                                                                                          04/30/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs December 4, 2018

                  STATE OF TENNESSEE v. MARIO MYERS

                 Appeal from the Criminal Court for Shelby County
                   No. 15-03159 James M. Lammey, Jr., Judge


                            No. W2017-01917-CCA-R3-CD


The Defendant, Mario Myers, was convicted by a Shelby County Criminal Court jury of
attempted first degree murder, a Class A felony; aggravated assault, a Class C felony;
reckless endangerment with a deadly weapon, a Class E felony; and intentionally evading
arrest in a motor vehicle and creating a risk of death or injury to innocent bystanders or
other third parties, a Class D felony. See T.C.A. §§ 39-12-101 (2018) (criminal attempt),
39-13-202 (2018) (version effective prior to January 1, 2019) (first degree murder), 39-
13-102 (aggravated assault) (Supp. 2012) (amended 2013, 2015, 2018), 39-13-103 (Supp.
2012) (amended 2013) (reckless endangerment with a deadly weapon), 39-16-603(b)(1),
(b)(3) (2010) (amended 2016) (intentionally evading arrest in a motor vehicle and
creating a risk of death or injury to innocent bystanders or other third parties). The trial
court sentenced the Defendant, a Range I offender, to twenty-five years for attempted
first degree murder, six years for aggravated assault, two years for reckless endangerment
with a deadly weapon, and four years for intentionally evading arrest in a motor vehicle
and creating a risk of death or injury to innocent bystanders or other third parties. The
court ordered that the sentences for attempted first degree murder and aggravated assault
were to be served consecutively, for an effective thirty-one-year sentence. On appeal, the
Defendant contends that (1) the evidence is insufficient to support his convictions, (2) he
was incompetent at the time of the trial and has been denied due process because a
competency evaluation was never performed, and (3) the trial court erred in excluding
him from the courtroom during the sentencing hearing. We affirm the judgments of the
trial court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which ROBERT
W. WEDEMEYER and ROBERT L. HOLLOWAY, JR., JJ., joined.

Jason M. Matthews (on appeal) and Dewun Settle (at trial), Memphis, Tennessee, for the
Appellant, Mario Myers.
Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant
Attorney General; Amy P. Weirich, District Attorney General; Meghan Fowler and
Marianne Bell, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                        OPINION

       The Defendant’s convictions relate to an altercation with his then-estranged wife,
Shoneisha Myers, and her boyfriend, Antoine Davis. The Defendant shot Mr. Davis, fled
the scene with the Defendant’s children, and was involved in a police chase. The
Defendant and Ms. Myers were divorced at the time of the trial.

       At the trial, Eddie Heaston, records custodian of the Memphis Police Department
9-1-1 Communications Department, identified a CD containing a recording of 9-1-1 calls
and a document memorializing emergency response events and actions related to the
calls. The recording and the document were received as exhibits.

       Shoneisha Myers, the Defendant’s ex-wife at the time of the trial, testified that she
and the Defendant were in the process of divorcing and were living separately on October
14, 2012. She said that the Defendant came to her house on October 14 and that they
had a verbal disagreement about their son. She said she was “sure it probably was loud.”
She said her boyfriend, Antoine Davis, came outside and interjected himself into the
disagreement. She said the Defendant produced a gun, “was talking about a code” and
“something about three feet,” and fired two shots at Mr. Davis. She said that Mr. Davis
was turning toward the house when the Defendant pulled out the gun and that Mr. Davis
was shot in the back. She said that after he was shot, Mr. Davis ran and hid behind her
car. She said that her knees buckled and she fell when the shots were fired. She said that
she got up and lunged at the Defendant after he shot Mr. Davis and that the Defendant
swung at her and hit her face, dropped his cell phone, grabbed her daughter, and sped
away with her children. She said she called 9-1-1. She said that she was concerned
about Mr. Davis but could see that he was not in imminent danger of dying and that her
main concern was for the safety of her children.

       Ms. Myers identified her voice in the recording previously introduced during Mr.
Heaston’s testimony. She was unsure whether the call was disconnected and said she did
not recall whether she called again or a 9-1-1 operator called her back. Recordings of
three calls were played for the jury. In the first call, Ms. Myers requested an ambulance
and reported that a man had been shot. She stated that her estranged husband came to
pick up her children. She said that she told him to “keep his hands off” the children, that
her boyfriend came outside, that her boyfriend confronted the Defendant and told the
Defendant “he thought [the Defendant] was weak and all that kind of stuff.” She said the
Defendant pulled a gun and shot Mr. Davis, waved the gun at her, and left in a black

