                                                                                      03/06/2018
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT KNOXVILLE
                      Assigned on Briefs November 28, 2017

              STATE OF TENNESSEE v. RODNEY JENNINGS

               Appeal from the Criminal Court for Hamilton County
                   No. 292497 Thomas C. Greenholtz, Judge
                    ___________________________________

                          No. E2017-00330-CCA-R3-CD
                      ___________________________________

A Hamilton County jury convicted the Defendant, Rodney Jennings, of second degree
murder, and the trial court sentenced him to serve twenty-five years in the Tennessee
Department of Correction. The Defendant appeals, asserting: (1) the trial court
improperly allowed into evidence testimony concerning the Defendant’s gang affiliation
and the Defendant’s 2013 domestic assault conviction; (2) the State improperly
impeached the Defendant during cross-examination; and (3) the evidence is insufficient
to support his conviction. After review, we affirm the trial court’s judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and J. ROSS DYER, J., joined.

Rodney Jennings (on appeal), pro se, Hartsville, Tennessee; Brandy Spurgin and Brian
Pearce (at trial), Chattanooga, Tennessee, for the appellant, Rodney Jennings.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel;
M. Neal Pinkston, District Attorney General; Cameron Williams and Kristen D. Spires,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                      OPINION
                                       I. Facts

       This case arises from a domestic dispute over visitation with the Defendant and
Cheslei Thompson’s children, which resulted in the Defendant shooting and killing Ms.
Thompson’s cousin, Raphael White. A grand jury indicted the Defendant for second
degree murder and possession of a firearm with a violent felony conviction. One of the
issues the Defendant raises on appeals is the admission of testimony about a 2013
domestic assault. As such, we separately summarize the testimony from the 404(b)
hearing before providing the summary of the trial testimony.

                                   A. 404(b) Hearing

        The State sought to introduce proof of a June 2013 domestic assault conviction,
involving Ms. Thompson and the Defendant’s children. The State submitted that the
evidence was relevant to show the Defendant’s intent related to the second degree murder
charge, demonstrating similarities between the 2013 episode and the 2014 shooting. The
State, through Jean Rogers, a Hamilton County 911 Record Specialist, introduced two
911 calls made from a neighbor’s residence recorded at 1:11 a.m. on June 5, 2013. The
defense, through the same witness, introduced two 911 calls placed from Waffle House
on East 23rd Street. These calls were made by a man who identified himself as “Rodney”
at 4:22 a.m. and 5:02 a.m. on June 5, 2013.

       Brian Angel, a Chattanooga Police Department officer, testified that, in June 2013,
he was dispatched to a residence on 6th Avenue in Chattanooga, Tennessee, at
approximately 1:30 a.m. When he arrived, he observed a female, Ms. Thompson, outside
who appeared “very hysterical.” There was blood “all over her,” and he noticed a broken
window on the front of the apartment. Ms. Thompson explained to the officer that her
“child’s father,” later identified as the Defendant, had broken the window and there was
“some kind of struggle” during which she was cut on the broken glass. The Defendant
made entry but fled prior to the officer’s arrival. Officer Angel testified that Ms.
Thompson had cuts on her forearms. He also observed two small children inside the
residence.

       Officer Angel testified that, within a couple hours of his initial contact with Ms.
Thompson, the Defendant arranged to turn himself in to the police at a Waffle House
parking lot located on 23rd Street. On cross-examination, Officer Angel was asked about
whether there was “a lot of gang activity” in the 6th Avenue apartment complex, and he
replied, “Sure.”

       Ms. Thompson testified that she and the Defendant had been in a relationship and
had two children together. The couple had never married but had lived together
intermittently. Ms. Thompson explained that the Defendant lived with her at the 6th
Avenue residence for “a couple of months” before he moved out due to an argument. In
June 2013, after the Defendant had moved out, he returned to “visit.” During the visit, a
Chattanooga Housing Authority employee appeared at the residence and issued the
Defendant a citation for “yelling in [Ms. Thompson’s] face” and banned the Defendant
from the property.

                                          -2-
       Ms. Thompson testified that several days later, on June 5, 2013, a friend of hers
was spending the night. She recalled that Kionna Glenn1 and Ms. Thompson’s two
children were at the residence that night when the Defendant came to the door. Ms.
Glenn let the Defendant inside and, once inside, he instigated an argument with Ms.
Thompson. The Defendant and Ms. Thompson were in an upstairs bedroom with their
children, and the Defendant accused Ms. Thompson of engaging in a sexual relationship
with Kionna. The argument escalated to an assault during which the Defendant hit and
pushed Ms. Thompson. The Defendant and Ms. Thompson moved their altercation
downstairs where the Defendant hit Kionna. The children began crying, and the
Defendant grabbed their older son, then four years old, and pushed him against the wall.
“[F]inally” the Defendant exited out the front door.

       Ms. Thompson testified that the Defendant could not re-enter the residence
because she quickly locked the front and back door after his departure. Because he was
unable to enter through a door, the Defendant broke the kitchen window. As the
Defendant entered through the window, Ms. Thompson tried to push him back out,
cutting her hands and arms on the broken glass in the process. The Defendant entered
through the window and hit Ms. Thompson in the kitchen before walking to the living
room area where he paced. According to Ms. Thompson, the Defendant dropped his
phone, told Ms. Thompson to call the police, and then left. Ms. Thompson used the
Defendant’s cell phone to call the police. Ms. Thompson was transported by ambulance
to the hospital where she was treated for her injuries. The Defendant was later arrested
and served six months in jail for this incident.

        Ms. Thompson testified that the Defendant was released from jail in December
2013. He contacted her approximately two weeks after his release via Facebook to ask if
he could see the children. Ms. Thompson agreed, and the Defendant picked up the
children at Ms. Thompson’s mother’s residence. Later that night, Ms. Thompson
retrieved the children from the Defendant. Approximately two weeks before the shooting
in this case, she again allowed the Defendant to take the children for a few hours. The
Defendant picked up the children from her 6th Avenue residence and returned them there.

       On January 28, 2014, the Defendant appeared at her front door asking to see the
children. The older child was at Ms. Thompson’s mother’s residence, and the two-year-
old was upstairs sleeping. Ms. Thompson explained this to the Defendant and told him
she would not wake up their younger child. She told him he should come back another
time. The Defendant continued asking to see the sleeping child. Raphael White, the
victim, told the Defendant “we don’t want any problems,” and the Defendant “said the

       1
        At this point in the transcript, Ms. Thompson refers to “Kionna” only by her first name.
It becomes clear from the trial testimony, however, that she is referring to Kionna Glenn.
                                             -3-
same.” The Defendant backed out the door, put his hand into his pocket when he was out
in the hall. As the victim was shutting the door, Ms. Thompson heard a gunshot. Ms.
Thompson testified that the victim did not have a gun and that she did not see the gun that
shot the victim. After shooting the victim, the Defendant fled.

       On cross-examination, Ms. Thompson testified that on the night of the June 2013
assault the Defendant was “out of control,” but on the night of the January 28, 2014
shooting the Defendant was calm and there was no “fight.”

       After hearing this evidence, the trial court granted the Defendant’s motion seeking
to exclude any testimony about the June 2013 domestic assault. In further discussions
about potential testimony, the trial court advised defense counsel that, if the defense
“open[ed] the door to the [2013] domestic assault, the rest of it comes in.”

                                   B. Trial Testimony

       During the trial, the parties presented the following evidence: Larry Ellis and
Matthew Bond,2 Chattanooga Police Department (“CPD”) officers, were the first
responders to a homicide scene located at East Lake Court housing project on 6th Avenue.
As Officer Ellis approached the entryway to the unit, he saw the victim lying on the floor
near the door, and three females and one male who were “very emotional and
screaming.” The officers separated the witnesses from the victim by moving the
witnesses into the living room area. The officers also conducted a protective sweep of
the unit and other than the previously mentioned adults and one child, found no one else
present. Officer Ellis testified that the witnesses identified the shooter and described the
truck that he left in. The victim was transported to the hospital, and the witnesses were
transported to the police station for questioning.

