        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs February 11, 2014

              STATE OF TENNESSEE v. JONATHAN DOWNEY

                Appeal from the Circuit Court for Humphreys County
                         No. 12044    Larry Wallace, Judge


               No. M2013-01099-CCA-R3-CD - Filed February 28, 2014


Jonathan Downey (“the Defendant”) was convicted by a jury of first degree felony murder,
criminally negligent homicide, and aggravated burglary. The trial court sentenced the
Defendant to life imprisonment for the felony murder and then merged the latter two
convictions with the felony murder conviction. In this direct appeal, the Defendant contends
that the evidence was not sufficient to support his conviction of first degree felony murder.
The State asks this Court to reverse the trial court’s merger of the aggravated burglary
conviction. After a thorough review of the record and the applicable law, we affirm the
Defendant’s conviction of first degree felony murder. We order the trial court to reinstate
the Defendant’s conviction of aggravated burglary and remand this matter for sentencing on
that conviction.

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

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which JERRY L. S MITH and
R OBERT W. W EDEMEYER, JJ., joined.

Gregory D. Smith (on appeal) and Edward E. DeWerff (at trial), Clarksville, Tennessee, for
the appellant, Jonathan Downey.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;
Dan M. Alsobrooks, District Attorney General; and Carey Thompson and Craig Monsue,
Assistant District Attorneys General, for the appellee, State of Tennessee.
                                               OPINION

                              Factual and Procedural Background

       The Defendant was charged with one count of first degree premeditated murder, one
count of first degree felony murder, and one count of aggravated burglary. Also charged
were Kevin Hatten Hale and John Thomas Riley. These charges stemmed from the shooting
death of the victim, Donald Walter Rhea, in August 2008. The Defendant was tried, alone,
before a jury in December 2012, and the following proof was adduced:

       Christina Weathers, the victim’s daughter, spoke with the victim by phone at about
noon on August 24, 2008. The victim’s address was in McEwen, Humphreys County,
Tennessee. Living with the victim was one of his sons, Christopher. Also living in a
separate building on the property was Diane,1 who had been dating the victim’s eldest son,
Donald Walter Rhea, Jr. The eldest son was incarcerated at the time.

      Weathers spoke with the victim again that afternoon, and he told her that “[h]e was
concerned that, since he made Diane and her kids leave, she was going to have someone
come down there to kill him.” Weathers knew Diane’s sons as Boo and Gator.

       Christopher Beggs, the victim’s son, testified that he was eighteen years old on August
24, 2008. He lived with his father, the victim, in McEwen at the time. Diane had been living
on the property for about six months. She lived in “a little one person house” that was
located behind the trailer in which Beggs and the victim lived.

       On August 24, 2008, the victim told Beggs that he wanted Diane to leave. The victim
then went to speak with Diane about his wishes. Present during the conversation were
Diane’s sister, Cindy Anderson, Diane’s school-age son, Austin, and Cindy’s school-age son,
Jordan. The Defendant also was present. Although Beggs did not hear the conversation,
which took place in the small house where Diane was living, Beggs heard yelling. Beggs
saw his father pull his pistol, and he ran around back to see what was going on. He heard the
victim tell the other people to leave, that he wanted everyone “gone off” his property. Beggs
saw Diane between the two men trying to break up the disagreement. Beggs stated that he
did not see the victim strike Diane. Everyone except Beggs, the victim, and Diane left. This
incident occurred at about two or three o’clock in the afternoon.




        1
          The record later reflects that Diane’s last name is Anderson. Because several of the witnesses in
this matter bear the same last name, we will refer to them by their first names. We intend no disrespect.

                                                    2
       Beggs stated that he had never seen his father so upset. He explained that the victim
wanted Diane gone because he believed that Diane was using him. The victim did not like
Diane’s drinking or her constant visitors. On August 24, 2008, Beggs testified, “everybody
was drinking that day, and [the victim] come [sic] home and everybody was just all over the
house without his permission and he didn’t agree with that,” so the victim decided to tell
Diane to leave.