                                            -2-
Maxima with her children. In the second call, a man who identified himself as Willie
Parham stated that the Defendant, whom he identified by name, shot a man and left in a
black Maxima. Mr. Parham stated that he was a neighbor and had seen the shooting from
inside his house. Ms. Myers then spoke to the 9-1-1 operator, stating that the Defendant
had dropped a cell phone in her yard. She provided locations where the Defendant might
go and stated he had three minor children, including her two, with him. She stated that
her son had a mark on his chest and that the child told her “his dad” caused the mark.
She said she told the Defendant to keep his hands off her son. She said her boyfriend
came outside and told the Defendant he was “less than a man.” She said the Defendant
stated, “I know the code,” and something that is unintelligible on the recording. She said
the Defendant hit her face and dropped his cell phone. In the third call, the 9-1-1
operator questioned Ms. Myers about her name, the Defendant’s name, the names and
ages of her children, identifying information about the Defendant’s car, whether the
Defendant took the gun when he left the scene, whether the Defendant had any
psychiatric diagnoses, and the Defendant’s address.

        Ms. Myers testified that her lip was swollen and “kind of busted up” after the
Defendant hit her. She identified photographs of her injuries, and the photographs were
received as exhibits. She identified photographs of her home, which were received as
exhibits. Referring to one of the photographs, she identified where Mr. Davis had stood
on her porch and said she had been “lower down at the steps” with Mr. Davis behind her.
She said Mr. Davis was “not very far” behind her. She said Mr. Davis did not go into the
yard where the Defendant stood until after Mr. Davis had been shot. She said that after
he was shot, Mr. Davis jumped from the porch and went behind her van. She said that
after the Defendant fired the shots, she stepped off the porch step and that the Defendant
hit her. She said she did not move from the steps until after the shooting. She said her
daughter had been “somewhere in the yard” when the events occurred. She identified a
photograph of a car that she said looked like the car the Defendant drove from the scene.

        Ms. Myers testified that she and the Defendant had been separated for about two
years on October 14, 2012. She agreed that the Defendant came to her home for his
visitation with their children, but she said she had asked him not to come to her house
because she wanted to take the children to him. She said several neighborhood children
had been outside playing with her children. She said the children came inside and told
her the Defendant was outside, which surprised her. She said the Defendant brought a
male child with him who was a friend of their son’s and agreed that by the time of the
shooting, their son and his friend were in the Defendant’s car.

       Ms. Myers acknowledged that she was upset the Defendant had come to her house
against her wishes but was more upset about his hitting their son. She said the Defendant
did not like what she said but did not know “what his temperament was.” She said that
before the day of the shooting, the Defendant and Mr. Davis did not have a relationship

                                           -3-
and were “[p]retty neutral” toward each other. She said their contact occurred when the
Defendant came to pick up the children.

       Ms. Myers testified that she did not see the Defendant “go after” Mr. Davis after
the shots were fired. She said the Defendant grabbed her, “yelled for her to come back,”
and “basically like forc[ed] her to the car.”

       Antoine Davis testified that he dated Ms. Myers from approximately 2009 until
2014 and that they were dating in October 2012. He said that on October 14, 2012, he
was at the home he shared with Ms. Myers and her two children. He said that Ms. Myers
had told the Defendant not to come to pick up the children and that she would bring the
children to the Defendant. Mr. Davis said the Defendant arrived despite the conversation
with Ms. Myers.

       Mr. Davis testified that after the Defendant arrived, Mr. Davis saw the Defendant
and Ms. Myers arguing outside. Mr. Davis said that he went outside to see if everything
was okay and that he told the Defendant not to come to the house without notifying Ms.
Myers. Mr. Davis said he asked the Defendant “why [the Defendant] was telling his son
that me and his mother was like having sex with him – with the child.” Mr. Davis said
that during the argument, Ms. Myers was on the stairs and the Defendant was in the yard.
Mr. Davis said that Ms. Myers had told him that the Defendant carried a pistol.

        Mr. Davis testified that after he asked the question about what the Defendant
allegedly said to the son, the Defendant pulled out a gun and said, “I know the three-foot
rule where I’ll, you know, blow your chest out.” Mr. Davis said he interpreted this as a
threat that the Defendant was going to shoot him. Mr. Davis said that he turned to go into
the house and that he was shot in the back. Mr. Davis said he had been unarmed. Mr.
Davis said that after he had been shot, he jumped off the porch and went around to the
back of the house.

       Mr. Davis testified that he was shot once. He said the bullet entered his back,
ricocheted, and came out his arm. He said he thought the Defendant had tried to kill him
and that he had feared for his life.

       Mr. Davis testified that Ms. Myers’s face had not been injured before she went
outside and argued with the Defendant. Mr. Davis said that after he returned from
jumping from the porch and going behind the house, Ms. Myers “had like a scar on her
face” that she stated had been caused when the Defendant “punched her in the face.”