       James Metcalfe, the Hamilton County Chief Medical Examiner and Forensic
Pathologist, testified as an expert witness in the field of forensic pathology. After
examining the victim’s body, Dr. Metcalfe concluded that the victim’s manner of death
was homicide and that the cause of death was a gunshot wound to the chest. Dr. Metcalfe
explained that the “main injury” was caused by a bullet that traveled through the victim’s
left ventricle and left lung. He stated that this type of wound was fatal. Dr. Metcalfe
collected the bullet from the victim’s back just under the skin. The Chattanooga Police
Department collected the bullet as part of the investigation.


       2
        At the time of trial, Mr. Bond was a salesman for an insurance company based in
Ringgold, Georgia.

                                           -4-
       Tirrea Tony testified that she was present in Ms. Thompson’s apartment (“6th
Avenue unit”) at the time of the shooting. She said she was in the living room when the
Defendant knocked on the door. Ms. Thompson opened the door to him, and the two
argued in the kitchen about the Defendant seeing the children. Ms. Tony recalled that the
younger child was asleep in the apartment, but the older child was not there. According
to Ms. Tony, Ms. Thompson told the Defendant he should leave. The victim came into
the kitchen and reiterated that the Defendant needed to leave, saying “I don’t want no
problems.” The Defendant responded that he did not want “no problems” either and
walked out the door. The victim walked to the door to shut it, and the Defendant shot the
victim in the chest. Ms. Tony testified that she did not see the victim with any weapon
that night and did not hear him threaten the Defendant.

       On cross-examination, Ms. Tony confirmed that the Defendant was “aggressive”
toward Richard Morris at Ms. Thompson’s residence on the day of the shooting. When
presented with her testimony from the preliminary hearing, Ms. Tony agreed that at the
preliminary hearing she said that the Defendant showed no signs of aggression but
maintained that her trial testimony was more accurate. Ms. Tony reiterated that the
Defendant and Ms. Thompson were in the kitchen where he was talking like he was “mad
at her” when the victim entered and told the Defendant to leave. Ms. Tony said the
Defendant was pacing back and forth at the time and then walked out the door into the
“public hall.” Ms. Tony confirmed that she did not see the gun or the gunfire.

       Ms. Tony testified that, at the time of the shooting, the victim had “[h]is flag” in
his pocket and his cell phone. After playing the 911 recording again, Ms. Tony agreed
that she did not tell the 911 operator, when asked, who shot the victim and that she also
denied knowing where the victim was shot. Ms. Tony, however, maintained that she was
certain it was the Defendant who shot the victim.

      On redirect examination, Ms. Tony testified that she knew the Defendant as
“Roscoe” and was unaware of his full name on the day of the shooting. She identified the
Defendant in court as the man who shot the victim on January 28, 2014.

       Ronald White testified that Ms. Thompson was his sister and that the victim was
his cousin. Mr. White recalled that he had stayed at his sister’s residence the night of
January 27, 2014, and was still there on January 28 when the Defendant came by asking
to see his children. The Defendant knocked on the door, and Ms. Tony called upstairs to
Ms. Thompson, who was in her bedroom with a “male friend . . . [Richard Morris].” Ms.
Thompson went downstairs and opened the door to the Defendant. The victim knocked
on the door of the room Mr. White was in and “told him to come down the steps” with
the victim. The victim and Mr. White went downstairs and into the living room.

                                           -5-
       Mr. White testified that he overheard the Defendant and Ms. Thompson talking
about their children. At some point, Mr. Morris came downstairs, and the Defendant
asked Mr. Morris if he “was [ ] messing with [Ms. Thompson] now.” Mr. Morris denied
“messing with” Ms. Thompson, stating that she was “[j]ust [his] home girl.” The
Defendant told Mr. Morris that he had “no problem” with him, Mr. Morris left, and the
Defendant and Ms. Thompson resumed their conversation about their children. The
conversation between the two turned “loud,” and Mr. White urged the Defendant and Ms.
Thompson to “calm down” for the sake of their children.

       Mr. White testified that the conversation between the Defendant and Ms.
Thompson again escalated, so the victim walked into the room, opened the door for the
Defendant, and said, “we don’t want no problems.” The Defendant said that he did not
want “no problems either” and then the shooting occurred. Mr. White said he was
standing behind the victim and did not see the Defendant fire the gun but noted that the
Defendant was the only person standing in the doorway. After the gunfire, the victim fell
backward toward Mr. White, and Mr. White “pulled him in.” Mr. White said that the
victim grabbed his chest and was shaking. When Mr. White lifted the victim’s shirt, he
saw the gunshot wound and immediately ordered the others to call 911. He said that
everyone was in shock and “flipping out,” so he grabbed a phone and called 911.

       Mr. White testified that, before the shooting, the victim did not threaten the
Defendant or make any threatening gestures toward the Defendant. He said that the
victim was closing the door when the Defendant shot him.

       On cross-examination, Mr. White said that he used the victim’s cell phone to call
911 and that he retrieved the cell phone from the counter. Upon review of the transcript
from the preliminary hearing, Mr. White agreed that he had previously testified that the
cell phone had been in the victim’s pocket but that someone had handed it to him to call
911. Mr. White explained that the circumstances were very stressful, and he was unsure
of whose phone he had used to place the 911 call. Mr. White stated that the victim’s
“child mother” retrieved the victim’s phone several days after the shooting. Mr. White
confirmed that in November 2009, he was convicted of burglary and theft.

        Ms. Thompson testified that in January 2014 she lived in the 6th Avenue unit with
her two children, who were two and four years old at the time. Ms. Thompson explained
that the victim was her cousin and Mr. White was her brother.

       Ms. Thompson testified that she and the Defendant had been in a relationship for
six years and, at one point, the Defendant had lived in the 6th Avenue unit with her but
had moved out in June 2013. In the late afternoon of January 28, 2014, Ronald White,
Raphael White, Ms. Tony, Mr. Morris, and “Lanesha” were present at the apartment.
                                          -6-
The Defendant came to the residence to “chill.” She recalled that Ms. Tony heard the
knock at the door and yelled upstairs to Ms. Thompson that the Defendant was at the
door. Ms. Thompson was in her upstairs bedroom with her youngest son and Mr. Morris.

       Ms. Thompson testified that she went downstairs and opened the door for the
Defendant. Around that time, Mr. Morris was leaving. The Defendant and Mr. Morris
exchanged a few pleasantries and then Mr. Morris left. The Defendant asked to see their
youngest child, and Ms. Thompson explained that he was sleeping. The Defendant urged
Ms. Thompson to go and wake the child so he could see him, but Ms. Thompson
declined, suggesting the Defendant come over to see their children another time. The
Defendant asked Ms. Thompson for a cigarette, and she told him she did not have any.
She continued to encourage him to leave, acknowledging that as she did so, she became
“kind of loud.” The victim then approached the Defendant saying “we don’t want no
problems,” and the Defendant reiterated the same and began walking toward the door
with his “hands up.” As he walked out the door, he put his hand back in his pocket. The
victim took hold of the door to shut it, and then Ms. Thompson heard gunfire. Ms.
Thompson said that she did not see the gun but that the Defendant was the only person in
the public hallway. After the gunfire, the Defendant took off running. Initially, she did
not realize that the victim had been shot, but when the victim’s shirt was lifted, she saw a
gunshot wound.

