        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                   July 16, 2013 Session

          STATE OF TENNESSEE v. FELTON NEVILLE JACKSON

                  Appeal from the Criminal Court for Wilson County
                     No. 09-CR-416     David E. Durham, Judge


                No. M2012-00828-CCA-R3-CD Filed October 17, 2013


Appellant, Felton Neville Jackson, was indicted by a Wilson County grand jury for especially
aggravated robbery and aggravated assault. He was convicted of both charges, and the trial
court sentenced him to concurrent sentences of twenty-five years and six years, respectively.
He now appeals his convictions and sentences on the following grounds: (1) the trial court
erred by allowing a police officer to offer an allegedly testimonial statement attributed to the
victim; (2) the evidence was insufficient to sustain his convictions; and (3) his sentences are
excessive. Following our review, we discern no error and affirm appellant’s convictions.
However, we vacate the judgments in this case and remand this cause for entry of a single
judgment of conviction noting merger of the aggravated assault conviction into the especially
aggravated robbery conviction.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Vacated;
                                  Case Remanded

R OGER A. P AGE, J., delivered the opinion of the court, in which D. K ELLY T HOMAS, J R., and
C AMILLE R. M CM ULLEN, JJ., joined.

Adam Wilding Parrish, Lebanon, Tennessee, for the appellant, Felton Neville Jackson.

Robert E. Cooper, Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; Tom P. Thompson, Jr., District Attorney General; and Howard Chambers, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

      This appeal stems from the especially aggravated robbery and aggravated assault of
Charles Hardy (“the victim”) that occurred in the hotel room in which he resided.
                                              I. Facts

           A. Facts from Pre-Trial Hearing on State’s Motion to Allow Evidence

        The State filed a motion to allow Officer Joshua Lewis to testify that when he first
encountered the victim, the victim told him that he had been asleep and was awakened by a
large black male hitting him in the head with some sort of object (hereinafter referred to as
the “first statement”). Further, the victim told Officer Lewis that he did not know the black
male but that he “lived down the way” (hereinafter referred to as the “second statement”).
The State’s position was that the victim’s first statement was nontestimonial in nature and
that Officer Lewis should be permitted to testify with regard to it because the victim was
unable to recall the details of the offenses due to the head injuries he sustained in the attack.
The State conceded that the second statement was testimonial in nature and should be
excluded from evidence.

        At the hearing, Officer Lewis testified that he was an officer with the City of Lebanon
Police Department. He and a fellow officer were dispatched to the Plaza Motel1 on
December 23, 2008, at approximately 4:45 a.m., to respond to a 9-1-1 call. When they
arrived, they were unable to enter the victim’s room, so they obtained a master key from hotel
personnel. Upon entering the room, Officer Lewis observed that the room “was in
shambles.” Personal belongings were strewn about the room, and the mattress had been
removed from the bed and was lying in front of the doorway. He and Officer Stone began
to “clear” the room to ensure that the room was safe before allowing emergency personnel
to enter the room, during which time Officer Lewis saw the victim lying on the box springs
of the bed. He testified that there was “blood everywhere,” including the floor, the mattress,
the box springs, the ceiling, and the walls. After notifying medical personnel that the room
was “clear,” Officer Lewis approached the victim and asked him what had happened. The
victim stated that “he was laying [sic] in bed . . . [and] . . . awaken[ed] to a big black guy
beating him with a pipe.” Officer Lewis assisted emergency personnel in loading the victim
into the ambulance and secured the room.

        On cross-examination, Officer Lewis confirmed that the victim’s hotel room door was
locked when they arrived and that he did not observe any signs of forced entry. He stated
that the victim was conscious but lying on the box springs of the bed, covered in blood.

       The defense called Officer Scott Massey, who prepared the affidavit in support of the
search warrant for appellant’s residence. In his affidavit, he asserted that “‘as the ambulance


       1
         Plaza Motel, Plaza Travel Lodge, and Plaza Inn Motel are used interchangeably by witnesses
throughout the transcript. For ease of reference, we will refer to this location as the “Plaza Motel.”

                                                 -2-
was loading [the victim] for transport, . . . the victim told Officer Lewis that he was asleep
and awoke to a large black male beating him with a blunt object and that the suspect lived
down the way.’”

        The State recalled Officer Lewis, who clarified that the victim actually made two
statements to him. One statement occurred in the hotel room during the initial contact. After
Officer Lewis had secured the room and the victim was in the ambulance, Officer Lewis
approached the victim and inquired as to the identity of the assailant. During that statement,
the victim indicated that the black male “lived down the way.” Officer Lewis recognized the
seriousness of the victim’s injuries and attempted to gather additional information, including
perhaps a dying declaration, before the victim was transported. Officer Lewis classified the
second statement as testimonial in nature.