      Mr. Davis testified that when the police arrived, he identified the Defendant as the
person who shot him. Mr. Davis identified photographs of his gunshot wounds, and the
photographs were received as exhibits. Mr. Davis said the healing process took three to

                                           -4-
four months and that he had scars on his back and arm. He said he did not have to stay
overnight in the hospital. He said that the Defendant was the only person who had a
weapon that day and that the Defendant had not produced a weapon until Mr. Davis went
outside. Mr. Davis said that neither he nor Ms. Myers made a move to come off the steps
before the shooting.

       Mr. Davis testified that before the day of the shooting, he and the Defendant had
engaged in several conversations. He later said they talked about three times a year. He
described the conversations as friendly and recalled that they had discussed Mr. Davis’s
“side job” selling laundry detergent. Mr. Davis said he and the Defendant had never had
a physical altercation until the day of the shooting.

       Mr. Davis testified that during the altercation, a female child was playing across
the street and a male child was in a car with a friend. Mr. Davis said that other
neighborhood children were outside across the street and that other adults were in the
vicinity. He said that a neighbor, Mr. Parham, attempted to help him after he had been
shot.

       Mr. Davis testified that he viewed a photograph lineup that day or the following
day and that he identified the Defendant as the person who shot him. The photograph
lineup was received as an exhibit.

        Willie Parham testified that he heard a gunshot while sitting in his front yard on
October 14, 2012. He said a man ran out of a house with another man running behind the
man. Mr. Parham agreed that both men had come outside the house. Mr. Parham said,
“The first man ran behind the house, and he shot again, and the other one came back
around the front.” Mr. Parham later said that the first man who ran from the house and
ran behind the house did not have a gun and that the second person ran out of the house
with a gun and shot the first man. Mr. Parham said the shooter stopped at the corner of
the house and shot at the first man. Mr. Parham said the shooter “came back out front
and said something to the girl and got in” a black Maxima. Mr. Parham said he heard
voices when he heard the gunshots but did not recall what was said. He acknowledged
that if he had told a police officer in October 2012 that he heard a male shout, “I’m gonna
kill that m----- f-----,” this was what he had heard. Mr. Parham said he held a cold cloth
to Mr. Davis’s wound and that he called 9-1-1. He identified his voice in one of the 9-1-1
calls from the recording previously received as an exhibit. He said his voice was not the
male voice that identified the Defendant by name as the shooter.

       MPD Officer Muchon Swayze testified that he responded to the scene of a
shooting on October 14, 2012. He said he photographed a bleeding male victim. Officer
Swayze said “the wife” advised him that the shooter left the scene in a car with children


                                           -5-
and that he communicated this information along with a description of the car and the
suspect to others in the police department.

        Memphis Fire Department Paramedic Joshua Malone testified that he responded to
the scene and attended to Mr. Davis. Mr. Malone said Mr. Davis had gunshot injuries to
the left arm and to the back between the left shoulder blade and the spinal column. He
said the left lung was in the vicinity of the back wound.

        MPD Sergeant John Morris testified that he was on patrol duty on October 14,
2012. He said that he heard a radio broadcast about a black Nissan Maxima and that he
recalled having seen a car matching the description at an intersection. He said that he
looked where he had seen the car but that it was no longer there, even though the traffic
light was still red. He said he went in the direction he thought the car would have
traveled and found it. He saw three children in the backseat and an Arkansas temporary
license tag, and he confirmed by radio communication that this matched the description
of the car driven by the suspect. He said he followed the car and eventually turned on his
car’s blue lights and siren, but the driver did not stop the car. He said that the car
continued traveling on the interstate toward downtown Memphis and that he followed it
with his car’s blue lights and siren still activated. He said two other patrol cars with
activated lights and sirens followed him. He estimated that he followed the Maxima for
ten to fifteen minutes before it entered the interstate. Sergeant Morris said the Maxima
left the interstate and drove on downtown Memphis streets for five to ten minutes until it
was forced to stop by other traffic. Sergeant Morris said that “several” police cars were
involved in following the Maxima. He estimated the total time he followed the Maxima
as twenty-five to thirty minutes.

       Sergeant Morris testified that after the Maxima stopped, he and other officers
approached it and ordered the driver to get out. Sergeant Morris said that the driver
“didn’t immediately comply” and that the officers removed the driver from the Maxima,
placed him on the ground, and handcuffed him. He identified the Defendant as the
Maxima’s driver. Sergeant Morris said the Defendant stated that “he was on his way to
201 Poplar to turn himself in.”

       Sergeant Morris testified that three children were in the backseat and a handgun
was between the driver’s seat and center console of the Maxima. He said he and other
officers secured the scene until crime scene investigators could arrive.

      MPD Officer Timmy Mitchell testified that on October 14, 2012, he joined an in-
progress police pursuit of a shooting suspect in a Nissan Maxima. He said that he was
with his partner, Officer Greg Robinson, and that officers in other vehicles were also
involved in the pursuit. Officer Mitchell said that his car’s blue lights and siren were on
and that he followed the suspect for a while, traveling from Airways Boulevard to

                                            -6-
downtown Memphis. He said that the blue lights and sirens on all police cars were
activated during the pursuit. He said he and Officer Robinson addressed the Defendant
on a “PA system” in an effort to get the Defendant to stop.

