         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             Assigned on Briefs May 22, 2013

                   STATE OF TENNESSEE v. SAMUEL GLASS

                    Appeal from the Criminal Court for Knox County
                         No. 95128A     Bob R. McGee, Judge




                 No. E2012-01699-CCA-R3-CD - Filed August 28, 2013


In this appeal as of right, the State contends that the trial court erred by setting aside the jury
verdicts of attempted second degree murder and entering judgments of acquittal for those
counts based upon the doctrine of transferred intent. Also in this appeal, the defendant
challenges his convictions of first degree premeditated murder, felony murder, and attempted
first degree murder on grounds that the evidence was insufficient to support those
convictions. Because the trial court erred by setting aside the jury verdicts of attempted
second degree murder, the judgments effecting those verdicts and the 12-year sentences are
reinstated. The judgments of the trial court are affirmed in all other respects.

Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed in Part; Reversed in
                                      Part

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which J OSEPH M.
T IPTON, P.J., and C AMILLE R. M CM ULLEN, J., joined.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy E. Wilber, Assistant Attorney
General; Randall E. Nichols, District Attorney General; and TaKisha Fitzgerald, Assistant
District Attorney General, for the appellant, State of Tennessee.

J. Liddell Kirk (on appeal); and William Talman (at trial), Knoxville, Tennessee, for the
appellee, Samuel Glass.

                                           OPINION

               The essential facts of this case are largely undisputed. The defendant, Samuel
Glass, after a night of riding around with friends, came to the 3928 Porter Avenue residence
where 17-year-old Dachanna Dotson1 lived with her grandmother and her best friend, Jaye
Christopher, and fired an AK-47 toward the residence. Ms. Dotson, Ms. Christopher, and
eight-month-old Zymarius Davenport,2 were on the front porch, and Antonio Miller, a
neighbor, was in the front yard at the time of the shooting. The three adult victims scrambled
to get into the house, and Ms. Dotson picked Zymarius up as she ran. Ms. Dotson, using her
body to shield the infant, suffered two gunshot wounds to her back and died. A Knox County
Criminal Court jury convicted the defendant of the first degree premeditated murder and
felony murder of Ms. Dotson, the attempted second degree murder of Ms. Christopher, the
attempted second degree murder of Zymarius, the attempted first degree murder of Mr.
Miller, employing a firearm during the commission of a dangerous felony, and driving on a
revoked license.

                At trial, Ms. Christopher testified that in June 2010, she lived with Ms. Dotson,
whom everyone called “Muffin,” in the residence of Ms. Dotson’s grandmother. On June
8, 2010, Ms. Dotson’s eight-month-old nephew, Zymarius, spent the night at the home. At
some point near midnight, Zymarius awoke, fussy and hot, so the girls changed his diaper.
Ms. Christopher carried the soiled diaper to the trash can outside the house. Outside, she saw
“the Dr. Pepper car and the green and orange Infiniti” driving down the street just past the
residence where Mr. Miller lived with his mother, Teretha. Mr. Miller stepped to the curb
and fired a single gunshot into the air. He then “hopped in his truck and sped off” in the
direction taken by the other cars, “towards Speedway Circle.” Ms. Christopher said that she
went inside and reported what she had seen to Ms. Dotson, then she went outside to smoke
a cigarette. Ms. Dotson followed with Zymarius, who was still fussy. The girls put the baby
into his stroller and sat talking on the porch.

               Ms. Christopher testified that Mr. Miller returned 10 to 15 minutes later and
stopped to talk to the girls. Ms. Christopher said that some time later, she saw “some cars
coming down the street, and they shut off their lights so Muffin stands up and she cuts off
the porch light.” Ms. Christopher identified the approaching cars as the green and orange
Infiniti that had driven by earlier and a red Nitro that she knew belonged to Jasmine
Woodruff, the mother of Mr. Miller’s youngest child. Ms. Christopher said that the cars
stopped in front of the house, and the passenger of the Infiniti got out of the car with a large
gun, “walked up to the edge of the ramp,” and said, “‘What n*****.’” Ms. Woodruff then
got out of her vehicle and yelled, “‘No, Sam, don’t do it.’” The man nevertheless started



        1
         The transcript spelled Ms. Dotson’s name “Deshauna.” As is the policy of this court, we utilize the
spelling set forth in the presentment.
        2
          The transcript spells the infant’s name “Zymereous.” As is the policy of this court, we utilize the
spelling included in the presentment.
                                                    -2-
shooting toward Mr. Miller. Ms. Christopher recalled that Ms. Dotson grabbed Zymarius and
ran into the house. Mr. Miller, she said, initially tried to get into his truck, but when he
“couldn’t get his door open fast enough . . . he ran back on our porch and ran in the door.”

                Ms. Christopher said that the man eventually stopped shooting, got back into
the Infiniti, and the car sped away. The red Nitro was also driven away at a high rate of
speed. Ms. Christopher, Mr. Miller, and Ms. Dotson’s grandmother each telephoned 9-1-1.
Ms. Christopher said that in the aftermath of the shooting, Zymarius lay on the floor
“screaming and yelling,” and Ms. Dotson lay on the floor, face down and unresponsive. Ms.
Christopher was unable to identify the shooter, but she did observe him drop a cellular
telephone and some money into the street as he got out of the Infiniti.

