                                                                                          08/28/2019
             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT KNOXVILLE
                        Assigned on Briefs July 24, 2019

                 STATE OF TENNESSEE v. RICHARD WILLIAMS

                  Appeal from the Criminal Court for Knox County
                     No. 108261 Steven Wayne Sword, Judge
                     ___________________________________

                           No. E2018-01460-CCA-R3-CD
                       ___________________________________


Richard Williams, Defendant, was indicted on two counts of attempted first degree
murder, one count of attempted first degree murder where the victim suffered serious
bodily injury, and two counts of employing a firearm during the commission of a
dangerous felony. Following a jury trial, Defendant was convicted on all counts as
charged and received a total effective sentence of thirty-six years in the Tennessee
Department of Correction. On appeal, Defendant challenges the sufficiency of the
evidence. After a thorough review of the record, we affirm the trial court’s judgments.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and TIMOTHY L. EASTER, JJ., joined.

Gerald L. Gulley, Jr. (on appeal), and Kit Rodgers (at trial), Knoxville, Tennessee, for the
appellant, Richard Williams.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant
Attorney General; Charme P. Allen, District Attorney General; and Phil Morton and
TaKisha Fitzgerald, Assistant District Attorneys General, for the appellee, State of
Tennessee.


                                        OPINION

                        I. Factual and Procedural Background

                                   Procedural History

       A Knox County Grand Jury indicted Defendant on the following charges:
Count                              Charge                                              Victim
  1                     Attempted First Degree Murder                                Larry North
            Attempted First Degree Murder Where the Victim Suffers
   2                                                                                 Larry North
                             Serious Bodily Injury
                Employing a Firearm During the Commission of a
   3                                                                                 Larry North
               Dangerous Felony: Attempted First Degree Murder
   4                    Attempted First Degree Murder                              Jamir Greenlee
                Employing a Firearm During the Commission of a
   5                                                                               Jamir Greenlee1
               Dangerous Felony: Attempted First Degree Murder

        Following a jury trial, Defendant was found guilty as charged on all counts. The
trial court merged Defendant’s conviction in Count 1 into Count 2. The trial court
sentenced Defendant, as a standard Range I offender, to a total effective sentence of
thirty-six years to serve.

       Defendant filed a timely motion for new trial, which was denied by the trial court.
This timely appeal follows.

                                           Trial Testimony

       At trial, Michael Alan Mays testified that he worked for the Knox County
Emergency Communications District. Mr. Mays explained how a computer-aided
dispatch report was generated. A computer-aided dispatch report for a shooting that
occurred on April 2, 20162, was admitted into evidence. Mr. Mays testified that he
prepared a disc of 911 calls related to the shooting. The 911 calls were then admitted into
evidence and played for the jury.

       Diana Campbell testified that she lived on the fifth floor at Townview Towers
apartments (“Townview Towers”), which faced the Vistas Apartments (“Vistas”). Ms.
Campbell was watching television in her apartment when she heard about two gunshots
on April 2, 2016. When she looked out her balcony, she saw a man who had been shot,
lying outside with a child in his arms. Ms. Campbell saw another person run towards Hill
Avenue. She heard the man who was lying on the ground yell for help, so she called 911.
Ms. Campbell testified that she saw a woman take the child from the man lying on the

        1
           For purposes of clarity and consistency, we will refer to Jamir Greenlee as “the minor victim”
for the remainder of the opinion.
         2
           Based on this court’s review of the record, there was some variation in the testimony regarding
the date of the shooting because it was unclear whether the shooting occurred prior to midnight on April
1, 2016, or after midnight on April 2, 2016.

                                                  -2-
ground and look after the child until the authorities arrived. Ms. Campbell testified that
she heard a total of about ten gunshots. On cross-examination, Ms. Campbell testified
that she did not get a good look at the person who fled the scene.

       Sharon Gass testified that she lived on the fifth floor at Townview Towers. On
April 2, 2016, after Ms. Gass heard about four gunshots, she stepped outside and saw a
person pointing a gun at another person and shooting him. As she stepped into her
apartment to get her phone to call 911, the shooter fled the scene. Ms. Gass testified that
she did not see anyone outside other than the man who was shot and the shooter. On
cross-examination, Ms. Gass testified that she did not see if the shooter was a male or
female or what the shooter was wearing.