       Ms. Thompson testified that while Mr. White and Ms. Tony called 911, she
checked to see if the victim had a pulse. Police officers arrived first, followed by the
ambulance that transported the victim to the hospital. Everyone else in the residence was
taken to the police station. Ms. Thompson stated that, before the shooting, she did not
hear the victim threaten the Defendant nor did the victim have a gun on his person.

        Caleb Brooks, a CPD crime scene investigator, testified that on January 28, 2014,
he responded to Erlanger Hospital about a potential homicide. Once he arrived, he
learned that the victim had died. Officer Brooks collected evidence and then proceeded
to the crime scene. At the crime scene, Officer Brooks took photographs and then placed
evidence markers where there were items to be collected and video-recorded the scene.
Officer Brooks observed what appeared to be a blood stain on a window seal and on the
porch. He collected samples of both substances and swabbed the door handle for DNA
testing. Officer Brooks stated that he and another officer searched the residence and
found no firearms.

        Steve Scott, a Tennessee Bureau of Investigation (“TBI”) forensic scientist,
testified as an expert witness in firearms identification. Special Agent Scott stated that he
had received a bullet for forensic examination. His examination revealed characteristics
consistent with Winchester brand ammunition and generally associated with a .38 or .357
                                            -7-
caliber bullet. Special Agent Scott stated that “typically” a .38 Special caliber revolver
left residue within a four to five foot range from the muzzle of the gun. Nonetheless, he
stated that if he did not find any residue, he could not “really form an opinion.”

       Kendall Stoner, a TBI forensic scientist, testified as an expert witness in forensic
biology, specifically DNA testing. Special Agent Stoner tested potential blood samples
taken from the front porch of the building and from the window seal. Both swabs tested
negative for the presence of blood. She also tested a swab for “touch DNA” taken from
the interior door handle of the “main entrance door.” The results did not indicate the
presence of human DNA. The results from a swab of the front exterior door handle did
not reveal a DNA profile.

       Tim Pickard, a Chattanooga Police Department officer, testified that he was
assigned to the fugitive unit and became involved in this case in February 2014 after
other officers were unable to locate the Defendant. Officer Pickard said that typically,
members of the unit will conduct interviews with relatives, close family members, or
other people associated with a suspect in order to gain information on the suspect’s
location. After investigating numerous possible connections to the Defendant, the
fugitive unit obtained information that the Defendant was no longer in the Chattanooga
area. Information about the Defendant was provided to the U.S. Marshals and
subsequently Officer Pickard learned that the Defendant was found and arrested in
Memphis, Tennessee on March 17, 2014.

       James Plumlee, a CPD homicide detective, testified that, on January 28, 2014, he
arrived at the crime scene at approximately 8:30 p.m. All potential witnesses had been
transported to the police station for questioning, and the crime scene area had been “taped
off” to protect any potential evidence. Detective Plumlee conducted the recorded
interviews with Ms. Tony and Ms. Thompson. After officers had interviewed all the
witnesses, they met to share the information learned and developed the Defendant as a
suspect. The police department issued a “Be On The Lookout” (“BOLO”) for the
Defendant. Further, patrol officers were sent to addresses of some of the Defendant’s
relatives in an attempt to locate the Defendant.

       Detective Plumlee testified that he went to the Defendant’s father’s residence and
spoke with the Defendant’s father and searched the residence for the Defendant. The
Defendant’s father said that the Defendant had contacted him from a blocked number and
that he had tried to convince the Defendant to turn himself in and talk with the police.
The Defendant’s father also disclosed that the Defendant “hangs out” with Prentice
Barnette. Police followed this lead but were unable to locate the Defendant. On
February 9, 2014, the police department issued a video about the homicide on Crime
Stoppers. The police received tips about the Defendant’s possible location as a result of
                                           -8-
the video but still the Defendant was not located. In February, the search for the
Defendant was transferred to the fugitive unit. In March, the Defendant was located in
Memphis, Tennessee and transported to the Hamilton County jail. Detective Plumlee
confirmed that the weapon used in the shooting was not recovered.

        The Defendant testified that he had two children with Ms. Thompson. He said that
he stood five feet three inches tall and weighed 138 pounds in January 2014. About
visitation with his children, the Defendant said that, following the end of his romantic
relationship with Ms. Thompson, on the day he wanted to see the children he would
contact Ms. Thompson via Facebook or call Ms. Thompson’s mother, Marylyn3
Thompson.4 The Defendant stated that he was “homeless” but, when he had time with
his children, he would go to a family member’s or friend’s house. He usually had the
children in six or seven hour increments and would make arrangements for “a ride” to
return the children to Ms. Thompson at East Lake Courts.

       The Defendant recalled the week before the shooting. He said that he had picked
up the children from Marylyn Thompson’s house. At the end of his time with the
children, however, he could not obtain a ride to take the children home so he called Ms.
Thompson asking if she would come get the children. Ms. Thompson agreed, and the
Defendant told her to meet him at “54th and St. Elmo Avenue” because he did not want
the victim and Mr. White to know where he stayed. Ms. Thompson arrived, with Mr.
White driving, later than expected and appeared “all mad” and “agitated.” She rushed the
children into the car and would not speak to the Defendant.

       The Defendant testified that he had known the victim and Mr. White for many
years. He explained that the victim and the Defendant’s younger brother, Nathan
Jennings, had gone to school together. The Defendant recalled that approximately two
years before the shooting, in 2012, the Defendant and the victim had engaged in an
argument at Marylyn Thompson’s residence. The Defendant said that he had gone to
Marylyn Thompson’s residence to see Ms. Thompson. While still outside, the victim
approached the Defendant and accused him of “disrespecting Mar[y]lyn Thompson.”
The two began to argue and “tussle,” but no one was hurt during the exchange. He
described the victim as six feet one inch tall and weighing approximately 175 pounds in
comparison to the Defendant’s smaller stature.


       3
           Marylyn Thompson’s first name is spelled “Marylyn” and “Marilyn” in the transcript.
For purposes of consistency, we will use the initial spelling of “Marylyn.”
         4
           Due to Cheslei Thompson and Marylyn Thompson sharing the same surname, for
clarity, we refer to Cheslei Thompson as “Ms. Thompson” and Marylyn Thompson by her full
name.
                                            -9-
        The Defendant confirmed that he was convicted of robbery in 2006 and domestic
violence and vandalism. As to the latter two offenses, the Defendant explained that he
was “staying with” Ms. Thompson at her 6th Avenue unit. Ms. Thompson had a friend
over at the time, and the Defendant wanted the friend, Kionna Glenn, to leave because he
felt that Ms. Thompson “act[ed] funny toward[ ] [him]” in Ms. Glenn’s presence. Ms.
Thompson refused to ask Ms. Glenn to leave, so the Defendant left to “drink” and “stuff
like that.” When the Defendant returned, he again raised the issue of Ms. Glenn leaving,
and Ms. Thompson “just went off.” The two began to argue and “stuff.” He felt badly
about the exchange, so he left his cell phone with her to call the police and walked to
Waffle House.

        The Defendant testified that, while he was incarcerated for the domestic assault
conviction, he spoke with his brother on the phone. His brother told him to be careful
because the victim had threatened to “get” the Defendant when he saw him next. The
Defendant and victim were incarcerated at the same facility for a period of time, and the
victim confronted the Defendant verbally about the incident with Ms. Thompson but
initiated no physical contact. The Defendant avoided the victim after that.

        The Defendant testified that he had seen the victim before with a gun at Marylyn
Thompson’s residence. He recalled that he was on the front porch of the residence when
the victim arrived. The victim’s eye was swollen and bleeding, and the Defendant saw a
gun in the victim’s back pocket as the victim paced back and forth angrily while ranting.
The Defendant said that Mr. White prevented the Defendant from getting involved saying
that his brother was “crazy.”