       About a half-hour after the confrontation, Beggs left and went to his friend Steven
Lance’s house, about five minutes away. Beggs and Lance went to Skeeter’s, a small market
nearby. While they were there, Gator, Boo, the Defendant, co-defendant Hale, Lacey
Reynolds, and co-defendant Riley drove up. Beggs testified, “I told them, I was like, don’t
do anything to my dad. I just put that out there first because I thought after the confrontation
there was ill feelings. So I was like, you know, don’t hurt my dad whatever you do.” Beggs
was concerned about another confrontation because his father had earlier pulled a gun.
According to Beggs, the Defendant responded, “[W]hat’s wrong with your dad? Why would
he pull a gun on me like that?” Beggs told him, “[Y]’all were drinking. You know, he
doesn’t like that.” Beggs then heard a voice from the car say, “[Y]ou’re Blood. Don’t say
anything.”

         Beggs left the market after about ten minutes and returned home. Gator, Boo, Lacey,
the Defendant, Hale, and Riley drove up in one car. They all got out and walked to Diane’s
residence, passing behind the victim’s home. Beggs told his father that the men were there,
getting Diane. Beggs and his father were at the front of the trailer, the victim sitting on the
steps leading to his bedroom. Beggs then saw Boo come around, and Boo yelled at the
victim, “[W]hy did you hit my mom?” The Defendant, Riley, and Hale then appeared. Lacey
and Diane were carrying clothes to the car. Beggs stated that “[e]veryone appeared to be a
little irritated.”

       The Defendant, Hale, and Riley approached the steps. Beggs stated that the victim
had several guns near him leaned up against the inside wall of the trailer, including a shotgun
and a hunting rifle. The victim also had a pistol laying next to him. Beggs stated that the
men exchanged some words, but he did not recall what was said. After the verbal interaction,
Beggs saw the Defendant pass some garden tools to the other men, including some post-hole
diggers, a shovel, and a pitchfork. These implements had been leaning up against the trailer.
Beggs could see the Defendant’s and Riley’s hands. Beggs could not see Hale’s hands
because he had them under his shirt.

       Beggs testified, “Once my dad seen [sic] they had the tools, he got up off his thing and
pulled his gun and put it in [the Defendant’s] face.” The victim told the men to leave. Beggs
continued, “Then after that, the other two rushed in and hit him with the pitchfork and he fell

                                               3
inside.” Beggs clarified that Riley hit the victim with the pitchfork. After the victim was
down, the Defendant “ran in the house and was on him.” Beggs heard a gunshot and “went
in shock.” The Defendant was in the trailer when Beggs heard the shot. Beggs thought he
heard the Defendant say, “Oh, I’m shot,” and then Beggs heard five more shots. Beggs
testified that he saw Hale fire these five shots at the victim. The victim was lying inside the
trailer when Hale shot him. The gun Hale used was one of the victim’s. Beggs identified a
hat that was found with the victim’s body as one that the Defendant had been wearing at the
time.

      On further questioning, Beggs recalled that, when the men initially arrived, the
Defendant told the victim, “[R]emember you pulled a gun on me earlier? Well, I got one
now.” He also recalled that the Defendant had had his hand under his shirt.

       After Hale fired the five shots, the men ran to their car and left. Beggs called 911.

       On cross-examination, Beggs acknowledged that his memory of the events was fresher
when he gave his statements to law enforcement. In one of his statements, he said that the
victim had “accidentally smacked” Diane. He acknowledged that he never saw either the
Defendant or Hale with a pistol of their own. He also clarified that he heard the first gunshot
when the Defendant knocked the victim’s pistol out of the Defendant’s face, and the victim’s
pistol went off. Hale then hit the victim in the face with the pitchfork, and the victim fell
down into the trailer. The Defendant rushed the victim and was on top of him. Beggs did
not see Hale go inside the trailer.

       On redirect, Beggs explained that, after the victim fell, the Defendant was trying to
wrestle the victim’s gun away from him. The victim fired the gun and shot the Defendant.
As the Defendant rose up, Hale shot the victim. The incident occurred around four or five
o’clock in the afternoon.

