           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE
                                    May 13, 2014 Session

             STATE OF TENNESSEE v. KEVIN LAMONT FRENCH

                  Appeal from the Criminal Court for Davidson County
                      No. 2010-C-2466     Steve R. Dozier, Judge


                   No. M2013-01270-CCA-R3-CD - Filed July 16, 2014


Appellant, Kevin Lamont French, was convicted by a Davidson County jury of premeditated
murder, felony murder, and especially aggravated robbery. He received life sentences for the
murder convictions, and the trial court sentenced him to a concurrent sentence of twenty-one
years for his especially aggravated robbery conviction. On appeal, he argues that: (1) the
evidence was insufficient to support his convictions; (2) the trial court erred by admitting
prior bad act testimony; (3) the trial court erred by admitting a letter purportedly written by
appellant; (4) the trial court erred by admitting testimony regarding weapons found in
appellant’s home; (5) the assistant district attorney general committed prosecutorial
misconduct during closing arguments; and (6) the trial court erred by admitting certain
autopsy photographs.1 Following our review of the record, the arguments of the parties, and
the applicable law, we affirm the judgments of the trial court but remand the case for the trial
court to merge the two murder convictions.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which J AMES C URWOOD W ITT, J R.,
and J OHN E VERETT W ILLIAMS, JJ., joined.

Robert L. Sirianni, Jr. (on appeal), Winter Park, Florida; and Robert T. Vaughn (at trial),
Nashville, Tennessee, for the appellant, Kevin Lamont French.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Senior Counsel;
Michelle Consiglio-Young, Assistant Attorney General; Victor S. Johnson, III, District



       1
         Appellant presented a seventh issue — ineffective assistance of counsel — in his brief but
abandoned the issue during the oral argument in this matter.
Attorney General; and Wesley King and Jennifer Smith, Assistant District Attorneys General,
for the appellee, State of Tennessee.

                                             OPINION

                                               I. Facts

       This case concerns the November 16, 2008 especially aggravated robbery and murder
of Andre Veals. Appellant and Leangelo L. Ramey were indicted by a Davidson County
grand jury on September 10, 2010, for premeditated murder, felony murder, and especially
aggravated robbery.2 The parties presented the following evidence at appellant’s September
2012 trial.

       Metro Nashville Police Officer Adam Weeks testified that on November 16, 2008, he
was dispatched “just before 3:00 p.m.” to a shooting in progress at Carl’s Car Wash on
Gallatin Pike in Davidson County. He found the victim lying on the ground. Medical
personnel arrived shortly thereafter. Officer Weeks secured the crime scene and began
logging potential witnesses and other responding officers. In a photograph of the crime
scene, Officer Weeks identified appellant’s brother, Jonathan French, who was standing
outside the crime scene tape talking to an investigator. He also identified several
photographs of a tan Chevrolet Trailblazer registered to the French family, which was parked
beside the car wash.

        Kimberly McLemore testified that she was vacuuming her car’s interior at the car
wash that day, and she observed a young man — the victim — walk by her car, talking on
a cellular telephone. She then saw a car “that still had soap all over it” drive out of a wash
bay. The car was “four door, metallic blue[,] . . . set up high on tires and r[i]ms.” The car
stopped by the victim, and the driver opened his door. Ms. McLemore said that the victim
and the driver conversed but that she could not hear their words over the vacuum cleaner. She
continued to vacuum but also looked toward the two men occasionally because they were
near sports equipment that she had placed on the ground. Ms. McLemore testified that she
then heard three gun shots and that she dived into her car. She heard “tires screeching” and
saw the victim “staggering . . . like he was trying to walk away.” Ms. McLemore said that
she “was screaming” and “was frantic.” She saw the victim “drop[] to his knees.” She said
that the blue car tried to run over the victim, “but they couldn’t, so the tires were spinning
out.” She continued, “And as the tires continued to spin as they were trying to go forward,
they just ran over him.” Ms. McLemore testified that she did not know who fired the shots.
She described the driver of the blue car as “a black male” wearing “a black stocking cap.”

       2
           Appellant and Ramey were tried separately.

                                                  -2-
Ms. McLemore said that she was “[v]ery close” to the gunfire and that there was a bullet hole
in her car from the incident.

       Ms. McLemore further testified that on November 20, 2008, she met with Detective
Paul Harris to attempt to identify someone involved in the shooting. She said that in a
photographic lineup, she circled “the gentleman . . . [who] looked familiar to me, [who] was
driving the blue car.” Ms. McLemore agreed that she told Detective Harris, “‘100 percent
sure, no, but I do believe that’s the guy I saw.’” She testified that she had been watching
both the driver of the blue car and the victim because she “didn’t know if these guys were
going to steal [her softball equipment] or what, so [she was] constantly looking out of [her]
car to make sure . . . that they [didn’t] get [her] stuff” and that “some people you just don’t
forget.”

       Terry Eubanks testified that on November 16, 2008, he was visiting friends
approximately one block from the car wash where the victim died. He recalled seeing a car
driving down the street that “had soap suds all over it.” Soon thereafter, he saw the same car
driving the opposite direction, back to the car wash. Mr. Eubanks described the car as “a
Ford, blue with big black r[i]ms on it.” He said that he could not see who was inside the car
because the windows were tinted. Shortly after seeing the car for the second time, Mr.
Eubanks said that he heard “several shots, then the car came flying back down the street.”

