        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs June 4, 2013

                  STATE OF TENNESSEE v. CALVIN PERSON
                       AND MAURICO GRANDBERRY

                   Appeal from the Criminal Court of Shelby County
                     No. 10-01780 James C. Beasley, Jr., Judge



               No. W2011-02682-CCA-R3-CD - Filed October 31, 2013


Calvin Person (“Defendant Person”) and Maurico Grandberry (“Defendant Grandberry”)
(collectively “the Defendants”) were convicted by a jury of first degree felony murder. The
trial court sentenced the Defendants to life imprisonment. On appeal, Defendant Grandberry
asserts that the trial court erred in not severing the Defendants. Defendant Person argues that
the trial court erred in: excluding evidence of Defendant Grandberry’s involvement in a
separate robbery on the day the victim in this case was killed; admitting Defendant Person’s
statement to police; including the natural and probable consequences rule in its jury
instruction on felony murder; and denying Defendant Person’s request to provide a special
jury instruction on the requisite mens rea necessary for criminal responsibility. Additionally,
both of the Defendants contend that the evidence presented at trial was insufficient to support
their convictions. After a thorough review of the record and the applicable law, we affirm
the Defendants’ convictions.

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

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL and
J AMES C URWOOD W ITT, J R., JJ., joined.

Joseph A. McClusky (on appeal) and Michael Working (at trial), Memphis, Tennessee, for
the appellant, Maurico Grandberry; and Lauren Pasley-Ward, Memphis, Tennessee, for the
appellant, Calvin Person.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Reginald Henderson and Kate
Edmands, Assistant District Attorneys General, for the appellee, State of Tennessee.
                                         OPINION

                          Factual and Procedural Background

       A Shelby County Grand Jury indicted the Defendants on one count each of first degree
felony murder. The Defendants proceeded to a jury trial held October 24-29, 2011.

       LaShawn Blades testified that she lived in a duplex next to the duplex occupied by
Free Baptist Strickland (“the victim”). She knew Defendant Person because she was dating
Defendant Person’s cousin, Tyrone, at the time of the incident. She also knew Defendant
Grandberry, whom she referred to as “Tutu.” She stated that she spent time with all of these
individuals because they all lived in the same neighborhood. According to Blades, the victim
sold powder cocaine as his source of livelihood.

        Approximately one week before the victim died, Blades was in her house and
overheard the Defendants on the porch. She testified, “Tutu said that he wanted to kill Free.
And his words was, man, I’m going to kill that bitch. And [Defendant Person] says, no, man.
We just going to rob that n****r, you know. I’m just saying how, you know. And Tutu like,
man, no.” Soon after, Defendant Grandberry left, and the victim drove up. Blades told the
victim what Defendant Grandberry had said, and he responded, “[C]uz, I’m going to be all
right, you know.”

       Defendant Grandberry then returned to Blades’ residence, “ran up and hit [her] door,”
and said, “Bitch, you next.” Blades stated, “I knew he meant that because [he] knew that I
had told [the victim] what he said.”

       On cross-examination, Blades acknowledged that Defendant Grandberry’s father,
Gabriel King, and the victim were close friends. She was not at home at the time that the
victim was killed. After she heard that the victim had died, she jumped the fence into her
backyard to return to their street.

       Blades also acknowledged that she used drugs but denied using powder cocaine or
receiving drugs from the victim. She explained that the victim actually was killed at a vacant
home on the other side of the victim’s house from Blades’ residence.

       She learned about the victim’s death from a man named Mr. LeMont, who had called
her to find out what was going on. When she arrived home, many people from the
neighborhood were outside, as well as police officers. The next day, Blades called the police
and reported that she thought she knew who killed the victim. Later that day, the police
picked her up and took her to the homicide office. They also brought her to the office a


                                             -2-
second time two days later, and it was not until this occasion that she gave a formal
statement. She identified pictures of both Defendants as well as another individual, Falantis.
Next to Falantis’ picture was her written description, “This is Falantis. I know him from
being with [Defendant Grandberry]. Officer Wells arrested him yesterday.” She agreed that
Falantis was from the same neighborhood and that she had seen him with Defendant
Grandberry regularly. According to Blades, she told police that Defendant Grandberry had
killed the victim and that Defendant Person had robbed him, based on their discussion she
had overheard on her porch. She heard Defendant Grandberry say the same thing seven
times over the course of five days. She reiterated that every time Defendant Grandberry said
that he wanted to kill the victim, Defendant Person would say, “[N]o, man, we’re going to
rob him.”

       Blades acknowledged that, in her statement on April 28, 2009, she told police, “I
know in my heart that [Defendant Grandberry] and Falantis killed [the victim].” She
explained that she had believed Falantis was involved based on what she had heard from
other people. But in her original discussion with police on April 26, 2009, she had not yet
heard about Falantis and, accordingly, did not tell police that he was involved.

      Blades also acknowledged that she was convicted of forgery in 2004. On redirect
examination, she stated that Falantis was never with the Defendants when they discussed
robbing and killing the victim.

        Officer Lamarcus Webb with the Memphis Police Department (“MPD”) testified that
he was on patrol on April 25, 2009. He responded to the scene after receiving a call over the
radio regarding a shooting. He and his partner were the first law enforcement officers to
arrive, and, soon after their arrival, they found the victim in the backyard of a residence. The
victim appeared to be dead when they first saw him. Officer Webb noticed that the victim
“was pretty bloody” and that the victim’s “pockets were turned inside out.”

      Bessie Beal, another neighbor of the victim, testified that she had known the victim
approximately one year. She grew up with Defendant Person and knew Defendant
Grandberry through her son. On the day that the victim died, he had been at her home at
approximately 8:30 p.m. She also had seen the Defendants earlier that day.

      While the victim was at her home, he received a call from an individual named “Dray”
wanting a “pack of powder,” which she said was cocaine. Bessie1 stated that the victim left



       1
           Multiple witnesses in this case share common surnames. Therefore, to avoid confusion, we will
refer to these witnesses using their given names. We intend no disrespect.

                                                  -3-
and walked four houses down the road. She explained that the victim would go behind the
abandoned house because that was where he kept “his product.” She continued,

               So after he got down there, Dray pulled up and he went on back behind
       the house, whatever he do, and he came back out. And I’d say about a half
       second – I’d say about three minutes Dray pulled off. He got halfway down
       the street and heard a gunshot, so I snatched my daughter and we ran in the
       house. . . .

              And I ran back out and I’m like – well, I’m looking. . . . Didn’t see [the
       victim], so I called his phone. No answer.

       Defendant Person had been at her home earlier that day, and he asked her about a
black jacket at her house.

       On cross-examination, Bessie acknowledged that she “shared the same profession”
as the victim but that they were friends and not rivals. She could not remember what
Defendant Person was wearing that morning. When she heard the gunshots, three other men
also were standing in her yard with her.

