State of Tennessee v. Antonio Johnson

01/30/2018

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs September 7, 2017

STATE OF TENNESSEE v. ANTONIO JOHNSON

Appeal from the Criminal Court for Shelby County

No. 15-05615 W. Mark Ward, Judge

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No. W2017-00476-CCA-R3-CD

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The Shelby County Grand Jury indicted Defendant, Antonio Johnson, on charges of

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

felony, reckless endangerment with a deadly weapon, and three counts of aggravated

assault; the State later dismissed two of the aggravated assault counts. The jury

convicted Defendant of attempted second degree murder, employment of a firearm in the

commission of a dangerous felony, aggravated assault, and reckless endangerment with a

deadly weapon. The trial court sentenced Defendant to eleven years for the attempted

second degree murder conviction, six years for the aggravated assault conviction, six

years for the employment of a firearm during the commission of a dangerous felony

conviction, and two years for the reckless endangerment conviction. The trial court

ordered the sentences for aggravated assault and reckless endangerment to run

concurrently with each other and ordered the remaining sentences to run consecutively,

for an effective sentence of twenty-three years. On appeal, Defendant argues that (1) the

evidence was insufficient for a rational juror to have found him guilty of attempted

second degree murder beyond a reasonable doubt; (2) the trial court erred in allowing the

admission of testimony regarding Defendant’s past fight with one of the victims; (3) the

trial court erred in allowing the admission of a surveillance video; and (4) the trial court

erred in ordering partial consecutive sentencing. After a thorough review of the facts and

law, we affirm.

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

THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which NORMA MCGEE

OGLE and J. ROSS DYER, JJ., joined.

Jennifer D. Fitzgerald, Memphis, Tennessee, for the appellant, Antonio Johnson.

Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant

Attorney General; Amy P. Weirich, District Attorney General; and Sarah Poe, Assistant

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

OPINION

Background

Jury Trial

Kyerra Floyd testified that June 14, 2015, was her ex-boyfriend, Larry

Campbell’s, birthday. She stated that she and Mr. Campbell were “just chilling” and later

went to the Yellow Store. As Ms. Floyd and Mr. Campbell were leaving the Yellow

Store, a man appeared and said, “[W]hat’s up, b***h.” She and Mr. Campbell turned

around, and the man “pulled a gun” on them. Ms. Floyd stated that she was scared and

that Mr. Campbell grabbed her and moved her to the side. She stated that Mr. Campbell

was speaking to the man with the gun, who was circling them. Ms. Floyd and Mr.

Campbell fell, and the man shot Mr. Campbell. Ms. Floyd testified that Mr. Campbell

was shot in the shoulder.

On cross-examination, Ms. Campbell agreed that she gave a statement to police

and that she could not identify the individual who shot Mr. Campbell at trial. She agreed

that she described the shooter to the police as a 5’ 7” man wearing a white shirt with a

Nike symbol on it. She testified that, when she and Mr. Campbell fell, she did not try to

push the shooter out of the way. Ms. Floyd then agreed that her statement disclosed that,

while she attempted to push the shooter off of Mr. Campbell, the shooter shot Mr.

Campbell in the chest.

Officer Richard Griffin testified that he had worked as a police officer for the

Memphis Police Department for approximately five and one-half years. On June 14,

2015, Officer Griffin was stationed at the North Main Station and responded to a

shooting on Mississippi Street. When he arrived, Officer Griffin observed a man lying in

the median who had been shot in the neck area. On cross-examination, Officer Griffin

stated that the scene was “fairly crowded,” but he did not observe anyone running from

the scene. He stated that he found one shell casing at the scene and that he spoke with

four witnesses. These witnesses informed Officer Griffin that the shooter walked with

Ms. Floyd and Mr. Campbell on the sidewalk and then attempted to pistol whip Mr.

Campbell.

Sergeant John Stone testified that he was assigned to the Crime Scene

Investigative Unit with the Memphis Police Department. On June 14, 2015, Sergeant

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Stone responded to the scene of the offense and observed “several items of interest” in

the middle of the street, including a shell casing and “a red substance which appeared to

be blood.” Sergeant Stone stated that he did not recover a gun at the offense scene. On

cross-examination, Sergeant Stone testified that he searched “[t]he immediate area” and

“both sides of the street” for a gun. He also noted that other officers secured the offense

scene with yellow barrier tape and searched for evidence.

Sergeant Alyssa Macon-Moore testified that she was currently employed in the

Internal Affairs Bureau of the Memphis Police Department, but on June 14, 2015, she

was assigned to the North Main Station General Investigative Bureau. On that day she

was advised that a shooting had occurred on Mississippi Street, and she became the lead

investigator for the case. Sergeant Macon-Moore explained that she “reviewed the case

and then [she] began to try to call witnesses and try to talk to [the] victim of that

particular case.” She stated that she spoke with Mr. Campbell several days later because

he was unable to speak with her while he was hospitalized. Sergeant Macon-Moore

testified that she investigated whether any nearby video surveillance recorded the offense

and found that two businesses and the Realtime Crime Center recorded the offense.

