        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                       Assigned on Briefs September 10, 2015


            STATE OF TENNESSEE v. CHRISTOPHER M. EPPS

                Appeal from the Criminal Court for Davidson County
                   No. 2012-B-1179    Mark J. Fishburn, Judge




              No. M2014-01955-CCA-R3-CD – Filed October 14, 2015
                        _____________________________

Following a jury trial, Christopher M. Epps (“the Defendant”) was convicted of first
degree felony murder and sentenced to life. On appeal, the Defendant contends that the
evidence is insufficient to support his conviction and that the trial court erred when it
denied his request for a special jury instruction on eyewitness identification. Discerning
no error, we affirm the judgment of the trial court.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the Court, in which THOMAS T.
WOODALL, P.J., and ROBERT W. WEDEMEYER, J., joined.

Joshua L. Brand, Nashville, Tennessee, for the appellant, Christopher M. Epps.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Counsel; Victor S. Johnson, III, District Attorney General; and Dina Shabayek and Rob
McGuire, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                       OPINION

                        I. Factual and Procedural Background


      In May 2012, the Davidson County Grand Jury indicted the Defendant for first
degree premeditated murder, first degree felony murder, and employing a firearm during
the commission of a dangerous felony, all in connection with the death of the victim,
Dustyn Taapken. At the Defendant’s subsequent trial, Steven Simpson testified that he
had been the victim’s best friend before the victim’s murder in May 2011. Mr. Simpson
explained that, at the time of his death, the victim lived on Barella Court in Antioch and
regularly sold marijuana to support himself. Mr. Simpson recalled that, on the evening of
May 21, 2011, he went to the victim’s residence to “hang out” and play video games.
Although Mr. Simpson admitted using marijuana at times, he stated that he had not been
smoking marijuana that night. Mr. Simpson recalled that, around 11:00 p.m., Joseph
Snorten and two other men came to the victim’s residence. Mr. Simpson did not find it
unusual for the victim to have visitors that late because the victim “was selling drugs,
plus he had a lot of friends[.]” As they came into the victim’s residence, Mr. Snorten
introduced the two men, later identified as the Defendant and Mr. Varquez Sails.1 Mr.
Simpson sat on a sectional sofa, along with the victim and the Defendant. Mr. Snorten
sat on a love seat with Mr. Sails. The group talked about drugs for a while, and the two
men showed the victim and Mr. Simpson a large bag of marijuana they had in their
possession. Mr. Simpson recalled that one of the men had a small, red and black
backpack.

        As the group talked, Mr. Sails asked to use the restroom. Mr. Sails was in the
restroom for only a short time and then returned to the living room, holding a gun. The
Defendant also pulled out a gun and began demanding money. The Defendant said,
“[D]on’t do anything stupid, we’ll shoot,” and Mr. Sails told Mr. Simpson and the victim
that “they weren’t playing.” As they brandished the weapons, the Defendant and Mr.
Sails made the victim and Mr. Simpson get off the couch and lay face down on the floor.
The Defendant and Mr. Sails took cash from the victim and Mr. Simpson and then asked
if anyone else was in the home. When the victim indicated that someone was in the back
bedroom, Mr. Sails went down the hallway to the bedroom and brought out the victim’s
roommate, Nicholas Watson. The Defendant, who was still in the living room telling Mr.
Simpson and the victim not to move, directed Mr. Sails to “bring him out.” Mr. Simpson
testified that, as Mr. Sails led Mr. Watson into the hallway, Mr. Simpson heard gunshots.
He looked toward the victim and saw that the victim had been shot. The Defendant was
standing over the victim with a gun. Mr. Simpson stated that he was about two to three
feet away from the Defendant and he looked at the Defendant’s face while the Defendant
was looking at the victim. Mr. Sails ran into the living room and told the Defendant,
“Hey, we got to go, we got to go.” After they left, Mr. Simpson immediately called 911
and began performing CPR on the victim until help arrived. He recalled that Mr. Snorten
sat on the love seat during the robbery but fled the scene with the Defendant and Mr.
Sails after the shooting. Mr. Simpson testified that he never saw Mr. Snorten with a gun.