       The Defendant testified that on January 28, 2014, he was staying at a hotel on
Broad Street. He contacted Marylyn Thompson to arrange to see his children. He was
unable to contact Marylyn Thompson until 3:00 or 4:00 p.m. Marylyn Thompson told
the Defendant that Ms. Thompson and the older child had gone home. At around 5:15
p.m. the Defendant rode with a friend, Prentice Barnette, to East Lake to try to see his
children. The Defendant confirmed that the Chattanooga Housing Authority had placed
him on a no trespass list for East Lake Courts but that he had told his oldest child that he
would spend time with him that week, so he planned to pick up the children and leave.

       The Defendant testified that Mr. Barnette dropped him off outside the 6th Avenue
unit and left. He knocked on the door and Ms. Tony called out asking who it was and
then told Ms. Thompson that the Defendant was at the door. He waited a few minutes,
and then Ms. Thompson opened the door holding a “blunt in her hand.” The Defendant
asked to see the children, and Ms. Thompson said that their older son was at her mother’s
residence and their younger child was upstairs asleep. The Defendant said he did not
believe her because he had just spoken with Marylyn Thompson who said that the
                                           - 10 -
children were at home. The Defendant offered to get the children “ready” if she would
“go get them,” and Ms. Thompson agreed. She stepped back inside, and the Defendant
asked if he could wait inside due to the cold. Ms. Thompson agreed, and he stepped
inside and closed the door before asking Ms. Thompson for a cigarette. Ms. Thompson
stated she did not have one, and the Defendant walked into the kitchen area where he
waited alone for about seven minutes.

        The Defendant testified that the victim, Mr. White, and Ms. Thompson came down
the stairs, and the victim walked down a “little hallway,” making no eye contact with the
Defendant. The Defendant observed a “black flag” hanging out of the victim’s back
pocket with a firearm. The victim walked out the door and shut it behind him. The
Defendant explained that he became nervous as soon as he saw the victim. Ms.
Thompson and Mr. White walked into the kitchen where the Defendant was waiting. Mr.
White was holding a cell phone and “snickering” while looking at the Defendant, and Ms.
Thompson looked paranoid “like something was about to happen.” Richard Morris then
came downstairs and into the kitchen. The Defendant stated that he had been unaware
that Mr. Morris was in the residence. The Defendant asked Mr. Morris if he was “over
here with my baby mama,” and Mr. Morris responded, “no, we cool.” Mr. Morris walked
over to Ms. Thompson, asked if she was okay, and then “hurried up and got up out of
there like something bad was going to happen.” About a minute later, the victim re-
entered the apartment.

       The Defendant testified that he, Ms. Thompson, Mr. White, and the victim were
all in the kitchen within close proximity to one another. He testified about the
interactions leading up to the shooting as follows:

              [The victim’s] in my face like this. Just looking at me. So I was like
      all right, where [was my child] at. And my baby mamma looked at me and
      she was like, I don’t know. Then I was like, all right. Before I leave why
      did you do the kids like that the other day. And when she came and got the
      kids she was being rough with them and hurried them up in the car. And
      the moment I said that [the victim] was like because I told her to. Ain’t no
      mother f**kin 50th Street in St. Elmo. I was like it is a 50th Street in St.
      Elmo. You misunderstood what I said. But as I’m saying this I’m not
      looking at him. I’m looking at [Ms. Thompson]. You know what I’m
      saying, talking to [Ms. Thompson]. And I said - - I put my hands up, I said
      look, I don’t want no trouble. And when I said I don’t want no trouble he
      said, well, if you don’t want no problems it’s going to be some problems
      and went to reach for his firearm and that’s when I jumped out - - before I
      did that I put my hands up, I put my hands in my pocket and he said well,
      you don’t want no problems there’s going to be some problems and when
                                          - 11 -
      he went to reach for his firearm I jumped back out the way like towards the
      left because as he’s saying I don’t want no - - as he’s saying if you don’t
      want no problems there’s going to be some problems he moves from right
      there where he at to in front of me.

             [I thought] my life was fixin to end or I was going to get seriously
      injured. Because [the victim] is like way taller and bigger than me. And if
      he was to grab em it ain’t nothing I can do with it.

        The Defendant testified that when the victim reached for his firearm, “a .38
Special double action,” he took a “quick side step to the left” and then took out his gun
“all in one motion.” The Defendant said he raised his hand up and then pulled the
trigger. At the time the Defendant fired his gun, he estimated that he and the victim were
about three or four feet apart. The Defendant admitted that he was not allowed to have a
gun on Chattanooga Housing Authority property. The Defendant recalled that, after he
fired his gun, the victim fell straight back on the ground and began “scooting” backward.
He said that Ms. Thompson was standing behind the victim and that Mr. White was on
his cell phone at the time. He said that he began to pace, considering whether he should
offer help but felt that he would then have to “wrestle” with Mr. White. He believed it
was safer to leave. As he left, he saw Ms. Tony standing at the end of the public hallway.

       The Defendant testified that, following the shooting, he ran down to the parking
lot and crossed 4th Avenue. At some point he threw the gun out because he was
concerned that if he encountered the police “they would deal with [him] violently.” As
he fled, he was in shock that he had shot someone because he had never “had to use that
kind of force to defend.” He was also concerned that the witnesses would lie about what
had occurred because “they didn’t like [him].” The Defendant ran to the Lookout
Mountain Suites and smoked “marijuana to calm down.” The following morning he left
for Memphis. The Defendant stated he did not believe he had done anything “wrong,”
but he was afraid to contact the police because he did not know “who [he] could trust at
the time.”

       The Defendant testified about the black bandana he had seen tied to the gun in the
victim’s pocket. He said a black bandana is the type of bandana worn by members of the
Gangster Disciples, a gang “out of Chicago, Illinois.” The Defendant described the
presence of Gangster Disciples as “the deepest gang in Chattanooga as far as numbers.”
He said there were members in every area of the city. He said the bandanas are tied with
“the knot part . . . on the gun.” The black “flag” was tied in this manner on the victim’s
gun and, when the Defendant saw it, he believed it “mean[t] war time.” When the
Defendant saw the “black flag,” he “began to fear for [his] life” and tried to determine

                                          - 12 -
how to escape safely. The Defendant explained that he fled to Memphis in an attempt to
avoid gang retaliation against him and his family.

       The Defendant testified that he felt “bad” about the shooting but, at the time, felt
he had no other choice. He said if he had not shot the victim, he would have been killed.

        On cross-examination, the Defendant agreed that in June 2013, he and Ms.
Thompson argued and, after the argument, he was issued a no trespassing notification.
Despite the notification, two days later he returned to the property heavily intoxicated.
He engaged in another argument with Ms. Thompson and punched Ms. Thompson in the
face one time. The Defendant denied breaking a window to try to re-enter Ms.
Thompson’s residence, and he denied shoving his son. The Defendant agreed that he
pleaded guilty to domestic assault and vandalism for this incident, served six months in
jail, and was released in December 2013. Two weeks after his release from jail, the
Defendant contacted Ms. Thompson via Facebook and arranged to pick his children up at
Ms. Thompson’s residence. The Defendant agreed that both the victim and Mr. White
were aware that the Defendant had “beaten up” Ms. Thompson and that “they didn’t like
that.” The Defendant admitted that he shot and killed the victim but maintained that he
did so in self-defense.

