact resolves questions concerning the credibility of witnesses, the
weight and value of the evidence, and all factual issues raised by the evidence; an appellate
court should not re-weigh or re-evaluate the evidence. State v. Evans, 108 S.W.3d 231, 236
(Tenn. 2003); Bland, 958 S.W.2d at 659. Furthermore, a verdict of guilt by the trier of fact
accredits the testimony of the State’s witnesses and resolves all conflicts in favor of the
prosecution’s theory of the case. Bland, 958 S.W.2d at 659. In this case, by its verdict, the
jury accredited the State’s witnesses’ testimony and resolved any inconsistencies in favor of
the State’s theory that the Defendant committed the offenses for which he was convicted.
Accordingly, we conclude that the proof is sufficient to support the Defendant’s
conviction beyond a reasonable doubt. The Defendant is not entitled to relief.
B. Character Evidence
The Defendant contends that the trial court improperly admitted Detective Hubbard’s
testimony about the victim’s statements to Illinois police. He asserts that the testimony was
improperly admitted as character evidence “under the guise of motive.” The State responds
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that, because the probative value of the testimony far outweighed any prejudicial effect
toward the Defendant, the trial court did not abuse its discretion in admitting the testimony.
We agree with the State.
“Admission of evidence is entrusted to the sound discretion of the trial court, and a
trial court's ruling on evidence will be disturbed only upon a clear showing of abuse of
discretion.” State v. Robinson, 146 S.W.3d 469, 490 (Tenn. 2004). The Tennessee Rules of
Evidence provide that all “relevant evidence is admissible,” unless excluded by other
evidentiary rules or applicable authority. Tenn. R. Evid. 402. Of course, “[e]vidence which
is not relevant is not admissible.” Id. Relevant evidence is defined as evidence “having any
tendency to make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence.” Tenn. R. Evid.
401. Even relevant evidence, however, “may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” Tenn. R. Evid. at 403.
“Evidence of other crimes, wrongs, or bad acts is not admissible to prove the character
of a person in order to show action in conformity with that character trait. Id. at 404(b).
Such evidence may be admissible, however, for “other purposes.” Id. Our Supreme Court
has determined that such “other purposes” include demonstrating motive or intent. State v.
Berry, 141 S.W.3d 549, 582 (Tenn. 2004). Such evidence is admissible for other purposes,
provided that the trial court: (1) upon request, holds a hearing outside the jury’s presence; (2)
determines that a material issue exists other than conduct conforming with a character trait
and, upon request, states the basis for its determination; (3) finds proof of the other crime,
wrong, or act to be clear and convincing; and (4) determines that the probative value of the
evidence is not outweighed by the danger of unfair prejudice. Tenn. R. Evid. 404(b). The
safeguards in Rule 404(b) ensure that defendants are not convicted for charged offenses
based on evidence of prior crimes, wrongs, or acts. State v. James, 81 S.W.3d 751, 758
(Tenn. 2002). When a trial court substantially complies with the procedural requirements of
Rule 404(b), the standard of appellate review of the trial court’s decision is abuse of
discretion. See State v. Powers, 101 S.W.3d 383, 395 (Tenn. 2003); James, 81 S.W.3d at
759. If the strict requirements of the rule are not substantially observed, the reviewing court
gives the trial court’s decision no deference. State v. DuBose, 953 S.W.2d 649, 652 (Tenn.
1997).
In the present case, the Defendant objected to Detective Hubbard’s testimony
regarding the 2008 shooting in Illinois, arguing that the testimony’s probative value was
outweighed by the prejudice to the Defendant. The State maintained that, whether or not the
victim’s statement to Illinois police implicating the Defendant was truthful, the testimony
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showed a motive for the Defendant’s shooting the victim. The trial court held a jury-out
hearing and, after hearing Detective Hubbard’s testimony and viewing the certified copy of
conviction for the case, ruled that the testimony was admissible. The trial court stated its
reasoning as follows:
After hearing the proof in this case and I assume I’ve heard it all[,] the
establishment of a motive in view of the otherwise inexplicable nature of this
crime becomes extremely crucial to the State’s case.
And therefore the probative value of this testimony is extremely high.
....
[W]hat we’ve got thus far is testimony that the Defendant was riding
along with a guy and for no other apparent reason shoots him dead [ ] six
times.