Sergeant Macon-Moore collected the video recordings. She also created a photographic

identification spread to show Mr. Campbell, who identified Defendant as the shooter in

“probably less than [ten] seconds.”

On cross-examination, Sergeant Macon-Moore testified that she did not interview

Defendant during her investigation. She explained that she “made an attempt to locate

[Defendant][]” but that she and other officers helping in the search were unable to locate

him. Sergeant Macon-Moore agreed that, when she attempted to interview Mr. Campbell

in the hospital, he told her that he had never seen the shooter before. She noted that she

asked Mr. Campbell one question, but she stopped questioning him after the nurse

informed her that Mr. Campbell was heavily sedated. Sergeant Macon-Moore also

agreed that another officer had received information that an individual named Marcus

Johnson was the shooter; she was unable to locate Mr. Johnson. Sergeant Macon-Moore

also agreed that, in her investigation, she learned that a black semi-automatic handgun

was involved in the offense, but she was also unable to locate the handgun.

Larry Campbell testified that on June 14, 2015, he celebrated his birthday by

watching a sports game; later, he walked to the Yellow Store, with Ms. Floyd. Mr.

Campbell stated that, as he was walking to the Yellow Store, people wished him a happy

birthday. He saw Defendant standing outside the Yellow Store, and he said “[W]hat’s

up[?]” to Defendant. After exiting the Yellow Store, Mr. Campbell was walking when he

heard someone say his name. He turned around and saw Defendant “standing down the

street.” Defendant walked up to Mr. Campbell and Ms. Floyd and said “What’s up now,

b***h.” At this point, Mr. Campbell did not recognize Defendant, but he knew

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Defendant was speaking to him. When Defendant walked past the Yellow Store, he

pulled “a big black gun” on Mr. Campbell. Mr. Campbell stated that Ms. Floyd was

standing in front of him, and they both began to walk backwards down the street as

Defendant said, “It’s over. It’s over now. It’s over now.” As he walked backwards, Mr.

Campbell told Defendant that he could have everything in Mr. Campbell’s pockets, and

Ms. Floyd informed Defendant that Mr. Campbell was a father and that it was his

birthday. Defendant told Ms. Floyd to move, but she did not, so Defendant picked up a

glass bottle and tried to hit her with it. Mr. Campbell attempted to keep Ms. Floyd from

being hit by the bottle, and they both fell to the ground. Mr. Campbell stood up and

attempted to reach for the gun when Defendant shot him in his collar bone. Mr.

Campbell testified that the gunshot wound paralyzed his whole right side. He stated that,

due to therapy, he can walk again. He explained that he worked as a barber and that he

was trying to relearn his skills using his left hand.

Mr. Campbell identified the Yellow Store and Mike’s Store on a surveillance

video recording. Mr. Campbell then identified himself and Ms. Floyd on video

surveillance recording. He also identified the individual who walked up to him, spoke to

him, and later shot him. The State produced a second video of surveillance footage from

the Yellow Store, and Mr. Campbell again identified himself, Ms. Floyd, and the shooter.

Mr. Campbell also identified a third recording of video surveillance from Mike’s Store;

he stated that Mike’s Store was next to the Yellow Store. Mr. Campbell identified

Defendant on the video as the individual who shot him. After he was shot, Mr. Campbell

was taken to the hospital for treatment. He later gave a statement to police after he was

discharged from the hospital and identified Defendant as the shooter from a photographic

identification spread.

On cross-examination, Mr. Campbell stated that, while he saw the face of the

individual who shot him during the offense, he did not know the individual’s name until

his family showed him a picture of Defendant, and he recognized Defendant as the

shooter. Mr. Campbell did not recall seeing Sergeant Macon-Moore at the hospital or

telling her that he had never seen the shooter before. He explained that the police showed

him a photographic identification spread approximately two days after he was discharged

from the hospital. He also stated that he was attempting to reach for the gun when

Defendant shot him.

After a Momon hearing, Defendant decided against testifying. The jury found

Defendant guilty of attempted second degree murder, employment of a firearm in the

commission of a dangerous felony, aggravated assault, and reckless endangerment with a

deadly weapon.

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Sentencing Hearing

At a subsequent sentencing hearing, Shawanda Jones testified that she is

Defendant’s mother. She stated that Defendant was the oldest of her children and that he

“help[ed] [her] with [her] other kids no matter what the situation [wa]s.” She stated that

Defendant was “ready to get out here and make a change to show the world he’s got kids

he want[s] to take care of.” Ms. Jones stated that, prior to the offense, Defendant worked

at Cooper Moving Company and for Federal Express. She testified that Defendant had a

good relationship with his two children and that he talked to them frequently on the

phone. Ms. Jones believed that Defendant started getting into trouble as a child because

Defendant was very close to his grandfather, and when his grandfather passed away,

Defendant “just couldn’t accept it that he was gone.” She explained that her father,

Defendant’s grandfather, was disabled and that Defendant helped take care of his

grandfather as a child. On cross-examination, Ms. Jones stated that her father passed

away in 2005, when Defendant was ten or eleven. She agreed that Defendant had

previously been convicted of four counts of aggravated robbery.