        Steven Lance, Beggs’ friend, testified that he was seventeen years old in August 2008.
A little after noon on August 24, 2008, Beggs came to Lance’s house and picked him up.
They drove to Skeeter’s. After they had been there a little while, some people pulled up and
spoke with them. He recalled “a dude named Kevin and a girl named Lacey and a boy named
Gator.” He did not know the other two people. He recognized the three individuals from
having seen them previously at Beggs’ house. He recalled hearing Beggs say, “[Y]’all don’t
come hurt my dad.” He also recalled hearing yelling from the other car.

       Lance and Beggs returned to Beggs’ home and the other car also came to the trailer.
The people in the car got out and went to the building behind the trailer. During this time,
the victim was sitting on his steps. The victim seemed calm. After five or ten minutes,

                                              4
Lance saw Lacey pick up a rock and walk toward the victim. He did not see Lacey throw the
rock or hit the victim with it. Lance then saw Hale and two men he did not know approach
the victim and make a circle around the steps. At this point, the victim stood up. Lance
heard the group arguing. Some of the other men looked like they had their hands under their
shirts. He recalled someone saying, “You pulled a gun on me earlier and now I have mine.”

        Lance stated that, when the victim stood up, he pulled his gun out and pointed it at
someone. The person at whom the victim pointed his gun smacked the victim’s gun away
and the gun “misfired.” At that point, Lance “took off running.” He heard some more
gunshots. From his vantage point, he saw Hale shoot the victim. The men then ran off, got
in their car, and left.

        Jerry Johnson, Jr. testified that his nickname was Gator, and his mother was Diane
Anderson. He had three brothers, Billy Anderson, known as Boo, Austin Anderson, and
Justin Johnson.2 In August 2008, Gator was living with his father in West Nashville, but he
visited his mother’s residence at the victim’s property on several occasions. He and Beggs
were friends. Lacey Reynolds was Boo’s girlfriend.

       On August 24, 2008, Boo called him and told him that their mother had gotten into
an argument with the victim and that Gator needed to go pick her up. Gator left his father’s
house and headed to his mother’s house. On the way, he stopped and picked up the
Defendant. Also in the car were Hale, Riley, Boo, and Lacey. They stopped at Skeeter’s,
and he spoke with Beggs and Lance. He told Beggs that he was going to get his mother.
Beggs told him that the victim was angry with her.

       Gator drove to the victim’s property and they all got out. As Gator headed to his
mother’s residence, he saw the others standing around talking to the victim. As Gator was
loading clothes baskets, he heard a gunshot. Gator “took off running.” He heard one
gunshot and then, a few seconds later, several gunshots “back to back.” He ran to the car.
When he got to the car, he testified, “Everybody was screaming saying that [the Defendant]
was shot and that [the victim] had got shot.” He told the Defendant to get in the car and he
told Beggs to call 911. Gator drove off, trying to find a hospital. He was subsequently
pulled over by law enforcement.

        Gator testified that he did not see either the victim or the Defendant get shot. He
stated that, after he heard the shots and was running for the car, he saw Hale throw a handgun
into the woods. He also testified that he had told his friends that he, Gator, was going to be


       2
         For ease of comprehension, we will refer to these persons by their first names or nicknames. We
intend no disrespect.

                                                   5
the only one to get out of the car when they got to the victim’s house. He told them to stay
in the car because they had told him what had happened earlier that day, and he “didn’t want
anything else to happen.” He said that everyone agreed to stay in the car but then got out
after they arrived at the victim’s property. This conversation occurred after they left
Skeeter’s.

       Diane Anderson testified that, as of August 2008, Boo and Lacey had been living with
her behind the victim’s trailer for about two months. Hale also stayed with them. No one
was paying any rent to the victim and the victim was paying for the utilities. She
acknowledged that the situation was causing some “frustration.”