      1
          Mr. Sails was indicted along with the Defendant for his role in the offense.

                                                   -2-
       Mr. Simpson spoke to police officers at the scene and provided descriptions of the
Defendant, Mr. Sails, and Mr. Snorten. Mr. Simpson testified that, once he knew the two
men had guns, he became “more intent looking at the faces” because he thought he would
be able to “know . . . their intentions.” Mr. Simpson described the Defendant as a black
male in his early twenties, about six feet tall and heavyset. He estimated the Defendant
weighed about 300 or 350 pounds and said that he had “[l]oose, curly hair.” Mr.
Simpson told the police that Mr. Snorten’s name was “Joe” and that he went to school at
Nashville Auto Diesel College (“NADC”). The following day, detectives showed Mr.
Simpson a photo lineup from which he identified the Defendant as the shooter. He was
also able to identify Mr. Snorten and Mr. Sails from additional photo lineups. Mr.
Simpson identified the Defendant at trial as the individual that shot the victim.

        On cross-examination, Mr. Simpson acknowledged that he did not tell
investigators that the Defendant had dreadlocks. Mr. Simpson explained, “[I]t wasn’t a
real tight dreadlock. They were single strands, you know, like dreadlocks, but it wasn’t
just real tight, pulled together, seemed like.” Mr. Simpson testified that he did not pick
anyone out of the first photo lineup because none of the men in the lineup looked like the
suspects. Mr. Simpson stated, “[I]t was important to me to make sure a hundred percent
that if I did pick anyone that it was going to be the correct person.” He stated that he was
“[p]ositive 100 percent” that the Defendant was the man that shot the victim.

        Joseph Snorten testified that, in May 2011, the victim was his friend and
marijuana supplier. Mr. Snorten explained that he would purchase marijuana from the
victim and then resell it. Because he had both a business and social relationship with the
victim, Mr. Snorten had been to the victim’s home on multiple occasions before the night
of the offense. Mr. Snorten acknowledged that he had been arrested in connection with
the victim’s murder and had retained an attorney to represent him. He explained that,
while he hoped to get a benefit from his testimony, he had no agreement with the State to
that effect.

       Mr. Snorten stated that he met Mr. Sails, whose nickname was “Quez,” while he
was locked up on another charge. Mr. Snorten knew the Defendant, whose nickname
was “Goldie,” through the Defendant’s brother. On the evening of May 21, 2011, Mr.
Sails contacted Mr. Snorten, seeking to purchase marijuana. Mr. Snorten did not have
any marijuana, so he intended to obtain some from the victim. Mr. Snorten met Mr. Sails
and the Defendant and drove the two men to the victim’s home. Mr. Snorten recalled that
Mr. Sails suggested they rob the victim and the Defendant agreed to participate in the
robbery. Although Mr. Snorten had a feeling “something wasn’t going to go right,” he
went along with the idea. Mr. Snorten explained that he, the Defendant, and Mr. Sails
were armed with guns when they went to the victim’s house. When they arrived, Mr.
Snorten initially “tried to abort the mission,” but the Defendant said that he “didn’t come
                                           -3-
out here for nothing.” Mr. Snorten testified that he was afraid the Defendant and Mr.
Sails might rob him if he backed out of the robbery of the victim.

         According to Mr. Snorten, the men sat down in the living room once inside the
victim’s residence, and the victim brought out some marijuana. About this time, the
Defendant asked the victim if he could use the restroom. The Defendant came out of the
restroom with a gun and said, “[D]on’t nobody move.” Mr. Sails also pulled out a gun,
and the Defendant directed the victim and Mr. Simpson to get down into the floor. Mr.
Sails then told Mr. Snorten to go to the back of the house to make sure no one else was
there. While in the back bedroom, Mr. Snorten heard the Defendant say several times
from the living room “don’t move,” and then he heard a gunshot. Mr. Snorten, Mr. Sails,
and the Defendant ran out of the house, and Mr. Snorten drove the men away from the
scene. Inside the car, the Defendant said, “hey, man, my bad” and that he “didn’t mean
for it to go down like that.”