The trial court found that Defendant was a Range I standard offender and that the

trial court was required to sentence Defendant to six years at 100% for the conviction of

employing a firearm during a dangerous felony. The trial court stated that it had

considered “the evidence presented, both at the trial and at the sentencing hearing the pre-

sentence report and the principles of sentencing established by the 1989 Act and

arguments relative to possible alternatives to incarceration[]” as well as “the nature and

characteristics of the criminal conduct involved, any enhancement and mitigation factors

that apply to the case, any statistical information provided by the Administrative Office

of the Courts and any statement [Defendant] wishe[d] to make on his . . . behalf.” The

trial court also noted that Defendant’s sentences “should be consistent with the general

purposes and principles of sentencing set forth in the 1989 Act[,]” such as “the

imposition of a sentence justly deserved in relation to the seriousness of the offense, a

punishment sufficient to prevent crime and promote respect for the law and consideration

of the [D]efendant’s potential or lack of potential for rehabilitation.”

Regarding enhancement factors, the trial court found that Defendant “ha[d] a

previous history of criminal convictions or criminal behavior in addition to those

necessary to establish the appropriate range.” The trial court noted that Defendant had

previously been convicted of reckless endangerment, criminal trespass, and theft. The

trial court also found that “the personal injuries inflicted upon the victim were

particularly great[]” because the victim’s right side was paralyzed after the offense. The

trial court additionally found that, prior to trial or sentencing, Defendant “failed to

comply with the conditions of a sentencing involving release into the community,” that

Defendant was on probation at the time he committed the offense, and that he had

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previously been “adjudicated to have committed a delinquent act or acts as a juvenile that

would constitute a felony if committed as an adult.” Regarding mitigating factors, the

trial court noted that Defendant “ha[d] not testified or offered any apology or remorse or

anything.” However, the trial court considered Defendant’s childhood experience. The

trial court sentenced Defendant to eleven years for attempted second degree murder, six

years for aggravated assault, six years for employment of a firearm during the

commission of a dangerous felony, and two years for reckless endangerment with a

deadly weapon. The trial court ordered the aggravated assault and reckless endangerment

convictions to run concurrently to each other but consecutively to the attempted second

degree murder conviction. The trial court ordered the employment of a firearm

conviction to run consecutively to the other three sentences for a total effective sentence

of twenty-three years.

Regarding its order of partial consecutive sentencing, the trial court found that

Defendant was a dangerous offender whose behavior indicated little or no regard for

human life and who showed no hesitation about committing a crime to which the risk to

human life was high. The trial court found that the circumstances of Defendant’s

offenses were aggravated because Defendant “essentially” chased the victims down and

then stood over them and shot Mr. Campbell. The trial court found that consecutive

sentencing was justified “because confinement for an extended period of time [wa]s

necessary to protect society from [Defendant’s] unwillingness to lead a productive life[]

and [Defendant’s] resort to criminal activity in furtherance of an anti-societal lifestyle.”

The trial court also found that “the aggregate length of the sentences reasonably relate[d]

to the offenses for which [Defendant] [was] convicted.” The trial court noted that

Defendant was adjudicated delinquent for aggravated robbery as a juvenile and that he

was on probation for reckless endangerment at the time of the offenses; thus, Defendant

was sentenced to an offense that was committed while he was on probation. Further, the

trial court found that Defendant was “an offender whose record of criminal activities

[wa]s extensive[]” based on “his juvenile aggravated robberies, his three prior

convictions before this one and then adding the four convictions in this case to it.” The

trial court also considered Defendant’s potential for rehabilitation and noted that

Defendant was given opportunities to rehabilitate by the juvenile court. Regarding the

manner of service, the trial court denied probation “based upon the fact that he committed

these while he was on probation and based upon his extensive record . . . .”

Defendant filed a motion for new trial, which the trial court denied. Defendant

timely appeals the trial court’s judgments.

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Analysis

Sufficiency of the Evidence

Defendant argues that the evidence admitted at trial was insufficient for a rational

juror to have found Defendant guilty beyond a reasonable doubt of attempted second

degree murder because none of the videos entered into evidence depicted the shooting

and because “[i]t is not clear whether the gun discharged because the victim was reaching

for it, or whether [Defendant] intentionally pulled the trigger.” The State asserts that

“[Mr.] Campbell testified that he never touched [Defendant]’s gun and that [Defendant]

pulled the trigger[]” and that “the circumstances of the shooting indicated that

[Defendant] called out [Mr.] Campbell, followed him, and intended to kill him.”

The standard for appellate review of a claim challenging the sufficiency of the

State’s evidence is “whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Tenn. R.

