        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs March 1, 2016


               STATE OF TENNESSEE v. DARRYL CLAXTON

                 Appeal from the Criminal Court for Shelby County
                         No. 13-02927  Chris Craft, Judge




                No. W2015-00885-CCA-R3-CD - Filed April 20, 2016
                        _____________________________

Following a jury trial, Darryl Claxton (“the Defendant”) was convicted of first degree
premeditated murder and sentenced to life imprisonment for the death of Terry Johnson
(“the victim”). The Defendant raises the following issues on this direct appeal: (1)
whether the evidence was sufficient to support his conviction; (2) whether the trial court
erred when it allowed a witness to testify about the Defendant‟s association with a “group
of young men” in violation of Tennessee Rules of Evidence 403 and 404(b); (3) whether
the trial court erred when it allowed a witness to “speculate” about the disposition of the
murder weapon in violation of Tennessee Rule of Evidence 602; and (4) whether the
cumulative effect of the errors requires a new trial. Discerning no error, we affirm the
judgment of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment 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.

C. Anne Tipton, Memphis, Tennessee, for the appellant, Darryl Claxton.

Herbert H. Slatery III, Attorney General and Reporter; Rachel E. Willis, Senior Counsel;
Amy P. Weirich, District Attorney General; and Alanda Dwyer and Reginald Henderson,
Assistant District Attorneys General, for the appellee, State of Tennessee.
                                       OPINION

                        I. Factual and Procedural Background

                                          Trial

       Cary Peete testified that he was a security officer assigned to Greenbriar
Apartments in Memphis. On November 14, 2012, Mr. Peete was sitting in his parked car
when he saw a group of people standing in the breezeway of one of the apartment
buildings. Mr. Peete shined a hand-held spotlight on the group and told them to move out
of the breezeway, and most of the group followed Mr. Peete‟s command. Mr. Peete
placed the spotlight on the front seat of his car, looked back at the breezeway, and saw
the Defendant fire a weapon several times. Mr. Peete exited his vehicle and aimed his
firearm at the Defendant, but the Defendant “took off running.” Mr. Peete and his partner
gave chase. The Defendant ran through the breezeway and behind the building. Mr.
Peete ran in front of the apartment building in order to cut off the Defendant‟s path.
When the Defendant saw that Mr. Peete and his partner were approaching him from
different directions, he turned, placed his hands in the air, and “got down on his knees.”
The Defendant did not say anything once he surrendered to the security guards. Mr.
Peete and his partner took the Defendant into custody and led him back to the parking lot.
Mr. Peete then returned to the breezeway and found the victim still alive. Mr. Peete
called 911, and when police arrived, the Defendant was turned over to their custody.

       On cross-examination, Mr. Peete agreed that it was dark at the time of the offense,
but he said the area was illuminated by lights. Mr. Peete said he saw the group of “four
or five guys” exit an apartment into the breezeway. A female stood in the open door of
the apartment, and the men stood in the breezeway for “some seconds” before Mr. Peete
shined his spotlight on them. The Defendant was standing in the breezeway with his
right foot propped against the stairs. Mr. Peete agreed that there could have been more
people in the breezeway that he could not see from his vehicle. However, Mr. Peete
maintained that he could clearly see the Defendant from his vehicle. Mr. Peete said he
could see the Defendant‟s profile and recalled that the Defendant had a slight build, a
“fade” haircut, and was wearing a light blue “hoodie.” Although Mr. Peete could not see
the Defendant‟s gun, he saw “muzzle flash” when the gun was fired. Mr. Peete stated
that the Defendant pulled the gun from underneath his hoodie and held it with his right
hand. Mr. Peete noted that he did not see the Defendant drop the gun but that the
Defendant was unarmed when Mr. Peete took him into custody. To Mr. Peete‟s
knowledge, the gun was never found.

      Robin Milam testified that, at the time of the offense, she lived with her children
and her friend, McKeisha Webb, in the building where the victim was killed. Ms. Webb
was dating the victim. Ms. Milam stated that she also knew the Defendant “through
                                          -2-
school and [as an] acquaintance[.]” The victim came to visit Ms. Webb on the day of the
offense. Over the course of the day on which the victim was killed, four or five people
came to visit Ms. Milam‟s apartment, including the Defendant, Terry Shaw (whom Ms.
Milam understood to be the Defendant‟s cousin), Deshun, and King.1 The visitors
remained in Ms. Milam‟s living room. While they were there, Ms. Milam overheard a
conversation between the Defendant, Mr. Shaw and someone else—Ms. Milam could not
recall who else was party to the conversation. Ms. Milam stated, “They were saying like
[„][M]an, if someone wants to pay some money or something, would you kill
somebody.[‟]” Ms. Milam said she was not listening to the conversation because she was
moving between rooms in her apartment. The victim was in Ms. Webb‟s bedroom when
this conversation took place.