        The trial court considered the arguments of counsel and ruled that the victim’s first
statement was nontestimonial and was admissible under hearsay exceptions 803(2), (3), and
(4) of the Tennessee Rules of Evidence.

                                     B. Facts from Trial

       The State’s first witness was Officer Lewis, who testified consistently with his
testimony at the pre-trial motion hearing. The State also offered several photographs into
evidence through Officer Lewis.

       The next witness was John Wayne Engle, who lived in close proximity to the Plaza
Motel. On the morning of December 23, 2008, he was walking his dog between 6:00 and
6:30 a.m. when he discovered checkbooks lying on the ground between his residence and the
residence next door to him. He noticed several police officers in the vicinity and turned the
checkbooks in to an officer.

        Officer Matthew Dedman, an officer with the City of Lebanon Police Department,
testified that he was working on December 23, 2008. His responsibility that day was to
secure the crime scene van. When he was on duty, someone approached him and handed him
some checkbooks. He turned the checkbooks over to Detective Massey.

       The State next called Shirley Bogle, who resided in the Plaza Trailer Park, which was
located directly behind the Plaza Motel. She testified that she placed a 9-1-1 call around 4:30
a.m. on December 23, 2008. The call was precipitated by appellant’s arguing with a pregnant
female. Ms. Bogle asked appellant and the female to move because they were standing very
close to her dog, who was chained, and she feared that the dog might bite one of them. She
observed appellant holding what appeared to be an umbrella and something “hanging[,] like

                                              -3-
a purse or something . . . .” Ms. Bogle indicated that she called 9-1-1 because appellant and
the female were in a “fight or a fuss,” and because the female was pregnant, Ms. Bogle was
concerned that appellant might harm her. In her call, she asked the police to patrol the area;
she did not ask them to investigate or take any other action. She identified appellant in court.

        On cross-examination, Ms. Bogle stated she was positive that the female was pregnant
because she had seen her previously but did not know her personally. She acknowledged that
what she thought was an umbrella could have been a flashlight. She confirmed that appellant
lived in the same community, and she pointed out his residence on a map.

       The State’s next witness was Tabitha Donnelly. She pleaded guilty to criminal
charges arising from this incident and received a sentence of fifteen years, to be served at
100% release eligibility. On the day in question, she had borrowed the victim’s Jeep.
Around 4:00 a.m., she was visiting an acquaintance and “was getting high” when appellant
knocked on the back door. The owner of the home instructed Ms. Donnelly to open the door
for him. Once inside, appellant asked Ms. Donnelly what she was about to do, and she told
him that she was going to return the victim’s Jeep. Appellant asked Ms. Donnelly if the
victim usually had money in his possession, and she responded affirmatively. She asked
appellant, “Why, do you want to rob him? Don’t hurt him, just scare him.” Appellant
responded, “S**t, it’s Christmastime. I ain’t got no more dope. My pockets is [sic] empty.
I’m down with whatever.”

        Ms. Donnelly and appellant then left, and she drove appellant to the Plaza Motel at
the entrance of the parking lot. She continued through the parking lot and parked outside of
the victim’s room. She entered the victim’s room and sat down in a chair. The victim asked
Ms. Donnelly if she had locked the Jeep. She answered that she had not, and she walked
outside to do so. At that point, appellant walked into the room. Appellant approached the
victim, who was in bed, and asked for all of his money. Ms. Donnelly opined that the victim
was aware of appellant’s intentions and leaned back so that he could kick appellant, but
appellant produced a steering wheel lock and struck the victim.

        Ms. Donnelly stated that she stood in the doorway in shock, saying, “Please quit
hitting him.” Appellant did not stop the attack. As the victim and appellant fought, appellant
pulled the victim’s foot and dragged the victim and the mattress upon which he was lying
onto the floor. Appellant ordered Ms. Donnelly to take the victim’s money, so she stepped
across the mattress and box springs to look for his wallet, which she assumed was under the
bed. When she found nothing there, Ms. Donnelly fled from the room followed by appellant.
She noted that when appellant left, he had taken the victim’s wallet, some checkbooks, a
bowl of coins, and the weapon he used in the attack. They ran into the Plaza Trailer Park.
They stopped in front of a trailer where a pit bull was chained outside. They began to argue,

                                              -4-
and the owner of the trailer, a female, came outside and asked them to move away from her
trailer. Ms. Donnelly was arrested ten minutes later. Later that day, Detective Massey
interviewed her, and she gave a statement recounting the events. Ms. Donnelly identified
appellant at trial.