App. P. 13(e); State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011). To obtain relief on a

claim of insufficient evidence, appellant must demonstrate that no reasonable trier of fact

could have found the essential elements of the offense beyond a reasonable doubt. See

Jackson, 443 U.S. at 319. This standard of review is identical whether the conviction is

predicated on direct or circumstantial evidence, or a combination of both. State v.

Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011).

On appellate review, “‘we afford the prosecution the strongest legitimate view of

the evidence as well as all reasonable and legitimate inferences which may be drawn

therefrom.’” Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857

(Tenn. 2010)); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage,

571 S.W.2d 832, 835 (Tenn. 1978). In a jury trial, questions involving the credibility of

witnesses and the weight and value to be given the evidence, as well as all factual

disputes raised by the evidence, are resolved by the jury as trier of fact. State v. Bland,

958 S.W.2d 651, 659 (Tenn. 1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).

This court presumes that the jury has afforded the State all reasonable inferences from the

evidence and resolved all conflicts in the testimony in favor of the State; as such, we will

not substitute our own inferences drawn from the evidence for those drawn by the jury,

nor will we re-weigh or re-evaluate the evidence. Dorantes, 331 S.W.3d at 379;

Cabbage, 571 S.W.2d at 835; see State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).

Because a jury conviction removes the presumption of innocence that appellant enjoyed

at trial and replaces it with one of guilt at the appellate level, the burden of proof shifts

from the State to the convicted appellant, who must demonstrate to this court that the

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evidence is insufficient to support the jury’s findings. Davis, 354 S.W.3d at 729 (citing

State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011)).

Second degree murder is “[a] knowing killing of another[.]” Tenn. Code Ann. §

39-13-210(a)(1) (2015). “Second degree murder is a result of conduct offense and

accordingly, [t]he nature of the conduct that causes death or the manner in which one is

killed is inconsequential under the second degree murder statute.” State v. Brown, 311

S.W.3d 422, 431-32 (Tenn. 2010) (quoting State v. Ducker, 27 S.W.3d 889, 896 (Tenn.

2000)) (internal quotation marks omitted). Our code states that “[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)

(2015). A defendant attempts to commit an offense when “acting with the kind of

culpability otherwise required for the offense[,]” they “[a]ct[] with intent to cause a result

that is an element of the offense, and believes the conduct will cause the result without

further conduct on the person’s part[.]” Tenn. Code Ann. § 39-12-101(a)(2) (2015).

Whether the appellant “knowingly” attempted to kill his victim is a

question of fact for the jury. Intent, which can seldom be proven by direct

evidence, may be deduced or inferred by the trier of fact from the character

of the assault, the nature of the act and from all the circumstances of the

case in evidence.

State v. Inlow, 52 S.W.3d 101, 104-05 (Tenn. Crim. App. 2001) (citing State v. Holland,

860 S.W.2d 53, 59 (Tenn. Crim. App. 1993)).

The evidence, when viewed in the light most favorable to the State, shows that,

after Mr. Campbell and Ms. Floyd left the Yellow Store, Defendant called to them and

approached them. Defendant pulled out his gun, and Mr. Campbell and Ms. Floyd began

walking backwards down the sidewalk. Defendant attempted to hit Ms. Floyd with a

glass bottle to get her to move away, and Ms. Floyd and Mr. Campbell fell. Mr.

Campbell stood up and reached for the gun, and Defendant shot Mr. Campbell. Our court

has consistently held that the “deliberate firing of shots at a person constitutes ‘knowing’

conduct for the purpose of establishing second degree murder.” State v. Tommy Dale

Adams, No. M2013-01080-CCA-R3-CD, 2014 WL 3565987, at *20 (Tenn. Crim. App.

July 21, 2014), perm. app. denied (Tenn. Dec. 17, 2014); see also State v. Dontavious

Hendrix, No. W2015-01671-CCA-R3-CD, 2016 WL 3922939, at *5 (Tenn. Crim. App.

July 15, 2016), perm. app. denied (Tenn. Nov. 22, 2016); State v. Montez Davis, No.

E2011-02055-CCA-R3-CD, 2012 WL 6213520, at *11 (Tenn. Crim. App. Dec. 13,

2012), perm. app. denied (Tenn. Apr. 10, 2013); State v. Chancy Jones, No.W2010-

02424-CCA-R3-CD, 2012 WL 1143583, at *10 (Tenn. Crim. App. Apr. 5, 2012), perm.

app denied (Tenn. Aug. 16, 2012); State v. Antonio Sellers, No. W2011-00971-CCA-

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R3CD, 2012 WL 1067213, at *7 (Tenn. Crim. App. Mar. 27, 2012); State v. Rickie Reed,

No. W2001-02076-CCA-R3-CD, 2002 WL 31443196, at *6 (Tenn. Crim. App. Oct. 31,

2002), perm. app. denied (Tenn. Mar. 17, 2003). The jury viewed all the evidence,

including the three surveillance videos, and clearly chose to credit the testimony of Mr.

