                                                                                          08/28/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                              September 25, 2019 Session

             STATE OF TENNESSEE V. CORTEZ LEBRON SIMS

                Appeal from the Criminal Court for Hamilton County
                       No. 295685 Barry A. Steelman, Judge
                     ___________________________________

                           No. E2018-01268-CCA-R3-CD
                       ___________________________________


The Defendant, Cortez Lebron Sims, was convicted by a Hamilton County jury of one
count of first degree premeditated murder, three counts of attempted first degree murder,
and one count of employing a firearm during the commission of a dangerous felony. The
trial court imposed a sentence of life for the first degree murder conviction as well as
concurrent sentences of twenty-five years for each attempted first degree murder
conviction and a consecutive sentence of six years for the employing a firearm
conviction. On appeal, the Defendant argues that the trial court erred by: (1) denying the
Defendant’s motion for a change of venue; (2) admitting evidence related to a
photographic lineup and an unavailable witness’s prior identification of the Defendant;
(3) admitting a gang validation form showing the Defendant’s gang membership; (4)
admitting a jail phone call between the Defendant and a third party; (5) admitting
evidence of a gun and shell casings that were later determined to be unrelated to this case;
(6) admitting a bloody onesie worn by the infant victim in this case; and (7) admitting
evidence related to gang violence and an on-going gang feud. Upon our review of the
record, we determine that the trial court did not commit reversible error and affirm the
judgments of the trial court.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and ROBERT H. MONTGOMERY, JR., JJ., joined.

Brennan M. Wingerter, Knoxville, Tennessee, and Joshua P. Weiss, Chattanooga,
Tennessee (on appeal); F. Lee Ortwein and Clancy J. Covert, Chattanooga, Tennessee (at
trial), for the appellant, Cortez Lebron Sims.
Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant
Attorney General; Neal Pinkston, District Attorney General; and Lance W. Pope and
Kevin Brown, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                        OPINION

        In the early morning hours of January 7, 2015, police officers responded to a 911
call about a shooting at an apartment in College Hill Courts in Chattanooga. Talitha
Bowman was found deceased. Marcell Christopher, Bianca Horton, and Ms. Horton’s
fifteen-month-old daughter, Z.H., were injured. Two days later, the Defendant, who was
17 years old at the time, was arrested in Knoxville. After a transfer hearing on March 5,
2015, the Defendant was transferred from Juvenile Court to be tried as an adult in
Criminal Court. On July 15, 2015, the Defendant was indicted for one count of
premeditated first degree murder, three counts of attempted first degree murder, and three
counts of employing a firearm during the commission of a dangerous felony. The State
later dismissed two counts of employing a firearm during the commission of a dangerous
felony, and the Defendant was convicted as charged of the remaining counts of the
indictment by a Hamilton County jury.

       Because the Defendant does not challenge the sufficiency of the convicting
evidence, we will only briefly outline the evidence supporting his convictions to give
context to the evidentiary and procedural issues raised on appeal. Ms. Horton passed
away prior to trial, and Mr. Christopher adamantly refused to testify at the trial. The trial
court declared them both to be unavailable witnesses and allowed the State to admit into
evidence their testimony from the transfer hearing. See Tenn. R. Evid. 804. That
testimony established that on the night of January 6, 2015, Ms. Horton was at her College
Hill Courts apartment with her children, her friend Ms. Bowman, and her boyfriend Mr.
Christopher, who also went by the nickname “Baby Watts.” Ms. Horton and Mr.
Christopher were sharing a bedroom while Ms. Bowman was sharing a bedroom with
Ms. Horton’s fifteen-month-old daughter, Z.H.

       At some point during the night, Ms. Bowman went downstairs to answer a knock
at the front door. Ms. Bowman called up the stairs, “Baby Watts, somebody want[s]
you.” Ms. Bowman came up the stairs followed by the person she had allowed into the
house, who both Ms. Horton and Mr. Christopher identified as the Defendant. Although
the Defendant was wearing a hoodie, both Ms. Horton and Mr. Christopher testified that
they could see his face. Mr. Christopher recognized the Defendant because they had
previously been housed together in a juvenile detention facility in Knoxville, and Ms.
Horton recognized the Defendant because she had previously seen him with a group of
people at the mall.


                                            -2-
       The Defendant stood at the landing at the top of the stairs, reached his arm into the
room where Ms. Bowman and Z.H. were, and fired multiple shots. Mr. Christopher
threw Ms. Horton to the floor. The Defendant then turned and fired several more shots
into the bedroom where Ms. Horton and Mr. Christopher were located. One of the shots
struck Ms. Horton’s left arm. Mr. Christopher was struck on the left side of his chest by
his heart as well as on his stomach and his side. Ms. Horton eventually made her way
into the other room. She discovered that Ms. Bowman was dead and that Z.H. had been
shot in the back, paralyzing her. The medical examiner later determined that Ms.
Bowman had been shot twice and that she bled to death from damage to her heart, lungs,
and liver.

       Ms. Horton called 911 shortly after 1:00 a.m. One of the first officers on the scene
was Officer James Avery, a criminal investigator for the Chattanooga Housing Authority.
Officer Avery was wearing a body camera on his shoulder. The video recording depicted
Z.H. being carried down the stairs by another officer. Ms. Horton was kneeling over the
body of Ms. Bowman, and Officer Avery asked her to go downstairs as well. Mr.
Christopher was still lying on the floor of the other bedroom being attended to by first
responders. Officer Avery asked who shot them, and Mr. Christopher repeatedly said
“Cortez Sims.” When Officer Avery spoke to Ms. Horton, she said that she did not know
the name of the person who shot them but that she could identify him if she saw his
picture.

       The surviving victims were taken to Erlanger Hospital for treatment. While Z.H.
was in surgery, Officer William Salyers collected her blood-stained onesie from her
hospital room. Investigator Christopher Blackwell, the lead investigator on the case,
spoke to Ms. Horton at the hospital, and Ms. Horton provided a description of the
suspect. Investigator Blackwell had another officer prepare a photographic lineup to
present to Ms. Horton. Investigator Blackwell later took out juvenile attachments against
the Defendant, and fugitive investigators were eventually able to locate and arrest the
Defendant in Knoxville. About a week after the shooting, Investigator Blackwell was
able to speak to Mr. Christopher in the hospital. Mr. Christopher identified the shooter as
“Awax,” which was known to be the Defendant’s nickname.

       Officer Caleb Brooks, a crime scene investigator, processed the apartment and
collected evidence. Officer Brooks testified that there was no sign of forced entry to the
front door. Officer Brooks collected a total of nine shell casings and five projectiles from
the upstairs landing and rooms. Ballistics testing by the Tennessee Bureau of
Investigation (TBI) later determined that all of the shell casings were fired from the same
nine-millimeter handgun and all of the projectiles were fired from the same nine-
millimeter handgun. Officer Brooks also responded to the home of Charles Toney, the
Defendant’s ex-stepbrother, on Talladega Avenue to collect a nine-millimeter handgun
and shell casings found there. However, subsequent ballistics testing by the TBI
                                            -3-
determined that the gun recovered from Talladega Avenue did not match the shell casings
or projectiles found in the College Hill Courts apartment.

       Investigator Jeremy Winbush, a former gang investigator for the Chattanooga
Police Department who at the time of trial worked on a task force with the Federal
Bureau of Investigation, testified as an expert in gang member validation and gang
investigations. Investigator Winbush testified that the Defendant was a validated member
of the Athens Park Bloods. Investigator Winbush explained that the Defendant’s
nickname “Awax” was composed of the letter “A” for Athens Park and the term “wax,”
which was slang for killing or hurting someone to handle a problem.

        According to Investigator Winbush, at the time of the shooting in this case, there
was an on-going feud between the Athens Park Bloods and the Bounty Hunter Bloods, of
which Mr. Christopher was known to be a member. The feud began with a fight at a
nightclub in December of 2013 between members of these two gangs. Investigator
Winbush then discussed several shooting incidents believed to be related to this feud that
occurred throughout 2014 and into the beginning of 2015, which are discussed in further
detail in the analysis section of this opinion. Of particular relevance to the Defendant, on
February 24, 2014, the Defendant’s mother was shot outside of her home, and the shell
casings were later matched to a gun recovered in the possession of Cornelius “Poo”
Birdsong, the leader of the Bounty Hunter Bloods in Chattanooga. On October 27, 2014,
the Defendant posted a picture on his Facebook page of another Athens Park Blood
member who had been killed that same day by a member of the Bounty Hunter Bloods.
Additionally, on January 1, 2015, just six days before the shooting in this case, Deaunte
“Ta Ta Blood” Dean, a member of the Athens Park Bloods with whom the Defendant
was friends on Facebook, was shot and killed through the front door of his home.
Investigator Winbush testified that Mr. Christopher’s name came up, among several
others, as a possible suspect in the Dean murder.