       Officer Mitchell testified that the driver did not stop the Maxima until the car was
“kind of barricaded” by other vehicles. Officer Mitchell said he, Officer Robinson,
Sergeant Morris, and another officer, whose identity he did not remember, removed the
driver from the Maxima. Officer Mitchell identified the Defendant as the Maxima’s
driver. Officer Mitchell said he saw a handgun in the Maxima between the driver’s seat
and the center console. Officer Mitchell said he talked to the Defendant, whom he knew,
and the Defendant stated that the children were his and that “the guy” should not have
involved himself in the Defendant’s relationship with the Defendant’s wife and children.

       MPD Lieutenant Byron Braxton testified that he responded to the scene where the
Defendant had been apprehended. He said he observed a handgun “sticking up in the
center console” of the vehicle that had been driven by the Defendant. Lieutenant Braxton
said he spoke to Mr. Parham and Ms. Myers.

       MPD Officer J.R. Rector, a crime scene investigator, testified that on October 14,
2012, he photographed and collected evidence from a black Nissan Maxima. He said he
collected a Smith and Wesson nine-millimeter semi-automatic handgun, two MP3
players, and approximately $2000. He identified photographs he took of the evidence,
which were received as exhibits. Referring to a photograph depicting the gun, he said the
gun was partially jammed, with the slide “partially rearward” and a live nine-millimeter
bullet exposed. He said the partial jam would interfere with firing the gun. He said a
photograph depicted the rear passenger-side seat from which he recovered the money.

       Officer Rector identified a Smith and Wesson handgun as the one he collected
from the Maxima, and the gun was received as an exhibit. He said he had removed the
magazine and the partially chambered bullet in order to make the gun safe. He said that
the magazine had a capacity of fifteen bullets, that it contained eleven live rounds, and
that after taking into account the partially jammed bullet in the chamber, three bullets
were unaccounted for from the magazine.

        The defense did not offer proof. After receiving the evidence, the jury found the
Defendant guilty of attempted first degree murder of Mr. Davis, aggravated assault of Mr.
Davis, reckless endangerment with a deadly weapon of Ms. Myers, and intentionally
evading arrest in a motor vehicle and creating a risk of death or injury to innocent third
parties or other bystanders. The jury acquitted the Defendant of the domestic assault
charge. Following the sentencing hearing, at which the trial court imposed an effective
thirty-one-year sentence, the Defendant filed the present appeal.


                                            -7-
                                             I

                               Sufficiency of the Evidence

        The Defendant contends that the evidence is insufficient to support his
convictions. The State contends that the Defendant has waived consideration of this issue
by providing an inadequate legal argument but that, in any event, the evidence is
sufficient to support the convictions. We conclude that the evidence is sufficient to
support the Defendant’s convictions.

        As a preliminary matter, the State argues that the Defendant has waived
consideration of this issue because his brief does not contain a legal argument to support
it. In his brief, the Defendant has recited the legal standard for review of the sufficiency
of the evidence and the definitions of the crimes of which he was convicted. He then
summarily contends that “the proof is insufficient to support” his convictions. With
regard to his argument relative to the attempted first degree murder conviction, he
contends that “no reasonable juror could have concluded that the Defendant was one of
the shooters during the carwash shooting,” an argument that does not correspond with the
facts of the present case. He argues relative to the attempted first degree murder and
aggravated assault convictions that “the evidence presented is mere testimony by
witnesses who had motivation to lie” but does not identify which witnesses’ testimony he
challenges, which portions of those witnesses’ testimony he contends is false, and what
evidence shows that the witnesses testified untruthfully. With regard to the reckless
endangerment conviction, he simply states that no reasonable juror could conclude he
committed the offense. His argument regarding the evading arrest conviction states that
“no reasonable juror could have concluded that only Mr. Myers evading arrest [sic].”

       The Rules of Appellate Procedure require that a party’s brief contain an argument
which sets forth “the contentions of the appellant with respect to the issues presented, and
the reasons therefor, including the reasons why the contentions require appellate relief,
with citations to the authorities and appropriate references to the record[.]” T.R.A.P.
27(7)(A). This court’s rules provide for waiver of issues which are unsupported by
argument. See Tenn. Ct. Crim. App. R. 10(b) (Issues unsupported by argument are
waived.). Although it is within our authority to treat the Defendant’s sufficiency of the
evidence issue as waived, we will, in the interests of justice, address the issue on the
merits. We caution counsel, however, that compliance with the Rules of Appellate
Procedure is expected.

