                                                                                          01/30/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs September 7, 2017

               STATE OF TENNESSEE v. ANTONIO JOHNSON

                 Appeal from the Criminal Court for Shelby County
                    No. 15-05615       W. Mark Ward, Judge
                     ___________________________________

                           No. W2017-00476-CCA-R3-CD
                       ___________________________________


The Shelby County Grand Jury indicted Defendant, Antonio Johnson, on charges of
attempted first degree murder, employing a firearm in the commission of a dangerous
felony, reckless endangerment with a deadly weapon, and three counts of aggravated
assault; the State later dismissed two of the aggravated assault counts. The jury
convicted Defendant of attempted second degree murder, employment of a firearm in the
commission of a dangerous felony, aggravated assault, and reckless endangerment with a
deadly weapon. The trial court sentenced Defendant to eleven years for the attempted
second degree murder conviction, six years for the aggravated assault conviction, six
years for the employment of a firearm during the commission of a dangerous felony
conviction, and two years for the reckless endangerment conviction. The trial court
ordered the sentences for aggravated assault and reckless endangerment to run
concurrently with each other and ordered the remaining sentences to run consecutively,
for an effective sentence of twenty-three years. On appeal, Defendant argues that (1) the
evidence was insufficient for a rational juror to have found him guilty of attempted
second degree murder beyond a reasonable doubt; (2) the trial court erred in allowing the
admission of testimony regarding Defendant’s past fight with one of the victims; (3) the
trial court erred in allowing the admission of a surveillance video; and (4) the trial court
erred in ordering partial consecutive sentencing. After a thorough review of the facts and
law, we affirm.

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

THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and J. ROSS DYER, JJ., joined.

Jennifer D. Fitzgerald, Memphis, Tennessee, for the appellant, Antonio Johnson.
Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Sarah Poe, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

Background

      Jury Trial

       Kyerra Floyd testified that June 14, 2015, was her ex-boyfriend, Larry
Campbell’s, birthday. She stated that she and Mr. Campbell were “just chilling” and later
went to the Yellow Store. As Ms. Floyd and Mr. Campbell were leaving the Yellow
Store, a man appeared and said, “[W]hat’s up, b***h.” She and Mr. Campbell turned
around, and the man “pulled a gun” on them. Ms. Floyd stated that she was scared and
that Mr. Campbell grabbed her and moved her to the side. She stated that Mr. Campbell
was speaking to the man with the gun, who was circling them. Ms. Floyd and Mr.
Campbell fell, and the man shot Mr. Campbell. Ms. Floyd testified that Mr. Campbell
was shot in the shoulder.

       On cross-examination, Ms. Campbell agreed that she gave a statement to police
and that she could not identify the individual who shot Mr. Campbell at trial. She agreed
that she described the shooter to the police as a 5’ 7” man wearing a white shirt with a
Nike symbol on it. She testified that, when she and Mr. Campbell fell, she did not try to
push the shooter out of the way. Ms. Floyd then agreed that her statement disclosed that,
while she attempted to push the shooter off of Mr. Campbell, the shooter shot Mr.
Campbell in the chest.

       Officer Richard Griffin testified that he had worked as a police officer for the
Memphis Police Department for approximately five and one-half years. On June 14,
2015, Officer Griffin was stationed at the North Main Station and responded to a
shooting on Mississippi Street. When he arrived, Officer Griffin observed a man lying in
the median who had been shot in the neck area. On cross-examination, Officer Griffin
stated that the scene was “fairly crowded,” but he did not observe anyone running from
the scene. He stated that he found one shell casing at the scene and that he spoke with
four witnesses. These witnesses informed Officer Griffin that the shooter walked with
Ms. Floyd and Mr. Campbell on the sidewalk and then attempted to pistol whip Mr.
Campbell.

       Sergeant John Stone testified that he was assigned to the Crime Scene
Investigative Unit with the Memphis Police Department. On June 14, 2015, Sergeant
                                          -2-
Stone responded to the scene of the offense and observed “several items of interest” in
the middle of the street, including a shell casing and “a red substance which appeared to
be blood.” Sergeant Stone stated that he did not recover a gun at the offense scene. On
cross-examination, Sergeant Stone testified that he searched “[t]he immediate area” and
“both sides of the street” for a gun. He also noted that other officers secured the offense
scene with yellow barrier tape and searched for evidence.

        Sergeant Alyssa Macon-Moore testified that she was currently employed in the
Internal Affairs Bureau of the Memphis Police Department, but on June 14, 2015, she
was assigned to the North Main Station General Investigative Bureau. On that day she
was advised that a shooting had occurred on Mississippi Street, and she became the lead
investigator for the case. Sergeant Macon-Moore explained that she “reviewed the case
and then [she] began to try to call witnesses and try to talk to [the] victim of that
particular case.” She stated that she spoke with Mr. Campbell several days later because
he was unable to speak with her while he was hospitalized. Sergeant Macon-Moore
testified that she investigated whether any nearby video surveillance recorded the offense
and found that two businesses and the Realtime Crime Center recorded the offense.
Sergeant Macon-Moore collected the video recordings. She also created a photographic
identification spread to show Mr. Campbell, who identified Defendant as the shooter in
“probably less than [ten] seconds.”