       Mr. Snorten testified that he contacted an attorney and turned himself in the
following day after learning that the police were looking for him. On cross-examination,
Mr. Snorten stated that he initially told the police he did not have a gun and denied
knowing the robbery was going to take place. He also lied to investigators about
knowing Mr. Sails’ identity because he and Mr. Sails were members of the Gangster
Disciples and he did not want to be labeled a “snitch.” However, when shown a photo
lineup containing Mr. Sails, Mr. Snorten identified him as one of the assailants. Mr.
Snorten also identified the Defendant in a photo lineup and told the police that the
Defendant was the shooter. Mr. Snorten stated that the Defendant had been a member of
the Gangster Disciples at one time but had switched gangs to join the Crips. He denied
ever hearing that the Defendant was a snitch. Mr. Snorten stated that the Defendant had
dreadlocks in May 2011.

        Nicholas Watson testified that he was currently serving a fourteen-year sentence
for attempted murder in connection with an unrelated offense. Mr. Watson stated that he
was living with the victim on May 21, 2011, and was asleep in the back bedroom when
he heard “loud talking.” Mr. Watson heard someone say, “Where’s the money at? You
better tell me where the money is at or I’m gonna bust your [a**][.]” He then heard
someone say, “[W]ho else is in the house, I’m gonna search the house.” Mr. Watson
recalled that a “dark-skinned” man with dreadlocks came into his room and forced him
out of the bed and into the floor at gunpoint. The assailant then called for Mr. Snorten
who came into the bedroom and held Mr. Watson at gunpoint. When the man with
dreadlocks left the room, Mr. Watson heard gunshots, and Mr. Snorten ran out of the
room. When Mr. Watson went into the living room, he saw Mr. Simpson performing
CPR on the victim. Mr. Watson confirmed that he never left the bedroom until the
incident was over and he never saw the third suspect. He explained that, at the time of
                                         -4-
the murder, he had an outstanding warrant for his arrest and had been hiding out at the
victim’s residence.

       Detective Daniel Polk with the Metro Nashville Police Department (“MNPD”)
responded to the call from the victim’s residence on the night of May 21, 2011.
Detective Polk testified that, when he arrived, there was a white male on the front porch
directing him into the house. The victim, who appeared to have a gunshot wound to the
chest, was lying on his back in the floor of the living room, and Mr. Simpson was
performing CPR. Mr. Simpson gave Detective Polk a very brief, general description of
the suspects, stating there was a “big fat black guy and a tall skinny black guy.”
Detective Polk recalled that there was an overwhelming smell of marijuana coming from
the victim’s house.

       Sharon Tilley, a crime scene technician with MNPD, testified that she and another
technician responded to the victim’s residence. They photographed and sketched the
scene and collected two shell casings. Ms. Tilley stated that she did not collect any
weapons and did not know if a weapon was ever tested against the collected shell casings.
She was not aware of any physical evidence from the scene that implicated the
Defendant.

       Dr. Feng Li, the senior associate medical examiner for Davidson County, testified
that he conducted the victim’s autopsy. Dr. Li stated that the victim had received a
perforating gunshot wound to his back, causing injury the victim’s left lung, heart, and
stomach. Dr. Li determined that the gunshot had been an “intermediate range” shot,
meaning that the assailant had been shot the victim from two and a half to three feet
away.

        Detective Corey Wall with MNPD testified that, when he responded to the crime
scene about half an hour after the 911 call, he could smell the odor of marijuana inside
the residence. However, when he later interviewed Mr. Simpson at the police
department, Mr. Simpson denied smoking marijuana that night. Mr. Simpson described
the shooter as a black male, 350 pounds, with “[l]oose, curly” hair. Mr. Simpson
identified Mr. Snorten by his first name, “Joe,” and told Detective Wall that Mr. Snorten
attended NADC. Based upon this information, Detective Wall placed Mr. Snorten in a
photo lineup the day after the murder, and Mr. Simpson positively identified him.

