State of Tennessee v. Christopher Brown

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs March 1, 2016

STATE OF TENNESSEE v. CHRISTOPHER BROWN

Appeal from the Criminal Court for Shelby County

No. 13-05989 J. Robert Carter, Jr., Judge

No. W2015-00990-CCA-R3-CD - Filed April 12, 2016

_____________________________

A Shelby County jury found the Defendant, Christopher Brown, guilty of one count of

first degree premeditated murder and three counts of aggravated assault. On appeal, the

Defendant asserts that the trial court erroneously admitted evidence of prior bad acts

under Rule 404(b) of the Tennessee Rules of Evidence and that the evidence presented at

trial was insufficient to support his convictions. Following a thorough review, we affirm

the judgments of the trial court.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the Court, in which THOMAS T.

WOODALL, P.J., and ROBERT H. MONTGOMERY, JR., J., joined.

Stephen C. Bush, District Public Defender; Tony N. Brayton (on appeal) and Robert

Gowen and John Zastrow (at trial), Assistant District Public Defenders, Memphis,

Tennessee, for the appellant, Christopher Brown.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;

Amy P. Weirich, District Attorney General; and Sam Winning and Jeff Jones, Assistant

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

OPINION

I. Factual and Procedural Background

This appeal involves the shooting death of Albert Fips, which occurred on June

22, 2013, when the Defendant approached the SUV in which Mr. Fips and three others—

Carolyn Pratcher, Ida Pratcher, and Michael Douglas—were riding and shot multiple

times into the vehicle. The Shelby County Grand Jury subsequently indicted the

Defendant for one count of first degree premeditated murder and three counts each of

attempted first degree murder, employing a firearm in the commission of a dangerous

felony, and aggravated assault.

Rule 404(b) Hearing

Prior to trial, the State filed a motion seeking to admit evidence of prior bad acts

of the Defendant under Rule 404(b) of the Tennessee Rules of Evidence. Specifically,

the State alleged that in October 2011, the Defendant assaulted Carolyn Pratcher—his

then-girlfriend—which led to the Defendant‟s arrest for domestic assault. The State

further alleged that, on June 4, 2013, the Defendant entered Mr. Fips‟s home uninvited

and sent harassing text messages to Mr. Fips and Carolyn.1 Then, on June 7, 2013, the

Defendant slashed the tires on Mr. Fips‟s vehicle and later admitted responsibility for the

vandalism to Carolyn. Finally, the State asserted that the Defendant again assaulted

Carolyn on June 17, 2013, five days before the Defendant committed the indicted

offenses.

At a pretrial hearing, the State argued that evidence regarding these instances of

conduct were relevant to establishing the Defendant‟s intent and motive to commit the

offenses charged in this case. The State explained that, one month before the shooting,

the Defendant and Carolyn broke up, and Carolyn moved in with Mr. Fips. According to

the State, the Defendant “wasn‟t happy about that, threatened [Carolyn] and Mr. Fips,

slashed Mr. Fips[‟s] tires, threatened to kill [Mr. Fips] and ultimately made good on that

threat.”

Regarding the specific instances of conduct at issue, Carolyn testified that, on

October 14, 2011, she was at the apartment she shared with the Defendant when she saw

that some nearby apartments were on fire and called the fire department. When Carolyn

informed the Defendant that she called the fire department, the Defendant said, “B****,

1

Because several witnesses share a common surname, we will refer to some witnesses by their

first name. No disrespect is intended.

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you need to stay out of other people‟s business, I told you about that.” Carolyn then

exited her apartment, intending to go to the store to purchase cigarettes, but the

Defendant “snatched” her by her hair, “dragged” her back up the stairs, and started hitting

her. Carolyn testified that her children woke up during the assault and that one of her

sons, flagged down police officers.2 She explained that the Defendant was arrested that

night and that officers took photographs of her injuries. She stated that the Defendant bit

her finger and pulled hair out of her head and that she had scratches “all over [her] neck.”

Carolyn identified photographs of her injuries, and those photographs were entered into

evidence as exhibits. Carolyn stated that she and the Defendant later moved to a house

on Hanley Street. However, the Defendant soon kicked her out of the house, and she

moved in with Mr. Fips, who lived on the same block on Hanley Street as the Defendant.

Next, Carolyn recalled an incident that occurred on June 4, 2013. She stated that

the Defendant walked into Mr. Fips‟s residence unexpectedly, tapped Mr. Fips on the

shoulder, and asked if he could “have a couple of words with him.” The Defendant and

Mr. Fips stepped outside and talked, but Carolyn did not hear what was said. Carolyn

stated that she eventually called the police and reported that the Defendant had been

sending her harassing text messages but that the Defendant was not arrested on this

occasion.

Carolyn also testified that Mr. Fips‟s tires were slashed on June 7, 2013, and that

Mr. Fips filed a police report about the incident. She stated that the Defendant later

admitted to her that he slashed Mr. Fips‟s tires, although she could not recall exactly

when the Defendant made the admission. She acknowledged that she never told the

police that the Defendant said he slashed the tires.

As to the fourth incident, Carolyn testified that the Defendant called her on the day

of their son‟s birthday—June 17, 2013—and told her that he wanted to give her some

money for their son. However, when she went to the Defendant‟s house, the Defendant

refused to give her the money. Instead, as she started to leave, the Defendant “started

fussing and fighting,” grabbed her by the neck, and tried to drag her back into the house.

Carolyn stated that their son saw the assault from the street. She did not report the

incident to police.

