                                                                                          12/07/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                              September 19, 2017 Session

              STATE OF TENNESSEE v. ANTHONY J. HARRIS

                  Appeal from the Criminal Court for Knox County
                    No. 93061, 96566 Bobby R. McGee, Judge
                     ___________________________________

                           No. E2016-01952-CCA-R3-CD
                       ___________________________________


Defendant, Anthony J. Harris, was convicted of two counts of facilitation of felony
murder and one count of facilitation of attempted second degree murder. He received an
effective sentence of twenty-two years. On appeal, Defendant argues that the evidence at
trial was insufficient to support each of his convictions, that his due process and speedy
trial rights were violated by the timing of the superseding indictment, that the trial court
erred by not allowing Defendant’s expert witness to testify, that the State failed to
properly preserve evidence, and that the State made improper remarks in their closing
argument. After review, we hold that Defendant is not entitled to relief on any of his
claims. The judgments of the trial court are affirmed.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and ROBERT W. WEDEMEYER, JJ., joined.

Joseph A. Fanduzz, Knoxville, Tennessee, for the appellant, Anthony Jay Harris.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant
Attorney General; Charme P. Allen, District Attorney General; and Leslie Nassios,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                        OPINION

                             Factual and Procedural History
        The Knox County Grand Jury indicted Defendant, along with his co-defendant,
Michael Olebe, with first degree premeditated murder on November 3, 2009,1 for his role
in the July 4, 2008 death of William Wheeler, Jr. The State filed a motion to amend the
indictment on February 18, 2011. Subsequently, the Knox County Grand Jury filed a
superseding indictment on February 22, 2011, that charged Defendant with first-degree
premeditated murder, first-degree felony murder committed in the perpetration of a
kidnapping, and first-degree felony murder committed in the perpetration of a theft. On
that same day, Defendant filed a response to the State’s motion to amend the original
indictment, and two days later, Defendant moved for the felony murder counts to be
stricken from the superseding indictment. The trial court never ruled on the State’s
motion to amend the original indictment. On March 1, 2011, a judgment was entered
dismissing Defendant’s first-degree premeditated murder charge from the original
indictment. That same day, only one week after the filing of the superseding indictment,
trial began.

       The testimony at trial regarding the events on July 4, 2008, was fairly consistent
among all of the witnesses, including Syeisha Kilby, Lisa Tannehill, Laquinda Hardin,
and Defendant, who testified on his own behalf. Thus, we will present the facts of the
case as a single narrative up to the point that the State’s case and the defense’s case
diverge.

       On the morning of July 4, 2008, Defendant woke up to his girlfriend, Lisa
Tannehill, telling him that Laquinda Hardin, Defendant’s first cousin, wanted Defendant
to bring her son home. Ms. Hardin’s son had spent the night at Ms. Tannehill’s house
after a playdate with Ms. Tannehill’s son. To take Ms. Hardin’s son home, Defendant
drove to Alcoa, Tennessee. Upon his arrival at Ms. Hardin’s house, Defendant met
William Wheeler, Jr., the victim, who had given Ms. Hardin a ride to her house. After
talking for a while, Defendant and the victim went back to Defendant’s house that he
shared with Ms. Tannehill.

       Upon returning to Defendant’s house, Defendant introduced the victim to Ms.
Tannehill, put on some music, and offered the victim vodka, gin, and moonshine.
According to Defendant, the victim requested some gin, and Defendant poured him a cup.
At that point, Defendant decided to take a shower. After bathing, Defendant joined the
victim for another drink. On top of that drink, the victim had a shot of moonshine. Some
conversation occurred, and then the victim expressed his desire for some crack cocaine.
Defendant and the victim left in the victim’s car to go find some crack cocaine.


       1
         The technical record does not contain Defendant’s original indictment. However, Defendant’s
response opposing the State’s motion to amend the indictment provides the date that the original
indictment was entered.
                                                -2-
       Defendant and the victim proceeded to the victim’s house where the victim took a
shower and had another drink. The two men spent about thirty minutes at the victim’s
house before they drove to an area of town known as Lonsdale in search of some crack
cocaine. At a place called “Under the Tree,” the victim was able to get his hands on
some crack cocaine, and Defendant met a girl that he knew from school nicknamed
“Binky.” “Binky” joined the two men in the victim’s car, and they drove to a house that
belonged to an acquaintance of “Binky.” At that house, “Binky” and the victim went into
a room by themselves for about thirty minutes. When they emerged, “Binky” left the
house to get some more crack, and Defendant observed that the victim was high. Once
“Binky” returned, she and the victim went back into the room for about fifteen more
minutes. “Binky” left, and Defendant went inside the room to check on the victim. The
victim could not talk. In the words of Defendant at trial, the victim was “geeked.”

       According to Defendant, the victim wanted some more crack. However, neither of
the men had any money. So, Defendant called Michael Olebe, nicknamed “O.D.,” and
spoke with him on the phone. Defendant and the victim drove to Mr. Olebe’s house to
see if Mr. Olebe would sell them some crack on credit. However, Mr. Olebe refused their
request. In order to work out a deal, Defendant offered Mr. Olebe a pistol to hold as
collateral until Defendant could get home and get the money. Mr. Olebe accepted this
deal. As part of the deal, Defendant received forty dollars’ worth of powdered cocaine,
which he split with the victim. Both men snorted the cocaine powder. Next, Mr. Olebe
and the victim spent some time outside of Mr. Olebe’s house by themselves. Defendant
claims that the victim asked him to hold onto the victim’s phone during the time that the
victim and Mr. Olebe were outside. Defendant maintains that he returned the phone to
the victim when he came back inside. All three men—Defendant, the victim, and Mr.
Olebe—left Mr. Olebe’s house in the victim’s vehicle.