       On cross-examination, Ms. Donnelly admitted that the victim was “a trick” to her,
meaning that she would “do things . . . for money.” She acknowledged that she was not
pregnant on the date in question. She further admitted that her intention was to assist
appellant in robbing the victim but not hurting him. Ms. Donnelly stated that she did not
touch the steering wheel lock but that appellant must have retrieved it from the victim’s Jeep.

       Ms. Donnelly agreed that she had the victim’s blood on her shoes and a “splatter of
blood” on her pants when she was arrested. She confirmed that she stayed in the victim’s
room on the inside of the door during the attack, that she entered the room briefly in an
attempt to retrieve the victim’s wallet, and that she never touched the victim. She did not
remove any of the victim’s belongings. Ms. Donnelly stated that after her interview with
Detective Massey, he drove her to the Plaza Trailer Park to assist him in retrieving the
weapon. Although she believed she knew where the weapon was located, they were
unsuccessful in recovering it.

        Ms. Donnelly identified a photograph of an item that bore the word “club” on it. She
did not recall having seen the item in the victim’s Jeep or touching the item while she was
in the Jeep. She admitted having received narcotics from appellant on occasion. Had she
received any proceeds from the robbery of the victim, she intended to use the money “to get
high.”

        The State called the victim as its next witness. He was sixty-three years old at the
time of trial. At the time of the incident, he had resided at the Plaza Inn Motel for eight to
ten years. The victim testified that he suffered injuries to his skull and a finger as a result of
the attack on him. However, he did not recall how the attack occurred and did not remember
anything about the events of the day in question. His first memory thereafter was waking up
in the rehabilitation area of Vanderbilt Hospital. He did not know who attacked him. The
victim did not remember Tabitha Donnelly, either.

       The State’s next witness was Detective Scott Massey with the Lebanon Police
Department. He responded to the Plaza Motel around 5:30 a.m. on December 23, 2008.
When he arrived, Officers Lewis and Stone were on the scene, and the ambulance was en
route to the hospital. When Detective Massey saw the size of the room, he requested
assistance from the Crime Scene Team because it was larger than he could process by
himself. He recalled receiving the victim’s checkbooks from Officer Dedman. He left the

                                               -5-
motel around 7:00 a.m. to return to the police department. He developed an idea, based on
items he observed in the hotel room, that a female had been there, so he checked to see if any
female with whom law enforcement was familiar had been arrested. He learned that Tabitha
Donnelly had, in fact, been arrested that morning in close proximity to the crime scene. He
asked that Ms. Donnelly be brought from the jail so he could speak with her and also
requested to examine the clothing she had been wearing. He noticed blood on Ms.
Donnelly’s shoes and also noted that Ms. Donnelly had been wearing a very large, dark-
colored “hoodie” style sweatshirt and sweat pants. He forwarded Ms. Donelly’s clothing to
the crime laboratory. Ms. Donnelly gave Detective Massey a statement implicating appellant
then accompanied him to the hotel around 9:30 or 9:40 a.m. on December 23 to direct
officers to the assault weapon. However, their attempt to locate the weapon was
unsuccessful.

        Through the course of the investigation, Detective Massey learned where appellant
resided. He returned to the trailer park during the morning of December 23 and knocked on
the door. Appellant opened it, turned around, and walked to the sofa, where he sat down.
He looked as though he had been asleep. He was wearing boxer shorts and had a piece of
toilet paper inside his nose with dried blood on it. Appellant explained that he was trying to
stop a nose bleed. From the door, Detective Massey asked appellant what time he arrived
at his home the previous night. Appellant responded that he had been at home all night.
Detective Massey requested that appellant get dressed and accompany him to the police
department.

       Later in the day, Detective Massey obtained a search warrant for appellant’s trailer.
He also requested assistance from the Crime Scene Team in searching the area surrounding
appellant’s trailer. During that search, Detective Massey noticed that the underpinning of
a neighboring trailer had been pulled back. He looked under the trailer and observed a bed
sheet located approximately in the middle of the area under the trailer. He crawled into the
space and pulled the sheet back, revealing a towel and the club that had been described by
Ms. Donnelly as the weapon used by appellant. Detective Massey later found the other half
of the club’s mechanism behind the passenger seat of the victim’s Jeep.