        In determining the sufficiency of the evidence, the standard of review 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 State v. Vasques, 221 S.W.3d 514,

                                            -8-
521 (Tenn. 2007). The State is “afforded the strongest legitimate view of the evidence
and all reasonable inferences” from that evidence. Vasques, 221 S.W.3d at 521. The
appellate courts do not “reweigh or reevaluate the evidence,” and questions regarding
“the credibility of witnesses [and] the weight and value to be given the evidence . . . are
resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); see State
v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).

       “A crime may be established by direct evidence, circumstantial evidence, or a
combination of the two.” State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998); see State v.
Sutton, 166 S.W.3d 686, 691 (Tenn. 2005). “The standard of review ‘is the same whether
the conviction is based upon direct or circumstantial evidence.’“ State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)).

A.     Attempted First Degree Murder

       Relevant to this case, first degree murder is the unlawful, intentional, and
premeditated killing of another. T.C.A. § 39-13-202(a)(1) (2018) (version effective prior
to January 1, 2019). In the context of first degree murder, intent is shown if the
defendant has the conscious objective or desire to cause the victim’s death. State v. Page,
81 S.W.3d 781, 790-91 (Tenn. Crim. App. 2002); T.C.A. § 39-11-106(a)(18) (2018)
(defining intentional as the “conscious objective or desire to engage in the conduct or
cause the result”). A premeditated act is one which is

       done after the exercise of reflection and judgment. “Premeditation” means
       that the intent to kill must have been formed prior to the act itself. It is not
       necessary that the purpose to kill preexist in the mind of the accused for any
       definite period of time. The mental state of the accused at the time the
       accused allegedly decided to kill must be carefully considered in order to
       determine whether the accused was sufficiently free from excitement and
       passion as to be capable of premeditation.

Id. § 39-13-202(d). The question of whether a defendant acted with premeditation is a
question of fact for the jury to be determined from all of the circumstances surrounding
the killing. State v. Davidson, 121 S.W.3d 600, 614 (Tenn. 2003). Proof of
premeditation may be shown by direct or circumstantial evidence. State v. Brown, 836
S.W.2d 530, 541 (Tenn. 1992). As a result, the jury “may infer premeditation from the
manner and circumstances of the killing.” State v. Jackson, 173 S.W.3d 401, 408 (Tenn.
2005); see State v. Vaughn, 279 S.W.3d 584, 595 (Tenn. Crim. App. 2008). Factors from
which a jury may infer premeditation include:



                                             -9-
       [D]eclarations by the defendant of an intent to kill, evidence of
       procurement of a weapon, the use of a deadly weapon upon an unarmed
       victim, the particular cruelty of the killing, infliction of multiple wounds,
       preparation before the killing for concealment of the crime, destruction or
       secretion of evidence of the murder, and calmness immediately after the
       killing.

State v. Nichols, 24 S.W.3d 297, 302 (Tenn. 2000).

      A defendant commits criminal attempt when he acts “with the kind of culpability
otherwise required for the offense . . . [and] [a]cts 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[.]” T.C.A. § 39-12-101(a)(2) (2018).

        Viewed in the light most favorable to the State, the evidence shows that the
Defendant was involved in a verbal altercation with Ms. Myers and that Mr. Davis
intervened. The Defendant produced a gun and told Mr. Davis he would “blow [his]
chest out.” Mr. Davis interpreted the Defendant’s statement as a threat and turned to
leave. The Defendant fired two shots at Mr. Davis, one of which struck Mr. Davis in the
back. Mr. Davis was unarmed. This evidence shows that the Defendant engaged in
conduct that could cause Mr. Davis’s death and that the Defendant intended to kill Mr.
Davis. The Defendant produced the gun, announced his intent to shoot Mr. Davis before
firing twice at Mr. Davis. The Defendant engaged in this conduct even though Mr. Davis
was unarmed and was attempting to remove himself from the disagreement.

       To the extent that the Defendant contends that the witnesses who testified about
the incident were biased and had a motivation to lie, we note that questions of witness
credibility and the weight to be afforded the evidence are within the exclusive province of
the jury as the trier of fact. As such, we decline this invitation to reweigh the evidence.
See Bland, 958 S.W.2d at 659; Sheffield, 676 S.W.2d at 547.

       The evidence is sufficient to support the attempted first degree murder conviction.

B.     Aggravated Assault

       The Defendant’s aggravated assault conviction relates to his conduct toward Mr.
Davis. Assault is defined, in relevant part, as “[i]ntentionally or knowingly caus[ing]
another to reasonably fear imminent bodily injury[.]” T.C.A. § 39-13-101(a)(2) (2010)
(amended 2013, 2016, 2018). A defendant commits aggravated assault when he
“[i]ntentionally or knowingly commits an assault . . . and . . . [u]ses or displays a deadly
weapon[.]” Id. § 39-13-102(a)(1)(A)(iii) (Supp. 2012) (amended 2013, 2015, 2018).


