            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                             Assigned on Briefs December 1, 2009

                 STATE OF TENNESSEE v. TARRENCE PARHAM

                 Direct Appeal from the Criminal Court for Shelby County
                         No. 06-00017    W. Otis Higgs, Jr., Judge




                    No. W2009-00709-CCA-R3-CD - Filed July 26, 2010


The defendant, Tarrence Parham, stands convicted of attempted second degree murder, a
Class B felony, and reckless aggravated assault, a Class D felony. The trial court sentenced
him as a Range II multiple offender to an effective sentence of twenty years in the Tennessee
Department of Correction. On appeal, the defendant challenges (1) the trial court’s
admission of his prior conviction of reckless homicide for impeachment purposes and (2) the
sufficiency of the evidence. Following our review of the parties’ briefs,1 the record, and the
applicable law, we affirm the judgments of the trial court as modified to reflect that the
defendant’s conviction for reckless aggravated assault is merged into his conviction for
attempted second degree murder.

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

J.C. M CL IN, J., delivered the opinion of the court, in which T HOMAS T. W OODALL and J OHN
E VERETT W ILLIAMS, JJ., joined.

Lance R. Chism (on appeal and at trial) and Claiborne Ferguson (at trial), Memphis,
Tennessee, for the appellant, Tarrence Parham.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Chris Lareau, Assistant District
Attorney General, for the appellee, State of Tennessee.



        1
           The defendant filed a reply brief in this matter, disputing the state’s contention that photographs
of the crime scene were not contained within the appellate record. We note that the appellate record does
include the crime scene photographs.
                                                OPINION

                                        Background
        In January 2006, a Shelby County grand jury indicted the defendant, Tarrence Parham,
for the attempted first degree murder of M.S.,2 a Class A felony, and the aggravated assault
of M.S., a Class C felony. The parties presented the following evidence at the July 14 to 17,
2008, trial.

        Shamika Nabors testified that on September 5, 2005, Labor Day, she was among a
group of people congregating outside their apartments at the Barron Brook Apartments in the
Orange Mound neighborhood of Memphis, Tennessee. The defendant, whom she called
“Black,” was also outside, and she heard him say that he was going to kill “these weak ho’s
and b----es[.]” At first she thought he was speaking to himself, but as she watched him, she
realized that he was looking at a man named Philemon, who was sitting in a windowsill in
the breezeway. Ms. Nabors pulled Philemon into her apartment and told him what the
defendant had said. Then, they returned outside, and Philemon resumed his seat on the
windowsill. Five to ten minutes after she and Philemon returned, the defendant walked away
and then returned. He raised a silver revolver and fired one shot down the breezeway and
two shots in the park area nearby. Ms. Nabors saw Philemon run down the breezeway
towards the laundromat and leave the apartments. Ms. Nabors testified that the defendant
fired the first shot toward a utility box. She later learned that her two-year-old daughter had
been near the box when the defendant began shooting. Ms. Nabors testified that she froze
when the defendant began shooting. After the last shot, the defendant left the apartments,
and M.S. ran for her mother. Ms. Nabors saw that the defendant had shot M.S. in the leg.
She did not know where M.S. was when she was shot, but she identified pictures of the green
box with blood on it. She identified the defendant as the shooter in a photographic lineup
when she gave her statement to police and in the courtroom during her testimony.

        Ms. Nabors testified that she did not see or hear anyone threaten or fight with the
defendant prior to the shooting. She did not see anyone else with a gun nor did she see
anyone “raise up their shirt at [the defendant.]” Ms. Nabors said that Philemon was neither
facing the defendant nor did he have his back to the defendant when the defendant began
firing, but after the first shot, Philemon ran away. She did not see a young man give the
defendant a gun. Ms. Nabors testified that no one shot back at the defendant. She recalled
that several of the men in the group were smoking marijuana, including Philemon, but she
did not hear the defendant say anything about the marijuana.



        2
          M.S. was eight years old at the time of the offense and eleven years old at the time of trial. It is
the policy of this court to refer to minor victims by their initials.

                                                     -2-
       On cross-examination, Ms. Nabors testified that there were approximately fifteen
people outside that day. She said that she had seen the defendant and Philemon together
before. She saw the defendant in a wheelchair several days before the shooting, but she said
he was not in a wheelchair that day. His leg was bandaged, and it was difficult for him to
run. Ms. Nabors testified that the defendant ran in the same direction as Philemon. She said
that Philemon did not live in the apartment complex.