       The State introduced through Investigator Winbush a recording of a March 2016
jail phone call between the Defendant, who was in custody, and Mr. Birdsong. The
Defendant identified himself at the beginning of the call by the nickname “Awax.”
Throughout the call, Mr. Birdsong used the term “Blood” and other terms associated with
the gang. Most of the call was Mr. Birdsong explaining that he did not condone the feud
and wanted to call a truce with Athens Park because both gangs are “different tribes of
the same people,” meaning different subsets of the Bloods gang. Mr. Birdsong also said
that he did not approve of Mr. Christopher being a “snitch” because “when a [racial slur]
do[es] something to you and you survive[,] you keep that [expletive] in the street[.]” The
Defendant denied being involved in this shooting and told Mr. Birdsong that Mr.
Christopher was lying. Mr. Birdsong said that he would try to get to Mr. Christopher to
encourage him to recant his identification of the Defendant. The Defendant said he did
not want anyone to threaten Mr. Christopher.
                                            -4-
       During cross-examination of Investigator Winbush, the defense entered into
evidence the gang validation form and photographs of Vontelle “Yung West” Haddox, an
associate of the Tree Top Pirus who also lived in College Hill Courts. Investigator
Winbush agreed that in the audio-recording of Ms. Horton’s transfer hearing testimony, it
sounded like she testified that Ms. Bowman said, “Baby Watts, Yung West wants you,”
even though the transcript said that the name was inaudible. In rebuttal, the State called
Mr. Haddox and his girlfriend Bria Jones to testify that they spent the night of January 6,
2015, together at a motel and that they did not leave to go to College Hill Courts. Mr.
Haddox denied knowing Mr. Christopher, having a feud with him, or being involved in
the shooting in this case.

                                        Analysis

                                   I. Change of Venue

       The Defendant argues that the trial court erred in denying his motion for a change
of venue because, “due to the extensive and pervasive pretrial publicity” surrounding this
case, particularly after the death of Ms. Horton, it was “highly unlikely [the Defendant]
could receive a fair trial in Hamilton County[.]” The State responds that the Defendant
has failed to provide an adequate record to establish that the trial court abused its
discretion in denying the motion.

        Generally, a criminal defendant must be tried in the county where the offense was
committed. Tenn. R. Crim. P. 18(a). However, a trial court may order a change of venue
“when a fair trial is unlikely because of undue excitement against the defendant in the
county where the offense was committed or for any other cause.” Tenn. R. Crim. P.
21(a). The decision whether to grant a defendant’s motion for change of venue rests
within the sound discretion of the trial court and will not be reversed on appeal absent an
abuse of discretion. State v. Sexton, 368 S.W.3d 371, 387 (Tenn. 2012); State v. Howell,
868 S.W.2d 238, 249 (Tenn. 1993). “The mere fact that jurors have been exposed to
pretrial publicity will not warrant a change of venue,” nor will prejudice “be presumed on
the mere showing of extensive pretrial publicity.” State v. Rogers, 188 S.W.3d 593, 621
(Tenn. 2006) (internal citations omitted). “[I]n order to obtain relief on a claim that the
trial court improperly denied a motion for a change of venue, a ‘defendant must
demonstrate that the jurors who actually sat were biased or prejudiced against him.’”
Sexton, 368 S.W.3d at 387 (quoting Rogers, 188 S.W.3d at 621).

      On June 9, 2016, the Defendant filed a “Motion for Change of Venue and/or
Sequestration of the Jury,” asserting that there had been extensive local and national
media coverage of this incident, the on-going gang violence in Chattanooga, and the
murder of Ms. Horton, which was speculated to be retaliation for her testifying against
                                           -5-
the Defendant. On November 11, 2016, the Defendant filed a supplemental motion for
change of venue. Although there is a minute entry indicating that the trial court heard the
motion on January 4, 2017, and took the matter under advisement, there is no transcript
of the January hearing in the record on appeal. The Defendant filed a second
supplemental motion on March 21, 2017. After a hearing on March 30, 2017, the trial
court again took the matter under advisement, stating that it would address pretrial
publicity through jury questionnaires and voir dire. Neither the completed jury
questionnaires nor the transcript of voir dire is in the record on appeal. Instead, the trial
transcript indicates that after twelve jurors and two alternates were selected and “duly
accepted by both sides,” the trial court denied the motion for change of venue, stating that
“[t]he [c]ourt is satisfied that the parties have been able to select a jury that is sufficiently
free from undue influence.” Because the Defendant has not included the transcript of
voir dire in the appellate record, we must presume that the empaneled jurors were fair and
impartial and that the trial court did not abuse its discretion in denying the Defendant’s
motion for a change of venue. See State v. Crenshaw, 64 S.W.3d 374, 387 (Tenn. Crim.
App. 2001) (citing State v. Burton, 751 S.W.2d 440, 451-52 (Tenn. Crim. App. 1988)).
The Defendant is not entitled to relief on this issue.

                                   II. Photographic Lineup

       The Defendant raises two issues related to the photographic lineup presented to
Ms. Horton and her subsequent identification of the Defendant. First, he argues that Ms.
Horton’s in-court identification of the Defendant during the transfer hearing was tainted
by an unduly suggestive photographic lineup and was unreliable. Second, he argues that
Investigator Blackwell’s trial testimony regarding the creation and presentation of the
lineup should have been excluded as irrelevant or unduly prejudicial. We shall address
each issue in turn.

                        A. In-Court Identification by Bianca Horton

        A conviction based upon an in-court identification of the defendant by an
eyewitness, after that eyewitness made an out-of-court identification, will only be set
aside if the out-of-court “identification procedure was so impermissibly suggestive as to
give rise to a very substantial likelihood of irreparable misidentification.” Simmons v.
United States, 390 U.S. 377, 384 (1968). To determine whether the identification
procedure violated a defendant’s right to due process, we apply the two-part test
announced in Neil v. Biggers, 409 U.S. 188 (1972). First, we must determine whether the
identification procedure was unduly or unnecessarily suggestive. Id. at 198. If the
identification procedure is determined to be unduly suggestive, we must then determine
whether, under the totality of the circumstances, the witness’s identification was reliable
despite the undue suggestion. Biggers, 409 U.S. at 199. However, if an identification
procedure is not unduly suggestive, we need not apply the totality of the circumstances
                                              -6-
test to determine reliability. See State v. Biggs, 211 S.W.3d 744, 749 (Tenn. Crim. App.
2006); State v. Butler, 795 S.W.2d 680, 686 (Tenn. Crim. App. 1990).

       On appeal, the Defendant argues that the photographic lineup was unduly
suggestive because Investigator Blackwell was familiar with the Defendant before he
showed the lineup to Ms. Horton and that her identification was not otherwise reliable
because it had been tainted by hearing the Defendant’s name repeated at the crime scene.
Although there is a minute entry in the record indicating that the trial court heard and
overruled the Defendant’s motion to suppress Ms. Horton’s identification in January
2017, there is no transcript of that hearing in the record on appeal. As the appellant in
this case, the Defendant bears the burden to prepare an adequate record for appellate
review. See State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993). Thus, there is nothing
in the record concerning this issue except the actual photographs shown to Ms. Horton,
which were subsequently introduced as an exhibit at trial. From our review of the
photographs presented to Ms. Horton, we disagree with the Defendant’s contention that
his photograph was “grossly dissimilar” with regard to the skin tone of the other subjects
so as to render the photographic lineup unduly suggestive. See State v. Edwards, 868
S.W.2d 682, 694 (Tenn. Crim. App. 1993) (holding that subjects must be “grossly
dissimilar” before a lineup is deemed impermissibly suggestive based on the photographs
alone); see also State v. Donald Prescott, No. W2012-02454-CCA-R3-CD, 2014 WL
1464179, at *8 (Tenn. Crim. App. Apr. 11, 2014) (citing State v. Binette, 33 S.W.3d 215,
217 (Tenn. 2000)) (“Since viewing the photospread in order to reach a conclusion of
whether or not it is unduly suggestive does not involve a credibility determination, this
court is just as capable as the trial court to review the evidence and draw its own
conclusions.”), no perm. app. filed. The Defendant is not entitled to relief on this issue.

       B. Testimony Related to Creation and Presentation of Photographic Lineup

        The parties had agreed prior to trial that Ms. Horton’s out-of-court identification
of the Defendant from the photographic lineup was inadmissible hearsay. However, prior
to Investigator Blackwell’s trial testimony, the State informed the trial court that it
intended to ask whether he presented a photographic lineup to Ms. Horton, ask about the
procedures he followed, and introduce a copy of the photographs presented in the lineup
as an exhibit. The Defendant objected on the basis that the jury would be able to infer
that Ms. Horton identified the Defendant. The trial court asked the State if the proposed
evidence was probative, to which the State responded that “[t]he steps that [Investigator
Blackwell] takes as the lead investigator in the investigation . . . to make sure that he’s
right . . . in identifying the suspect that he charges are hugely relevant to his
investigation,” especially in light of the fact that Ms. Horton had died and would not be
able to testify. The Defendant argued that Ms. Horton’s out-of-court identification was
inadmissible hearsay, “and letting these pictures in is boot-strapping that hearsay and her
identification which was made during that statement.”
                                           -7-
       The trial court ruled as follows:

              I find that it’s probative because it goes to what the investigator did
       to try to investigate the case and identify a suspect. I find that it’s
       prejudicial because the jury might assume that at that time she identified
       Cortez Sims, which she did, but the jury can’t know now because that in
       and of itself would be hearsay, but I find it’s less prejudicial because Cortez
       Sims was identified by her at a later time, and therefore, that limits the
       prejudice that the jury might - - that might result if the jury did, in fact,
       suspect that she must have identified him at that particular time.

              I could give an instruction to the jury that they’re not to draw any - -
       they’re not to speculate about how she responded to the photo lineup, but
       that might draw more attention to the negative for this defense.