        Wendolyn Beal testified that on the day the victim was killed she was living with
Bessie. She recalled that Defendant Person had been at their house earlier in the day. Later,
after hearing the gunshot, Wendolyn went behind the vacant house and observed the victim
“laying flat on his back” and “[i]n a pool of blood.” As she ran away, she saw an undercover
police officer and flagged him down.

       On cross-examination, Wendolyn stated that it was dark enough behind the vacant
house that she “couldn’t see [her] hand.” She observed Defendant Person at some point that
day walking down the street with a black jacket under his arm.

        Kimberly Perry, another neighbor of the victim, testified that she also knew the
Defendants. On the morning that the victim was killed, she heard Defendant Grandberry say,
“I’m going to kill that bitch ass n****r.” She observed Defendant Person at the home of her
aunt, Bessie, when he retrieved her cousin’s “black hoodie.” Kimberly left that street at
approximately 6:00 to 6:30 p.m. Despite saying so in her statement to police, she did not
recall at trial seeing Defendant Person give the “black hoodie” to Defendant Grandberry.

        On cross-examination, Kimberly clarified that the reason she did not see an exchange
of the “black hoodie ” was because she walked away. That afternoon, Defendant Grandberry
had asked her to drive him to a location “around the corner” and back. She noted that he was

                                              -4-
wearing mostly black with a white shirt on the way there, and, on the way back, “he just had
on all black.”

        Chasity Perry testified that she was Defendant Grandberry’s girlfriend on April 25,
2009. At the time, she was living with her grandmother, and Defendant Grandberry came
to visit her that evening sometime after 9:00 p.m. Chasity was braiding the hair of an
individual named Ray Joyner at the time. She confirmed that when Defendant Grandberry
arrived “he was shaking and [said] something to the effect that I fucked up.” Initially,
Chasity believed that Defendant Grandberry was referring to their relationship, but he was
not. She also confirmed that he told her that he had been at the vacant house on Shasta Street
and that “a shot rang out.” Later, Chasity left with Defendant Grandberry and went to a
hotel.

       On cross-examination, Chasity clarified that Defendant Grandberry had been living
with her and her grandmother for a couple of months prior to the shooting. She
acknowledged that police “threatened [her] with a charge of first degree murder” prior to her
giving a written statement in this case.

       Ray Joyner testified that he was at Chasity’s home on April 25, 2009, getting his hair
braided. He was sitting on the porch, and, sometime “between nine and ten,” Chasity’s
boyfriend, who he identified as Defendant Grandberry at trial, arrived. Eventually, Chasity
asked Joyner to take her and Defendant Grandberry to a hotel, and he complied. Once they
reached the hotel, Chasity finished braiding Joyner’s hair.

       Sergeant James T. Max with the MPD testified that he responded to the scene of the
shooting on April 25, 2009. He described the front of the vacant house where the shooting
occurred as well-lit but noted that the back was dark. Sergeant Max continued,

       As you go around to the back, on the southwest corner of the house was a
       small, covered porch area. Concrete steps – two concrete steps leading out to
       the yard. At the base of that bottom step was [the victim]. He was lying in a
       face up position, head facing southeast. The feet – actually his right foot was
       actually on the step. . . . And one of the things I noticed was that []his pants
       pockets were turned inside out, which is an indicator to me that someone or
       him [sic] had taken something out in a hurried fashion.

        Sergeant Max later learned that this home had belonged to the victim’s mother before
she passed away and left it to the victim. Eventually, he searched the home and found “[t]wo
.40 caliber cartridge casings spent, like four beer cans, a pair of blue jeans, and a vodka
bottle.” He stated that “most of the furniture in the home was just thrown out in the

                                             -5-
backyard, it appeared.” Sergeant Max identified a picture of the victim’s left hand which
had “what appears to be blood” on it. He did not recall seeing “defensive wounds” on the
victim such as cuts, scratches, or scrapes. The blood on the victim’s hand seemed to be from
“a pool of blood that was underneath his head and shoulder when he had – his palms were
down.”

        Sergeant Max identified a picture at trial of the wall where the back porch was
located. He explained, “There’s a piece of siding, lap siding, missing from the house. And
just south of the torn – where the piece of siding is missing, there was what appeared to be
a plastic baggie up underneath the piece of siding.” Upon further investigation, they found
a second plastic bag hidden under the siding. From his experience, plastic bags similar to the
bag he described often were used to contain illegal substances.

       From observing the victim’s face, Sergeant Max noticed a hole or wound to the
victim’s left chin. Additionally, he observed “a protrusion under the skin” on the back of his
neck “one inch below the rear hair line and just to the right of his spine.” He further
explained, “It was like an entry type wound that did not exit.”

       On May 2, 2009, Sergeant Max responded to a call at 973 Echols because he was
asked “to locate a Mr. Kinner who had possibly been in possession of a firearm that may
have been used in this homicide.” Kinner showed Sergeant Max and the other officers
present where the gun was located under a mattress. Sergeant Max described the weapon as
“a Taurus six shot revolver, .38 caliber.” The gun was loaded with “five live rounds” when
they found it.

       On cross-examination, Sergeant Max acknowledged that a .40 caliber bullet cannot
be fired from a .38 caliber weapon. He later learned that the plastic bags found under the
siding on the house contained eight grams of crack cocaine. The house had been burned in
November of 2008.

         Officer Stacy Milligan with the MPD testified that he currently worked in the crime
scene division. He stated that on April 27, 2009, he collected evidence at the scene, which
included “[a] Black and Mild box, a set of keys with the President and his family on them,
and two cigars, Black and Mild, [and] one blue cigarette lighter.” He identified this evidence
at trial but noted that the keys were no longer present with the rest of the evidence.

       On cross-examination, Officer Milligan agreed that he was familiar with Shasta as
being an area with a lot of drug activity. He acknowledged that fingerprints were not taken
from these items. He confirmed that he arrived on the scene after being called at 8:30 a.m.
and submitted the evidence into the property room at 10:26 a.m.

                                             -6-
       Margaret Williams, the victim’s great-aunt, identified a picture of the victim at trial.
She stated that her family had received the keys discussed by Officer Milligan because the
victim’s grandmother needed the keys to move the victim’s car. She recalled that it was
“quite a few days” before they received the keys.

        Officer Demar Wells testified that his current assignment with the MPD was in Crime
Scene Investigation. He responded to the crime scene in this case on April 25, 2009. He
identified two Winchester spent .40 caliber shell casings which he collected at the scene. On
cross-examination, he agreed that a .40 caliber bullet could not be fired through a .38 caliber
weapon because a .40 caliber bullet would be too large. In his written description of the
victim, he noted,

       Vic[tim] was wearing a white and black t-shirt, a white tank top t-shirt, black
       with grey band Fruit of Loom underwear, white tube socks, black cloth boots,
       blue jeans, with a white leather belt.

               The white leather belt had a silver-colored skull with blue eyes for a
       belt buckle. A silver-colored chain was attached to one of the belt loops on the
       right side of the blue jeans vic[tim] was wearing. A black cell phone inside of
       a black cell phone case was also on the right side of victim’s blue jeans.