Two of them contact wounds to the head. And the jury - - anybody who
hears this has got to be saying why would he do that. This is a guy they’re out
riding around with.
The trial court held a jury-out hearing, considered the relevant factors, and concluded
that the probative value of the testimony was not outweighed by the danger of unfair
prejudice. We agree that the challenged testimony provided a background for the Defendant
and the victim’s relationship, which was indicative of the Defendant’s motive for harming
the victim. Mr. Turner’s testimony suggested “bad blood” between the Defendant and the
victim with no further explanation. Mr. Vaughn referenced an incident that occurred in
Illinois in 2008 as the source of the “bad blood.” Detective Hubbard’s testimony provided
the jury with a possible motive for the Defendant’s violent conduct toward the victim.
Accordingly, we conclude that the trial court did not abuse its discretion in admitting
Detective Hubbard’s testimony. The Defendant is not entitled to relief as to this issue.
C. Sentencing
The Defendant challenges the trial court’s classification of him as a Range II offender
based upon an Illinois conviction for mob action. The Defendant also argues that the
sentence is too lengthy for the offense and the trial court should not have ordered consecutive
sentencing. The State responds that the Defendant has failed to show that the trial court
abused its discretion in ordering an effective sentence of forty-four years. We agree with the
State.
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The Tennessee Criminal Sentencing Reform Act of 1989 and its amendments describe
the process for determining the appropriate length of a defendant’s sentence. Under the Act,
a trial court may impose a sentence within the applicable range as long as the imposed
sentence is consistent with the Act’s purposes and principles. T.C.A. § 40-35-210(c)(2), (d)
(2010); see State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008).
In State v. Bise, the Tennessee Supreme Court announced that “sentences imposed by
the trial court within the appropriate statutory range are to be reviewed under an abuse of
discretion standard with a ‘presumption of reasonableness.’” 380 S.W.3d 682, 708 (Tenn.
2012). A finding of abuse of discretion “‘reflects that the trial court’s logic and reasoning
was improper when viewed in light of the factual circumstances and relevant legal principles
involved in a particular case.’” State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001) (quoting
State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)). To find an abuse of discretion, the record
must be void of any substantial evidence that would support the trial court’s decision.
Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001); State v. Grear, 568 S.W.2d 285, 286 (Tenn.
1978); State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980). The reviewing court
should uphold the sentence “so long as it is within the appropriate range and the record
demonstrates that the sentence is otherwise in compliance with the purposes and principles
listed by statute.” Bise, 380 S.W.3d at 709-10. In other words, so long as the trial court
sentences a defendant within the appropriate range and properly applies the purposes and
principles of the Sentencing Act, its decision will be granted a presumption of
reasonableness. Id. at 707.
A. Range and Length
The Defendant argues that the trial court treated the Defendant’s Illinois conviction
for mob action, a Class 4 felony, as a Class C felony. He contends that the conviction should
have been considered as a Class D felony based upon the sentencing range in Illinois for a
Class 4 felony conviction. The State responds that the trial court properly sentenced the
Defendant as a Range II offender.
To be classified as a multiple offender, a defendant must have between two and four
prior felony convictions within the conviction class, a higher class, or within the next two
lower felony classes. T.C.A. § 40-35-106(a)(1) (2014). Here, the trial court found that the
Defendant had two prior Class C felonies: a Tennessee Class C felony conviction for
aggravated assault and an Illinois Class 4 felony conviction for mob action. Prior convictions
under the laws of any other state, government or country, may be considered in determining
the offender range. T.C.A. § 40-35-106(b)(5). If a felony from another jurisdiction is not
a named felony in Tennessee, Tennessee courts should use the elements of the offense in
determining the classification of the offense. Id.
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The Defendant was convicted of a Class 4 felony for mob action. According to the
Illinois Code, “a person commits mob action when he or she engages in the knowing or
reckless use of force of violence disturbing the public peace by 2 or more persons acting
together and without authority of law.” 720 ILL. C OMP. S TAT. 5/25-1. If the violence inflicts
injury to a person or to property of another, this offense is a Class 4 felony. Id. The
indictment related to the offense states, “[The Defendant] knowingly, while acting with
another person without authority of law, struck and shot Jason Washington.”