       On cross-examination, Detective Massey stated that as part of the investigation, he
obtained buccal swabs from the victim, Ms. Donnelly, and appellant. At trial, he identified
photographs of shoe prints that were left on the victim’s mattress and on a piece of paper.
He also testified that witnesses whom they interviewed indicated that a pregnant female and
a white male had attempted to “jimmy” the lock of the victim’s door a few days prior to the
assault. The witnesses indicated that the female they had previously seen was not Ms.
Donnelly, saying, “[N]o, its not the pregnant female that we seen [sic] tonight. It’s a
different girl.”

                                             -6-
        Detective Massey discussed another case in the area involving Ms. Donnelly but
stated that she was not a suspect in the case. Rather, she was with the victim at the time
when a slightly-built black male entered that victim’s home and tried to steal his wallet.
Detective Massey confirmed that no identifiable latent fingerprints were obtained from the
crime scene. He also acknowledged that no physical evidence from the crime scene
implicated appellant and that the search of appellant’s trailer rendered no incriminating
evidence. Appellant declined to make a statement to Detective Massey.

       Dr. Jarod McKinney testified that he was a professor of emergency medicine at
Vanderbilt University and that he also worked in the emergency department of Vanderbilt
Hospital. The trial court accepted Dr. McKinney as an expert in the field of medicine. Dr.
McKinney treated the victim when he was admitted into the emergency department. The
victim suffered multiple skull fractures, facial fractures, and intracranial bleeding. He
described the intracranial bleeding as being potentially life-threatening. He stated that it
would have taken four to six weeks for appellant’s fractures to heal. Although appellant
presented in a conscious state, he experienced a seizure after the CAT scan and awakened
later.

        Special Agent Forensic Scientist Mark Dunlap with the Tennessee Bureau of
Investigation next testified as an expert in the fields of serology and DNA analysis. He
testified that exhibit 22, which contained the bed sheet, towel, and club, contained the
victim’s DNA. A blood stain on Ms. Donnelly’s sweatshirt could not be tested further for
DNA because the blood was likely transferred there by being packaged together with the
sweat pants. The blood stain on her pants contained DNA from the victim as the major
contributor. Some of the areas indicated that Ms. Donnelly was the minor contributor, but
other stains contained DNA from a minor contributor that was insufficient for further testing.
Special Agent Dunlap obtained the victim’s DNA from Ms. Donnelly’s shoes. The victim’s
checkbooks were tested and contained DNA from the victim as a minor contributor and from
appellant as a major contributor. No DNA was obtained from blood stains on the doorframe
of the victim’s room, the scrapings from appellant’s fingernails, or blood stains around the
victim’s bathroom. A knife found in the victim’s room tested positive for the presence of his
own DNA.

       The State rested its case-in-chief, and the defense put forth no proof. Following
deliberations, the jury found appellant guilty of especially aggravated robbery, a Class A
felony, and aggravated assault, a Class C felony.




                                             -7-
                             C. Facts from Sentencing Hearing

        Prior to trial, the State filed a notice of intent to seek enhanced punishment upon
conviction, in which it asserted that appellant was a Range I standard offender who had three
felony convictions for possession of a controlled substance. At the hearing, the parties
stipulated to admission of the presentence report without the necessity of calling the
probation officer to testify. Appellant relied on the following mitigating factors: (1) that he
played a minor role in the commission of the offense; (2) that because of youth or old age,
he lacked substantial judgment in committing the offense; (3) that he was motivated by a
desire to provide necessities for his family or himself; (4) that he was suffering from a mental
or physical condition that reduced his culpability; and (5) that the “catch-all” provision
applied. Tenn. Code Ann. § 40-35-113(4), (6), (7), (8), (13) (2010).

        The trial court considered the guidelines created by the legislature and the Tennessee
Supreme Court, as well as the mitigating and enhancing factors advanced by both parties.
It reviewed appellant’s criminal history and noted eleven prior misdemeanors, two of which
involved violence to a person, in addition to the three felony convictions for which the State
produced certified judgments. The trial court disagreed with appellant’s characterization that
his involvement in the offense was minor. It also declined to apply factor (2), because
appellant was thirty-five years old at the time of sentencing. The trial court rejected
appellant’s assertion that he was motivated by a desire to provide for his family based, in part
on his $46,874.96 child support arrearage and lack of employment. It found that appellant
presented no proof in support of his suffering from a mental or physical condition that
reduced his culpability. The trial court reviewed its notes from the trial and found no
circumstance that would fit into the “catch-all” provision.