        Detective Wall interviewed Mr. Snorten after his arrest on May 25, 2011. Mr.
Snorten informed Detective Wall that “Quez” and “Goldie” were involved in the robbery
and murder but claimed that he did not know their real names. Mr. Snorten later
identified the Defendant in a photo lineup. Detective Wall explained that he instructed

                                          -5-
both Mr. Snorten and Mr. Simpson to make an identification only if they were one
hundred percent sure.

       Detective Wall recalled that the police received several anonymous tips on
potential suspects through Crimestoppers in relation to the case. One tip led Detective
Wall to a man named Victor Sherrell-Scruggs. Detective Wall obtained cell phone
records for Mr. Sherrell-Scruggs and Mr. Snorten and found that Mr. Sherrell-Scruggs’
phone number appeared on Mr. Snorten’s cell phone records twice on the day of the
murder. Detective Wall also received information from another source that someone
with the nickname “Goldie” was involved in the murder. Once he determined that the
Defendant’s nickname was Goldie, Detective Wall prepared a photo lineup for Mr.
Watson and Mr. Simpson with the Defendant’s photograph. Mr. Watson could not make
an identification, but Mr. Simpson identified the Defendant. Detective Wall explained
that he did not initially charge the Defendant because he had only one identification and
needed follow-up on the tip on Mr. Sherrell-Scruggs. Detective Wall interviewed Mr.
Sherrell-Scruggs and placed him into a photo lineup. Mr. Sherrell-Scruggs was
eliminated as a suspect after witnesses failed to identify him. Detective Wall testified
that he received another tip at the end of June 2011, which provided the Defendant’s
name. The Defendant turned himself in on July 7, 2011.

       Williams Skeeters testified that, in May 2011, he ran an after-hours bar on Lea
Avenue. Mr. Sherrell-Scruggs occasionally worked for Mr. Skeeters as a bouncer. Mr.
Skeeters recalled that Mr. Sherrell-Scruggs worked on May 22, 2011, and would have
been at the bar at the time it opened. Mr. Skeeters believed that the bar opened at 2:00
a.m. on May 22, but he was “[n]ot a hundred percent” sure. In any event, Mr. Sherrell-
Scruggs did not appear nervous or exhibit unusual behavior while at work. After hearing
about the victim’s murder, Mr. Skeeters called Crimestoppers and left information that
Mr. Sherrell-Scruggs and another bouncer at the bar matched the description of one of the
suspects.

        Dr. Jeffrey Neuschatz testified for the Defendant as an expert in eyewitness
identification. Dr. Neuschatz described several factors that could affect an individual’s
ability to accurately remember a situation and identify a suspect. He first explained that
high-stress situations impaired memory. Dr. Neuschatz cited studies that showed when
individuals were afraid for their lives or safety, facial recognition identification was
“significantly worse.” Dr. Neuschatz clarified that it was more difficult to make an
accurate identification after a stressful situation but not impossible. Dr. Neuschatz next
discussed “weapon focus” and explained that eyewitnesses tended to look at a weapon
rather than other aspects of an event when a weapon was present, which lessened
identification accuracy. Dr. Neuschatz also stated that research showed people were
worse at identifying someone of another race. He further explained that the use of
                                          -6-
alcohol and marijuana impaired the encoding process of memory, making it more
difficult to make an accurate identification. Given the facts of this case, Dr. Neuschatz
opined that is was possible Mr. Simpson’s memory of the incident was mistaken. On
cross-examination, Dr. Neuschatz agreed that, if an individual had the ability to observe a
person for a period of several minutes prior to a weapon being brandished, it would
improve the potential for accuracy in identification.