         Ivory Kelly testified that he was at the car wash when the victim was murdered. Mr.
Kelly said that he was behind the wash bays drying off his car when he saw a blue car pull
into a wash bay. A young man, the victim, exited the car and began to wash it. Mr. Kelly
then saw “a gold SUV” pull into the car wash parking lot. Two men exited the gold SUV
and approached the victim. They spoke, but Mr. Kelly could not hear what was said. He said
that it appeared like the men knew each other. Mr. Kelly then saw the blue car back out of
the wash bay. He testified that one of the men from the SUV was driving the blue car at that
point. The other man from the SUV was left at the car wash and was wearing “a Jamaican
cap.” Mr. Kelly saw the victim walking across the street, talking on his cellular telephone.
The man wearing the Jamaican cap sat in the SUV for a minute and might have been on his
telephone. Mr. Kelly said that a few minutes later, the blue car returned and pulled into the
wash bay where it had been before. Then, the car backed out and pulled inside another bay.
At that point, Mr. Kelly heard two gunshots. Mr. Kelly testified that he saw the blue car
“coming out of the stall” and saw “a body rolling up under the car.” Then, the second man
from the SUV approached Mr. Kelly, so he “jumped in [his] car,” drove to AutoZone, and
called 9-1-1. Mr. Kelly testified that he tried to identify the men from the SUV in a
photographic lineup but was unsuccessful because he did not see their faces well.




                                              -3-
        On cross-examination, Mr. Kelly admitted that he did not actually see the two men
exiting the SUV but that he assumed they had done so. He said that he knew only one person
was in the blue car because he could see through the windshield despite the windows being
tinted.

        Christopher Savage testified that he was acquainted with appellant and had been “real
[sic] good friends” with the victim. Mr. Savage testified that both appellant and the victim
had dated a woman named Amanda Crawford. Mr. Savage recalled being at a friend’s party
on October 25, 2008, which appellant, the victim, and Amanda Crawford also attended. Mr.
Savage testified that he witnessed “an altercation in the street between” appellant and the
victim. He explained, “[Appellant] . . . attempted to walk towards [the victim] with a gun
in his hand.” Mr. Savage said that appellant appeared angry and that he believed appellant
would have attempted to shoot the victim if Ms. Crawford and appellant’s brother had not
stopped him. According to Mr. Savage, he could not hear anything said by either appellant
or the victim, but the area was well-lit. He said that appellant’s gun was “black and gray”
and was either a .380 caliber or 9mm. Mr. Savage testified that after Ms. Crawford and
appellant’s brother broke up the altercation, Ms. Crawford and appellant walked back to the
house, and the victim stayed by his vehicle.

       On cross-examination, Mr. Savage said that when Ms. Crawford was breaking up the
altercation, she asked appellant what he was doing and that appellant replied, “‘[O]h, so you
fixing [sic] to save him[;] you [sic] taking up for him . . . .’” Mr. Savage said that he tried
to make peace between appellant and the victim afterwards, but no one said anything. They
went their separate ways at that point. Mr. Savage testified that the victim typically drove
a maroon Caprice but also owned a blue Crown Victoria.

       Metro Nashville Police Department (“MNPD”) Lieutenant Frank Ragains investigated
the crime scene in this case. He testified that there were blood drops on Ms. McLemore’s
car and that a blood trail led from her car through a car wash bay to the victim’s body. There
were also drag or burn marks that showed where the victim “had been hit and was carried by
a vehicle.” The State admitted photographs of the crime scene and the crime scene diagram
through Lieutenant Ragains’ testimony. On cross-examination, Lieutenant Ragains testified
that he recovered two spent 9mm casings and one live 9mm round from the scene.

       Lynn Mace, a crime scene investigator for the MNPD, testified that she processed the
gold/tan Trailblazer found at the crime scene for evidence. She lifted fingerprints, which
were compared by another individual, and she collected papers that had appellant’s name on
them, including a pay stub and a social security card. She did not recall finding any papers




                                              -4-
bearing the names Eric French, Jonathan French,3 or Leangelo Ramey. Felicia Evans, also
a crime scene investigator, testified that she attempted to lift fingerprints from the shell
casings found at the scene but was not successful. MNPD fingerprint examiner Larry
Farnow testified that he compared fingerprints collected from the tan Trailblazer with known
fingerprints of appellant and Leangelo Ramey. The fingerprints matched those of appellant.

       Tennessee State Trooper Kasey Fitts testified that in November 2008, he was
employed by the Millersville Police Department. In that capacity, he was dispatched to a
vehicle fire on I-65 North near mile marker 100 on November 16, 2008. He arrived at 8:07
p.m. and observed a Ford Crown Victoria “fully engulfed in flames.” He ran the vehicle tag
number and learned that the vehicle had been listed as stolen. The fire department
extinguished the fire, and the vehicle was towed away.

        Retired MNPD Detective Johnny Lawrence testified that he processed the victim’s
“burned out vehicle” for evidence. He collected fingerprints, “but they were not good
quality.” He also swabbed the door handles for DNA evidence. Detective Lawrence said
that he “[c]ollected some possible human tissue . . . from the right rear wheel area.” He also
found blood on the underside of the vehicle.

       MNPD Detective Warren Fleak testified that he executed a search warrant at a
residence on East Marthona Road that was associated with appellant. He recovered a non-
functional Larsen .380 semi-automatic pistol, a Colt Cobra .38 special revolver, and a
Glynnfield model 778 12-gauge shotgun from the residence. The .38 special and the shotgun
were both loaded. Detective Fleak also recovered additional ammunition: .38 special rounds,
12-gauge rounds, and .32 auto rounds.