       Later that evening, Ms. Milam “put everybody out because [she] got sick of
company.” Ms. Milam later clarified that she did not ask the victim to leave at that time.
Ms. Milam, her two children, Ms. Webb, the victim, and Chris Hampton2 were in the
living room watching television. About an hour later, Mr. Shaw returned to the
apartment to charge his phone. Mr. Shaw remained in the living room, and Ms. Webb
and the victim had moved to one of the bedrooms. Ms. Milam told Mr. Shaw not to open
the door for anyone because Ms. Milam did not want any more company. Later, Ms.
Milam heard “hard knocks” on her front door and the Defendant say that he wanted his
phone charger. Mr. Shaw told Ms. Milam that he wanted to open the door for the
Defendant, but Ms. Milam told Mr. Shaw to leave the apartment instead. The Defendant
continued to pound on Ms. Milam‟s door, and the victim and Ms. Webb came into the
living room. Mr. Shaw opened the door, and the Defendant came into the apartment.
Ms. Milam stated that the Defendant appeared to be angry and recalled that he “mudged”
or bumped the victim with his shoulder as he came in the door. Ms. Milam said the
Defendant appeared “[m]ean” and that he and the victim started to argue. At that point,
Ms. Milam told the Defendant and Mr. Shaw to leave her apartment.

       Approximately five or ten minutes after the Defendant and Mr. Shaw left, Ms.
Webb and the victim left to go to the store. Ms. Milam walked Ms. Webb and the victim
to her door, let them out, and then closed and locked her front door. She said there was
“a crowd” in her breezeway but that she did not see the Defendant when she opened the
door. As soon as the victim and Ms. Webb left, Ms. Milam heard arguing, and five or ten
seconds later, she heard gunfire. Ms. Milam heard Ms. Webb say, “[O]pen the door,
open the door, [the victim‟s] been shot,” and Mr. Hampton let Ms. Webb into the
apartment. Once inside the apartment, Ms. Webb told Ms. Milam to call an ambulance

       1
         Ms. Milam did not know Deshun‟s last name or King‟s legal name. Therefore, we will refer to
them by Deshun and King in this opinion.
       2
           It is not clear from the record when Mr. Hampton arrived at Ms. Milam‟s apartment.
                                                  -3-
and identified the Defendant as the person who shot the victim. Through her open door,
Ms. Milam saw the victim lying in the breezeway, but she did not see the Defendant or
Mr. Shaw.

        On cross-examination, Ms. Milam stated that she had twice been convicted of theft
of property. Ms. Milam denied knowing that the Defendant had a twin brother. Ms.
Milam reiterated that the Defendant was angry when he returned to the apartment, and
she recalled that he said, “I don‟t want to—I don‟t want to be in this house, I just need
my damn charger.” Ms. Milam noted that she gave a statement to police the night of the
shooting, but she said she did not tell anyone about the conversation she overheard in her
living room until she told the prosecutor the week before trial.

       McKeisha Webb testified that she had been “staying” at Ms. Milam‟s residence
for a couple of months at the time of the shooting. On the night of the shooting, Ms.
Webb, Ms. Milam, Mr. Hampton, the victim, and Ms. Milam‟s two children were in Ms.
Milam‟s apartment. Several people, including the Defendant, had been to Ms. Milam‟s
apartment earlier in the day, but they had left before the shooting. The victim also left
but later returned with King. About twenty minutes after the victim returned, Mr. Shaw
knocked on Ms. Milam‟s door. Ms. Milam let Mr. Shaw in, and Mr. Shaw “went to the
back with [the victim] and King.” Shortly after that, the Defendant began “beating on
[Ms. Milam‟s front] door hysterically.” Ms. Webb was seated on the couch near the
door, but she did not open the door because she had been instructed not to let anyone in
the apartment. However, the victim came into the living room and opened the door for
the Defendant. The Defendant “c[a]me barging in” and bumped the victim. An
argument started between the victim and the Defendant, which lasted five to ten minutes.
The Defendant then left the apartment without speaking to anyone else. Ms. Webb
reported that the victim was not mad, but he was pacing and “seemed like he was
bothered by the argument[.]” Ms. Webb agreed that the Defendant did not make any
threats toward the victim during this argument.

       “Maybe five minutes” after the Defendant left, Ms. Webb and the victim left the
apartment to go to the store. The Defendant was standing in the breezeway, and he and
the victim began to argue again. Ms. Webb stated she could not remember “word-for-
word what the argument was about[,]” but she recalled that, before shooting the victim,
the Defendant said “[D]on‟t say s*** else to me, on the FAM.” Ms. Webb explained that
the FAM was “a neighborhood group of young boys.” The Defendant then shot the
victim “four or five times.” Ms. Webb was standing “right next” to the victim when the
Defendant opened fire. Ms. Webb said there was “no doubt in [her] mind” that the
Defendant was the person who shot the victim. The Defendant ran from the scene after
the victim fell to the ground. Ms. Webb did not see what the Defendant did with the gun.


                                          -4-
       Ms. Webb recalled that one of the neighbors, Ieasha Malone, was standing in her
doorway at the time of the shooting, but she did not recall anyone else being in the
breezeway. The door to Ms. Milam‟s apartment was locked, and Ms. Webb did not have
access to her own phone, so Ms. Webb “snatched” Ms. Malone‟s phone to call the police.
Eventually, Mr. Hampton let Ms. Webb back into the apartment.

       Later that night, Ms. Webb was taken to the police precinct, where she gave a
statement and viewed a photo lineup. Ms. Webb circled the second photo in the lineup,
wrote, “Darryl Claxton[,] I know him as Pee Wee[,] he shot [the victim] several times[.]
[H]e‟s number 2 the one I [circled][,]” and signed the page.