       Amy Cardwell testified that she lived on the bottom level of the Vistas in April
2016. The front window of her apartment faced the steps that led up to Townview
Towers. On April 2, 2016, Ms. Cardwell heard gunshots and looked outside her window.
She saw a person shooting up towards the top of the steps at another person. She saw the
shooter stand “there for a good minute and then he slowly actually turned to walk away
[with] . . . the gun down by his side.” Ms. Cardwell testified that she heard or saw about
five or six gunshots. She also testified that she did not see who the man was shooting at
because her view was obstructed. After Ms. Cardwell saw the shooter walk away
towards Summit Hill Avenue, she went over to the steps while she was on the phone with
a 911 operator and saw a man lying on the ground who was bleeding and a little boy
standing next to him. On cross-examination, Ms. Cardwell testified that she thought that
the shooter was a black male based on his height and how his hands looked.

        The victim, Larry North, testified that he had been friends with Defendant, Kipling
Colbert, Malik George, and Chris Bassett since high school. Mr. North testified that his
relationship with these individuals deteriorated, and they stopped talking to Mr. North
after the police had questioned him in December 2015 about an unrelated shooting. Mr.
North testified that Defendant stayed at Mr. North’s apartment at Townview Towers for
about a month or two.

       Mr. North testified that Mr. George contacted Mr. North after he left the police
station to ask him what he said to the police when the police questioned him in December
2015. Mr. North testified, “I don’t remember what I said to [Mr. George] . . . because
I’ve not said one thing to [Mr. George] on the phone that [Mr. George] like flipped, like
why do you tell [the police] this and that, [and] . . . [Mr. George] h[u]ng up on me.” Mr.
North attempted to call Mr. George back twice after Mr. George hung up, but Mr. George
did not answer. On the third attempt, Mr. North spoke to Mr. George, who asked Mr.
North why he spoke to police. Mr. George also told Mr. North that the two of them were
going to have to fight.
                                           -3-
        Mr. North testified that he sent a video to Mr. Colbert through Snapchat on
December 22, 2015, and asked Mr. Colbert, “friend, what you doing” because the two
had not talked in a while. Mr. Colbert did not say anything in response, but he sent a
video back to Mr. North, and in the video, Mr. Colbert was holding a revolver in his
hand. Mr. North testified that he contacted Mr. Colbert again through Snapchat, stating
the following in the message:

      [Y]ou’re my cousin, I know what you heard was found -- it’s way more so I
      just want you to hear my side, meet me up in the a.m., no speaker, talking
      about like don’t have me on speaker phone, just me and you. It’s more than
      what you all -- you’re all family, you’re my family and I love you
      regardless.

In response to Mr. North’s message, Mr. Colbert posted the following on Snapchat: “[Mr.
North is] staying at Towers. Tell anybody [Mr. Colbert] got him ten bands, to off this
n***** if they catch [Mr. North] before [Mr. Colbert] do[es].” Mr. North explained that
“Towers” referred to Townview Towers, “ten bands” referred to $10,000, and “off this
n*****” referred to getting rid of or killing him. The Snapchat messages were admitted
into evidence and shown to the jury.

       Mr. North also testified that he does not recall who, but someone called Mr. North
a snitch in a post on Facebook prior to the shooting. Mr. North testified that, before the
shooting, the last time he had seen Defendant was at a New Year’s Eve party with Mr.
Colbert on December 31, 2015. Mr. North testified that he had invited Defendant and
Mr. Colbert to the party. Mr. North testified that his girlfriend’s cousin took possession
of two guns from Defendant and Mr. Colbert at the New Year’s Eve party because he did
not want anybody “to start acting crazy” because people were going to be drinking. Mr.
North testified that he did not know the type of the gun that was taken from Defendant.
On cross-examination, Mr. North testified that he did not see his girlfriend’s cousin take
the guns, but his girlfriend’s cousin told Mr. North about it at some point during the
party.