       On cross-examination, Sergeant Macon-Moore testified that she did not interview
Defendant during her investigation. She explained that she “made an attempt to locate
[Defendant][]” but that she and other officers helping in the search were unable to locate
him. Sergeant Macon-Moore agreed that, when she attempted to interview Mr. Campbell
in the hospital, he told her that he had never seen the shooter before. She noted that she
asked Mr. Campbell one question, but she stopped questioning him after the nurse
informed her that Mr. Campbell was heavily sedated. Sergeant Macon-Moore also
agreed that another officer had received information that an individual named Marcus
Johnson was the shooter; she was unable to locate Mr. Johnson. Sergeant Macon-Moore
also agreed that, in her investigation, she learned that a black semi-automatic handgun
was involved in the offense, but she was also unable to locate the handgun.

        Larry Campbell testified that on June 14, 2015, he celebrated his birthday by
watching a sports game; later, he walked to the Yellow Store, with Ms. Floyd. Mr.
Campbell stated that, as he was walking to the Yellow Store, people wished him a happy
birthday. He saw Defendant standing outside the Yellow Store, and he said “[W]hat’s
up[?]” to Defendant. After exiting the Yellow Store, Mr. Campbell was walking when he
heard someone say his name. He turned around and saw Defendant “standing down the
street.” Defendant walked up to Mr. Campbell and Ms. Floyd and said “What’s up now,
b***h.” At this point, Mr. Campbell did not recognize Defendant, but he knew
                                           -3-
Defendant was speaking to him. When Defendant walked past the Yellow Store, he
pulled “a big black gun” on Mr. Campbell. Mr. Campbell stated that Ms. Floyd was
standing in front of him, and they both began to walk backwards down the street as
Defendant said, “It’s over. It’s over now. It’s over now.” As he walked backwards, Mr.
Campbell told Defendant that he could have everything in Mr. Campbell’s pockets, and
Ms. Floyd informed Defendant that Mr. Campbell was a father and that it was his
birthday. Defendant told Ms. Floyd to move, but she did not, so Defendant picked up a
glass bottle and tried to hit her with it. Mr. Campbell attempted to keep Ms. Floyd from
being hit by the bottle, and they both fell to the ground. Mr. Campbell stood up and
attempted to reach for the gun when Defendant shot him in his collar bone. Mr.
Campbell testified that the gunshot wound paralyzed his whole right side. He stated that,
due to therapy, he can walk again. He explained that he worked as a barber and that he
was trying to relearn his skills using his left hand.

        Mr. Campbell identified the Yellow Store and Mike’s Store on a surveillance
video recording. Mr. Campbell then identified himself and Ms. Floyd on video
surveillance recording. He also identified the individual who walked up to him, spoke to
him, and later shot him. The State produced a second video of surveillance footage from
the Yellow Store, and Mr. Campbell again identified himself, Ms. Floyd, and the shooter.
Mr. Campbell also identified a third recording of video surveillance from Mike’s Store;
he stated that Mike’s Store was next to the Yellow Store. Mr. Campbell identified
Defendant on the video as the individual who shot him. After he was shot, Mr. Campbell
was taken to the hospital for treatment. He later gave a statement to police after he was
discharged from the hospital and identified Defendant as the shooter from a photographic
identification spread.

        On cross-examination, Mr. Campbell stated that, while he saw the face of the
individual who shot him during the offense, he did not know the individual’s name until
his family showed him a picture of Defendant, and he recognized Defendant as the
shooter. Mr. Campbell did not recall seeing Sergeant Macon-Moore at the hospital or
telling her that he had never seen the shooter before. He explained that the police showed
him a photographic identification spread approximately two days after he was discharged
from the hospital. He also stated that he was attempting to reach for the gun when
Defendant shot him.

      After a Momon hearing, Defendant decided against testifying. The jury found
Defendant guilty of attempted second degree murder, employment of a firearm in the
commission of a dangerous felony, aggravated assault, and reckless endangerment with a
deadly weapon.



                                          -4-
       Sentencing Hearing

       At a subsequent sentencing hearing, Shawanda Jones testified that she is
Defendant’s mother. She stated that Defendant was the oldest of her children and that he
“help[ed] [her] with [her] other kids no matter what the situation [wa]s.” She stated that
Defendant was “ready to get out here and make a change to show the world he’s got kids
he want[s] to take care of.” Ms. Jones stated that, prior to the offense, Defendant worked
at Cooper Moving Company and for Federal Express. She testified that Defendant had a
good relationship with his two children and that he talked to them frequently on the
phone. Ms. Jones believed that Defendant started getting into trouble as a child because
Defendant was very close to his grandfather, and when his grandfather passed away,
Defendant “just couldn’t accept it that he was gone.” She explained that her father,
Defendant’s grandfather, was disabled and that Defendant helped take care of his
grandfather as a child. On cross-examination, Ms. Jones stated that her father passed
away in 2005, when Defendant was ten or eleven. She agreed that Defendant had
previously been convicted of four counts of aggravated robbery.