       Officer Wells confirmed that he provided the cell phone to the homicide division “for
investigative purposes.”

        Lieutenant Walter Davidson with the MPD testified that in April 2009 he was
assigned to the homicide division and was involved in the present case. He and Sergeant
Ragland interviewed Defendant Grandberry on April 26, 2009. Lieutenant Davidson
identified the advice of rights form through which Defendant Grandberry waived his rights.
From this interview, Defendant Grandberry told Lieutenant Davidson, “[H]e left the – what
he called the track on Shasta around 8:30, went to his girlfriend’s house – I believe her name
was Chastity or Chasity . . . and spent the evening with her.” Lieutenant Davidson then
attempted to contact Defendant Grandberry’s girlfriend and was unable to do so, but he was
able to speak with some other individuals at her house. He stated, “[W]e talked to Chasity’s
grandmother I believe, and she couldn’t verify what he said, as well as one of Chasity’s
sisters said he wasn’t there.” While they followed up on this information, they released
Defendant Grandberry. Lieutenant Davidson stated that Defendant Person consented to
giving DNA samples.

      Special Agent Jessica Linn Marquez with the Tennessee Bureau of Investigation
(“TBI”) Memphis Crime Laboratory testified as an expert in Serology and DNA analysis.

                                              -7-
She analyzed a number of DNA samples in this case. She agreed that she had “known
sample[s]” from the victim, the Defendants, and Chasity. She first stated that her analysis
of four beer cans, blue jeans, and a vodka bottle revealed DNA of a male not matching any
of the known individuals. Later, she received some black jeans and a black t-shirt belonging
to Defendant Grandberry, which she tested for the presence of blood. On the black jeans, she
found DNA matching that of Defendant Grandberry. The black t-shirt did not indicate the
presence of blood. She did not find the presence of DNA matching the victim on either item.

       Sergeant Anthony Mullins with the MPD testified that he had worked in the homicide
division for the past eight years. As part of his investigation in this case, he and Sergeant
Mason interviewed Defendant Person on May 1, 2009. He identified the advice of rights
form signed by Defendant Person, waiving his rights. From this interview, Sergeant Mullins
learned the following from Defendant Person about the day of the shooting:

       He said he was on Shasta Street at some point during the afternoon off and on,
       different house back and forth talking to different people. Spent some time at
       Bessie’s house. There was a house next door that people hung around at, but
       basically he spent his time right there on Shasta Street.

Defendant Person told Sergeant Mullins he had known the victim for approximately twelve
to thirteen years. Sergeant Mullins continued, “[Defendant Person] said people call him
[Defendant Person] the Lulu Man and we had to ask him what that meant. He said he would
sell fake dope, fake specifically crack cocaine, soap, anything white that they could cut into
small pieces and pass off as crack cocaine. He would sell that to addicts and they would call
that lulus.”

       Defendant Person told Sergeant Mullins that he went inside Bessie’s home to get a
black hooded sweatshirt from the house. Defendant Person “said that as he was walking out
[Bessie] asked him why he had her son’s hoodie and he basically told her to mind her own
business and just kept on walking.” From there, Defendant Person walked to the vacant
house located two houses down the street. Sometime later, Defendant Person walked to the
B52 Market, approximately one-quarter-mile away, to buy some beer. After going to the
market, he returned to Bessie’s home. Bessie’s boyfriend asked Defendant Person whether
he heard the gunshot, and Defendant Person said that he did. He told Sergeant Mullins that
he had seen the victim walk behind the vacant house, “which was typical for [the victim]
according to everyone we had talk[ed] to. And he made the comment he was probably just
doing this [sic] thing.” Upon going to look for the victim after hearing the gunshot,
Defendant Person “said he walked over toward the house and looked over a fence with
someone named Terry and he saw a body back there behind the house.”



                                             -8-
       At some point, Sergeant Mullins told Defendant Person that Defendant Person was
not being truthful, and, eventually, Defendant Person admitted that he had not told the truth
regarding his version of the events. Defendant Person then admitted that he was present
when the victim was shot. He told the officers that he was in the front of the vacant house
when the shooting occurred and that the victim was shot in the backyard. Although
Defendant Person did not see the victim get shot, he stated that he heard only one gunshot
and that the weapon used was a .38 revolver. He explained that he was in the house “to see
where [the victim] hid his dope and to take his dope and take his money. Rob him of his
dope and money.” Defendant Person had been waiting in the house for the victim for
approximately forty-five minutes to an hour. He told the officers that he had no problems
with the victim. When Defendant Person heard the gunshot, he ran out through the back of
the house, observed the victim lying in the yard, took some money, and fled the scene. He
admitted to talking about “robbing” the victim on several occasions prior to the incident.

        Sergeant Mullins testified that Defendant Person gave a second statement on June 1,
2009, with his attorney at that time present. In this statement, Defendant Person “just wanted
to let us know that he was just there to rob [the victim] and he wanted to rob him of his drugs
and money.” Defendant Person told Sergeant Mullins that, from this robbery of the victim,
he received two hundred dollars.

        On cross-examination, Sergeant Mullins acknowledged that it was unusual that
Sergeant Mason, who also was present at the May 1, 2009 interview, did not sign the advice
of rights form. He maintained, however, that she was present the entire time. Sergeant
Mullins estimated that this interview lasted approximately five to eight hours. He confirmed
that there was no typed statement from this interview.

      Sergeant Mullins described the vacant house as being “fairly close” to the other
houses on either side of it. He could not remember whether the backyard of the house was
enclosed. He recalled that Defendant Person described himself on the day of the incident as
“wearing blue jeans, had a red shirt with some kind of white in it.”

       Lieutenant Caroline Mason2 with the MPD testified that she was assigned to the
homicide division and was the case coordinator for the investigation into the death of the
victim on April 25, 2009. After she arrived at the scene on the evening of the incident, she
met with a few female witnesses. She learned the next day that Defendant Grandberry had
given a statement that he was with his girlfriend, Chasity, when the victim was killed.
Lieutenant Mason then met with Chasity, who told her that she “did see [Defendant
Grandberry] the night . . . that the incident occurred later after it occurred, and he had shared

       2
           This witness is who Sergeant Mullins refers to as “Sergeant Mason.”

                                                   -9-
with her some of the things that happened on the scene, his involvement.” Lieutenant Mason
stated that, initially, Chasity was not entirely truthful but that she eventually was
forthcoming. Chasity told her that Defendant Grandberry “sold fake drugs on the street.”

        Lieutenant Mason identified an advice of rights form signed by Defendant Grandberry
on April 29, 2009, during an interview for which she was present. During the course of this
interview, Defendant Grandberry admitted to being present when the victim was killed. He
told Lieutenant Mason that the victim walked from the front of the house, along the left side,
to the back of the house. Defendant Grandberry also informed her that a .38 revolver was
used in the shooting. Additionally, some cash was taken from the victim, and the victim’s
pockets were turned inside out. The victim’s keys, wallet, and cigarette lighter initially were
taken but were “thrown down after the incident.” Defendant Grandberry admitted to his
involvement in planning the robbery of the victim. He also “was concerned about wearing
a mask and being identified.”