Campbell above that of Defendant, as was its prerogative. “In the resolution of questions

of fact, such as those presented by evidence of alibi or the identity of the perpetrator, ‘the

jury bears the responsibility of evaluating the conflicting evidence and accrediting the

testimony of the most plausible witnesses.’” State v. Pope, 427 S.W.3d 363, 369 (Tenn.

2013) (quoting State v. Hornsby, 858 S.W.2d 892, 297 (Tenn. 1993)). We conclude that

there was sufficient evidence introduced at trial for a reasonable juror to have found

Defendant guilty of attempted second degree murder beyond a reasonable doubt.

Defendant is not entitled to relief on this issue.

Admission of Evidence

Past Fight

Defendant contends that the trial court erred in admitting testimony regarding the

fact that Defendant and victim Campbell had a “fight” or “altercation” approximately a

year and a half before the offense because the evidence was more prejudicial than

probative. The State responds that the “fight” was only mentioned briefly during

Defendant’s cross-examination of victim Campbell and that the trial court “then

responded to that unexpected mention in a way that avoided highlighting the testimony—

as [Defendant] desired—and the testimony never came up again.”

It is well-established precedent “that trial courts have broad discretion in

determining the admissibility of evidence, and their rulings will not be reversed absent an

abuse of that discretion.” State v. McLeod, 937 S.W.2d 867, 871 (Tenn. 1996). The

general rule is that evidence of a defendant’s prior conduct is inadmissible, especially

when previous crimes or acts are of the same character as the charged offense, because

such evidence is irrelevant and “invites the finder of fact to infer guilt from propensity.”

State v. Hallock, 875 S.W.2d 285, 290 (Tenn. Crim. App. 1993). Tennessee Rule of

Evidence 404(b) permits the admission of evidence of prior conduct if the evidence of

other acts is relevant to a litigated issue such as identity, intent, or rebuttal of accident or

mistake, and the probative value outweighs the danger of unfair prejudice. Tenn. R.

Evid. 404(b) Advisory Comm’n Cmts.; see State v. Parton, 694 S.W.2d 299, 303 (Tenn.

1985); State v. Hooten, 735 S.W.2d 823, 824 (Tenn. Crim. App. 1987). However,

“[e]vidence 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.” Tenn. R. Evid.

404(b). Before admitting evidence under Rule 404(b), the rule provides that (1) upon

request, the court must hold a hearing outside the jury’s presence; (2) the court must

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determine that the evidence is probative on a material issue and must, if requested, state

on the record the material issue and the reasons for admitting or excluding 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 the danger of unfair prejudice outweighs

its probative value. Tenn. R. Evid. 404(b).

The rationale underlying Rule 404(b)’s exclusion of evidence of a defendant’s

prior bad acts is that admission of such evidence carries with it the inherent risk of the

jury convicting the defendant of a crime based upon his bad character or propensity to

commit a crime, rather than the conviction resting upon the strength of the evidence.

State v. Rickman, 876 S.W.2d 824, 828 (Tenn. 1994). The risk is greater when the

defendant’s prior bad acts are similar to the crime for which the defendant is on trial. Id.;

see also State v. McCary, 922 S.W.2d 511, 514 (Tenn. 1996).

During a jury-out hearing, Mr. Campbell explained that, prior to the offense date,

he and Defendant had “an altercation” at Mr. Campbell’s cousin’s house because

Defendant and another individual were attempting to steal money from Mr. Campbell.

He stated that he and Defendant “got to fighting[,]” but he had not had any contact with

Defendant between the altercation and the current offense. On cross-examination, Mr.

Campbell testified that the altercation with Defendant occurred approximately a year and

a half before the offense. He stated that he did not file a police report after his altercation

with Defendant. Mr. Campbell stated that, when he was hospitalized after the offense, he

remembered Defendant’s face as his attacker but could not remember Defendant’s name

until his cousin stated that it was Defendant who shot him.

The trial court found that there was clear and convincing evidence that Mr.

Campbell and Defendant had a confrontation at Mr. Campbell’s cousin’s house. The trial

court found that this evidence was relevant to “the issue of identity in the sense that it

supports the fact that . . . [Mr. Campbell has] seen this person before[]” and to the issue

of Defendant’s motive. The trial court noted that Defendant’s indicted offense, attempted

first degree murder, was a specific intent crime, which weighed in favor of finding the

evidence more probative than prejudicial. The trial court also noted that the altercation

occurred eighteen months before the offense and that the altercation involved stealing

money, which weighed against the probative value of the evidence. The trial court then

stated the following:

I think the way I’m going to resolve this is[:] it’s kind of splitting the

baby. I think the prejudicial [e]ffect outweighs the probative value as far as

getting into any of the details of the alleged theft. If I recall his testimony it

was an attempted theft. He never . . . got it out of his pocket. They had a

little . . . altercation. Having an altercation is not necessarily a[] crime or a

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bad act. I think what I'm going to do is split the baby in this, sterilize it

somewhat. . . . [L]et him testify that a year and a half before they had an

altercation at his cousin's house with this particular individual. But . . .

unless y’all bring it out, I think I’m in agreement with [trial counsel] that . .