        The trial court found that Defendant was a Range I standard offender and that the
trial court was required to sentence Defendant to six years at 100% for the conviction of
employing a firearm during a dangerous felony. The trial court stated that it had
considered “the evidence presented, both at the trial and at the sentencing hearing the pre-
sentence report and the principles of sentencing established by the 1989 Act and
arguments relative to possible alternatives to incarceration[]” as well as “the nature and
characteristics of the criminal conduct involved, any enhancement and mitigation factors
that apply to the case, any statistical information provided by the Administrative Office
of the Courts and any statement [Defendant] wishe[d] to make on his . . . behalf.” The
trial court also noted that Defendant’s sentences “should be consistent with the general
purposes and principles of sentencing set forth in the 1989 Act[,]” such as “the
imposition of a sentence justly deserved in relation to the seriousness of the offense, a
punishment sufficient to prevent crime and promote respect for the law and consideration
of the [D]efendant’s potential or lack of potential for rehabilitation.”

       Regarding enhancement factors, the trial court found that Defendant “ha[d] a
previous history of criminal convictions or criminal behavior in addition to those
necessary to establish the appropriate range.” The trial court noted that Defendant had
previously been convicted of reckless endangerment, criminal trespass, and theft. The
trial court also found that “the personal injuries inflicted upon the victim were
particularly great[]” because the victim’s right side was paralyzed after the offense. The
trial court additionally found that, prior to trial or sentencing, Defendant “failed to
comply with the conditions of a sentencing involving release into the community,” that
Defendant was on probation at the time he committed the offense, and that he had
                                           -5-
previously been “adjudicated to have committed a delinquent act or acts as a juvenile that
would constitute a felony if committed as an adult.” Regarding mitigating factors, the
trial court noted that Defendant “ha[d] not testified or offered any apology or remorse or
anything.” However, the trial court considered Defendant’s childhood experience. The
trial court sentenced Defendant to eleven years for attempted second degree murder, six
years for aggravated assault, six years for employment of a firearm during the
commission of a dangerous felony, and two years for reckless endangerment with a
deadly weapon. The trial court ordered the aggravated assault and reckless endangerment
convictions to run concurrently to each other but consecutively to the attempted second
degree murder conviction. The trial court ordered the employment of a firearm
conviction to run consecutively to the other three sentences for a total effective sentence
of twenty-three years.

        Regarding its order of partial consecutive sentencing, the trial court found that
Defendant was a dangerous offender whose behavior indicated little or no regard for
human life and who showed no hesitation about committing a crime to which the risk to
human life was high. The trial court found that the circumstances of Defendant’s
offenses were aggravated because Defendant “essentially” chased the victims down and
then stood over them and shot Mr. Campbell. The trial court found that consecutive
sentencing was justified “because confinement for an extended period of time [wa]s
necessary to protect society from [Defendant’s] unwillingness to lead a productive life[]
and [Defendant’s] resort to criminal activity in furtherance of an anti-societal lifestyle.”
The trial court also found that “the aggregate length of the sentences reasonably relate[d]
to the offenses for which [Defendant] [was] convicted.” The trial court noted that
Defendant was adjudicated delinquent for aggravated robbery as a juvenile and that he
was on probation for reckless endangerment at the time of the offenses; thus, Defendant
was sentenced to an offense that was committed while he was on probation. Further, the
trial court found that Defendant was “an offender whose record of criminal activities
[wa]s extensive[]” based on “his juvenile aggravated robberies, his three prior
convictions before this one and then adding the four convictions in this case to it.” The
trial court also considered Defendant’s potential for rehabilitation and noted that
Defendant was given opportunities to rehabilitate by the juvenile court. Regarding the
manner of service, the trial court denied probation “based upon the fact that he committed
these while he was on probation and based upon his extensive record . . . .”

       Defendant filed a motion for new trial, which the trial court denied. Defendant
timely appeals the trial court’s judgments.




                                           -6-
Analysis

       Sufficiency of the Evidence

        Defendant argues that the evidence admitted at trial was insufficient for a rational
juror to have found Defendant guilty beyond a reasonable doubt of attempted second
degree murder because none of the videos entered into evidence depicted the shooting
and because “[i]t is not clear whether the gun discharged because the victim was reaching
for it, or whether [Defendant] intentionally pulled the trigger.” The State asserts that
“[Mr.] Campbell testified that he never touched [Defendant]’s gun and that [Defendant]
pulled the trigger[]” and that “the circumstances of the shooting indicated that
[Defendant] called out [Mr.] Campbell, followed him, and intended to kill him.”