        Tennessee Bureau of Investigation (“TBI”) Special Agent and forensic scientist Shelly
Betts testified as an expert in firearms and toolmark identification. She compared the fired
bullets from the crime scene with firearm evidence recovered from East Marthona Road and
Banberry Drive (residence of co-defendant Ramey’s mother). She said that the 9mm
ammunition collected from Banberry Drive were from a different manufacturer than the
ammunition recovered at the crime scene and that the one fired cartridge case from Banberry
Drive did not have the same markings as ammunition from the crime scene. Agent Betts also
said that the fired cartridge cases from the crime scene had not been fired from any of the
firearms collected at East Marthona Road. Agent Betts testified that the 9mm cartridge cases
found at the crime scene had been fired from the same weapon and that “the markings that
were found on those cartridge cases are typical of what we see when a cartridge is fired in



       3
           The record indicates that Jonathan French is also known as Eric French.

                                                   -5-
a Highpoint firearm.” The unfired 9mm cartridge from the crime scene was from the same
manufacturer and was the same type as the fired cartridges from the crime scene.

       MNPD Officer William Stewart testified that he spoke to appellant at the crime scene
on November 16, 2008. Officer Stewart said that appellant approached him to ask when he
would be able to recover his mother’s car, which was inside the crime scene. Appellant also
told Officer Stewart that he knew the victim and that the victim’s car was across the street.
However, the car to which appellant pointed was not a blue Crown Victoria. Officer Stewart
could not recall the make and model of that car.

        On cross-examination, Officer Stewart said that he spoke with the people inside the
car to which appellant had pointed, whom he learned were the victim’s mother and girlfriend.
They showed him paperwork indicating that the car was owned by the victim. Officer
Stewart agreed that the car might have been a burgundy Caprice.

       MNPD Detective Curtis Hafley testified that he was dispatched to the crime scene on
November 16, 2008. Subsequently, he went to the residence of appellant’s parents on Forrest
Avenue to ascertain the location of a Chevrolet Suburban. He explained that he “was just
going simply to find” the vehicle and that he had no other information about it. While at the
residence, Detective Hafley spoke with appellant’s parents. They called appellant, and
Detective Hafley spoke with appellant by telephone. Detective Hafley returned to the scene
and spoke with appellant in person at the parking lot across the street from the car wash.
Appellant told Detective Hafley that he had driven the Trailblazer earlier that day but that he
had exchanged vehicles with his brother because his brother had planned to wash the
Trailblazer. Appellant said that the vehicle exchange took place on Andy Street, at a house
where appellant was going to have his hair styled. Appellant further stated that after he left
the house on Andy Street, he received a telephone call about the Trailblazer. Detective
Hafley said that he found it unusual that appellant was not wearing a jacket that day because
“[i]t was the coldest day of the year.” He also recalled commenting to appellant that
appellant had not stayed to get his hair styled “because his hair was not freshly fixed.”
Detective Hafley said that the Trailblazer did not appear to have been recently washed.

       MNPD Detective Paul Harris testified that he was the lead investigator in this case.
He said that while he was at the crime scene, he was told that a 9-1-1 caller had “notified
dispatch that the persons responsible for this had arrived in a gold Chevy [T]railblazer.” He
also testified that the victim had called 9-1-1 himself. The following day, the victim’s car
was discovered by the Millersville Police Department, and Detective Harris had the vehicle
brought to Nashville. Detective Harris testified that during the course of his investigation,
he developed appellant as a suspect. He said that he showed a photographic lineup to Ms.
McLemore, who identified appellant’s photograph.

                                              -6-
       Detective Harris interviewed appellant on November 25, 2008, outside of the East
Marthona residence. Appellant told him that on the day of the victim’s murder, he had driven
his brother’s Expedition because his brother had taken the Trailblazer that appellant typically
drove. Appellant did not mention a vehicle exchange. Appellant also said that he had gotten
his hair braided at a location on Riverside Drive. While at the Riverside Drive location,
appellant said that he received a call from James Crawford on a friend’s telephone informing
him that his Trailblazer was inside a crime scene. Appellant explained that he had left his
cellular telephone at his Forrest Avenue house and that his telephone was in the same place
when he returned home as it was when he left. He told Detective Harris that he spoke with
his brother, Jonathan French, once on November 16, while Jonathan French was driving to
a restaurant. Appellant said that the last time he had seen the victim was at James
Crawford’s birthday party and that appellant had an altercation with Christopher Savage at
the party. Appellant denied having a gun at Mr. Crawford’s party and said that he did not
“own a gun . . . [had] never even touched a gun in his life.”

        Detective Harris testified that he interviewed appellant again at the East Marthona
address on May 19, 2009. Sergeant Postiglion was also there and did the majority of the
questioning. In that interview, appellant was asked whether anyone had borrowed his
cellular telephone on the day of the murder, and appellant responded that no one else used
his telephone. The recording of the May 19 interview was played for the jury. In the
recording, the police officers told appellant that his cellular telephone “ping[ed] off a tower”
in Millersville, where the victim’s car was found. Detective Harris testified that the police
had obtained appellant’s cellular telephone records via a subpoena, and the State introduced
those records, along with the telephone records of the victim, Amanda Crawford, and
Jonathan French, into evidence.

