                                                                                            07/12/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                February 27, 2018 Session

              STATE OF TENNESSEE v. JAMARCUS JACKSON

               Appeal from the Criminal Court for Washington County
                         No. 39612 Stacy L. Street, Judge


                             No. E2017-01182-CCA-R3-CD



The Defendant, Jamarcus Jackson, was convicted by a Washington County Criminal
Court jury of second degree murder, misdemeanor assault, and misdemeanor reckless
endangerment, for which he is serving an effective forty years, consecutively to an eight-
year sentence in an unrelated case. See T.C.A. §§ 39-10-210 (2014) (second degree
murder), 39-13-101 (Supp. 2013) (amended 2016) (assault), 39-13-103 (2014) (reckless
endangerment). On appeal, he contends that (1) the evidence is insufficient to support
his second degree murder conviction, (2) the trial court erred in its method of conducting
jury selection, depriving him of a peremptory challenge, (3) the court erred in ruling that
his prior failure to appear and robbery convictions were admissible impeachment
evidence if he testified, (4) he is entitled to a new trial due to cumulative trial error, and
(5) his sentence is excessive. We affirm the judgments of the trial court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and NORMA MCGEE OGLE., JJ., joined.

Lesley A. Tiller (on appeal); Gene Scott (at trial); and Donna Bolton (at trial),
Jonesborough, Tennessee, for the appellant, Jamarcus L. Jackson.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant
Attorney General; Ken C. Baldwin, District Attorney General; Ken Baldwin and Fred
Lance, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                         OPINION

      The Defendant’s convictions relate to events that occurred at The Battery, a
Johnson City nightclub, in the early morning hours of March 23, 2014. The second
degree murder conviction relates to the shooting death of Deshaun Greer.1 The assault
conviction relates to Zachary Breedlove, and the reckless endangerment conviction
relates to Jonathan McInturff.

       At the trial, Amanda Chappell, testified that she had been on two or three dates
with the Defendant before March 23, 2014. She said that on the night of the relevant
events, they went to The Battery to celebrate the Defendant’s birthday. She said she
picked up the Defendant in the late evening, although she did not recall the time. She
said that as she drove, she saw that the Defendant had a small gun in the floorboard. She
said the gun was not a revolver but did not know if it was a semi-automatic weapon. She
said she was “[a] little bit” concerned about the Defendant’s having the gun. She did not
know where the gun was located when they got out of the car at the club.

       Ms. Chappell testified that she bought drinks for the Defendant in the club but did
not recall how many. She said that she saw the Defendant talking with a man and that the
Defendant held a beer bottle as if he were going to hit the man. She said the victim was
walking around while the Defendant and the man talked.

       Ms. Chappell testified that she and the Defendant were about to leave when she
saw the victim and someone who resembled the victim looking at the Defendant. She
said she later learned the men were brothers. She said she was concerned that an
altercation might occur. She said that as she and the Defendant stood by the bar in the
back of the club after the Defendant finished his conversation, the victim “bumped” the
Defendant intentionally and bumped her. She later said she lost her footing when the
victim bumped the Defendant, causing the Defendant to bump into her. She said the
victim and the Defendant had words. She said, “[T]he younger brother cuts in front of
[the Defendant,] and they’re right in each other’s face.” She said she told the “other guy”
to “leave it alone” and told the Defendant that she and the Defendant should leave. She
said she was concerned about the Defendant getting into a fight because “there had
already been previous arguments that night” and because the Defendant had been
drinking. When asked whether he was sober, she responded, “[H]e shouldn’t be driving.”

       Ms. Chappell testified that she saw the victim approach after the Defendant and
“the younger brother were talking.” She said that the younger brother gestured as if he
were pointing at the Defendant and that fights involving ten to twelve men broke out.
She said the Defendant, the victim, and the victim’s brother did not fight. She did not



        1
           For simplicity, we refer to Mr. Greer as “the victim” in this opinion, but we acknowledge that multiple
individuals were injured.
                                                       -2-
know the time but thought the club’s lights had come on, signaling “last call.” She said
the bouncers attempted to get the patrons to leave because things were “out of control.”

        Ms. Chappell testified that she saw the Defendant leave and attempted to follow
but had difficulty because she wore high heels. She said that she asked him to wait for
her but that he did not. She said the Defendant did not sprint but moved quickly to her
car, which was a distance away. She said the Defendant was angry, which was a state in
which she had never seen him. She said he was loud and “breathing hard.” She said that
when she reached the car, the Defendant stood by the passenger side waiting for her to
unlock it. She said the Defendant searched the floorboard and asked, “Where’s my
gun[?]” She later said that he asked, “[W]here the F is my gun” and that he forcefully
slammed back her car seat. She said she told the Defendant that “a man sitting down
there . . . saw him” get into her car. She said that she asked the Defendant what he wanted
her to do and that he told her she could leave if she wanted. She said she replied that she
was not going to leave the Defendant there.

       Ms. Chappell testified that she saw the Defendant put the gun in the back of his
pants and walk toward The Battery. She said she sat in the car for about one minute but
returned to The Battery after hearing gunshots. She said that she saw someone lying
down, that she looked at the person’s shoes to see whether it was the Defendant, but that
it was not. She looked for the Defendant and found him lying at the bottom of some
steps. She thought the Defendant hit his head “because he wasn’t . . . all there.” She said
that several people restrained the Defendant and that she waited to leave until the police
arrived and took the Defendant.

       Ms. Chappell denied that any police officer told her not to talk to defense counsel
but acknowledged she had spoken to the prosecutors once or twice. She said that she did
not speak to the police that night and that the police did not know of her involvement “for
a very long time.” She acknowledged that she had not told the police about the
Defendant’s asking where his gun was when they returned to the car after being inside
the club. When asked why she did not tell the police initially about having seen the
Defendant put the gun into his pants, she said she had been nervous. When asked about
the current state of her relationship with the Defendant, she said she had not spoken to
him in a long time.