. I don’t even want y’all getting into who started it because then we get into

a bad act. If we just say they had an altercation at the cousin’s house a year

and a half before, then I think that’s okay. So that’s how I’m going to

resolve that.

The trial court also informed the State and trial counsel that they could lead Mr.

Campbell during his testimony to “avoid him volunteering something . . . .”

During the cross-examination of Mr. Campbell, trial counsel asked Mr. Campbell

to look at the preliminary hearing transcript. In a discussion on whether trial counsel

could impeach Mr. Campbell’s testimony with the transcript, the trial court noted that the

State had not asked Mr. Campbell any questions about his altercation with Defendant and

that, if trial counsel asked about the altercation, “then they open the door.” After a

recess, the following exchange occurred:

[TRIAL COUNSEL]: Mr. Campbell, how long were you in the

hospital?

[MR. CAMPBELL]: I’ll say about . . . three weeks.

[TRIAL COUNSEL]: Okay. And you talked to your family about

what happened?

[MR. CAMPBELL]: After. You know, some -- somewhat. It

wasn’t just talk to them. . . . I couldn’t just talk to nobody.

[TRIAL COUNSEL]: Is that a yes or a no?

[MR. CAMPBELL]: Not really. I can’t just say [be]cause I did talk

to certain people that came to see me, but it wasn’t about this situation. It

wasn’t about this. Only one time it was and that’s when, you know – I’ll

just wait you ask me that question.

[TRIAL COUNSEL]: So is that a yes or a no?

[MR. CAMPBELL]: You can say yes.

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[TRIAL COUNSEL]: And they showed you pictures?

[MR. CAMPBELL]: My family wasn’t . . . the first ones to show

me pictures. I seen [sic] pictures before. My cousin who [sic] house we

got to fighting at before -- before she came. But before she came –

....

[TRIAL COUNSEL]: He just said it.

[TRIAL] COURT: What?

[TRIAL COUNSEL]: He said that that’s the one that I got in the

fight with.

[TRIAL] COURT: I heard that one word, but I’m not sure -- it was

so muttered I’m not sure what -- what do you want me to do?

[TRIAL COUNSEL]: Can you make an instruction on that? I mean,

I don’t want to bring attention to it but it has -- a bell has been rung.

[ASSOCIATE TRIAL COUNSEL]: He actually said exactly what

we were trying to prevent.

[TRIAL COUNSEL]: That’s why I didn’t go back to the question.

[TRIAL] COURT: So what do y’all want me to do? [A]nything I

say is going to highlight it.

[ASSOCIATE TRIAL COUNSEL]: Of course it is. I don’t know

[if] there’s pretty much anything you can do.

[TRIAL] COURT: I mean I ruled it was admissible and that [the

State] could have got into it but she didn’t choose to and now he’s

volunteering it, unresponsively. So I don’t know what y’all -- I mean I

don’t know what to –

....

[TRIAL] COURT: It was so muttered I don’t know. I’ll do

whatever you want me to do.

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[ASSOCIATE TRIAL COUNSEL]: Well, we don’t want him to say

it again.

....

[TRIAL] COURT: Well, he hasn’t done anything inadmissible. It’s

just that we hadn’t got there and it would be nice not to go there.

[ASSOCIATE TRIAL COUNSEL]: Right.

[TRIAL] COURT: But I’ll do whatever you want me to do.

[ASSOCIATE TRIAL COUNSEL]: (Indiscernible) let it go.

[TRIAL] COURT: Unresponsive to the question. That will explain

why y’all are up here.

Here, the trial court complied with the requirements of Tennessee Rule of

Evidence 404(b) by holding a jury-out hearing, by determining that a material issue

existed regarding the identity and motive of Defendant, by finding that proof of

Defendant’s altercation was clear and convincing, and by limiting the admission of the

evidence due to prejudice. The trial court ruled that Mr. Campbell could testify that he

had an altercation with Defendant approximately a year and one-half prior to the

offenses, but the trial court specifically ruled that Mr. Campbell could not discuss the

underlying details of the altercation because the prejudice of that evidence would

outweigh the probative value.

We conclude that the trial court did not err. We note that Mr. Campbell

mentioned general details of the altercation (there was “fighting”) in testimony that was

unresponsive to trial counsel’s question on cross-examination; when this occurred, the

trial court instructed the witness to stop giving unresponsive answers. It is also clear that

the underlying facts of the altercation, that Defendant was allegedly attempting to steal

money from Mr. Campbell, were not mentioned at trial. Trial counsel’s proposed remedy

to “let it go” was the course taken by the trial court. Defendant is not entitled to relief on

this issue.

Third Surveillance Video

Defendant additionally argues that the trial court erred in admitting the third

surveillance video because it was not properly authenticated by the State. More

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specifically, Defendant notes that the State admitted the video through the testimony of

Mr. Campbell, who did not record the video and was not depicted in the video. The State

contends that the trial court did not abuse its discretion in admitting the video because

“[Mr.] Campbell’s testimony was adequate to show that the video was what the State

purported it to be: a video of [Defendant] standing outside Mike’s Store on June 14,

2015, before the shooting.”