At the conclusion of the State‟s proof, the trial court, based upon Carolyn‟s

testimony and the photographs, found by clear and convincing evidence that the October

14, 2011, assault occurred. The trial court commented that the incident was a “touch

remote” but not “overly” so. The trial court determined that the event was admissible to

2

Carolyn testified that she had three children—including a thirteen-year-old son with the

Defendant and a sixteen-year-old son with Mr. Fips.

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show the nature of the relationship between the Defendant and Carolyn and because it

was relevant to issues such as the Defendant‟s state of mind and whether his shooting

Carolyn was premeditated and intentional. However, the trial court stated that the

photographs of Carolyn‟s injuries were not admissible and indicated that it would instruct

the jury on the proper use of the evidence. Finally, the court weighed the danger of

unfair prejudice and found that the incident was not “tremendously prejudicial, at all.”

Regarding the incident on June 4, 2013, when the Defendant walked into Mr.

Fips‟s residence unexpectedly and wanted to talk, the trial court stated, “I don‟t see how

that is a crime, or really a bad act.” The trial court noted that, because the Defendant

shared a child with Carolyn, his presence at her house was not a bad act, regardless of

whether she invited him there. The trial court also noted that the jury would hear “a fair

amount” about the contentious relationship between the Defendant, Carolyn, and Mr.

Fips at trial, from both the State and the defense, and that this evidence was relevant in

establishing their history and to show the “awful situation” created by the parties‟ living

on the same street. The trial court stated that it would allow the testimony to the extent

that it was relevant but that it did not find it to be a Rule 404(b) issue. As to Carolyn‟s

testimony regarding harassing text messages the Defendant allegedly sent Mr. Fips, the

trial court ruled that there was no clear and convincing evidence that the Defendant sent

Mr. Fips text messages or the exact content of the messages.

Regarding the incident on June 7, 2013, the trial court found, based upon

Carolyn‟s testimony, that the tires on Mr. Fips‟s vehicle were slashed and that the

Defendant admitted he did it. The court noted that this incident was “closer in time” to

the shooting and determined that the evidence was material to the Defendant‟s “state of

mind and the nature of this relationship between the parties.” Finally, the trial court

weighed the evidence and found that the evidence was not “particularly prejudicial.”

As to the Defendant‟s assault on Carolyn on June 17, 2013, the trial court

determined that Carolyn‟s testimony was admissible to the issue of the Defendant‟s

intent, noting that Carolyn was a victim in one of the counts of attempted first degree

murder. The court found that Carolyn‟s testimony would show a “complete picture” of

the “volatile nature” of the relationship between the parties and provide insight on the

Defendant‟s state of mind. Finally, in weighing the evidence, the trial court concluded

that testimony about the June 17 assault was not “particularly prejudicial.”

Trial

At trial, Carolyn Pratcher testified that the Defendant was the father of her

thirteen-year-old son. She acknowledged that her relationship with the Defendant had

been a difficult one. She stated that she lived with the Defendant until 2013, when he

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kicked her out of their house on Hanley Street. Carolyn recalled that, before moving to

Hanley Street, she and the Defendant had lived at Kingsgate Apartments in 2011. In

October of that year, she and the Defendant had a disagreement that turned physical.

Carolyn explained that there had been an apartment on fire next door and, when she told

the Defendant about it, he said, “B****, I told you to stay out of other people‟s business.”

The Defendant started pulling her hair and dragging her upstairs. Although she got away

from the Defendant and ran out the door, she did not want to leave her children there and

went back for them. Her sixteen-year-old son eventually called the police, and the

Defendant was arrested and later convicted in connection with the assault.

Carolyn recalled that sometime after this incident, she moved to Hanley Street

with the Defendant. However, in June 2013, the Defendant “put [her] out,” and she

moved in with Mr. Fips, who lived four or five houses down from the Defendant.

Carolyn testified that the Defendant began “sending text messages, threatening

messages” thereafter.3 She also recalled that, on one occasion after she moved in with

Mr. Fips, the Defendant came into Mr. Fips‟s house unexpectedly. Mr. Fips told the

Defendant to walk outside so they could talk. Once outside, the two men “had words,”

but they did not have a physical confrontation. Carolyn also stated that, around June 7,

2013, Mr. Fips‟s tires were slashed. The Defendant later admitted to Carolyn that he

slashed Mr. Fips‟s tires.

Carolyn stated that she had additional problems with the Defendant on June 17,

2013. She explained that the Defendant called her and said that he was going to give her

some money for their son‟s birthday. However, when she went to the Defendant‟s house

to get the money, the Defendant grabbed her around the neck and tried to drag her into

the house. The Defendant told her, “I‟m going to get [your] a**[.]” Carolyn recalled that

the Defendant only let her go when their son ran across the street. She stated that she had

no physical injuries from this incident.

Carolyn testified that, on June 22, 2013, she went to the dog track with Mr. Fips;

her aunt, Ida Pratcher; and another man, Michael Douglas. The group left the dog track

between 9:00 p.m. and 10:00 p.m. Upon returning to Memphis, they stopped at Church‟s

Chicken and a convenience store. Carolyn recalled that Mr. Fips was driving his SUV

when they turned onto Hanley Street and she was sitting in the front passenger seat. As

Mr. Fips drove past the Defendant‟s residence, Carolyn saw the Defendant sitting on his

front porch. She recalled that Mr. Fips was driving past the Defendant “slowly” but that

they did not say anything to the Defendant. The Defendant got off the porch and walked

towards Mr. Fips‟s vehicle, shining a light from his cell phone towards them. Carolyn

stated that, when Mr. Fips saw the light, he put the vehicle in reverse and backed up. Mr.