The Defendant argues that the Illinois sentencing range for a Class 4 felony is more
consistent with a Tennessee Class D felony rather than a Class C felony. Our statute,
however, requires the trial court to compare “the elements of the offense,” not sentencing
ranges. T.C.A. § 40-35-106(b)(5). Therefore, we conclude that the trial court properly
compared the elements of the offenses rather than the sentencing ranges in classifying the
Defendant’s prior conviction for mob action as a Class C felony.
As to the Defendant’s contention that the sentence imposed for his second-degree
murder conviction was excessive, we disagree. The Defendant was convicted of a Class A
felony and qualified as a Range II offender. Accordingly, the trial court was required to
sentence the Defendant within the range of twenty-five to forty years. See T.C.A. § 40-35-
112(b)(1). The trial court found the following enhancement factors applicable: (1) a history
of criminal convictions or behavior in addition to those necessary to establish the range; (2)
the Defendant treated the victim with exceptional cruelty; (3) a firearm was employed during
the commission of the offense; (4) the Defendant had no hesitation about committing a crime
when the risk to human life was high; and (5) the Defendant was on probation at the time of
the offense. See T.C.A. §40-35-114(1),(5),(9),(10), and (13)(C). After considering the
appropriate enhancement and mitigating factors, the trial court sentenced the Defendant to
forty years.
The record reveals that, in addition to the two felony convictions qualifying the
Defendant as a Range II offender, the Defendant has four additional convictions. The
Defendant shot the unarmed victim in the head from behind at contact range in an enclosed
vehicle with two other passengers. The victim then turned and addressed the Defendant, who
he had spent the afternoon with socializing, and the Defendant responded with another round
of gunfire. The victim exited the van, covering approximately fifty yards before collapsing
and dying alone in a ditch along Highway 19. Finally, the record shows that the Defendant
was on supervised probation related to his Illinois conviction at the time of this offense. We
conclude that the trial court’s application of the enhancement factors and the ultimate
sentencing decision was supported by the record. Therefore, the trial court did not abuse its
discretion in ordering the maximum sentence. The Defendant is not entitled to relief as to
this issue.
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B. Consecutive Sentences
The Defendant asserts that the trial court abused its discretion by imposing
consecutive sentences. The State responds that the record supports the imposition of
consecutive sentences. We agree with the State.
Tennessee Code Annotated section 40-35-115(b) provides that a trial court may order
sentences to run consecutively if it finds any one of the statutory criteria by a preponderance
of the evidence. As it relates to this case, the trial court found the following criteria
applicable:
(4) The 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;
(6) The defendant is sentenced for an offense committed while on probation;
T.C.A. § 40-35-115(4) and (6). These criteria are stated in the alternative; therefore, only
one need exist to support the imposition of consecutive sentencing. See id.; State v. Denise
Dianne Brannigan, No. E2011-00098-CCA-R3-CD, 2012 WL 2131111, at *19 (Tenn. Crim.
App., at Knoxville, June 13, 2012), no Tenn. R. App. P. 11 application filed. The imposition
of consecutive sentencing, however, is subject to the general sentencing principles that the
overall sentence imposed “should be no greater than that deserved for the offense
committed” and that it “should be the least severe measure necessary to achieve the purposes
for which the sentence is imposed [.]” T.C.A. § 40-35-103(2), (4).
We review a trial court’s decision to impose consecutive sentences for an abuse of
discretion with a presumption of reasonableness. State v. Pollard, 432 S.W.3d 851, 860
(Tenn. 2013). Our review of the record reflects that, while the trial court did not address the
Wilkerson factors in applying the dangerous offender criteria, the record supports that the
sentence imposed is necessary to protect the public and reasonably relates to the severity of
the offense. See State v. Wilkerson, 905 S.W.2d 933, 938-39 (Tenn. 1995). Moreover, the
trial court properly applied criteria (6), which is sufficient to support consecutive sentencing.
Accordingly, we conclude that the sentence is within the appropriate range and the record
demonstrates that the sentence is otherwise in compliance with the purposes and principles
of the sentencing statute. The Defendant is not entitled to relief as to this issue.
III. Conclusion
In accordance with the aforementioned reasoning and authorities, we affirm the trial
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court’s judgments.
_________________________________
ROBERT W. WEDEMEYER, JUDGE
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