Tennessee Rule of Evidence 901 states that “[t]he requirement of authentication or

identification as a condition precedent to admissibility is satisfied by evidence sufficient

to the court to support a finding by the trier of fact that the matter in question is what its

proponent claims.” Tenn. R. Evid. 901(a). Evidence may be authenticated by a witness’s

testimony that “a matter is what it is claimed to be[]” or by “[c]omparison by trier of fact

or by expert witnesses with specimens which have been authenticated.” Tenn. R. Evid.

901(b)(1),(3).

The following exchange occurred at trial during Mr. Campbell’s testimony:

[TRIAL COUNSEL]: Your Honor, he cannot properly authenticate

this video. I mean, his back was turned. You can’t even see what’s

happening in this video. This happened way down at the other [end]. And

when he came out the store whatever is going on, he can’t see it. He’s not

even in this video. He can’t properly authenticate it. It’s not a matter

within his knowledge.

....

[THE STATE]: . . . [D]o you recognize this area?

[MR. CAMPBELL]: This is Mike’s Store, the store beside the

Yellow Store.

....

[THE STATE]: . . . [I]f we’re facing Yellow Store, where is this

store located?

....

[MR. CAMPBELL]: To the left of the Yellow Store. If you trying

to enter the Yellow Store or coming out the Yellow Store?

[THE STATE]: Going in?

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[MR. CAMPBELL]: It’s to the right.

....

[MR. CAMPBELL]: Yes, ma’am. That’[s] . . . [when] my name

was called.

[THE STATE]: Is that when you were out of the store you heard

hey, Larry?

[MR. CAMPBELL]: Yes, ma’am.

[THE STATE]: There, is that when you heard other things being

said to you?

[MR. CAMPBELL]: Yes, ma’am.

[THE STATE]: Does that clothing match the person who shot you?

[MR. CAMPBELL]: Yes, ma’am.

[THE STATE]: Is that the person who shot you?

[MR. CAMPBELL]: Yes, ma’am.

[THE STATE]: Is that right next to where you were shot?

[MR. CAMPBELL]: Down the street, yes, ma’am.

[THE STATE]: Is that the same night you were shot?

[MR. CAMPBELL]: Yes, ma’am.

[TRIAL] COURT: Of course the obvious question is how does he

know it’s the same night he was shot?

....

[MR. CAMPBELL]: Sir, you can see he called me that night. Like,

when I was coming out of the store I was called. And that’s the same thing

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he had on that night. . . . [T]hat [was] my first time seeing him over in the

neighborhood before that.

....

[TRIAL COUNSEL]: [I]n your previous testimony you testified that

you were down the street when you heard your name called the first time; is

that correct?

[MR. CAMPBELL]: Yes, ma’am.

[TRIAL COUNSEL]: And I believe it was your testimony that you

didn’t know who it was because they were too far away?

[MR. CAMPBELL]: Yes, ma’am.

[TRIAL COUNSEL]: So how do you know that that’s who it was?

[MR. CAMPBELL]: He came running down the street.

[TRIAL COUNSEL]: How do you know that this was the same

night?

[MR. CAMPBELL]: That’s the same night. I remember that night,

ma’am.

....

[TRIAL] COURT: All right. Well, I think I’m going to allow it into

evidence under . . . 901(B)3. I think he has some knowledge of it, but

you’re right. He doesn’t have complete knowledge of it. But he has some

knowledge under (B)l, testimony of a witness with knowledge. But

primarily I’m letting it in under Subparagraph 3. Comparison by trier of

fact with specimens which have already been authenticated. I think when

you look at the other exhibit that I looked at, I think the jury can compare

that with that and make a decision about it.

The trial court noted that two other surveillance videos had been authenticated and

admitted into evidence. The trial court admitted the third surveillance video under

Tennessee Rule of Evidence 901(b)(3) “to let the jury compare that with this which looks

like it just shows a different angle from a far[-]away place.”

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Here, Mr. Campbell had sufficient personal knowledge of the individual depicted

on the third surveillance video. He identified Defendant based on the clothing that

Defendant wore on the video, and he also identified the location and timing of the video

based on his recollection of the offense. Mr. Campbell was able to pinpoint the moment

on the video that Defendant first called to Mr. Campbell to get his attention. We

conclude that the trial court did not abuse its discretion by admitting the third surveillance

video under Tennessee Rule of Evidence 901(b)(1). See State v. Williams, 913 S.W.2d

462, 465 (Tenn. 1996) (concluding that photographs from surveillance video were

properly admitted through the victim, who testified that the photographs accurately

depicted the scene); see also State v. Jeffrey Scott Long, No. E2015-01287-CCA-R3-CD,

2017 WL 2958700, at *20 (Tenn. Crim. App. July 11, 2017) (concluding that

surveillance video was admissible under Tennessee Rule of Evidence 901(b)(1) through

the testimony of the building maintenance worker because the witness observed the

defendant at the apartment complex on the night of the offense and testified that the video

was an accurate depiction), no perm. app. filed.