        On cross-examination, Detective Harris testified that the police searched two locations
associated with co-defendant Leangelo Ramey, one of which was Banberry Drive, where the
police found twenty 9mm live rounds and one 9mm cartridge casing. Regarding the weapons
found at appellant’s East Marthona residence, Detective Harris testified that he knew before
the search that weapons would be in the house and that he had been told by numerous people
that appellant was “frequently armed and carrie[d] firearms.” However, he agreed that the
weapons found at East Marthona were not registered to a particular person.

       On re-direct examination, Detective Harris recalled that Amanda Crawford told him
that appellant pulled a gun on the victim at James Crawford’s party. He could not remember
whether James Crawford and Christopher Savage had also seen the gun. Regarding the
victim’s 9-1-1 call, Detective Harris testified that he obtained a recording of the call by
recording it himself while the communication center played their recording for him over the
telephone.

                                              -7-
        On recross-examination, Detective Harris agreed that the victim told the 9-1-1
dispatcher, “‘[S]omebody just stole my car and robbed me at gun point.’” He further agreed
that the victim gave “additional address and car information,” then said, “‘[H]old on, now
he [sic] pulling back in the parking lot[;] they [sic] playing with me, man, just send the
police.’” Finally, Detective Harris agreed that the victim did not mention the name of the
person who had taken his car.

        TBI Agent Michael Frizzell testified as an expert in the field of communication
records in criminal investigations. He explained that “pinging” means that a cellular
telephone registers with a network by transmitting a paging signal to the network so that the
network knows the location of the telephone. This information allows the network to use the
cellular site closest to the telephone to communicate with that telephone. Agent Frizzell said
that a cellular telephone will ping if, for example, a call is made or received, a text message
is sent or received, or if a smartphone application updates itself. However, sometimes the
networks will “load shift[]” during high-volume periods by sending the signal to the next-
closest tower. Agent Frizzell testified that he reviewed telephone records associated with
appellant, Amanda Crawford, and Jonathan French and prepared a synopsis of the calls
between appellant’s telephone and the other two. In particular, the State pointed out calls
from appellant to Amanda Crawford at 12:59 p.m. and 10:17 p.m., calls from appellant to
Jonathan French at 2:22 p.m. and 5:19 p.m., and calls from Jonathan French to appellant at
10:46 a.m. and 2:16 p.m. On cross-examination, Agent Frizzell admitted that he did not
know who had possession of appellant’s telephone on the day of the murder. He
acknowledged that appellant’s telephone records indicated that his telephone called numbers
that later testimony showed belonged to Montez Jennings and Mr. Jennings’ girlfriend.

        David Kline, an employee with the Metropolitan Planning Department’s mapping
division, testified that he prepared several maps for the State showing locations of interest
in this case. In particular, he plotted on a map the locations of Carl’s Car Wash, the victim’s
burning car, and cellular towers pinged by appellant’s telephone. He said that he plotted the
cellular towers based on appellant’s telephone records and information in a database
regarding the location of cellular towers. According to the information he received,
appellant’s cellular telephone pinged a tower near where the victim’s burning car was found
at the following times: 5:42:01 p.m.; 8:03:22 p.m., 8:10:34 p.m., and 8:11:36 p.m. Mr. Kline
also plotted the towers pinged by Jonathan French’s telephone. Jonathan French’s telephone
pinged the tower near where the victim’s burning car was found at the following times:
5:53:02 p.m., 5:53:28 p.m.; 5:55:15 p.m.; 5:58:55 p.m.; and 5:59:29 p.m.

      Montez Jennings testified that he had known co-defendant Leangelo Ramey since he
was ten or eleven years old and that he did not know appellant. Mr. Jennings said that
Ramey told him “that he robbed a guy, he shot him[,] and he ran him over[,] and he burned

                                              -8-
his car.” Mr. Jennings testified that Ramey also showed him a weapon, which he described
as a smaller caliber, all-black gun. He believed it “was like a .9 millimeter or something.”
He said that around the time of the victim’s murder, Ramey had shoulder-length dreadlocks
and drove a white Dodge Dynasty.

         On cross-examination, Mr. Jennings said that Ramey came to his apartment the day
after the victim’s murder. Ramey “told [him] about the incident at the car wash” and showed
him a weapon. After that conversation, Mr. Jennings made him leave the apartment. While
they were outside of the apartment, Ramey repeated his story. Mr. Jennings had no contact
with Ramey after that day except for seeing him briefly at a shopping mall. Mr. Jennings
said that he was not afraid of Ramey but “was scared of the whole situation.” He said, “[A]ll
I know is that he told me that he killed someone.” He stated that Ramey had been “kind of
. . . crazy” when they were growing up and that he had “[m]ood swings and . . . real erratic
behavior.” He had never known Ramey to carry weapons, however. Mr. Jennings did not
recall whether Ramey called him the night of November 16, 2008, but he acknowledged that
the records shown to him by defense counsel displayed calls to his telephone number and to
his girlfriend’s telephone number.

        Keyosha Blair testified that she had a son with appellant. She stated that she did not
know appellant in November 2008 and that they met sometime in 2009. She said that after
he was incarcerated, they continued to communicate, mostly about their child. Ms. Blair
testified that appellant asked her “to say that he was with [her] at the time” of the victim’s
murder, despite her not having met him yet. Ms. Blair identified a letter that she said
appellant sent her from jail in which appellant told her to say that she was with him while he
was getting his hair braided and that he picked her up in an Expedition.