        On August 23, 2008, Diane went to Nashville to spend the night with her sister, Cindy
Anderson. The Defendant was Cindy’s boyfriend. On August 24, 2008, Cindy drove her
back to the victim’s property. Accompanying them were the Defendant, Riley, Diane’s son,
Austin, and Diane’s nephew, Jordan. They dropped her off at about noon on the 24th. On
the way, Diane, Riley, and the Defendant were drinking beer. When they arrived, Cindy
asked to use the bathroom, and everyone got out of the car. At that point, the victim “come
[sic] around and got mad because [they] had all been drinking because he didn’t like drinking
down there.” The victim told her “to get the beer off the property,” and the victim, Riley, and
the Defendant began arguing. The victim then “pulled a gun out” and told them to leave.
Cindy, Austin, and Jordan “took off running to the car.” Diane tried to stop the argument
between the men. The victim pointed his gun, a pistol, at the Defendant. She told the
Defendant and Riley to leave, and they did.

       Diane decided to move in with Cindy. She called Gator to come get her. She did not
know that anyone would be coming with Gator. The victim had told her that he did not want
the Defendant or Riley on his property again. The victim had told her that, if the Defendant
or Riley returned, he was “going to hurt one of them.”

        When Gator arrived, the Defendant, Riley, Boo, Hale, and Lacey were with him. She
testified that, at this point, the victim was sitting on his steps, “waiting. He had his – he
thought they were going to kill him, so he had his gun loaded. He had two guns – two big
guns loaded, and then he had a little one loaded.” The Defendant, Riley, and Hale began
bickering with the victim. As Diane was in the back collecting her things, she heard
gunshots. She ran around and saw that the Defendant had been shot in his stomach. They
all ran to the car. She asked about the victim, and Hale told her, “I shot him.”

        Lacey Reynolds testified that she had been dating Boo in August 2008. On August
24, 2008, Boo woke her up and told her that they needed to go get his mother. He told her
that his mother had been “beat up,” and Boo was angry about it. She and Boo left with Gator

                                              6
and Hale. On the way, they stopped and picked up the Defendant and Riley. They also got
some beer on the way. At Skeeter’s, Beggs flagged them down. Beggs told them not to go
down there and start any trouble with his father. Hale told Beggs “that [the victim] had
fucked up and he was going to get fucked up.”

       They drove to the victim’s property. Everyone got out of the car, and Lacey walked
back to Diane’s residence and got some clothes. She returned to the car and put them in the
trunk. The Defendant, Riley, and Hale were talking to the victim in front of the victim’s
house. She picked up a rock because she was scared. She saw Riley or the Defendant pick
up a couple of garden tools and pass one of them to the other. She testified, “At that point,
[the victim] took out a pistol and pointed it at [the Defendant] and he hit it and the gun fire
went off.” She ran and heard more shots. When they all got to the car, she saw that the
Defendant had been shot. She did not see the victim get shot. She stated that no one in the
car had taken a gun to the victim’s property.

       On further questioning, Lacey recalled that, while they were talking to Beggs at
Skeeter’s, the Defendant stated that he was going to “eff up” the victim. She also recalled
Hale telling Beggs to “shut up because he was a Blood.”

        Cindy Anderson, Diane Anderson’s sister, testified that Diane spent the night with her
on August 23, 2008, and Cindy drove her back to the victim’s property the next day. With
them were the Defendant, Riley, Austin, and Jordan. When they arrived, everyone got out
of the car. The victim and Diane began arguing about Diane’s drinking. The Defendant
asked the victim if the victim had a problem with Diane being there, and the victim “just
come [sic] out with the gun.” The victim pointed the handgun at the Defendant and said “he
would shoot him between his eyes.” The Defendant told the victim that “he didn’t have the
balls to do it.” The victim repeated that he would shoot the Defendant. Cindy got everyone
except Diane back to the car and they left.

       Later, Boo called and spoke with the Defendant, “[s]aying that [the victim] was
beating up on his mama and that they were going back to get her and wanted us to meet them
at Walmart so that [the Defendant] and John Riley could go with them.” The Defendant
relayed this information to Cindy, and Cindy dropped the Defendant and Riley off at the
Walmart.