Regarding the admission of the video under Tennessee Rule of Evidence

901(b)(3), we conclude that the trial court incorrectly relied on this provision. It appears

to the court that case law in Tennessee limits the admission of evidence under this

provision to “exemplars and questioned documents.” Tenn. R. Evid. 901(b)(3), Advisory

Comm’n Cmts. Previous opinions from the intermediate appellate courts in Tennessee

have only admitted evidence of an individual’s handwriting or signature under this

provision, see, e.g., Payne v. Tipton County, 448 S.W.3d 891, 901-02 (Tenn. Ct. App.

Mar. 31, 2014); James A. Long, et al., v. Charles D. Ledford, et al., No. E2016-00451-

COA-R3-CV, 2016 WL 5851875, at *3 (Tenn. Ct. App. Sept. 30, 2016), perm. app.

denied (Tenn. Jan. 19, 2017); State v. Gregory D. Roberts, No. W2010-01538-CCA-R3-

CD, 2011 WL 1220097, at *3 (Tenn. Crim. App. Mar. 30, 2011), no perm. app. filed;

State v. William S. Dedmon, No. 01C01-9506-CC-00209, 1996 WL 518274, at *4 (Tenn.

Crim. App. Sept. 13, 1996), so this provision is inapplicable to the current case. In any

event, any error in admitting the video under this provision is harmless because Mr.

Campbell had sufficient knowledge and gave adequate testimony to admit the video

under Rule 901(b)(1). Defendant is not entitled to relief on this ground.

Consecutive Sentencing

Defendant argues that the trial court erred in ordering that Defendant’s aggravated

assault sentence run consecutively to his attempted second degree murder sentence

because the trial court did not base its decision on testimony or evidence introduced at

trial and because “there were no aggravating circumstances to justify consecutive

sentencing.” The State responds that the trial court did not abuse its discretion because

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“the trial court had three separate grounds for consecutive sentencing, and it articulated a

reasoned basis for why each of those grounds applied here.”

A trial court’s sentencing decisions are generally reviewed for abuse of discretion,

with a presumption of reasonableness granted to within-range sentences that reflect a

proper application of the purposes and principles of sentencing. State v. Bise, 380

S.W.3d 682, 707 (Tenn. 2012). Likewise, the “standard of appellate review for

consecutive sentencing is abuse of discretion accompanied by a presumption of

reasonableness.” State v. Pollard, 432 S.W.3d 851, 859 (Tenn. 2013). The presumption

of reasonableness applies only when the trial court has provided reasons on the record

establishing at least one of the seven statutory bases for imposing consecutive sentences

delineated in Tennessee Code Annotated section 40-35-115(b). Id. at 861.

Tennessee Code Annotated section 40-35-115(b) allows a court to impose

consecutive sentences when “[t]he defendant is a dangerous offender whose behavior

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

which the risk to human life is high.” T.C.A. § 40-35-115(b)(4). When the trial court

bases its decision to run sentences consecutively on the dangerous offender category in

Tennessee Code Annotated section 40-35-115(b)(4), it must make additional findings as

set out in State v. Wilkerson: that the aggregate sentence is “‘reasonably related to the

severity of the offenses’” and “‘necessary in order to protect the public from further

criminal acts.’” Pollard, 432 S.W.3d at 863 (quoting State v. Wilkerson, 905 S.W.2d

933, 938 (Tenn. 1995)). If the trial court fails to make the requisite findings, the

appellate court may either conduct a de novo review to determine whether there is an

adequate basis for the imposition of consecutive sentences or remand to the trial court so

that it may consider the appropriate factors and make the proper findings. Id. at 864.

Here, the trial court found that Defendant was a dangerous offender whose

behavior indicated little or no regard for human life and who showed no hesitation about

committing a crime to which the risk to human life is high and that there were

aggravating circumstances based on Mr. Campbell’s injuries. The trial court found that

consecutive sentencing was necessary to protect society and that “the aggregate length of

the sentences reasonably relate[d] to the offense for which the [D]efendant [was]

convicted.” The trial court also found that Defendant had an extensive criminal history,

that he had not successfully completed past alternative sentences, and that he committed

the current offenses while on probation.

Because the trial court set out its findings and conclusions regarding its order of

consecutive sentencing on the record, we will afford its conclusion a presumption of

reasonableness, and we will not reverse absent an abuse of discretion. We agree with the

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State that the trial court did not abuse its discretion by ordering Defendant to serve

consecutive sentences. The trial court ordered consecutive sentencing based on several

factors from Tennessee Code Annotated section 40-35-115, all of which were supported

by evidence in the record. Defendant is not entitled to relief on this ground.

CONCLUSION

Based on the aforementioned reasons, we affirm the judgments of the trial court.

__________________________________________

THOMAS T. WOODALL, PRESIDING JUDGE

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