        The trial court found that appellant had a previous history of criminal convictions or
behavior in addition to those necessary to establish the appropriate range of punishment,
stating that appellant was “as close to the extreme of Range 1 as a person can possibly be
without crossing that line as a Range 2 offender . . . .” Tenn. Code Ann. § 40-35-115(1)
(2010 & Supp. 2012). It further found that appellant was the leader in the commission of the
offense, rather than a minor participant. Id. at § -115(2). It found that the victim was
particularly vulnerable due to his age or physical or mental ability. Id. at § -115(4). In
weighing the enhancing factors against the lack of mitigating factors, the trial court found
appellant to be “deserving of the maximum Range 1 sentence . . . .” Accordingly, the trial
court imposed concurrent sentences of twenty-five years, to be served at 100% release
eligibility, for especially aggravated robbery and six years, to be served at thirty percent
release eligibility, for aggravated assault.

       After the trial court denied appellant’s motion for a new trial, this appeal follows.

                                              -8-
                                               II. Analysis

     A. Trial Court’s Ruling Allowing an Officer to Testify to the Victim’s Statement
                                  at the Crime Scene

        Appellant challenges the trial court’s ruling permitting Officer Lewis to testify with
regard to the victim’s statement at the crime scene indicating that the perpetrator had been
a large, black male who “lived down the way.” In his brief, appellant combines the two
statements the victim made to Officer Lewis. As clarified above, the victim made two
statements to Officer Lewis, but the State only sought admission of the first one, admitting
that the second statement was testimonial in nature. In his first statement, the victim said
that he had been beaten by a large black man with a pipe. In his second statement, which was
not introduced at trial, he indicated that the black man “lived down the way.”

       Following a pre-trial hearing on the matter, the trial court ruled that the first statement
was nontestimonial and that Officer Lewis asked the question to enable police officers to
meet an ongoing emergency, not for the primary purpose of criminal prosecution. With
regard to whether the statement was testimonial or nontestimonial, we review the trial court’s
application of law to the facts of this case under our de novo standard of review without a
presumption of correctness. State v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000). The trial
court also determined the statement fell within the hearsay exceptions of Tennessee Rule of
Evidence 803, subsections (2), (3), and (4).2

        In our first inquiry, we must determine the testimonial or nontestimonial character of
the statements offered. Our supreme court has held:



        2
           We are aware of the disagreement among panels of this court regarding the appropriate standard
of review of the admissibility of hearsay evidence. See State v. Dotson, 254 S.W.3d 378, 392 (Tenn. 2008)
(in considering an issue involving hearsay, holding that “questions concerning the admissibility of evidence
rest within the sound discretion of the trial court, and this Court will not interfere in the absence of abuse
appearing on the face of the record”); Pylant v. State, 263 S.W.3d 864, 871 n.26 (Tenn. 2008) (maintaining
that the standard of review for hearsay issues is abuse of discretion); Willie Perry, Jr. v. State, No. W2011-
01818-CCA-R3-PC, 2012 WL 2849510, at *3 (Tenn. Crim. App. July 11, 2012) (stating that standard of
review for admissibility of evidence is abuse of discretion). But see State v. Gilley, 297 S.W.3d 739, 760
(Tenn. Crim. App. 2008) (stating that whether a statement is offered to prove the truth of the matter asserted
is “necessarily a question of law” and is not subject to review under abuse of discretion standard); State v.
Schiefelbein, 230 S.W.3d 88, 128 (Tenn. Crim. App. 2007) (holding that appellate review of hearsay issues
is de novo with no presumption of correctness); Willie Perry, Jr., 2012 WL 2849510, at *7 (Bivins, J.,
concurring) (applying de novo standard of review to hearsay issues). It is not necessary for us to compare
the merits of each position because, for purposes of our determination of this issue, the evidence is
admissible under either standard of review.

                                                     -9-
               When the prosecution seeks to introduce a declarant’s out-of-court
       statement, and a defendant raises a Confrontation Clause objection, the initial
       determination under Crawford [v. Washington] is whether the statement is
       testimonial or nontestimonial. If the statement is testimonial, then the trial
       court must determine whether the declarant is available or unavailable to
       testify . . . . If the declarant is unavailable, the trial court must determine
       whether the accused had a prior opportunity to cross-examine the declarant
       about the substance of this statement. If the accused had such an opportunity,
       the statement may be admissible if it is not otherwise excludable hearsay. If
       the accused did not have this opportunity, then the statement must be excluded.