        On cross-examination, Ms. Webb said she had known the Defendant since they
“were in the 7th or 8th grade.” Ms. Webb confirmed that she did not know anyone else
who was pictured in the photo lineup. Ms. Webb stated that she was not sure how long
the Defendant had been knocking loudly on Ms. Milam‟s door, but she estimated that it
was three minutes. Ms. Webb noted that Mr. Shaw stayed in the back of the apartment
through the entire argument and that he did not leave with the Defendant. Ms. Webb said
she did not see which way the Defendant ran after the shooting because her focus was on
the victim. Ms. Webb also agreed that her first statement to police said that “Darren
Claxton” was the shooter.3 However, Ms. Webb noted numerous things in her first
statement that were incorrect, and she explained that the police were typing what she said
during the interview. She admitted that she signed the statement and initialed each page
to indicate that what was in the statement was correct, but she said that she did not read
the statement before she signed it.

       On redirect examination, Ms. Webb confirmed that, during her first meeting with
the State, she told the attorneys that there were inaccuracies in her first written statement
to police. She also confirmed that she identified the Defendant as “Darryl Claxton” in the
photo lineup. Ms. Webb stated that she had no doubt that the Defendant shot the victim,
and she denied telling anyone that someone other than the Defendant was the shooter.

       Ieasha Malone testified that she lived across the breezeway from Ms. Milam. She
stated that she was a close friend of the victim and that she knew Ms. Webb, Mr. Shaw,
and the Defendant. Ms. Malone reported that she saw Mr. Shaw and the Defendant
outside Ms. Milam‟s apartment on the evening of the shooting. Mr. Shaw went into the
apartment while the Defendant stood at Ms. Malone‟s door, “joking with [her.]” After
they had finished speaking, the Defendant knocked on Ms. Milam‟s door, and someone
opened the door to let him in. Ms. Malone remained in her own doorway because she
was watching a friend as her friend walked with her children from Ms. Malone‟s
apartment to her own apartment. While she was waiting for her friend to arrive home

       3
           From the record, it appears that the Defendant has a brother named Darren Claxton.
                                                   -5-
safely, she heard “commotion” coming from Ms. Milam‟s apartment, but she could not
hear what the argument was about or who was arguing. Then, the Defendant, the victim,
Ms. Webb, and Mr. Shaw exited Ms. Milam‟s apartment. The Defendant and the victim
were arguing when they came out of the apartment. Ms. Malone still could not determine
what the argument was about, but she heard derogatory name-calling. Ms. Malone
recalled that the victim hit his hand against his fist and called the Defendant “weak.”
Then the Defendant pulled out a gun, said “I been [sic] murking motherf*****s[,]” and
shot the victim “at least three to five times.” Ms. Malone explained that “murking”
meant “killing.” Mr. Shaw ran when the firing started, and Ms. Malone did not see where
he went. Ms. Malone also did not see where the Defendant went after the shooting. Ms.
Webb went back into Ms. Milam‟s apartment.

       After the police arrived, Ms. Malone was transported to the police station where
she gave a statement and viewed a photo lineup. Ms. Malone circled the second photo in
the lineup and wrote, “I saw [the Defendant][,] which is number 2 in the lineup[,] shoot
[the victim]. Tonight [at] 8:20 November 14, 2012[.]” Her signature appears below her
written identification.

        On cross-examination, Ms. Malone denied knowing the Defendant‟s brother,
Darren Claxton. Ms. Malone also confirmed that the Defendant, the victim, Ms. Webb,
and Mr. Shaw all exited Ms. Milam‟s apartment at the same time. Ms. Malone stated
that, after the shooting, she knelt next to the victim to comfort him and stayed with the
victim until police arrived. When police arrived on the scene, Ms. Malone was
handcuffed, placed in the back of a police car, and taken to the police station. Ms.
Malone said she did not feel that she was free to leave and that she was still handcuffed
when she gave her statement to police. Ms. Malone denied telling police that her brother
Dante was present at the shooting, and she denied having a brother named Dante. She
also denied telling police that the Defendant had shown her a gun before. Ms. Malone
confirmed that she signed the statement and initialed each page, indicating that its
contents were true and correct. However, Ms. Malone said, “I was really frustrated at the
time. I just, you know, glanced over it. I really didn‟t . . . look.” She further explained,
“Like I said, ma‟am, I was, you know, mourning at the time. I really wasn‟t just reading
it like I supposed [sic] to. I really just glanced at it because I was really ready to go
home.” Ms. Malone also said she did not know any of the other people depicted in the
photo lineup. On redirect examination, Ms. Malone said she selected the Defendant‟s
photo because he was the person who shot the victim, not because he was the only person
she knew in the lineup.

       Officer Darrold Hudson of the Memphis Police Department (“MPD”) testified that
he responded to a shooting at Greenbriar Apartments on the night of the offense. When
Officer Hudson arrived at the scene, he observed a large crowd of people outside the

                                           -6-
breezeway. As he approached the breezeway, Officer Hudson saw the victim lying face
down on the ground with blood coming out of his neck. On cross-examination, Officer
Hudson said he did not see a gun in the breezeway and that he did not find a gun outside
the apartment building where the victim was found. Officer Hudson explained that he
remained with the victim‟s body the entire time he was at the scene and that he did not
search the rest of the apartment complex grounds for the gun.