        Lieutenant Mason also identified an advice of rights form signed by Defendant Person
on May 1, 2009, and confirmed that she was present for this interview, even though she did
not sign the form. Defendant Person told her that his nickname was “Lulu Man” because
“[h]e was known for selling fake drugs.” Shortly after this interview, Defendant Person was
charged in this case. Lieutenant Mason identified a document dated May 3, 2009, indicating
the release of the victim’s vehicle and keys to the victim’s family members.

        On cross-examination, Lieutenant Mason acknowledged that the first time Defendant
Grandberry met with police he did so voluntarily. She was not present for this first interview
but was present for the second interview. She identified her supplement from this interview
in which she wrote detailed notes about what transpired. During this interview, Defendant
Grandberry explained that the reason he was present when the victim was shot was because
he was there to buy some powder cocaine. He also denied receiving any money as a result
of the robbery.

        When Lieutenant Mason arrived at the scene, a patrol officer already had contained
the scene with crime tape. She confirmed that, even as the case coordinator, if someone from
crime scene investigation collects evidence and submits it to the property room, that evidence
is out of her hands. She could not recall why the keys found were not placed into evidence
with the other items found, except that she released the keys with the victim’s vehicle.

     Out of everyone she interviewed, she believed it was Defendant Person who had
known the victim the longest, approximately twelve to thirteen years.




                                             -10-
       Dr. Karen Chancellor, Chief Medical Examiner for Shelby County, testified as an
expert in forensic pathology. She identified her autopsy report of the victim in this case.
From her report, she explained that the victim’s upper clothes were blood-stained. She found
a gunshot wound on the left side of the victim’s chin and ultimately discovered the bullet in
the back of his neck. She continued,

       When it went through the body, it fractured the mandible, the jawbone, it went
       through the tongue, toward the tongue, and went through the upper part of the
       pharynx, which is our swallowing mechanism, then it went through the
       cervical spine at the level of the third cervical body, and then it lodged in the
       back of the neck.

              When this bullet went through the spine, bone fragments went to the
       spinal column, in the canal, and resulted in damage to the spinal cord and part
       of the brain. I determined that this was the cause of death. The gunshot
       wound to the face that went through the neck.

        She explained that, after the victim was shot, “[h]e most likely would not have had
any voluntary movements and purposeful movements.” Accordingly, it was unlikely that he
could have taken any steps after getting shot. She identified a photograph of the bullet she
retrieved from the victim’s neck. Dr. Chancellor discovered, through her toxicology analysis,
that the victim had a blood alcohol level of approximately .02. She also found the “active”
and “breakdown product” of marijuana in the victim’s bloodstream. Her ultimate conclusion
was that “[t]his death resulted from a gunshot wound to the chin . . . that damaged the spinal
cord. The manner of death was homicide.”

       On cross-examination, Dr. Chancellor confirmed that bags were taped around the
victim’s hands when she received the body. She explained that this practice is common in
such cases in order to preserve any evidence on the hands. She collected swabs of the hands
and nail clippings, but she did not perform the testing on this evidence. Rather, Sergeant
Ragland with the MPD retrieved this evidence from her.

        She recalled that she removed the following items from the victim’s body: “two
shirts, . . . . blue jeans, a belt with a metal buckle, black boxer underwear, two white socks,
and two black laced boots. And there was a white metal stud earring with a clear stone in
each ear.” She did not recall seeing a cell phone but acknowledged seeing a cell phone case
with the body. She explained that the bullet went from the left side to the right side of the
victim’s body. She was unable to determine the distance of the gun from the victim’s body
at the time the gun discharged. Because she did not discover “sooty residues,” she did not
believe the gun was “within a few inches” of the victim’s face.

                                             -11-
      Sergeant William D. Merritt with the MPD testified that he and Sergeant Ragland
were assigned to retrieve the bullet from the medical examiner’s office.

       Taurus Whitmore testified that on April 27, 2009, Defendant Grandberry informed
Whitmore that he had a pistol for sale. The two of them went over to the house of another
individual, Demarcus Kinner, to sell the weapon. He described the pistol as a black “.357.”
He identified his previous testimony in which he also stated that the gun was a “Smith and
Wesson.” Once they reached Kinner’s driveway, Kinner purchased the gun for
approximately forty to fifty dollars, and then Whitmore and Defendant Grandberry drove
away. After selling the gun, Defendant Grandberry told Whitmore that “[h]e made a mistake.
He killed someone and he messed up.” He also told Whitmore that he robbed the individual
and, as a result, received $700.

       On cross-examination, Whitmore did not recall telling detectives that the gun was a
“chrome 9 millimeter.” He denied that anyone else was with Defendant Grandberry when
they went to sell the gun. He did not remember previously testifying that another individual
was with Defendant Grandberry. He recalled that Defendant Grandberry told him that he
shot the victim.

        Demarcus Kinner testified that, in early May 2009, he received a call from Whitmore
about a gun for sale. When Whitmore and Defendant Grandberry arrived, Kinner met them
at their vehicle because he did not want to make the transaction in the house, where his wife
was. While they were making the sale, Kinner asked Defendant Grandberry, “[I]s this dirty,”
meaning “if any bodies [were] on it,” but Defendant Grandberry told him “Nope.” Kinner
explained that he bought this gun as “family protection” because he and his wife had recently
moved to a new neighborhood.

        Eventually, police officers came to his house and asked him whether he had “bought
anything,” which he denied several times until finally admitting that he had bought a gun.
They requested the gun, and Kinner complied. He described the gun as a .38 and said that
it did not have any bullets in it when he purchased it.

       Officer Ruth Horne with the MPD testified that she was a crime scene officer in April
2009. On May 2, 2009, she responded to 973 Echols to take photographs and collect
evidence. She collected a .38 revolver from under a mattress of a bedroom in that residence.
Officer Horne confirmed that five bullets were in the chamber at the time that they found the
gun. Accordingly, they removed the bullets and turned both the gun and bullets in to the
property room.




                                            -12-
       Special Agent Cervinia Braswell with the Tennessee Bureau of Investigation (“TBI”)
Firearms Identification Unit testified as a firearms identification expert. She explained that,
when a semiautomatic pistol is fired, a cartridge automatically ejects from the gun. However,
when a revolver is fired, the cartridge stays inside the gun until manually removed.
Therefore, cartridge cases from a revolver may not be found at the scene of a crime.

        Special Agent Braswell confirmed that she inspected a revolver and bullet fragment
related to this case. She described the gun as a Taurus .38 Special revolver that holds six
cartridges. As part of her testing, she fired the revolver and compared the fired bullet to the
bullet fragment removed from the victim’s body and determined that the bullets were fired
from the same revolver. In her opinion, the bullet used to kill the victim was fired through
the revolver she inspected.

        At the conclusion of the State’s proof, the defense for both Defendants moved for
judgments of acquittal, and the trial court denied both motions. Defendant Grandberry chose
not to testify, but his counsel called three witnesses on his behalf.