State v. Maclin, 183 S.W.3d 335, 351 (Tenn. 2006), abrogated on other grounds by Davis
v. Washington, 547 U.S. 813 (2006) (internal citations omitted); see also State v. Bowman,
367 S.W.3d 69, 89 (Tenn. Crim. App. 2009).

       The United States Supreme Court has refined the inquiry into whether a statement is
testimonial or nontestimonial, holding:

       Statements are nontestimonial when made in the course of police interrogation
       under circumstances objectively indicating that the primary purpose of the
       interrogation is to enable police assistance to meet an ongoing emergency.
       They are testimonial when the circumstances objectively indicate that there is
       no such ongoing emergency[ ] and that the primary purpose of the
       interrogation is to establish or prove past events potentially relevant to later
       criminal prosecution.

Davis, 547 U.S. at 822; see State v. Cannon, 257 S.W.3d 287, 302 (Tenn. 2008).

         Applying this case law, we conclude that the trial court properly found the victim’s
first statement to be nontestimonial in nature. Officer Lewis entered a hotel room where he
observed blood on several surfaces, walls, and the ceiling. After “clearing” the room, he
noticed the victim and summoned emergency personnel. He then approached the victim and
inquired, “What happened?” It is clear from the nature of the emergency that Officer Lewis
justifiably acted with haste in summoning emergency personnel to the victim’s bedside
before questioning him. The fact that emergency personnel were approaching does not
denigrate the nature of the “ongoing emergency” in this case. Having determined that the
victim’s statement was nontestimonial, we next consider whether an exception to the hearsay
rule authorizes its admission.




                                             -10-
        Hearsay is defined as “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
Tenn. R. Evid. 801(c). Generally, hearsay is not admissible at trial unless it falls within an
exception to the exclusionary rule. Tenn. R. Evid. 802.

       The trial court applied Tennessee Rule of Evidence 803(2), the “excited utterance”
exception, which embodies “[a] statement relating to a startling event or condition made
while the declarant was under the stress of excitement caused by the event or condition.”
“Underlying the excited utterance exception is the theory that ‘circumstances may produce
a condition of excitement which temporarily stills the capacity of reflection and produces
utterances free of conscious fabrication.’” State v. Franklin, 308 S.W.3d 799, 823 (Tenn.
2010) (quoting State v. Land, 34 S.W.3d 516, 528 (Tenn. Crim. App. 2000)). Our supreme
court has described the “ultimate test” of whether a statement meets the excited-utterance
standard as “‘spontaneity and logical relation to the main event and where an act or
declaration springs out of the transaction while the parties are still laboring under the
excitement or strain of the circumstances and at a time so near it as to preclude the idea of
deliberation and fabrication.’” Id. (quoting State v. Smith, 857 S.W.2d 1, 9 (Tenn. 1993)).
Our courts have interpreted Tennessee Rule of Evidence 803(2) as setting forth three
requirements for a statement to meet this exception:

       The first requirement is “a startling event or condition” that “‘suspend[s] the
       normal, reflective thought processes of the declarant.’” Second, the statement
       must “relate to” the startling event or condition. This broad requirement offers
       “considerable leeway” such that “the statement may describe all or part of the
       event or condition, or deal with the effect or impact of that event or condition.”
       The third and final requirement dictates that the declarant make the statement
       while “under the stress or excitement from the event or condition.” This
       requirement considers a variety of factors, including the interval of time
       between the startling event and the statement.

Id.

        We conclude that the victim certainly endured a startling event or condition when
appellant attacked him. The statement the victim made to Officer Lewis related to the
startling event or condition. The short interval of time between the attack and the victim’s
statement to Officer Lewis, together with the severity of the attack, supports the conclusion
that the statements were made while the victim was still under stress from the event. The
trial court properly applied this hearsay exception.




                                               -11-
        The trial court also found that Tennessee Rule of Evidence 803(3) applied to the
victim’s statement. The rule provides that out-of-court statements concerning “the
declarant’s then existing state of mind, emotion, sensation, or physical condition (such as
intent, plan, motive, design, mental feeling, pain, and bodily health)” are not excluded by the
hearsay rule. Tenn. R. Evid. 803(3). The Advisory Commission Comments make clear that
conduct of a third party cannot be proven by a statement admitted pursuant to this exception.
We conclude that the trial court erred in applying this exception to allow admission of the
victim’s first statement. However, any error would have been harmless in light of the trial
court’s proper application of Tennessee Rule of Evidence 803(2). See Tenn. R. App. P.
36(b).