        The Defendant testified that he purchased the gun he shot the victim with from a
“junkie” three weeks after he was released from jail. He admitted that he was not
allowed to carry a gun because he was a convicted felon. The Defendant agreed that
when he went to Ms. Thompson’s residence on the night of January 28, 2014, he knew
that he was not allowed to be there due to the no trespass notification and he knew that he
was breaking the law by carrying the gun. The Defendant denied rehearsing for his
testimony at trial. He agreed that the trial was the first time he had claimed self-defense
and that he did not contact the police or speak with the police following the shooting
about his claim of self-defense. When asked about his refusal to speak with Detective
Plumlee following his arrest in Memphis, the Defendant stated that he had “invoked [his]
right to remain silent.”

       The Defendant agreed that he knew “a lot” about gangs but denied being a
member of the Traveling Vice Lords. He denied that two of his tattoos had any
relationship to gang affiliation. He agreed, however, that he had made posts on Facebook
about “King Neal” who is “head of “Vice Lord.” The post read “long live King Neal.”

       Curtis Penney, a CPD officer, testified that he was assigned to the organized crime
division, criminal intelligence unit. He explained that this unit identifies and monitors
chronic offenders such as gangs or “large scale drug dealings.” As part of his job, he
gathers “intelligence” through social medial, digital surveillance, interviews, and
                                          - 13 -
interrogations. Officer Penney confirmed that in his sixteen year career with the police
department he had “worked a lot” with gang-related crime and had become familiar with
the gang presence in Chattanooga. Officer Penney testified that gang members identify
themselves by “flagging,” which means that they carry a specific color bandana or certain
tattoos.

       Officer Penney stated that, at that time, gangs were the “biggest threat” to
Chattanooga. He said that one of the difficulties with prosecuting cases involving gang
members was witness intimidation. Officer Penney confirmed that he was familiar with
the East Lake Courts area and said that there were two gangs that were prominent in that
area: “[t]he Gangster Disciples, and some of our Crip sets.” He said that one of the
Gangster Disciples’ rivals was the Vice Lords, both gangs originating in Chicago.
Defense counsel asked Officer Penney what it would mean if a member of the Gangster
Disciples displayed a gun tied with a black flag for a member of the Vice Lords. Officer
Penney responded that the Vice Lord member would view this as a sign of disrespect.

       Ms. Thompson testified that she could not remember when it occurred, but she
recalled talking on the telephone with the Defendant while at her mother’s house. While
talking with the Defendant, the victim entered the room and began talking to Ms.
Thompson about the Defendant’s disrespectful conduct toward Marylyn Thompson. The
Defendant overheard the victim and said he was going to “come over there.” Ms.
Thompson said she urged the Defendant not to come over saying, “we don’t need those
problems.” The Defendant came to Marylyn Thompson’s residence anyway but arrived
as the victim was leaving. Ms. Thompson said there might have been “words
exchanged,” but the victim got into his truck and left. Ms. Thompson agreed that her
family was “pretty angry” with the Defendant because of the 2013 domestic assault. She
agreed that the victim was upset that the Defendant had hurt her but denied that the
victim made any threats of retaliation against the Defendant.

        The State then called Ms. Thompson in rebuttal.5 The State asked Ms. Thompson
if she recalled an occasion at her mother’s residence when Mr. White, Ms. Thompson’s
father, Marylyn Thompson, Anthony Washington, the victim, and she were all there and
the victim’s eye was swollen. Ms. Thompson confirmed that she recalled that occasion,
agreeing that the victim’s eye was swollen but denied that the victim was “ranting,” had a
gun in his back pocket, or had “words” with the Defendant.



       5
          The trial court allowed the rebuttal at this time, even though the Defendant had not
completed his defense, in order to prevent Ms. Thompson from being called to the stand for a
third time.
                                            - 14 -
        Ms. Thompson confirmed that in June 2013 the Defendant received a trespass
notification because the two were arguing at her 6th Avenue unit. Two days later, the
Defendant returned late at night between 11:00 p.m. and 12:00 a.m. The Defendant and
Ms. Thompson began arguing upstairs over the presence of Ms. Thompson’s friend, Ms.
Glenn. The argument escalated and the Defendant hit Ms. Thompson from behind with a
closed fist and then repeatedly hit her with both fists on her face and arms. The
Defendant walked downstairs and began hitting Ms. Glenn, who was sitting on the couch.
After hitting Ms. Glenn, the Defendant angrily grabbed their then four-year-old son and
“pushed him down.” The Defendant paced back and forth and then walked out the front
door. Ms. Thompson locked the front door and the public hall door, so the Defendant
could not return. The Defendant beat on the door and then went “around to the back” and
broke the kitchen window for entry to the apartment. Ms. Thompson ran into the kitchen
and was pushing on the Defendant to prevent him from entering. While doing so she cut
her arms on the broken glass. The Defendant successfully entered the apartment and hit
Ms. Thompson once again before running into the living room while Ms. Thompson
remained in the kitchen attending to the cuts on her arms. The Defendant left for a
second time, this time he dropped his cell phone, and Ms. Thompson used the phone to
call the police. She was later transported to the hospital and received stitches.

        The defense then presented testimony from Christopher Robinson, a private
forensic consultant, who testified as an expert in the field of firearms analysis, ballistics,
shooting reconstruction, and “policies and procedures for testing of DNA.” Mr.
Robinson stated that he was “certified in the disciplines of firearms analysis, gunshot
residue analysis, crime scene reconstruction, shooting reconstruction, and gunshot wound
analysis.” In evaluating the Defendant’s case, Mr. Robinson had reviewed the discovery
including materials from the police department, the crime lab reports, photographs, any
video and audio recordings. Mr. Robinson visited the crime scene, spoke with the
medical examiner, spoke with the Defendant, and had sat through the entirety of the trial
listening to all the witnesses.

        Mr. Robinson testified that he found the results of the DNA testing “unusual” in
that areas tested with “a strong appearance of blood” failed to reveal blood. He attributed
this to the possibility that there may have been a cleaner used on the spots that would
have diluted the blood evidence, referencing a photograph of the kitchen where a mop
and bucket could be seen.

       Mr. Robinson also took issue with Agent Scott’s testimony that, “the powder
could travel four to five feet only on high powered rifles.” Mr. Robinson stated that in
his own testing with .38 Special cartridges, the cartridges believed to be used in the
shooting, the powder had never traveled farther than three feet. Mr. Robinson also
examined the victim’s shirts and the gunshot hole in the shirts. He found no gunpowder
                                            - 15 -
particles on the shirts, which indicated that the gun muzzle was two to three feet or
greater when fired. He then discussed alternative testing that could have been conducted
on the shirts to detect gunpowder particles. Mr. Robinson noted that the victim’s shirts
were also packaged together which is problematic based upon the possibility of the
transfer of particles between the items.

       Mr. Robinson testified that when he visited the crime scene he entered an adjacent
unit with the same measurements as Ms. Thompson’s unit. He described the kitchen area
of the unit as “extremely tight” and “very close quarters.” The medical examiner told
Mr. Robinson during their meeting that the trajectory of the bullet had no upward or
downward deviation but was a straight path through the chest. Mr. Robinson stated that,
given the victim’s height versus the victim’s height, there should have been an upward
deviation in the bullet path unless the victim was moving toward the Defendant in a
downward motion, causing a straight path through the body. Mr. Robinson opined that
this was consistent with the Defendant’s assertion that he acted in self-defense.

       On cross-examination, Mr. Robinson agreed that the blood tested that came back
as either not human DNA or “a failure to reveal” came from outside on the porch and on
a window seal. It did not come from the kitchen.

       The Defense recalled Ms. Tony, who testified that she and the victim had dated for
two and a half years. She stated that, in her opinion, the victim was not a violent person.
Ms. Tony agreed that “Brandon” had told her that, prior to the shooting, the Defendant
and the victim had “a fight.”

       Alicia Merriwether testified that she was a record keeper for the Hamilton County
general sessions court. Ms. Merriwether identified four judgments of conviction against
the victim. The convictions were for: two separate judgments in 2008 for domestic
assault, a 2012 domestic assault, and a 2013 assault.