        Gabriel King, Defendant Grandberry’s father, testified that he was a close friend of
the victim in this case. He was not aware of any animosity between the victim and Defendant
Grandberry. On the day the victim was killed, King had been incarcerated for five years.
Therefore, he did not know exactly what happened on that day. On cross-examination, King
acknowledged that he and the victim both sold drugs.

       Kenneth Swift testified that, prior to his incarceration, he lived with his girlfriend,
Bessie. He remembered seeing Defendant Grandberry on the morning of April 25, 2009.
Swift stated that he stayed on the front porch most of the day. He believed that he would
have heard any conversation taking place in the front yard. At no point did he remember
Defendant Grandberry talk about robbing the victim.

       Swift stated that, after the incident, officers questioned him for approximately five
hours, and he never changed his story that he had not heard Defendant Grandberry discuss
robbing the victim.

        On cross-examination, Swift stated that he did not see Defendant Person on the day
of the incident until approximately 10:30 that evening. That was around the time that they
heard a gunshot, but Defendant Person was not there at the exact time they heard the gunshot.
He denied telling the officers that he theorized the Defendants “had plotted up to do
something” to the victim. He agreed that he saw Defendant Person come into his yard
approximately one hour after hearing the gunshot.



                                             -13-
       Swift identified his signature on a statement typed by police officers on April 28,
2009. He denied, however, telling the officers what he allegedly said in the statement. He
admitted that he had sold drugs in that area as well.

        Delores Grandberry, Defendant Grandberry’s grandmother, testified that she treated
the victim like her own son. At the time of the victim’s death, Delores had a home on Shasta
that she was remodeling. Her main residence was elsewhere during the remodel, but she
spent a lot of time at her home on Shasta. She never was aware of any animosity between
the victim and Defendant Grandberry.

        Following Delores’ testimony, the defense for Defendant Grandberry rested, and the
defense for Defendant Person began. Defendant Person testified that he turned himself in
to police on April 27, 2009. He denied killing someone during the course of a robbery. He
stated that he turned himself in because his sister had informed him that police were looking
for him.

       When he first began speaking with police officers, he denied any involvement in the
murder of the victim because he had promised Defendant Grandberry that he would not say
anything to police. He acknowledged reading and signing an advice of rights form, waiving
those rights.

       On May 1, 2009, he was arrested at a shopping mall and again brought in for
questioning. At that time, Defendant Person decided to tell police of his involvement. He
denied having any involvement in killing the victim. His intention was to steal the victim’s
“stash” after the victim left the house.

        On the day of the killing, he arrived at Bessie’s house at approximately 5:30 p.m.
Several individuals were present, including Defendant Grandberry, the victim, and Swift.
Defendant Person had known the victim for approximately thirteen to fifteen years, and, in
that time, the victim always had sold drugs. He also stated that others called him (Defendant
Person) the “Lulu Man” because he sold “bad drugs.”

       On the evening of the shooting, the victim left the area about the time that it got dark.
Defendant Grandberry approached Defendant Person and asked Defendant Person for a
disguise to steal the victim’s drugs from his house while he was gone. Defendant Person
retrieved a jacket from Bessie’s house for Defendant Grandberry and said that he would
accompany Defendant Grandberry.

        The Defendants went in the victim’s house to look for his “stash” but could not find
it. At some point, approximately thirty minutes later, they looked out the front window of

                                              -14-
the house and observed the victim “dealing with somebody on the street.” The victim then
walked to the back of the house. Soon thereafter, Defendant Grandberry walked out the front
door. Defendant Person stayed inside and heard a gunshot. He was nervous because he did
not know who had fired a gun, and he was not aware that Defendant Grandberry had a gun
at the time. Eventually, Defendant Person walked out the back door and observed Defendant
Grandberry “standing over [the victim] crying, saying man I think I done killed him. . . . He
said yeah I think I messed up. I done killed him, man.”

       Defendant Grandberry asked Defendant Person not to tell anyone, and Defendant
Person agreed. As they fled the scene, Defendant Grandberry handed Defendant Person $200
obtained from the victim’s person. Defendant Person denied discussing this robbery earlier
in the day. Instead, he insisted that this incident was not planned. On cross-examination,
however, he identified his statement to police that the Defendants had discussed robbing the
victim on several different occasions prior to the day of the incident.

      On cross-examination by Defendant Grandberry’s counsel, Defendant Person agreed
that Bessie’s son was approximately 5'6" tall and that Defendant Grandberry was
approximately 6'2" tall. He acknowledged that he was the only person who identified
Defendant Grandberry as being in the victim’s house that evening. He denied ever in his life
having a gun.

       The defense for Defendant Person rested, and the State called rebuttal proof. Christy
Lane, employed through Shelby County, testified that Defendant Person pleaded guilty to
aggravated robbery in 2004, which included the use of a handgun.

       Following the conclusion of the proof, the jury deliberated and found the Defendants
guilty of first degree murder in the perpetration of a robbery. The trial court sentenced the
Defendants to life imprisonment.

      The Defendants filed motions for new trial, which the trial court subsequently denied.
Defendant Person now appeals, arguing that the trial court erred in: excluding evidence of
Defendant Grandberry’s involvement in a separate robbery on the day the victim in this case
was killed; admitting Defendant Person’s statement to police; including the natural and
probable consequences rule in its jury instruction on felony murder; and denying Defendant
Person’s request to provide a special jury instruction on the requisite mens rea necessary for
criminal responsibility. He also challenges the sufficiency of the evidence supporting his
conviction.




                                             -15-
      Defendant Grandberry also appeals, challenging the sufficiency of the evidence
supporting his conviction and asserting that the trial court erred in not severing the
Defendants.

                                           Analysis

                                Severance of the Defendants

        We first examine Defendant Grandberry’s contention that the trial court failed to
exercise an independent duty to sever the co-defendants “after it became apparent that
[Defendant] Grandberry was clearly prejudiced by [Defendant] Person’s testimony.” The
State, in response, asserts that Defendant Grandberry actually opposed severance prior to trial
and, therefore, has waived this issue on appeal.

        We review a trial court’s decision to grant or deny a motion for severance under an
abuse of discretion standard. State v. Dotson, 254 S.W.3d 378, 390 (Tenn. 2008). To
determine an abuse of discretion by the trial court, “[t]he record must demonstrate that ‘the
defendant was clearly prejudiced to the point that the trial court’s discretion ended and the
granting of [a] severance became a judicial duty,’ before an accused is entitled to a reversal
of his conviction.” State v. Shirley, 6 S.W.3d 243, 246-47 (Tenn. 1999) (quoting State v.
Burton, 751 S.W.2d 440, 447 (Tenn. Crim. App. 1988)).

      According to Tennessee Rule of Criminal Procedure 8(c), two or more defendants
may be joined in the same indictment “if each of the defendants is charged with
accountability for each offense included.” However, Tennessee Rule of Criminal Procedure
14(1)(A) provides the procedure for severance as follows: “A defendant’s motion for
severance of offenses or defendants shall be made before trial, except that a motion for
severance may be made before or at the close of all evidence if based on a ground not
previously known. A defendant waives severance if the motion is not timely.”