              Again, I mean, I find that it’s probative because it shows what the
       detective did. Police get in trouble all the time for not doing what they’re
       supposed to do, and I understand why the State’s trying to do that, that
       they’re not thorough enough. I find that it’s potentially prejudicial because
       of what the jury might speculate about, but she identified him at a later
       point anyway.

The trial court stated that it would “allow the jury to at least know that [Investigator
Blackwell] showed a photo lineup” and asked if the Defendant objected to the
photographs, themselves, being admitted. The State argued that if the Defendant was
going to argue misidentification, then the photographs shown to Ms. Horton were
relevant. The Defendant’s counsel agreed that, based on the trial court’s ruling that
Investigator Blackwell would be allowed to testify that he showed Ms. Horton a lineup,
the Defendant’s counsel wanted the photographs to also be admitted as evidence.

       During his trial testimony, Investigator Blackwell testified that he went to Erlanger
Hospital to get a statement from Ms. Horton and to determine if she would be willing to
look at a photographic lineup. Investigator Blackwell described the procedure of having
another officer prepare the lineup so that Investigator Blackwell would not be aware of
which photograph was the Defendant’s as well as the process by which photographs are
selected as “fillers.” The lineup introduced into evidence consisted of six full-page
photographs and an instruction sheet. Investigator Blackwell testified that he went over
the instruction page with Ms. Horton and that Ms. Horton looked through each picture
individually. Investigator Blackwell testified that prior to showing Ms. Horton the
lineup, he was aware that there was body camera footage in which the Defendant had

                                            -8-
been identified as the shooter. Investigator Blackwell testified that the “next step” in his
investigation was to take out juvenile attachments against the Defendant.

        On appeal, the Defendant argues that the trial court erred in admitting this
evidence related to the photographic lineup because it was both irrelevant and unduly
prejudicial. The Defendant contends that “[i]f [Ms.] Horton’s identification is
inadmissible hearsay, then the fact that a photo lineup was conducted, whether pursuant
to proper procedure or not, could not have had any relevancy at trial.” The Defendant
reiterates the argument he made at trial that the jury would be able to infer that Ms.
Horton identified the Defendant. The Defendant asserts that the steps Investigator
Blackwell took to identify a suspect “is simply a justification for admission of the out-of-
court hearsay identification.” The Defendant argues that because the jury can make the
inference regarding Ms. Horton’s identification, the evidence related to the photographic
lineup was more prejudicial than probative. The State responds that the evidence related
to the photographic lineup was relevant because it “illustrated the investigative process of
the lead detective on the case,” which would “certainly have some tendency to make the
conclusions of the investigation more or less likely[.]” The State asserts that any
prejudice created by the jury’s ability to infer that Ms. Horton identified the Defendant
was reduced by the fact that Ms. Horton identified the Defendant in her transfer hearing
testimony that was subsequently admitted into evidence and played for the jury.

        In considering the admissibility of evidence, the trial court must first determine
whether the proffered evidence is relevant. State v. James, 81 S.W.3d 751, 757 (Tenn.
2002). Relevant evidence is defined as “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 other words, ‘evidence is relevant if it helps the trier of fact resolve an issue of fact.’”
James, 81 S.W. 3d at 757 (quoting Neil P. Cohen, et al., Tennessee Law of Evidence §
4.01[4], at 4-8 (4th ed. 2000)). Generally, relevant evidence is admissible, while
irrelevant evidence is inadmissible. Tenn. R. Evid. 402. However, relevant evidence
may be excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury. Tenn. R. Evid. 403. “Rule 403
is a rule of admissibility, and it places a heavy burden on the party seeking to exclude the
evidence.” James, 81 S.W.3d at 757. “In making these decisions, the trial court must
consider the questions of fact that the jury will have to consider in determining the
accused’s guilt as well as other evidence that has been introduced during the course of the
trial.” State v. Kennedy, 7 S.W.3d 58, 68 (Tenn. Crim. App. 1999) (citing State v.
Williamson, 919 S.W.2d 69, 78 (Tenn. Crim. App. 1995)).

       “A trial court’s decision to admit evidence based on its relevance will not be
reversed absent an abuse of discretion in admitting the evidence.” State v. Stevens, 78
S.W.3d 817, 847 (Tenn. 2002). An abuse of discretion occurs “when the court applied an
                                              -9-
incorrect legal standard, reached an illogical conclusion, or based its decision on a clearly
erroneous assessment of the evidence or employs reasoning that causes an injustice to the
party complaining.” State v. Davidson, 509 S.W.3d 156, 207 (Tenn. 2016). As recently
explained by the Tennessee Supreme Court, “the abuse of discretion standard of review
does not permit an appellate court to substitute its judgment for that of the trial court,”
and where “‘reasonable minds can disagree with the propriety of the decision,’ the
decision should be affirmed.” State v. McCaleb, 582 S.W.3d 179, 186 (Tenn. 2019)
(quoting State v. Harbison, 539 S.W.3d 149, 159 (Tenn. 2018)).

       In this case, the primary factual issue to be resolved by the jury was the identity of
the shooter. Thus, the steps taken by law enforcement in investigating this case would be
“of consequence to the determination of the action” if they made the Defendant’s identity
as the shooter “more probable or less probable than it would be without the evidence.”
Tenn. R. Evid. 401; see State v. Richard Lowell Blanchard, No. M2010-01186-CCA-R3-
CD, 2011 WL 2533753, at *5 (Tenn. Crim. App. June 24, 2011) (stating that even if a
detective’s testimony “was relevant to show how the investigation progressed to the
defendant’s becoming a suspect[, t]he question remains . . . whether the explanation of
the investigation was itself relevant to a material issue,” but concluding that any error
was harmless), perm. app. denied (Tenn. June 12, 2013). Even without Ms. Horton’s
statement either identifying or failing to identify the Defendant, Investigator Blackwell’s
testimony demonstrated the thoroughness of the investigation into the identity of the
shooter even after the identification by Mr. Christopher at the scene, which was made all
the more relevant by the defense’s theory of misidentification. The trial court did not
abuse its discretion in determining that the evidence related to the photographic lineup
was relevant under Rule 401.

       The next question is whether the evidence related to the photographic lineup was
substantially more prejudicial than probative under Rule 403. The Defendant has not
argued that Investigator Blackwell’s testimony or the photographic lineup would confuse
or mislead the jury or otherwise cause the jury to decide the case on an improper basis.
Instead, the concern was that the jury would be able to infer from this evidence that Ms.
Horton made an out-of-court statement identifying the Defendant, which would be a form
of indirect hearsay. See State v. Christopher Christian Padgett, No. E2018-00447-CCA-
R3-CD, 2019 WL 2233890, at *6 (Tenn. Crim. App. May 23, 2019), no perm. app. filed.
As explained in one treatise, indirect hearsay is an attempt “to get in hearsay through the
back door” because “even though no words from the [declarant] were actually repeated,”
the jury “will have learned what the [declarant] said.” Id. (quoting Neil P. Cohen et al.,
Tennessee Law of Evidence, § 8.01[11][b] (6th ed. 2011)). However, as found by the trial
court, any risk that the jury would make such an inference was mitigated by the fact that
Ms. Horton’s transfer hearing testimony identifying the Defendant was subsequently
admitted. See Tenn. R. Evid. 804(b)(1). Therefore, even if the trial court erred in
admitting the evidence related to the photographic lineup as a form of indirect hearsay,
                                            - 10 -
the Defendant has not established that he was unfairly prejudiced. See State v. Heflin, 15
S.W.3d 519, 523 (Tenn. Crim. App. 1999) (holding that error in admitting hearsay was
harmless when “the same evidence was properly admitted” through other testimony).
The Defendant is not entitled to relief on this issue.

                               III. Gang Validation Form

       The Defendant argues that the trial court erred in admitting the Chattanooga Police
Department’s gang validation form that identified the Defendant as a member of the
Athens Park Blood gang. First, the Defendant argues that the form was not admissible
under Rule of Evidence 404(b) because it did not establish clear and convincing proof of
his gang affiliation and because the danger of unfair prejudice outweighed any potential
probative value. Second, the Defendant contends that the gang validation form was
inadmissible hearsay. We shall address each issue in turn.

                                      A. Rule 404(b)

        This Court has held that evidence of gang affiliation is character evidence subject
to Tennessee Rule of Evidence 404(b). See, e.g., State v. Shasta Jackson, No. E2014-
01387-CCA-R3-CD, 2015 WL 6756318, at *9 (Tenn. Crim. App. Nov. 5, 2015), perm.
app. denied (Tenn. May 5, 2016); State v. Orlando Crayton, No. W2000-00213-CCA-
R3-CD, 2001 WL 720612, at *3 (Tenn. Crim. App. June 27, 2001), no perm. app. filed.
Under Rule 404(b), “[e]vidence of other crimes, wrongs, or acts” is inadmissible if
offered to show a defendant’s “action in conformity with [a] character trait” but may “be
admissible for other purposes.” See also State v. Parton, 694 S.W.2d 299, 654 (Tenn.
1997). “The general rule excluding such evidence is based on the recognition that the
evidence may lead a jury to convict a defendant for an apparent propensity or disposition
to commit a crime regardless of the strength of the evidence concerning the offense on
trial.” Orlando Crayton, 2001 WL 720612, at *3 (citing State v. Bordis, 905 S.W.2d 214,
232 (Tenn. Crim. App. 1995); State v. Tizzard, 897 S.W.2d 732, 743-44 (Tenn. Crim.
App. 1994)).