3

At trial, the Defendant did not object to the testimony about the Defendant‟s text messages.

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Fips rolled the driver‟s side window down and told the Defendant that he wanted to speak

with him “man to man” about the text messages that the Defendant sent him. Carolyn

testified, “[T]hat‟s when all the shooting just started.” She explained that the Defendant

stood about ten to fifteen feet away when he began shooting and that he shot into the

vehicle approximately five times. Carolyn stated that neither she nor anyone else in Mr.

Fips‟s vehicle had a weapon. Moreover, Mr. Fips did not own a gun and was not known

to carry a gun.

Carolyn recalled that, when she heard the shots, she felt her arm “hurting and

burning real bad” and that she tried to get out of the vehicle but that the door would not

open. Carolyn said that Mr. Fips attempted to “drive off” but that he did not “make it in

time enough.” When she got her car door open after the third or fourth try, Carolyn got

out of the SUV and stood beside it. She wanted to reach in for Mr. Fips, who was not

moving, but she was afraid that the Defendant would shoot her again, so she ran behind

an abandoned house. Carolyn recalled that the Defendant chased her around the

abandoned house several times. She had been shot twice, was losing a lot of blood, and

felt like she was going to pass out, so she stopped running. At that time, the Defendant

caught up to her and grabbed her “around [the] neck.” He had something in his hand, but

she could not tell if it was a knife or a gun. Carolyn testified that there were people

outside, and some were calling 911. The Defendant let her go and ran from the scene

before police arrived. Carolyn spoke briefly to police and was then taken to the hospital.

According to Carolyn, the Defendant called her from California a couple of weeks

after the shooting. During the call, the Defendant stated that he used a .22 to shoot her

and Mr. Fips. The Defendant called Carolyn a second time after he was arrested and

placed in jail. During the phone call, the Defendant encouraged her to change her story

and tell police that Mr. Fips had a gun and that “it was self[-]defense.”

On cross-examination, Carolyn acknowledged that there were other ways to get to

Mr. Fips‟s house that did not involve driving past the Defendant‟s residence. She stated

that, although Mr. Fips drove slowly down Hanley Street, he was not looking for the

Defendant. She agreed that Mr. Fips was upset with the Defendant about the text

messages that the Defendant had sent. She stated that Mr. Fips put his SUV in reverse

and then in park and rolled his window down “the rest of the way” before he asked the

Defendant if they could talk.

Carolyn‟s aunt, Ida Pratcher, testified that on the day of the shooting she went to a

casino in Arkansas with Carolyn, Mr. Fips, and Michael Douglas. Ida recalled that the

group stayed at the casino for about an hour and a half and then returned to Memphis

around 10:00 p.m. On the way home, Mr. Fips stopped at a store and at Church‟s

Chicken. Ida recalled that, as Mr. Fips drove down Hanley Street, she saw the Defendant

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sitting on the porch of his house. When Mr. Fips saw the Defendant, he said, “[d]amn,”

stopped the vehicle, and starting backing up. Mr. Fips said that the Defendant wanted to

talk to him, and when Mr. Fips stopped, the Defendant came off the porch towards them.

Mr. Fips asked the Defendant why the Defendant was following him and texting his

phone. Ida stated that Mr. Fips was “fixing to open the door,” and she thought that the

Defendant came to the truck and “pushed, shut the door back up.” According to Ida, the

Defendant told Mr. Fips, “I told you mother f***** when I see you . . . mother f*****

when I texted you I told you mother f***** when I see you again, I‟m going to kill you.”

Then, the Defendant “started shooting.” Ida testified that she was in the back seat behind

Mr. Fips and Mr. Douglas was in the back seat behind Carolyn. When the Defendant

began shooting into the truck, Ida “duck[ed]” down and yelled at Mr. Douglas to get out

of the car. Ida heard Mr. Fips saying “ouch, ouch” and then saw him fall over. Ida

testified that, as she followed Mr. Douglas out of the vehicle, she fell and hurt her knee

and that the vehicle ran over the side of her foot. The vehicle then coasted down the

street and ran into a curb before stopping. Ida stated that no one inside Mr. Fips‟s vehicle

had a gun, that no gunshots came from inside the vehicle, and that she was in fear when

the Defendant started shooting.

Following the shooting, Ida was transported to the hospital and treated for a

fractured ankle. She also identified the Defendant in a photo lineup that night. On cross-

examination, Ida stated that she did not know if Mr. Fips put the vehicle in park before

the shooting began. She also said that the Defendant never pointed the gun directly at her

or Mr. Douglas.

Michael Douglas testified that he lived next door to Mr. Fips for the five months

preceding Mr. Fips‟s death. Mr. Douglas recalled that, on the day of the shooting, he

went with Mr. Fips, Carolyn, and Ida to the dog track and estimated that they returned to

Memphis around 10:00 p.m. Before going home, the group stopped at a liquor store, a

convenience shop, and Church‟s Chicken. Mr. Douglas stated that, before leaving the

parking lot of Church‟s Chicken, Mr. Fips looked at his cell phone and turned to Carolyn

and asked, “[H]ow did he get my number?”

Mr. Douglas recalled that, on Hanley Street, Mr. Fips “coasted” by the

Defendant‟s house. Mr. Douglas heard Carolyn say, “[N]o you don‟t have to do it like

this here,” and then he saw someone “just shooting at the car[.]” Mr. Douglas testified

that he heard approximately three gunshots. He stated that he did not know the

Defendant and could not identify the shooter because it was “dark down there.” Mr.