       The Defendant testified that, in the spring of 2011, he lived with his grandmother
in East Nashville. He did not have a job, but his grandmother provided him with money.
The Defendant acknowledged that he had joined the Gangster Disciples when he was
fourteen years old and remained a member of the gang until 2008. He explained that
both Mr. Sails and Mr. Snorten were also Gangster Disciples members. According to the
Defendant, when he was about sixteen, he witnessed a murder and was subpoenaed to
court to testify. Although the case ended up settling, the Defendant had been labeled a
snitch, and he broke ties with the Gangster Disciples and associated himself with the 98
Mafia Crips. The Defendant stated that he and Mr. Sails were together on a regular basis
in May 2011 and they spent most of their time at Mr. Sails’ house. On the other hand,
Mr. Snorten gave the Defendant the cold shoulder, refusing on one occasion to give the
Defendant a ride to a store. The Defendant testified that in May 2011, he wore his hair in
dreadlocks. He stated that his hair would not have been “fuzzy” at that time of the
offense because his grandmother had given him money to have his hair done for his
birthday earlier that month.

       The Defendant stated that, on the day of the victim’s murder, he did not go to Mr.
Sails’ house. Instead, he was picked up at his grandmother’s house around 8:00 p.m. by
Jamaal Saunders, the brother of the Defendant’s ex-girlfriend. The Defendant explained
that Mr. Saunders had been a member of the 98 Crips but had been shot and killed
sometime after the victim’s murder. According to the Defendant, Mr. Saunders took him
to meet with Mr. Sails and Mr. Snorten so that Mr. Saunders could sell the two men some
marijuana. The Defendant recalled that the inside of Mr. Saunders’ car smelled strongly
of marijuana, and Mr. Saunders showed the Defendant a quarter-pound of marijuana
inside a small red and black backpack. The Defendant stated that he and Mr. Saunders
met with Mr. Sails and Mr. Snorten at Panorama Apartments in East Nashville. Mr. Sails
and Mr. Snorten were together in a small blue car. While the Defendant spoke to Mr.
Sails, Mr. Saunders and Mr. Snorten walked off together. When they returned, Mr.
Snorten had the backpack with the marijuana.

      The Defendant denied that he planned to rob the victim with Mr. Sails and Mr.
Snorten and testified that he did not see the two men for the remainder of the evening.
The Defendant recalled that he and Mr. Saunders later stopped at the house of another
member of the 98 Crips, Charles Transley, who was also no longer alive. The Defendant
                                           -7-
and Mr. Saunders then went to another apartment complex and stayed with Mr. Saunders’
girlfriend for the rest of the night. The Defendant denied killing the victim and stated
that he was not with Mr. Sails and Mr. Snorten at the time of the robbery and murder.

       At the close of proof, the Defendant requested a modification of the pattern jury
instruction on identity, which incorporated the issues raised by Dr. Neuschatz’s
testimony. The proposed instruction read as follows:

      One of the issues in this case is the identification of the defendant as the
      person who committed the crime. The State has the burden of [proving]
      identity beyond a reasonable doubt. Identification testimony is an
      expression of belief or impression by the witness. It is a statement of how
      well the witness remembers the other person, and its value may depend
      upon your consideration of several factors including:

             (1) The witness’ capacity and opportunity to observe the other
             person. This includes, among other things, the length of time
             available for observation, the distance from which the witness
             observed, whether the two people are of the same race or
             different races, the lighting, whether a weapon was involved,
             the witness’ level of stress or fear, whether the person was a
             prior acquaintance of the witness, and whether the witness
             was able to clearly see the person’s face;

             (2) The occasions, if any, on which the witness made either a
             correct or incorrect identification of the defendant and the
             circumstances surrounding that identification, including any
             actions on the part of the person conducting the lineup that
             might be suggestive or improperly bias the witness;

             (3) The witness’ prior descriptions, or lack thereof, of the
             person, including those given immediately after the event as
             well as those given at later times;

             (4) Testimony regarding general principles of how memory
             works, if such is presented by either side.

      Again, the State has the burden of proving every element of the crime
      charged, and this burden specifically includes the identity of the defendant
      as the person who committed the crime for which he is on trial. If after
      considering the identification testimony in light of all the proof you have a
                                          -8-
        reasonable doubt that the defendant is the person who committed the crime,
        you must find the defendant not guilty.