       Deputy Casey Grove of the Dickson County Sheriff’s Office (“the DCSO”) responded
to the scene. Deputy Bruso was already there and paramedics were on the way. Deputy
Grove saw the victim lying in the trailer at the doorway.




                                              7
       Sergeant Jeff Lovell of the DCSO responded and pulled over the vehicle which had
been reported as leaving the scene. The Defendant told Sgt. Lovell that he had been shot,
and he subsequently was transported to the hospital.

      Detective Brent Johnson with the DCSO responded to the scene of the vehicle. He
photographed and searched the car. He did not find any weapons in the car.

        Jennifer Jones, a paramedic, responded to the victim. She found no pulse. She
identified a photograph of the victim taken at the scene as he was found. This photograph
depicts the victim’s body lying inside the trailer near the doorway. Jones observed what
appeared to be three gunshot wounds to the victim’s torso.

       Agent Joe Craig of the Tennessee Bureau of Investigation (“the TBI”) reported to the
scene to assist in the investigation. He collected a 30.06 deer rifle, a 20-gauge shotgun, a .32
caliber handgun, and a .38 caliber handgun. He later determined that the Defendant had been
shot with the .32 caliber handgun and that the gun had been shot twice. He also found a
second .38 caliber handgun lying outside in a wooded area. This gun had five empty casings
in it.

       During his investigation, Agent Craig moved the victim’s body and found an earring
underneath. He later determined that this earring was consistent in appearance with an
earring the Defendant was wearing in his driver’s license photograph.

       Agent Alex Brodhag of the TBI testified that he was a firearms examiner. He
examined a .38 caliber revolver, five fired .38 cartridge cases, and five fired .38 caliber
bullets. He determined that the five fired bullets, which were collected from the medical
examiner’s office, had been fired through the .38 revolver.

       Agent Brodhag also examined a .32 caliber revolver, four unfired .32 caliber
cartridges, and two fired .32 caliber cartridges. He determined that one of the fired cartridges
had been fired from the revolver. His results as to the other fired cartridge were
inconclusive.

        Agent Brodhag also examined a black T-shirt that had been recovered from the victim
and a blue T-shirt that had been recovered from the Defendant. There were three holes in
the left sleeve of the victim’s T-shirt. Testing revealed that there was gunshot residue around
the holes in the victim’s T-shirt and that the .38 caliber revolver left residue if shot within
a distance of four to five feet.




                                               8
       Agent Brodhag found a bullet hole in the front left side of the Defendant’s T-shirt and
lead residue around the hole. The shape of the hole led him to conclude that it resulted from
a contact shot.

       Dr. Bridget Eutenier, a forensic pathologist with the Office of the Medical Examiner
in Nashville, testified that Dr. Stacy Turner, formerly of the Medical Examiner’s Office, had
performed the autopsy on the victim. Dr. Eutenier was familiar with the autopsy report that
Dr. Turner prepared. The report provided that the victim had suffered multiple gunshot
wounds and that five projectiles were recovered from the victim’s body. Four gunshot
wounds to the victim’s torso could each have been fatal. Thus, the cause of the victim’s
death was multiple gunshot wounds.

       The State rested its case-in-chief after Dr. Eutenier’s testimony.

        The Defendant testified that he was thirty-two years old. In August 2008, he was
living with Cindy Anderson at her house. Diane spent the night of August 23, 2008, with
them. At about noon on August 24, 2008, he and Cindy drove Diane back to her residence.
With them were Jordan and Riley. When they dropped Diane off, she and the victim “got
into an altercation.” The Defendant had not met the victim previously. He stated that he saw
the victim “smack” Diane. The Defendant asked the victim if he had a problem with Diane
being there. The victim pulled out his gun, “waved it around, and told everybody to get off
of his property.” The Defendant stated that he and Riley “exchanged a few words” with the
victim, but he did not recall what was said. On the way back to West Nashville, Boo called
and asked for their help in moving Diane out. Cindy dropped him and Riley off at the
Walmart in West Nashville, and they were then picked up by Boo and Gator and Hale and
Lacey.