               Paula Wilkins, the defendant’s grandmother, testified that the orange and green
Infiniti that Ms. Christopher had seen on Porter Avenue belonged to the defendant but was
registered in her name. She said that the car was registered in her name because the
defendant did not have a driver’s license. Ms. Wilkins said that on the morning of June 9,
2010, the defendant’s sister, Tanisha, telephoned and asked if she could bring the Infiniti to
Ms. Wilkins’ residence because “something happened on Porter and they were looking for
a multi colored Infiniti.” Ms. Wilkins said that someone, she assumed it to be Tanisha,
brought the car to her house while she was still asleep and parked it “in the back drive.” Ms.
Wilkins said that her neighbors began to call about the strange car soon after. At that point,
Ms. Wilkins called a close friend who was also a police officer, who put her in touch with
the detective in charge of the investigation into the shooting. Police came and towed the car.

              Mr. Miller testified that in June 2010, he lived at 3924 Porter Avenue with his
mother and that, at that time, he was serving a six-year probationary term for a conviction of
possession with the intent to sell cocaine. He said that Ms. Woodruff was the mother of his
son, Kamurion, who was one year old in June 2010. Mr. Miller stated that he knew the
defendant from middle school, saying that they “didn’t speak to each other but . . . didn’t
have no beef either.” He said that he knew Akeem Dubose as a friend of his “first baby
momma,” Brittany Quince, and her brother, Sampson Quince. He recalled that he met Alexis
Watson when he “hooked up” with Ms. Woodruff. Mr. Dubose’s car, a two door Oldsmobile
Cutlass, was known as “the Dr. Pepper car” because it bore the Dr. Pepper emblem. The
defendant, who went by “Little Sam,” drove a green and orange Infiniti.

               Mr. Miller testified that in June 2010 he was unemployed and that he and Ms.
Woodruff argued because he was unable to provide financial support to their child. Mr.
Miller said that he learned through neighborhood gossip that the defendant had labeled him
a snitch and that Ms. Woodruff had been “riding” with the defendant. He said that he spoke
with Ms. Woodruff via telephone just before midnight on June 8, 2010, about the issue.

                                             -3-
During their conversation, she told him to come outside, and when he did, he saw “three cars
coming up the street swerving back and forth. So I’m like, what’s goin’ on? So I see the
first car and it’s Akeem. Then I see the second car is Little Sam. Then I see the third car,
it’s my baby momma. She’s laughing and stuff, hanging out the window.” Mr. Miller said
that he became angry because the others were “trying to stunt on him” because he no longer
had money since he had quit dealing drugs. “Stunting,” he explained, “is like when you got
more money than the other person . . . basically, what it’s saying is they’re trying to call me
broke.” He said he got into his truck and followed them toward Speedway Circle. At
Speedway Circle, he got out of the car, and he and the defendant “had words” before he
struck the defendant three times. He got back into his car and drove away despite Ms.
Woodruff’s trying to block him in.

             Mr. Miller testified that when he got back to his residence, Ms. Christopher and
Ms. Dotson were on the front porch of their residence, so he stopped to talk to them.
Approximately 15 minutes later, the defendant arrived, and Ms. Woodruff pulled in behind
him. The defendant jumped from his car, said, “‘What’s up? What’s up?’”, and began
shooting what appeared to be an AK-47. He described what happened next:

              We all was trying to fit in one door at one time when he started
              shootin’. And then some kind of way Muffin was still standing
              up. She had dropped the baby on the ground and she had
              crawled to the hallway. And then Ms. Arnette hopped on the
              phone and called the ambulance. I called 9-1-1 on my phone too
              while I’m sitting there looking at Muffin watching her suffer.

              During cross-examination, Mr. Miller denied firing a gun into the air after the
three cars drove down the street “stunting,” saying, “If I’d had a gun I’m pretty sure I
would’ve shot back at ‘em.”

               Twenty-two-year-old Akeem Dubose said that he had been a friend of the
defendant for years and that he met Ms. Woodruff “[t]hrough [the defendant’s] baby’s
momma Jassica.” He said that Mr. Miller, who was known as “T.T.,” fathered the baby of
his friend’s sister. Mr. Dubose said that he drove a two-door Cutlass emblazoned with the
Dr. Pepper logo that was registered to his cousin, Curtis Cash. Mr. Dubose recalled that on
June 8, 2010, he was “[b]eing hot, riding around.” He explained that “being hot” meant
“[t]rying to look good.” He said that he saw the defendant at a paint shop and stopped to
talk. The two of them then went to “the local CD man down the street.” After visiting the
CD man, Mr. Dubose dropped his own car at his grandmother’s house and got into the car
with the defendant. The two men drove around for a while, and the defendant took him back
to his car. Mr. Dubose said that he went home, showered, and changed clothes.

                                              -4-
              Sometime later, the defendant telephoned and asked Mr. Dubose to come to
the defendant’s grandmother’s house. He did. He said that Ms. Woodruff arrived at the
defendant’s grandmother’s house a short time later accompanied by young woman named
Alexis whom Mr. Dubose had not met before. Mr. Dubose recalled that the group talked
briefly before getting into Ms. Woodruff’s car. They went to the liquor store and the gas
station. Mr. Dubose said that while they were at the gas station, he saw Mr. Miller’s ex-
girlfriend, Danika, enter the store just behind the defendant. He recalled that “[t]wo seconds
later [Ms. Woodruff] g[o]t a call from her baby’s father.” Ms. Woodruff asked Mr. Dubose
and the defendant to go to Buffalo Wild Wings, and he and the defendant indicated a desire
to change clothes first.