Douglas recalled that he tried to open his door when the shooting started but the door

would not open. He said Ida yelled at him to “get out of the car” and that they pushed at

each other while trying to exit the vehicle. Mr. Douglas testified that he was afraid and

that he fell after getting out of the vehicle. He then ran from the scene. Mr. Douglas

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testified that he did not have a weapon and that no one else inside the vehicle had a

weapon. He further stated that he never knew Mr. Fips to carry a gun.

On cross-examination, Mr. Douglas testified that Mr. Fips purchased two small

bottles of liquor while at the corner store. He recalled that, when they were ready to

leave Church‟s Chicken, Mr. Fips took one of the bottles and “took a swallow of it[.]”

Mr. Fips was looking at his cell phone, and he asked Carolyn, “[H]ow did he get my

number?” Mr. Douglas agreed that it was dark outside by the time they returned to

Hanley Street. He agreed that the interior light of Mr. Fips‟s vehicle was off and that the

driver‟s window was partially down. Mr. Douglas recalled that Mr. Fips coasted down

Hanley Street slowly, but he did not recall Mr. Fips‟s putting the vehicle in reverse before

the shooting began. Mr. Douglas agreed that there were other ways to get to Mr. Fips‟s

house from Church‟s Chicken other than going past the Defendant‟s residence.

Carolyn and the Defendant‟s thirteen-year-old son testified that, on June 17, 2013,

he was standing across the street from the Defendant‟s house when he saw the Defendant

drag his mother “to the back of the house[.]” When he ran across the street to confront

the Defendant, the Defendant “walked off.” He testified that the Defendant had his

hands around Carolyn‟s neck.

Officer Joseph Cunningham of the Memphis Police Department testified that, on

June 22, 2013, he received a call around 11:00 p.m. to respond to Hanley Street for a

report of a shooting. Upon arrival, he saw an SUV on the west side of the street, which

had struck another vehicle. Inside the SUV, there was a male victim slumped over in the

front seat. Carolyn ran off the porch of a house on the other side of the street and

approached his patrol car. She was crying and frantic and told Officer Cunningham that

she had been shot twice by her ex-boyfriend, the Defendant. He testified that he

recognized Carolyn from a previous call earlier that month and that he sat her down to

await an ambulance. Officer Cunningham returned to the area of the Defendant‟s

residence several times following the shooting, but he never saw any sign of the

Defendant‟s presence at the house.

Officer David Wagner of the Memphis Police Department testified that he was on

duty on June 22, 2013, when he received a call of a shooting on Hanley Street. When he

arrived at the scene, he spoke to Ida, who was “very hysterical” and lying on the sidewalk

with an injury to her ankle. Ida told Officer Wagner that, when the shooting started, she

jumped out of Mr. Fips‟s vehicle while the vehicle was in motion and that the vehicle ran

over her foot. Ida identified the Defendant as the shooter. She told Officer Wagner that

the Defendant came up to Mr. Fips‟s vehicle, said “I told you I‟d shoot you,” and began

shooting into the vehicle.

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Officer Marcus Mosby testified that he was assigned to the Memphis Police

Department‟s crime scene investigation unit and that he responded to the shooting call on

Hanley Street. Officer Mosby stated that, when he arrived, he saw a deceased man lying

across the front seat of a gray SUV. Officer Mosby made a sketch of the crime scene,

photographed the scene, and collected evidence from the area. Specifically, Officer

Mosby photographed and collected a cell phone, lighter, and “drink cup,” which were

sitting on the front porch of the Defendant‟s house. He also collected a cell phone from

inside the gray SUV.

Sergeant Clarence Mabon, the case officer assigned to the investigation of the

homicide of Mr. Fips, testified that he was initially forwarded a felony response packet

that provided him with information about the offense. From the packet, Sergeant Mabon

learned that the Defendant was named as the suspect by the surviving victims at the

scene. Sergeant Mabon reviewed the crime scene reports, victims‟ statements, and the

evidence collected from the scene. Specifically, Sergeant Mabon recalled that a cell

phone belonging to the Defendant was recovered from the porch of the Defendant‟s

house on Hanley Street. He stated that he later recovered Carolyn‟s cell phone and,

through a search warrant, he was able to obtain information off of both phones. Sergeant

Mabon testified that he found text messages on Carolyn‟s phone that had been received

from the cell phone recovered from the Defendant‟s porch. The sergeant was shown a

photograph of one text message that was received by Carolyn on June 22, 2013, at 7:21

p.m. and read, “I‟m fixin‟ to kill myself. They will find me dead in this house when

police break in I‟ll be gone. F*** it.” Sergeant Mabon was then shown a second

photograph of a text message that was received at 9:59 p.m. on June 22, 2013, which

said, “Dude, no what‟s up. It‟s time to roll. Real talk. You need to go somewhere fast.

You say you want and love me. Make your move. This is not living.” The photographs

of the text messages were shown to the jury as Sergeant Mabon read them aloud.

Sergeant Mabon recalled that he sent out an alert to law enforcement that he was

looking for the Defendant. He received a phone call several hours after the shooting from

someone who identified himself as the Defendant. The Defendant said that he was in the

Whitehaven area and that he wanted to turn himself in after he saw his mother. The

Defendant also told Sergeant Mabon that he “didn‟t think he did anything wrong” and

that “the guy made a pistol play” and he was scared. After several hours, Sergeant

Mabon tried to call the Defendant back, but another man answered the phone. The man

said that he had allowed an employee to use his phone and that the employee allowed

“somebody else to use the phone.” Sergeant Mabon testified that it was several months

later before the Defendant was brought back to Memphis after being found in California

by the United States Marshals Service.