       On re-direct examination, Ms. Nabors testified that she believed the defendant was
shooting at Philemon.

        Tosha Keller testified that on September 5, 2005, she and her family and friends were
gathered outside of her apartment preparing for a barbecue. A man named Philemon was
sitting in the window of an apartment unit, rolling a marijuana cigarette, when the defendant
approached him. Ms. Keller said that the defendant “said some things to Philemon.
Philemon just kept on doing what he was doing.” She heard another man tell the defendant
“that he couldn’t smoke the marijuana cigar.” Ms. Keller did not see anyone threaten or yell
at the defendant. The defendant walked down to the end of the apartment unit, but three to
five seconds later, he returned and began shooting. Ms. Keller was standing five feet away
from Philemon, and she believed that the defendant aimed at him. She testified that the
defendant fired one shot before Philemon began running away. The defendant chased after
him and fired two more shots. After Philemon and the defendant ran out of her sight, she
heard two more shots. Ms. Keller testified that the defendant fired a total of five shots, three
that she saw and two that she heard. Ms. Keller assumed that the defendant fired the shots
that she heard because no one was returning fire. She said that she did not see anyone else
with a gun that day. Ms. Keller testified that she remembered the gun being black, but she
agreed that her memory was better on the day of the shooting when she gave a statement to
the police that the gun was a chrome revolver.

        Ms. Keller testified that after the shooting, she and her neighbors were trying to find
the children that had been playing near the laundromat. She had seen M.S. running when the
shooting began, but M.S. went back to get Ms. Nabors’s two-year-old daughter, with whom
she had been playing. When the shooting was over, Ms. Keller saw M.S. walking towards
her carrying the two-year-old. M.S. said that she was hurting, and Ms. Keller realized that
she had been shot in the leg.

       Ms. Keller testified that the defendant moved into the apartment complex two to three
months prior to the shooting. She said that “it was chaos” after he moved in. She recalled
seeing him in a wheelchair, with casts on his legs, for a period of approximately two weeks.
Ms. Keller testified that on September 5, the defendant did not have casts and appeared able-
bodied. She said that she knew that someone had shot at the defendant’s apartment because

                                              -3-
she saw the bullet holes in the door the next day, but she did not testify as to what exact day
she saw the bullet holes.

        On cross-examination, Ms. Keller testified that she could not remember the color of
the gun. She remembered telling the police that she saw the defendant shoot once and then
heard another shot, but she believed that he shot more than twice. Ms. Keller said that she
saw another man walking with the defendant, but she did not know him. She said that the
man was not M.S.’s uncle. Ms. Keller clarified that she saw the bullet holes in the
defendant’s apartment door on September 6, 2005, the day after the shooting. She recalled
that there were seven to eight adults outside on September 5, and she did not remember how
many children were on the playground nearby.

       Sharon Williams testified that the defendant, whose nickname was “Black,” moved
into the Barron Brook apartment complex two to three months before the shooting on
September 5, 2005. On that day, she was outside with her neighbors when she heard the
defendant say “he [was tired] of them and he [was] going to kill him a mother f---ing n----r”
as he was walking towards the end of the apartment unit. Less than a minute later, the
defendant turned around and began shooting. Ms. Williams testified that he fired once,
chased after a young man, and fired twice more. She said the gun was a silver revolver. Ms.
Williams did not see anyone threaten the defendant nor did she see the young man who the
defendant chased ever lift up his shirt or draw a weapon.

        Ms. Williams said that someone shot at the apartment where the defendant was staying
one to two weeks before September 5, 2005. She heard him say that “[h]e had got into it
with some guys over there[,] and they had shot somebody else’s apartment up looking for
him.” A couple of nights before the September 5 shooting, the defendant was in a wheelchair
with soft casts on his feet. Ms. Williams had heard that the defendant was injured when he
jumped from a second story. Ms. Williams testified that the defendant said that he did not
care who he shot, “[h]e [would] kill your momma, your grandmomma, babies and kids,
because they don’t even have no [sic] business in the way whatsoever.” Ms. Williams
testified that on September 5, there were five to six people outside. She said that if Philemon
had drawn a weapon, she would have seen it.