       The three men drove to an ATM. The victim’s bank records show that he made a
transaction at approximately 3:11 p.m. on July 4, 2008. The video footage from the
ATM shows the victim getting out of the driver’s seat of a small SUV and walking up to
the ATM. The video also depicts a person sitting in the front passenger seat of the SUV
with their arm sticking out of the open window, and there is a shadow in the back seat
that makes it appear as if someone was in the back seat. According to Defendant, Mr.
Olebe was in the passenger seat and Defendant was in the back seat.

       From the ATM, the three men travelled to Morningside Park and met a woman,
who was later identified as Syeisha Kilby. Ms. Kilby admitted that she had been
“drinking a lot” on July 4, 2008, having consumed approximately “six beers and some
liquor” before speaking to Defendant, the victim, and Mr. Olebe. When the men talked
to Ms. Kilby, she and Mr. Olebe began flirting with each other. While Mr. Olebe
continued to speak with Ms. Kilby, Defendant and the victim shared some vodka.

                                          -3-
Eventually, Ms. Kilby joined the three men in the car and they drove from Morningside
Park to Franklin T. Fishback’s house.

        Up to this point in the sequence of events that occurred on July 4, 2008, the facts
presented at trial were consistent. The testimony at trial diverged when describing the
following events. On one hand, we have the testimony of Defendant, and on the other,
the testimony of Ms. Kilby and the other witnesses presented by the State. Additionally,
Ms. Kilby’s testimony is not entirely consistent with that of other witnesses presented by
the State. We set forth the testimony in turn, beginning with the testimony of the
Defendant.

                                A. Defendant’s Testimony

        According to Defendant, the group went to Mr. Fishback’s house because “[Ms.
Kilby] had stated she wanted to trade sex for some crack.” Everyone was intoxicated.
While the group was at Mr. Fishback’s house, a fight broke out between Mr. Olebe and
the victim. Mr. Olebe pulled the victim into the back seat of the SUV. Mr. Fishback told
them to leave. At this point, Defendant was in the driver’s seat and Ms. Kilby was in the
front passenger’s seat. The victim and Mr. Olebe were in the back seat fighting.
Defendant described the altercation between the victim and Mr. Olebe as a simple fight,
until “the gun goes off. . . . [Mr.] Olebe shot [the victim].” At that point, Mr. Olebe
exclaimed, “I shot the m—f—er in the leg.” Further struggle ensued, and Defendant
“heard another shot.” Defendant maintained that Mr. Olebe had possession of the gun the
entire time. Then, “[Ms. Kilby] said [‘]be quiet, listen. This m—f—er’s snoring.[’] She
said [‘]give it here. I’ll shoot the m—f—er.[’]” According to Defendant, Ms. Kilby got
on her knees in the passenger seat and leaned between the seats. Mr. Olebe positioned
the victim’s body and pulled the victim’s shirt up. Then, Defendant heard a third shot.

       Defendant testified that he, Mr. Olebe, and Ms. Kilby drove to Riverside to dump
the body. On their first attempt, a car drove by. So, they circled the area, came back to
the same place, and dumped the body of the victim. From there, they travelled to a house
owned by Larissa Harris. While at Ms. Harris’s house, Defendant sat on the steps of the
house while Mr. Olebe and Ms. Kilby cleaned out the victim’s vehicle. During this time,
Defendant spoke to Derrick Harris, Ms. Harris’s brother. Mr. Olebe and Ms. Kilby got a
gasoline can from one of Ms. Harris’s neighbors, and they drove to Quick Pantry and put
some gasoline in the can.

       The victim’s car was then driven to a location close to Mr. Olebe’s house. Mr.
Olebe poured gasoline on the vehicle, and Ms. Kilby lit a piece of paper and threw it
inside the vehicle. Once the vehicle was ablaze, Defendant, Mr. Olebe, and Ms. Kilby
walked back to Mr. Olebe’s house. At this point, the group parted ways. According to
Defendant, Mr. Olebe went home with the gun that was used to shoot the victim.
                                           -4-
Meanwhile, Defendant, with Ms. Kilby in tow, went to his ex-father-in-law’s house to
ask for a ride.

Later in the evening, Defendant and Ms. Kilby rejoined Mr. Olebe at Walter P. Taylor
Homes. Mr. Olebe stayed with them for around an hour. After Mr. Olebe left, Ms.
Tannehill picked up Defendant and Ms. Kilby and dropped off Defendant at “Gene’s
Place.” Defendant went inside, and Ms. Kilby eventually joined him. Defendant claims
that he got the gun back from Mr. Olebe that same night and returned it to Ms. Tannehill
the next day. Eventually, Defendant spoke with Investigator Charles Lee and gave him
an account of what occurred.

                             B. Testimony of Syeisha Kilby

       The State presented the testimony of Ms. Kilby, and her testimony recounting the
events of July 4, 2008, crucially differs from Defendant’s. According to Ms. Kilby,
Defendant and the victim began arguing at Mr. Fishback’s house because Defendant
wanted to drive. Defendant and the victim started scuffling, and Defendant made him get
in the back seat by pushing the victim as Mr. Olebe pulled the victim into the back seat.
The victim was struggling and fighting when he kicked out a window in the car. At that
point, Mr. Fishback came outside and told them that they could not be fighting at his
house. So, they drove away in the car. When they left, Defendant was driving the car,
Ms. Kilby was in the passenger seat, Mr. Olebe was in the back seat behind the
passenger, and the victim was in the back seat in the middle. As they drove away, Mr.
Olebe was punching the victim repeatedly and choking him. Ms. Kilby testified, “[The
victim] was sitting up but he was in the middle and he was leaned forward and [Mr.]
Olebe was choking him from the side.” Ms. Kilby described Mr. Olebe as having his
back against the inside of the rear passenger door.