       The standard for appellate review of a claim challenging the sufficiency of the
State’s evidence is “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Tenn. R.
App. P. 13(e); State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011). To obtain relief on a
claim of insufficient evidence, appellant must demonstrate that no reasonable trier of fact
could have found the essential elements of the offense beyond a reasonable doubt. See
Jackson, 443 U.S. at 319. This standard of review is identical whether the conviction is
predicated on direct or circumstantial evidence, or a combination of both. State v.
Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011).

        On appellate review, “‘we afford the prosecution the strongest legitimate view of
the evidence as well as all reasonable and legitimate inferences which may be drawn
therefrom.’” Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857
(Tenn. 2010)); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978). In a jury trial, questions involving the credibility of
witnesses and the weight and value to be given the evidence, as well as all factual
disputes raised by the evidence, are resolved by the jury as trier of fact. State v. Bland,
958 S.W.2d 651, 659 (Tenn. 1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).
This court presumes that the jury has afforded the State all reasonable inferences from the
evidence and resolved all conflicts in the testimony in favor of the State; as such, we will
not substitute our own inferences drawn from the evidence for those drawn by the jury,
nor will we re-weigh or re-evaluate the evidence. Dorantes, 331 S.W.3d at 379;
Cabbage, 571 S.W.2d at 835; see State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).
Because a jury conviction removes the presumption of innocence that appellant enjoyed
at trial and replaces it with one of guilt at the appellate level, the burden of proof shifts
from the State to the convicted appellant, who must demonstrate to this court that the

                                            -7-
evidence is insufficient to support the jury’s findings. Davis, 354 S.W.3d at 729 (citing
State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011)).

        Second degree murder is “[a] knowing killing of another[.]” Tenn. Code Ann. §
39-13-210(a)(1) (2015). “Second degree murder is a result of conduct offense and
accordingly, [t]he nature of the conduct that causes death or the manner in which one is
killed is inconsequential under the second degree murder statute.” State v. Brown, 311
S.W.3d 422, 431-32 (Tenn. 2010) (quoting State v. Ducker, 27 S.W.3d 889, 896 (Tenn.
2000)) (internal quotation marks omitted). Our code states that “[a] person acts
knowingly with respect to a result of the person’s conduct when the person is aware that
the conduct is reasonably certain to cause the result.” Tenn. Code Ann. § 39-11-302(b)
(2015). A defendant attempts to commit an offense when “acting with the kind of
culpability otherwise required for the offense[,]” they “[a]ct[] with intent to cause a result
that is an element of the offense, and believes the conduct will cause the result without
further conduct on the person’s part[.]” Tenn. Code Ann. § 39-12-101(a)(2) (2015).

       Whether the appellant “knowingly” attempted to kill his victim is a
       question of fact for the jury. Intent, which can seldom be proven by direct
       evidence, may be deduced or inferred by the trier of fact from the character
       of the assault, the nature of the act and from all the circumstances of the
       case in evidence.

State v. Inlow, 52 S.W.3d 101, 104-05 (Tenn. Crim. App. 2001) (citing State v. Holland,
860 S.W.2d 53, 59 (Tenn. Crim. App. 1993)).

       The evidence, when viewed in the light most favorable to the State, shows that,
after Mr. Campbell and Ms. Floyd left the Yellow Store, Defendant called to them and
approached them. Defendant pulled out his gun, and Mr. Campbell and Ms. Floyd began
walking backwards down the sidewalk. Defendant attempted to hit Ms. Floyd with a
glass bottle to get her to move away, and Ms. Floyd and Mr. Campbell fell. Mr.
Campbell stood up and reached for the gun, and Defendant shot Mr. Campbell. Our court
has consistently held that the “deliberate firing of shots at a person constitutes ‘knowing’
conduct for the purpose of establishing second degree murder.” State v. Tommy Dale
Adams, No. M2013-01080-CCA-R3-CD, 2014 WL 3565987, at *20 (Tenn. Crim. App.
July 21, 2014), perm. app. denied (Tenn. Dec. 17, 2014); see also State v. Dontavious
Hendrix, No. W2015-01671-CCA-R3-CD, 2016 WL 3922939, at *5 (Tenn. Crim. App.
July 15, 2016), perm. app. denied (Tenn. Nov. 22, 2016); State v. Montez Davis, No.
E2011-02055-CCA-R3-CD, 2012 WL 6213520, at *11 (Tenn. Crim. App. Dec. 13,
2012), perm. app. denied (Tenn. Apr. 10, 2013); State v. Chancy Jones, No.W2010-
02424-CCA-R3-CD, 2012 WL 1143583, at *10 (Tenn. Crim. App. Apr. 5, 2012), perm.
app denied (Tenn. Aug. 16, 2012); State v. Antonio Sellers, No. W2011-00971-CCA-
                                            -8-
R3CD, 2012 WL 1067213, at *7 (Tenn. Crim. App. Mar. 27, 2012); State v. Rickie Reed,
No. W2001-02076-CCA-R3-CD, 2002 WL 31443196, at *6 (Tenn. Crim. App. Oct. 31,
2002), perm. app. denied (Tenn. Mar. 17, 2003). The jury viewed all the evidence,
including the three surveillance videos, and clearly chose to credit the testimony of Mr.
Campbell above that of Defendant, as was its prerogative. “In the resolution of questions
of fact, such as those presented by evidence of alibi or the identity of the perpetrator, ‘the
jury bears the responsibility of evaluating the conflicting evidence and accrediting the
testimony of the most plausible witnesses.’” State v. Pope, 427 S.W.3d 363, 369 (Tenn.
2013) (quoting State v. Hornsby, 858 S.W.2d 892, 297 (Tenn. 1993)). We conclude that
there was sufficient evidence introduced at trial for a reasonable juror to have found
Defendant guilty of attempted second degree murder beyond a reasonable doubt.
Defendant is not entitled to relief on this issue.