       Kathy Smith testified that on September 5, 2005, she was standing in her doorway
while her neighbors were barbecuing outside. The defendant asked her for a cigarette. She
gave him one, which he lit. As he walked away, he said, “I’m sick of these b---h a---ed n-----
s. I’m going to kill me somebody today.” The defendant turned around and started shooting
as he walked by her. Ms. Smith told him to stop shooting because of all the children outside.
She started calling for her daughter. When she saw M.S., she was bleeding. M.S. said,
“[M]omma, I don’t want to die.”

                                              -4-
       Ms. Smith testified that her brother, Travis, was not at the apartment complex when
the defendant began shooting. He came later that day, after M.S. was in an ambulance. She
said that she did not see anyone threaten the defendant, raise up their shirts, or shoot back at
the defendant. Ms. Smith went to the hospital with M.S., where the doctors performed
surgery to remove a bullet from her left leg.

       On cross-examination, Ms. Smith testified that she did not know where the defendant
had gotten the gun. She said that he did not go into an apartment when he was walking away
from the crowd nor was he walking with anyone else. She saw the defendant fire two shots
before he went out of her sight. Ms. Smith said that he was limping.

        M.S. testified that she was eleven years old at the time of trial. On September 5, 2005,
she had been playing with Ms. Nabors’s two-year-old daughter. They were sitting on “the
green box” when she heard the shooting. She ran into the laundromat but then went back to
the green box and moved her friend out of the way. At that point, M.S. thought that she had
a seizure, which she defined as what happens when people are shaking. She began walking
towards her mother when she looked down and saw that she was bleeding. She went to the
hospital where doctors removed the bullet. M.S. said that she could run and play at the time
of trial.

       On cross-examination, M.S. said that she saw the shooter but did not see him well.

        Officer Parz Boyce, of the Memphis Police Department, testified that he was one of
the first officers to make the scene at the Barron Brook Apartments on September 5, 2005.
When he arrived, he saw a five or six-year-old girl3 lying on the steps with a bloody towel.
Officer Boyce said the girl told him that “Black” had shot her. He knew who “Black” was
based on his experience working in the neighborhood. Two other individuals also told him
that “Black” was the shooter and gave him descriptions of his clothing. Officer Boyce put
out a broadcast giving the name and description of the shooter. He and another officer taped
off the crime scene.

       On cross-examination, Officer Boyce testified that he knew the defendant as “Black,”
and the defendant was the only person he knew that went by that nickname. In the course
of gathering information, he learned that M.S. was not the intended victim, but he was unable
to ascertain who the intended victim was.




       3
           The record indicates that M.S. was eight years old at the time.

                                                    -5-
       The parties stipulated to the admission into evidence of a bloody towel, M.S.’s sandal,
and a pair of sunglasses collected by a crime scene officer at the Barron Brook Apartments.
They further stipulated to the admission into evidence of the bullet recovered from M.S.’s
leg.

        Officer Ravell Slayton, of the Memphis Police Department, testified that he made the
scene at the Barron Brook Apartments on September 5, 2005. He received information that
the shooter had fled on foot, wearing a red shirt and white shorts, and he left the scene to
search for the shooter. Officer Slayton learned that the shooter had jumped into a black
pickup truck. He located a suspicious black truck and pulled it over. The driver admitted
that he had dropped the shooter off at a laundromat at Lamar Avenue and Semmes Street.
Officer Slayton remained with the driver while his partner went to the laundromat. When
his partner returned, the defendant was in the backseat of the patrol car. Officer Slayton
identified a picture of the defendant wearing a red shirt and white shorts, with “old cast[s]”
around his ankles.

      Sergeant Vernon Vanburen, of the Memphis Police Department, testified that he
processed the crime scene at the Barron Brook Apartments. He did not find a weapon.

       The defendant testified that he had prior convictions for reckless homicide, theft over
$500, and aggravated burglary. He said that he moved to the Barron Brook Apartments one
and a half months before September 5, 2005. He moved there because he had “kin folks” in
the neighborhood, but some of the men in the apartment “had words” with him about staying
there when he was not from the neighborhood. The defendant testified that on either August
26 or 28, 2005, he broke both of his feet. The personnel at the Regional Medical Center gave
him temporary casts and pain medication. He had to use a wheelchair to get around. On
August 31, someone fired shots at his apartment. He filed a police report, but the police did
not find who did it. By September 5, 2005, he could walk but not run.