       Ms. Kilby recounted that, after a few turns, Defendant pulled a gun out of his
waistband, told the victim “to shut up or he was going to kill him,” and pistol whipped
him. Shortly thereafter, the victim was not quiet, and Defendant reached between the
seats and shot the victim. After that, Defendant handed the gun to Mr. Olebe and another
shot was fired. Ms. Kilby only heard two shots. According to Ms. Kilby, she never fired
the gun. After Mr. Olebe shot the victim, he handed the gun back to Defendant. Then,
Mr. Olebe belted the victim into the backseat behind the driver.

       Ms. Kilby claims that after driving around for a while, they stopped on Riverside
Drive and Mr. Olebe pulled the victim out of the backseat and dumped the victim’s body.
Once the victim’s body was dumped, Ms. Kilby stated that they went to a house that
belonged to Defendant’s cousin. Ms. Kilby claimed that she sat on the steps of the house
while Mr. Olebe and Defendant cleaned out the car. Ms. Kilby and Mr. Olebe went to a
neighbor’s house and asked for a gas can. Defendant, Ms. Kilby, and Mr. Olebe drove to
                                          -5-
Quick Pantry and Mr. Olebe went inside and bought some gas. Ms. Kilby recounted,
“They doused the car with gasoline and set it on fire. . . . with a match.”

       After setting the car on fire, Ms. Kilby and the two men went to a house.
Defendant told Ms. Kilby that the house belonged to his “uncle.” At that house,
Defendant burned and smashed the victim’s cell phone in the back yard and gave the gun
to his “uncle,” who wrapped the gun in a towel and took it to his basement. Mr. Olebe
never went inside the house with Defendant and Ms. Kilby.

        According to Ms. Kilby, Mr. Olebe went to his house to change his clothes and
returned about thirty minutes later. At that point, Defendant’s “uncle” gave the group a
ride to Walter P. Taylor Homes. After a few hours, Mr. Olebe left and gave his cellphone
number to Ms. Kilby. He told her to do whatever Defendant told her to do or he would
kill her. After this statement was made, Ms. Kilby never saw Mr. Olebe again. Ms.
Kilby claims that she and Defendant went to Gene’s Place to get some crack cocaine. On
the ride to Gene’s Place, Ms. Kilby overheard Ms. Tannehill telling Defendant that she
was going to call the police if he did not return her gun. Defendant and Ms. Kilby left
Gene’s Place, went to Walter P. Taylor Homes, smoked some crack cocaine, and
continued drinking. Ms. Kilby described herself as intoxicated. At around noon the next
day, Defendant and Ms. Kilby parted ways and never had contact again.

        Ms. Kilby testified that she spoke with Investigator Lee, told him about all of the
events, and showed him the locations where everything occurred. At trial, Ms. Kilby
identified Defendant as the person who first shot the victim. On cross-examination, Ms.
Kilby was impeached with a prior inconsistent statement regarding some details of the
story such as whether they went to an ATM, at what point she first saw the gun, and the
color of the gun.

                             C. Testimony of Other Witnesses

        The State also called Mr. Fishback to testify at trial, and he had his own account of
what happened at his house. On the day of the shooting, Defendant, Mr. Olebe, and two
people unknown to Mr. Fishback arrived at his house. Mr. Olebe was the first person to
exit the vehicle, and Mr. Fishback noticed Defendant and an unknown woman in the back
seat of the car. The other person unknown to Mr. Fishback was the driver of the vehicle.
After exiting the vehicle, Mr. Olebe approached Mr. Fishback and “pulled [Mr. Fishback]
off to the side and said he wanted tough up or rough up or – actually he was saying in
other words he wanted to whip somebody’s butt inside of my home.” Mr. Fishback
refused to allow Mr. Olebe to “rough up” anyone at his house, and Mr. Fishback went
back inside his house. Moments later, Mr. Fishback returned outside to see Mr. Olebe
grab the man in the driver’s seat by the mouth and pull him backwards between the seats
toward the backseat of the vehicle. Mr. Fishback observed the man flipping around and
                                            -6-
thought that the man “couldn’t breathe.” The man being attacked kicked out the window
behind the driver’s seat, and the glass fell onto Mr. Fishback’s driveway. At some point,
Defendant got in to driver’s seat and drove off.

       Larissa Harris and her brother, Derrick Harris, provided further detail on the
events of July 4, 2008. The home at which the car was cleaned out belonged to Ms.
Harris. On the day of the shooting, Mr. Olebe called Ms. Harris and asked if she was
home, but she never gave Mr. Olebe permission to be on her property. Incidentally, Mr.
Harris went by his sister’s house. When Mr. Harris arrived, he saw Mr. Olebe, whom he
 had met once before, in front of the house. Mr. Olebe claimed that he was waiting on
Ms. Harris. Mr. Harris also saw Defendant sitting on the steps at the corner of the house
drinking a half-gallon of vodka. Mr. Harris approached Defendant and noticed that
Defendant had his head down and was shaking his head. Mr. Harris asked, “What’s
wrong?” In response, Defendant just shook his head and mumbled, “We just f-d
someone up.” When Mr. Harris asked Defendant to be more specific, Defendant said,
“We just fucked someone up.” Mr. Harris replied, “What?” Defendant repeated, “We
just fucked someone up.” Mr. Harris questioned, “For real?” At that point, Mr. Harris
looked toward his right and saw a woman “cleaning out a car.” Mr. Harris never spoke
with the woman, and Mr. Olebe had already left. Mr. Harris left the house as the woman
was cleaning out the car, and Defendant remained on the steps. Though he could not be
sure, Mr. Harris believed that Defendant had a gun in his waistband.