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Dr. Miguel Laboy testified that he worked in the Office of the Medical Examiner

in Memphis and that he performed Mr. Fips‟s autopsy. Dr. Laboy determined the cause

of death to be multiple gunshot wounds. Specifically, he found that Mr. Fips had two

gunshot wounds to the chest, a gunshot wound to the right arm and buttock, and grazing

wounds to the left hand and left arm. Dr. Laboy explained that the gunshot wounds to the

chest fractured Mr. Fips‟s ribs and perforated his lungs and heart.

Following deliberations, the jury found the Defendant guilty of first degree

premeditated murder and three counts of aggravated assault.4 For these offenses, the trial

court sentenced the Defendant to life plus ten years.

Thereafter, the Defendant filed a motion for new trial and an amended motion for

new trial. Following a hearing, the trial court entered a written order denying the

Defendant‟s motion for new trial. This timely appeal followed.

II. Analysis

Rule 404(b)

The Defendant contends that the trial court erroneously allowed the jury to

consider evidence of prior bad acts and argues that the probative value of the evidence

was “clearly outweighed” by the danger of unfair prejudice. The State responds that the

trial court acted within its discretion in admitting evidence of prior acts of the Defendant

to show the Defendant‟s motive and intent. We agree with the State.

Rule 404(b) of the Tennessee Rules of Evidence provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove

the character of a person in order to show action in conformity with the

character trait. It may, however, be admissible for other purposes. The

conditions which must be satisfied before allowing such evidence are:

(1) The court upon request must hold a hearing outside the jury‟s

presence;

4

Before trial, the State entered a nolle prosequi on two counts of attempted first degree murder

and two counts of employing a firearm in the commission of a dangerous felony. The jury acquitted the

Defendant of the remaining counts of attempted first degree murder and employing a firearm in the

commission of a dangerous felony.

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(2) The court must determine that a material issue exists other than

conduct conforming with a character trait and must upon request state on

the record the material issue, the ruling, and the reasons for admitting the

evidence;

(3) The court must find proof of the other crime, wrong, or act to be

clear and convincing; and

(4) The court must exclude the evidence if its probative value is

outweighed by the danger of unfair prejudice.

See also State v. Thacker, 164 S.W.3d 208, 240 (Tenn. 2005); State v. Parton, 694

S.W.2d 299, 302 (Tenn. 1985). Rule 404(b) is generally one of exclusion, but exceptions

to the rule may occur when the evidence of the otherwise inadmissible conduct is offered

to prove the motive of the defendant, identity, intent, the absence of mistake or accident,

opportunity, or a common scheme or plan. State v. Toliver, 117 S.W.3d 216, 230 (Tenn.

2003); State v. McCary, 119 S.W.3d 226, 243 (Tenn. Crim. App. 2003). In addition to

these exceptions, evidence of other acts may be admitted to provide the jury with

necessary contextual background. State v. Gilliland, 22 S.W.3d 266, 272 (Tenn. 2000);

see also Neil P. Cohen et al., Tennessee Law of Evidence § 4.04[13] (6th ed. 2011)

(evidence admissible to tell the “complete story”).

If the trial court substantially complies with the procedural requirements of Rule

404(b), we will review the trial court‟s determination for an abuse of discretion. Thacker,

164 S.W.3d at 240 (citing State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997); State v.

Baker, 785 S.W.2d 132, 134 (Tenn. Crim. App. 1990)). However, if the trial court fails

to substantially comply with the requirements of the rule, then the trial court‟s decision

should be afforded no deference by the reviewing court. DuBose, 953 S.W.2d at 652.

As an initial matter, the Defendant contends that the trial court failed to

substantially comply with the procedural requirements of Rule 404(b) and, therefore, the

trial court‟s ruling should be afforded no deference by this court. We disagree. The

record reflects that the trial court conducted a jury-out hearing, determined that material

issues existed other than conformity with a character trait, found that the proof of the bad

acts was clear and convincing, and weighed the probative value against the danger of

unfair prejudice—all in substantial compliance with the requirements of Rule 404(b).

Prior Assaults on Carolyn Pratcher

The Defendant asserts that the trial court abused its discretion by admitting

evidence of assaults that he committed against Carolyn on October 14, 2011, and June

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17, 2013. He contends that this evidence served only to show his propensity for violence;

that the October 2011 assault was “too remote” to be relevant to the issue of his intent on

the night of June 22, 2013; that the nature of the relationship between the Defendant and

Carolyn was not at issue; and that the trial court failed to weigh the probative value of the

evidence against the prejudice to the Defendant.

At the conclusion of the Rule 404(b) hearing, the trial court ruled that evidence of

the Defendant‟s assault on Carolyn in October 2011 was admissible to show the nature of

the relationship between the Defendant and Carolyn and because it was relevant to issues

such as the Defendant‟s state of mind and whether his shooting Carolyn was

premeditated and intentional. Regarding the June 22, 2013, assault, the trial court

concluded that the evidence was admissible to the issue of the Defendant‟s intent. The

trial court also found that testimony about this incident would show the “volatile nature”

of the relationship between the parties and provide insight on the Defendant‟s state of

mind.