       John Calandros testified that he was employed as a bouncer at The Battery on
March 23, 2014. Mr. Calandros said that he began focusing on the Defendant after
seeing the Defendant in an incident with a patron other than the victim. When Mr.
Calandros was asked if he saw the Defendant become involved in an incident with the
victim or the victim’s brother, Mr. Calandros said, “[I]t looked like they kind of bumped

                                            -3-
shoulders and started talking aggressively toward one another.” Mr. Calandros said that
both men appeared to have hostility toward one another during this encounter. Mr.
Calandros did not know where the victim’s brother was during the exchange and did not
see any encounter between the Defendant and the victim’s brother inside the bar. Mr.
Calandros said that he and another bouncer, Aaron Phillips, separated the men and that
the Defendant punched Mr. Phillips in the face. Mr. Calandros said that a fight erupted
between the victim’s younger brother and a person whose name Mr. Calandros did not
know. Mr. Callandros said he had not seen the entire interaction between the Defendant
and Mr. Phillips because Mr. Calandros had to attend to another fight. Mr. Calandros
agreed that the atmosphere inside the club became chaotic shortly before the bouncers
began herding the patrons outside due to the fighting.

        Mr. Calandros said that the victim and the victim’s brother wanted to go outside
and that the victim stated the Defendant had hit him in the face with a beer bottle. Mr.
Calandros explained that he had not seen the Defendant strike the victim but that he saw a
“large pumpknot” on the victim’s face. Mr. Calandros stated that the Defendant “had
fled” by this point. Mr. Calandros stated, however, that he did not see the Defendant
leave but that he did not see the Defendant inside the club after the patrons had been
herded outside. Mr. Calandros said the victim stated that he had bail money and did not
care if he went to jail for fighting. Mr. Calandros said he calmed the victim, who initially
wanted to retaliate and fight the Defendant. Mr. Calandros said that he tried to keep the
victim inside to keep the victim away from the Defendant and that he them outside. Mr.
Calandros explained that he calmed the victim’s brother more than the victim because the
victim’s brother was agitated about the fight in which he had been involved. Mr.
Calandros stated that a large crowd of fifty to 100 people was gathered outside.

       Mr. Calandros testified that he did not usually work in the parking lot but that he
had followed the victim and the victim’s brother to ensure that they left. He said he heard
the crowd saying, “[T]here he is, get him.” Mr. Calandros said that the victim turned and
that Mr. Calandros saw the Defendant “coming up the street” on foot with his hands at
his sides. Mr. Calandros said the victim turned and walked casually toward the
Defendant until they were four to six feet apart. Mr. Calandros said that the victim’s
brother also walked toward the Defendant but that the victim was closer to the Defendant
than the victim’s brother. Mr. Calandros stated that the Defendant pulled out a gun from
the Defendant’s mid-back and began shooting. Mr. Calandros stated that he heard a
couple of shots, that he felt something possibly grazing his leg, and that he dove down.
He said he heard more than five shots. He said that everything happened within a matter
of seconds. Mr. Calandros said that although the victim had been “riled up” earlier, the
victim was calm by the time the victim walked outside.


                                            -4-
       Mr. Calandros testified that by the time he stood, another bouncer, Michael Parr,
was on top of the Defendant in the lower parking lot. Mr. Calandros stated that another
bouncer, “Devin,”2 assisted Mr. Parr in restraining the Defendant. Mr. Calandros said the
location where the bouncers had restrained the Defendant was different than where he
had last seen the Defendant before Mr. Calandros dove to the ground. Mr. Calandros
stated that Mr. Phillips took the gun from the Defendant and that one of the club’s disc
jockeys, John Lawson, kept the gun until the police arrived.

        Mr. Calandros testified that the victim’s brother was in the lower parking lot trying
to get to the Defendant while the Defendant was restrained. Mr. Calandros said Mr. Parr
kept the victim’s brother from attacking the Defendant while the Defendant was
restrained. Mr. Calandros said he had not seen any interaction between the Defendant
and the victim’s brother before the shooting. Mr. Calandros was unsure where the
victim’s brother had been when the shooting began. Mr. Calandros identified the
Defendant as the person he saw firing shots on March 23, 2014.

       James Phillips testified that he was employed working “security” at The Battery
on the early morning of March 23, 2014. He said that the victim punched him in the face
with a fist, knocking him to the ground. Mr. Phillips said that he had not interacted with
the victim before the victim hit him and that Mr. Phillips had been “dealing with”
someone else at the time. Mr. Phillips said that he stood and told a bouncer what had
happened but that the victim had already left the club. Mr. Phillips said he did not see the
victim and the Defendant interacting inside the club.

       Mr. Phillips said he and other employees cleared the club of patrons and began
“doing our sweeps in the parking lot just like a normal night.” He said that at some point,
he saw the Defendant coming from the side of the building toward the front steps of the
club. Mr. Phillips agreed that the Defendant appeared agitated. Mr. Phillips said the
victim noticed the Defendant at about the same time. Mr. Phillips said that a bouncer put
his hand on the victim and said, “[J]ust let it go,” but that the victim “took off.” Mr.
Phillips said the victim ran toward the Defendant. Mr. Phillips said the Defendant took
out a gun and began firing when the Defendant and the victim were within five feet of
each other. Mr. Phillips said that he “[h]it the ground” and that he heard numerous shots.
Mr. Phillips said that the Defendant tried to run toward some steps but was tackled by
Mr. Parr. Mr. Phillips said that the victim was in the lower parking lot but that Mr.
Phillips did not see how the victim ended up there. Mr. Phillips said that he stepped on
the Defendant’s hand as the Defendant lay in the parking lot to get the gun away from the


       2
           In his testimony, Mr. Phillips identified one of the bouncers as Devin Pickle.

                                                         -5-
Defendant. Mr. Phillips said that he cleared the gun’s chamber and that a bullet fell to
the ground in the lower parking lot. He said he did not know what happened to the bullet.
He said that he gave the gun to another person, whom he did not identify by name in his
testimony, and that he performed CPR on the victim.

       Mr. Phillips testified that he did not know that anyone else was with the victim and
that he did not see anyone near the victim when the Defendant shot the victim. Mr.
Phillips said he did not see anyone other than the victim moving toward the Defendant.
Mr. Phillips estimated that about 200 people were outside the club during the incident
and agreed that the victim had to run through the crowd to get to the Defendant. He
agreed that the environment outside the club was “raucous” and said he did not hear the
victim make any statements about the Defendant.

       John Lawson testified that he was a patron of The Battery on March 23, 2014, and
that he was later employed at the club as a disc jockey. He said he was outside the club
on March 23 around 1:00 a.m. and saw a man walk up the steps, pull a weapon from his
pants, and shoot the victim in the chest from a distance of four to five feet. Mr. Lawson
said the victim was not moving toward the Defendant at the time of the shooting. Mr.
Lawson said the victim “kind of froze” before the Defendant brought out the gun. Mr.
Lawson said that when the shots began, he tackled several people to the ground. Mr.
Lawson said that the Defendant fired until the Defendant “ran out of rounds” and that Mr.
Lawson went down the stairs after the Defendant finished shooting. Mr. Lawson said he
heard eight to ten or “maybe even more” shots. Mr. Lawson said the Defendant looked
as if he were going to run away but that Mr. Parr tackled the Defendant in the lower
parking lot. Mr. Lawson said he and others helped restrain the Defendant. Mr. Lawson
said that after a minute or two, he extricated himself from the people restraining the
Defendant and saw the gun “racked back” with nothing in it. Mr. Lawson said he took
the gun inside the club and took it to Officer Cody Powell once the police arrived.