       MPD Lieutenant Matt Pugh testified that he responded to Greenbriar Apartments
on the day of the shooting. Lieutenant Pugh recalled that it was dark when he arrived but
that the breezeway and parking lot were lit and that a crowd of people had gathered near
the breezeway. Lieutenant Pugh spoke with the victim‟s girlfriend, who identified the
Defendant as the shooter. Lieutenant Pugh and other officers also attempted to locate the
murder weapon by securing “a fairly large area.” Lieutenant Pugh noted that officers
searched behind air conditioning units and in the wooded area behind the apartment
complex but they did not find the weapon. The following exchange occurred between
Lieutenant Pugh and the State concerning several people gathered in the area near the
shooting:

      [THE STATE:] Okay. Now, did you search the people that were standing
      around out there?

      [LIEUTENTANT PUGH:] No, ma‟am.

      [THE STATE:] So if the suspect had passed that gun off to somebody—

      [DEFENSE COUNSEL]: Object to leading.

      [THE STATE:] Hypothetically.

      [DEFENSE COUNSEL:] Judge—

      THE COURT: I guess you can pose a hypothetical.

      [THE STATE:] I am, Judge.

      [THE STATE:] Hypothetically, if the suspect had passed that gun off to
      somebody that was in the breezeway or behind that building, would you
      have searched everybody out there to see if you could find that weapon that
      way?

      [LIEUTENTANT PUGH:] If we had reasonable suspicion or we had
      information that he passed it, certainly. But it would have been hard—there
      was [sic] a lot of people out there—to search everybody out there.
                                          -7-
       On cross-examination, Lieutenant Pugh agreed that any suggestion that the
Defendant passed the gun to someone in the crowd would have been “pure speculation.”
Lieutenant Pugh also reiterated that he did not search anyone in the crowd because he had
no reasonable suspicion that the Defendant passed a gun to someone before he ran from
the scene. Lieutenant Pugh noted that he went back to the crime scene the next day to
look for the gun again but that he did not find anything.

       MPD Officer Michael Spearman testified that he responded to the crime scene.
Officer Spearman recalled that, after the medical examiner moved the victim, Officer
Spearman collected a bullet fragment that was located under the victim‟s body.
However, Officer Spearman did not observe any shell casings in the breezeway. He
explained that an “automatic” firearm would expel shell casings when it was fired but a
revolver would not. On cross-examination, Officer Spearman said he did not look for
bullet holes or any other bullet fragments on the ground.

       MPD Officer Robert Carlson testified he responded to the scene as the Greenbriar
Apartment security officers were arresting the Defendant. Before taking the Defendant
into police custody, Officer Carlson conducted a pat-down search. Officer Carlson
reported that he did not find a gun, a cell phone, or any identification on the Defendant.
On cross-examination, Officer Carlson acknowledged that someone who had recently
fired a gun may have gunshot residue on his or her hands. However, over time that
residue wears off, especially if the shooter washes his or her hands. In order to preserve
gunshot residue evidence, police will sometimes prevent a suspect from washing his or
her hands or will place bags on the suspect‟s hands before conducting tests to detect
gunshot residue. Officer Carlson said he did not place bags on the Defendant‟s hands
after taking him into custody, and he was not aware of any attempts to test the
Defendant‟s hands for gunshot residue.

        Investigator William D. Merritt testified that, at the time of the offense, he was
employed as a MPD homicide detective. At the time of trial, he was employed as an
investigator for the Shelby County District Attorney General‟s office. Investigator
Merritt obtained a bag containing the clothes the Defendant was wearing when he was
arrested. The evidence bag contained a purple t-shirt and jeans but no phone,
identification, or gun.

      MPD Lieutenant Joseph Poindexter testified that, the day after the shooting, he
was assigned to investigate the victim‟s death and that he reviewed all the documents that
had been created by the Felony Response Team who responded to the crime scene.
Lieutenant Poindexter also interviewed the property manager of the apartment complex,
who informed him that there was no security camera video of the shooting. Lieutenant
Poindexter learned from the medical examiner that a small caliber weapon was used. No
such weapon was ever recovered. Lieutenant Poindexter said that he received several tips
                                           -8-
that someone other than the Defendant was involved in the shooting but that all the tips
“kind of led to dead ends.”

       On cross-examination, Lieutenant Poindexter said that a bullet fragment was
found on the scene but that no ballistic testing of the fragment had been requested.
Lieutenant Poindexter also did not request that the Defendant‟s hands be tested for
gunshot residue or that his clothing be tested for blood spatter or DNA evidence.
Lieutenant Poindexter explained that he did not request testing of the Defendant‟s clothes
because the reports from the crime scene indicated that the Defendant had “shed some”
clothes after the shooting but before he was arrested. On redirect examination,
Lieutenant Poindexter said the MPD did not conduct ballistic testing on bullet fragments.
He also noted that no shell casings were found at the scene.

       Dr. Marco Ross testified that he was the Deputy Chief Medical Examiner for
Shelby County and that he performed the victim‟s autopsy. Dr. Ross noted that the
victim had sustained several gunshot wounds—one through-and-through wound to the
neck; one wound that entered his front chest, travelled through his left lung and heart, and
ended in his back; one wound on his lower back, causing injury to his spinal cord; a
through-and-through wound on his left thigh; and a through-and-through wound on his
lower left leg. A bullet was retrieved from the victim‟s mid back area and three bullet
fragments were retrieved from his lower back. Dr. Ross noted that there was no evidence
of stippling caused by gunshot residue, indicating that the victim was shot from a
distance of three feet or more. Following his examination, Dr. Ross concluded that the
victim‟s cause of death was multiple gunshot wounds and that the manner of death was
homicide.