       Such evidence may be admissible for other non-propensity purposes, such as to
establish the defendant’s identity, motive, or intent; to rebut a defense of mistake or
accident; to show a common scheme or plan; or to provide necessary contextual
background or a completion of the story. See Tenn. R. Evid. 404(b), Advisory Comm.
Cmts.; State v. Toliver, 117 S.W.3d 216, 230 (Tenn. 2003); State v. Gilliland, 22 S.W.3d
266, 272 (Tenn. 2000). In order to admit other act evidence for one or more of these
purposes, the following requirements must be met:

      (1) The court upon request must hold a hearing outside the jury’s presence;

                                           - 11 -
       (2) The court must determine that a material issue exists other than conduct
       conforming with a character trait and must upon request state on the record
       the material issue, the ruling, and the reasons for admitting the evidence;

       (3) The court must find proof of the other crime, wrong, or act to be clear
       and convincing; and

       (4) The court must exclude the evidence if its probative value is outweighed
       by the danger of unfair prejudice.

Tenn. R. Evid. 404(b). Rule 404(b) has been described as a rule of exclusion rather than
inclusion, and “[t]rial courts have been encouraged to take a ‘restrictive approach of
[Rule] 404(b) . . . because “other act” evidence carries a significant potential for unfairly
influencing a jury.’” State v. Jones, 450 S.W.3d 866, 891 (Tenn. 2014) (quoting State v.
Dotson, 254 S.W.3d 378, 387 (Tenn. 2008)). However, when the trial court has
substantially complied with the requirements of the Rule, as in this case, we will review
the trial court’s decision to admit or exclude the other act evidence under an abuse of
discretion standard. State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997). As stated
above, “[a] court abuses its discretion when it applies an incorrect legal standard or its
decision is illogical or unreasonable, is based on a clearly erroneous assessment of the
evidence, or utilizes reasoning that results in an injustice to the complaining party.”
Jones, 450 S.W.3d at 892 (internal quotation and citation omitted).

       In this case, the Defendant filed a motion in limine seeking to exclude any
reference to his alleged gang affiliation. The State then filed a notice of intent to admit
such evidence under Rule 404(b) for the non-propensity purposes of establishing identity,
motive, and intent. Specifically, the State alleged that the Defendant, a member of the
Athens Park Bloods, had the motive and intent to shoot Mr. Christopher, a member of the
Bounty Hunter Bloods, because of the on-going feud between the two gangs.

       The trial court held a hearing on March 27 and 30, 2017, at which Investigator
Winbush testified as an expert in gang investigations and gang member validation.
Investigator Winbush testified that he was a gang investigator for the Chattanooga Police
Department in January of 2015 and that he was responsible for maintaining the database
of gang validation forms. Investigator Winbush testified that the forms are based on a
national standard for identifying gang members used by the Tennessee Department of
Correction and the police departments for other major cities. The form, which is
completed and updated based on law enforcement interactions with suspected gang
members, assigns points for different indicators of gang association, such as wearing
gang colors, having gang tattoos, associating with known gang members, self-admitting
gang membership, or being named as a gang member by others. Investigator Winbush

                                            - 12 -
testified that a person is validated as a gang member if they have ten points or more,
while a person with less than ten points is considered an associate of the gang.

        The Defendant’s validation form, which was completed in October of 2014,
indicated that he had thirteen points based on photographs of the Defendant wearing gang
colors, making gang signs with his hands, and associating with other known gang
members, as well as being named as a gang member in correspondence. In addition to
the gang validation form, the State entered into evidence multiple photographs from the
Defendant’s Facebook account showing the Defendant wearing red and black, flashing
gang signs with his hands, and hanging out with other known gang members, including
the son of the founder of the Athens Park Bloods in Chattanooga. Additionally, the State
introduced into evidence the recorded jail phone call between the Defendant and Mr.
Birdsong, in which both used slang that Investigator Winbush testified was associated
with the Blood gang. Based on all of this evidence and Investigator Winbush’s expert
opinion, the trial court found that there was clear and convincing evidence that the
Defendant was a member of the Athens Park Blood gang. The trial court found that the
Defendant’s gang membership was probative of his identity, motive, and intent based on
the State’s theory that this shooting was part of an on-going feud between rival gangs and
that the potential prejudice did not outweigh the probative value.

       On appeal, the Defendant argues only that the admission of the gang validation
form itself violated Rule 404(b). Specifically, the Defendant argues that the validation
form does not establish clear and convincing evidence of gang membership because the
point system used to validate someone as a gang member is “arbitrary and capricious.”
Additionally, the Defendant argues that the form is unduly prejudicial because of the
potential implication that someone with more than ten points “is more entrenched with a
gang or [holds] a higher rank[.]” The Defendant concedes that Investigator Winbush
could testify as to his expert opinion that the Defendant was a member of the Athens Park
Blood gang, but the Defendant asserts that this testimony rendered the validation form
“unnecessary.” The State responds that the Defendant’s argument “misses the mark”
because the validation form was not the only piece of evidence considered by the trial
court in determining whether the Defendant’s gang affiliation had been clearly and
convincingly established. The State also argues that the validation form was not more
prejudicial than probative because it did not contain prejudicial information regarding
other bad acts of the Defendant.

        The Defendant does not challenge the trial court’s finding that evidence of his
gang affiliation was probative of the non-propensity issues of identity, motive, and intent.
See Tenn. R. Evid. 404(b)(2). This Court has repeatedly held that evidence of gang
affiliation may be admissible for such purposes. See, e.g., State v. Ronald Eugene
Brewer, Jr., No. E2010-01147-CCA-R3-CD, 2011 WL 2732566, at *17 (Tenn. Crim.
App. July 14, 2011), perm. app. denied (Tenn. Sept. 21, 2011); State v. Justin Mathis,
                                           - 13 -
No. W2005-02903-CCA-R3-CD, 2007 WL 2120190, at *9 (Tenn. Crim. App. July 20,
2007), perm. app. denied (Tenn. Dec. 26, 2007); State v. Demond Gardner, No. W2002-
00607-CCA-R3-CD, 2003 WL 21488004, at *9 (Tenn. Crim. App. June 26, 2003), perm.
app. denied (Tenn. Dec. 1, 2003).

        With regard to the Defendant’s assertion that the gang validation form alone does
not establish clear and convincing evidence of his gang affiliation, we note that Rule
404(b)(3) speaks of the “proof of the other crime, wrong, or act.” The proof of the
Defendant’s affiliation with the Athens Park Bloods consisted not only of the validation
form but also the photographs from the Defendant’s social media, the recorded phone call
with the leader of the rival gang, and Investigator Winbush’s expert opinion about the
Defendant’s use of certain hand gestures and slang words. The trial court thoroughly
considered all of this proof in determining that the Defendant’s gang affiliation was
established by clear and convincing evidence. The Defendant has not established that the
trial court’s assessment of this evidence was clearly erroneous.

       Furthermore, the trial court found that the probative value of the gang-affiliation
evidence was not outweighed by the danger of unfair prejudice. See Tenn. R. Evid.
404(b)(4). Only the first page of the validation form, which lists the Defendant’s
demographic information, his gang affiliation, and the number of points assigned in each
category of “gang identifiers,” was admitted at trial. The second page of the validation
form, which explains why points were assigned in each category and includes comments
that the Defendant “has been implicated in a multitude of shootings” and “has been a
constant concern for law enforcement,” was only admitted during the pretrial hearing;
this prejudicial information was not presented to the jury. The Defendant speculates that
the jury could draw prejudicial inferences from the number of points on the Defendant’s
validation form; however, this is not supported by the testimony of Investigator Winbush.
Investigator Winbush testified that at least ten points were required to validate someone
as a gang member, but he did not testify that the points were used to establish someone’s
rank within a gang or that a person with more than ten points was more “entrenched” in
the gang. Significantly, the section on the Defendant’s form for “Gang Rank” is blank.
The trial court did not abuse its discretion in determining that the gang validation form,
along with the other evidence of the Defendant’s gang affiliation, was admissible under
Rule 404(b).

                                       B. Hearsay

       The Defendant also argues on appeal that the gang validation form was
inadmissible hearsay because, like a police report, it contains “opinions and conclusions
of law enforcement officers in determining whether a person is a gang member or
associate.” Cf. State v. Marchello Karlando Gossett, No. W2015-02414-CCA-R3-CD,
2017 WL 1163683, at *24 (Tenn. Crim. App. Mar. 28, 2017) (citing McBee v. Williams,
                                          - 14 -
405 S.W.2d 668, 671 (Tenn. Ct. App. 1966) for the proposition that police reports are
inadmissible hearsay), perm. app. denied (Tenn. Aug. 18, 2017). The State notes that the
record is not clear if the Defendant made this objection in the trial court. When the gang
validation form was introduced at trial, the Defendant’s counsel stated that he was
“reserv[ing] those same objections” that were made “during the hearing before the
admission of these things.” There was no discussion during the March 2017 hearing as to
whether the gang validation form constituted hearsay or would be admissible at trial. In
his brief, the Defendant refers to a comment made by the State during a motion hearing in
January 2017; however, as noted above in the discussion of Ms. Horton’s identification,
the transcript of this hearing is not in the record on appeal. There is nothing in the record
before this Court showing that the Defendant raised a hearsay objection to the validation
form. Thus, this issue has been waived. See Tenn. R. App. P. 36(a); State v. Thompson,
36 S.W.3d 102, 108 (Tenn. Crim. App. 2000) (“This court is extremely hesitant to put a
trial court in error where its alleged shortcoming has not been the subject of a
contemporaneous objection.”).