       The trial court denied the Defendant’s request, finding that the proposed jury
instructions, if included, would amount to a comment on the evidence. Instead of
providing the special instruction as requested, the trial court amended its instruction on
the identification of the Defendant to allow the jury to consider “any other factors fairly
raised by the evidence.”

       Following deliberations, the jury found the Defendant guilty of the lesser-included
offense of second degree murder in count one, first degree felony murder in count two,
and employing a firearm during the commission of a dangerous offense in count three.
At a sentencing hearing, the trial court merged count one into count two and sentenced
the Defendant to life for first degree felony murder. The trial court dismissed count three
“as a matter of law.”2 The Defendant subsequently filed a timely motion for new trial,
which was denied by the trial court after a hearing. This timely appeal followed.

                                            II. Analysis

                                   Sufficiency of the Evidence

        The Defendant asserts that the evidence is insufficient to sustain his conviction for
first degree felony murder because the identification testimony from Mr. Snorten and Mr.
Simpson was unreliable. The Defendant argues that Mr. Snorten had a “substantial
motivation to lie, rendering his testimony completely untrustworthy and incredible.” He
also contends that Mr. Simpson’s initial description of the shooter did not correspond to
the Defendant and that the trauma of the incident led to Mr. Simpson’s incorrect
identification of the Defendant in a photo lineup.

        The applicable standard of review for a sufficiency of the evidence challenge 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) (emphasis in original);
see also Tenn. R. App. P. 13(e). A guilty verdict “removes the presumption of innocence
and replaces it with a presumption of guilt, and the Appellant has the burden of
illustrating why the evidence is insufficient to support the jury’s verdict.” State v. Bland,
958 S.W.2d 651, 659 (Tenn. 1997); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
Our standard of review “is the same whether the conviction is based upon direct or

        2
         Following the trial, the State requested that count three be dismissed as a matter of law based
upon a faulty indictment.
                                                 -9-
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)) (internal quotation marks omitted).

       In a jury trial, the weight and credibility given to the testimony of witnesses, as
well as the reconciliation of conflicts in that testimony, are questions of fact best
determined by the jury, since they saw and heard the witnesses, and by the trial judge,
who concurred in and approved the verdict. Bland, 958 S.W.2d at 659. This court will
not reweigh the evidence. Id. On review, the “State must be afforded the strongest
legitimate view of the evidence and all reasonable inferences that may be drawn
therefrom.” State v. Vasques, 221 S.W.3d 514, 521 (Tenn. 2007).

       The identity of the perpetrator is “an essential element of any crime.” State v.
Rice, 184 S.W.3d 646, 662 (Tenn. 2006). Identity may be established with circumstantial
evidence alone, and the “jury decides the weight to be given to circumstantial evidence,
and [t]he inferences to be drawn from such evidence . . . .” Id. (internal quotation marks
omitted). The question of identity is a question of fact left to the trier of fact to resolve.
State v. Crawford, 635 S.W.2d 704, 705 (Tenn. Crim. App. 1982).

       Tennessee Code Annotated section 39-13-202(a)(2) states that “[a] killing of
another committed in the perpetration of . . . robbery” is first degree murder. Tenn. Code
Ann. § 39-13-202(a)(2) (2010). The felony murder rule applies when the killing is “done
in pursuance of the unlawful act, and not collateral to it.” State v. Thacker, 164 S.W.3d
208, 223 (Tenn. 2005) (quoting Farmer v. State, 296 S.W.2d 879, 883 (Tenn. 1956))
(internal quotation marks omitted). “The killing may precede, coincide with, or follow
the felony and still be considered as occurring in the perpetration of the felony offense, so
long as there is a connection in time, place, and continuity of action.” State v. Buggs,
995 S.W.2d 102, 106 (Tenn. 1999) (internal quotation marks omitted). No culpable
mental state is required for a felony murder conviction except the intent to commit the
underlying felony—in this case, robbery. See Tenn. Code Ann. § 39-13-202(b) (2010).
Robbery is defined as the “intentional or knowing theft of property from the person of
another by violence or putting the person in fear.” Tenn. Code Ann. § 39-13-401(a)
(2010).