       Following deliberation, the jury found the Defendant guilty of first degree
premeditated murder. The trial court approved the verdict in its role as the thirteenth
juror and sentenced the Defendant, by operation of law, to life. The Defendant‟s motion
for new trial was denied. This timely appeal followed.

                                       II. Analysis

                                Sufficiency of the Evidence

       The Defendant first argues that the evidence was insufficient to support his
conviction because (1) the on-going argument between the Defendant and the victim
indicated that the Defendant acted in a state of passion and thus the evidence supports a
verdict of voluntary manslaughter; (2) no supporting physical evidence, such as the
murder weapon or gunshot residue from the Defendant‟s hands, was presented to the
jury; and (3) Ms. Webb and Ms. Malone were not credible witnesses because their
respective testimonies were inconsistent and they were both close to the victim. The
                                           -9-
State argues that the evidence was sufficient for the jury to find premeditation, that the
eyewitnesses‟ testimony did not need to be corroborated by physical evidence, and that
the credibility of the witnesses was determined by the jury. We agree with the State.

        Our 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 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). Questions of fact, the credibility of witnesses, and weight of the evidence
are resolved by the fact finder. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This
court will not reweigh the evidence. Id. 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).

       A guilty verdict removes the presumption of innocence, replacing it with a
presumption of guilt. Bland, 958 S.W.2d at 659; State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). The defendant bears the burden of proving why the evidence was
insufficient to support the conviction. Bland, 958 S.W.2d at 659; Tuggle, 639 S.W.2d at
914. On appeal, 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).

        The identity of the perpetrator is “an essential element of any crime.” State v.
Rice, 184 S.W.3d 646, 662 (Tenn. 2006). The question of identity is a question of fact
left to the trier of fact to resolve. State v. Crawford, 635 S.W.2d 704, 705 (Tenn. Crim.
App. 1982).

       As charged in the indictment, “[f]irst degree murder is . . . [a] premeditated and
intentional killing of another.”        Tenn. Code Ann. § 39-13-202(a)(1) (2010).
“„Premeditation‟ is an act done after the exercise of reflection and judgment” and “means
that the intent to kill must have been formed prior to the act itself.” Tenn. Code Ann. §
39-13-202(d) (2010). However,

       [i]t is not necessary that the purpose to kill pre-exist in the mind of the
       accused for any definite period of time. The 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. “„Intentional‟ means that a person acts intentionally with respect to the nature of the
conduct or to a result of the conduct when it is the person‟s conscious objective or desire
                                           - 10 -
to engage in the conduct or cause the result[.]” Tenn. Code Ann. § 39-11-106(18)
(2010).

       First, the Defendant argues that the evidence supports a verdict of voluntary
manslaughter as opposed to first degree premeditated murder. “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. Davison, 121 S.W.3d 600, 614 (Tenn.
2003). Premeditation involves determining a defendant‟s state of mind, and often there is
no direct evidence of such. Id. Therefore, premeditation may be proven by
circumstantial evidence. Id. (citing State v. Brown, 836 S.W.2d 530, 541 (Tenn. 1992)).
Our supreme court has previously identified several non-exclusive circumstances that
may warrant a finding or inference of premeditation, including:

      the use of a deadly weapon upon an unarmed victim; the particular cruelty
      of a killing; the defendant‟s threats or declarations of intent to kill; the
      defendant‟s procurement of a weapon; any preparations to conceal the
      crime undertaken before the crime is committed; destruction or secretion of
      evidence of the killing; and a defendant‟s calmness immediately after a
      killing.

Id. (citing Bland, 958 S.W.2d at 660; State v. Pike, 978 S.W.2d 904, 914-15 (Tenn.
1998)); see also State v. Jackson, 173 S.W.3d 401, 409 (Tenn. 2005); State v. Nichols, 24
S.W.3d 297, 302 (Tenn. 2000).

       Viewing the evidence in a light most favorable to the State in this case, we
conclude that there was sufficient evidence for the jury to find that the Defendant acted
with premeditation. About an hour before the shooting, Ms. Milam overheard the
Defendant speaking with Mr. Shaw and others about killing someone for money. Ms.
Milam and Ms. Webb testified that the Defendant left Ms. Milam‟s apartment several
minutes before the victim. The Defendant was in the breezeway when the victim left the
apartment, and the shooting happened immediately after Ms. Milam closed her apartment
door. Before he shot the victim, the Defendant said “[D]on‟t say s*** else to me, on the
FAM[,]” and “I been [sic] [killing] motherf*****s.” Additionally, there is nothing in the
record to indicate that the victim was armed; the Defendant ran from the scene of the
shooting, disposed of the murder weapon immediately after the shooting, and it was
never recovered; and the Defendant surrendered himself to the Greenbriar Apartments
security guards within minutes of the shooting. Further, the jury could conclude that the
Defendant‟s calm demeanor following his arrest was evidence of premeditation. Such
evidence was sufficient to support the jury‟s finding of premeditation.