        With regard to the gun that was used in the attack, the State put on testimony of
Ms. Tannehill and a firearms examiner. Ms. Tannehill testified that, at some point, she
discovered that her gun was missing. This prompted her questioning of Defendant
regarding the whereabouts of her gun while she drove Defendant and Ms. Kilby to
Gene’s Place. In response to Ms. Tannehill’s inquiry, Defendant stated that her gun was
“over at his cousin’s house.” On July 5, 2008, the gun was returned to Ms. Tannehill, but
it later went missing again. Ms. Tannehill never recovered the gun. Ms. Tannehill
described the gun as a gray 9 millimeter manufactured by Skyy that was purchased from
Coal Creek Armory.

       Officer Patricia Resig, the firearms examiner with the Knoxville Police
Department, analyzed the bullets recovered from the victim’s body and clothing. While
she could not definitively say that the two recovered bullets were fired from the same
gun, she did determine that the bullets were fired from a gun with rifling consisting of
seven lands and grooves and a right hand twist. Officer Resig explained that the lands
and grooves inside the barrel of a firearm create impressions on a bullet as it travels down
the barrel after being fired. These impressions can be used to compare two bullets to see
if they were fired from the same gun or to match a bullet to the gun from which it was
fired. Through her research, she discovered that Skyy Industries manufactured a 9
millimeter pistol with seven lands and grooves and a right hand twist and that no other
                                            -7-
firearm in the Federal Bureau of Investigation database had those characteristics.
Investigator Lee collected a handgun from Mr. Olebe’s mother after she called and told
him that she was in possession of a handgun that she believed was missing. However,
Investigator Lee testified that the firearm that he collected was not the firearm that fired
the bullets recovered from the victim.

       Dr. Darinka Mileusnic-Polchan testified that one bullet was recovered from the
victim’s body and another was recovered from the victim’s shorts. However, Dr.
Mileusnic-Polchan concluded that the victim suffered three gunshot wounds. The wound
that “essentially killed [the victim]” was the wound to the upper gastric region. Dr.
Mileusnic-Polchan stated that the distance from which the gun was fired to inflict this
wound was “less than [a] foot.” The victim also had a gunshot wound to the lumbar
region of the back that was a “contact gunshot wound, meaning that when the shot was
delivered the muzzle was tightly applied against the skin on the body.” The other very
close range gunshot wound was a wound to the victim’s left leg. Dr. Mileusnic-Polchan
could not offer an opinion on which gunshot wound was inflicted first. When asked
about the possibility of the driver firing the shots, she responded, “Some of the wounds, I
would say it’s possible. Some of the wounds it’s not.” Dr. Mileusnic-Polchan
documented approximately thirty-five different blunt force trauma injuries on the victim.
Fourteen of those injuries were to the victim’s head. Multiple sharp force trauma injuries
were noted as well, but Dr. Mileusnic-Pochan noted that the sharp force trauma injuries
were relatively superficial.

       Defendant attempted to present expert testimony about the possibility of firing a
gun from the driver’s seat and striking a passenger in the rear seat. The State objected to
the introduction of this testimony. After Defendant’s offer of proof, the trial court
excluded the testimony.

        A jury convicted Defendant of facilitation of attempted second degree murder as a
lesser-included offense of first degree murder in Count One and facilitation of felony
murder as a lesser-included offense of felony murder in both Counts Two and Three. The
trial court merged Counts One and Three into Count Two and imposed a total effective
sentence of twenty-two years to be served consecutively to an unrelated federal sentence.
Defendant filed a timely motion for new trial that was denied. Now, Defendant appeals.

                                         Analysis

       On appeal, Defendant argues that the evidence at trial was insufficient to support
each of his convictions, that his due process and speedy trial rights were violated by the
timing of the superseding indictment, that the trial court erred by not allowing
Defendant’s expert witness to testify, that the State did not properly preserve evidence,
and that the State made improper remarks in their closing argument. The State contests
                                            -8-
each of these claims. Following out review, we hold that Defendant is not entitled to
relief.

                         I. Validity of the Superseding Indictment

       Defendant argues that the superseding indictment violated his right to a speedy
trial because there was a nineteen-month delay between Defendant’s arrest and the
superseding indictment. Defendant maintains the reason for the delay is unclear. He
claims he was prejudiced by the short length of time to prepare a defense and by losing
around one year of jail credit on his federal sentence. Also, Defendant argues that the
superseding indictment violated his right to due process because he was prejudiced and
the circumstances reveal that the State was seeking a tactical advantage over Defendant.
Further, Defendant contends that the delay in the issuance of the superseding indictment
was through no fault of his own. The State responds by arguing that Defendant failed to
provide an adequate record for review of this issue. We agree with the State.

       A defendant has the duty to prepare a transcript of the evidence necessary to
convey a fair, accurate, and complete account of what transpired in the lower court.
Tenn. R. App. P. 24(b). If such a transcript is not available, a defendant “shall prepare a
statement of the evidence or proceedings from the best available means . . . filed with the
clerk of the trial court within 60 days after filing the notice of appeal.” Tenn. R. App. P.
24(b). Allegations contained in pleadings and statements made by counsel during a
hearing or the trial are not evidence, and “neither can be considered in lieu of a verbatim
transcript or statement of the evidence and proceedings.” State v. Draper, 800 S.W.2d
489, 493 (Tenn. Crim. App. 1990). Accordingly, Defendant’s failure to include a
complete record of the proceedings forming the basis of this issue results in a waiver of
any challenge to the lower court’s rulings. See State v. Ballard, 855 S.W.2d 557, 560-61
(Tenn. 1993) (determining appellant’s failure to provide court with complete record
relevant to issue presented constitutes waiver of issue). In the absence of a complete
record, “the appellate court must conclusively presume that the ruling of the trial judge
was correct, the evidence was sufficient to support the defendant’s conviction, or the
defendant received a fair and impartial trial.” Draper, 800 S.W.2d at 493. The record in
this case does not contain a transcript or statement of the evidence presented at the
hearing on Defendant’s motion to dismiss the indictment and to strike the felony murder
counts held by the trial court on February 28, 2011. Thus, the record is inadequate for
our review and this Court is precluded from reviewing Defendant’s claims that his rights
to due process and a speedy trial were violated.