Tennessee courts have accepted the use of evidence of a defendant‟s prior violent

acts against a victim of a violent crime as a means of allowing the State the opportunity

to establish intent. See State v. Smith, 868 S.W.2d 561, 574 (Tenn. 1993); see also State

v. Gilley, 297 S.W.3d 739, 758 (Tenn. Crim. App. 2008); State v. Turnbill, 640 S.W.2d

40, 46-47 (Tenn. Crim. App. 1982). The courts posit that such evidence is probative of

the defendant‟s mens rea because it reveals a “settled purpose” to harm the victim.

Smith, 868 S.W.2d at 574. Specifically, our supreme court has ruled that “[v]iolent acts

indicating the relationship between the victim of a violent crime and the defendant prior

to the commission of the offense are relevant to show defendant‟s hostility toward the

victim, malice, intent, and a settled purpose to harm the victim.” Id. The Defendant

argues that the only purpose for introducing evidence of his assaults against Carolyn was

to show a propensity for violence against her. We agree with the Defendant that evidence

is admissible pursuant to Rule 404(b) only when it is probative of a material issue other

than “conduct conforming with a character trait.” See Tenn. R. Evid. 404(b)(2).

However, the Defendant was indicted for attempted first degree premeditated murder of

Carolyn, and the State‟s theory was that the Defendant approached the vehicle in which

Carolyn and Mr. Fips were riding and fired multiple times into the vehicle, striking

Carolyn twice. The State was required to prove that the Defendant‟s actions were

“premeditated and intentional.” See Tenn. Code Ann. § 39-13-202(a)(1). In our view,

evidence of the Defendant‟s prior assaults of Carolyn established the nature of their

relationship and the Defendant‟s hostility toward the victim and settled purpose to harm

the victim. The trial court properly admitted the evidence at trial on this basis.

Additionally, while the trial court commented that the October 2011 incident was

a “touch remote,” it determined that it was not “overly” remote, and we agree with this

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assessment. Moreover, “remoteness affects only the weight, not the admissibility of the

evidence.” State v. Marlon Duane Kiser, No. E2005-02406-CCA-R3-DD, 2007 WL

4207903, at *39 (Tenn. Crim. App. Nov. 29, 2007) (quoting State v. Smith, 868 S.W.2d

561, 575 (Tenn. 1993)) (internal quotations marks omitted). The nature of the

relationship between the Defendant and Carolyn was at issue at trial, despite the

Defendant‟s claim to the contrary on appeal. During his opening statement to the jury,

defense counsel asserted:

At the center of this tragedy is a triangle of a tumultuous relationship

between . . . [Mr.] Fips, and the defendant . . . and Carolyn Pratcher. Ms.

Pratcher has children through both [the Defendant] and Mr. Fips and in

weeks leading up to the night of the shooting, she had stayed with both of

them.

Defense counsel also stated that the main issue was what the Defendant was thinking

when he committed the shooting. Thus, the relationship between the parties was squarely

at issue during the trial. Finally, the trial court weighed the probative value of the

evidence against the prejudice to the Defendant and found that the evidence was not

“particularly prejudicial.” The trial court acted within its discretion in admitting the

evidence of the Defendant‟s prior assaults on Carolyn.

Entering Mr. Fips‟s Residence

The Defendant next contends that the incident, wherein he unexpectedly entered

Mr. Fips‟s residence, tapped Mr. Fips on the shoulder, and asked if he could “have a

couple of words with him,” had no relevance to any matter at issue in the trial and should

have been excluded from proof. In addressing this issue, the trial court concluded that

the Defendant‟s behavior was not “really a bad act” and found that it was relevant

because it shed light on the relationship between the Defendant, Carolyn, and Mr. Fips

and the “love triangle situation” that served as a motive for the shooting. We agree with

the trial court that the incident, as described by Carolyn, was not a “bad act.” Carolyn

testified that Mr. Fips stepped outside with the Defendant to talk but that she could not

hear their conversation. She further stated that there was no physical confrontation

between the two men. Regardless, even if we were to conclude that this qualified as a

prior bad act for purposes of Rule 404(b), the trial court did not err in admitting the

evidence. The strategy of both the State and the defense was to establish the tumultuous

history between the Defendant, Carolyn, and Mr. Fips, and this incident was probative of

the type of relationship that existed between the parties. Moreover, the prejudice to the

Defendant was minimal as there was no evidence that the Defendant was violent or

attempted a physical confrontation. Accordingly, the trial court acted within its

discretion in admitting testimony about this incident into evidence.

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Slashing Mr. Fips‟s Tires

At the conclusion of the Rule 404(b) hearing, the trial court found that the

Defendant slashed Mr. Fips‟s tires on June 7, 2013, and determined that the evidence was

material to the Defendant‟s “state of mind and the nature of this relationship between the

parties.” The trial court noted that this incident was “closer in time” to the shooting and,

in weighing the evidence, concluded that it was not “particularly prejudicial.”

The Defendant contends that the State failed to establish that he slashed Mr. Fips‟s

tires by clear and convincing evidence. However, Carolyn testified that the incident took

place and that the Defendant admitted to her that he was responsible for the vandalism,

and the trial court accepted her testimony as clear and convincing evidence. The

Defendant argues that Carolyn‟s testimony is not credible because she failed to report the

incident to police. However, when a trial court makes factual findings and credibility

determinations in the course of ruling on an evidentiary motion, these factual and

credibility findings are binding on a reviewing court unless the evidence in the record

preponderates against them. Kendrick v. State, 454 S.W.3d 450, 479 (Tenn. 2015) (citing

Gilley, 297 S.W.3d at 759-61). The record in this case does not preponderate against the

trial court‟s findings.