                                    IV. Jail Phone Call

       The Defendant argues that the trial court erred in admitting the recorded jail phone
call between the Defendant and Mr. Birdsong because it contained inadmissible hearsay.
While the Defendant concedes that his own statements in the call are admissible as
admissions by a party-opponent, see Tenn. R. Evid. 803(1.2), he argues that Mr.
Birdsong’s statements were admitted for the truth of the matter asserted, namely the
Defendant’s gang affiliation and the existence of a gang feud, and did not qualify under
any exception to the hearsay rule. The State responds that Mr. Birdsong’s statements
were not admitted for the truth of the matter asserted but to give context for the
Defendant’s statements; thus, they were not hearsay. See State v. Damarkus Lowe, No.
E2017-00435-CCA-R3-CD, 2018 WL 3323757, at *18 (Tenn. Crim. App. July 6, 2018),
perm. app. denied (Tenn. Nov. 15, 2018).

        Hearsay is “a statement other than one made by the declarant while testifying at a
trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tenn. R.
Evid. 801(c). Generally, hearsay is not admissible unless an exception applies. Tenn. R.
Evid. 802. Although a trial court’s factual findings in ruling on a hearsay objection are
binding on this Court unless the evidence preponderates against them, the question of
whether a statement is hearsay or whether it qualifies for an exception to the hearsay rule
are questions of law, which this Court reviews de novo. Kendrick v. State, 454 S.W.3d
450, 479 (Tenn. 2015).

      As an initial matter, we reject the State’s argument on appeal that the statements of
Mr. Birdsong were not admitted for the truth of the matter asserted. Both the recorded
phone call and a transcript thereof were admitted into evidence, and the recording was
                                            - 15 -
played in its entirety while the jury was allowed to follow along with copies of the
transcript. We note that the parties did not request and the trial court did not give a
limiting instruction that the jury could not consider Mr. Birdsong’s statements for the
truth of the matter asserted. The prosecutor then specifically asked Investigator Winbush
to explain several statements contained within the recording:

      [Prosecutor]: On page 2 of the transcript . . . . Line 23 to 24, Mr. Birdsong
             says, “That’s why we can’t find that [racial slur abbreviation] ass,
             bro. We can’t find that [racial slur abbreviation] for [expletive].”
             Who’s he referring to?

      [Inv. Winbush]: Based on the context of the call, it appears that Mr.
            Birdsong is referring to the victim in this case, the victim-witness,
            Marcell Christopher.

      [Prosecutor]: Point your attention to page 5, lines 17 and 18 and 19. Here
             they’re referring to a Bobby, and they say, “That [racial slur
             abbreviation] -- he just -- just [expletive] up because that little kid
             got killed. You know what I’m saying?” . . . . What’s your opinion
             about who they’re talking about there at lines 17, 18 and 19?

      [Inv. Winbush]: Well, leading up to this in the call, Mr. Sims refers to
            running into Bobby, and Mr. Birdsong confirms that they’re talking
            about the same Bobby because he referenced what happened to Mr.
            Bobby Johnson’s face when he was arrested. Mr. Sims said he ran
            into him in the jail, and he’s saying he wasn’t on his side, and Mr.
            Birdsong said the reason why he wasn’t, he was still mad about it, is
            because that the kid got killed, and the kid that he’s referring to is his
            stepson . . . .

      [Prosecutor]: . . . . To page 6, lines 16 and 17, Mr. Birdsong says, “I feel
             like I don’t want to keep [expletive] like that going and all of us is
             damu.” What does that mean?

      [Inv. Winbush]: He’s saying that everyone that’s beefing on both sides,
            Bounty Hunter and Athens Park, they’re all damu. “Damu” is a term
            they use, a reference that Bloods and also rival gang members refer
            to Blood gang members as “damu,” that being because “damu” is the
            Swahili word for blood.

      [Prosecutor]: On page 9 of the transcript, at the top, lines 1, 2 and 3,
             coming over from the last page, Mr. Birdsong says, “You know, like
                                           - 16 -
       I told them, [racial slur abbreviation], we ain’t fixing to shoot no
       Athens Park [racial slur abbreviation].” . . . . Why would Mr.
       Birdsong say that?

[Inv. Winbush]: Well, he’s, he’s referencing that -- and confirmed that
      there was a beef, a feud going on between his group, Bounty
      Hunters, and the Athens Park Blood members, and he was, based on
      the context, saying that because it started when he was in jail, and he
      didn’t agree with Blood on Blood or damu on damu, as he refers to;
      because he didn’t agree with it, he wasn’t going to tell them and
      allow them to shoot any, anyone that was Athens Park Blood.

[Prosecutor]: Anybody under him?

[Inv. Winbush]: That’s correct, if he can influence it.

[Prosecutor]: Page 11 of the transcript, starting at line 5, Mr. Birdsong
       says, “I can respect that. I respect that. Me being the big homie,”
       and the transcript reads “what.” What is the -- is that confirming
       that Mr. Birdsong is the big homie of Watts?

[Inv. Winbush]: That’s correct. He’s saying that he is the big homie. “Big
       homie” refers to top dog or leader in charge, and he says that him
       being the leader or big homie of Watts. So he’s, he’s acknowledging
       and making it known that he is the top dog in charge of the Bounty
       Hunter Bloods in Chattanooga.

[Prosecutor]: And is that Watts the same Watts that Baby Watts, Marcell
       Christopher, is associated with?

[Inv. Winbush]: That’s correct, it is the same. Throughout the call, he
      makes reference to 111, such as 111 percent, basically
      acknowledging that he claims the same as Ace Line, 111 Bounty
      Hunter Bloods.

[Prosecutor]: . . . . To page 12, line 17, Mr. Birdsong says “Paperwork --
       that’s one thing about paperwork, little homie, paperwork don’t lie at
       all.” Line 21, Mr. Sims says, “I’m saying have you seen it, though?”
       Line 23, Mr. Birdsong says, “What? Talking about that paperwork
       with dude, little homie?” Mr. Sims says, “Yeah.” What are they
       referring to there?

                                    - 17 -
[Inv. Winbush]: “Paperwork” is known amongst the criminal world,
      amongst law enforcement, gang members, as being the affidavit of
      complaint or any kind of police documentation that someone’s
      mentioned in, whether that be the accused or the accuser, and it is
      common practice for anyone who’s mentioned, or if there’s an
      allegation of someone being a witness or a victim of a crime, for the
      gang to summon paperwork just to verify or confirm if they’re
      actually what they call snitching, because it's frowned upon in the
      gang.

[Prosecutor]: What person that Mr. Birdsong would have any authority
       over would be in Mr. Sims’s paperwork?

[Inv. Winbush]: That would be Marcell, Marcell Christopher. Baby Watts,
       him being a little homie or a junior member of the gang, Mr.
       Cornelius Birdsong wouldn’t be directly in charge of him, but he,
       being the top dog in charge, would be able to have an influence on
       him, Mr. Marcell Christopher, for being in someone’s paperwork.

[Prosecutor]: Page 13, in response to that, Mr. Birdsong says, “Yeah, that’s
      the first thing they showed me,” in reference to the paperwork.
      “Here’s what I told them, though. I said, ‘Hey, Blood man, find that
      [racial slur abbreviation] real quick, Blood, and strip him.’” What
      does that mean?

[Inv. Winbush]: Well, he’s saying that the first thing that he saw after the
       accusation was the paperwork, because like I said, it’s, I mean, it’s
       just the number one rule, it’s always summoned after something of
       this such, and he’s saying that when he saw it, he disagreed with it
       because of Mr. Marcell Christopher stating that Mr. Sims was the
       person that shot him. He told them -- “them” being the gang and the
       people that’s directly in charge of Mr. Sims [sic] -- to find him and
       strip him, basically strip him of his colors, of his flag, because it was
       not in accordance with what the gang is supposed to do, which
       means not snitching, keeping it in the streets.

[Prosecutor]: Page 13, line 7, same page as before, “I don’t even want that
       [racial slur abbreviation] in Chattanooga no more. I don’t care
       nothing about his mom or his dad or none of that shit. You know
       what I’m saying.” Farther down, lines 16, 17, “So that right there is
       going to be a domino effect and I feel like that [racial slur
       abbreviation] don’t need to be out there. He needs to be gone for
                                     - 18 -
       real. You know what I’m saying.” Who is Mr. Birdsong referring to
       there?

[Inv. Winbush]: He’s referring to Mr. Marcell Christopher.

[Prosecutor]: Line 19 is Mr. Sims’s response, he says, “Yeah”; is that
       correct?

[Inv. Winbush]: That’s correct.