        The defendant testified that on that day, he was walking to his apartment when he saw
Philemon, one of the men with whom he had previously “had words” and who he believed
was responsible for shooting his apartment. The defendant said he “was already paranoid”
because of the August 31 incident. He claimed that he did not say anything about killing
anyone, but Philemon said that he “was going to kill one of these ‘B’s or H’s’ or something
like that.” The defendant asked him to whom was he speaking, and Philemon “jumped up”
and reached under his shirt. The defendant believed that Philemon was reaching for a
weapon, so he fired one shot towards him. The defendant said that he was not trying to kill
Philemon, but he was protecting himself. He explained that he immediately reacted, contrary
to the other witnesses’ testimony that several minutes passed. When Philemon ran away, the
defendant was afraid he would return, so he went to the laundromat at Lamar Avenue and

                                             -6-
Semmes Street because he knew the owners. He did not realize that he had shot anyone until
the police officer picked him up at the laundromat. The defendant admitted that he told the
police that he had thrown the gun into a garbage can on Semmes Street. He said that he
actually returned the gun to the person from whom he had gotten it, Kathy Smith’s brother,
Travis.

       On cross-examination, the defendant testified that Travis Smith 4 gave him the gun
approximately two hours prior to the shooting, and the defendant returned it to him
immediately after he fled from the scene. He said that he did not call the police to report that
he had shot at someone in self-defense because the police did not help him when he called
them about someone shooting at his apartment.

       The state called Travis Lloyd Alston as a rebuttal witness. Mr. Alston testified that
he was Kathy Smith’s brother. He said that he did not give the defendant a gun on
September 5, 2005. He further said that he would not have allowed the defendant to give
him the gun with which the defendant had shot his niece. Mr. Alston said that “[he] would
have retaliated” against the defendant. Mr. Alston knew the defendant only as “Black.” He
said that if they had been friends, he would have known the defendant’s full name.

       Following deliberations, the jury found the defendant guilty of the lesser-included
charges of attempted second degree murder, a Class B felony, and reckless aggravated
assault, a Class D felony. The trial court sentenced the defendant as a Range II multiple
offender to twenty years for the Class B felony concurrent with ten years for the Class D
felony, to be served in the Tennessee Department of Correction. The trial court denied the
defendant’s motion for new trial, and the defendant filed a timely notice of appeal.

                                               Analysis

                    I. Admission of Prior Reckless Homicide Conviction
        On appeal, the defendant argues that the trial court erred by admitting the defendant’s
prior reckless homicide conviction for impeachment purposes and that the error was
prejudicial. Furthermore, the defendant contends that the trial court’s failure to make explicit
findings requires this court to review the court’s ruling without deference. The state
responds that the defendant has failed to show that the trial court abused its discretion. We
agree with the defendant that the admission of the prior conviction was error but conclude
that the error was harmless in light of the evidence against the defendant.




       4
           We assume the defendant was referring to Travis Alston.

                                                  -7-
       We analyze whether a trial court erred in admitting prior convictions for impeachment
purposes under an abuse of discretion standard. State v. Waller, 118 S.W.3d 368, 371 (Tenn.
2003). “A trial court abuses its discretion only when it ‘appl[ies] an incorrect legal standard,
or reach[es] a decision which is against logic or reasoning that cause[s] an injustice to the
party complaining.’” Id. (citing State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999))

        Rule 609 of the Tennessee Rules of Evidence permits the defendant’s credibility to
be impeached by prior criminal convictions on cross-examination if certain conditions and
procedures are satisfied. The conviction must be for a crime (1) punishable by death or
incarceration in excess of one year, or (2) involving dishonesty or false statement. Tenn. R.
Evid. 609(a)(2). The state is also required to give reasonable written notice prior to trial of
the particular convictions it intends to use to impeach the defendant. Tenn. R. Evid.
609(a)(3). Before permitting the use of a prior conviction, the trial court must find that the
probative value of the conviction on the issue of credibility outweighs its unfair prejudicial
effect on the substantive issues. Id. Generally, convictions that are ten years old or more
cannot be used for purposes of impeachment. Tenn. R. Evid. 609(b). If the prior convictions
do not qualify under Rule 609(b)’s time limitation, the state has given adequate notice, and
the defendant has had the opportunity to contest the use of the convictions, then the trial court
must “determine[] in the interests of justice that the probative value of the conviction,
supported by specific facts and circumstances, substantially outweighs its prejudicial effect.”
Tenn. R. Evid. 609(b) (emphasis added). The trial court shall rule on the admissibility of the
prior conviction before the defendant testifies. Id. If the court rules that the prior conviction
is admissible to impeach, there is no requirement that the defendant testify at trial in order
to later challenge the court’s ruling on the admissibility of the prior conviction. Id.