       Mr. Lawson testified he had not seen any other individuals, including the victim’s
brother, with the victim but said he focused on the gun once the Defendant produced it.
Mr. Lawson estimated the crowd at thirty to fifty people.

       Mr. Lawson testified that he saw other individuals, including the victim’s brother,
who had been hit by gunfire. He said that when he noticed that the victim’s brother had
been shot in the back, the victim’s brother was in the parking lot at the bottom of the
steps. Mr. Lawson said the victim’s brother was “very upset” and “[j]ust really mad.”
Mr. Lawson acknowledged that he did not see the victim’s brother being shot and that he
noticed him later.


                                            -6-
       Johnson City Police Officer Cody Powell testified that he responded to a call at
The Battery on March 23, 2014, around 3:00 a.m. He said that when he arrived, he saw
three people who appeared to be victims, people screaming, and a chaotic scene. He said
a man approached him said the man had the gun. Officer Powell said he took the gun
from the man and locked it in his trunk until he was able to give it to Investigator
Richardson. Officer Powell did not recall whether he received the magazine separately
from the gun.

       Johnson City Police Detective Matthew Keller testified that he responded to the
hospital after the March 23, 2014 shooting at The Battery. He said he interviewed the
victim’s brother, who appeared to be injured and had a gauze patch on his shoulder.
Detective Keller said the victim’s brother was “very emotionally distraught” and had
trouble focusing on answering Detective Keller’s questions. Detective Keller did not
know whether the victim’s brother had received pain medication. Detective Keller said
that the victim’s brother did not appear to be in pain but agreed that a person who had
been shot three times would have pain.

       Zachary Breedlove testified that he and his friends were at The Battery on March
23, 2014. He said they arrived around midnight and left around 3:00 a.m. He said he had
four or five drinks that evening. He said he was outside waiting for a taxi when he heard
about six gunshots. He said he ran and was grazed by a bullet. He said he never saw the
shooter. He identified a photograph of a graze wound to his right buttock, which he
agreed resulted from his having been hit by a bullet or bullet fragment.

       Mr. Breedlove agreed that he walked to a gas station and called a friend to pick
him up and that he went to the friend’s home without seeking medical attention. He said
that seeking medical treatment would have been more of a financial burden than it was
worth.

       Jonathan McInturff testified that on March 23, 2014, he and his brother were at
The Battery celebrating his brother’s birthday. He said he was there from 11:00 p.m.
until 3:00 a.m. He admitted he was intoxicated and said he “[s]omewhat” recalled an
incident that occurred as he left the parking lot. Mr. McInturff said he heard shots and
ran, although he did not know what precipitated the shooting. When asked if he had
“some contact with” the shots, he replied, “Somebody made that assumption, but, the
doctor never told me that I had no [sic] bullets in my arm.” He agreed that his arm was
“in pretty good shape” before he went to the club on March 23. When shown a
photograph exhibit, he said it depicted a spot “like a burn mark” on his arm that he did
not have before he went to the club. He said he noticed a burning sensation in his arm


                                           -7-
after the shooting. He said that he went to the hospital that evening and that an x-ray of
his arm showed no metal or bullet fragments.

      Johnson City Police Detective Bret Richardson testified that he investigated the
scene. He said that ten .40 caliber cartridge casings, three bullet fragments, and a shoe
were found. In addition, he said that he received three bullets which had been removed
from the victim’s body. He said he submitted the ballistic evidence and the gun to the
Tennessee Bureau of Investigation (TBI) Laboratory.

        TBI Forensic Scientist Teri Arney, an expert in firearms identification, testified
that she examined a .40-caliber Smith & Wesson pistol, a magazine, ten cartridge casings
from the scene, and a bullet fragment submitted by the Johnson City Police Department
relative to this case. Agent Arney determined that the cartridge casings and bullet
fragment had been fired from the pistol.

       Agent Arrney testified that she later examined additional evidence, consisting of a
bullet fragment and a bullet jacket from the scene and three bullets removed from the
victim’s body. She examined these items in conjunction with the pistol collected as
evidence. She determined that the bullets from the victim’s body had been fired from the
pistol. She said that the items from the scene had the same rifling characteristics and
were of the same caliber as the pistol but that they were too damaged to make a
conclusive identification.

        Nicole Masisan, M.D., an expert in forensic pathology, testified that she
performed an autopsy of the victim’s body. She said the victim had three gunshot
wounds to the torso. She said one entered the left upper abdomen, penetrated the inferior
vena cava and the aorta, and came to rest near the liver. She said a second entered the
left lateral buttock, crossed through the abdomen, penetrated the rectum, and came to rest
in front of the right hipbone. She said the third entered the left lower back, grazed the
twelfth rib, and came to rest in the second lumbar vertebral body. She said that the shot
to the left upper abdomen was fatal and that it was unlikely that either or both of the other
two, on their own, would have killed the victim. She said that a gunshot such as the one
to the victim’s left upper abdomen would cause death “[p]otentially within seconds,
definitely within minutes.”

       Dr. Masisan testified that the victim’s blood alcohol content was 0.192 percent and
that his urine tested positive for marijuana use. She said that the victim’s face had a
“red/black abrasion” on the left cheek with a surrounding bruise. She said that an
abrasion could be caused by blunt force, a hit, a push, or a fall. She said it could have
been caused by being hit with a bottle.

                                            -8-
      Dr. Masisan agreed that the victim was 6'4". She said that she had been unable to
determine the distance from which the gunshots had been fired at the victim.

        The Defendant elected not to testify or offer other evidence. The jury acquitted the
Defendant of the charged offense of first degree premeditated murder of the victim but
found the Defendant guilty of the lesser included offense of second degree murder. The
jury found the Defendant guilty of misdemeanor assault of Zachary Breedlove. The jury
acquitted the Defendant of felony reckless endangerment but found the Defendant guilty
of the lesser included offense of misdemeanor reckless endangerment.