                                            -10-
      “Knowing” means that a person acts knowingly with respect to the conduct
      or to circumstances surrounding the conduct when the person is aware of
      the nature of the conduct or that the circumstances exist. 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[.]

Id. § 39-11-16(a)(20).

        Viewed in the light most favorable to the State, the evidence shows that, during
the argument, the Defendant produced a gun and said he knew “the code” and would
“blow [Mr. Davis’s] chest out.” This conduct was sufficient to cause a reasonable person
to fear imminent bodily injury, and the evidence supports a conclusion that the Defendant
engaged in the conduct in order to threaten or intimidate Mr. Davis. With regard to the
Defendant’s argument that unspecified witnesses had a motivation to testify falsely, we
decline to reweigh the evidence and conclude that it is sufficient to support the
aggravated assault conviction.

C.    Reckless Endangerment

      The Defendant’s reckless endangerment conviction relates to his conduct toward
Ms. Myers. “A person commits an offense who recklessly engages in conduct that places
or may place another person in imminent danger of death or serious bodily injury.”
T.C.A. § 39-13-103(a) (Supp. 2012) (amended 2013). If the offense is committed with a
deadly weapon, it is a Class E felony. See id. at (b)(2).

      “Reckless” means that a person acts recklessly with respect to
      circumstances surrounding the conduct or the result of the conduct when
      the person is aware of, but consciously disregards a substantial and
      unjustifiable risk that the circumstances exist or the result will occur. The
      risk must be of such a nature and degree that its disregard constitutes a
      gross deviation from the standard of care that an ordinary person would
      exercise under all the circumstances as viewed from the accused person’s
      standpoint[.]

Id. § 39-11-106(a)(31).

       Viewed in the light most favorable to the State, the evidence shows that the
Defendant fired two shots from a handgun at Mr. Davis, who was standing behind and
near Ms. Myers. This conduct placed Ms. Myers in imminent danger of death or serious
bodily injury. In so doing, the Defendant consciously disregarded a substantial and
unjustifiable risk that Ms. Myers would be injured or killed by a stray bullet. The
evidence is sufficient to support the felony reckless endangerment conviction.

                                          -11-
D.     Evading Arrest

       As pertinent to the present case, “It is unlawful for any person, while operating a
motor vehicle on any street, road, or highway . . . to intentionally flee or attempt to elude
any law enforcement officer, after having received any signal from the officer to bring
the vehicle to a stop.” See id. § 39-16-603(b)(1) (2010) (amended 2016). If “the flight
or attempt to elude creates a risk of death or injury to innocent bystanders or other third
parties,” the offense is a Class D felony. Id. at (b)(3).

       Viewed in the light most favorable to the State, the evidence shows that the
Defendant led the police on a twenty-five to thirty minute chase through the streets of
Memphis and on the interstate, stopping only when traffic blocked him from continuing.
Police officers activated their sirens and blue lights while following him, and officers
broadcast a command on a PA system for him to stop, but the Defendant did not yield to
their authority. The Defendant had three children in his car throughout the pursuit, and
several police officers and vehicles were involved in the attempt to apprehend him. The
evidence is sufficient to show that the Defendant intentionally fled from the officers
despite having been instructed to stop and to show that the children in the backseat of his
car were endangered by his prolonged refusal to yield to the command to stop. The
Defendant is not entitled to relief on this basis.

                                             II

     Denial of Due Process Due to Lack of a Competency Evaluation and Lack of
                                    Competency

       In a series of related issues, the Defendant contends that an unspecified issue
existed regarding his “mental condition at the time of the offense,” that his due process
rights were violated because he did not have a competency evaluation, and that he lacked
competency to stand trial. The State contends that the Defendant is not entitled to relief.
We agree with the State.

       “The Fourteenth Amendment to the United States Constitution and article I,
section 8 of the Tennessee constitution prohibit the trial of a person who is mentally
incompetent.” State v. Reid, 164 S.W.3d 286, 306 (Tenn. 2005); see Pate v. Robinson,
383 U.S. 375 (1966); State v. Blackstock, 19 S.W.3d 200, 205 (Tenn. 2000). A defendant
is competent who has the “capacity to understand the nature and object of the
proceedings against him, to consult with counsel and to assist in preparing his defense.”
Mackey v. State, 537 S.W.2d 704, 707 (Tenn. Crim. App. 1975); see Reid, 164 S.W.3d at
306. A defendant must establish his incompetence by a preponderance of the evidence.
Reid, 164 S.W.3d at 306-07. A trial court’s findings regarding competency are

                                            -12-
conclusive unless the evidence preponderates to the contrary. State v. Oody, 823 S.W.2d
554, 559 (Tenn. Crim. App. 1991); Reid, 164 S.W.3d at 306.