               After changing clothes at their respective residences, the defendant and Mr.
Dubose drove separately from Mr. Dubose’s mother’s house to Buffalo Wild Wings. They
parked at a gas station near the restaurant, and the defendant told Mr. Dubose that “Jaz told
him that T.T. was like when he see him, you know, what I’m saying it was on site.” He said
that the statement expressed Mr. Miller’s intent to harm the defendant. The men entered the
restaurant, where they again met with Ms. Woodruff and Alexis Watkins. The group
eventually decided to leave the restaurant and go riding around. Mr. Dubose said that they
traveled in three separate cars through various areas of Knoxville before the defendant
telephoned Mr. Dubose and said, “‘Let’s ride on the east side.’” They eventually drove down
Porter Avenue in front of Mr. Miller’s mother’s house. He said that as they passed the
residence, they heard a single gunshot. Mr. Dubose said that he stopped, and the others
followed suit. As they stood discussing the gunshot, Mr. Dubose saw Mr. Miller drive up
in his Tahoe. Mr. Miller and the defendant had a conversation that Mr. Dubose could not
overhear. Mr. Miller knocked on the passenger’s side window of Ms. Woodruff’s car, and
she sped away. Mr. Miller then got into his car and followed her.

               At that point, the defendant told Mr. Dubose to go to the defendant’s
grandmother’s house, and Mr. Dubose agreed. Mr. Dubose testified that when he arrived at
the defendant’s grandmother’s residence, he saw the defendant with “this big gun in his
hand.” He described the weapon as an “AK.” Shortly thereafter, Ms. Woodruff arrived and
told the men that she was “missing her center pieces off her car” and believed she had lost
them “when [her] baby daddy was chasing ” her. Mr. Dubose and the defendant agreed to
help Ms. Woodruff look for the missing pieces of her car. Mr. Dubose said that the
defendant told Mr. Dubose to drive his car, and the defendant rode as a passenger in the
Infiniti. Mr. Dubose recalled that they found the center pieces on Speedway Circle and that
the defendant then directed him to drive down Porter Avenue. Mr. Dubose said that he did
as directed, and when he pulled parallel to Mr. Miller’s vehicle, the defendant jumped out
of the still-moving car. Mr. Dubose described what happened next: “You heard the first
shot, boom. You hear about four to five more. He get in the car, . . . he like, ‘Pull off.’ I’m

                                              -5-
like what’d you do that for? He’s like – he didn’t really give me no explanation.”

               The defendant directed Mr. Dubose to call the defendant’s cellular telephone
and to drive to the defendant’s mother’s house and park the car in the back. Mr. Dubose said
that he did as instructed. They were unable to locate the defendant’s cellular telephone.
When they arrived at the defendant’s mother’s house, the defendant walked across the yard
and took keys from his sister, who lived next door, and put the gun inside his sister’s car. He
then asked Mr. Dubose to retrieve his telephone, but Mr. Dubose refused. Mr. Dubose then
drove toward his grandmother’s house. As he drove, Mr. Dubose received a telephone call
from Mr. Quince, who said, “‘They said Sam was shooting at [Mr. Miller] and hit Muffin.’”
Mr. Dubose relayed the information to the defendant, who then telephoned Ms. Woodruff.
Mr. Dubose said that he implored the defendant to “do something with that and let them
know it was an accident and you didn’t mean to do it.” The defendant, in response, told him,
“‘Everything will be all right. You’re going to be cool.’”

              Mr. Dubose said that after dropping the defendant off, he went back to his
mother’s house, where he telephoned Mr. Quince and asked him to come pick him up. Mr.
Dubose testified that he met with the defendant the next day, and the defendant said,
“‘Everything cool. Everything gonna to be alright. You gonna be good.’” The defendant
told Mr. Dubose that Mr. Dubose’s fingerprints would not be found inside the defendant’s
car even though he had been driving. He said that he believed the defendant until he was
arrested. Mr. Dubose admitted that he did not initially tell the police the truth, saying that
he was “hard headed.”

               Knoxville Police Department (“KPD”) Officer Charles Lee reported to the
Porter Avenue scene at approximately 3:00 a.m. While there, an individual standing in the
front yard informed him that she had received a call from Ms. Woodruff and was still on the
telephone with her. That individual placed her telephone on speaker, and the officer
overheard their conversation. Based upon that conversation, Officer Lee traveled to an
apartment complex to interview Ms. Woodruff. Ms. Woodruff agreed to be transported to
the police station, and Officer Lee had her vehicle towed to the impound lot.

               Once he arrived at the station, Officer Lee questioned Mr. Miller first. Mr.
Miller identified the shooter from a photograph array. Ms. Woodruff was not as cooperative
and did not provide police with a statement. She did, however, give the officer permission
to examine her cellular telephone.

             The defendant arrived at the police station after learning that officers wished
to speak with him. Officer Lee testified that he provided the defendant with Miranda
warnings, and the defendant signed a written waiver of his rights before providing a

                                              -6-
statement. The defendant denied any involvement in the offense, telling the officer that he
had been at his grandmother’s house. The defendant also claimed that he did not often drive
the orange and green Infiniti because his driver’s license had been revoked. The defendant
insisted that he was at his grandmother’s house because he was under a curfew as a condition
of his probation.

              Forensic examination of a broken cellular telephone discovered in the street
in front of the Porter Avenue residence established that the telephone belonged to the
defendant.