       The trial court imposed concurrent sentences of forty years for second degree
murder and eleven months and twenty-nine days for each of the two misdemeanor
convictions. The court imposed the second degree murder conviction consecutively to
the sentence for a conviction in another case. This appeal followed.

                                             I

                 Sufficiency of the Evidence of Second Degree Murder

       The Defendant contends that the evidence is insufficient to support his second
degree murder conviction. He argues that the evidence shows he acted in self-defense.
The State contends that the evidence is sufficient to support the conviction. We agree
with the State.

        In determining the sufficiency of the evidence, the standard of review is “whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979); see State v. Vasques, 221 S.W.3d 514,
521 (Tenn. 2007). The State is “afforded the strongest legitimate view of the evidence
and all reasonable inferences” from that evidence. Vasques, 221 S.W.3d at 521. The
appellate courts do not “reweigh or reevaluate the evidence,” and questions regarding
“the credibility of witnesses [and] the weight and value to be given the evidence . . . are
resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); see
State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).

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

                                            -9-
S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)).

       Second degree murder is defined as a knowing killing of another. T.C.A. § 39-13-
210(a)(1); see id. § 39-11-106(a)(20) (Supp. 2009) (amended 2011, 2014). Second
degree murder is a result-of-conduct offense. State v. Page, 81 S.W.3d 781, 787 (Tenn.
Crim. App. 2002). Therefore, a person acts knowingly “when the person is aware that
the conduct is reasonably certain to cause the result.” T.C.A. § 39-11-302(b) (2014).
“[T]he ‘nature of the conduct’ that causes death is inconsequential.” Page, 81 S.W.3d at
787. A knowing intent is shown if the defendant acts with an awareness that his conduct
is reasonably certain to cause the victim’s death. See id. at 790-93.

      In Tennessee, a person who

      is not engaged in unlawful activity and is in a place where the person has a
      right to be has no duty to retreat before threatening or using force intended
      or likely to cause death or serious bodily injury, if:

                  (A) The person has a reasonable belief that there is an
             imminent danger of death or serious bodily injury;

                     (B) The danger creating the belief of imminent death
             or serious bodily injury is real, or honestly believed to be real
             at the time; and

                   (C) The belief of danger is founded upon reasonable
             grounds.

T.C.A. § 39-11-611(b)(2)(A)-(C) (2014) (amended 2016, 2017). The force used in
defense of self must be reasonable, given the circumstances. State v. Renner, 912 S.W.2d
701, 704 (Tenn. 1995).

       Viewed in the light most favorable to the State, the evidence shows that the victim
bumped into the Defendant inside The Battery and that they argued. The Defendant and
the victim had been drinking alcohol, and the Defendant had been involved in earlier
arguments with individuals other than the victim at the club. After the Defendant left the
club, the victim was agitated, but Mr. Calandros was able to calm the victim before the
victim left the club. The Defendant, who was angry, went quickly to Ms. Chappell’s car
and searched for his gun. After he found the gun, the Defendant put it in his pants and
returned on foot to the area outside the club. The Defendant appeared agitated as he

                                           -10-
returned and stopped to stare at the victim. The victim walked or ran toward the
Defendant and, when they were about four to six feet apart, the victim “kind of froze.”
The Defendant took out the gun and fired repeated shots, three of which struck the victim
in the torso. The evidence shows that the Defendant engaged in conduct that he was
aware was reasonably certain to cause the victim’s death.

       Relative to the Defendant’s self-defense claim, no evidence showed that the victim
was armed, that he physically assaulted the Defendant, or that the victim threatened to
harm the Defendant. To the contrary, although the evidence shows that the victim had
been upset and had advanced toward the Defendant, the unarmed victim stopped and
stood a few feet from the Defendant, but the Defendant pulled out the gun and opened
fire. The evidence does not support a conclusion that the Defendant had a reasonable
belief he was in imminent danger of death or serious bodily injury, that actual danger
existed or that the Defendant had an honest belief of actual danger, or that the Defendant
had a reasonable basis for believing he was in such danger. Further, the evidence does
not show that the force used by the Defendant was reasonable in response to any potential
threat the Defendant might have perceived when the victim advanced and stopped to
stand near him.

        The evidence is sufficient to support the Defendant’s conviction.      He is not
entitled to relief on this basis.

                                            II

                                Jury Selection Method

       The Defendant contends that the trial court erred in its method of empaneling
additional jurors, depriving him of a peremptory challenge. The State concedes that the
court deviated from the procedure prescribed by Tennessee Rule of Criminal Procedure
24(f)(2) but contends that the Defendant has not shown how he was prejudiced. We
agree with the State that the Defendant failed to establish prejudice from the court’s
deviation from Rule 24(f)(2).

        Relative to the selection of additional jurors in order for one or more alternate
jurors to be available for a trial, Rule 24(f)(2) provides:

             (f) Additional Jurors. Before jury selection begins, the court may
      call and impanel one or more jurors in addition to the regular jury of twelve
      persons. The following procedures apply:


                                          -11-
                    (1) Same as Regular Jurors. The additional jurors shall
             be drawn in the same manner, have the same qualifications,
             be subject to the same examination and challenges, take the
             same oath, and have the same functions, powers, facilities,
             and privileges as the regular jurors.

                     (2) Methods of Impaneling Additional Jurors. The
             trial court may use either of the following methods to select
             and impanel additional jurors:

                           (A) Single Entity. During jury selection
                    and trial of the case, the court shall make no
                    distinction as to which jurors are additional
                    jurors and which jurors are regular jurors.
                    Before the jury retires to consider its verdict,
                    the court shall select by lot the names of the
                    requisite number of jurors to reduce the jury to
                    a body of twelve or such other number as the
                    law provides. A juror who is not selected to be
                    a member of the deliberating jury shall be
                    discharged when that jury retires to consider its
                    verdict.

                           (B) Separate Entities. Following the
                    selection of the jury of twelve regular jurors, the
                    additional jurors shall be selected and
                    impaneled as alternate jurors. Alternate jurors
                    in the order in which they are called shall
                    replace jurors who become unable or
                    disqualified to perform their duties prior to the
                    time the jury retires to consider its verdict. An
                    alternate juror who does not replace a regular
                    juror shall be discharged when the jury retires to
                    consider its verdict.

       The Defendant’s complaint is that the trial court used the single entity method
delineated by Rule 24(f)(2)(A) during the selection process for the twelve jurors but that
the court used the separate entities method delineated by Rule 24(f)(2)(B) during the
selection process for two alternate jurors. He argues that by this method, the court
deprived him of a peremptory challenge.