[Prosecutor]: Page 16, line 17, Mr. Birdsong, “My thing is to get him and
       at least -- and if the homies don’t want to do nothing to him, at least
       get to him and try to convince this [racial slur abbreviation], hey,
       bro, don’t do that, bro. If anything, go in there and say, man, it
       wasn’t him, that you wasn’t in your right mind, you blamed the
       wrong dude, it wasn’t him, it was three folk dudes.” What does that
       mean, Investigator Winbush?

[Inv. Winbush]: He’s basically saying that his strategy is to find Mr.
      Marcell Christopher and intimidate and influence him to come into
      court and lie and basically say that it wasn’t Cortez Sims, that he
      wasn’t in his right mind, and blame someone else, and that, that if,
      and only if, the other members of the gang didn’t want to actually
      harm him would that be the strategy.

[Prosecutor]: Page 17, lines 2 really through 8, Mr. Birdsong says, “That’s
       what I’m trying to get him for, but I believe since he know we
       hunting” him -- it says, “we hunting,” and then it says
       “unintelligible” there. What does “hunting him” mean?

[Inv. Winbush]: “Hunting” means that they’re actively looking for him, on
       the prowl, by any means necessary. They’re knocking on doors,
       they’re making it known. Their -- the streets have basically given
       him some type of intel that the Bounty Hunter Bloods are looking
       for him because they’re not pleased with him snitching, and because
       they know -- he -- Marcell Christopher knows that the Bounty
       Hunters are looking for him, that he’s hiding, he’s not making
       himself present within the city.

[Prosecutor]: Page 18, line 2, Mr. Birdsong, “I give you -- I give you -- I
       give you my word as a man, bro, I’m going to try -- I’m trying my

                                    - 19 -
              best to get ahold of him so I can stop it. You hear what I’m saying.”
              Who is he referring to?

       [Inv. Winbush]: Again, he’s referring to Marcell Christopher.

       [Prosecutor]: Now, on page 21, Mr. Birdsong says, “I’m 111 percent
              official, bro. You need to understand that. I got you and I’m going
              to try my best. I’m giving you my word as a man, bro, I’m going to
              try my best to stop that.” What does “111 percent” mean?

       [Inv. Winbush]: You’ll hear people say, “I’m a hundred percent real or
             authentic,” meaning that he’s not telling any lies, he’s a man of his
             word. When he puts an emphasize on “111 percent,” it goes back to
             what I said about the most commonly known and largest faction or
             set of the Bounty Hunter Bloods, being 111th Bounty Hunter
             Bloods, Ace Line Bloods, so he’s saying that “me being 111
             percent,” he’s saying that “I’m a hundred percent Bounty Hunter
             Blood,” and that because he’s putting it on his gang, on his
             affiliation with the Bounty Hunters, that “you should believe me that
             I’m going to do everything in my word to stop your accuser, Marcell
             Christopher, from coming to court.

       As can be seen, with the exception of the Defendant’s reference to “Bobby” and
question about “paperwork,” the prosecutor’s questions focused solely on statements
made by Mr. Birdsong. We note that there were other statements by the Defendant
during the phone call that were not specifically highlighted by the prosecutor’s questions,
such as his agreement with Mr. Birdsong that the feud should be settled and his insistence
that he did not commit this offense. However, this extensive discussion of Mr.
Birdsong’s statements and their meaning belies the State’s assertion on appeal, relying on
this Court’s opinion in Damarkus Lowe, that Mr. Birdsong’s statements were not
admitted for the truth of the matter asserted but only to provide context for the
Defendant’s statements. Unlike Damarkus Lowe, in which “[t]he State did not ask the
jury to believe what those individuals said on the recording,” 2018 WL 3323757, at *18,
the State in this case clearly relied on Mr. Birdsong’s statements to establish both that the
Defendant was a gang member and that there had been a feud between the two gangs.
Because Mr. Birdsong’s statements on the recorded phone call were offered for the truth
of the matter asserted, they constitute hearsay under Rule 801(c).

      However, like with the gang validation form discussed above, the Defendant has
waived this issue by failing to clearly raise a hearsay objection. When the recorded
phone call and transcript were admitted into evidence, the trial court noted that the
Defendant’s “objection is continuing.” However, although the recorded phone call was
                                            - 20 -
admitted and discussed in great detail during the March 2017 hearing, it was in the
context of determining whether evidence of the Defendant’s gang affiliation would be
admissible under Rule 404(b) and whether evidence of the gang feud would be
admissible under Rule 403. The Defendant did not raise a hearsay objection to the
recorded phone call during that hearing. If a hearsay objection was raised during the
January 2017 hearing, as stated above, that transcript is not in the record. When a
defendant fails to object on the basis of inadmissible hearsay, “the evidence becomes
admissible notwithstanding any other Rule of Evidence to the contrary, and the jury may
consider that evidence for its ‘natural probative effects as if it were in law admissible.’”
State v. Smith, 24 S.W.3d 274, 280 (Tenn. 2000) (quoting State v. Harrington, 627
S.W.2d 345, 348 (Tenn. 1981)). Therefore, the Defendant’s claim that the phone call
should have been excluded as inadmissible hearsay is waived. See Tenn. R. App. P.
36(a).

               V. Admission of Evidence Seized from Talladega Avenue

        The Defendant argues that the trial court erred by admitting into evidence a nine-
millimeter handgun and shell casings collected by law enforcement from Mr. Toney’s
residence on Talladega Avenue when ballistic testing had determined that the projectiles
and shell casings collected from the crime scene were not fired by that gun. The
Defendant argues that this evidence was irrelevant and potentially confusing or
misleading to the jury. The State responds that the evidence was relevant because it
“illustrated the investigative process undertaken by law enforcement in this case” and
excluded Mr. Toney as a suspect.

       As stated above, 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.
Evidence that is not relevant is not admissible. Tenn. R. Evid. 402. Additionally,
relevant evidence may be excluded if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or misleading the jury. Tenn. R.
Evid. 403. This Court reviews a trial court’s decision regarding the admissibility of
evidence for an abuse of discretion. Davidson, 509 S.W.3d at 207.

       During Officer Brooks’ testimony, the State entered into evidence photographs of
a nine-millimeter handgun and nine-millimeter shell casings found at the home of Mr.
Toney, the Defendant’s ex-stepbrother. When the State asked Officer Brooks to describe
the photograph of the firearm, the Defendant objected that this evidence was irrelevant.
The State argued that the evidence was relevant because it was collected during the
investigation and was included on the TBI lab report. The trial court ruled as follows:


                                           - 21 -
       I find it’s relevant as being part of the investigation . . . . You know, I think
       that in context, oftentimes law enforcement is faulted for what they didn’t
       look at or examine. Where they have looked at it and examined it, then it
       becomes part of the investigation. Your cross examination can help the
       jury establish that there is no real weight that it carries against [the
       Defendant].

The Defendant’s counsel argued that the evidence “has no bearing at all on this case,”
and the trial court agreed that “it has no bearing on [the Defendant’s] alleged acts if it
can’t be tied to him, but it is part of the investigation.” The State then asserted that the
evidence established that Mr. Toney was “a non-viable alternative suspect.” The trial
court suggested that the Defendant’s objection was late because the photographs of the
gun and shell casings had already been admitted into evidence and shown to the jury, and
the trial court did not want the jury to speculate as to the significance of the gun. The
trial court suggested that “maybe pretrial, if I had had an opportunity to view this, I might
have determined that it could be excluded from the report, but that’s not been done
pretrial.” The trial court asked if “there [is] something prejudicial against [the
Defendant] related to this gun,” and the Defendant’s counsel responded, “Not that I
know, other than the fact that this gun is with a family member of his[.]” The trial court
stated that it was not going to require the State to redact the TBI lab report and ruled that
evidence of the gun and shell casings recovered from Talladega Avenue were admissible.

       Because the Defendant objected at trial only on the basis that the evidence should
have been excluded as irrelevant under Rule 402, his argument on appeal that the
evidence should have been excluded as confusing or misleading under Rule 403 is
waived. See State v. Schiefelbein, 230 S.W.3d 88, 129 (Tenn. Crim. App. 2007) (holding
that “a party is bound by the ground asserted when the party objected at trial”); State v.
Matthews, 805 S.W.2d 776, 781 (Tenn. Crim. App. 1990). We agree with the Defendant
that the evidence of a gun being recovered from the home of his ex-stepbrother, which
the TBI conclusively determined was not the gun used in the shooting in this case, was
not relevant. While it is clear why the police would have collected and tested a nine-
millimeter gun found in the possession of a family member of the Defendant during the
course of their investigation, the mere fact that they did so did not make any fact that was
of consequence at trial more or less probable. Specifically, the fact that the police found
this gun did not make it any more or less likely that the Defendant committed these
offenses. The State’s argument that the evidence was relevant because it excluded Mr.
Toney as a suspect is unavailing because neither the Defendant nor any other person ever
suggested that Mr. Toney could have been an alternate suspect. The trial court’s concern
about police being faulted for an insufficient investigation is similarly misplaced since
the Defendant never challenged that aspect of the investigation. Because this gun was
not related to the offenses in this case, it was irrelevant. See State v. Justin Mathis, No.
W2005-02903-CCA-R3-CD, 2007 WL 2120190, at *10 (Tenn. Crim. App. July 20,
                                             - 22 -
2007) (holding that photograph of gun on defendant’s brother’s phone was irrelevant
where the State did not offer any evidence that it was related to victim’s murder), perm.
app. denied (Tenn. Dec. 26, 2007).