               Doctor Steven Cogswell of the Knox County Medical Examiner’s Office
performed the autopsy of Ms. Dotson at 1:30 p.m. on June 9, 2010. Ms. Dotson suffered two
gunshot wounds to the right side of her back, one on the “upper back in the area of the tip of
the shoulder blade and another that was basically at the waist level.” The wounds were
atypical in that they were “not the usual round to oval hole,” but, instead, both consisted of
“two small entrance wounds right next to each other that were irregular in shape and had an
irregular border.” The shape of the entrance wounds suggested “that the bullets when they
struck her were not intact, stable bullets” but “had hit something first and had actually started
to breakup and destablilize and fragment and then they struck her body.” One wound was
“more circular and round” while “[t]he other is almost slit-like.” Doctor Cogswell said that
he “would expect” that the bullet that caused the lower gunshot wound had traveled through
something less substantial, such as the handrail of the porch, and that the bullet that caused
the higher gunshot wound had traveled through something more substantial, such as the
exterior wall of the house.

               The bullet fragments of the lower wound struck the spine at the lowest spinal
vertebrae but did not penetrate the spinal chord, and the bullet core traveled into the pelvis
but did not break the bone. Doctor Cogswell testified that although the victim would likely
have suffered long term effects from that wound, it would not have caused her death.

               The bullet from the upper wound, however, “actually entered the chest cavity,
went through the right lung, and severed branches of the pulmonary vein which takes all the
blood from the right lung back to the heart.” The bullet from that wound also struck her
esophagus. Doctor Cogswell said that the damage occasioned by the higher wound “caused
her to bleed to death internally.” Neither wound, he said, would have caused a lot of external
bleeding.

              Doctor Cogswell noted that the type of bullet, a 7.62 “times 39,” is “considered
an intermediate power cartridge” and is used “in any of the assault rifle class of firearms,”
particularly “the AK series as well as the SKS series rifles.” He opined that had the

                                               -7-
defendant used a handgun as opposed to an assault rifle, the victim would not have suffered
the same injuries.

              At the conclusion of this testimony, the State rested.

              Ms. Woodruff testified on behalf of the defendant that on June 8, 2010, she was
“in Knoxville riding around” with “Alexis Watkins and her son.” She said that she and Ms.
Watkins “met up” with Mr. Dubose and the defendant and then traveled to the liquor store.
Ms. Woodruff testified that Mr. Miller, the father of her infant son and to whom she referred
as her “Baby Dizzle,” telephoned to express his furor at the defendant’s being in the car with
her because she had been romantically involved with the defendant approximately one year
before the shooting. She said that she “wasn’t too much worried” about Mr. Miller’s anger
because she “wasn’t in a relationship with Antonio Miller at the time. . . . I had just crossed
that out.”

                Ms. Woodruff eventually drove the defendant and Mr. Dubose back to the
defendant’s grandmother’s house. She testified that after she dropped the men off, Mr.
Miller telephoned her again and said, “‘[Y]ou tell Lil Sam that he told someone that I was
a snitch and I was working for the Feds and when I see him it’s on sight.’” Ms. Woodruff
explained that the statement expressed Mr. Miller’s desire “to fight him or harm him.” She
said that she relayed the threat to the defendant when she met him and Mr. Dubose at Buffalo
Wild Wings later that evening.

               After they ate, the group got into three separate cars and “rode around
Knoxville just from hood to hood.” Ms. Woodruff said that after traveling through various
government housing projects in the greater Knoxville area for approximately 30 minutes, the
caravan drove down Porter Avenue for “[n]o reason at all.” She denied calling Mr. Miller
to tell him that they would be driving by his residence. Nevertheless, she claimed that Mr.
Miller came outside as they drove by, and Ms. Woodruff heard a gunshot. She said that they
drove away and stopped at “Speedway Circle.” As they sat discussing the gunshot, Mr.
Miller drove up. Ms. Woodruff said that Mr. Miller confronted the defendant but that
“[t]here was no fight whatsoever.” Mr. Miller then got into his car and tried to “chase” her.
Ms. Woodruff said that the defendant and Mr. Dubose left.

              After the “chase,” Ms. Woodruff noticed that the “center piece” from her rims
was missing, so she telephoned the defendant to ask him to help her look for them. After
locating the missing items on Speedway Circle, the group, traveling then in two cars, drove
down Porter Avenue. Ms. Woodruff recalled that Mr. Dubose, who was driving the
defendant’s car, stopped, and the defendant got out of the car. She claimed that Mr. Miller,
who had been standing outside, walked toward the defendant. At that point, she said, she

                                              -8-
heard gunfire but did not see the defendant with a gun. Ms. Woodruff maintained that it was
“at least five minutes” from the time the defendant exited the car to the time she heard
gunfire. Ms. Woodruff denied getting out of her car and said that she saw no one on the
porch of the Porter Avenue residence.

              During cross-examination, Ms. Woodruff acknowledged that she and Mr.
Miller argued via telephone throughout the night and admitted that she was aware that Mr.
Miller was home when the group decided to drive down Porter Avenue on the first occasion.
Ms. Woodruff conceded that she never actually saw Mr. Miller with a gun. Ms. Woodruff
claimed that she feared Mr. Miller but admitted that despite that fear, she chose to drive
down Porter Avenue after locating her missing center pieces. She also admitted that despite
her claimed fear of Mr. Miller, she stopped her car when Mr. Dubose stopped even though
her car was in front of his and she could have driven on.