         “The mere fact a prior conviction of the accused is identical or similar in nature to the
offense for which the accused is being tried does not, as a matter of law, bar the use of the
conviction to impeach the accused as a witness.” State v. Baker, 956 S.W.2d 8, 15 (Tenn.
Crim. App. 1997) (citations omitted). However, “[w]hen an impeaching conviction is
substantially similar to the crime for which the defendant is being tried, there is a danger that
jurors will erroneously utilize the impeaching conviction as propensity evidence of guilt and
conclude that since the defendant committed a similar offense, he or she is probably guilty
of the offense charged.” State v. Mixon, 983 S.W.2d 661, 674 (Tenn. 1999) (citations
omitted). Accordingly, trial courts should engage in a two-prong analysis when determining
if the probative value of the impeaching conviction is outweighed by its prejudicial effect.
Id. Trial courts are required to expressly (1) “analyze the relevance the impeaching
conviction has to the issue of credibility,” as well as (2) “assess the similarity between the
crime on trial and the crime underlying the impeaching conviction.” Id. (citations omitted).
If the trial court fails to engage in an explicit analysis under Mixon, then “the court’s decision
to admit or exclude a prior conviction is not entitled to deference by the reviewing court. .

                                               -8-
. [W]e must independently determine the admissibility of the prior impeaching conviction
based on the evidence presented.” State v. Lankford, 298 S.W.3d 176, 182 (Tenn. Crim.
App. 2008).

        In the case subjudice, the trial court ruled as follows:
        Now, I’m going to allow the State to ask [the defendant] about these three
        convictions,5 not as to the facts. But simply, are you the same [person] that
        was convicted on these matters.

                I must tell you for the record, and I want the record to properly reflect
        this. I don’t know what the reckless homicide is about.

               I’m simply ruling that he can be asked about a D-felony conviction of
        reckless homicide.

               I will charge the jury, as usual, that they are not to consider that
        conviction for purposes of determining his innocence or guilt in the case at
        trial.

                But reckless homicide does raise . . . the issue of [the jury] might [think]
        well, if he was convicted of reckless homicide in the past, he may very well be
        guilty of this.

               But I’m going to tell them not to do that. I don’t know how effective
        that charge is.

               But on its face, I’m going to allow [the state] to ask, without any inquiry
        into the facts.

              However, I’m going to reserve - - I’m going to listen carefully, and
        hopefully the defendant doesn’t open the door if he chooses to testify.

              But I’m going to allow him to be asked about those previous
        convictions.

The trial court did not make an explicit finding regarding the relevance of the reckless
homicide conviction to the defendant’s credibility nor did it assess the similarity between

       5
         The defendant does not challenge the admission of his prior convictions for theft over $500 and
aggravated burglary.

                                                  -9-
reckless homicide and the charged offenses, beyond merely acknowledging the possibility
that the jury would consider the conviction to be propensity evidence. Therefore, we
conclude that the trial court’s ruling is not entitled to deference by this court. See Lankford,
298 S.W.3d at 182.

        The defendant’s reckless homicide conviction was punishable by “imprisonment in
excess of one year,” his release from confinement occurred within ten years of the
commencement of the prosecution in this case,6 and the state gave reasonable notice of its
intent to impeach him with the conviction. See Tenn. R. Evid. 609(a)-(b). Under Mixon, this
court must determine whether the probative value of the conviction on the defendant’s
credibility outweighs the prejudicial effects by (1) “analyz[ing] the relevance the impeaching
conviction has to the issue of credibility,” as well as (2) “assess[ing] the similarity between
the crime on trial and the crime underlying the impeaching conviction.” Mixon, 983 S.W.2d
at 674.