        Even if this Court conducted a plain error analysis, Defendant would not be
entitled to relief because the record on appeal does not “clearly establish what occurred in
the trial court,” the first factor in the plain error analysis. See State v. Smith, 24 S.W.3d
274, 282-83 (Tenn. 2000). Therefore, Defendant is not entitled to relief on this issue.
                                            -9-
                               II. Preservation of Evidence

       Defendant argues that the trial court erred when it denied his motion to dismiss the
indictment based upon the State’s failure to preserve the vehicle in which the shooting
took place. According to Defendant, the vehicle could have provided exculpatory
evidence regarding how the bullets were fired and where they struck the vehicle. The
State argues that Defendant has not provided an adequate record for our review because
the record does not contain a transcript of the hearing on Defendant’s motion to dismiss
the indictment. We agree with the State.

        As set forth above, a Defendant has a duty to prepare an adequate transcript or a
statement of the evidence, and failure to do so results in waiver of the issue. Tenn. R.
App. P. 24(b); see also Ballard 855 S.W.2d at 560-61; Draper, 800 S.W.2d 493. The
trial court’s minutes from February 28, 2011, indicate that Defendant’s motion to dismiss
the indictment came to be heard and was denied. No transcript for this hearing is
included in the record. Because Defendant has failed to include a transcript of the
hearing on his motion to dismiss the indictment, this Court is precluded from reviewing
Defendant’s claim that the State failed to properly preserve evidence. Further, the lack of
an adequate record also prevents Defendant’s issue from receiving plain error review
because the record does not “clearly establish what occurred in the trial court.” See
Smith, 24 S.W.3d at 282-83.

                            III. Exclusion of Expert Testimony

       Defendant argues that the trial court erred by disallowing his proposed expert’s
testimony because the trial court improperly excluded the testimony based upon the trial
court’s own opinion of the “veracity of [the expert’s] testimony rather than an application
of the legal standards for opinion testimony.” The State argues that the trial court
properly applied the factors found in McDaniel v. CSX Transportation, Inc., 955 S.W.2d
257 (Tenn. 1997), and did not abuse its discretion. We agree with the State.

       At trial, the Defendant sought to introduce the testimony of James Parham, a civil
engineer with experience in accident reconstruction. After the State’s objection,
Defendant gave an offer of proof where Mr. Parham described his methodology of
creating a model of the victim and the gunshot wounds. He stated, “My opinion is that
the likelihood of the shot being–any of the three shots occurring from the driver’s seat is
more probable than not a likelihood.” Then, Mr. Parham gave what appears to be a
conflicting response only a few questions later in the cross-examination by the State
when he stated, “Well, I can rephrase it into a more reasonable doubt. It would be very
difficult, if not impossible, for these shots to have come from the driver’s seat.” On
cross-examination, he admitted that he was not trained in forensic pathology, anatomic
                                           - 10 -
pathology, or terminal ballistics. Further, he conceded that his model was incapable of
independent movement. Mr. Parham was unable to cite any sources to support the use of
a model to replicate firing angles with respect to terminal ballistics, his methodology had
not been peer reviewed, and he could not point to a specific error rate. Further, Mr.
Parham admitted that he had never testified about bullet trajectory in a moving vehicle.

         In making its ruling on the admissibility of Mr. Parham’s testimony, the trial court
found:

         [T]here is no recognized methodology for conducting the kind of testing
         that Mr. Parham conducted. No known rate of error for this kind of
         scientific analysis. No peer review has been done of his particular
         procedures. This is not a known body of science. This was a reenactment
         prepared for litigation.

The trial court noted that “there is no way that the expert can testify that the car he used
was in the same condition as the car that was involved in this crime.” The trial court
added that “the dummy that’s been used is not a completely accurate copy of the victim[;]
furthermore, it’s rigid, it can’t twist, it can’t fight, it can’t struggle, it can’t move.” Based
upon those reasons, the trial court held that Mr. Parham’s “expert opinion will not
substantially assist the trier of fact to understand the evidence” and that Mr. Parham’s
expert opinion “doesn’t help the jury determine a fact in issue.” Accordingly, the trial
court excluded Mr. Parham’s testimony.

       A trial court has broad discretion over matters regarding the qualifications,
admissibility, relevancy, and competency of expert testimony. See McDaniel, 955
S.W.2d at 263-64; Ballard, 855 S.W.2d at 562. A trial court’s ruling shall not be
overturned unless the trial court abused its discretion in admitting or excluding the expert
testimony. Ballard, 855 S.W.2d at 562. “[A]n appellate court should find an abuse of
discretion when it appears that the trial court applied an incorrect legal standard, or
reached a decision which is against logic or reasoning that caused an injustice to the party
complaining.” State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997).

      Rule 702 of the Tennessee Rules of Evidence sets forth the requirements for the
admissibility of opinion testimony by an expert witness:

         If scientific, technical, or other specialized knowledge will substantially
         assist the trier of fact to understand the evidence or to determine a fact in
         issue, a witness qualified as an expert by knowledge, skill, experience,
         training, or education may testify in the form of an opinion or otherwise.