       Mr. North testified that he received a text message from Defendant on the morning
of April 1, 2016. In the message, Defendant stated that Mr. North had not talked to his
friends in a while and that he and Mr. North had not hung out in a while. Defendant
stated that the next time he was in Mr. North’s side of town, Defendant would call Mr.
North so they could get together. Mr. North and Defendant exchanged messages and
spoke on the phone a couple times throughout the day. At the beginning of the text
message conversation, Defendant and Mr. North exchanged messages to make a plan to
hang out and smoke weed. However, later in the day, Defendant told Mr. North that he
needed his duffle bag that he left at Mr. North’s apartment from when he was staying
                                          -4-
with Mr. North. Mr. North testified that he had Defendant’s duffle bag in his apartment
and that the duffle bag was filled with Defendant’s clothes. Defendant and Mr. North
exchanged text messages regarding where to meet in order for Mr. North to give
Defendant the duffle bag. At 11:51 p.m., Defendant suggested meeting Mr. North at the
steps at Townview Towers that led down towards the street and the Vistas, but Mr. North
suggested meeting at the courtyard at Townview Towers. In response, at 11:56 p.m.,
Defendant stated, “[M]eet me at the steps, bro, that’s halfway[.] I’m already out here.”
Mr. North again suggested the courtyard because the courtyard was a well-lit area and
there were balconies in the nearby vicinity with other residents outside. Mr. North
testified that he “started feeling fishy about” the meeting at this point because he was
worried about getting “ganged.” Mr. North testified that he thought if he brought his
two-year-old nephew, the minor victim, with him to meet Defendant, Defendant would
be less likely to do anything to Mr. North.

       Mr. North testified that he left his apartment with Defendant’s duffle bag and the
minor victim, to meet Defendant at the steps around 11:58 p.m. After Mr. North reached
the steps, he took a few steps until he saw Defendant’s upper body in a black hoodie. As
soon as Mr. North crossed the street to get to the top of the steps, Defendant began
shooting at him. Mr. North testified that he immediately pushed his nephew out of the
way and then attempted to take off running, but he took one step and “hit the ground.”
Mr. North testified that he began yelling for help. He also testified that, when he was
lying on the ground, he saw an older black lady holding his nephew.

        Mr. North testified that he was shot twice in his right calf muscle, once on his left
inner thigh, twice on his right inner thigh, once on the front right thigh, once on his hip,
and once in his arm, shattering the bone, which required him to get a plate inserted in his
arm. Mr. North testified that he was unable to work because the plate placed too much
strain on his arm. He also testified that because of the way he landed on his hand when
he fell to the ground, he was unable to bend two of his fingers on his dominant hand. A
picture of Mr. North and his nephew was shown to the jury to show that his nephew
nearly reached Mr. North’s waistline. Mr. North marked on the picture to show all of the
places he was shot, and it was admitted into evidence. A marked-up map of Townview
Towers was also admitted into evidence.

       On cross-examination, Mr. North agreed that he testified at the preliminary
hearing that he did not see who the shooter was because the shooter had on a black
hoodie and there were no lights in the area where he was shot; therefore, he only saw a
shadow from the black hoodie the shooter was wearing. On cross-examination at trial,
Mr. North testified that he could not identify the face of the shooter. When defense
counsel asked Mr. North if it could have been Mr. Colbert who shot him that night, Mr.

                                            -5-
North responded, “I don’t know. You never know.” When asked if it could have been
Mr. George, Mr. North responded, “Never know.”

       Analise Blanchard testified that she was a trauma core nurse at UT Medical Center
in April 2016. Ms. Blanchard was the charge nurse when Mr. North was admitted at UT
Medical Center on April 2, 2016. Mr. North’s vital signs were stable, and he was alert
and oriented when he was admitted. Ms. Blanchard testified that gunshot wounds always
have the potential to be fatal, whether from direct contact or from a secondary infection.

        Officer Jacob Wilson of the Knoxville Police Department (“KPD”) testified that
he was filling out paperwork in his police cruiser when he heard gunshots on April 2,
2016. Officer Wilson started driving towards Townview Towers before he received a
call about a shooting that occurred at Townview Towers. Officer Wilson testified that he
was able to arrive at the scene in about thirty seconds because Townview Towers were
located across the street from Officer Wilson’s location. When Officer Wilson arrived on
the scene, he observed Mr. North, who appeared to be conscious, lying face down at the
top of the steps that led to the Vistas. On cross-examination, Officer Wilson testified that
he did not see the shooter when he arrived at the scene.