                                           -12-
       The record reflects that the parties were each allotted eight peremptory challenges
during the selection of the twelve jurors and that the Defendant exercised seven of his
eight challenges. The court advised defense counsel that the Defendant did not retain his
unexercised peremptory challenge for use during selection of the alternate jurors but that
the Defendant would be allotted one peremptory challenge for each of the two alternate
juror slots. One prospective additional juror was excused for cause by the trial court.
Defense counsel elected not to exercise any peremptory challenges, and two additional
jurors were selected. At the end of the proof, the court randomly selected two individuals
of the fourteen seated. One person who was excused had been in the group of the initial
twelve individuals selected, and the other had been one of the two selected as an
additional juror. The remaining twelve jurors comprised the jury which decided the case.

      Relative to the method of the selection of jurors and alternates, Rule 24(d)
provides:

              (d) Exercising Peremptory Challenge. After the court conducts its
      initial examination and seats a tentative group of jurors not excluded for
      cause, the following procedure shall be followed until a full jury has been
      selected from those jurors and accepted by counsel:

                    (1) At each round of peremptory challenges, counsel
             shall submit simultaneously to the court either a blank sheet
             of paper or a sheet of paper challenging one or more jurors in
             the group of the first twelve (or more if additional jurors are
             seated under the single entity process of Rule 24(f)(2)(A))
             jurors who have been seated. Neither party shall make known
             the fact that the party has not challenged a juror.

                    (2) Replacement jurors will be seated in the panel of
             twelve (or more if additional jurors are seated under the
             single entity process of Rule 24(f)(2)(A)) in the order of their
             selection.

                    (3) If necessary, additional replacement jurors will be
             examined for cause and, after passed, counsel will again
             submit simultaneously, and in writing, the name of any juror
             in the group of twelve (or more if additional jurors are seated
             under the single entity process of Rule 24(f)(2)(A)) that
             counsel elects to challenge peremptorily.          Peremptory
             challenges may be directed to any member of the jury;

                                          -13-
             counsel are not limited to using such challenges against
             replacement jurors.

                    (4) Alternate jurors are selected in the same manner,
             unless the single entity process of Rule 24(f)(2)(A) is used.

        Rule 24(e)(2) provides that a defendant in cases involving imprisonment for more
than one year shall have eight peremptory challenges. Tenn. R. Crim. P. 24(e)(2). For
the selection of each additional juror selected pursuant to Rule 24(f), a defendant is
entitled to one peremptory challenge for each additional juror. Id. at (e)(4). An
additional challenge may be used against a regular juror or an additional juror. Id.

      The Advisory Commission Comments state, in pertinent part:

              Subdivision (d) permits trial judges to seat more than twelve
      prospective jurors for purposes of voir dire--possibly but not necessarily a
      number equal to twelve plus the number of peremptories to each side and
      the number of alternates available. All of these persons in the jury
      “universe” could be questioned at once. Note that if the “separate entities”
      procedure of Rule 24(f)(2)(B) is used, challenges are initially made to only
      the first twelve seated. Note also that under this procedure “replacement
      jurors will be seated in the panel of twelve in the order of their selection.”


             For example, a judge might chose to impanel thirty-two prospects.
      Each would be assigned a number. If during the initial round of
      peremptory challenges jurors number 3 and 6 are excused, juror 13 would
      replace 3 and juror 14 would replace 6. By this method lawyers would
      know who is coming up next.

      ....

             Rule 24(f)(2)(A) gives the court the option of using a procedure that
      eliminates the distinction between regular and alternate jurors. This
      procedure should facilitate juror attention to the evidence. If the court
      decides to use extra jurors in case a regular juror becomes unable to serve,
      the additional juror is combined with the other jurors for all purposes
      during the trial. Thus, if a court decides to use twelve jurors plus two
      additional jurors, all fourteen jurors are considered to be the jurors during
      the entire trial. Under this new rule, before the jury retires to deliberate the

                                           -14-
       court will randomly deselect the additional jurors, leaving the desired
       number of jurors, ordinarily twelve. The deselected jurors are then
       discharged when the remaining jurors retire to deliberate.

              Each side is given one peremptory challenge for each additional
       juror. Since under this model both regular and additional jurors are
       considered a part of a single jury, peremptory challenges may be used
       against any such juror, a process commonly known as “backstriking.” This
       procedure provides counsel with considerable flexibility in the exercise of
       peremptory challenges.

       A trial court’s deviation from jury selection procedures is considered non-
constitutional error. State v. Frausto, 463 S.W.3d 469, 484 (Tenn. 2015). In order to
obtain relief when a deviation has occurred, a defendant must show that the error “more
probably than not affected the judgment or would result in prejudice to the judicial
process.” See T.R.A.P. 36(b); Frausto, 463 S.W.3d at 484; State v. Rodriguez, 254
S.W.3d 361, 372 (Tenn. 2008).

       We agree with the Defendant and the State that the trial court deviated from the
rule by combining components of both the single entity and separate entities alternatives
into a unique, hybrid method of jury selection. The inquiry becomes, then, whether the
Defendant has shown that the error more probably than not affected the judgment or
caused prejudice to the judicial process.

        In that regard, we note that the Defendant was afforded eight peremptory
challenges for use in the selection of the initial twelve jurors and that he exercised seven
of them. He was afforded two additional peremptory challenges for the selection of the
two additional jurors, and he exercised neither. He was permitted, consistent with Rule
24, to challenge jurors. Despite his argument that he was deprived of a peremptory
challenge, he had one peremptory challenge remaining at the end of the selection process
for the first twelve jurors, and he had two peremptory challenges remaining at the end of
the selection process for the two additional jurors. The Defendant has not shown that the
trial court’s deviation deprived him of an actual opportunity to challenge a juror who sat
on the final jury and decided the case. Although the court did not follow Rule 24 as it is
written, the Defendant received, in substance, what the rule affords. The jury acquitted
him of the charged offenses, including first degree murder, and convicted him of lesser
included offenses. He has not shown that the error more probably than not affected the
judgment.



                                           -15-
       Regarding prejudice to the judicial process, we note with concern the trial court’s
statement on the record that the procedure followed in this case was consistent with the
practice in the judicial district for twenty-five years. Our supreme court has determined
that substantial violations of Rule 24, as well as repeated violations, may constitute
prejudice to the judicial process. See Frausto, 463 S.W.3d at 483-86; State v. Lynn, 924
S.W.2d 892, 894-98 (Tenn. 1996); State v. Bondurant, 4 S.W.3d 662, 666-70 (Tenn.
1999). Although we do not view the trial court’s deviation from Rule 24 to have
constituted prejudice to the judicial process in this case, we take this opportunity to echo
our supreme court’s admonition that “ignoring or rewriting the clear mandates of the
Tennessee Rules of Criminal Procedure is not an option available to trial courts.”
Frausto, 463 S.W.3d at 482-83.