       We conclude that, when viewed in the light most favorable to the State, the
evidence clearly supports the Defendant’s conviction for first degree felony murder. The
proof at trial established that on the night of May 21, 2011, the Defendant, Mr. Sails, and
Mr. Snorten planned to rob the victim, a known marijuana supplier. The three men
armed themselves with guns and drove to the victim’s residence. Once inside, the
Defendant and Mr. Sails pulled out their guns and ordered the victim and Mr. Simpson to
the floor. The Defendant told the victim and Mr. Simpson, “[D]on’t do anything stupid,
we’ll shoot.” The Defendant then took cash from the victim and Mr. Simpson. While
                                            - 10 -
Mr. Snorten and Mr. Sails were in the back of the house dealing with Mr. Watson, the
Defendant shot the victim in the back. Mr. Simpson testified that, immediately after the
shooting, he looked at the Defendant and saw the Defendant standing over the victim
with the gun. The Defendant, Mr. Sails, and Mr. Snorten then fled the scene. Inside the
car, the Defendant took responsibility for the shooting telling Mr. Sails and Mr. Snorten,
“[H]ey, man, my bad.” Dr. Li testified that the victim died as a result of the gunshot
wound to his back, and both Mr. Simpson and Mr. Snorten later identified the Defendant
as the shooter.

        The Defendant does not contest that the State presented sufficient evidence to
establish the elements of the crime. Instead, he challenges the credibility of the State’s
two identification witnesses. However, the question of identity is a question of fact left
to the jury to resolve. Crawford, 635 S.W.2d at 705. Moreover, the jury verdict accredits
the testimony of the State’s witnesses, and this court may not reweigh that evidence on
appeal. Bland, 958 S.W.2d at 659. The Defendant is not entitled to relief.

                           Special Jury Instruction on Identity

        The Defendant argues that the trial court erred by denying his request for the
special jury instruction modification on identity. He asserts that the trial court’s
instruction on identity failed to take into account “the objective nature of the scientific
expert testimony offered by Dr. Neuschatz” and did not adequately inform the jury of the
“current state of the law as it applied to the facts.” The Defendant further asserts that the
trial court’s refusing to incorporate Dr. Neuschatz’s factors into the jury instruction was
the equivalent of the court “commenting that [the] evidence should be disregarded[.]”
The State responds that because the trial court used the proper jury instruction on identity
and amended its instruction to assure that the Defendant’s evidence on identity could be
considered, the jury received a “correct and complete” explanation of the current law as it
applied to the case and there was no error. We agree with the State.

       Questions regarding the propriety of jury instructions are mixed questions of law
and fact; thus, our standard of review is de novo with no presumption of correctness.
State v. Rush, 50 S.W.3d 424, 427 (Tenn. 2001). In Tennessee, “a defendant has a right
to a correct and complete charge of the law, so that each issue of fact raised by the
evidence will be submitted to the jury on proper instructions.” State v. Garrison, 40
S.W.3d 426, 432 (Tenn. 2000) (citing State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990)).
Additionally, trial courts have a duty to give “a complete charge of the law applicable to
the facts of the case.” State v. Davenport, 973 S.W.2d 283, 287 (Tenn. Crim. App. 1998)
(citing State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986)). A trial court need not
grant a defendant’s request for special instructions when the general jury charge is correct

                                           - 11 -
and complete. State v. Zirkle, 910 S.W.2d 874, 892 (Tenn. Crim. App. 1995) (citing
State v. Blakely, 677 S.W.2d 12 (Tenn. Crim. App. 1983)).