       Admission of Evidence

              Past Fight

       Defendant contends that the trial court erred in admitting testimony regarding the
fact that Defendant and victim Campbell had a “fight” or “altercation” approximately a
year and a half before the offense because the evidence was more prejudicial than
probative. The State responds that the “fight” was only mentioned briefly during
Defendant’s cross-examination of victim Campbell and that the trial court “then
responded to that unexpected mention in a way that avoided highlighting the testimony—
as [Defendant] desired—and the testimony never came up again.”

       It is well-established precedent “that trial courts have broad discretion in
determining the admissibility of evidence, and their rulings will not be reversed absent an
abuse of that discretion.” State v. McLeod, 937 S.W.2d 867, 871 (Tenn. 1996). The
general rule is that evidence of a defendant’s prior conduct is inadmissible, especially
when previous crimes or acts are of the same character as the charged offense, because
such evidence is irrelevant and “invites the finder of fact to infer guilt from propensity.”
State v. Hallock, 875 S.W.2d 285, 290 (Tenn. Crim. App. 1993). Tennessee Rule of
Evidence 404(b) permits the admission of evidence of prior conduct if the evidence of
other acts is relevant to a litigated issue such as identity, intent, or rebuttal of accident or
mistake, and the probative value outweighs the danger of unfair prejudice. Tenn. R.
Evid. 404(b) Advisory Comm’n Cmts.; see State v. Parton, 694 S.W.2d 299, 303 (Tenn.
1985); State v. Hooten, 735 S.W.2d 823, 824 (Tenn. Crim. App. 1987). However,
“[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity with the character trait.” Tenn. R. Evid.
404(b). Before admitting evidence under Rule 404(b), the rule provides that (1) upon
request, the court must hold a hearing outside the jury’s presence; (2) the court must
                                             -9-
determine that the evidence is probative on a material issue and must, if requested, state
on the record the material issue and the reasons for admitting or excluding the evidence;
(3) the court must find proof of the other crime, wrong, or act to be clear and convincing;
and (4) the court must exclude the evidence if the danger of unfair prejudice outweighs
its probative value. Tenn. R. Evid. 404(b).

       The rationale underlying Rule 404(b)’s exclusion of evidence of a defendant’s
prior bad acts is that admission of such evidence carries with it the inherent risk of the
jury convicting the defendant of a crime based upon his bad character or propensity to
commit a crime, rather than the conviction resting upon the strength of the evidence.
State v. Rickman, 876 S.W.2d 824, 828 (Tenn. 1994). The risk is greater when the
defendant’s prior bad acts are similar to the crime for which the defendant is on trial. Id.;
see also State v. McCary, 922 S.W.2d 511, 514 (Tenn. 1996).

        During a jury-out hearing, Mr. Campbell explained that, prior to the offense date,
he and Defendant had “an altercation” at Mr. Campbell’s cousin’s house because
Defendant and another individual were attempting to steal money from Mr. Campbell.
He stated that he and Defendant “got to fighting[,]” but he had not had any contact with
Defendant between the altercation and the current offense. On cross-examination, Mr.
Campbell testified that the altercation with Defendant occurred approximately a year and
a half before the offense. He stated that he did not file a police report after his altercation
with Defendant. Mr. Campbell stated that, when he was hospitalized after the offense, he
remembered Defendant’s face as his attacker but could not remember Defendant’s name
until his cousin stated that it was Defendant who shot him.