               Ms. Woodruff admitted that she spoke via telephone with both the defendant
and Mr. Dubose after the shooting, but she claimed that she could not recall the substance
of either conversation. Ms. Woodruff acknowledged that she did not cooperate with the
investigation of the offenses. She also admitted that she had spoken to the defendant on the
telephone during the pendency of the case and had visited him in jail on more than one
occasion. She claimed, however, that she could not recall whether she had discussed the
details of the case with the defendant.

               Alexis Watkins testified that she had been a friend of Ms. Woodruff since
elementary school, that she knew Mr. Miller as Ms. Woodruff’s “baby daddy,” and that she
knew Mr. Dubose and the defendant as friends of Ms. Woodruff. Ms. Watkins confirmed
that she rode around with Ms. Woodruff, Mr. Dubose, and the defendant during the evening
hours of June 8, 2010, and that the group eventually went to eat at Buffalo Wild Wings. Ms.
Watkins said that while the group was at the restaurant, Mr. Miller telephoned Ms. Woodruff
“and was like, somebody calling somebody a snitch, and that he needed to talk to Little Sam
about somebody calling him a snitch.” Ms. Watkins said that after they ate, the group
decided to drive through all of the government housing projects in Knoxville. She said that
they eventually drove down Porter Avenue and that as they did, they were “[p]arading, like
swerving in and out.” She explained, “All the projects we went through we was swerving
down the street.” Ms. Watkins said that as they traveled down Porter Avenue, she saw Mr.
Miller come out of his house and then heard gunfire. She recalled that Mr. Miller then
chased the group in his car. When they stopped, “him and Little Sam had had some words
with each other.” Then Mr. Miller chased Ms. Woodruff for “[a] little minute.”

              Ms. Watkins said that Ms. Woodruff’s rim fell off during the chase, and they
had to go back and look for it. She recalled that Ms. Woodruff telephoned the defendant and

                                            -9-
asked him to come help her look for the missing pieces. After locating the missing items, the
group drove down Porter Avenue again. She described what happened next: “I had seen
Little Sam getting out of his car or whatever. And so I knew something was about to happen
because I knew Antonio had had a gun, and – cause I heard gunfire, so I had ducked my
head, and I heard shots.” Ms. Watkins claimed that she saw Mr. Miller “reaching for
something” and that she did not see the defendant with a gun.

              During cross-examination, Ms. Watkins admitted that she refused to identify
the defendant as the shooter when interviewed the first time. She acknowledged that she
eventually admitted to Detective Lee that the defendant said he was “not going to let it go
down that way.” Although she initially denied telling the detective that the defendant said
that he was going to get a gun after he and Mr. Miller exchanged words at Speedway Circle,
she admitted making the statement after being confronted with a recording of her interview
with Detective Lee. Ms. Watkins vehemently denied seeing the defendant with an AK-47.
She admitted that she did not call 9-1-1 after the shooting and that she and Ms. Woodruff
simply returned to her house.

             The defendant began his testimony with an apology to Ms. Dotson’s
grandmother, saying,

              I just wanted to tell you, Ms. Arnette, that I swear, I’m sorry.
              This was never supposed to happen. Never. Y’all was family
              to me, man. I mean, like real family. Come on. Everybody got
              up here to tell a story, but nobody’s told the truth. Nobody. So
              I want to tell the truth. I feel like you should hear it from me.
              That’s all I wanted to say.

The defendant testified, as did the other witnesses, that he spent the evening hours of June
8, 2010, riding around Knoxville with Mr. Dubose, Ms. Woodruff, and Ms. Watkins. He
added that they confined their earlier travels “to the west side,” explaining, “I don’t ride on
the east side too much because they know the car. They’re going to pull me over and put me
in jail so we ride to the west side.” Despite the defendant’s desire to travel only on the “west
side,” the group nevertheless drove “a couple of blocks on the east” after having driven
“around on the west side for a little minute.” He said that “a little minute” equaled
approximately “a couple of hours.” At some point, he and Mr. Dubose split up, and the
defendant returned to his grandmother’s house.

               The defendant testified that Mr. Dubose came to the defendant’s grandmother’s
house later that evening so that they could “chill” because “that’s what we do.” He said that
sometime thereafter, Ms. Woodruff came to his grandmother’s house and asked the men if

                                              -10-
they wanted to “ride” with her. He said that they agreed, explaining, “I mean, this is what
we do. When there ain’t nothing to do we ride around. So me and Akeem got in the car with
her. We’re riding. I mean, Jaz rides everywhere so we’re just riding with Jaz, you know
what I mean? Nonchalantly just riding with Jaz.” He said that the group went to the liquor
store, where he purchased liquor for the women, and then returned to his grandmother’s
house because his “curfew was coming up.” They stayed at the defendant’s grandmother’s
house “kicking it” with the defendant’s mother and aunts before the women and Mr. Dubose
left.

              The defendant said that Mr. Dubose called him later and persuaded him to go
to Buffalo Wild Wings, saying, “‘Man, everybody calling me saying everybody going to be
there. It’s going to be done.’” The defendant told Mr. Dubose to wait until after the
defendant’s “curfew call” and then he would go. The defendant said that he left after his
curfew call and went to his mother’s house on Porter Avenue to change clothes. While he
was there, Ms. Woodruff called him and said, “‘T.T. just called me wanting your number.’”
The defendant testified that he told Ms. Woodruff that he would “holler at him when I see
him.” He said that she telephoned again a short time later and said, “‘T.T. just called me
back and was like tell you he’s going to kill you. It’s on sight. He don’t care where he see
you. Who you with. If you in the car with me, his son in the car.’” The defendant claimed
that because of the threat communicated to him by Ms. Woodruff, he armed himself with “a
chopper,” which he admitted was an AK-47. He then followed Mr. Dubose to Buffalo Wild
Wings.