       TBI Special Agent Jennifer Shipman analyzed several exhibits in this case for DNA.
She testified that the four swabs from underneath the victim’s car were positive for the
presence of blood. Further testing of one of the swabs revealed DNA that matched the
victim’s DNA.

       Leangelo Ramey, appellant’s co-defendant, testified as a witness for the State. He
said that he had known appellant for more than a year prior to the victim’s murder. He
described appellant as a friend and said that appellant helped him find work. Ramey testified
that he spent the night on November 15-16, 2008, at appellant’s house, which was located
on a street beginning with the letter “M” in the Madison area. Ramey said that appellant
picked him up on November 15 in a brown, four-door sedan.

       Ramey said that the next day, he asked appellant for a ride to a friend’s house. Ramey
said that they left appellant’s house in appellant’s Trailblazer. Instead of taking Ramey to

                                             -9-
his friend’s house, however, appellant stopped at a car wash off Gallatin Pike. Ramey
testified that appellant parked next to the car wash, not inside one of the wash bays, and left
the vehicle. Ramey said that appellant did not tell him why they had stopped. He waited for
appellant to return, but after “a little while,” he got out of the vehicle to look for appellant.
Ramey said that he first went to the back of the car wash and then to the front. He did not
see appellant at first. Instead, he saw a blue car pass him that had “a lot of soap on it.” He
testified that he could not tell who was driving the blue car. Fifteen to twenty seconds later,
he heard two gunshots and then “a big vroom . . . like just a loud roar of a car.” Ramey said
that he started moving toward the back of the car wash when he saw “the vehicle and [saw]
a body rolling from . . . up under the vehicle coming [his] way full speed.” Ramey testified
that he saw appellant in the driver’s seat. Appellant drove away from the car wash “up
towards Dozier.” Ramey said that at that point, he was in “a state of panic,” so he walked
away from the car wash and went to his friend’s house.

       Ramey testified that he stayed at his friend’s house for a time, then he called appellant
from his friend’s telephone to ask for a ride home. Appellant told him “that he would get in
touch with [Ramey] when . . . he [got] a chance.” Ramey explained that he called appellant
because he was the only person who would give him a ride. When appellant picked him up,
appellant was driving the brown sedan he had driven the previous day. On the way to the
home of Ramey’s girlfriend, appellant gave Ramey a cellular telephone that Ramey assumed
was his.

        Later, appellant called Ramey on that telephone from a number Ramey believed was
that of appellant’s brother. In that conversation, appellant asked Ramey to do something for
him but did not elaborate. Ramey drove his own car to appellant’s house in the Madison
area. When he arrived, appellant told him “to go pick up the car” at a particular apartment
complex. Ramey explained that “the car” was “the blue car from the car wash.” Ramey
found the blue car and began driving it towards where appellant wanted him to go, but he got
lost. He called appellant, who told him that he would “be there in a minute.” Appellant
arrived and gave him directions to the interstate. Ramey said that he drove onto the interstate
and headed away from Nashville. Ramey testified that he called appellant “a couple of
times” to tell appellant that he did not know where he was going. Appellant told him,
“‘[J]ust drive[.]’” Eventually, Ramey pulled over to the side of the road, and appellant came
to pick him up. At that point, appellant was driving a white SUV that Ramey believed
belonged to appellant’s brother. Appellant took Ramey back to Ramey’s car. Ramey
testified, “[T]hat’s the time when he told me I need to get rid of the car.” Ramey said that
appellant specifically told him to burn the car. After appellant dropped him off at his car,
Ramey obtained a gasoline can and gasoline, then drove back to the blue car. He poured the
gasoline in the car and lit it on fire. Ramey said that he drove away but had to call appellant
several times for directions. He met appellant to return appellant’s telephone.

                                              -10-
       Ramey testified that he continued to spend time with appellant after November 16 but
not as often. Ramey recalled that appellant asked him not to tell anyone anything. Every
time he saw appellant thereafter, appellant asked him whether he had talked to the police. He
said that appellant’s brother was with appellant once when appellant asked Ramey about
talking to the police. When the police contacted Ramey, he did not tell them anything at first.
The second time he spoke with the police, Ramey told them that he had been at the car wash
with appellant but that he had not seen anything. He admitted that he did not tell them the
truth but stated that he was afraid that he would “end up like [the victim].” Ramey said that
he never called Montez Jennings on November 16, 2008, did not visit Mr. Jennings the next
day, and did not show Mr. Jennings a gun at any point. Ramey testified that he did not
remember the clothing that he and appellant were wearing the day of the murder but recalled
that he wore his hair in dreadlocks and that appellant wore his hair in cornrow braids. He
remembered that appellant was wearing a black hairnet-like cap.

        On cross-examination, Ramey testified that his mother lived on Banberry Drive and
that he might have had possessions stored at her house. He denied that the 9mm bullets
found at that address were his. Ramey said that he did not have a cellular telephone when
he was at the car wash. When asked whether he had made any “deals” with the State, Ramey
said that he had not. However, he agreed that he signed an immunity agreement with the
State whereby his testimony at appellant’s trial would not be used against him. Ramey
testified that he burned the car for appellant because he believed that he would be “dealt with
if [he] said anything or [if] [he] didn’t cooperate with [appellant].” He further testified that
he was not afraid of appellant because he did not do anything to make appellant mad. On re-
direct examination, Ramey clarified that his charges were still pending and that he would be
tried for first degree murder and especially aggravated robbery.