      Second, the Defendant claims that the evidence was insufficient because no
physical evidence was presented to the jury to corroborate the eyewitnesses‟ testimony.
                                          - 11 -
Specifically, the Defendant notes that the murder weapon was never recovered and that
his hands were never tested for gunshot residue, despite his being apprehended almost
immediately after the shooting. Physical evidence is not required for a conviction, and
the State is not required to prove a defendant‟s identity as the perpetrator through
scientific testing or evidence. State v. Joseph William Wilson, No. W2001-03007-CCA-
R3-CD, 2003 WL 261939, at *6 (Tenn. Crim. App. Feb. 3, 2003), perm. app. denied
(Tenn. May 27, 2003); see also State v. Eddie Lee Taylor, No. W2001-01077-CCA-R3-
CD, 2002 WL 1732340, at *3 (Tenn. Crim. App. Apr. 4, 2002) (holding that “the lack of
physical evidence, and the minor inconsistencies in [the eyewitness‟s] testimony about
matters not involving the [d]efendant‟s identity, do not create reasonable doubt” that
would allow this court to overturn the verdict).

       In this case, three eyewitnesses, Mr. Peete, Ms. Webb, and Ms. Malone, saw the
Defendant shoot the victim multiple times. Ms. Webb was standing mere feet from the
victim when he was shot, and she testified that there was “no doubt in [her] mind” that
the Defendant was the shooter. Further, Ms. Webb and Ms. Malone identified the
Defendant as the shooter in a photo lineup within hours of the offense. Ms. Milam also
overheard the Defendant speaking with others about the possibility of killing someone for
money. Physical evidence was not required to establish the Defendant‟s identify as the
perpetrator.

       Finally, the Defendant argues that Ms. Webb and Ms. Malone were not credible
because they were close with the victim and there were “significant inconsistencies” in
their accounts of the shooting that should cast doubt on their testimony. However, as
noted above, questions of fact, credibility of witnesses, and the weight and value to be
given to the evidence are issues which are resolved by the jury, and we will not reweigh
those findings on appeal. Bland, 958 S.W.2d at 659. The Defendant‟s claim is without
merit. We conclude that the evidence was sufficient to support the Defendant‟s
conviction for first degree premeditated murder.

                   Witness Testimony about “A Group of Young Men”

        After the jury was impaneled and sworn, the State, outside the presence of the
jury, informed the trial court that there was a legal issue “involving gang aspects of the
case” that needed to be addressed. No written motion to exclude testimony of gangs had
been filed. After discussing the issue with counsel for the State and the Defendant, the
trial court stated that it would need to conduct a Tennessee Rule of Evidence 404(b)
hearing outside the presence of the jury. The hearing was postponed until the next day.

       On the next morning, the trial court addressed the gang issue before the jury was
brought into court. The issue involved a statement the Defendant made immediately
before shooting the victim about a local gang known as the “FAM.” The State took the
                                          - 12 -
position that the statement was relevant to show premeditation and was not being offered
as proof of prior bad acts. The trial court rejected the State‟s position and stated that it
would look at the statement under Rule 404(b) because “some jurors might conclude that
being in the FAM is a bad act.”

       At the Rule 404(b) hearing, the State called McKeisha Webb who testified that she
was standing with the victim when he was shot. Immediately prior to shooting the
victim, the Defendant said, “[C]uz, don‟t say sh** else to me. On the FAM.” Ms. Webb
explained that the FAM was “a neighborhood gang or a group.” Ms. Webb said she was
not a member of the FAM and was not affiliated with them in any way. The following
exchange then occurred:

       THE COURT: . . . You said a neighborhood gang and then you said a
       neighborhood group. We‟re going to try to avoid the word gang.

       [MS. WEBB]: Yes, sir.

       THE COURT: And we‟re going to have some hearings on this to decide
       whether or not you can say that. But unless anybody tells you not, you‟ll
       be allowed to testify to that. But let‟s not talk about gangs and things like
       that. You can talk about a group of guys or whatever; okay?

       [MS. WEBB]: Yes, sir.

       THE COURT: Is that what it is, basically?

       [MS. WEBB]: Yes, it‟s a group of guys.

       THE COURT: At first you said group, so what is this thing actually?

       [MS. WEBB]: Basically, I really don‟t know, but it‟s a group of guys and
       they‟re younger guys. They all hang out together.

       The State noted that it did not intend to present any testimony about the
Defendant‟s being a member of the FAM and that it only wanted to elicit testimony that
the Defendant mentioned the FAM immediately before he shot the victim. Further the
State argued that the Defendant‟s statement to the victim about the FAM was relevant to
show premeditation and motive. Although the Defendant acknowledged that his
statement would be admissible as an exception to the hearsay rule, the Defendant argued
that Ms. Webb should not be permitted to explain what the FAM was because the State
had not established that Ms. Webb had a sufficient “base of knowledge” about the group
under Tennessee Rule of Evidence 602. Additionally, the Defendant still claimed the

                                           - 13 -
probative value of Ms. Webb‟s testimony was outweighed by the danger of unfair
prejudice under Rule 404(b).

        The trial court stated, “I don‟t see any reason we should mention the word gang
ever by the attorneys or anybody else. FAM sounds like family, which is good.” The
trial court recognized that proof of prior bad acts under Rule 404(b) was no longer an
issue since he had instructed the witness and the attorneys not to use the word gang,
stating, “I don‟t think the statement is the problem.” The trial court instead turned its
attention to Ms. Webb‟s personal knowledge of the FAM under Rule 602, stating, “I
think now we‟ve gotten on to her interpretation of what that means.” The trial court
found Ms. Webb “competent to testify that the FAM is a group of guys who hang
together[.]”