        The record reflects that the Defendant was uncooperative with the trial court’s
order for a mental evaluation and with the defense counsel appointed to represent him.
On December 16, 2015, defense counsel requested a mental health evaluation of the
Defendant. Counsel advised the court that although the Defendant appeared to be
intelligent, counsel had encountered difficulty communicating with the Defendant. The
Defendant voiced his objection to the mental health evaluation and asserted, “[T]his is a
conflict of interest because it violates my constitutional law or rights.” The Defendant
further asserted that counsel should be recused on the basis that “it’s a conflict of interest
for me to sign up with a state licensed attorney because their first duty is to the courts.
So, they are officers of the courts.” The court granted defense counsel’s motion for a
mental evaluation of the Defendant.1

        At a February 1, 2015 hearing, defense counsel stated that the Defendant would
not communicate with counsel and had expressed a preference to speak directly to the
trial court. When the court inquired whether the mental evaluation had been completed,
the Defendant stated that he did not need a mental evaluation and inquired whether the
order for an evaluation was “lawful” and whether he was compelled to consent to the
evaluation. The Defendant became argumentative with the court, and the court found the
Defendant in contempt several times. The Defendant questioned the authority of the
court and asserted that he was competent. The court explained that the mental evaluation
was necessary in order for the case to progress. The Defendant stated his intent to
petition the federal courts for relief from the trial court’s mental evaluation order.

       At a March 8, 2016 hearing at which the Defendant was not present, defense
counsel informed the trial court that the evaluation was to be performed the following
day. At an April 4, 2016 hearing, the Defendant was again not present, and defense
counsel informed the court that the Defendant had refused to cooperate with the
professionals who had traveled to the jail to perform the mental evaluation. The
prosecutor noted that this was the Defendant’s second refusal to cooperate. The court
reset the matter for the following month in order to give the Defendant another
opportunity to cooperate in the evaluation. The Defendant was brought into the
courtroom, and the court informed him that he would have one more opportunity to
cooperate with the mental evaluation and that if he did not, the case would be set for trial.

       At a May 3, 2016 hearing, defense counsel informed the trial court that the mental
evaluation had not been performed due to the Defendant’s unwillingness to participate.


1
    Although no order appears in the record, the transcript reflects that the order was granted on December 16.

                                                          -13-
The Defendant addressed the court directly, stating that the Defendant’s conflict of
interests issue had not been addressed and asserting that he could not have a fair trial
because all attorneys were officers of the court. The Defendant argued that a nolle
prosequi was appropriate because a different prosecutor was representing the State than
the original prosecutor. The court set a trial date and, after the Defendant questioned
whether the court had issued a lawful order, the court found the Defendant in contempt.

       On July 1, 2016, the trial court noted on the record that the Defendant had filed
motions without the aid of his counsel. The court stated that the Defendant was
represented by counsel, with whom the Defendant had not cooperated, and declined to
consider the motions on the merits.

      On October 3, 2016, after defense counsel informed the trial court that the
Defendant would not speak to counsel, aside from advising counsel that he thought
speaking to counsel posed a conflict of interests, the court made the following
observations:

       That’s further reason why I won’t let [the Defendant] represent himself if
       he thinks – I mean, if he doesn’t recognize our laws, he won’t cooperate
       with his attorney, he won’t cooperate with me. He doesn’t recognize the
       authority of the court – all those reasons. You know, I don’t remember if
       he even asked if he wanted to represent himself. I think he just doesn’t
       want to be here.

The court set the case for trial on October 24, 2016.

       On the day of the trial, the Defendant continued to claim that the trial court had no
authority over him and that a conflict of interests existed. The Defendant asked to
represent himself, and the court denied the request. The Defendant stated that he did not
need to be in the courtroom and did not consent to the proceedings, and the court advised
the Defendant of his constitutional right to be present. The court observed the following:

       I just wanted to make sure that . . . if there is a conviction and it goes up
       that it’s been noted, for the record, that he has – everything that we could
       possibly do to protect his rights has been done; nothing has been short-
       cutted [sic] or anything like that. He’s been given an opportunity to defend
       himself even though he insists that these foreign national – or something –
       I’m not sure exactly what the deal is. That’s why I wanted him mentally
       evaluated. But, for the record, he didn’t go along with that either. And, so,
       we’re just . . . stuck in a posture where we have to go forward. The State of
       Tennessee and their victims have a right to have this case tried as well.


                                            -14-
       And, you know, I’ve tried to reason with him. He just keeps talking about
       this since I’m a public official, that I don’t have jurisdiction.

        The mental competency evaluation was requested by defense counsel due to the
Defendant’s unwillingness to communicate with counsel. The Defendant, however,
asserted that no mental competency evaluation was necessary, and he repeatedly refused
to cooperate with the individuals who were assigned to conduct the evaluation. The trial
court afforded the Defendant the opportunity for a mental evaluation, and the
Defendant’s own conduct is the reason no evaluation was performed. He cannot now be
heard to complain that he did not receive the evaluation. See T.R.A.P. 36(a) (stating that
relief is not required when the party requesting relief is responsible for any error).