        The trial court found that there was clear and convincing evidence that Mr.
Campbell and Defendant had a confrontation at Mr. Campbell’s cousin’s house. The trial
court found that this evidence was relevant to “the issue of identity in the sense that it
supports the fact that . . . [Mr. Campbell has] seen this person before[]” and to the issue
of Defendant’s motive. The trial court noted that Defendant’s indicted offense, attempted
first degree murder, was a specific intent crime, which weighed in favor of finding the
evidence more probative than prejudicial. The trial court also noted that the altercation
occurred eighteen months before the offense and that the altercation involved stealing
money, which weighed against the probative value of the evidence. The trial court then
stated the following:

                 I think the way I’m going to resolve this is[:] it’s kind of splitting the
       baby. I think the prejudicial [e]ffect outweighs the probative value as far as
       getting into any of the details of the alleged theft. If I recall his testimony it
       was an attempted theft. He never . . . got it out of his pocket. They had a
       little . . . altercation. Having an altercation is not necessarily a[] crime or a
                                             - 10 -
      bad act. I think what I'm going to do is split the baby in this, sterilize it
      somewhat. . . . [L]et him testify that a year and a half before they had an
      altercation at his cousin's house with this particular individual. But . . .
      unless y’all bring it out, I think I’m in agreement with [trial counsel] that . .
      . I don’t even want y’all getting into who started it because then we get into
      a bad act. If we just say they had an altercation at the cousin’s house a year
      and a half before, then I think that’s okay. So that’s how I’m going to
      resolve that.

The trial court also informed the State and trial counsel that they could lead Mr.
Campbell during his testimony to “avoid him volunteering something . . . .”

        During the cross-examination of Mr. Campbell, trial counsel asked Mr. Campbell
to look at the preliminary hearing transcript. In a discussion on whether trial counsel
could impeach Mr. Campbell’s testimony with the transcript, the trial court noted that the
State had not asked Mr. Campbell any questions about his altercation with Defendant and
that, if trial counsel asked about the altercation, “then they open the door.” After a
recess, the following exchange occurred:

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

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

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

            [MR. CAMPBELL]: After. You know, some -- somewhat. It
      wasn’t just talk to them. . . . I couldn’t just talk to nobody.

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

             [MR. CAMPBELL]: Not really. I can’t just say [be]cause I did talk
      to certain people that came to see me, but it wasn’t about this situation. It
      wasn’t about this. Only one time it was and that’s when, you know – I’ll
      just wait you ask me that question.

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

             [MR. CAMPBELL]: You can say yes.

                                           - 11 -
      [TRIAL COUNSEL]: And they showed you pictures?

        [MR. CAMPBELL]: My family wasn’t . . . the first ones to show
me pictures. I seen [sic] pictures before. My cousin who [sic] house we
got to fighting at before -- before she came. But before she came –

      ....

      [TRIAL COUNSEL]: He just said it.

      [TRIAL] COURT: What?

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

      [TRIAL] COURT: I heard that one word, but I’m not sure -- it was
so muttered I’m not sure what -- what do you want me to do?

       [TRIAL COUNSEL]: Can you make an instruction on that? I mean,
I don’t want to bring attention to it but it has -- a bell has been rung.

      [ASSOCIATE TRIAL COUNSEL]: He actually said exactly what
we were trying to prevent.

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

        [TRIAL] COURT: So what do y’all want me to do? [A]nything I
say is going to highlight it.

        [ASSOCIATE TRIAL COUNSEL]: Of course it is. I don’t know
[if] there’s pretty much anything you can do.

       [TRIAL] COURT: I mean I ruled it was admissible and that [the
State] could have got into it but she didn’t choose to and now he’s
volunteering it, unresponsively. So I don’t know what y’all -- I mean I
don’t know what to –

      ....

      [TRIAL] COURT: It was so muttered I don’t know.             I’ll do
whatever you want me to do.
                                 - 12 -
               [ASSOCIATE TRIAL COUNSEL]: Well, we don’t want him to say
       it again.

              ....

               [TRIAL] COURT: Well, he hasn’t done anything inadmissible. It’s
       just that we hadn’t got there and it would be nice not to go there.

              [ASSOCIATE TRIAL COUNSEL]: Right.

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

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

             [TRIAL] COURT: Unresponsive to the question. That will explain
       why y’all are up here.

       Here, the trial court complied with the requirements of Tennessee Rule of
Evidence 404(b) by holding a jury-out hearing, by determining that a material issue
existed regarding the identity and motive of Defendant, by finding that proof of
Defendant’s altercation was clear and convincing, and by limiting the admission of the
evidence due to prejudice. The trial court ruled that Mr. Campbell could testify that he
had an altercation with Defendant approximately a year and one-half prior to the
offenses, but the trial court specifically ruled that Mr. Campbell could not discuss the
underlying details of the altercation because the prejudice of that evidence would
outweigh the probative value.

        We conclude that the trial court did not err. We note that Mr. Campbell
mentioned general details of the altercation (there was “fighting”) in testimony that was
unresponsive to trial counsel’s question on cross-examination; when this occurred, the
trial court instructed the witness to stop giving unresponsive answers. It is also clear that
the underlying facts of the altercation, that Defendant was allegedly attempting to steal
money from Mr. Campbell, were not mentioned at trial. Trial counsel’s proposed remedy
to “let it go” was the course taken by the trial court. Defendant is not entitled to relief on
this issue.