        However, the admission of this evidence was harmless. Both the State and the
Defendant’s counsel questioned Investigator Blackwell about the fact that this gun was
determined not to have any association with this case and was returned to Mr. Toney.
Additionally, the TBI agent who conducted the ballistic testing in this case confirmed that
“those bullets and cartridge cases from the crime scene had not been fired in that pistol.”
This finding was reflected on the lab report that was admitted into evidence and was
repeated on cross-examination. The Defendant’s suggestion on appeal that the jury could
have been misled into thinking that there was some connection between this gun and the
evidence found at the crime scene is not supported by the record. The Defendant has not
established that “the admission of this evidence more probably than not affected the
verdict or resulted in prejudice to the judicial process.” State v. Rodriquez, 254 S.W.3d
361, 374 (Tenn. 2008); see Tenn. R. App. P. 36(b). Therefore, the Defendant is not
entitled to relief on this issue.

                        VI. Admission of Z.H.’s Bloody Onesie

       The Defendant argues that the trial court erred in admitting into evidence a blood-
stained onesie alleged to have been worn by Z.H. at the time she was shot, which was
collected by Officer Salyers from the hospital room in which Z.H. had been treated prior
to being taken to surgery. On appeal, the Defendant argues that the onesie was unduly
prejudicial under Rule 403 and that the State failed to establish a proper chain of custody
for the onesie. However, because the Defendant only objected with regard to the chain of
custody issue at trial, his argument with regard to Rule 403 is waived. See Schiefelbein,
230 S.W.3d at 129.

       Prior to admission, evidence must be authenticated “by evidence sufficient to the
court to support a finding by the trier of fact that the matter in question is what its
proponent claims.” Tenn. R. Evid. 901(a). For a piece of tangible evidence, “a witness
must be able to identify the evidence or establish an unbroken chain of custody” in order
to ensure “that there has been no tampering, loss, substitution, or mistake with respect to
the evidence.” State v. Cannon, 254 S.W.3d 287, 296 (Tenn. 2008) (internal citations
omitted). However, “this rule does not require that the identity of tangible evidence be
proven beyond all possibility of doubt[,]” and “[a]n item is not necessarily precluded
from admission as evidence if the State fails to call all of the witnesses who handled the
item.” Id. “Accordingly, when the facts and circumstances that surround tangible
evidence reasonably establish the identity and integrity of the evidence, the trial court
should admit the item into evidence.” Id.; see also State v. Kilpatrick, 52 S.W.3d 81, 87
(Tenn. Crim. App. 2000) (holding that “the circumstances established must reasonably
                                           - 23 -
assure the identity of the evidence and its integrity”). Challenges to the chain of custody
of a piece of evidence are reviewed under the abuse of discretion standard. Cannon, 254
S.W.3d at 295.

       Officer Salyers testified that he responded to Erlanger Hospital to collect evidence
from the victims. Z.H. was already in surgery when Officer Salyers arrived. Officer
Salyers testified that when he specifically requested evidence related to Z.H., he was
directed to “the room that they had been working on her before taking her into surgery,”
where he collected a white onesie, a towel, and a pair of socks. The onesie was blood-
stained, had a hole in the back of it, and appeared to have been cut off of Z.H. The trial
court, in ruling on the Defendant’s objection, noted that the video from Officer Avery’s
body camera showed that Z.H. was wearing a white onesie when she was taken from the
scene to the hospital. The court also noted that the blood and the bullet hole were
consistent with evidence that Z.H. had been shot. The trial court concluded that it was
“sufficiently satisfied” that the evidence was what the State was purporting it to be.

        The Defendant argues that this case is analogous to Cannon, in which the
Tennessee Supreme Court determined that the chain of custody for a pair of pantyhose
had not been properly established. 254 S.W.3d at 296-98. In that case, the only proof
linking the defendant to the rape of the elderly victim was a DNA profile obtained from
semen found on a pair of pantyhose. The victim did not testify and identify the
pantyhose as hers. The victim’s clothing had already been removed at the hospital before
the State’s witnesses arrived to interview and examine her. The forensic nurse examiner
testified that the pantyhose were with the rest of the victim’s clothes and that no one else
had been in the room. However, there were no pantyhose in the photograph of the
victim’s belongings, and they were not mentioned in either the examiner’s or the
detective’s reports. The supreme court concluded that “the pantyhose were not
sufficiently identified as belonging to the victim by a witness with knowledge”; thus, the
pantyhose and the DNA results obtained therefrom were not admissible. Id. at 298.

       This case is distinguishable from Cannon because the facts and circumstances in
this case reasonably establish the identity of the bloody onesie admitted at trial as the one
worn by Z.H. at the time she was shot. The video from Officer Avery’s body camera
shows Z.H. wearing a white onesie as she is being carried down the steps of the College
Hill Courts apartment. Other evidence clearly established that Z.H. had been shot in the
back. When Officer Salyers went to the hospital, he requested evidence related to the
victims in this case and was directed to Z.H.’s hospital room. Although, like in Cannon,
Z.H.’s clothes had already been removed prior to Officer Salyers arrival, unlike Cannon,
there was no contradictory or suspicious testimony about whether this particular clothing
item was among the victim’s belongings. The only evidence of any kind of “tampering”
was Officer Salyers’ testimony that the onesie appeared to have been cut off of Z.H., but
this does not reasonably call into question the identity or integrity of the onesie as the one
                                            - 24 -
that was worn by Z.H. at the time she was shot. Because the identity and integrity of the
evidence was reasonably established, the trial court did not abuse its discretion in
admitting the onesie. However, even if the trial court erred, such error was harmless
because, unlike the pantyhose in Cannon, there was no forensic evidence linking the
Defendant to this crime taken from the onesie, such as hair or DNA, that would be
susceptible to tampering or cross-contamination. Therefore, the Defendant is not entitled
to relief on this issue.

                 VII. Admission of Evidence of an On-going Gang Feud

       The Defendant argues that the trial court erred in admitting evidence of the gang
feud between the Athens Park Bloods and the Bounty Hunter Bloods. The Defendant
contends that Investigator Winbush’s testimony did not clearly establish the existence of
a feud, that the prior incidents not involving the Defendant were not relevant, and that the
evidence should have been excluded as unduly prejudicial under either Rule 403 or
404(b). The State responds that the evidence was probative of the Defendant’s motive
and that the potential for prejudice was low because there was no evidence of prior
wrongdoing by the Defendant.

       As discussed above, evidence must be relevant to be admissible. Tenn. R. Evid.
402. However, relevant evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice. Tenn. R. Evid. 403. While evidence of a
defendant’s gang activity is analyzed under Rule 404(b) as evidence that may reflect
upon the defendant’s character and propensity to commit an offense, Rule 404(b) is not
applicable to evidence of crimes or other bad acts committed by a person other than the
defendant. See State v. Stevens, 78 S.W.3d 817, 837 (Tenn. 2002) (quoting DuBose, 953
S.W.2d at 653). This Court reviews a trial court’s decision regarding the admissibility of
evidence for an abuse of discretion. Davidson, 509 S.W.3d at 207.

        At the same pretrial hearing in March 2017 during which the trial court considered
the admissibility of the Defendant’s gang affiliation under Rule 404(b), the trial court
also considered the admissibility of Investigator Winbush’s testimony regarding the on-
going gang feud under Rule 403. Investigator Winbush testified at the hearing, and later
at trial, that the Chattanooga Police Department became aware of a feud between the
Athens Park Bloods and the Bounty Hunter Bloods that began after a fight at a nightclub
called Terry’s Lounge in late December 2013. According to Investigator Winbush,
Martrell “Tricky Trell” Arnold, one of the leaders of the Athens Park Bloods, got into an
argument with Bobby Johnson, one of the leaders of the Bounty Hunter Bloods. Floyd
Davis, an Athens Park Blood, was arrested that night for possession of a firearm. The
police began monitoring the situation on social media.


                                           - 25 -
       The next specific incident occurred on January 20, 2014, when the police
responded to a shooting at the home of the aunt and uncle of Quadarius “Oodie Blood”
Bowling, a member of the Athens Park Bloods. Several of the witnesses on the scene,
who later refused to cooperate with the investigation, initially indicated that Anthony
“A.J.” Malone, a Bounty Hunter Blood, was responsible. That same night, Deontray
Southers, the fourteen-year-old stepson of Bobby Johnson, was shot and killed in his
home. The police received information that several members of the Athens Park Bloods
were responsible but were unable to make any arrests due to a lack of cooperation from
witnesses. The following day, January 21, 2014, police responded to a call about shots
fired at the home of LaCharleston “L.A.” Haggard, an Athens Park Blood. Mr.
Haggard’s wife reported seeing two individuals believed to be members of the Bounty
Hunter Bloods running through the back yard with a rifle.

        On February 1, 2014, Charles “Man Man Park” Jones, an Athens Park Blood, was
shot and killed. Witnesses indicated that the Bounty Hunter Bloods were actually
targeting Deaunte “Ta Ta Blood” Dean, another member of the Athens Park Bloods.
Several members of the Bounty Hunter Bloods were seen in the area prior to the shooting
and were seen fleeing the area immediately after. On February 4, 2014, Quadarius
Bowling was shot in the shoulder during a drive-by shooting, which was also believed to
be connected to the feud with the Bounty Hunter Bloods. Then, on February 24, 2014,
the Defendant’s mother was injured when shots were fired at her house. The Defendant
was on the scene when police arrived. The police had information that members of the
Bounty Hunter Bloods were responsible. The shell casings recovered at the scene were
later determined to match a firearm recovered in the possession of Mr. Birdsong during a
traffic stop.