       The State next presented information about the victim’s 9-1-1 call. The custodian of
records for the Nashville Emergency Communication Center testified that the center’s
recording of the victim’s call had been purged from their system, pursuant to their standard
practice, in January 2012. The victim’s mother testified that she had listened to a 9-1-1
recording and identified the victim’s voice on it. The 9-1-1 recording, apparently the same
recording made by Detective Harris, was played for the jury.

        Deputy Chief Medical Examiner Dr. Adele Lewis testified that she performed the
victim’s autopsy and determined that his “cause of death was a gunshot wound to the torso
and multiple blunt force injuries.” She specified that the bullet entered the left side of the
victim’s chest and exited on the right side, breaking three ribs and going through his heart,
right lung, and liver. Dr. Lewis testified that the victim had many scrapes and bruises, “some
bleeding in the deep soft tissues of the scalp,” and “very severe pelvic fractures.” Dr. Lewis
explained that the victim’s “bones in the front of the pelvis were broken and separated from

                                              -11-
each other, as were both of the bones in the lower part of the back broken and separated from
each other.” She opined that “a great deal of force” was required to cause the pelvic
fractures. Dr. Lewis described the abrasions to appellant’s lower back and buttocks as “road
rash.” In addition, the victim had an injury to his abdomen that “might [have] been a burn.”
Using autopsy photographs — Exhibits 41A-H — and a photograph from the crime scene
— Exhibit 7C, Dr. Lewis described the victim’s various injuries to the jury. Following her
testimony, the State rested its case.

       Amanda Crawford testified on behalf of appellant. She said that he did not pull a gun
on the victim during the party in October 2008 and that she would have been the only person
close enough to see if he had. Ms. Crawford admitted that she had seen appellant with a gun
during a New Year’s Eve celebration, when “everybody was shooting” guns at midnight.

       On cross-examination, Ms. Crawford testified that she dated the victim for “a couple
[of] months” but had been in a relationship with appellant “off and on” since she was sixteen
years old. Ms. Crawford agreed that when Detective Harris interviewed her on November
18, 2008, she initially told him that appellant did not pull a gun on the victim at the party but
later admitted that he had done so. Ms. Crawford further agreed that she told Detective
Harris that appellant “carrie[d] a gun quite often.” Regarding appellant and his brother, Ms.
Crawford agreed that she told Detective Harris that she had never known appellant’s brother
to drive appellant’s vehicle nor appellant to drive his brother’s vehicle without his brother
also being in the vehicle.

       Jonathan Eric French, appellant’s brother, testified that on November 16, 2008, he
went to his parents’ house on Forrest Avenue to pick up the family’s Trailblazer, which he
said was silver, so he could clean it. He took it to Carl’s Car Wash and parked it on the side.
He recalled seeing a vehicle leave that still had soap on it. Jonathan French also heard
gunshots, so he left the car wash and went to AutoZone to purchase a car part. However, the
store did not have the part he wanted. When he tried to go back to the car wash, it had been
cordoned off. Eventually, he was taken to the police precinct for questioning. He said that
the police began questioning him at 3:00 or 4:00 p.m. and that the questioning lasted four to
six hours. After the police took him home, he went back to the crime scene with his parents
and stayed until the Trailblazer was towed. He said that he did not have his cellular
telephone with him that day.

       On cross-examination, Jonathan French said that he did not see how his interview
could only have lasted “one hour and [fifty-seven] minutes and [thirty] seconds,” which was
the length alleged by the State. When asked whether it would surprise him if Detective
Harris had watched the surveillance video from AutoZone and never saw him in the store,
Jonathan French said, “I’m pretty sure he’d seen me if he pulled it.”

                                              -12-
       Mary French, appellant’s mother, testified that the police came to her house on
November 16, 2008, but never told her why. While the officers were there, appellant called
her. The police talked to appellant over the telephone. Mrs. French went with her husband
and Jonathan French to Gallatin Pike between 5:30 and 6:00 p.m. On cross-examination,
Mrs. French said that she owned houses on Forrest Avenue and Marthona Road and that her
sons sometimes stayed at Marthona Road and sometimes at Forrest Avenue. She could not
recall whether appellant or Jonathan French were at her house on Forrest Avenue when she
awoke on November 16, 2008.

        Archie French, II, appellant’s brother, testified that on November 16, 2008, two police
officers came to his mother’s house looking for appellant. The officers learned that appellant
was at a tobacco store across the street from the car wash, so Archie French met appellant
at the tobacco store “a little bit before 4:30.” Archie French said that he and appellant waited
there until the Trailblazer was towed.

        On cross-examination, Archie French said that when Jonathan French and their
parents arrived, he and appellant went to get a digital camera from Archie French’s house,
to get batteries for the camera, and then back to his house to charge the camera when they
could not find appropriate batteries. They returned to the crime scene, and he took
photographs of the area. He agreed that he had never told anyone that he knew where
appellant was the entire afternoon. After Archie French’s testimony, the defense rested.

       The State recalled Detective Harris as a rebuttal witness. He said that he had reviewed
the videotaped interview with Jonathan French and found that the timestamp indicated the
interview lasted one hour and fifty-seven minutes. Detective Harris stated that the videotape
represented the full extent of Jonathan French’s questioning. Detective Harris testified that
Jonathan French told him during that interview that he had gotten in the wrong line at the
auto parts store, so he left rather than wait in another line.