       The Defendant is not entitled to relief on this basis.

                                              III

                   Admissibility of the Defendant’s Prior Convictions

        The Defendant contends that the court erred in ruling that his prior convictions for
failure to appear and robbery were admissible as impeachment evidence if he testified.
The State counters that the Defendant waived appellate consideration of the issue by
failing to raise it with specificity in the motion for a new trial and that he is not entitled to
plain error relief.

       First, we will consider the State’s argument that the Defendant waived appellate
consideration of the issue by failing to preserve it adequately. The record reflects that the
State filed a pretrial notice of its intent to impeach the Defendant with prior convictions
for failure to appear, robbery, and two counts of aggravated assault. The Defendant
responded with a motion to exclude the convictions on the following bases: (1) the
failure to appear and assault convictions were irrelevant to the issue of the Defendant’s
truthfulness and (2) any probative value of the evidence of the robbery and aggravated
assault convictions was outweighed by the prejudicial effect because those convictions
and the charged offenses were violent felonies. The issue was litigated in a jury-out
hearing. One of the allegations in the Defendant’s motion for a new trial stated:

       The Court erred by ruling that the Defendant’s prior convictions for Failure
       to Appear and Robbery would be admissible for purposes of impeachment.
       This ruling was a key factor in the Defendant not taking the witness stand
       in his own defense, and the Defendant’s testimony was needed to support
       the theory that he was acting in self-defense.

                                              -16-
       Tennessee Rule of Appellate Procedure 3(e) provides, in pertinent part, “[I]n all
cases tried by a jury, no issues presented for review shall be predicated upon error in the
admission or exclusion of evidence, . . . unless the same was specifically stated in a
motion for a new trial; otherwise such issues will be treated as waived.” This court has
said that the grounds upon which a defendant alleges he should receive a new trial “must
be specified with reasonable certainty . . . to advise the trial court and opposing counsel
of the alleged error or regularity . . . and to enable the appellate courts to see that the
alleged error was presented to the trial court for correction as required by [Tennessee
Rule of Appellate Procedure 36(a)].” State v. King, 622 S.W.2d 77, 79 (Tenn. Crim.
App. 1981).

        The State argues that the Defendant’s statement of the issue in the motion for a
new trial was insufficient to preserve it for appellate review because he failed to identify
a legal basis upon which he relied and because he failed to allege why the trial court erred
by ruling that the prior convictions would be admissible. As we have stated, the court’s
ruling that the robbery and failure to appear convictions were admissible was precipitated
by a notice filed by the State, which the Defendant opposed. The State’s notice identified
Tennessee Rules of Evidence 608 and 609 the bases for admissibility.3 The Defendant
responded to the State’s notice with a motion to prohibit use of the prior convictions.
The motion cited general concerns of irrelevance to the issue of truthfulness and
Tennessee Rule of Evidence 403 as reasons the convictions should be excluded. The
legal bases identified by the parties were litigated in the trial court. On appeal, the
Defendant has not presented a different legal theory upon which he alleges error. We
conclude, based upon the facts and circumstances of this case, that appellate
consideration of the issue is not waived.

       We turn to the merits of the issue. Tennessee Rule of Evidence 609 permits,
subject to time limitations that are not pertinent in this case, the use of previous
convictions to impeach a witness’s credibility, provided the crime was punishable by
death or imprisonment of more than one year or the crime involved dishonesty or false
statements. Tenn. R. Evid. 609(a)(2). Impeachment evidence admitted pursuant to Rule
609(a) “is limited to the fact of a former conviction and that the crime was committed.”
State v. Taylor, 993 S.W.2d 33, 35 (Tenn. 1999). Previous convictions cannot be
admitted as evidence to show a defendant’s propensity to commit the charged offense,
regardless of whether witness credibility is a central issue at a trial. See Tenn. R. Evid.


         3
           Although the State cited Tennessee Rule of Evidence 608 in the notice it filed in the trial court, the issue
raised on appeal pertains to prior criminal convictions. Rule 608 pertains to conduct which did not result in criminal
convictions. See Tenn. R. Evid. 608. The trial court did not rely on Rule 608 in its ruling, and the parties have not
argued on appeal that it is controlling. As such, our analysis does not include consideration of Rule 608.
                                                        -17-
404(b). When the State intends to impeach a criminal defendant with a prior conviction,
the trial court must, upon request by the Defendant, conduct a hearing to determine
whether the prior conviction’s probative value relative to the issue of the defendant’s
credibility outweighs the prejudicial effect of the evidence relative to the substantive
issues. Tenn. R. Evid. 609(a)(3).

       Questions regarding the admissibility and relevancy of evidence generally lie
within the discretion of the trial court, and the appellate courts will not “interfere with the
exercise of that discretion unless a clear abuse appears on the face of the record.” State v.
Franklin, 308 S.W.3d 799, 809 (Tenn. 2010) (citing State v. Lewis, 235 S.W.3d 136, 141
(Tenn. 2007)). In the context of Rule 609 rulings, we afford deference to the trial court’s
determination unless the trial court failed to follow the procedural requirements of the
rule. See State v. Lankford, 298 S.W.3d 176, 182 (Tenn. Crim. App. 2008).

        The record in the present case reflects that the trial court ruled the aggravated
assault convictions would be inadmissible to impeach the Defendant, should he choose to
testify, because these convictions were similar in nature to the charged offenses.
Regarding the failure to appear conviction, the court stated:

       [T]he court will allow [the conviction] to be used, finding that while
       [defense counsel] is correct the probative value of that [may be] slight, the
       same could be said . . . about the prejudicial value. It is a felony
       conviction. He failed to appear for court and . . . the jury will be instructed
       that he would be judged by that prior conviction only for the issue of
       creditability [sic], not propensity to commit crime. So, there will be a
       special jury instruction for that failure to appear.