       Immediately prior to trial, the State requested that the trial court consider severing the
Defendants. Defendant Grandberry’s counsel responded that he had filed a Motion in Limine
specifically in opposition to such severance. The State then told the court, “Okay then. We
can go – we’ll do what we have to do with the officers, Judge, and we’re going to go forward
based on the fact that they are waiving the issues with the severance.” Accordingly, the
Defendants proceeded in a joint trial. The first time that Defendant Grandberry raised the
issue of severance was in his motion for new trial. Thus, we find that his complaint is
untimely and, therefore, waived. See Tenn. R. Crim. P. 14(1)(A).




                                              -16-
                           Evidence of Contemporaneous Robbery

        Defendant Person asserts that the trial court erred in not allowing Defendant Person
to introduce evidence of Defendant Grandberry’s involvement in a “contemporaneous”
robbery in order to show Defendant Person’s lack of shared intent in the robbery underlying
his felony murder conviction.

       We review a trial court’s decision to admit or exclude evidence under an abuse of
discretion standard. See State v. Banks, 271 S.W.3d 90, 116 (Tenn. 2008). “Reviewing
courts will find an abuse of discretion only when the trial court applied incorrect legal
standards, reached an illogical conclusion, based its decision on a clearly erroneous
assessment of the evidence, or employed reasoning that causes an injustice to the
complaining party.” Id. (citing Konvalinka v. Chattanooga-Hamilton County Hosp. Auth.,
249 S.W.3d 346, 358 (Tenn. 2008)).

        Generally, “[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). However, such evidence may be admissible “for other purposes.” Id.
“Tennessee courts, as well as a large number of state and federal courts, have allowed the
admission of evidence of subsequent crimes, wrongs, or acts when they bear on the issues
of identity, intent, continuing scheme or plan, or rebuttal of accident, mistake, or
entrapment.” State v. Elkins, 102 S.W.3d 578, 583 (Tenn. 2003) (citing State v. Elendt, 654
S.W.2d 411, 413-14 (Tenn. Crim. App. 1983)) (other citations omitted). Thus, such evidence
may be used “if its probative value as evidence of the matter at issue is not outweighed by
its prejudicial effect upon the defendant.” Id. (citing Bunch v. State, 605 S.W.2d 227, 229
(Tenn. 1980)).

       At trial, Defendant Person presented an offer of proof outside the presence of the jury
of a robbery that occurred on the same day the victim was killed. According to the proof
presented, Defendant Grandberry was involved in this robbery at a carwash, which occurred
approximately “six minutes” after the victim had left the carwash. The trial court, after
hearing the defense’s proof, stated,

       [F]or me to allow you to put on proof that [Defendant] Grandberry committed
       another robbery, I think it’s highly prejudicial to [Defendant] Grandberry. I
       don’t find that there is any material issue in the trial of the death of [the victim]
       that would allow me to put that on. In fact, I find that it would be extremely
       prejudicial to [Defendant] Grandberry and I . . . don’t think that there’s any
       probative value that I can find based on what you’ve explained to me as to
       [Defendant] Person.

                                               -17-
Accordingly, the trial court determined that the proof was not relevant and did not allow its
admission.

       We agree with the trial court. The prejudice to Defendant Grandberry in presenting
evidence of another robbery taking place on the same day would have been great.
Additionally, Defendant Grandberry’s participation in another robbery does not negate the
intent of Defendant Person to rob the victim in this case. Furthermore, according to the
proffered evidence, Defendant Grandberry was accompanied by another individual at the
carwash. The proffered evidence was not relevant to show Defendant Person’s lack of intent
to rob the victim. Moreover, even if the evidence had some relevance, the prejudice to
Defendant Grandberry greatly outweighed any probative value of the evidence to Defendant
Person. Accordingly, the trial court did not abuse its discretion. Defendant Person is entitled
to no relief on this issue.

                       Introduction of Defendant Person’s Statement

       Defendant Person next argues that the trial court erred in allowing the State to
introduce evidence of a statement given by Defendant Person “during the course of
negotiations.”

        Once again, we review a trial court’s decision to admit or exclude evidence under an
abuse of discretion standard. See Banks, 271 S.W.3d at 116. “Reviewing courts will find
an abuse of discretion only when the trial court applied incorrect legal standards, reached an
illogical conclusion, based its decision on a clearly erroneous assessment of the evidence, or
employed reasoning that causes an injustice to the complaining party.” Id. (citing
Konvalinka, 249 S.W.3d at 358).

       Tennessee Rule of Evidence 410 states,

       Except as otherwise provided in this rule, evidence of the following is not, in
       any civil or criminal proceeding, admissible against the party who made the
       plea or was a participant in the plea discussions:

              (1) A plea of guilty which was later withdrawn;

              (2) A plea of nolo contendere;

              (3) Any statement made in the course of any proceedings under Rule 11
       of the Tennessee Rules of Criminal Procedure regarding either of the
       foregoing pleas; or

                                             -18-
               (4) Any statement made in the course of plea discussions with an
       attorney for the prosecuting authority which do not result in a plea of guilty or
       which result in a plea of guilty later withdrawn. Such a statement is
       admissible, however, in a criminal proceeding for perjury or false statement if
       the statement was made by the defendant under oath, on the record, and in the
       presence of counsel.

We note, specifically,

       Rule 410’s exclusion of statements during plea negotiations applies only to
       statements to ‘an attorney for the prosecuting authority.’ On its face, the rule
       does not bar statements to other people, such as law enforcement officers.
       However, if the prosecuting attorney utilizes others as the prosecutor’s
       representative during plea negotiations, Rule 410 would extend its
       exclusionary rule to statements made to these people.

Neil P. Cohen, et al., Tennessee Law of Evidence § 4.10[6][b] (6th ed. 2011) (Internal
footnote omitted). Put another way, “when a law enforcement officer acts under the express
authorization of the prosecuting attorney, statements made by a defendant to the officer are
to be viewed as if they had been made directly to a prosecuting attorney.” State v. Hinton,
42 S.W.3d 113, 123 (Tenn. Crim. App. 2000).

        We hold that the trial court did not abuse its discretion in admitting Defendant
Person’s statement. Defendant Person’s statement was given to Officer Mullins, not the
State, prior to his indictment. According to the State in its discussion with the trial court
prior to trial, the State remembered having knowledge of the meeting and informed
Defendant Person’s counsel that Defendant Person’s truthfulness with the officer might result
in Defendant Person’s being charged with facilitation. Defendant Person has not produced
any evidence that Officer Mullins was acting as an agent for the State or that he had any
authority to enter into a plea agreement with Defendant Person. Furthermore, this discussion
was prior to Defendant Person’s indictment, making it considerably unlikely that the parties
were partaking in a plea agreement at this time. Thus, we conclude that the trial court did
not err in its decision. Accordingly, Defendant Person is entitled to no relief on this issue.