       On cross-examination, Ms. Merriwether confirmed that the judgment for the 2013
assault indicated “[c]ase dismissed without hearing proof.”

        Lajuane Elston, a Hamilton County criminal clerk’s office employee, identified a
certified copy of the victim’s 2008 conviction for robbery.

        In rebuttal, the State called Russ Davis, a TBI forensic scientist. Mr. Davis
testified as an expert witness in the field of gunshot primer residue. In relation to this
case, Mr. Davis tested a black bandana collected from the victim for gunshot primer
residue at the Defendant’s request. Mr. Davis did not find gunshot primer residue on the
bandana.
                                          - 16 -
        Eric Qualls, a Hamilton County Sheriff’s Office security intelligence officer,
testified that he had received special training in gang intelligence and validating gang
members. Officer Qualls confirmed that, in the course of his work, he had come into
contact with the Defendant and observed a tattoo of a crescent moon with a five point star
on the Defendant’s stomach. Based upon his experience with and training about gangs,
he stated that the crescent moon with a five point star was a common symbol for the Vice
Lords. Officer Qualls had also seen a tattoo on the Defendant’s left forearm of a pistol
with a “‘T’ behind it.” Officer Qualls opined that the “T” stood for “TVO” or Traveling
Vice Lord. Officer Qualls had also observed a post on the Defendant’s Facebook page
that stated, “long live King Neal.” He believed this was a reference to Neal Wallace, “a
founding member of the Traveling Vice Lords.”

       After hearing this evidence, the jury convicted the Defendant of the second degree
murder of the victim. The trial court sentenced the Defendant to serve twenty-five years
in the Tennessee Department of Correction and dismissed the indictment for possession
of a firearm with a violent felony conviction at the State’s request. It is from this
judgment that the Defendant appeals.

                                       II. Analysis

       On appeal, the Defendant contends that: (1) the trial court improperly allowed into
evidence testimony concerning the Defendant’s gang affiliation and the Defendant’s 2013
domestic assault conviction; (2) the State improperly impeached the Defendant during
cross-examination; and (3) the evidence is insufficient to support his conviction.

                                 A. Character Evidence

        The Defendant argues that the State improperly questioned him about the 2013
domestic assault and his gang affiliation. The State responds that the Defendant has
waived our review because the Defendant did not object to the testimony at trial, and he
is not entitled to plain error review. The State notes that the Defendant introduced proof
of the 2013 domestic violation and information about gang affiliation; thus, the State’s
questions on these issues were proper. We agree with the State.

       The “admission of evidence is entrusted to the sound discretion of the trial court,
and a trial court’s ruling on evidence will be disturbed only upon a clear showing of
abuse of discretion.” State v. Robinson, 146 S.W.3d 469, 490 (Tenn. 2004); see State v.
DuBose, 953 S.W.2d 649, 652 (Tenn. 1997). A trial court’s exercise of discretion will
only be reversed on appeal if the court “‘applied an incorrect legal standard, or reached a
decision which is against logic or reasoning that caused an injustice to the party
                                          - 17 -
complaining.’” Robinson, 146 S.W.3d at 490 (quoting State v. Shuck, 953 S.W.2d 662,
669 (Tenn. 1997)).

                                1. 2013 Domestic Assault

       The Defendant has two complaints regarding the admission of testimony about the
2013 domestic assault. The first is that the State improperly questioned him about this
incident on cross-examination and, second, that the State improperly questioned Ms.
Thompson about the 2013 domestic assault on rebuttal.

                           a. Cross-Examination of Defendant

       The Defendant asserts that the State improperly questioned him regarding the
details of the 2013 domestic assault. Generally, Tennessee Rules of Evidence 403 and
404(b) do not allow evidence into a trial when the danger of unfair prejudice substantially
outweighs the probative value. Rule 403 applies to evidence in general and Rule 404(b)
applies specifically to prior bad acts by the defendant. If the defense asks about a prior
bad act or other normally excluded evidence on direct examination, the defense opens the
door to the prosecution being allowed to ask about it on cross examination. State v.
Kendricks, 947 S.W.2d 875, 883 (Tenn. Crim. App. 1996). See State v. Davidson M.
Taylor, No. W2006-00543-CCA-R3-CD, 2007 WL 3026374, at *4 (Tenn. Crim. App., at
Jackson, Mar. 6, 2007) (citing NEIL P. COHEN, ET AL., TENNESSEE LAW OF EVIDENCE §
4.04[4][a] (5th ed. 2005), no Tenn. R. App. P. 11 application filed. If the trial court
admits prejudicial evidence, as long as it explains its decision, we review under an abuse
of discretion standard. State v. Dubois, 953 S.W.2d 649, 652 (Tenn. 1997).

        During the trial, the trial court held an extensive 404(b) hearing and, after hearing
all of the testimony, excluded any testimony about the 2013 domestic assault. The State
complied and in its case-in-chief elicited no testimony about the incident. During the
defense proof, the Defendant testified extensively about the 2013 domestic assault. On
cross-examination, the State then questioned him about the 2013 domestic assault without
objection.

        The Defendant did not object to the questions asked by the State; therefore, the
issue is waived. See Tenn. R. App. P. 36(a) (appellate relief generally unavailable when
party “failed to take whatever action was reasonably available to prevent or nullify the
harmful effect of any error.”); State v. Schieffelbein, 230 S.W.3d 88, 118 (Tenn. Crim.
App. 2007) (“The failure to make a contemporaneous objection constitutes a waiver of
the issue on appeal.”). Nonetheless, the defense had already elicited testimony about the
2013 domestic assault, which opened the door to the prosecution’s line of questioning.
Tenn. R. Evid. 611(b). The Defendant is not entitled to relief on this issue.
                                           - 18 -
                                  b. Cheslei Thompson

       The Defendant argues that the trial court erred in allowing the State, in rebuttal, to
question Ms. Thompson about the details of the 2013 domestic assault after its cross-
examination of the Defendant. The State maintains that Ms. Thompson properly testified
in rebuttal about the Defendant’s 2013 domestic assault because the Defendant “opened
the door to such questioning.”

       During cross-examination, the State asked the Defendant questions about the 2013
incident that he had testified about on direct examination. The Defendant denied hitting
Ms. Thompson in the kitchen, breaking the glass window in the kitchen, or being rough
with their son. He did acknowledge that he hit Ms. Thompson but maintained that it was
“just once.”

       In rebuttal, the State called Ms. Thompson, who testified that the Defendant hit her
numerous times, shoved their oldest child, and broke the kitchen window to make re-
entry to her residence. No objection to Ms. Thompson’s testimony or the State’s
questioning was made.

       As earlier noted, a defendant risks waiver when they fail to make a
contemporaneous objection. See Tenn. R. App. P. 36(a) (appellate relief generally
unavailable when party “failed to take whatever action was reasonably available to
prevent or nullify the harmful effect of any error.”). However, even had the Defendant
lodged an objection, Ms. Thompson’s testimony was proper rebuttal testimony. Any
competent evidence which explains or directly applies to evidence introduced by the
accused is admissible in rebuttal. State v. Thompson, 43 S.W.3d 516, 524 (Tenn. Crim.
App. 2000). “The state is given the right of rebuttal because it ‘does not and cannot
know what evidence the defense will use until it is presented at trial.’” Id. (quoting State
v. Cyrus Deville Wilson, No. 01C01-9408-CR-00266, 1995 WL 676398, at *9 (Tenn.
Crim. App., at Nashville, Nov. 15, 1995)). The admission of rebuttal evidence, as well as
the scope of such evidence, is within the sound discretion of the trial judge. State v. Reid,
213 S.W.3d 792, 831 (Tenn. 2006).