        In State v. Dyle, 899 S.W.2d 607, 612 (Tenn. 1995), the Tennessee Supreme Court
held that when identity is material and the instruction is requested by the defendant, the
trial court must give the following instruction to the jury:

      One of the issues in this case is the identification of the defendant as the
      person who committed the crime. The state has the burden of proving
      identity beyond a reasonable doubt. Identification testimony is an
      expression of belief or impression by the witness, and its value may depend
      upon your consideration of several factors. Some of the factors which you
      may consider are:

             (1) The witness’ capacity and opportunity to observe the
             offender. This includes, among other things, the length of
             time available for observation, the distance from which the
             witness observed, the lighting, and whether the person who
             committed the crime was a prior acquaintance of the witness;

             (2) The degree of certainty expressed by the witness
             regarding the identification and the circumstances under
             which it was made, including whether it is the product of the
             witness’ own recollection;

             (3) The occasions, if any, on which the witness failed to make
             an identification of the defendant, or made an identification
             that was inconsistent with the identification at trial; and

             (4) The occasions, if any, on which the witness made an
             identification that was consistent with the identification at
             trial, and the circumstances surrounding such identifications.

      Again, the state has the burden of proving every element of the crime
      charged, and this burden specifically includes the identity of the defendant
      as the person who committed the crime for which he or she is on trial. If
      after considering the identification testimony in light of all the proof you
      have a reasonable doubt that the defendant is the person who committed the
      crime, you must find the defendant not guilty.


                                          - 12 -
Id.; see also 7 T.P.I.—Crim. 42.05 (18th ed. 2014). The Dyle Court adopted the above-
quoted identity instruction over a more expansive instruction to avoid “impermissibly
comment[ing] on the evidence; thus, invading the province of the jury.” Dyle, 899
S.W.2d at 612.

        In support of his position, the Defendant relies heavily on the Tennessee Supreme
Court’s decision in State v. Copeland, 226 S.W.3d 287 (Tenn. 2007). In Copeland, our
supreme court overruled a per se ban on the admission of expert testimony on the
reliability of eyewitness identification. Id. at 290, 300-01 (overruling State v. Coley, 32
S.W.3d 831 (Tenn. 2000)). However, the decision in Copeland was limited to ending the
ban on expert testimony on identity based upon “advances in the field of eyewitness
identification.” Id. at 299. Copeland does not require the admission of the testimony of
an eyewitness identification expert, nor does it require that a trial court adopt an expert’s
opinion testimony as “law” in its instruction to the jury. See id. at 299-301; Troy Allen
Pruitt v. State, No. M2012-00897-CCA-R3-PC, 2013 WL 1858783, at *5 (Tenn. Crim.
App. May 2, 2013), perm. app. denied, (Tenn. Sept. 10, 2013). To be in line with
Copeland, all that a trial court is required to do is to allow the identification expert to
testify. See Copeland, 226 S.W.3d at 299-302. The jury is still entrusted with
determining the credibility of witnesses and the weight to be given their testimony and
with reconciling conflicts in the proof. Rice, 184 S.W.3d at 662.

       In this case, the trial court’s charge to the jury on identity was complete and
accurate. The instruction included the identification instruction as required by Dyle. The
court also included an additional paragraph instructing the jury to consider “any other
factors fairly raised by the evidence.” The trial court’s instruction was broad enough to
allow the jury to consider the various factors affecting eyewitness identification discussed
by Dr. Neuschatz in his testimony. The Defendant’s proposed special jury instruction
amending the Dyle instruction was not a correct statement of the law, and the trial court
did not err in refusing to instruct the jury accordingly. We agree with the State that the
identity instructive requested by the Defendant would have required the trial court to
usurp the jury’s role as finder of fact and direct it to accredit the testimony of the
Defendant’s expert witness. Because the jury received a “correct and complete”
explanation of the current law as it applied to the case, the trial court’s instruction was
not error, and the Defendant is not entitled to relief.

                                     III. Conclusion

        In consideration of the foregoing and the record as a whole, the judgment of the
trial court is affirmed.


                                                  _________________________________
                                                  ROBERT L. HOLLOWAY, JR., JUDGE