Regarding the robbery conviction, the court stated:

       The robbery is a little bit more troublesome for this court. It is a serious
       crime, however, the reasons to exclude it would be the danger that the jury
       would find, once again, propensity to commit crimes because he was
       convicted of a robbery. And it is, as we stand now, six years . . . past from
       the sentence date. The reasons to allow it in is the fact that it is not an
       aggravated robbery, does not involve a deadly weapon. It’s simply a
       robbery of taking money from someone which . . . does involve a crime of
       moral turpitude and it is a felony conviction. For those reasons and the fact
       that it does not involve a weapon as an aggravated robbery, the court will
       allow the use of the robbery conviction for . . . impeachment purposes
       finding that the unfair prejudice is not outweighed by the probative value of

                                             -18-
        that prior conviction. [sic] Once again, the jury will be instructed that they
        are not to consider that for propensity purposes. They are to consider that
        only as one factor to judge the creditability [sic] of the defendant should he
        elect to testify[.]

        The record reflects that the trial court followed the procedural requirements of the
rule, and we will afford deference to its determination. Regarding the felony failure to
appear conviction, the court considered neither the probative value nor the prejudicial
effect to be great. The Defendant complains that the court did not weigh the probative
value against the prejudicial effect. Although the court did not explicitly state that the
probative value outweighed the prejudicial effect, it is apparent from the court’s
statements on the record that it considered the competing interests and weighed the
probative value of the evidence as greater than the prejudicial effect of admitting the
evidence. The record shows that the court considered failure to appear to reflect
adversely upon the Defendant’s credibility. See State v. Charles Clay Young, No. 01C01-
9601-CC-00195, 1997 WL 469900, at *5-6 (Tenn. Crim. App. Aug. 15, 1997) (holding
that the defendant failed to show plain error in the trial court’s ruling that the defendant’s
conviction for “bail jumping”4 was admissible for impeachment purposes, reasoning that
the defendant’s failing to appear reflected upon his credibility), perm. app. denied (Tenn.
Mar. 2, 1998); cf. State v. Reginald Dewayne Terry, No. M2011-01891-CCA-R3-CD,
2012 WL 5873518, at *6-8 (Tenn. Crim. App. Nov. 19, 2012) (holding that a trial court
erred in ruling that a defendant could not cross-examine the victim about her failure to
appear at the defendant’s previous trial date and stating that the victim’s failure to obey a
subpoena reflected upon her credibility as a witness). But see State v. Kevin Lane Farrar,
No. M2001-01370-CCA-R3-CD, 2002 WL 560959, at *8-9 (Tenn. Crim. App. Apr. 16,
2002) (disagreeing with the trial court’s conclusion that a witness’s misdemeanor failure
to appear conviction was probative of the witness’s truthfulness but concluding that the
court committed harmless error in permitting cross-examination of the witness about the
conviction), perm. app. denied (Tenn. Oct. 7, 2002).

       Failure to appear requires that a defendant knowingly failed to appear at a court or
other official proceeding as directed by lawful authority. See T.C.A. § 39-16-609 (2014).
Failure to appear is a felony if the underlying offense for which the defendant failed to
appear is a Class A misdemeanor or a felony. Id. § 39-16-609(e). As we have stated, the
trial court considered knowingly failing to appear, notwithstanding lawful authority


        4
           The Sentencing Commission Comments to Tennessee Code Annotated section 39-16-609 note that the
current statute designating failure to appear as a criminal offense is broader than the former section 39-5-720,
“which only reached ‘bail jumping’ or the failure to appear if released without bail.” We conclude, for the purposes
of this impeachment evidence analysis, that bail jumping is equivalent to failure to appear.
                                                       -19-
compelling the Defendant’s attendance, to be probative evidence relative to truthfulness
and the Defendant’s credibility as a witness in the present proceeding, and the court
weighed this probative value as greater than the weight of any prejudicial effect of
allowing the evidence. Upon review, we conclude that the trial court did not abuse its
discretion in ruling that the Defendant could be impeached with his prior conviction for
felony failure to appear.

       Turning to the robbery conviction, the trial court found that it was probative of
truthfulness. The court expressed concern that the jury might misuse the prior conviction
evidence as propensity evidence but stated that a limiting instruction would caution the
jury to consider the evidence only on the issue of the Defendant’s credibility as a witness.
The court noted that robbery did not involve a weapon, which was in contrast to the facts
of the charged offenses. The court weighed the probative value of the evidence against
its prejudicial effect. Although the court stated that the “unfair prejudice is not
outweighed by the probative value of that prior conviction,” it is apparent from the
context that the court misspoke and found the probative value was not outweighed by the
unfair prejudice in admitting the evidence.

        “Robbery is the intentional or knowing theft of property from the person of
another by violence or putting the person in fear.” Id. § 39-13-401(a) (2014). “Robbery
is a crime involving dishonesty and may be used for impeachment purposes.” State v.
Galmore, 994 S.W.2d 120, 122 (Tenn. 1999); see State v. Caruthers, 676 S.W.2d 935,
941 (Tenn. 1984). The Defendant argues, though, that the prejudicial effect of the
robbery conviction was great because, like the charged offenses, robbery involves
violence. We note, first, that robbery may be committed by violence or placing the
victim in fear. See T.C.A. § 39-13-401(a). In any event, the trial court found it
significant that robbery does not require the use of a weapon, whereas the facts involved
in the trial involved the Defendant’s use of a weapon. Although not noted by the trial
court, we observe that the facts of the charged offenses did not involve a theft. Upon
review, we conclude that the trial court did not abuse its discretion in ruling that the
Defendant could be impeached with his prior conviction for robbery. See State v. Marty
Lavern Pyburn, No. M2003-01090-CCA-R3-CD, 2004 WL 1857109, at *11-12 (Tenn.
Crim. App. Aug. 16, 2004) (holding that the trial court did not err in allowing
impeachment of the defendant with his prior aggravated robbery conviction at his first
degree murder trial), perm. app. denied (Tenn. Dec. 20, 2004). The Defendant is not
entitled to relief on this basis.




                                           -20-
                                            IV

                                   Cumulative Error

       The Defendant contends that he is entitled to a new trial due to cumulative trial
error. Because we have determined that a single error occurred during the jury selection
process and that this individual error was harmless, the issue is without merit.

                                            V

                                       Sentencing

      Finally, the Defendant contends that the trial court erred by applying a sentencing
enhancement factor for multiple victims and in imposing a maximum forty-year term for
second degree murder. The State contends that the Defendant has not shown that the
sentence was improper. We agree with the State.