        In this case, the defendant’s credibility was at issue because he testified in his own
defense; therefore, any evidence regarding his credibility was probative. However, the
defendant’s credibility was not crucial to the state’s case because of the nature of the
evidence against him. The state argues that reckless homicide is a crime of violence and, as
a violent felony, was probative of the defendant’s credibility. We decline, however, to
characterize reckless homicide as a crime of violence because it requires reckless conduct
rather than intentional or knowing conduct. See United States v. Portela, 469 F.3d 496, 499
(6th Cir. 2006) (holding that Tennessee’s vehicular assault statute, with the requisite mens
rea of recklessness, was not a crime of violence under the United States Sentencing
Guidelines). Because the defendant’s reckless homicide conviction was not a violent felony,
we decline to weigh it more heavily against his credibility than other non-violent felonies.

       In this matter, the charged offenses of criminal attempt to commit first degree murder
and aggravated assault were similar to the defendant’s prior conviction. Reckless homicide
is the “reckless killing of another” while first degree murder is the “premeditated and
intentional killing of another.” Tenn. Code Ann. §§ 39-13-202, -215. Criminal attempt
requires the defendant to act with the same culpability as the specific offense. Id. § 39-12-
101. The impeaching conviction and the charged offense of attempted first degree murder
are similar in that they are both offenses against the person involving the “killing of another.”
Id. §§ 39-13-202, -215. Aggravated assault is the intentional, knowing, or reckless
commission of an assault that causes serious bodily injury or is accomplished through the use
or display of a deadly weapon. Id. § 39-13-102. Assault, as relative to this case, is

        6
         The state’s notice of impeachment convictions lists the date of conviction as November 10, 1998.
The record does not reveal when the defendant was released from confinement.

                                                  -10-
intentionally, knowingly, or recklessly causing bodily injury to another. Id. § 39-13-
101(a)(1). Aggravated assault and reckless homicide are similar because they may involve
the same mental state and are offenses against the person. Because of the similarity between
the charged offenses and the defendant’s prior conviction, we conclude that “there [was] a
danger that jurors [would] erroneously utilize the impeaching conviction as propensity
evidence of guilt and conclude that since the defendant committed a similar offense, he . .
. is probably guilty of the offense charged.” Mixon, 983 S.W.2d at 674. Therefore, the trial
court committed error by admitting the prior conviction for impeachment purposes.

        Nonetheless, the trial court’s error was harmless. When undertaking a harmless error
analysis, this court must consider whether “an error more probably than not had a substantial
and injurious impact on the jury’s decision-making.” State v. Rodriquez, 254 S.W.3d 361,
372 (Tenn. 2008). Here, the trial court admonished the jury that the defendant’s prior
convictions were not evidence that he committed the charged offenses, and “the trial court’s
limiting instruction ‘provided an adequate safeguard against any potential prejudice possibly
engendered by the admission of the prior conviction.’” See Lankford, 298 S.W.3d at 182 (
quoting United States v. Moore, 917 F.2d 215, 234-35 (6th Cir. 1990)). Additionally, under
the facts and circumstances of this case, the admission of the prior conviction, more probably
than not, had a minimal impact on the jury’s decision-making because of the overwhelming
evidence against the defendant, including the testimony of four eyewitnesses. Therefore, we
conclude that the trial court’s error in admitting the prior conviction was harmless. The
defendant is without relief as to this issue.

                                  II. Sufficiency of the Evidence
        The defendant argues that the evidence was insufficient to support his convictions for
attempted second degree murder and reckless aggravated assault. Specifically, he contends
that the state failed to prove beyond a reasonable doubt that he was not acting in self-defense.
The state responds that the jury discredited the defendant’s theory of self-defense and that
the evidence was sufficient to support the defendant’s convictions.