                                      Jury Instructions

        Defendant Person argues two issues with respect to the jury instructions provided by
the trial court. Generally, the trial court has a duty “to give a complete charge of the law
applicable to the facts of the case.” State v. Sims, 45 S.W.3d 1, 9 (Tenn. 2001) (quoting
State v. Thompson, 519 S.W.2d 789, 792 (Tenn. 1975)). However, we review a trial court’s

                                             -19-
jury instructions in context of the overall charge and not in isolation. See State v. Phipps,
883 S.W.2d 138, 142 (Tenn. Crim. App. 1994). A trial court commits reversible error if its
charge “fails to fairly submit the legal issues or if it misleads the jury as to the applicable
law.” State v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997). Thus, “[w]hen the entire charge,
read as a whole, fully and fairly sets out the applicable law, the trial judge does not err in
denying a special instruction requested by a party or in denying an inaccurate instruction or
one inapplicable to the case at hand.” Id. (citing State v. Bohanan, 745 S.W.2d 892, 897
(Tenn. Crim. App. 1987)).

        Defendant Person’s first issue regarding the jury instructions is that the trial court
erred in instructing the jury on the natural and probable consequences rule as applicable to
felony murder. The State responds that, given that the felony murder statute is broader than
the natural and probable consequences instruction, the inclusion of this jury instruction did
not in any way prejudice Defendant Person.

        Our supreme court has held that “a trial court’s failure to charge the natural and
probable consequences rule when warranted by the evidence is constitutional error.” State
v. Richmond, 90 S.W.3d 648, 657 (Tenn. 2002) (citing State v. Howard, 30 S.W.3d 271, 277
n.6 (Tenn. 2000)). Furthermore, “[f]or such error to be harmless, the State has the burden
of establishing beyond a reasonable doubt that the error did not affect the outcome of the
trial.” Id.

        We hold that the trial court fairly presented the legal issues in its instructions to the
jury. In its instructions to the jury, the trial court stated, “When one enters into a scheme with
another to commit a robbery and death ensues, both defendants are responsible for the death
regardless of who actually committed the murder and whether the killing was contemplated.”
This instruction was given after the natural and probable consequences rule (“A defendant
who is criminally responsible for an offense may be found guilty not only of that offense, but
also for any other offense or offenses committed by another if you find beyond a reasonable
doubt that the other offense or offenses committed were natural and probable consequences
of the original offense for which the defendant is found criminally responsible, and that the
elements of the other offense or offenses that accompanies the original offense have been
proven beyond a reasonable doubt.”) but immediately before the instructions regarding the
elements of first degree felony murder. Thus, we conclude that, when the entire charge is
read as a whole, the charge fully and fairly set out the law applicable to this case. See
Hodges, 944 S.W.2d at 352. Accordingly, Defendant Person is entitled to no relief on this
issue.

      Defendant Person also contends that the trial court erred in denying Defendant
Person’s special request to charge the jury “on the mens rea necessary to convict of felony

                                              -20-
murder by way of criminal responsibility.” Specifically, Defendant Person had requested that
the trial court include the following in its instructions to the jury: “In order for a defendant
to be held criminally responsible for the conduct of another in committing first degree murder
in the perpetration of robbery, the defendant must have intended that a robbery be
committed.”

        In its charge to the jury, the trial court included the following instruction: “When one
enters into a scheme with another to commit a Robbery and death ensues, both defendants
are responsible for the death regardless of who actually committed the murder and whether
the killing was specifically contemplated.” This instruction stems from this Court’s holding
in Hinton, 42 S.W.3d at 119. In fact, this Court has upheld a trial court’s use of an almost
identical instruction. See State v. Joe A. Gallaher, No. E2001-01876-CCA-R3-CD, 2003 WL
21463017, at *6 (Tenn. Crim. App. June 25, 2003) (“When one enters into a scheme with
another to commit a robbery and death ensues, all the robbers are responsible for the death
regardless of who actually committed the murder and whether the killing was specifically
contemplated by the other. No culpable mental state is required for a conviction of this
offense except the intent to commit Aggravated Robbery.”).3 Furthermore, the trial court
provided the following instruction after instructing the jury regarding the elements for
robbery:

            The intent to commit Robbery must exist prior to or concurrent with the
       commission of the act causing the death of the victim. . . .

              “Intentionally” 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 to engage in the conduct or cause the result.

We hold that because the trial court provided instructions that “as a whole, fully and fairly
set[] out the applicable law, . . . [it did] not err in denying a special instruction requested” by
Defendant Person. See Hodges, 944 S.W.2d at 352 (citing Bohanan, 745 S.W.2d at 897).
Accordingly, we conclude that the trial court did not abuse its discretion in denying the
special instruction concerning the mens rea for felony murder. Therefore, Defendant Person
also is not entitled to any relief on this issue.




       3
          Moreover, the Tennessee Criminal Pattern Jury Instruction 7.03 (16th ed.) now includes this
instruction in its charge as to felony murder.

                                                -21-
                                 Sufficiency of the Evidence

       Finally, the Defendants challenge the sufficiency of the evidence supporting their
convictions for first degree felony murder. Our standard of review regarding sufficiency of
the 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 also Tenn.
R. App. P. 13(e). After a jury finds a defendant guilty, the presumption of innocence is
removed and replaced with a presumption of guilt. State v. Evans, 838 S.W.2d 185, 191
(Tenn. 1992). Consequently, the defendant has the burden on appeal of demonstrating why
the evidence was insufficient to support the jury’s verdict. State v. Tuggle, 639 S.W.2d 913,
914 (Tenn. 1982).

       The appellate court does not weigh the evidence anew. Rather, “a jury verdict,
approved by the trial judge, accredits the testimony of the witnesses for the State and resolves
all conflicts” in the testimony and all reasonably drawn inferences in favor of the State. State
v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, “the State is entitled to the strongest
legitimate view of the evidence and all reasonable or legitimate inferences which may be
drawn therefrom.” Id. (citation omitted). This standard of review applies to guilty verdicts
based upon direct or circumstantial evidence. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn.
2011) (citing State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). In Dorantes, our
Supreme Court adopted the United States Supreme Court standard that “direct and
circumstantial evidence should be treated the same when weighing the sufficiency of such
evidence.” Id. at 381. Accordingly, the evidence need not exclude every other reasonable
hypothesis except that of the defendant’s guilt, provided the defendant’s guilt is established
beyond a reasonable doubt. Id.

       The weight and credibility given to the testimony of witnesses, and the reconciliation
of conflicts in that testimony, are questions of fact. State v. Bland, 958 S.W.2d 651, 659
(Tenn. 1997). Furthermore, it is not the role of this Court to reevaluate the evidence or
substitute its own inferences for those drawn by the jury. State v. Winters, 137 S.W.3d 641,
655 (Tenn. Crim. App. 2003) (citations omitted).