       This court reviews challenges to the length of a sentence within the appropriate
sentence range “under an abuse of discretion standard with a ‘presumption of
reasonableness.’” State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). A trial court must
consider any evidence received at the trial and sentencing hearing, the presentence report,
the principles of sentencing, counsel’s arguments as to sentencing alternatives, the nature
and characteristics of the criminal conduct, any mitigating or statutory enhancement
factors, statistical information provided by the Administrative Office of the Courts as to
sentencing practices for similar offenses in Tennessee, any statement that the defendant
made on his own behalf, and the potential for rehabilitation or treatment. State v. Ashby,
823 S.W.2d 166, 168 (Tenn. 1991) (citing T.C.A. §§ 40-35-103 (2014), -210 (2014);
State v. Moss, 727 S.W.2d 229, 236 (Tenn. 1986); State v. Taylor, 744 S.W.2d 919
(Tenn. Crim. App. 1987)); see T.C.A. § 40-35-102 (2014).

        Likewise, a trial court’s application of enhancement and mitigating factors is
reviewed for an abuse of discretion with “a presumption of reasonableness to within-
range sentencing decisions that reflect a proper application of the purposes and principles
of our Sentencing Act.” Bise, 380 S.W.3d at 706-07. “[A] trial court’s misapplication of
an enhancement or mitigating factor does not invalidate the sentence imposed unless the
trial court wholly departed from the 1989 Act, as amended in 2005.” Id. at 706. “So long
as there are other reasons consistent with the purposes and principles of sentencing, as
provided by statute, a sentence imposed . . . within the appropriate range” will be upheld
on appeal. Id.


                                           -21-
       At the sentencing hearing, the victim’s mother read a statement and testified about
the impact of the victim’s death on the victim’s family. The victim’s mother, stepmother,
and father testified about the impact the victim’s death had on them and their family. The
victim’s stepmother testified that the victim had a five-year-old daughter.

       A former college basketball teammate of the victim’s testified that the victim was
“days away from graduation” at the time of the victim’s death. The teammate testified
about the impact of the victim’s death on members of the basketball team and former
classmates.

       The presentence report was received as an exhibit. It reflects that the Defendant
was twenty-six years old at sentencing. He had prior convictions for trespassing, being a
felon in possession of a firearm, failure to appear, and two counts of aggravated assault.
In addition, he had been adjudicated delinquent as a juvenile for aggravated robbery. He
had his probation revoked for the juvenile adjudication, had been placed in custody with
the Department of Children’s Services, and had his probation revoked for offenses
committed as an adult. The latter revocation occurred approximately eight months before
the offenses in the present case. He had pending revocation warrants for failure to
appear, attempted first degree murder, aggravated robbery, and aggravated assault
convictions, based upon the commission of the offenses in the present case.5 The
Defendant acknowledged to the presentence report preparer that he had started and
stopped using alcohol at age eighteen, and he denied drug use. He reported that he was
not disabled or under the care of a physician. He did not report any work history to the
presentence report preparer, although a probation violation report attached to the
presentence report states that the Defendant became employed a few days before the
offenses in the present case.

       The trial court found that the Defendant was a Range II offender. The court stated
that the Defendant had “little, if any factors that would weigh in [his] favor” and noted
that the Defendant had several felony convictions since becoming an adult, as well as the
juvenile adjudication for aggravated robbery. The court enhanced the Defendant’s
sentences based upon his prior convictions, noting that the Defendant had convictions in
addition to those necessary to classify him as a Range II offender. See T.C.A. § 40-35-
114(1) (2012) (amended 2015, 2016, 2017). The court also enhanced the Defendant’s
second degree murder sentence based upon the fact that the offense involved more than
one victim, noting that at least two other people were struck by bullets or shrapnel. See
id. § 40-35-114(3). The court found that the Defendant committed the offenses while on


        5
            The trial court revoked the Defendant’s probation at the sentencing hearing. The revocation is not a
subject of this appeal.
                                                     -22-
probation and had failed to comply with a sentence involving community release. See id.
§ 40-25-114(8), (13). The court applied great weight to the Defendant’s commission of
the offenses while on probation. The court also enhanced the sentences based upon the
Defendant’s lack of hesitation to commit crimes when the risk to human life was high,
noting that many people were present in the parking lot when the shootings occurred. See
id. § 40-35-114(10). The court found that no mitigating factors applied. See id. § 40-35-
113 (2012).

       For second degree murder, the court noted the sentencing range of twenty-five to
forty years and found that the maximum sentence was appropriate. The court imposed
sentences of eleven months and twenty-nine days each for the two misdemeanor
convictions. The court noted the Defendant’s long history of involvement with the
criminal justice system, the need to protect the public from him, and his “extremely low”
potential for rehabilitation. The court recounted the trial evidence and stated, “The facts
and circumstances of this particular case weigh heavily in favor of a maximum
sentence[.]”

        The Defendant complains that the trial court erred in enhancing his sentence based
upon the multiple victims enhancement factor. See id. § 40-35-114(3). We agree.
Although the evidence showed that individuals other than the deceased victim were
injured when the Defendant fired shots in a crowded area, the Defendant was charged
separately with offenses which identified Zachary Breedlove and Jonathan McInturff as
the victims. See, e.g., State v. Imfield, 70 S.W.3d 698, 706 (Tenn. 2002) (stating that the
multiple victims enhancement factor did not apply to a conviction which was obtained
based upon a named victim and that application of the factor based upon the presence of
individuals on whose behalf no charges were filed was impermissible); State v. Reid, 91
S.W.3d 247, 310-11 (Tenn. 2002); State v. Williamson, 919 S.W.2d 69, 72 (Tenn. Crim.
App. 1995); State v. Raines, 882 S.W.2d 376, 384 (Tenn. Crim. App. 1994) (holding that
a “victim,” for purposes of T.C.A. § 40-35-114(3), is a “person or entity that is injured,
killed, had property stolen, or had property destroyed by the perpetrator of the crime”).

       The remaining question is whether the court sentenced the Defendant excessively,
given the inapplicability of the multiple victims enhancement factor and the weight the
court afforded the remaining factors, along with the facts and circumstances of the case.
In that regard, we note that despite the misapplication of enhancement factor (3), the
court considered the relevant statutes and considerations along with the facts and
circumstances of the case and that its reasoning was otherwise consistent with the
purposes and principles of sentencing. The sentence the court imposed was within the
appropriate range. As such, the Defendant cannot overcome the presumption of


                                           -23-
reasonableness we must afford to the trial court’s determination. See Bise, 380 S.W.3d at
706. He is not entitled to relief on this basis.

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


                                           _____________________________________
                                            ROBERT H. MONTGOMERY, JR., JUDGE




                                          -24-