        Our review begins with the well-established rule that once a jury finds a defendant
guilty, his or her presumption of innocence is removed and replaced with a presumption of
guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Therefore, on appeal, the
convicted defendant has the burden of demonstrating to this court why the evidence will not
support the jury’s verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000); State
v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). To meet this burden, the defendant must
establish that no “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); State v. Evans,
108 S.W.3d 231, 236 (Tenn. 2003); Tenn. R. App. P. 13(e). In contrast, the jury’s verdict
approved by the trial judge accredits the state’s witnesses and resolves all conflicts in favor

                                              -11-
of the state. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). The state is entitled to the
strongest legitimate view of the evidence and all reasonable inferences which may be drawn
from that evidence. Carruthers, 35 S.W.3d at 558; Tuggle, 639 S.W.2d at 914. Questions
concerning the credibility of the witnesses, conflicts in trial testimony, the weight and value
to be given the evidence, and all factual issues raised by the evidence are resolved by the trier
of fact and not this court. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). We do not
attempt to re-weigh or re-evaluate the evidence. State v. Reid, 91 S.W.3d 247, 277 (Tenn.
2002); Bland, 958 S.W.2d at 659. Likewise, we do not replace the jury’s inferences drawn
from the circumstantial evidence with our own inferences. See State v. Elkins, 102 S.W.3d
581, 582 (Tenn. 2003); Reid, 91 S.W.3d at 277.

        At trial, the state carried the burden of proving beyond a reasonable doubt that the
defendant did not act in self-defense because the defendant’s testimony fairly raised the
issue. See Tenn. Code Ann. § 39-11-203 (West 2005). At the time of the offenses, the
statute on self-defense provided, in relevant part:

       A person is justified in threatening or using force against another person when
       and to the degree the person reasonably believes the force is immediately
       necessary to protect against the other’s use or attempted use of unlawful force.
       The person must have a reasonable belief that there is an imminent danger of
       death or serious bodily injury. The danger creating the belief of imminent
       death or serious bodily injury must be real, or honestly believed to be real at
       the time, and must be founded upon reasonable grounds. There is no duty to
       retreat before a person threatens or uses force.

Id. § 39-11-603(a) (West 2005). The claim of self-defense is essentially a fact question for
the jury. See State v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997); State v. Clifton,
880 S.W.2d 737, 743 (Tenn. Crim. App. 1994); State v. Ivy, 868 S.W.2d 724, 727 (Tenn.
Crim. App. 1993).

       Second degree murder is “[a] knowing killing of another.” See Tenn.Code Ann. §
39-13-210(a)(1). A knowing act requires one to be “aware of the nature of the conduct” and
“aware that the conduct is reasonably certain to cause the result.” Id. § 39-11-302(b). “[A]
result-of-conduct crime does not require as an element that an actor engaged in a specified
course of conduct accomplish the specified result.” State v. Ducker, 27 S.W.3d 889, 896
(Tenn. 2000). Criminal attempt is statutorily defined as follows:

       (a) A person commits criminal attempt who, acting with the kind of culpability
       otherwise required for the offense:



                                              -12-
       (1) Intentionally engages in action or causes a result that would constitute an
       offense, if the circumstances surrounding the conduct were as the person
       believes them to be;

       (2) Acts with intent to cause a result that is an element of the offense, and
       believes the conduct will cause the result without further conduct on the
       person’s part; or

       (3) Acts with intent to complete a course of action or cause a result that would
       constitute the offense, under the circumstances surrounding the conduct as the
       person believes them to be, and the conduct constitutes a substantial step
       toward the commission of the offense.

Tenn. Code Ann. § 39-12-101. Whether the defendant “knowingly” attempted to kill the
victim is a question of fact for the jury. See State v. Inlow, 52 S.W.3d 101, 104-105 (Tenn.
Crim. App. 2000). Intent may be inferred by the trier of fact from the character of the assault
and from all the facts and circumstances surrounding the offense. See Inlow, 52 S.W.3d at
105 (quoting State v. Holland, 860 S.W.2d 53, 59 (Tenn. Crim. App. 1993)).

       To obtain a conviction for reckless aggravated assault the state had to prove that the
defendant recklessly committed an assault as defined below and caused serious bodily injury
to another; or used or displayed a deadly weapon. See Tenn. Code Ann. § 39-13-102(a)(A),
(B). A person commits assault who:

       (1) Intentionally, knowingly or recklessly causes bodily injury to another;

       (2) Intentionally or knowingly causes another to reasonably fear imminent
       bodily injury; or

       (3) Intentionally or knowingly causes physical contact with another and a
       reasonable person would regard the contact as extremely offensive or
       provocative.

Id. § 39-13-101(a)(1)-(3). A person acts recklessly “when the person is aware of but
consciously disregards a substantial and unjustifiable risk that the circumstances exist or the
result will occur.” Id. § 39-11-302(c). The disregard of the risk must “constitute[] a gross
deviation from the standard of care that an ordinary person would exercise under all the
circumstances as viewed from the accused person’s standpoint.” Id.