In conclusion, the record reflects that the trial court substantially complied with

the requirements of 404(b) by conducting a jury-out hearing, determining that a material

issue other than conformity with a character trait existed, that the proof of the bad acts

was clear and convincing, and that the probative value outweighed the danger of unfair

prejudice. The challenged evidence demonstrated the Defendant‟s hostility towards Mr.

Fips and Carolyn, and it was probative of the nature of the relationship between the three

parties and of the Defendant‟s intent on the night of the shooting. The trial court did not

abuse its discretion by admitting the evidence, and the Defendant is not entitled to relief.

Sufficiency of the Evidence

The Defendant also contends that the evidence is insufficient to support his

convictions for first degree premeditated murder and three counts of aggravated assault.

He argues that the State failed to establish the requisite intent necessary for the

convictions. The State responds that, when viewed in the light most favorable to the

State, the evidence is sufficient to support the Defendant‟s convictions. We agree with

the State.

The applicable standard of review for a sufficiency of the evidence challenge is

“whether, after viewing the evidence in the light most favorable to the prosecution, any

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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) (emphasis in original);

see also Tenn. R. App. P. 13(e). A guilty verdict “removes the presumption of innocence

and replaces it with a presumption of guilt, and the defendant has the burden of

illustrating why the evidence is insufficient to support the jury‟s verdict.” State v. Bland,

958 S.W.2d 651, 659 (Tenn. 1997) (citing State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.

1982)). Our standard of review “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)) (internal quotation marks

omitted).

In a jury trial, the weight and credibility given to the testimony of witnesses, as

well as the reconciliation of conflicts in that testimony, are questions of fact best

determined by the jury, because they saw and heard the witnesses, and by the trial judge,

who concurred in and approved the verdict. Bland, 958 S.W.2d at 659. This court will

not reweigh the evidence. Id. On review, the “State must be afforded the strongest

legitimate view of the evidence and all reasonable inferences that may be drawn

therefrom.” State v. Vasques, 221 S.W.3d 514, 521 (Tenn. 2007).

First Degree Premeditated Murder

As to his conviction for first degree premeditated murder, the Defendant argues

that the evidence is insufficient because there was no proof that he made preparations to

conceal the crime, previously formed the intent to kill Mr. Fips, or procured a weapon for

the purpose of killing the victim. He argues that he was scared and acting in self-defense

when he made the “spontaneous and impulsive decision to shoot Mr. Fips.”

Premeditated first degree murder is “[a] premeditated and intentional killing of

another[.]” Tenn. Code Ann. § 39-13-202(a)(1) (2012). A person acts intentionally

“when it is the person‟s conscious objective or desire to engage in the conduct or cause

the result.” Tenn. Code Ann. § 39-11-302(a) (2012). Premeditation “is an act done after

the exercise of reflection and judgment. „Premeditation‟ means that the intent to kill

must have been formed prior to the act itself. It is not necessary that the purpose to kill

pre-exist in the mind of the accused for any definite period of time.” Tenn. Code Ann. §

39-13-202(d) (2012). Additionally, “[t]he mental state of the accused at the time the

accused allegedly decided to kill must be carefully considered in order to determine

whether the accused was sufficiently free from excitement and passion as to be capable of

premeditation.” Id. Premeditation “may be established by proof of the circumstances

surrounding the killing.” State v. Suttles, 30 S.W.3d 252, 261 (Tenn. 2000). Moreover,

there are several factors which tend to support the existence of premeditation, including

the use of a deadly weapon upon an unarmed victim, the fact that the killing was

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particularly cruel, declarations of an intent to kill by the defendant, evidence of

procurement of a weapon, the making of preparations before the killing for the purpose of

concealing the crime, and calmness immediately after the killing. Id. Whether

premeditation is present in a given case is a question of fact to be determined by the jury

from all of the circumstances surrounding the killing. State v. Davidson, 121 S.W.3d

600, 614 (Tenn. 2003) (citing Suttles, 30 S.W.3d at 261; State v. Pike, 978 S.W.2d 904,

914 (Tenn. 1998)).

When viewed in the light most favorable to the State, the evidence at trial

established that the Defendant and Carolyn broke up about a month before the shooting,

and she moved in with Mr. Fips, who lived a few houses down from the Defendant. The

Defendant was clearly unhappy with the situation and had slashed Mr. Fips‟s tires, sent

him harassing and threatening text messages, assaulted Carolyn, and threatened to kill

Mr. Fips in the weeks leading up to June 22, 2013. As Mr. Fips drove past the

Defendant‟s residence on the night of the shooting, the Defendant was sitting on the front

porch of the residence. The Defendant got up off the porch and walked towards Mr.

Fips‟s vehicle, shining the flashlight from his cell phone on the vehicle. When Mr. Fips

told the Defendant that he wanted to talk “man to man,” the Defendant responded, “I told

you mother f***** when I see you . . . mother f***** when I texted you I told you

mother f***** when I see you again, I‟m going to kill you.” The Defendant then shot at

least five times into the vehicle, striking Mr. Fips twice in the chest. The proof

established that Mr. Fips was unarmed and was not known to carry a gun. Following the

shooting, the Defendant fled the scene and eventually the state. He was apprehended in

California months later. The Defendant later called Carolyn and asked her to change her

story and tell police that he acted in self-defense. While the Defendant contends that, by

driving past his home at a low rate of speed, Mr. Fips provoked the Defendant, no

evidence suggests that Mr. Fips in any way provoked the Defendant. Additionally, while

the Defendant argued at trial that he was in fear of Mr. Fips at the time of the shooting,

the jury soundly rejected his claim of self-defense. Based upon this evidence, we

conclude that the jury could reasonably find that the Defendant‟s killing of Mr. Fips was

a premeditated and intentional act and that the Defendant was sufficiently free from

excitement and passion. The Defendant is not entitled to relief.