       In State v. Patton, 593 S.W.2d 913 (Tenn. 1979), the defendant was indicted for
shooting and killing his wife. On appeal, the defendant argued that the trial court had
erroneously allowed in testimony regarding his violent tendencies toward the victim. Our
supreme court held that because the defendant in Patton had put his treatment of the
victim at issue, it was proper for testimony on the issue of his treatment of the victim to
be included in the State’s rebuttal. Patton, 593 S.W.2d at 917. Therefore, “[p]rior bad

                                           - 19 -
acts are admissible to rebut a defendant’s claim of having led a peaceful, normal life.”
State v. Nichols, 877 S.W.2d 722, 732 (Tenn. 1994) (citing Patton, 593 S.W.2d at 917).

        As stated above, there is no dispute that the Defendant placed the 2013 domestic
assault at issue during his proof. Under the case law in our state, proof of prior bad acts
to rebut a defendant’s contention to the contrary is admissible at trial. We find no abuse
of discretion on the part of the trial court in allowing the State to put on proof during
rebuttal that contradicted the evidence presented by Defendant. Therefore, we conclude
that the trial court did not abuse its discretion in allowing the evidence regarding the
Defendant’s altercation with Ms. Thompson in June 2013. The Defendant is not entitled
to relief as to this issue.

                                   2. Gang Affiliation

        The Defendant contends that the State, on cross-examination, improperly
questioned him about his gang affiliation and his tattoos and that the trial court erred
when it allowed the State to call Eric Qualls as a rebuttal witness to testify about gang
affiliation. The State responds that because the Defendant introduced testimony about
gang affiliation, the State’s questioning was proper. We agree with the State.

        When determining admissibility, a trial court must first decide if the evidence is
relevant. Tenn. R. Evid. 402; Robinson, 146 S.W.3d at 490. Relevant evidence is
“evidence having any tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable than it would be without
the evidence.” Tenn. R. Evid. 401. In addition, the doctrine of curative admissibility
“permits the State, on redirect, to question the witness to clarify or explain the matters
brought out during, or to remove or correct unfavorable inferences left by, the previous
cross-examination.” State v. Land, 34 S.W.3d 516, 531 (Tenn. Crim. App. 2000) (citing
People v. Manning, 695 N.E.2d 423, 433 (Ill. 1998)). The doctrine allows the State to
present otherwise inadmissible evidence “in order to explain or counteract a negative
inference” created when a defendant has injected an issue into the case. Id. (citations
omitted). The doctrine is designed to guarantee fairness in that it prevents a party from
using the Rules of Evidence to gain exclusion of certain evidence and then “extracting
selected pieces of this evidence for his own advantage, without the Government being
able to place them in their proper context.” Id. (quoting Lampkins v. United States, 515
A.2d 428, 431 (D.C. 1986)).

                        a. Cross-examination of the Defendant

      The Defendant sought to introduce evidence that the victim was a gang member in
support of his self-defense claim. Additionally, the defense sought to offer the
                                          - 20 -
Defendant’s fear of retaliation by a gang in response to the State’s theory that the
Defendant’s flight was evidence of guilt. The trial court found that the victim’s gang
affiliation was relevant to the issue of flight and because the State intended to pursue the
theory that the Defendant’s flight was evidence of consciousness of guilt, it would allow
the Defendant to present evidence to rebut the theory. The trial court, however, warned
that if the Defendant raised the issue of gang affiliation to show the Defendant’s
“reasonable perception of the [victim],” the State would be allowed to “explore the issue”
as well.

       On direct examination, the Defendant testified about his knowledge of gangs and
the victim’s affiliation with the Gangster Disciples, which caused him apprehension on
the night of the shooting and compelled his subsequent flight. On cross-examination, the
State asked if the Defendant was affiliated with the Traveling Vice Lords, and the
Defendant denied any affiliation. The State also inquired about the Defendant’s tattoos,
and the Defendant maintained that his tattoos had no relationship to a gang. The defense
raised no objection to the State’s line of questioning.

        The Defendant did not object to the questions asked by the State; therefore, the
issue is waived. See Tenn. R. App. P. 36(a) (appellate relief generally unavailable when
party “failed to take whatever action was reasonably available to prevent or nullify the
harmful effect of any error.”); State v. Schieffelbein, 230 S.W.3d 88, 118 (Tenn. Crim.
App. 2007) (“The failure to make a contemporaneous objection constitutes a waiver of
the issue on appeal.”). Nonetheless, the defense had already elicited testimony about the
knowledge about local gangs, which opened the door to the prosecution’s line of
questioning. Tenn. R. Evid. 611(b). The Defendant is not entitled to relief.

                            b. Rebuttal Witness Eric Qualls

        The Defendant argues that the trial court erred when it allowed Officer Qualls to
testify about gangs and the Defendant’s tattoos. The State responds that Officer Qualls
testimony was proper rebuttal evidence. We agree with the State.

        We conclude that the trial court correctly allowed Officer Qualls’s testimony
about the Defendant’s gang affiliation in rebuttal. These statements were necessary to
rebut the prejudice that the victim was associated with gang members who would seek
retaliation and that the Defendant was without adequate protection causing him to flee to
Memphis. Thus, we conclude that the trial court did not abuse its discretion by allowing
Officer Qualls to testify in rebuttal. See generally State v. Chearis, 995 S.W.2d 641, 645
(Tenn. Crim. App. 2005) (“admissibility of testimony and other evidence, as well as the
scope of redirect examination, is within the discretion of the trial court, whose ruling will

                                           - 21 -
not be reversed absent an abuse of that discretion”). The Defendant is not entitled to
relief as to this issue.

                                B. Improper Impeachment

       The Defendant complains that the State “sought to penalize [him] for exercising
his rights to remain silent.” He states that the State erred in “showing to the jury” that the
Defendant “refused to talk to detectives.” The State responds that the Defendant has
waived this issue for failure to raise an objection. Alternatively the State argues that the
prosecutor did not inappropriately comment on the Defendant’s silence and, if this court
should find any error, the error is harmless.

        The Due Process Clause of the Fourteenth Amendment forbids impeachment of a
defendant at trial for choosing to exercise his Fifth Amendment right to remain silent
after receiving Miranda warnings. Doyle v. Ohio, 426 U.S. 610, 619-20 (1976); State v.
Frasier, 914 S.W.2d 467, 471 (Tenn. 1996).

       The Defendant testified at trial that his act of shooting the victim was in self-
defense. Throughout the trial the defense repeatedly questioned witnesses about the
victim’s aggressive actions toward the Defendant both on the night of the shooting and
prior to the shooting. These questions were phrased in a manner that implied that the
victim was the first aggressor, and the Defendant feared the “crazy” victim who was a
gang member. The State, in response, to the defense theory, questioned the Defendant
about his actions following the shooting in light of his testimony that he acted in self-
defense.

       State:        You’ve listened to all the testimony; is that right?

       Defendant:    That the witnesses testified to, yes. That’s right.

       State:        And now you’re ready to tell the jury your story.

       Defendant:    I’ve already told them my story.

       State:        Two years later.

       Defendant:    Two years later, the same way it happened on that night. I’ve
                     told the jury how it happened that night right here in this
                     courtroom.



                                            - 22 -
State:       That you were – as this is as close as I can get, you were in
             imminent threat of bodily injury; right?

Defendant:   Yes.

State:       And you couldn’t retreat?

Defendant:   No, sir. Not safely.

State:       And those are your words; right?

Defendant:   Yes.

State:       Those are your words.

Defendant:   Yes.

State:       Not rehearsed.

Defendant:   No.

State:       Nobody else’s words.

Defendant:   No, sir.