        The next incident discussed by Investigator Winbush occurred on October 1, 2014,
when Lakita Bowling, the mother of Quadarius Bowling, was shot and injured while he
was a passenger in her vehicle. Investigator Winbush testified that the Defendant was
Facebook friends with Mr. Bowling, who used the name “Parkbxi Asap” on his Facebook
page. Then, on October 27, 2014, police discovered that Terrence “T.B. Blood” Bivens,
an Athens Park Bloods and the brother of Floyd Davis, had been shot and killed by
Ladaquis Southers, a Bounty Hunter Blood and uncle of Deontray Southers. Investigator
Winbush testified that Mr. Bivens and Mr. Southers were actually close friends despite
their rival gang affiliations. However, during a dispute, Mr. Southers pulled out a gun
and shot Mr. Bivens. The Defendant posted a picture of Mr. Bivens on his Facebook
page that same day.

       On January 1, 2015, Deaunte Dean was shot and killed through the front door of
his home. Investigator Winbush testified that the way Mr. Dean was killed was similar to
the way Deontray Southers was killed, in that someone may have knocked on the door
and then fired when the person came to answer it. Investigator Winbush testified that the
                                          - 26 -
Defendant was Facebook friends with Mr. Dean, who used the name “TA TA Blood” on
his Facebook page. The shooting incident in this case occurred six days after the murder
of Mr. Dean. To accompany Investigator Winbush’s testimony, the State also introduced
into evidence a PowerPoint presentation with the names and dates of each of the above-
described incidents accompanied by photographs of the victims and, where applicable,
potential suspects.

        Although the analysis was intertwined, the trial court carefully applied Rule
404(b) to the evidence of the Defendant’s gang affiliation and Rule 403 to the evidence
of bad acts committed by persons other than the Defendant, which the State asserted
established the existence of an on-going gang feud. The trial court found that the
“common thread” among these incidents was “the fact that all of these victims and
perpetrators are members of the Athens Park Bloods or the Bounty Hunter Bloods and the
fact that all of these people are apparently, by this totality of the circumstances and
circumstantial evidence, involved in something that’s causing them each to be
victimized.” The trial court found that the Defendant’s “membership in one of those sets
could have caused him to have the same actions as others within those sets, and the
victim of the case in which he is accused is a Bounty Hunter Blood.” Thus, the trial court
concluded that this evidence was relevant “with regard to whether or not [the Defendant]
may have had the intent, the motive, to act himself, particularly where his mother’s house
was shot and there was a gun that was recovered and it was recovered from Mr. Birdsong,
who’s the leader of the Bounty Hunter Bloods.” The trial court determined that the
danger of unfair prejudice associated with these “incidents of violence” and the “negative
connotation toward gang members” did not substantially outweigh the probative value of
this evidence under Rule 403.

       This case appears to be one of first impression in Tennessee: whether a series of
crimes committed by and against persons other than the Defendant can be used to
establish the existence of a gang feud, which in turn is used to establish the Defendant’s
motive and intent to target Marcell Christopher and kill Talitha Bowman in the process.
Other courts have recognized that “[r]eferences to a gang feud can supply to the jury a
motive for an otherwise unexplained killing[.]” Plummer v. United States, 813 A.2d 182,
189 (D.C. 2002). The Illinois Court of Appeals has concluded that even where “there
was no evidence presented that [the] defendant was involved in the escalating tensions
between the two gangs,” evidence of the defendant’s gang membership and of “the
simmering feud between the gangs helped explain to the jury why [the] defendant would
have targeted” one of the victims and killed another in the process. People v. Hakeem
Redmond, No. 1-15-1308, 2018 WL 6438848, at *8 (Ill. App. Ct. Dec. 6, 2018), perm.
app. denied, 119 N.E.3d 1047 (Ill. 2019). The California Court of Appeals held that
evidence of specific incidents of retaliatory gang violence preceding the victim’s murder,
including several that did not directly involve the defendant, were relevant to establish
the defendant’s motive as “retaliation as part of an ongoing rivalry between the two
                                          - 27 -
gangs.” People v. Funes, 28 Cal. Rptr. 2d 758, 766 (Ct. App. 1994). Moreover, the court
concluded that those incidents in which the defendant was not involved “were less
prejudicial to [the] defendant than those where [the] defendant clearly took an active role
in retaliating[.]” Id.

       We conclude that the trial court did not abuse its discretion in determining that the
evidence of an on-going gang feud between the Athens Park Bloods and the Bounty
Hunter Bloods was relevant under Rule 401 because it made the Defendant’s alleged
motive more or less probable than it would be without the evidence. As noted above,
although the Defendant challenges the admissibility of the gang validation form on
appeal, he does not challenge the trial court’s ruling that evidence of his gang affiliation
was admissible under Rule 404(b) for the non-propensity purposes of establishing
motive, intent, and identity. With regard to the evidence at issue here, the Defendant
argues on appeal that there was no clear and convincing evidence that the feud existed or
he was involved in the feud. However, “clear and convincing evidence,” the standard by
which a prior crime or bad act must be established under Rule 404(b), is not the standard
for determining whether evidence is relevant under Rule 401 or whether it should be
excluded as unduly prejudicial under Rule 403. The Defendant has never challenged
Investigator Winbush’s ability to give an expert opinion regarding the existence of the
feud under Rule 702 or the admissibility of the facts supporting his opinion under Rule
703. With regard to the Defendant’s connection to the feud, we note that the Defendant
was directly connected to the shooting at his mother’s house and was indirectly
connected to the Athens Park victims in several of the other incidents through his
Facebook account. Because of this connection, the evidence of the gang feud was
probative of the Defendant’s motive to target a member of the rival gang and, thus, was
relevant under Rule 401.

       The question then becomes whether the danger of unfair prejudice associated with
these ten acts of gang violence substantially outweighs their probative value under Rule
403. In a recent case, a panel of this Court was “troubled by the breadth of the gang
evidence presented,” including “extensive background information about the Gangster
Disciples and the origins of various gang signs” that was “of questionable relevance.”
State v. Jeremy Reynolds, No. E2018-01732-CCA-R3-CD, 2020 WL 3412275, at *25-26
(Tenn. Crim. App. June 22, 2020). The Jeremy Reynolds panel noted that although
evidence of the defendant’s gang affiliation was relevant and admissible to show his
connection to the murder weapon, which was recovered in the possession of a fellow
gang member, the investigator’s testimony about gangs “could have been better tailored
to minimize the danger that the jury would be distracted and confused by extraneous
information.” Id.

        The potential prejudice associated with the evidence in this case is not merely the
fact that gangs tend to have a negative connotation and a reputation for violence. Instead,
                                           - 28 -
by associating the Defendant with these specific acts of violence committed by and
against third parties, there is a possibility that the jury will determine that the Defendant
is guilty merely by association. See United States v. Irvin, 87 F.3d 860, 865 (7th Cir.
1996) (“Guilt by association is a genuine concern whenever gang evidence is admitted.”).
“We acknowledge that the theory of ‘guilt by association’ [is a] theory that has been
‘thoroughly discredited.’” State v. Roshad Romanic Siler, No. E2005-01201-CCA-R3-
CD, 2007 WL 10450, at *9 (Tenn. Crim. App. Jan. 3, 2007) (quoting Uphaus v. Wyman,
360 U.S. 72, 79 (1959)). Additionally, we note that this same concern with guilt by
association lead in part to this Court holding that the gang enhancement statute,
Tennessee Code Annotated section 40-35-121(b), was unconstitutional as it was written
at that time because it “impose[d] mandatory punishment on an eligible defendant by
imputing to him responsibility for the criminal activity of the gang as a collective without
requiring the defendant’s knowledge of and intent to promote such activity.” State v.
Bonds, 502 S.W.3d 118, 158 (Tenn. Crim. App. 2016).

       In this case, we conclude that the trial court did not abuse its discretion in
determining that the potential for unfair prejudice did not substantially outweigh the
probative value of the evidence of the on-going gang feud. Unlike the breadth of
evidence presented in Jeremy Reynolds, the evidence in this case was specifically tailored
to those acts of violence that were directly connected to this specific feud. Investigator
Winbush’s testimony and the State’s accompanying PowerPoint presentation were fairly
straightforward and did not include any overly graphic or salacious details. While ten
specific acts of violence may seem like a lot, the number of incidents presented by the
State was necessary to show the retaliatory nature of the feud. Although the trial court
did not give any specific limiting instruction with regard to this evidence, the trial court
did instruct the jury that it could only consider the Defendant’s alleged gang membership
for the limited purposes of identity, motive, and intent. We note again that “Rule 403 is a
rule of admissibility, and it places a heavy burden on the party seeking to exclude the
evidence.” James, 81 S.W.3d at 757. The Defendant has not established that the trial
court abused its discretion in admitting this evidence of an on-going gang feud and,
therefore, is not entitled to relief.

                                        Conclusion

       Based on the foregoing, we affirm the judgments of the trial court.


                                          ____________________________________
                                          THOMAS T. WOODALL, JUDGE




                                            - 29 -