Aggravated Assault

Regarding his convictions for aggravated assault, the Defendant asserts that the

State failed to establish that he intended to cause Carolyn, Ida, and Mr. Douglas to fear

imminent bodily injury. He argues that he never pointed the weapon at Ida and Mr.

Douglas and never threatened them. The Defendant further contends that Carolyn was

injured only by “bullets that passed through Mr. Fips and not b[y] gunfire that was

directed at her[.]”

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The indictment for Count 8 charges that the Defendant “did unlawfully and

knowingly commit an assault on Carolyn Pratcher and use or display a deadly weapon

and cause bodily injury to the said Carolyn Pratcher . . . .” The indictment for Count 9

charges that the Defendant “did unlawfully and knowingly commit an assault on Ida

Pratcher and use or display a deadly weapon and cause said Ida Pratcher to reasonably

fear bodily injury . . . .” The indictment for Count 10 is identical to Count 9 except the

named victim is Michael Douglas.

Thus, as charged in Counts 8, 9, and 10, a person commits aggravated assault

when he knowingly commits an assault, and the assault involved the use or display of a

deadly weapon. Tenn. Code Ann. § 39-13-102(a)(1)(ii) (2012). A person commits

assault when he intentionally or knowingly causes bodily injury to another or

intentionally or knowingly causes another to reasonably fear imminent bodily injury.

Tenn. Code Ann. § 39-13-101(a)(1)-(2) (2012). A person acts intentionally “when it is

the person‟s conscious objective or desire to engage in the conduct or cause the result.”

Tenn. Code Ann. § 39-11-302(a). “A person acts knowingly with respect to a result of

the person‟s conduct when the person is aware that the conduct is reasonably certain to

cause the result.” Tenn. Code Ann. § 39-11-302(b). “When acting knowingly suffices to

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

Tenn. Code Ann. § 39-11-301(a)(2).

When viewed in the light most favorable to the State, the evidence was sufficient

to support the Defendant‟s convictions for three counts of aggravated assault. Regarding

the assault on Carolyn, the State established that the Defendant had threatened and

assaulted Carolyn in the weeks leading up to the shooting. Just five days before the

shooting, the Defendant grabbed Carolyn around the neck and tried to drag her into his

house. Although the Defendant stopped the assault when their son ran across the street,

the Defendant told Carolyn, “I‟m going to get [your] a**[.]” Carolyn was riding in the

front seat beside Mr. Fips at the time of the shooting. Mr. Fips‟s window was rolled

down, and the Defendant was shining a light from his cell phone towards the vehicle.

The Defendant shot into the vehicle multiple times, and Carolyn was struck in the arm

and in the leg. After she got out of the vehicle and ran behind the vehicle, the Defendant

chased Carolyn around an abandoned house. While the Defendant maintains that he fired

his weapon only at Mr. Fips, a reasonable trier of fact could infer from the evidence that

the Defendant intended to shoot Carolyn as well. The Defendant also claims that the

bullets that struck Carolyn passed through Mr. Fips first. However, the Defendant failed

to establish this at trial. When Carolyn was asked on cross-examination if she got shot

“through” Mr. Fips, Carolyn said that she did not know how she got shot—just that the

Defendant was the person shooting. In any event, under the indictment, the State was

required to prove only that the Defendant acted knowingly with respect to the aggravated

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assault against Carolyn. Based upon this evidence, it was reasonable for the jury to

conclude that the Defendant either intended to use a deadly weapon to cause bodily injury

to Carolyn or was aware that his conduct of shooting into the front seat of the vehicle

where Carolyn was sitting beside Mr. Fips was reasonably certain to result in bodily

injury to Carolyn.

Additionally, the evidence showed that the Defendant acted at least knowingly in

causing Ida and Mr. Douglas to reasonably fear imminent bodily injury. Before the

shooting, the Defendant approached Mr. Fips‟s vehicle while shining a light from his cell

phone at the SUV. Ida testified that the Defendant got close enough to the SUV to push

the driver‟s door closed. A reasonable juror could infer from this proof that the

Defendant had the time and opportunity to see who was in the vehicle. Additionally, Ida

and Mr. Douglas testified that the Defendant placed them in fear by shooting the gun into

the car. As the Defendant began to fire into the vehicle, Ida yelled at Mr. Douglas to

open the door, and both of them frantically struggled to exit the vehicle and escape the

Defendant. Thus, although the Defendant‟s intent may have been to shoot Mr. Fips and

Carolyn, the evidence demonstrated that the Defendant was aware that his conduct, i.e.,

using a deadly weapon to shoot into Mr. Fips‟s vehicle, was reasonably certain to cause

the other passengers in the vehicle to reasonably fear imminent bodily injury. When

viewed in the light most favorable to the State, the evidence was sufficient to support the

Defendant‟s convictions for three counts of aggravated assault. This issue is without

merit.

III. Conclusion

For the aforementioned reasons, we affirm the judgments of the trial court.

_________________________________

ROBERT L. HOLLOWAY, JR., JUDGE

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