              Third Surveillance Video

       Defendant additionally argues that the trial court erred in admitting the third
surveillance video because it was not properly authenticated by the State. More
                                            - 13 -
specifically, Defendant notes that the State admitted the video through the testimony of
Mr. Campbell, who did not record the video and was not depicted in the video. The State
contends that the trial court did not abuse its discretion in admitting the video because
“[Mr.] Campbell’s testimony was adequate to show that the video was what the State
purported it to be: a video of [Defendant] standing outside Mike’s Store on June 14,
2015, before the shooting.”

        Tennessee Rule of Evidence 901 states that “[t]he requirement of authentication or
identification as a condition precedent to admissibility is satisfied by evidence sufficient
to the court to support a finding by the trier of fact that the matter in question is what its
proponent claims.” Tenn. R. Evid. 901(a). Evidence may be authenticated by a witness’s
testimony that “a matter is what it is claimed to be[]” or by “[c]omparison by trier of fact
or by expert witnesses with specimens which have been authenticated.” Tenn. R. Evid.
901(b)(1),(3).

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

              [TRIAL COUNSEL]: Your Honor, he cannot properly authenticate
       this video. I mean, his back was turned. You can’t even see what’s
       happening in this video. This happened way down at the other [end]. And
       when he came out the store whatever is going on, he can’t see it. He’s not
       even in this video. He can’t properly authenticate it. It’s not a matter
       within his knowledge.

              ....

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

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

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

              ....

              [MR. CAMPBELL]: To the left of the Yellow Store. If you trying
       to enter the Yellow Store or coming out the Yellow Store?

              [THE STATE]: Going in?
                                            - 14 -
      [MR. CAMPBELL]: It’s to the right.

      ....

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

      [THE STATE]: Is that when you were out of the store you heard
hey, Larry?

      [MR. CAMPBELL]: Yes, ma’am.

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

      [MR. CAMPBELL]: Yes, ma’am.

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

      [MR. CAMPBELL]: Yes, ma’am.

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

      [MR. CAMPBELL]: Yes, ma’am.

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

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

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

      [MR. CAMPBELL]: Yes, ma’am.

      [TRIAL] COURT: Of course the obvious question is how does he
know it’s the same night he was shot?

      ....

      [MR. CAMPBELL]: Sir, you can see he called me that night. Like,
when I was coming out of the store I was called. And that’s the same thing
                                  - 15 -
      he had on that night. . . . [T]hat [was] my first time seeing him over in the
      neighborhood before that.

               ....

             [TRIAL COUNSEL]: [I]n your previous testimony you testified that
      you were down the street when you heard your name called the first time; is
      that correct?

               [MR. CAMPBELL]: Yes, ma’am.

             [TRIAL COUNSEL]: And I believe it was your testimony that you
      didn’t know who it was because they were too far away?

               [MR. CAMPBELL]: Yes, ma’am.

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

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

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

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

               ....

             [TRIAL] COURT: All right. Well, I think I’m going to allow it into
      evidence under . . . 901(B)3. I think he has some knowledge of it, but
      you’re right. He doesn’t have complete knowledge of it. But he has some
      knowledge under (B)l, testimony of a witness with knowledge. But
      primarily I’m letting it in under Subparagraph 3. Comparison by trier of
      fact with specimens which have already been authenticated. I think when
      you look at the other exhibit that I looked at, I think the jury can compare
      that with that and make a decision about it.

The trial court noted that two other surveillance videos had been authenticated and
admitted into evidence. The trial court admitted the third surveillance video under
Tennessee Rule of Evidence 901(b)(3) “to let the jury compare that with this which looks
like it just shows a different angle from a far[-]away place.”
                                         - 16 -
       Here, Mr. Campbell had sufficient personal knowledge of the individual depicted
on the third surveillance video. He identified Defendant based on the clothing that
Defendant wore on the video, and he also identified the location and timing of the video
based on his recollection of the offense. Mr. Campbell was able to pinpoint the moment
on the video that Defendant first called to Mr. Campbell to get his attention. We
conclude that the trial court did not abuse its discretion by admitting the third surveillance
video under Tennessee Rule of Evidence 901(b)(1). See State v. Williams, 913 S.W.2d
462, 465 (Tenn. 1996) (concluding that photographs from surveillance video were
properly admitted through the victim, who testified that the photographs accurately
depicted the scene); see also State v. Jeffrey Scott Long, No. E2015-01287-CCA-R3-CD,
2017 WL 2958700, at *20 (Tenn. Crim. App. July 11, 2017) (concluding that
surveillance video was admissible under Tennessee Rule of Evidence 901(b)(1) through
the testimony of the building maintenance worker because the witness observed the
defendant at the apartment complex on the night of the offense and testified that the video
was an accurate depiction), no perm. app. filed.