        The Defendant’s statement of the issues includes “Mental Condition at the time of
the alleged offense,” although his brief does not contain any argument which is specific
to this issue or otherwise explains it. A defendant may use evidence of his mental state at
the time of the offense to establish a legal insanity defense. See T.C.A. § 39-11-501
(2010) (amended 2015). The Defendant did not raise a legal insanity defense at the trial,
and his argument on appeal regarding mental issues otherwise pertains to his competency
to stand trial. To the extent that his brief raises a question regarding his mental condition
at the time of the offenses, we conclude that consideration of the issue is waived both
because he did not raise a legal insanity defense at the trial and because he has not
provided adequate legal argument on appeal. See T.R.A.P. 27(a)(7), 36(a); Tenn. R. Ct.
Crim. App. 10(b).

        We turn to the Defendant’s argument that he was incompetent to stand trial and his
related issue regarding whether he was competent to understand and waive his right to
testify, which we consider as part of his broader argument that he was incompetent to
stand trial. As we have stated, a defendant has the burden of establishing his
incompetence for trial. See Reid, 164 S.W.3d at 306. Put another way, a defendant is
presumed to be competent. See id. The Defendant was presumed competent, and he
refused to cooperate with a mental evaluation geared toward determining whether
incompetency existed. The evidence of record does not establish that he was
incompetent. Because he failed to carry his burden of demonstrating incompetency, he is
not entitled to relief on this basis.

        We acknowledge the documents the defense has filed as an appendix to its brief.
These documents include purported writings of the Defendant and letters from mental
health evaluators regarding the Defendant’s “questionable” competency for trial in
another case. While we appreciate and understand defense counsel’s difficult position in
representing a client who has refused to cooperate with counsel and with the appointed
mental health evaluators and who does not recognize the authority of the courts of this
state, this court is generally limited to consideration of the facts which were established

                                            -15-
in the trial court and are included in the appellate record. See T.R.A.P. 13(c); see also
UT Medical Group v. Vogt, 235 S.W.3d 110, 122 (Tenn. 2007) (stating that documents
attached to a party’s brief but which were not included in the appellate record were not
properly before the appellate court). As such, these documents are not properly before
this court.

       Finally, we have not overlooked the Defendant’s argument that his due process
rights continue to be violated by this court’s denial of a motion for extension of time,
which he sought on the basis that additional time was necessary to obtain a mental health
evaluation. As we have stated, as an appellate court, we are generally limited to
consideration of those facts which were established in the trial court and are included in
the record. See T.R.A.P. 13(c). Our jurisdiction is appellate, and any new evidence
showing that the Defendant is incompetent would not be instructive in consideration of
the remaining issues raised on appeal. See T.C.A. § 16-5-108(a)(1) (2009). No due
process violation has been shown.

                                            III

               Exclusion of the Defendant from the Sentencing Hearing

        Finally, the Defendant contends that the trial court erred in excluding him from the
courtroom during the sentencing hearing. The State contends that the Defendant has
waived consideration of this issue by failing to provide an adequate legal argument and
that plain error relief is not appropriate. We agree with the State.
        In his brief, the Defendant has stated the issue regarding his exclusion from the
sentencing hearing, but he has not provided any legal argument to support it. See
T.R.A.P. 27(a)(7); Tenn. R. Ct. Crim. App. 10(b). He has waived consideration of the
issue on the merits, and he is entitled to relief only if plain error exists. See State v.
Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994).

       The record reflects that, at the sentencing hearing, the Defendant was
argumentative with the trial court, stated that he had sent motions to the State, and raised
numerous objections to the court’s authority and to the proceedings. Defense counsel
stated that although he “would love to have [the Defendant] here,” counsel’s presence
was sufficient for purposes of the sentencing hearing. The court stated that the Defendant
had a right to be present but that the court was “not going to entertain frivolous motions.”
After the Defendant continued to disrupt the proceedings, the court had the Defendant
removed and conducted the hearing in his absence.

        Notwithstanding a defendant’s federal and state constitutional rights to be present
at all critical stages of a criminal proceeding, he may waive his right to be present when
he persists in disruptive conduct despite a warning from the court that he will be excluded

                                           -16-
if he continues to disrupt the proceedings. See Tenn. R. Crim. P. 42(b)(2); State v.
Carruthers, 35 S.W.3d 516, 565-569 (Tenn. 2000). The Defendant’s repeated
misconduct was the basis for the trial court’s excluding him from the sentencing hearing.
We are unpersuaded that plain error exists. See Adkisson, 899 S.W.2d at 641-42. He is
not entitled to relief on this basis.

        In consideration of the foregoing and the record as a whole, the judgments of the
trial court are affirmed.


                                          _____________________________________
                                           ROBERT H. MONTGOMERY, JR., JUDGE




                                          -17-