       Beggs flagged them down at Skeeter’s. The Defendant testified that, there, “[w]ords
were exchanged between Kevin Hale and Mr. Beggs.” He remembered Beggs saying, “don’t
hurt my father,” but he did not recall what Hale said. He testified that he did not say
anything.

        When the Defendant got to the victim’s house, he saw the victim sitting in a doorway
with his feet on the steps. He told the victim that they were there to get Diane’s belongings,
that they weren’t looking for any trouble, and that they would be gone after they got her
things. According to the Defendant, the victim “immediately jumped up and put a gun in
[his] face and told [him] that he would blow [his] effing brains out.” The Defendant pushed
the gun out of his face and the two men fell over. The gun discharged as he was pushing it
away. The Defendant testified: “I fall down on top of him, and I’m trying to wrestle him to
make sure he doesn’t get the gun close enough to shoot me and kill me.” During the

                                              9
struggle, the Defendant was shot. After being shot, all the Defendant remembered was Riley
pulling off his shirt for a compress and Riley and Boo helping him to the car. He did not
recall hearing five shots. He was subsequently flown to Vanderbilt Hospital.

       The Defendant denied that there was any talk about attacking or hurting the victim in
the car during the second trip to the victim’s property.

       On cross-examination, the Defendant denied picking up any garden tools and handing
them to his cohorts. He denied that he intended to assault the victim. He maintained that he
“went there just for support for Boo and Gator.”

       Based on this proof, the jury convicted the Defendant of the lesser-included offense
of criminally negligent homicide on the original charge of first degree premeditated murder.
The jury convicted the Defendant as charged of first degree felony murder and aggravated
burglary. The trial court sentenced the Defendant to life imprisonment and then merged the
convictions of criminally negligent homicide and aggravated burglary into the Defendant’s
conviction of first degree felony murder. This appeal followed, and the Defendant seeks to
have his conviction of first degree felony murder reversed on the basis of insufficient
evidence. The State seeks reinstatement of the Defendant’s aggravated burglary conviction.

                                           Analysis

                                  Sufficiency of the Evidence

        The Defendant was convicted of first degree felony murder in the perpetration of, or
attempt to perpetrate, an aggravated burglary. See Tenn. Code Ann. § 39-13-202(a)(2)
(Supp. 2008). An aggravated burglary, as charged in this case, is committed when a person
enters a habitation without consent and with the intent to commit an assault. See id. §§ 39-
14-403(a), -402(a)(3) (2006). “Habitation” “[m]eans any structure, including buildings,
module units, mobile homes, trailers, and tents, which is designed or adapted for the
overnight accommodation of persons” and “[i]ncludes each separately secured or occupied
portion of the structure . . . and each structure appurtenant to or connected with the
structure.” Id. § 39-14-401(1)(A), (1)(C) (2006). An assault, as the jury was instructed in
this case, is committed when a person “[i]ntentionally, knowingly or recklessly causes bodily
injury to another.” Id. § 39-13-101(a)(1) (2006). Additionally, one criminal actor can be
held criminally liable for the criminal acts of his cohort – in this case, Hale’s shooting of the
victim – when, “[a]cting with intent to promote or assist the commission of the offense, or
to benefit in the proceeds or results of the offense, the person solicits, directs, aids, or
attempts to aid another person to commit the offense[.]” Id. § 39-11-402(2) (2006).



                                               10
        The Defendant contends that he lacked the requisite intent to commit an assault and
that his “actions were in self-defense – nothing more.” He asserts that “[o]nly after the gun
was pushed into [his] face did [he] or others make any sort of physical assault on [the
victim]” and that he did not enter the victim’s habitation with the intent to commit an assault.