       Regarding the admission of the video under Tennessee Rule of Evidence
901(b)(3), we conclude that the trial court incorrectly relied on this provision. It appears
to the court that case law in Tennessee limits the admission of evidence under this
provision to “exemplars and questioned documents.” Tenn. R. Evid. 901(b)(3), Advisory
Comm’n Cmts. Previous opinions from the intermediate appellate courts in Tennessee
have only admitted evidence of an individual’s handwriting or signature under this
provision, see, e.g., Payne v. Tipton County, 448 S.W.3d 891, 901-02 (Tenn. Ct. App.
Mar. 31, 2014); James A. Long, et al., v. Charles D. Ledford, et al., No. E2016-00451-
COA-R3-CV, 2016 WL 5851875, at *3 (Tenn. Ct. App. Sept. 30, 2016), perm. app.
denied (Tenn. Jan. 19, 2017); State v. Gregory D. Roberts, No. W2010-01538-CCA-R3-
CD, 2011 WL 1220097, at *3 (Tenn. Crim. App. Mar. 30, 2011), no perm. app. filed;
State v. William S. Dedmon, No. 01C01-9506-CC-00209, 1996 WL 518274, at *4 (Tenn.
Crim. App. Sept. 13, 1996), so this provision is inapplicable to the current case. In any
event, any error in admitting the video under this provision is harmless because Mr.
Campbell had sufficient knowledge and gave adequate testimony to admit the video
under Rule 901(b)(1). Defendant is not entitled to relief on this ground.

       Consecutive Sentencing

       Defendant argues that the trial court erred in ordering that Defendant’s aggravated
assault sentence run consecutively to his attempted second degree murder sentence
because the trial court did not base its decision on testimony or evidence introduced at
trial and because “there were no aggravating circumstances to justify consecutive
sentencing.” The State responds that the trial court did not abuse its discretion because
                                            - 17 -
“the trial court had three separate grounds for consecutive sentencing, and it articulated a
reasoned basis for why each of those grounds applied here.”


       A trial court’s sentencing decisions are generally reviewed for abuse of discretion,
with a presumption of reasonableness granted to within-range sentences that reflect a
proper application of the purposes and principles of sentencing. State v. Bise, 380
S.W.3d 682, 707 (Tenn. 2012). Likewise, the “standard of appellate review for
consecutive sentencing is abuse of discretion accompanied by a presumption of
reasonableness.” State v. Pollard, 432 S.W.3d 851, 859 (Tenn. 2013). The presumption
of reasonableness applies only when the trial court has provided reasons on the record
establishing at least one of the seven statutory bases for imposing consecutive sentences
delineated in Tennessee Code Annotated section 40-35-115(b). Id. at 861.

        Tennessee Code Annotated section 40-35-115(b) allows a court to impose
consecutive sentences when “[t]he defendant is a dangerous offender whose behavior
indicates little or no regard for human life and no hesitation about committing a crime in
which the risk to human life is high.” T.C.A. § 40-35-115(b)(4). When the trial court
bases its decision to run sentences consecutively on the dangerous offender category in
Tennessee Code Annotated section 40-35-115(b)(4), it must make additional findings as
set out in State v. Wilkerson: that the aggregate sentence is “‘reasonably related to the
severity of the offenses’” and “‘necessary in order to protect the public from further
criminal acts.’” Pollard, 432 S.W.3d at 863 (quoting State v. Wilkerson, 905 S.W.2d
933, 938 (Tenn. 1995)). If the trial court fails to make the requisite findings, the
appellate court may either conduct a de novo review to determine whether there is an
adequate basis for the imposition of consecutive sentences or remand to the trial court so
that it may consider the appropriate factors and make the proper findings. Id. at 864.

       Here, the trial court found that Defendant was a dangerous offender whose
behavior indicated little or no regard for human life and who showed no hesitation about
committing a crime to which the risk to human life is high and that there were
aggravating circumstances based on Mr. Campbell’s injuries. The trial court found that
consecutive sentencing was necessary to protect society and that “the aggregate length of
the sentences reasonably relate[d] to the offense for which the [D]efendant [was]
convicted.” The trial court also found that Defendant had an extensive criminal history,
that he had not successfully completed past alternative sentences, and that he committed
the current offenses while on probation.

      Because the trial court set out its findings and conclusions regarding its order of
consecutive sentencing on the record, we will afford its conclusion a presumption of
reasonableness, and we will not reverse absent an abuse of discretion. We agree with the
                                           - 18 -
State that the trial court did not abuse its discretion by ordering Defendant to serve
consecutive sentences. The trial court ordered consecutive sentencing based on several
factors from Tennessee Code Annotated section 40-35-115, all of which were supported
by evidence in the record. Defendant is not entitled to relief on this ground.

                                   CONCLUSION

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


                                    __________________________________________
                                    THOMAS T. WOODALL, PRESIDING JUDGE




                                         - 19 -