       On appeal, the Defendant argues that the trial court abused its discretion in
admitting Ms. Webb‟s testimony about “a group of guys” under Rule 404(b). Further,
the Defendant asserts that the record was insufficient to show that Ms. Webb had
personal knowledge about the FAM under Rule 602. Finally, the Defendant contends
that the prejudicial effect of Ms. Webb‟s testimony about the FAM substantially
outweighed its probative value under Rule 403.

       For evidence to be admissible, it must be relevant. Tenn. R. Evid. 402. Tennessee
Rule of Evidence 401 defines relevant evidence as “evidence having any tendency to
make the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.” Nevertheless,
relevant evidence “may be excluded if its probative value is substantially outweighed by
the danger of unfair prejudice[.]” Tenn. R. Evid. 403. The determination of whether
evidence is relevant and whether it satisfies the requirements of Rule 403 is left to the
sound discretion of the trial court. State v. Kennedy, 7 S.W.3d 58, 68 (Tenn. Crim. App.
1999).

        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 that character trait. Tenn. R. Evid.
404(b). However, evidence of other crimes, wrongs, or acts may be admissible “when
the prior conduct is relevant to an issue other than the accused‟s character, such as
identity, motive, common scheme or plan, intent, or absence of mistake.” State v.
Adams, 405 S.W.3d 641, 659 (Tenn. 2013); see also State v. Gilliland, 22 S.W.3d 266,
271 n.6 (Tenn. 2000). This court has previously held that “evidence concerning gang
affiliation is character evidence subject to Rule 404(b).” State v. Orlando Crayton, No.
W2000-00213-CCA-R3-CD, 2001 WL 720612, at *3 (Tenn. Crim. App. June 27, 2001).

       By instructing Ms. Webb not to use the word “gang” in her testimony, but instead
to use the description she had used during the hearing, that the FAM was “a group of
                                          - 14 -
guys” that “hang out” together, the trial court excised from the Defendant‟s statement
what could have been viewed by the jury to be evidence of “other crimes, wrongs or acts”
under Rule 404(b). Association with a group of guys that hang out together is not, in and
of itself, a bad act. Therefore, by prohibiting the use of the word gang in reference to the
Defendant‟s statement, the trial court effectively eliminated the 404(b) issue.

       We next turn to the Defendant‟s argument that the probative value of Ms. Webb‟s
characterization of the FAM as a “neighborhood group of guys” was substantially
outweighed by the danger of unfair prejudice by “interjecting the issue of street gangs
into the trial.” See Tenn. R. Evid. 403. First, the Defendant‟s statement, “[C]uz, don‟t
say sh** else to me. On the FAM[,]” was relevant to show premeditation and motive,
and Ms. Webb‟s characterization of the FAM as a “group of guys” was offered to explain
the term used in the Defendant‟s statement. Further, by specifically instructed Ms. Webb
not to use the word “gang,” the trial court prevented the very prejudice the Defendant
complains of on appeal. The trial court did not abuse its discretion when it allowed Ms.
Webb to testify that the FAM was a “group of guys.”

       Finally, we address the Defendant‟s contention that the evidence was not sufficient
to show that Ms. Webb had personal knowledge of what the FAM was. Tennessee Rule
of Evidence 602 states, “A witness may not testify to a matter unless evidence is
introduced sufficient to support a finding that the witness had personal knowledge of the
matter.” Personal knowledge may be inferred from a witness‟s statement and the
surrounding facts and circumstances. Kendrick v. State, 545 S.W.3d 450, 479 (Tenn.
2015). Although Rule 602 does not define “knowledge,” this court has previously said
that the rule does not require “absolute certainty.” State v. Land, 34 S.W.3d 516, 529
(Tenn. Crim. App. 2000).

       In this case, when first asked what the FAM was, Ms. Webb responded, “It‟s a
neighborhood gang or group.” After she was told not to use the word “gang,” Ms. Webb
said, “Basically, I really don‟t know, but it‟s a group of guys and they‟re younger guys.
They all hang out together.” The trial court found that Ms. Webb had personal
knowledge about the FAM under Tennessee Rule of Evidence 602 and that she was
competent to testify. While we acknowledge that Ms. Webb prefaced one of her
comments about the group with “I really don‟t know,” the rule does not require absolute
certainty, and Ms. Webb was clear that the FAM was a group of young men who “hang
out” together. The evidence was sufficient to support the trial court‟s finding that Ms.
Webb had personal knowledge of the nature of the FAM.

                     Witness Speculation about Disposal of Weapon

      The Defendant next argues that Lieutenant Pugh was allowed to “speculate as to
the whereabouts of the weapon” and “surmise „someone may have picked [the murder
                                           - 15 -
weapon] up.‟” The State argues that Lieutenant Pugh did not speculate but, instead,
answered a proper hypothetical question using information that was within his personal
knowledge.4

       First, we note that the Defendant did not object to Lieutenant Pugh‟s testimony on
the grounds of speculation. “The failure to make a contemporaneous objection
constituted waiver of the issue on appeal.” State v. Gilley, 297 S.W.3d 739, 762 (Tenn.
Crim. App. 2008); see also Tenn. R. App. P. 36(a) (“Nothing in this rule shall be
construed as requiring relief be granted to a party responsible for an error or who failed to
take whatever action was reasonably available to prevent or nullify the harmful effect of
an error”). However, “when necessary to do substantial justice” this court may “consider
an error that has affected the substantial rights of a party” even if the issue was waived.
Tenn. R. App. P. 36(b). Such issues are reviewed under plain error analysis. State v.
Hatcher, 310 S.W.3d 788, 808 (Tenn. 2010).