        Finally, the trial court found that Tennessee Rule of Evidence 803(4) allowed
admission of the victim’s statement to Officer Lewis. “Statements made for purposes of
medical diagnosis and treatment describing medical history; past or present symptoms, pain,
or sensations; or the inception or general character of the cause or external source thereof
insofar as reasonably pertinent to diagnosis and treatment” are excluded from the prohibition
against hearsay statements. Tenn. R. Evid. 803(4). The Advisory Committee Comment
clarifies that such statements are limited “to declarations . . . made to treating doctors[,] . .
. [and] [t]he declaration must be for both diagnosis and treatment.”

               The rationale justifying the exception is two-fold: (1) a statement made
       by a patient to a physician is presumptively trustworthy because a patient is
       strongly motivated to speak the truth in order to receive proper diagnosis and
       treatment; and (2) any statement upon which a physician will rely as a basis for
       diagnosis and treatment is also sufficiently reliable for consideration by a court
       of law.

State v. Stinnett, 958 S.W.2d 329, 331 (Tenn. 1997) (citing State v. McLeod, 937 S.W.2d
867, 870 (Tenn.1996)).

       In the case at bar, the victim made the statement in question to a law enforcement
officer, not a doctor or emergency medical personnel, who were not yet in the room. The
statement was not made for the purpose of medical diagnosis or treatment. The trial court
improperly applied this hearsay exception. However, because the statement squarely falls
within the excited utterance exception to the hearsay rule, this error was harmless. See Tenn.
R. App. P. 36(b). Appellant is not entitled to relief on this issue.




                                              -12-
                        B. Sufficiency of the Convicting Evidence

        Appellant challenges the sufficiency of the evidence supporting his convictions,
contending that Ms. Donnelly was the sole perpetrator and that the evidence against him is
insufficient to support his convictions. The standard for appellate review of a claim
challenging the sufficiency of the State’s evidence is “whether, after viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.
307, 319 (1979) (citing Johnson v. Louisiana, 406 U.S. 356, 362 (1972)); see Tenn. R. App.
P. 13(e); State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011). To obtain relief on a claim of
insufficient evidence, appellant must demonstrate that no reasonable trier of fact could have
found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443
U.S. at 319. This standard of review is identical whether the conviction is predicated on
direct or circumstantial evidence, or a combination of both. State v. Dorantes, 331 S.W.3d
370, 379 (Tenn. 2011); State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977).

        On appellate review, “‘we afford the prosecution the strongest legitimate view of the
evidence as well as all reasonable and legitimate inferences which may be drawn
therefrom.’” Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857 (Tenn.
2010)); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage, 571 S.W.2d
832, 835 (Tenn. 1978). In a jury trial, questions involving the credibility of witnesses and
the weight and value to be given the evidence, as well as all factual disputes raised by the
evidence, are resolved by the jury as trier of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn.
1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). This court presumes that the jury
has afforded the State all reasonable inferences from the evidence and resolved all conflicts
in the testimony in favor of the State; as such, we will not substitute our own inferences
drawn from the evidence for those drawn by the jury, nor will we re-weigh or re-evaluate the
evidence. Dorantes, 331 S.W.3d at 379; Cabbage, 571 S.W.2d at 835; see State v. Sheffield,
676 S.W.2d 542, 547 (Tenn. 1984). Because a jury conviction removes the presumption of
innocence that appellant enjoyed at trial and replaces it with one of guilt at the appellate
level, the burden of proof shifts from the State to the convicted appellant, who must
demonstrate to this court that the evidence is insufficient to support the jury’s findings.
Davis, 354 S.W.3d at 729 (citing State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011)).

        Especially aggravated robbery, as indicted in this case, is defined as “the intentional
or knowing theft of property from the person of another by violence or putting the person in
fear” that is “[a]ccomplished with a deadly weapon[ ] and [w]here the victim suffers serious
bodily injury.” Tenn. Code Ann. §§ 39-13-401, -403 (2010). At trial, the State presented the
testimony of Tabitha Donnelly, who placed appellant at the scene and established him as the
sole attacker. Although neither appellant’s fingerprints nor shoe prints were found at the

                                             -13-
crime scene, police received from a citizen several of the victim’s checkbooks that had been
stolen from his motel room. The checkbooks contained DNA from appellant as the major
contributor, which established his identity as one of the perpetrators. Ms. Donnelly’s
testimony established that appellant stole property belonging to the victim and accomplished
the theft by using part of a steering wheel locking mechanism to beat the victim, which meets
the definition of a deadly weapon. See Tenn. Code Ann. §§ 39-11-106(a)(5)(B) (2010)
(defining “deadly weapon” as “[a]nything that in the manner of its use or intended use is
capable of causing death or serious bodily injury”). The deadly weapon was subsequently
found under a trailer located in close proximity to appellant’s trailer. Expert testimony
established that the victim suffered serious bodily injury. The evidence was sufficient to
establish appellant’s guilt of especially aggravated robbery.