                                              - 11 -
The expert’s opinion must be supported by trustworthy facts or data “of a type reasonably
relied upon by experts in the particular field in forming opinions or inferences upon the
subject.” Tenn. R. Evid. 703. The determining factor is “whether the witness’s
qualifications authorize him or her to give an informed opinion on the subject at issue.”
State v. Stevens, 78 S.W.3d 817, 834 (Tenn. 2002). Evidence constitutes “‘scientific,
technical, or other specialized knowledge,’ if it concerns a matter that ‘the average juror
would not know, as a matter of course.’” State v. Murphy, 953 S.W.2d 200, 203 (Tenn.
1997) (quoting State v. Bolin, 922 S.W.2d 870, 874 (Tenn. 1996)).

        In McDaniel, our supreme court adopted the following non-exclusive list of
factors that a trial court should consider when determining the reliability of expert
testimony: (1) whether the scientific evidence has been tested and the accompanying
methodology with which it was tested; (2) whether the evidence has been subjected to
peer review or publication; (3) whether the potential rate of error is known; (4) whether
the evidence is generally accepted in the scientific community; and (5) whether the expert
conducted the research in the field independent of litigation. 955 S.W.2d at 265. A trial
court acts as a gatekeeper to ensure that the expert testimony meets “‘the same level of
intellectual rigor that characterizes the practice of an expert in the relevant field.’”
Brown v. Crown Equip. Corp., 181 S.W.3d 268, 273 (Tenn. 2005) (quoting Kumho Tire
Co. v. Carmichael, 526 U.S. 137, 152 (1998)). However, the McDaniel factors are only
relevant to the extent they are reasonable measures of testing the reliability of the
proposed expert testimony. Id. at 277.

        In this case, it is apparent that the trial court considered the factors outlined in
McDaniel even though the court did not mention the case by name. For the first
McDaniel factor, the trial court found that Mr. Parham did not follow a “recognized
methodology.” With regard to the second McDaniel factor, the trial court found that no
peer review had been performed on the procedures conducted by Mr. Parham. Pertaining
to the third McDaniel factor, the trial court found that there was no known error rate. On
the fourth McDaniel factor, the trial court found that “this is not a known body of
science.” For the final factor, the trial court found that Mr. Parham’s reenactment was
“prepared for litigation.” The trial court properly applied McDaniel and made a finding
with regard to each factor. Then, the trial court made a ruling in accordance with Rule
702 when the court found that the testimony would not assist the trier of fact. It is
obvious that the trial court applied the correct legal standard and used sound logic and
reasoning. The trial court did not abuse its discretion.

                     IV. Improper Remarks during Closing Argument

      Defendant argues that the State made improper remarks about the credibility of
Ms. Kilby and Defendant during closing argument that rendered his conviction
fundamentally unfair. The State responds by contending that Defendant “waived this
                                           - 12 -
issue because he did not make a contemporaneous objection to the prosecutor’s
comment” and that Defendant cannot show plain error. We agree with the State.

        During closing argument, the State made statements regarding Ms. Kilby’s
testimony. The State explained that the inconsistencies in her testimony could be
attributed to Ms. Kilby’s use of drugs and alcohol on the day of the attack on the victim.
The State claimed that Ms. Kilby “choked up” on some things when she talked to
Investigator Lee, but that Ms. Kilby attempted to “clarify it later in her interview.” The
State further argued that Ms. Kilby’s testimony was “very consistent” with that of
Investigator Lee. The State also pointed to various reasons why the Defendant might
have an incentive to be less than truthful in his statements to the police and during his
testimony. The State pointed out all of the things that Defendant did not tell the police
that were presented through the testimony of other witnesses. The State said, “[W]hen
more than one person is involved in a crime[,] sometimes it’s a race to the police station
to see who gets there first to get the best treatment. You know, to get the jump on their
accomplices. And that’s exactly what was going on with him.” Later, the State argued,
“[T]alk about inconsistences. I mean, you heard what we heard yesterday and today.
You can discount anything this man said. His testimony is not credible.” The State
implored the jury to “weigh their testimony and just ask yourselves who supports [Ms.
Kilby’s] version? Who has a reason to lie?” Defendant did not object to any these
statements.

        Appellate relief is generally not available when a party has “failed to take
whatever action was reasonably available to prevent or nullify the harmful effect of any
error.” Tenn. R. App. P. 36(a). A defendant’s “failure to object to the State’s argument
at trial precludes [this Court’s] review of the issue, subject to our noticing ‘plain error.’”
State v. Derrick Dewayne Lyons, No. M2014-00178-CCA-R3-CD, 2015 WL 475158 at
*9 (Tenn. Crim. App. Feb. 4, 2015) (citing Tenn. R. App. P. 3(e); Tenn. R. App. 36(a);
State v. Little, 854 S.W.2d 643, 651 (Tenn. Crim. App. 1992)), perm. app. denied (Tenn.
Jun. 11, 2015). However, “[w]hen necessary to do substantial justice, an appellate court
may consider an error that has affected the substantial rights of a party at any time, even
though the error was not raised in the motion for a new trial or assigned as error on
appeal.” Tenn. R. App. P. 36(b). Each of the following five factors must be established
by the record before plain error exists:

       (a) the record must clearly establish what occurred in the trial court; (b) a
       clear and unequivocal rule of law must have been breached; (c) a
       substantial right of the accused must have been adversely affected; (d) the
       accused did not waive the issue for tactical reasons; and (e) consideration of
       the error is “necessary to do substantial justice.”


                                            - 13 -
State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000) (adopting the test established in State
v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994)). The burden is on the
defendant to establish all five factors, and “complete consideration of all the factors is not
necessary when it is clear from the record that at least one of the factors cannot be
established.” Id. Furthermore, the error must be of “such a great magnitude that it
probably changed the outcome of the trial.” Id.