State:       This is the first time you’ve ever really publically said that
             it’s self-defense, is that right?

Defendant:   Yes.

State:       You didn’t call the police or 911 that night.

Defendant:   No, sir.

State:       You didn’t wait around for the police.

Defendant:   No, sir.

State:       You didn’t go to a safer place and contact the police and let
             them know what happened.

                                    - 23 -
      Defendant:    No, sir, I was afraid to.

      State:        You didn’t tell them, hey, I just shot a guy because I was in
                    imminent threat of bodily injury and I couldn’t retreat.

      Defendant:    No, sir.

      State:        You didn’t tell them that.

      Defendant:    No, sir. I mean, it’s not wise to talk to the police without
                    counsel, and I didn’t have counsel at that time. If I told the
                    police that, I would like to tell the police that with counsel.

      State:        And you refused to talk to Detective Plumlee; is that correct?

      Defendant:    I’m trying to think of a good way to say this. I invoked my
                    right to remain silent.

      State:        You refused to give a statement to Detective Plumlee; is that
                    correct?

      Defendant:    I invoked my right to remain silent.

      State:        You refused to tell him your story.

       During closing argument, the State only once referenced this line of questioning
saying, “Someone who acts in self-defense and has no reason to think that anything is
going to happen to them doesn’t run off and destroy evidence.”

       We agree with the State that the Defendant has risked waiver of our review of this
issue for failure to lodge a contemporaneous objection. See Tenn. R. App. P. 36(a)
(“Nothing in this rule shall be construed as requiring relief be granted to a party
responsible for an error or who failed to take whatever action was reasonably available to
prevent or nullify the harmful effect of an error.”); see also State v. Killebrew, 760
S.W.2d 228, 235 (Tenn. Crim. App. 1988) (waiver applies when the defendant fails to
make a contemporaneous objection); State v. Jenkins, 733 S.W.2d 528, 532 (Tenn. Crim.
App. 1987). Even so, in our view, the prosecutor, having heard the Defendant’s
testimony characterizing the victim as a violent gang member, did not err by asking the
Defendant on cross-examination about his actions following the shooting that he claimed
was in self-defense. For the most part, the questions asked were a fair response to the
defense theory and questioning throughout the trial to that point. We do note, however,
                                           - 24 -
that the prosecutor’s last two questions and the statement, “You refused to tell him your
story,” were improper comments on the Defendant’s invocation of his right to remain
silent and was, in our view, clearly outside the scope of a “fair response” to the defense
theory. See United States v. Robinson, 485 U.S. 25, 32 (1988) (holding that prosecutors
are not prohibited from commenting upon a defendant’s decision not to testify at trial so
long as the prosecutorial comment is simply a “fair response” to defense claims and the
prosecutorial comment does not treat the defendant’s silence as “substantive evidence of
guilt”); State v. Cazes, 875 S.W.2d 253, 267 (Tenn. 1994) (applying Robinson to reject a
Griffin claim). WE conclude it was error for the prosecutor to ask the last two question
sand make the statement “you refused to tell [Detective Plumlee] your story.”
Nonetheless, any error, given the weight of the evidence against the Defendant, the
prosecutorial error was harmless beyond a reasonable doubt. See State v. Dotson, 450
S.W.3d 1, 62 (Tenn. 2014). The Defendant is not entitled to relief as to this issue.

                             C. Sufficiency of the Evidence

       The Defendant asserts that the evidence is insufficient to support his conviction for
second degree murder in light of the evidence that he acted in self-defense. He argues
that he was “justified in using deadly force because the deceased was bigger and stronger
than him.” The State responds that the jury heard the Defendant’s claim that he shot the
victim in self-defense and rejected it. We agree with the State.

       When an accused challenges the sufficiency of the evidence, this Court’s standard
of review is whether, after considering the evidence in the light most favorable to the
State, “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 Tenn. R.
App. P. 13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid,
91 S.W.3d 247, 276 (Tenn. 2002)). This standard applies to findings of guilt based upon
direct evidence, circumstantial evidence, or a combination of both direct and
circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App.
1999) (citing State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990)). In the
absence of direct evidence, a criminal offense may be established exclusively by
circumstantial evidence. Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973). “The jury
decides the weight to be given to circumstantial evidence, and ‘[t]he inferences to be
drawn from such evidence, and the extent to which the circumstances are consistent with
guilt and inconsistent with innocence, are questions primarily for the jury.’” State v.
Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting Marable v. State, 313 S.W.2d 451, 457
(Tenn. 1958)). “The standard of review [for sufficiency of the evidence] ‘is the same
whether the conviction is based upon direct or circumstantial evidence.’” State v.
Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265,
275 (Tenn. 2009)).
                                           - 25 -
       In determining the sufficiency of the evidence, this Court should not re-weigh or
reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.
1990). Nor may this Court substitute its inferences for those drawn by the trier of fact
from the evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999) (citing Liakas v.
State, 286 S.W.2d 856, 859 (Tenn. 1956)). “Questions concerning the credibility of
witnesses, the weight and value to be given the evidence, as well as all factual issues
raised by the evidence are resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651,
659 (Tenn. 1997). “A guilty verdict by the jury, approved by the trial judge, accredits the
testimony of the witnesses for the State and resolves all conflicts in favor of the theory of
the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). The Tennessee Supreme
Court stated the rationale for this rule:

       This well-settled rule rests on a sound foundation. The trial judge and the
       jury see the witnesses face to face, hear their testimony and observe their
       demeanor on the stand. Thus the trial judge and jury are the primary
       instrumentality of justice to determine the weight and credibility to be
       given to the testimony of witnesses. In the trial forum alone is there human
       atmosphere and the totality of the evidence cannot be reproduced with a
       written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d
523, 527 (Tenn. 1963)). This Court must afford the State of Tennessee the “‘strongest
legitimate view of the evidence’” contained in the record, as well as “‘all reasonable and
legitimate inferences’” that may be drawn from the evidence. Goodwin, 143 S.W.3d at
775 (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of
guilt against a defendant removes the presumption of innocence and raises a presumption
of guilt, the convicted criminal defendant bears the burden of showing that the evidence
was legally insufficient to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516,
557-58 (Tenn. 2000) (citations omitted).

      “Second degree murder is . . . [a] knowing killing of another.” T.C.A. § 39-13-
210. “A person acts knowingly with respect to a result of the person’s conduct when the
person is aware that the conduct is reasonably certain to cause the result.” T.C.A. § 39-
11-302(b).

      The evidence, considered in the light most favorable to the State, proves that the
Defendant, unlawfully armed with a gun, went to Ms. Thompson’s 6th Avenue unit
unannounced and in violation of a trespass notification. He wanted to see his children
and engaged in an argument with Ms. Thompson, insisting she awaken their sleeping
two-year-old child. She declined to do so and asked the Defendant to leave. The victim
                                         - 26 -
entered the kitchen area where the Defendant and Ms. Thompson were arguing and told
the Defendant they did not want any “trouble.” The Defendant agreed and exited. As the
unarmed victim went to close the door behind the Defendant, the Defendant fired his gun
at the victim’s chest. The Defendant then fled the scene, disposed of the weapon, and hid
from police. As a result of the Defendant’s conduct, the victim died of a gunshot wound.

       The evidence at trial showed that the Defendant shot the victim in the chest,
ultimately causing his death. Although there was evidence that the Defendant was fearful
and acted in self-defense, the jury rejected this theory, which is within its province. See
State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). Thus, the evidence is
sufficient to sustain the Defendant’s conviction for second degree murder.

                                     III. Conclusion

       After a thorough review of the record and the applicable law, we affirm the trial
court’s judgment.



                                             ____________________________________
                                                  ROBERT W. WEDEMEYER, JUDGE




                                          - 27 -