                                             -13-
        Reviewing the evidence in the light most favorable to the state, we conclude that the
evidence was sufficient to support the defendant’s convictions. The evidence revealed that
the defendant, by his own admission, intentionally fired a revolver at Philemon despite the
presence of a crowd of people. The state presented four eyewitnesses who saw the defendant
fire multiple shots and who testified that no one threatened the defendant. It was uncontested
that the defendant fired the shot that hit M.S. Under Millen v. State,7 a defendant is guilty
of first degree murder when he intentionally tries to kill one person but actually kills an
unintended victim. 988 S.W.2d 164, 168 (Tenn. 1999). This court has previously held that
the supreme court’s reasoning in Millen applies to attempted second degree murder when the
defendant attempts to kill one person but shoots another person. State v. Pulliam,
M2001-00417-CCA-R3-CD, 2002 WL 122928, at *5 (Tenn. Crim. App., at Nashville, Jan.
23, 2002). Under this theory of criminal liability, the evidence that the defendant fired at
Philemon was sufficient to support the defendant’s conviction for the attempted second
degree murder of M.S. because the defendant was aware or should have been aware that his
conduct in firing at Philemon could result in the killing of another “without further conduct
on [his] part.” Tenn. Code Ann. § 39-12-101(a)(2). Furthermore, the evidence that the
defendant fired multiple shots into a crowd of people, hitting M.S., was sufficient to support
the defendant’s conviction for reckless aggravated assault because the defendant was aware
or should have been aware that his conduct would result in serious bodily injury, but he
disregarded that risk, which was a gross deviation from the standard of care that an ordinary
person would exercise. The jury resolved any conflicts in testimony in favor of the state. See
Bland, 958 S.W.2d at 659.

        As for the defendant’s self-defense theory, the state presented the testimony of
witnesses who said that Philemon was not armed at the time of the shooting and that no one
threatened the defendant. Also, the defendant did not present any evidence to corroborate
his testimony of an immediate threat. The jury, as was their prerogative, chose not to credit
the defendant’s theory of self-defense, and we will not second-guess the factual
determinations of the jury. Accordingly, we conclude that the evidence was sufficient to
support the defendant’s convictions, and he is not entitled to relief on this issue.

                                       III. Merger
      Although not raised by the defendant, his convictions for attempted second degree
murder and reckless aggravated assault must be merged. Attempted second degree murder
is committed when the defendant knowingly acts with the intent to kill and believes his


        7
          In this case, the Tennessee Supreme Court ruled that Tennessee’s first degree murder statute did
not require the application of the common law doctrine of transferred intent because the statute does not
require proof that the defendant intended to kill a specific victim. Millen v. State, 988 S.W.2d 164, 168
(Tenn. 1999).

                                                  -14-
conduct will cause the death without further action. Id. § 39-12-101(a)(2). Reckless
aggravated assault is an assault committed recklessly, which causes serious bodily injury to
the victim or is committed with the use or display of a deadly weapon. Id. § 39-13-102(a)(1).
Thus, attempted second degree murder requires an intent to kill; reckless aggravated assault
does not. Reckless aggravated assault requires an assault with a deadly weapon, or an assault
which causes serious bodily injury; whereas, attempted second degree murder requires
neither. Therefore, the statutory elements of the two offenses are different.

       However, the evidence used to prove both offenses was the same S the defendant’s
shooting of M.S. Moreover, the purpose of both statutes is to prevent physical harms to
persons. Weighing each of these factors, we conclude that the defendant’s convictions for
attempted second degree murder and reckless aggravated assault are the same for double
jeopardy purposes because they were part of one discrete act of conduct. Accordingly, we
modify the judgments of conviction to reflect merger of the defendant’s conviction for
reckless aggravated assault into his conviction for attempted second degree murder.

                                        Conclusion

        Based on the foregoing reasons, we modify the judgments of the trial court to reflect
the merger of the defendant’s conviction for reckless aggravated assault into his conviction
for attempted second degree murder. We affirm the trial court’s judgments in all other
respects and remand for entry of corrected judgment sheets.


                                                   ___________________________________
                                                   J.C. McLIN, JUDGE




                                            -15-