        First degree felony murder is defined as “[a] killing of another committed in the
perpetration of or attempt to perpetrate any first degree murder, act of terrorism, arson, rape,
robbery, burglary, theft, kidnapping, aggravated child abuse, aggravated child neglect, rape
of a child, aggravated rape of a child or aircraft piracy.” Tenn. Code Ann. § 39-13-202(a)(2)
(Supp. 2007). Therefore, we first must consider whether the evidence was sufficient for the
jury to determine that the Defendant committed one of the underlying felonies required to
convict the Defendant of first degree felony murder.

                                              -22-
        The State’s theory of the case was that Defendant Grandberry shot and killed the
victim in the commission of a robbery. Robbery is defined as “the intentional or knowing
theft of property from the person of another by violence or putting the person in fear.” Tenn.
Code Ann. § 39-13-401(a) (2006). A person commits theft of property “if, with the intent
to deprive the owner of property, the person knowingly obtains or exercises control over the
property without the owner’s effective consent.” Id. § 39-14-103 (2006).

        We first will consider the sufficiency of the evidence as to Defendant Grandberry.
In so doing, we hold that the State presented ample evidence for the jury to conclude that the
Defendant, with the intent to rob the victim, deprived the victim of his property after shooting
the victim. We note initially that Defendant Person testified that Defendant Grandberry shot
the victim and then retrieved approximately $200 from the victim’s pocket.

       In Tennessee, it is well-established that an accomplice’s uncorroborated testimony
cannot be the sole basis of a defendant’s conviction. State v. Bough, 152 S.W.3d 453, 464
(Tenn. 2004); see also State v. Bane, 57 S.W.3d 411, 419 (Tenn. 2001). Specifically,

       There must be some fact testified to, entirely independent of the accomplice’s
       testimony, which, taken by itself, leads to the inference, not only that a crime
       has been committed, but also that the defendant is implicated in it; and this
       independent corroborative testimony must also include some fact establishing
       the defendant’s identity. This corroborative evidence may be direct or entirely
       circumstantial, and it need not be adequate, in and of itself, to support a
       conviction; it is sufficient to meet the requirements of the rule if it fairly and
       legitimately tends to connect the defendant with the commission of the crime
       charged.

Bough, 152 S.W.3d at 464 (quoting Bane, 57 S.W.3d at 419).

         Here, we not only have the accomplice testimony of Defendant Person implicating
Defendant Grandberry in the robbery, but we also have the testimony of several other
witnesses establishing Defendant Grandberry’s intent. LaShawn Blades testified that,
approximately a week before the victim died, she heard Defendant Grandberry tell Defendant
Person on her porch that “he wanted to kill [the victim].” Defendant Person responded,
“[N]o, man. We just going to rob [him].” She remembered that the Defendants had this
same discussion seven times over the course of five days. Additionally, Kimberly Perry
recalled hearing Defendant Grandberry say on the morning the victim was killed, “I’m going
to kill that bitch ass n****r.” Moreover, Taurus Whitmore testified that, two days after the
shooting, Defendant Grandberry told Whitmore that “[h]e made a mistake. He killed



                                              -23-
someone and he messed up.” He also told Whitmore that he robbed the individual and, as
a result, received $700.

       Thus, the jury had ample evidence, together with the accomplice testimony of
Defendant Person, to find that Defendant Grandberry robbed the victim by shooting him and
then stealing his money.

       We also must determine whether the jury had sufficient evidence to determine that the
victim was killed in the commission of the above felony. Testimony established that the
victim died as a result of a gunshot wound and that the manner of death was homicide.
Additionally, Chasity Perry testified that, on the evening the victim was killed, Defendant
Grandberry arrived at her house “shaking and something to effect that I fucked up.” She
confirmed that he told her that he had been at the vacant house on Shasta Street and that “a
shot rang out.”

       The State clearly presented sufficient evidence to establish that the victim died during
the commission of the robbery. Therefore, the evidence is sufficient to support the
Defendant Grandberry’s first degree felony murder conviction. Accordingly, he is entitled
to no relief on this issue.

       Second, we must assess the sufficiency of the evidence as to Defendant Person. The
State’s theory of the case against Defendant Person was that Defendant Person was liable
under a theory of criminal responsibility.

        A person is criminally responsible for crimes committed by another when, “[a]cting
with intent to promote or assist the commission of the offense, or to benefit in the proceeds
or results of the offense, the person solicits, directs, aids, or attempts to aid another person
to commit the offense.” Tenn. Code Ann. § 39-11-402(2) (2006). Our supreme court has
explained that “[t]he justification for this theory of criminal liability is that, in addition to the
primary criminal actor, aiders and abettors should be held accountable for the criminal harms
they intentionally facilitated or helped set in motion.” State v. Sherman, 266 S.W.3d 395,
408 (Tenn. 2008). As long as the State can prove that a defendant knowingly, voluntarily,
and with common intent joined with the principal offender in the commission of the crime,
the State may seek to hold the defendant criminally liable as a principal under the theory of
criminal responsibility for the conduct of another. Id.; see also State v. Hatcher, 310 S.W.3d
788, 811 (Tenn. 2010). “The requisite criminal intent may be inferred from the defendant’s
‘presence, companionship, and conduct before and after the offense.’” State v. Crenshaw,
64 S.W.3d 374, 384 (Tenn. Crim. App. 2001) (quoting State v. McBee, 644 S.W.2d 425,
428-29 (Tenn. Crim. App. 1982)). While a person’s mere presence during the commission
of a crime is not sufficient to confer criminal liability, it is not necessary that he or she take

                                                -24-
physical part in the crime. Sherman, 266 S.W.3d at 408. Rather, encouragement of the
principal actor will suffice. Id. A defendant convicted under a theory of criminal
responsibility for the conduct of another is considered a principal offender to the same extent
as if he had committed the offense himself. See Hatcher, 310 S.W.3d at 811.

        Once again, we have the testimony of LaShawn Blades that, approximately a week
before the victim died, she heard Defendant Grandberry tell Defendant Person on her porch
that “he wanted to kill [the victim].” Defendant Person responded, “[N]o, man. We just
going to rob [him].” She heard the Defendants have this discussion seven times over the
course of five days. Additionally, in Defendant Person’s statement to Sergeant Mullins, he
stated that he was in the front of the vacant house when the shooting occurred and that the
victim was shot in the backyard. Although Defendant Person did not see the victim get shot,
he stated that he heard the one gunshot. He explained that he was in the house “to see where
[the victim] hid his dope and to take his dope and take his money. Rob him of his dope and
money.”

       Viewing these facts with the strongest legitimate view in favor of the State, see Harris,
839 S.W.2d at 75, the jury clearly had adequate evidence before it to find that Defendant
Person was criminally responsible for the robbery of the victim that resulted in the victim’s
death. Thus, the evidence is sufficient to support Defendant Person’s first degree felony
murder conviction. He is entitled to no relief on this issue.

                                       CONCLUSION

       For the reasons articulated above, we affirm the Defendants’ convictions.




                                            ______________________________
                                            JEFFREY S. BIVINS, JUDGE




                                              -25-