               The defendant said that after the restaurant closed, Ms. Woodruff suggested
that they “stunt, parade, or however you want to put it.” He testified that he agreed but told
Ms. Woodruff to stay behind him because he had no driver’s license. When they had
finished “swerving” through the housing projects on “the west side,” they decided to “hit the
east.” Ms. Woodruff, he said, took the lead, and Mr. Dubose followed the defendant. He
said that they eventually ended up on Porter Avenue, where they continued “stunting
everybody, hanging out the windows.” They then drove to Speedway Circle, where they
parked and discussed plans for the rest of the evening. He claimed that although Ms.
Woodruff expressed a desire to “‘get drunk,’” he told the others that he wanted to retire for
the evening. At that point, their conversation was interrupted by “tires burning or
screeching.” Ms. Woodruff said, “‘Ah, shit, that’s my baby daddy.” The defendant told her
to go, and she started to drive away but stopped. The defendant testified that Mr. Miller
pulled up to him, rolled his window down, and the defendant asked, “What’s up?” Mr.
Miller responded, “‘Man, you know what’s up.’” Similarly enlightening conversation
followed until Mr. Miller drove off after Ms. Woodruff. The defendant said that he then told
Mr. Dubose that he was going home, and he drove away.



                                             -11-
               According to the defendant, as he was driving home, he discovered that his
cellular telephone was missing. When he stopped to look for it, he saw Ms. Woodruff drive
by being chased by Mr. Miller. At that point, the defendant traveled on to his grandmother’s
house, and Mr. Dubose arrived a short time later and asked if the defendant had heard shots
while they were near Speedway Circle. Ms. Woodruff arrived next and also asked if the
defendant had heard shots. The defendant said that as they talked, Ms. Woodruff noticed that
a piece of her rim was missing, so she asked the men to help her look for it. The defendant
said that he told Mr. Dubose to drive the Infiniti, and he rode in the passenger seat.

              The defendant said that the group drove down Porter Avenue after finding the
missing items because the defendant intended to go to his mother’s house, which was also
on Porter Avenue, “for a minute.” He testified that as they drove, they saw Mr. Miller
standing behind his car. The defendant claimed that, in that moment, he was overcome with
a sudden desire to discuss and resolve any conflict with Mr. Miller, and told Mr. Dubose to
stop the car. He said that he got out of the car and said, “T.T., let me holler atcha. I need to
talk to you.” The defendant claimed that when Mr. Miller did not respond, the defendant
implored him to talk out their issues. He said that Mr. Miller then said, “‘What’s up? What’s
up?’” while “hugging the side of his Suburban.” The defendant said that he took a step back
toward the car because Mr. Miller had his right arm “all the way down to his side,” leading
the defendant to believe that he was armed. The defendant claimed that by the time he
reached his car, he saw Mr. Miller “fixin’ to point his hand up,” so he grabbed the AK-47
from the front seat of the Infiniti and began shooting.

               The defendant insisted that he “pulled the trigger cause [Mr. Miller] scared the
shit out of [him].” The defendant said that he did not aim the assault rifle in any particular
direction because he only intended to make Mr. Miller run so that he could get away. The
defendant maintained that he did not know anyone was struck by bullets. After firing several
rounds, he got back into the car, and Mr. Dubose drove away. The defendant said that they
went to the defendant’s sister’s house, where the defendant got her keys, and the men drove
away in her car. He recalled that shortly after he returned to his grandmother’s house, his
sister telephoned to tell him that “Shauny Muffin” had been shot. The defendant
acknowledged that he did not admit his involvement in Ms. Dotson’s death, claiming that he
was scared. He said that he wanted to talk to Ms. Dotson’s uncle, Buster, and tell him what
happened, but his aunt told him to let the family grieve and talk to them later. The defendant
insisted that the shooting “was a real big misunderstanding” and an accident.

              During cross-examination, the defendant said that he armed himself with the
AK-47, which he had been keeping for a friend sentenced to a lengthy term of incarceration,
because he believed, based on the threat communicated to him by Ms. Woodruff, that Mr.
Miller intended to harm him. The defendant conceded that although he claimed to fear for

                                              -12-
his life so much that he needed to arm himself with an assault rifle, he drove past Mr.
Miller’s house a number of times on June 8 and 9. He initially claimed that the trips down
Porter Avenue were prompted by a desire to visit with his mother and sister but then
acknowledged that the women, both of whom worked, would be in the bed at 2 a.m. The
defendant said that he only grabbed the gun from the car and fired because he believed that
Mr. Miller had a gun but admitted that he never saw Mr. Miller with a gun. The defendant
said that he shot that particular AK-47 for the first time on the night of the shooting but
admitted that he had fired another such weapon before, explaining, “Everybody done shot
a gun on a holiday.” He said that after the shooting he put the gun “back under [his] momma
porch.”

               The defendant acknowledged that his being “out swerving” and “having fun”
violated the law because he did not possess a driver’s license and the terms of his probation
because he was out past his court-imposed curfew. The defendant conceded that he
continued to drive without a driver’s license, claiming that he did not want to rely on others
for his transportation needs. He admitted, however, that he had no real transportation needs
because he had no job and was not attending school.