       Detective Hafley also testified as a rebuttal witness. He said that he transported
Jonathan French from the police precinct to his home and that he recorded the entire
interaction. He “timestamp[ed]” the end of the recording by stating the time he dropped off
Jonathan French, which was 6:12 p.m.

       After the close of proof and deliberations, the jury found appellant guilty of first
degree premeditated murder, first degree felony murder, and especially aggravated robbery.
He received life sentences for the murder convictions, and the trial court sentenced him to
a concurrent sentence of twenty-one years for his especially aggravated robbery conviction.




                                              -13-
                                          II. Analysis

                               A. Sufficiency of the Evidence

       On appeal, appellant contends that the evidence was insufficient to support his
convictions. Specifically, he argues that there was no physical evidence to connect him with
the crimes and that the State’s witnesses were unreliable. The State responds that the
evidence was sufficient. We agree with the State.

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

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




                                              -14-
       The jury convicted appellant of premeditated murder. Tennessee Code Annotated
section 39-13-202(a)(1) defines this category of first degree murder as “[a] premeditated and
intentional killing of another.”

       “[P]remeditation” is an act done after the exercise of reflection and judgment.
       “Premeditation” means that the intent to kill must have been formed prior to the
       act itself. It is not necessary that the purpose to kill pre-exist in the mind of the
       accused for any definite period of time. The mental state of the accused at the
       time the accused allegedly decided to kill must be carefully considered in order
       to determine whether the accused was sufficiently free from excitement and
       passion as to be capable of premeditation.

Id. § 39-13-202(d). In reviewing the sufficiency of the evidence, we must determine whether
the State established the element of premeditation beyond a reasonable doubt. See State v.
Sims, 45 S.W.3d 1, 7 (Tenn. 2001); State v. Hall, 8 S.W.3d 593, 599 (Tenn. 1999). The
presence of premeditation is a question of fact for the jury, and the jury may infer
premeditation from the circumstances surrounding the killing. State v. Young, 196 S.W.3d
85, 108 (Tenn. 2006); State v. Suttles, 30 S.W.3d 252, 261 (Tenn. 2000); State v. Pike, 978
S.W.2d 904, 914 (Tenn. 1998).

        A defendant’s “state of mind is crucial to the establishment of the elements of the
offense”; thus, the State may prove premeditation by circumstantial evidence. State v. Brown,
836 S.W.2d 530, 541 (Tenn. 1992). Several factors support the existence of premeditation
including: “the use of a deadly weapon upon an unarmed victim; the particular cruelty of the
killing; declarations by the defendant of an intent to kill; evidence of procurement of a
weapon; preparations before the killing for concealment of the crime, and calmness
immediately after the killing.” Bland, 958 S.W.2d at 660 (citing Brown, 836 S.W.2d at 541-
42; State v. West, 844 S.W.2d 144, 148 (Tenn. 1992)).

        Appellant was also convicted of especially aggravated robbery and felony murder. For
the felony murder count, the State had to establish that the victim was killed in the course of
a robbery. Tenn. Code Ann. § 39-13-202(a)(2). Especially aggravated robbery is defined as
“the intentional or knowing theft of property from the person of another by violence or putting
the person in fear” that is “[a]ccomplished with a deadly weapon[ ] and [w]here the victim
suffers serious bodily injury.” Tenn. Code Ann. §§ 39-13-401, -403.

       Viewed in the light most favorable to the State, the evidence presented at trial showed
that appellant, accompanied by Leangelo Ramey, drove to Carl’s Car Wash on Gallatin Pike,
where he stole the victim’s car. He left the car wash initially, but then he returned and shot
the victim. After he shot the victim, appellant ran over the victim with the victim’s own car.

                                               -15-
Appellant drove off in the car and later had Ramey drive the car away from Nashville and
burn it. Multiple witnesses saw the victim’s car being driven over him. Kimberly McLemore
saw the victim speaking with appellant immediately before the gunshots, and she identified
appellant in a photographic lineup shown to her within days of the murder. While Ramey did
not actually see appellant shoot the victim, he testified that appellant was in the driver’s seat
of the victim’s car when the victim was run over. Ramey further testified in detail about
burning the victim’s car at appellant’s behest. Other witnesses testified about appellant’s
motive. Amanda Crawford testified that she had dated both men and that the men had an
altercation at a party in the weeks before the victim’s murder. While she denied seeing
appellant with a gun the night of the party, Detective Harris testified that Ms. Crawford had
admitted to him during an interview that appellant had a gun that night. In addition,
Christopher Savage testified about the same altercation and seeing appellant with a gun that
night.

         Appellant’s argument regarding the credibility of the witnesses is without merit. All
witnesses were thoroughly cross-examined, and the jury assessed the testimony and evidence
at trial. We will not substitute our own inferences drawn from the evidence for those drawn
by the jury, nor will we re-weigh or re-evaluate the evidence. Dorantes, 331 S.W.3d at 379.
Moreover, it was within the purview of the jury to convict appellant based on the witnesses’
testimonies, despite a lack of physical evidence connecting appellant to the victim’s murder.
See State v. Jeremy Stevenson, No. W2011-02053-CCA-R3-CD, 2013 WL 587313, at *12-14
(Tenn. Crim. App. Feb. 13, 2013), no perm. app. filed. Appellant’s shooting the victim and
then running over him combined with the history between the men supports appellant’s
conviction for first degree premeditated murder. As the victim’s car was also stolen, we
conclude that the evidence was sufficient to support appellant’s conviction for first degree
felony murder and especially aggravated robbery. We note that the two murder convictions
are alternate theories for the same offense, however, and the trial court should have merged
them. See State v. Addison, 973 S.W.2d 260, 267 (Tenn. Crim. App. 1997). Therefore, while
we conclude that the evidence was sufficient to support all three convictions, we must remand
the case for the trial court to merge the two murder convictions.