       Our standard of review regarding sufficiency of the evidence is “whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.” Jackson
v. Virginia, 443 U.S. 307, 319 (1979); see also Tenn. R. App. P. 13(e). After a jury finds a
defendant guilty, the presumption of innocence is removed and replaced with a presumption
of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Consequently, the defendant
has the burden on appeal of demonstrating why the evidence was insufficient to support the
jury’s verdict. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

       The appellate court does not weigh the evidence anew; rather, “a jury verdict,
approved by the trial judge, accredits the testimony of the witnesses for the State and resolves
all conflicts” in the testimony and all reasonably drawn inferences in favor of the State. State
v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, “the State is entitled to the strongest
legitimate view of the evidence and all reasonable or legitimate inferences which may be
drawn therefrom.” Id. (citation omitted).

      This standard of review applies to guilty verdicts based upon direct or circumstantial
evidence. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (citing State v. Hanson, 279
S.W.3d 265, 275 (Tenn. 2009)). In Dorantes, our Supreme Court adopted the United States
Supreme Court standard that “direct and circumstantial evidence should be treated the same
when weighing the sufficiency of such evidence.” Id. at 381. Accordingly, the evidence
need not exclude every other reasonable hypothesis except that of the defendant’s guilt,
provided the defendant’s guilt is established beyond a reasonable doubt. Id.

        Viewing the evidence in the light most favorable to the State, as we are bound to do,
we hold that the evidence was sufficient to support the Defendant’s conviction of first degree
felony murder in the perpetration of, or attempt to perpetrate, an aggravated burglary. The
evidence established that, earlier in the day, the Defendant and the victim had a confrontation
during which the victim pulled a gun and threatened the Defendant. The Defendant taunted
the victim that he, the victim, did not have “the balls” to shoot the Defendant. Later in the
day, knowing that the victim was armed, the Defendant returned to the victim’s residence and
confronted the victim as the victim sat on the steps fronting the open doorway to his
bedroom. The Defendant challenged the victim saying, “Remember you pulled a gun on me
earlier? Well, I got one now.” The Defendant also took some of the victim’s garden tools
and passed them to his cohorts, effectively arming them.

                                              11
       As the Defendant might reasonably have anticipated, his actions provoked the victim
into pulling his gun and aiming it at the Defendant. Instead of retreating, the Defendant
knocked the gun out of his face, and Hale then knocked the victim back into the victim’s
bedroom. The Defendant, rather than running away from an armed man, went after the
victim and landed on top of him. That is, the Defendant entered the victim’s habitation and
began struggling with the victim. This struggle soon resulted in the victim shooting the
Defendant and Hale shooting the victim.

        That the Defendant approached the victim already intending to cause bodily injury to
the victim is apparent from the Defendant’s actions in provoking the victim and arming his
cohorts. The Defendant clearly was seeking an excuse to “eff up” the victim, as he stated he
was going to do while still at Skeeter’s. Once he had provoked the victim into aiming his
gun at him, the Defendant began his physical assault by striking the victim’s hand. After his
cohort then knocked the victim into the victim’s home, the Defendant pursued the victim into
the residence and began a physical struggle with the victim. Accordingly, we hold that the
evidence was sufficient to support the Defendant’s conviction of first degree felony murder
committed in the perpetration of an aggravated burglary. The Defendant is entitled to no
relief on this basis.

                         Merger of Aggravated Burglary Conviction
                         with First Degree Felony Murder Conviction

        The record reflects that, after the jury returned its verdict, the trial court sentenced the
Defendant to life in prison. The prosecutor then asked, “I believe Count One and Count Two
would merge?” The trial court responded, “Yes. That [sentence of life imprisonment] was
on Count Two. Count One and Three would merge into Count Two.” The conviction
entered on Count One was criminally negligent homicide. The conviction entered on Count
Three was aggravated burglary. The State lodged no objection to the mergers. The trial
court subsequently entered judgments of conviction on each count, and indicated at the
bottom of the judgment order entered on Count Three, “Count 3 merges with Count 2.” 3 The
State now asks us to recognize the trial court’s merger of the aggravated burglary conviction
as plain error and to reinstate that conviction and remand for sentencing on that conviction.
In his reply brief, the Defendant argues that State v. Bise, 380 S.W.3d 682 (Tenn. 2012),
applies to protect him from this Court reinstating his conviction of aggravated burglary.