             The defendant admitted that he had made well over 100 telephone calls while
incarcerated pending trial and that he had not tried to contact the victim’s family to
apologize. Although he maintained that he had never denied being the shooter, he
acknowledged that he told “certain people” that he was at his grandmother’s during the
shooting.

              Based upon this proof, the jury convicted the defendant as charged of the first
degree premeditated murder of Ms. Dotson, the felony murder of Ms. Dotson, the attempted
first degree murder of Mr. Miller, employing a firearm during the commission of a dangerous
felony, and driving while his driver’s license was revoked. In counts three and four of the
indictment, the jury convicted the defendant of the lesser included offenses of the attempted
second degree murders of Ms. Christopher and Zymarius Davenport. The trial court imposed
an automatic sentence of life for the merged first degree murder convictions, a sentence of
25 years for the conviction of attempted first degree murder, sentences of 12 years for the
convictions of attempted second degree murder, a sentence of six years for the conviction of
employing a firearm during the commission of a dangerous felony, and a sentence of six
months for the conviction of driving on a revoked license. The court ordered partially
consecutive service of the sentences, for a total effective sentence of life plus 31 years.

               The defendant filed a timely motion for new trial or judgment of acquittal,
which was granted in part and denied in part. The trial court concluded that the evidence was
insufficient to support the defendant’s convictions of attempted second degree murder

                                             -13-
because the doctrine of transferred intent could not be applied to attempt offenses.
Accordingly, the court set aside the jury verdicts in counts three and four and entered
judgments of acquittal. The court also concluded that error in the jury instructions relative
to the conviction of employing a firearm during the commission of a dangerous felony
entitled the defendant to a new trial on that offense. The court imposed the defendant’s
convictions of first degree murder, attempted first degree murder, and driving on a revoked
license.

               In this appeal, the State contends that the trial court erred by setting aside the
jury verdicts of attempted second degree murder and entering judgments of acquittal because
the evidence was sufficient to support those convictions as well as the defendant’s
convictions of first degree murder and attempted first degree murder. 3 The defendant
contends that the trial court did not err by setting aside the jury verdicts of attempted second
degree murder and entering judgments of acquittal because the evidence was insufficient to
support those convictions. The defendant also asserts that the evidence was insufficient to
support his convictions of first degree murder and attempted first degree murder. We
consider the issues in turn.

                                          I. Transferred Intent

              The State contends that the trial court erred by setting aside the jury verdicts
of attempted second degree murder and entering judgments of acquittal. The defendant
contends that the trial court acted appropriately.

              At the hearing on the defendant’s motion for new trial, the trial court set aside
the jury verdicts of second degree murder and entered judgments of acquittal, concluding:

                         Counts three and four are different, and that’s because the
                 transferred intent that gets us to Ms. Do[t]son doesn’t apply in
                 the rules of – in the laws pertaining to attempt. In that situation,
                 the shooter shoots at A, accidentally hits B, but doesn’t hit C or
                 D at all. There is no transfer of an attempt to shoot one person
                 over to an attempt to shoot someone else. The transferred intent
                 gets us the homicide but not the attempt. For those reasons the
                 Court will find that the evidence does not support the
                 convictions in counts three and four. And at this point, the
                 Court would enter judgments of acquittal. The Court has to find



        3
         The State does not contest the trial court’s grant of a new trial on the charge of employing a firearm
during the commission of a dangerous felony.
                                                     -14-
              the evidence did not support the conviction.

                The common law doctrine of transferred intent, which provides that “a
defendant who intends to kill a specific victim but instead strikes and kills a bystander is
deemed guilty of the offense that would have been committed had the defendant killed the
intended victim,” Millen v. State, 988 S.W.2d 164, 166 (Tenn. 1999) (citing 2 Charles E.
Torcia, Wharton’s Criminal Law § 146 (15th ed. 1994); 1 Wayne R. LaFave & Austin W.
Scott Jr., Substantive Criminal Law § 3.12(d) (1986)), has enjoyed a checkered history in this
state, see Millen, 988 S.W.2d at 166-67 (recounting history of application of transferred
intent doctrine). In Millen, our supreme court concluded that “the transferred intent rule has
little application under our modern statutory law.” Millen, 988 S.W.2d at 167. The court
observed that “[a] plain reading” of the current version of the first degree murder statute
“indicates that a defendant’s conscious objective need not be to kill a specific victim. Rather,
the statute simply requires proof that the defendant’s conscious objective was to kill a person,
i.e., ‘cause the result.’” Id. at 168. The court held that so long as “the evidence demonstrates
that the defendant intended to ‘cause the result,’ the death of a person, and that he did so with
premeditation and deliberation, then the killing of another, even if not the intended victim
(i.e., intended result), is first degree murder.” Id.

              This court has expanded the ruling in Millen to convictions of attempted first
degree murder, see, e.g., State v. Fabian Claxton, No. W2009-01679-CCA-R3-CD (Tenn.
Crim. App., Jackson, Mar. 7, 2011), and attempted second degree murder, see, e.g., State v.
Horace Demon Pulliam, No. M2001-00417-CCA-R3-CD (Tenn. Crim. App., Nashville, Jan.
23, 2002); State v. Tarrence Parham, No. W2009-00709-CCA-R3-CD (Tenn. Crim. App.,
Jackson, July 26, 2010), concluding that the reasoning in Millen was equally applicable to
those offenses.