         In this case, there was no breach of a clear and unequivocal rule of law. While the
scope and depth of closing argument is generally a matter within the trial court’s
discretion, State v. Bigbee, 885 S.W.2d 797, 809 (Tenn. 1994), the State is not free to do
what they wish. Arguments are required to be “temperate, based upon the evidence at
trial, relevant to the issues being tried, and not otherwise improper under the facts of the
law.” State v. Goltz, 111 S.W.3d 1, 5 (Tenn. Crim. App. 2003) (citing Coker v. State, 911
S.W.2d 357, 368 (Tenn. Crim. App. 1995)). Although not exhaustive, this Court has
recognized five general areas of potential prosecutorial misconduct during closing
arguments: (1) intentionally misstating the evidence or misleading the jury as to the
inferences it may draw; (2) expressing personal beliefs or opinions as to the truth or
falsity of any testimony or the guilt of the defendant; (3) inflaming or attempting to
inflame the passions or prejudices of the jury; (4) injecting issues broader than the guilt
or innocence of the accused; and (5) arguing or referring to facts outside the record unless
the facts are matters of common knowledge. Goltz, 111 S.W. 3d at 6.

        As mentioned above, this is a case of two competing accounts of the events that
occurred on July 4, 2008. Naturally, a large portion of the closing arguments for both
sides would pertain to the credibility of the witnesses. Contrary to Defendant’s
argument, the prosecutor’s remarks during closing argument, when taken in context, were
not statements of the prosecutor’s personal beliefs or opinions about the witnesses’
testimony. It appears from the record that the prosecutor was using the testimony of
other witnesses to corroborate the testimony of Ms. Kilby. Similarly, the prosecutor
described the precarious situation that Defendant was in to show a motivation for him to
be less than truthful. At no point did the prosecutor express a personal opinion or belief
as to the truth or falsity of each witness’s testimony. Thus, no clear and unequivocal rule
of law has been breached, and no further analysis is warranted. Defendant has failed to
establish that plain error exists.

                               V. Sufficiency of the Evidence

        Defendant argues that the evidence is insufficient to sustain his convictions of
facilitation of felony murder where the underlying felony is kidnapping, facilitation of
felony murder where the underlying felony is theft, and facilitation of attempted second
degree murder. Specifically, Defendant argues that his convictions for felony murder
cannot stand because there was no evidence regarding his intent to commit kidnapping or
                                            - 14 -
theft. Further, Defendant argues that “it is unclear how the jury found that anyone in the
car attempted second degree murder in addition to someone else committing felony
murder.” The State contends that the evidence is sufficient to support Defendant’s
convictions and that any inconsistencies in the verdicts do not affect the validity of his
convictions. We agree with the State.

       Well-settled principles guide this Court’s review when a defendant challenges the
sufficiency of the evidence. A guilty verdict removes the presumption of innocence and
replaces it with a presumption of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn.
1992). The burden is then shifted to the defendant on appeal to demonstrate why the
evidence is insufficient to support the conviction. State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). The relevant question the reviewing court must answer is whether any
rational trier of fact could have found the accused guilty of every element of the offense
beyond a reasonable doubt. See Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S.
307, 319 (1979). On appeal, “the State is entitled to the strongest legitimate view of the
evidence and to all reasonable and legitimate inferences that may be drawn therefrom.”
State v. Elkins, 102 S.W.3d 578, 581 (Tenn. 2003). As such, this Court is precluded from
re-weighing or reconsidering the evidence when evaluating the convicting proof. State v.
Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d
776, 779 (Tenn. Crim. App. 1990). Moreover, we may not substitute our own
“inferences for those drawn by the trier of fact from circumstantial evidence.” Matthews,
805 S.W.2d at 779. Further, questions concerning the credibility of the witnesses and the
weight and value to be given to evidence, as well as all factual issues raised by such
evidence, are resolved by the trier of fact and not the appellate courts. State v. Pruett,
788 S.W.2d 559, 561 (Tenn. 1990). “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. Facilitation of Felony Murder

        Felony murder is “[a] killing of another committed in the perpetration of or
attempt to perpetrate any . . . theft [or] kidnapping[.]” T.C.A. § 39-13-202. Generally,
facilitation of a felony requires proof beyond a reasonable doubt that “the accused (a)
knew another person was going to commit a specified felony and (b) knowingly
furnished substantial assistance in the commission of the felony although the accused did
not possess the requisite intent to be guilty of the felony.” State v. Parker, 932 S.W.2d
945, 950-51 (Tenn. Crim. App. 1996); see T.C.A. § 39-11-403. Specifically, facilitation
of felony murder requires proof that:

      1. One of the felonies listed in Tenn. Code Ann. § 39-13-202(a)(2) or (3)
      was committed;
                                          - 15 -
       2. The victim was killed during the commission of that offense;

       3. The defendant knew that another person intended to commit the
       underlying felony, but he or she did not have the intent to promote or assist
       the commission of the offense or to benefit in the proceeds or results of the
       offense; and

       4. The defendant knowingly furnished substantial assistance to that person
       in the commission of the underlying felony.

State v. Margie Jeanette Farley, No. M2003-02826-CCA-R3-CD, 2005 WL 366890, at
*9 (Tenn. Crim. App. Feb, 16, 2005), perm. app. denied (Tenn. June 27, 2005); see also
State v. Ely, 48 S.W.3d 710, 719-20 (Tenn. 2001). The underlying felonies in this case
are kidnapping and theft. T.C.A. § 39-14-103(a). Kidnapping occurs when a person
“knowingly removes or confines another unlawfully so as to interfere substantially with
the other’s liberty” under such circumstances that the other person is exposed to a
“substantial risk of bodily injury.” T.C.A. §§ 39-13-302(a), -303(a). “A person commits
theft of property if, with the intent to deprive the owner of property, the person
knowingly obtains or exercises control over the property without the owner’s effective
consent.” T.C.A. § 3914-103.