       Initially, we note that our supreme court has made clear that double jeopardy
principles permit convictions of both felony murder and the underlying felony. See, e.g.,


       3
          The trial court also indicated at the bottom of the judgment order entered on the criminally
negligent homicide conviction that “Count 1 merges with Count 2.”

                                                 12
State v. Blackburn, 694 S.W.2d 934, 936-37 (Tenn. 1985). Accordingly, the trial court
clearly erred when it ordered the merger of the Defendant’s aggravated burglary conviction
into his conviction of first degree felony murder.

        Tennessee’s Rules of Appellate Procedure provide that, “[w]hen necessary to do
substantial justice, an appellate court may consider an error that has affected the substantial
rights of a party at any time, even though the error was not raised in the motion for a new
trial or assigned as error on appeal.” Tenn. R. App. P. 36(b) (emphasis added). In the
context of criminal jurisprudence, this level of error is referred to as “plain error.” See State
v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000). Before an appellate court may grant relief on
the basis of plain error, five prerequisites must be satisfied: (1) the record must clearly
establish what took place in the trial court; (2) a clear and unequivocal rule of law must have
been breached; (3) a substantial right of the complaining party must have been adversely
affected; (4) the complaining party did not waive the error for tactical reasons; and (5) review
of the error is necessary to do substantial justice. Id. (quoting State v. Adkisson, 899 S.W.2d
626, 641-42 (Tenn. Crim. App. 1994)). The Defendant has cited us to no authority, and we
are aware of none, that limits the application of the plain error doctrine to errors claimed by
a defendant. Accordingly, we will consider whether the State is entitled to plain error relief
from the trial court’s merger of the Defendant’s conviction of aggravated burglary into his
conviction of first degree felony murder.

       First, as set forth above, the record clearly establishes what occurred in the trial court.
Second, we are aware of no legal basis for the merger of the Defendant’s conviction for
aggravated burglary into his conviction for first degree felony murder. Thus, we deem the
second plain error prerequisite satisfied. Third, the State’s right to have the Defendant
sentenced for his conviction of aggravated burglary was violated by the trial court’s
erroneous merger. We deem this right to be substantial and that, as a result, the third plain
error prerequisite is satisfied. Fourth, we can conceive of no tactical reason for the State to
have waived its objection to the trial court’s erroneous merger. We only can presume that
the prosecutor failed to appreciate the trial court’s action at the time. Therefore, we deem
the fourth plain error prerequisite satisfied. Fifth and finally, consideration of the erroneous
merger is necessary to do substantial justice. The jury convicted the Defendant of aggravated
burglary. The evidence was sufficient to support this conviction. The trial court’s erroneous
merger of this conviction deprives the State of the benefit of the jury’s verdict. Accordingly,
we deem the fifth plain error prerequisite satisfied.

       The Defendant’s reliance on Bise in response to the State’s argument is misplaced.
Bise addresses the effect of a trial court’s misapplication of enhancement or mitigating
factors, 380 S.W.3d at 706, and the standard of review that appellate courts should utilize in
reviewing a trial court’s sentencing decisions. Id. at 707. Because the trial court never

                                               13
sentenced the Defendant for his aggravated burglary conviction,4 Bise is simply inapposite.

        In sum, we have determined that the State has demonstrated that the trial court
committed plain error when it merged the Defendant’s conviction of aggravated burglary into
his conviction for first degree felony murder. Therefore, we order the trial court to reinstate
the Defendant’s conviction of aggravated burglary, to conduct a sentencing hearing relevant
to this conviction, and to impose sentence accordingly.

                                            CONCLUSION

       We affirm the Defendant’s conviction of first degree felony murder. We remand this
matter for the trial court to reinstate the Defendant’s conviction of aggravated burglary and
to sentence the Defendant thereon.




                                                 ________________________________
                                                 JEFFREY S. BIVINS, JUDGE




       4
            We reject the Defendant’s argument that a merged conviction is the equivalent of a concurrent
sentence.

                                                    14