                                          B. Waiver

        Appellant has presented four issues to this court that we now deem waived for failure
to include in his motion for new trial: (1) the trial court erred by admitting prior bad act
testimony; (2) the trial court erred by admitting a letter purportedly written by appellant; (3)
the trial court erred by admitting testimony regarding weapons found in appellant’s home; (4)
the assistant district attorney general committed prosecutorial misconduct during closing
arguments. See Tenn. R. App. P. 3(e). Moreover, we conclude that plain error review is not
proper because in light of the overwhelming evidence against the accused, none of the alleged

                                              -16-
errors would have “probably changed the outcome of the trial”; thus, consideration of the
alleged errors is not necessary to do substantial justice. State v. Adkisson, 899 S.W.2d 626,
641-42 (Tenn. Crim. App. 1994) (quoting United States v. Kerley, 838 F.2d 932, 937 (7th Cir.
1988)).

                                   C. Autopsy Photographs

        Appellant challenges the trial court’s admission of three photographs depicting injuries
of the victim (Exhibits 7C, 41F, and 41G) as unnecessarily gruesome and prejudicial. The
State responds that the trial court did not abuse its discretion in admitting the photographs into
evidence. We agree with the State.

        Tennessee Rules of Evidence 401, 402, and 403 govern the admissibility of the
photographs in this case. See State v. Banks, 564 S.W.2d 947, 949-51 (Tenn. 1978). First,
a witness with knowledge of the facts must verify and authenticate a photograph before it can
be admitted into evidence. Id. at 949. Next, a trial court must first determine whether the
photograph is relevant. Id.; see Tenn. R. Evid. 401. Irrelevant evidence is inadmissible.
Tenn. R. Evid. 402. If the evidence has “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,” it is relevant. Tenn. R. Evid. 401. Once it determines that
a photograph is relevant, the trial court must then determine whether the probative value of
the photograph is substantially outweighed by the danger of unfair prejudice. See Tenn. R.
Evid. 403; Banks, 564 S.W.2d at 950-51. “Unfair prejudice” is “‘[a]n undue tendency to
suggest decision on an improper basis, commonly, though not necessarily, an emotional one.’”
Banks, 564 S.W.2d at 951 (quoting Fed. R. Evid. 403, Adv. Comm. Note). Furthermore,

       A trial court should consider: the accuracy and clarity of the picture and its
       value as evidence; whether the picture depicts the body as it was found; the
       adequacy of testimonial evidence in relating the facts to the jury; and the need
       for the evidence to establish a prima facie case of guilt or to rebut the
       defendant’s contentions.

State v. Leach, 148 S.W.3d 42, 63 (Tenn. 2004) (citing Banks, 564 S.W.2d at 951).

       The decision whether to admit the photographs rests within the trial court’s sound
discretion, and we will not reverse the trial court’s determination absent a clear showing of
an abuse of that discretion. Banks, 564 S.W.2d at 949; see also State v. Dubose, 953 S.W.2d
649, 652 (Tenn. 1997); State v. Stinnett, 958 S.W.2d 329, 331 (Tenn. 1997). Tennessee courts
follow a policy of liberality in the admission of photographs in both civil and criminal cases.
See Banks, 564 S.W.2d at 949.

                                               -17-
       Autopsy photographs must never be used “solely to inflame the jury and prejudice them
against the defendant”and must be relevant to prove some material aspect of the case. Id. at
951 (citing Milam v. Commonwealth, Ky., 275 S.W.2d 921 (1955)). “Photographs of a corpse
are admissible in murder prosecutions if they are relevant to the issues at trial, notwithstanding
their gruesome and horrifying character, and photographs are not necessarily rendered
inadmissible because they are cumulative of other evidence or because descriptive words
could be used.” State v. Derek Williamson, M2010-01067-CCA-R3-CD, 2011 WL 3557827,
at *9 (Tenn. Crim. App. Aug. 12, 2011) (citing Collins v. State, 506 S.W.2d 179, 185 (Tenn.
Crim. App. 1973)).

       In this case, Dr. Lewis testified in a jury out hearing that the three photographs in
question would aid her in describing the victim’s injuries to the jury. In particular, during her
testimony before the jury, she said that the victim had “road rash” and that one of his injuries
might have been a burn. In the jury-out hearing, Dr. Lewis explained that the three
photographs in question illustrated those injuries. The trial court chose a group of eight
photographs in total from the autopsy photographs that it considered not to be particularly
gruesome. Exhibits 41F and 41G were from this group of photographs, and Exhibit 7C was
a crime scene photograph introduced during Lieutenant Frank Ragains’ testimony. For all
three photographs, the trial court ruled that the probative value was not substantially
outweighed by the danger of unfair prejudice. After reviewing the photographs and the
accompanying testimony, we conclude that the trial court did not abuse its discretion.
Appellant is without relief as to this issue.

                                       CONCLUSION

       Based on the record, the arguments of the parties, and the applicable law, we affirm
the judgments of the trial court. However, we remand this case to the trial court for entry of
an amended judgment noting the merger of the first degree murder convictions.


                                                      _________________________________
                                                      ROGER A. PAGE, JUDGE




                                               -18-