        Plain error relief is “limited to errors that had an unfair prejudicial impact which
undermined the fundamental fairness of the trial.” State v. Adkisson, 899 S.W.2d 626,
642 (Tenn. Crim. App. 1994). In order to be granted relief under plain error relief, five
criteria must be met: (1) the record must clearly establish what occurred in the trial court;
(2) a clear and unequivocal rule of law must have been breached; (3) a substantial right of
the accused must have been adversely affected; (4) the accused did not waive the issue
for tactical reasons; and (5) consideration of the error is “necessary to do substantial
justice.” Adkisson, 899 S.W.2d at 640-41; see also State v. Smith, 24 S.W.3d 274, 282-
83 (Tenn. 2000) (Tennessee Supreme Court formally adopting the Adkisson standard for
plain error relief.) When it is clear from the record that at least one of the factors cannot
be established, this court need not consider the remaining factors. Smith, 24 S.W.3d at
283. The defendant bears the burden of persuasion to show that he is entitled to plain
error relief. State v. Bledsoe, 226 S.W.3d 349, 355 (Tenn. 2007).

       In his brief, the Defendant argues that Lieutenant Pugh “surmised „someone may
have picked [the murder weapon] up.‟” However, the portion of the record cited by the
Defendant does not contain the statement “someone may have picked it up,” and we are
unable to find that assertion in Lieutenant Pugh‟s testimony. Instead, in the portion of the
record cited by the Defendant, the following exchange occurred:

       [THE STATE:] Hypothetically, if the suspect had passed that gun off to
       somebody that was in the breezeway or behind that building, would you
       have searched everybody out there to see if you could find that weapon that
       way?

       4
        The Defendant makes no argument that that the hypothetical question posed to Lieutenant Pugh
was improper under the Tennessee Rules of Evidence.
                                              - 16 -
       [LIEUTENTANT PUGH:] If we had reasonable suspicion or we had
       information that he passed it, certainly. But it would have been hard—there
       was [sic] a lot of people out there—to search everybody out there.

Lieutenant Pugh went on to reiterate that he did not search anyone on the scene because
he had no reasonable suspicion that the Defendant has passed the gun to anyone, and he
agreed that any suggestion that the Defendant passed the gun to someone in the crowd
would have been “pure speculation.” Therefore, the Defendant has failed to show that
the record clearly establishes that Lieutenant Pugh “surmised „someone picked [the
murder weapon] up.‟”

       Further, the Defendant has failed to show that a clear and unequivocal rule of law
was breached or that consideration of the error is necessary to do substantial justice.
Tennessee Rule of Evidence 602 states, “A witness may not testify to a matter unless
evidence is introduced sufficient to support a finding that the witness has personal
knowledge of the matter. Evidence to prove personal knowledge may, but need not,
consist of the witness‟s own testimony.” A witness‟s knowledge may be inferred from
the witness‟s statements or from the surrounding facts and circumstances. State v. Land,
34 S.W.3d 516, 529 (Tenn. Crim. App. 2000). While the rule does not require “absolute
certainty,” a witness‟s or declarant‟s statement “may not be based on mere speculation.”
Id. Non-expert witnesses giving testimony in the form of an opinion are limited to
opinions that are “rationally based on the perception of the witness” and are “helpful to a
clear understanding of the witness‟s testimony or the determination of a fact in issue.”
Tenn. R. Evid. 701(a). Rules on the admissibility of evidence are largely within the trial
court‟s sound discretion, and we review the trial court‟s ruling for an abuse of discretion.
State v. James, 81 S.W.3d 751, 760 (Tenn. 2002).

       As noted above, Lieutenant Pugh clearly stated that he did not search anyone on
the scene because he did not have reasonable suspicion that the Defendant passed the gun
to anyone and that any suggestion that the Defendant passed the gun to someone in the
crown would have been “pure speculation.” Lieutenant‟s Pugh‟s testimony was squarely
within his personal knowledge as a police officer who responded to the scene of a
shooting. His testimony in no way offers any speculation as to the disposal or
whereabouts of the murder weapon, and it certainly does not imply that “someone picked
[the murder weapon] up” before police were able to search the area. The Defendant‟s
claim is wholly without merit, and he is not entitled to plain error relief.

                                    Cumulative Error

      Finally, the Defendant argues that the cumulative effect of the errors necessitates a
new trial. The cumulative error doctrine recognizes that there may be many errors
committed in trial proceedings, each of which constitutes mere harmless error in
                                           - 17 -
isolation, but “have a cumulative effect on the proceedings so great at to require reversal
in order to preserve a defendant‟s right to a fair trial.” State v. Hester, 324 S.W.3d 1, 76
(Tenn. 2010). To warrant review under the cumulative error doctrine, however, there
must have been more than one actual error during the trial proceedings. Id. at 77. In this
case, the Defendant has failed to show that any error occurred at trial. Therefore, the
cumulative error doctrine does not apply.

                                     III. Conclusion

       For the aforementioned reasons, the judgment of the trial court is affirmed.



                                                    _________________________________
                                                    ROBERT L. HOLLOWAY, JR., JUDGE




                                           - 18 -