        As indicted in this case, aggravated assault is defined as intentionally, knowingly, or
recklessly causing bodily injury to another by the use or display of a deadly weapon. Tenn.
Code Ann. §§ 39-13-101, -102 (2010). The victim’s DNA was found on the steering wheel
mechanism, providing further proof that the mechanism was the deadly weapon appellant
utilized and corroborating Ms. Donnelly’s testimony. Medical testimony established the
degree of appellant’s bodily injury. The evidence was sufficient to convict appellant of
aggravated assault. Appellant is not entitled to relief on this claim of error.

                          C. Trial Court’s Imposition of Sentences

       In his brief, appellant lists as an issue:

       III.   Whether the sentence imposed is consistent with the evidence presented
              and consistent with applicable sentencing guidelines.

In his argument section, he states, “Finally, he seeks a review to determine whether the
sentence imposed is consistent with the evidence presented and consistent with applicable
sentencing guidelines.” He offers no argument, citation to the record, or citation to legal
authority in support of this claim. The only other mention of this alleged error is in the
conclusion, wherein appellant states, “Finally, that the sentence imposed is inconsistent with
the proof and applicable sentencing guidelines.”

       Appellant fails to offer any argument, citation to the record, or citation to relevant
authorities in support of his contention. Appellate briefs shall contain “the contentions of
the appellant with respect to the issues presented, . . . including the reasons why the
contentions require appellate relief, with citations to the authorities and appropriate
references to the record . . . relied on; and . . . for each issue, a concise statement of the
applicable standard of review.” Tenn. R. App. P. 27(a)(7) (emphasis added). In light of his

                                               -14-
failure to properly present this issue for our review, we conclude that he has waived appellate
review of his sentencing. See Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not
supported by argument, citation to authorities, or appropriate references to the record will be
treated as waived in this court.”); see also Berry v. State, 366 S.W.3d 160, 169 (Tenn. Crim.
App. 2011).

                                         D. Merger

        Appellant was charged in a two-count indictment with aggravated assault of the victim
by use of a deadly weapon, in violation of Tennessee Code Annotated section
39-13-102(a)(1)(B), and especially aggravated robbery, in violation of Tennessee Code
Annotated section 39-13-403(a). A conviction for especially aggravated robbery requires
proof of use of a deadly weapon. Tenn. Code Ann. § 39-13-403(a) (2010); see State v. Miko
T. Burl, No. W2000-02074-CCA-R3-CD, 2002 WL 1483207, at *2 (Tenn. Crim. App. Jan.
28, 2002) (noting that when the physical acts supporting “use of a deadly weapon” for
especially aggravated robbery were the same physical acts establishing “use of a deadly
weapon” for the aggravated assault, the principles of double jeopardy allow only one
conviction to stand because the offenses arose out of a “‘single wrongful act’”) (quoting
State v. Phillips, 924 S.W.2d 662, 665 (Tenn. 1996)). While both the State and the trial court
recognized that merger of the two convictions would be proper, the judgments fail to reflect
merger of the aggravated assault conviction into the especially aggravated assault conviction.
See State v. Banes, 874 S.W.2d 73, 81 (Tenn. Crim. App. 1993) (noting that pursuant to the
doctrine of merger, the lesser conviction merges with the greater offense, resulting in one
judgment of conviction), rev’d on other grounds, State v. Williams, 977 S.W.2d 101 (Tenn.
1998). Accordingly, we vacate the judgments of conviction in this case with instructions to
the trial court to enter a single judgment of conviction noting merger of aggravated assault
into especially aggravated robbery. See State v. Forrest Melvin Moore, Jr., No. M2012-
02059-CCA-R3-CD, 2013 WL 3874934, at *6 (Tenn. Crim. App. July 25, 2013).

                                      CONCLUSION

       Based on our review of the record, the briefs of the parties, arguments of counsel, and
relevant legal authorities, we affirm appellant’s convictions but vacate the judgments and
remand this matter for entry of a corrected judgment form consistent with this opinion.

                                                    _________________________________
                                                    ROGER A. PAGE, JUDGE




                                             -15-