                The defendant acknowledges our previous holdings but argues that this case
is distinguishable because, unlike the victims in those cases, Ms. Christopher and Zymarius
Davenport did not suffer any injury as a result of the defendant’s firing the AK-47 toward
the house. In our view, this is a distinction without a difference. The State need not show
that a victim suffered any injury to support a conviction of attempted second degree murder.
See, e.g., State v. Rush, 50 S.W.3d 424, 430 (Tenn. 2001). Accordingly, we hold that the trial
court erred by relying on the common law doctrine of transferred intent to set aside the jury
verdicts of attempted second degree murder and enter judgments of acquittal.

            Having concluded that the trial court so erred, we now consider whether the
evidence was sufficient to support the defendant’s convictions of first degree murder,




                                              -15-
attempted first degree murder, and attempted second degree murder.4

                                              II. Sufficiency

               We review the defendant’s challenge to the sufficiency of the evidence mindful
that our standard of review is whether, after considering 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. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443
U.S. 307, 324 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003).
“[D]irect and circumstantial evidence should be treated the same when weighing the
sufficiency of such evidence.” State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011).

               When examining the sufficiency of the evidence, this court should neither
re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact.
Winters, 137 S.W.3d at 655. Questions concerning the credibility of the witnesses, the
weight and value of the evidence, as well as all factual issues raised by the evidence are
resolved by the trier of fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
Significantly, this court must afford the State the strongest legitimate view of the evidence
contained in the record as well as all reasonable and legitimate inferences which may be
drawn from the evidence. Id.

               Arguing that “the State’s theory of intent to commit first degree felony murder
relied upon proving an intent to murder Antonio Miller,” the defendant asserts that the State
failed to establish that he acted with premeditation because he “had no reason to want to
murder [Mr.] Miller and had never expressed any such inclination prior to the shooting.”

               As charged in this case, “[f]irst degree murder is . . . [a] premeditated and
intentional killing of another” and “[a] killing of another committed in the perpetration of or
attempt to perpetrate any first degree murder.” T.C.A. § 39-13-202(a)(1)-(2) (2006).

                  As used in the statute,

                  “premeditation” 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


       4
           The defendant does not challenge his conviction of driving on a revoked license.
                                                    -16-
              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).

               Noting that “[p]roof of premeditation is inherently circumstantial,” this court
has observed that “[t]he trier of fact cannot speculate what was in the killer’s mind, so the
existence of premeditation must be determined from the defendant’s conduct in light of the
circumstances surrounding the crime.” State v. Gann, 251 S.W.3d 446, 455 (Tenn. Crim.
App. 2007); see also State v. Johnny Wright, No. 01C01-9503-CC-00093 (Tenn. Crim. App.,
Nashville, Jan. 5, 1996) (citing LaFave and Scott, Substantive Criminal Law § 7.7 (2d ed.
1986)). Thus, in evaluating the sufficiency of proof of premeditation, the appellate court may
look to the circumstances surrounding the killing. See, e.g., State v. Bland, 958 S.W.2d 651,
660 (Tenn. 1997); State v. Coulter, 67 S.W.3d 3, 72 (Tenn. Crim. App. 2001). Such
circumstances may include “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.

             “Second degree murder is . . . [a] knowing killing of another.” T.C.A. §
39-13-210(a)(1).

              “A person commits criminal attempt who, acting with the kind of culpability
otherwise required for the offense [a]cts 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.” Id. § 39-12-101(a)(2).

              Here, the evidence established that the defendant, upset about his earlier
confrontation with Mr. Miller, armed himself with an AK-47 and traveled to Mr. Miller’s
Porter Avenue residence. Seeing Mr. Miller standing outside, the defendant jumped from
the still-moving Infiniti and fired a number of shots from the assault weapon toward Mr.
Miller, who had been standing on the porch talking to Ms. Dotson and Ms. Christopher.
Eight-month-old Zymarius Davenport, who was outside with the girls because he had
awoken fussy and hot, sat directly in the defendant’s line of fire.

              Proof that the defendant went to the residence with the settled purpose to kill
Mr. Miller was overwhelming, thus supporting his conviction of the attempted first degree
murder of Mr. Miller. The defendant’s intentional and premeditated attempt on Mr. Miller’s
life coupled with Ms. Dotson’s tragic death sufficiently established both that the defendant

                                              -17-
killed Ms. Dotson during the commission of the attempted first degree murder of Mr. Miller
and that the killing of Ms. Dotson was intentional and premeditated. Thus, the evidence was
sufficient to support the conviction of the first degree premeditated murder of Ms. Dotson
and the felony murder of Ms. Dotson.

               Similarly, that the defendant knowingly fired a high caliber assault rifle in the
general direction of Mr. Miller, who only moments earlier had been standing on the porch
with Mses. Dotson and Christopher and the baby, supports his convictions of the attempted
second degree murder of Ms. Christopher and Zymarius. Although the defendant claimed
that he did not travel to the Porter Avenue residence to harm Mr. Miller, that he did not aim
the gun in any particular direction, and that he did not even see the girls or the infant on the
porch, the jury rejected these claims, as was its prerogative.

                                          Conclusion

                Because the trial court erred by relying upon the common law doctrine of
transferred intent to set aside the jury verdicts of attempted second degree murder and enter
judgments of acquittal and because the evidence was sufficient to support those convictions,
the judgment of the trial court in counts three and four is reversed. The judgments reflecting
jury verdicts of attempted second degree murder and the 12 year sentences imposed by the
trial court for those convictions are reinstated. The defendant’s convictions of first degree
murder and attempted first degree murder are affirmed.

                                                     _________________________________
                                                     JAMES CURWOOD WITT, JR., JUDGE




                                              -18-