       When viewed in a light most favorable to the State, the evidence presented at trial
showed that Defendant pushed the victim into the back seat of the vehicle with Mr.
Olebe’s assistance. Then, the car window was kicked out, and Mr. Olebe proceeded to
violently beat the victim. A reasonable juror could find that the victim was kidnapped
when Defendant and Mr. Olebe forced the victim into the back seat of the car, interfering
with the victim’s liberty, and that the circumstances exposed the victim to substantial risk
of bodily injury because a window was kicked out and the victim was beaten.
Additionally, the evidence at trial showed that as the above kidnapping as was taking
place, Defendant took over driving the vehicle. A reasonable juror could also conclude
that Mr. Olebe and Defendant intended to deprive the victim of his vehicle when they
forced him into the backseat, and obviously, the victim did not consent. The evidence
also showed that the victim was killed after the group left Mr. Fishback’s house and that
the victim was still fighting and struggling in the back seat at the point that he was shot.
A reasonable juror could conclude that the kidnapping and theft were still in progress at
the time that the victim was shot because he was still resisting confinement and refusing
to consent to the taking of his property.

      With regard to the last two elements, the jury could infer that Defendant knew of a
plan by Mr. Olebe to commit the kidnapping and theft from the circumstantial evidence
that Defendant and Mr. Olebe spoke on the phone, Defendant took the victim to Mr.
                                           - 16 -
Olebe’s house, Defendant pushed the victim into the back seat, Defendant took over
driving the victim’s car, and Defendant destroyed the victim’s phone. Further, a
reasonable juror could conclude that Defendant furnished substantial assistance by
shoving the victim into the back of the car, driving the car, or handing Mr. Olebe the gun.
Therefore, a reasonable juror could conclude beyond a reasonable doubt that Defendant
was guilty of two counts of facilitation of felony murder with kidnapping and theft as the
underlying felonies.

                   B. Facilitation of Attempted Second Degree Murder

        The elements of facilitation listed above also apply to facilitation of attempted
second degree murder. As applicable in this case, second degree murder is a “knowing
killing of another[.]” T.C.A. § 39-13-210(a)(1).

       A person commits criminal attempt who, acting with the kind of culpability
       otherwise required for the offense:

       (1) Intentionally engages in action or causes a result that would constitute
       an offense, if the circumstances surrounding the conduct were as the person
       believes them to be;

       (2) Acts 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; or

       (3) Acts with intent to complete a course of action or cause a result that
       would constitute the offense, under the circumstances surrounding the
       conduct as the person believes them to be, and the conduct constitutes a
       substantial step toward the commission of the offense.

T.C.A. § 39-12-101(a). In other words, “to support a conviction for facilitation of
attempted second degree murder . . . the evidence must establish the defendant knew the
[gunman] intended to commit a knowing killing and substantially assisted in the
commission of the offense.” State v. Pharez Price, No. M2002-01717-CCA-R3-CD,
2003 WL 1868653 at *9 (Tenn. Crim. App. Apr. 11, 2003), perm. app. denied (Tenn.
Oct. 13, 2003). “It is no defense to prosecution for criminal attempt that the offense
attempted was actually committed.” T.C.A. § 39-12-101(c).

        Viewing the evidence in a light most favorable to the State, a reasonable juror
could credit the testimony of Ms. Kilby and find the following: Defendant told the victim
“to shut up or he was going to kill him;” Defendant handed the gun to Mr. Olebe; and Mr.
Olebe fired two shots which struck the victim. Defendant’s earlier statement of his intent
                                           - 17 -
to kill the victim could give rise to the inference in a reasonable juror’s mind that
Defendant knew that Mr. Olebe also intended to kill the victim when Defendant handed
him the gun. Thus, a reasonable juror could find beyond a reasonable doubt that
Defendant knew Mr. Olebe intended to knowingly kill the victim and that Defendant
substantially assisted him by handing him the gun. The evidence is sufficient to support a
conviction for facilitation of attempted second degree murder.

        When it comes to Defendant’s argument that “it is unclear how the jury found
that anyone in the car attempted second-degree murder in addition to someone else
committing felony murder,” we do not see how it is “unclear.” A reasonable juror could
find that two distinct events took place. One event occurred when Defendant facilitated
attempted second degree murder by handing Mr. Olebe the gun before Mr. Olebe shot the
victim, inflicting a non-fatal wound. The victim’s eventual death does not mean that
Defendant’s conviction for attempt cannot stand. See T.C.A. § 39-12-101(c); State v.
Thorpe, 463 S.W.3d 851, 862 (Tenn. 2015) (stating that “[p]roof that the defendant failed
to complete the crime is not an element of the offense of criminal attempt.”). A separate
event occurred when Defendant facilitated felony murder by pushing the victim into the
back seat, driving the car, and providing the gun during the commission of a theft and
kidnapping during which the victim was killed. If Defendant’s argument were
interpreted as an argument that the verdicts were inconsistent, as the State interprets
Defendant’s argument in their brief, we refuse to disturb jury verdicts by speculating as
to how they were reached. See Wiggins v. State, 494 S.W.2d 92, 94 (Tenn. 1973). The
evidence is sufficient for all of Defendant’s convictions.

                                       Conclusion

      For the aforementioned reasons, the judgments of the trial court are affirmed.


                                         ____________________________________
                                         TIMOTHY L. EASTER, JUDGE




                                          - 18 -