       Officer Wilson testified that he assisted as other officers attempted to locate Mr.
Colbert a few days after the shooting. Organized crime unit officers of the KPD were
monitoring surveillance cameras in order to locate Mr. Colbert because he was wanted at
the time due to outstanding felony warrants. After the organized crime unit officers
observed Mr. Colbert in a vehicle, they requested a marked police cruiser to stop the
vehicle. Officer Wilson received the request by radio, and he responded to it. Officer
Wilson’s cruiser was equipped with video cameras, and he had a video camera on his
person as well. The video of the stop was admitted into evidence and played for the jury.
There were three individuals in the vehicle, and all three individuals fled the traffic stop
on foot towards a nearby park. Officer Wilson chased a person that had been in the back
seat of the vehicle, who turned out to be Darrell Sly. Officer Wilson apprehended Mr.
Sly on Hazen Street. The driver of the vehicle, Defendant, was apprehended by other
officers. The passenger of the vehicle, Mr. Colbert, was not apprehended at the time;
however, he later voluntarily showed up at the police department to turn himself in.

       Officer Jacob Schettler of the KPD testified that he assisted Officer Wilson and
other officers on the traffic stop and foot pursuit on April 4, 2016. Officer Schettler
chased Defendant during the foot pursuit, and he apprehended Defendant within 200
yards from the location of the traffic stop. When Officer Schettler searched Defendant,
he found a red bandana with eight, nine millimeter bullets in Defendant’s pants pocket.
Officer Schettler testified that a .38 Special Revolver was recovered that evening in a
location that the three individuals crossed during the foot pursuit. Officer Schettler also
                                           -6-
testified that another firearm was recovered about a week later after a landscaper found it
when he was mowing the lawn in the general area of the foot pursuit. On cross-
examination, Officer Schettler testified that he did not see Defendant toss anything during
the foot pursuit.

        Lucas Shayne McBee testified that he was employed by the City of Knoxville in
April 2016, and he mowed the city parks and other areas for the city. Mr. McBee
testified that the parks were mowed on a bi-weekly basis. On April 14, 2016, around
7:30 a.m., Mr. McBee began mowing Morningside Park. Mr. McBee was mowing
around a bush when he noticed a gun on the ground. Mr. McBee contacted his boss after
he found the gun, and his boss contacted the KPD. Mr. McBee testified that he did not
notice the gun when he mowed the park two weeks prior, on March 31, 2016. On cross-
examination, Mr. McBee testified that he did not know how long the gun had been at that
location before he found it.

      Officer Jason Boston of the KPD testified that he responded to a call regarding the
gun that was found in Morningside Park on April 14, 2016. Officer Boston secured the
weapon after the foreman of the mowing crew showed Officer Boston where the gun was
found. Officer Boston testified that the gun was loaded when he secured it. Officer
Boston called crime scene technician, Officer Russ Whitfield, to the scene.

       Officer Whitfield of the forensic unit at the KPD testified that he responded at
Morningside Park on April 14, 2016. Officer Whitfield took photographs of the gun and
collected it. Officer Whitfield attempted to recover fingerprints off of the gun; however,
he was unable to retrieve any viable prints because the gun had “a good amount of rust on
it.” Officer Whitfield recovered a partial fingerprint off of the magazine that was inside
of the gun. Officer Whitfield also swabbed the gun for DNA. Officer Whitfield testified
that the gun was a Springfield nine millimeter. He also stated that the gun had probably
been outside for about twelve to fourteen days based on information from patrol officers.

       Officer Timothy Schade of the forensic unit at the KPD testified as an expert in
fingerprint examination. Officer Schade performed a fingerprint analysis for a partial
latent print that was recovered from the magazine of the Springfield nine millimeter.
Officer Schade determined that there was not enough detail to make an identification.

       Special Agent Marla Newport, a forensic scientist at the Tennessee Bureau of
Investigation (“TBI”), Knoxville Crime Lab, testified as an expert in the area of forensic
biology. Special Agent Newport examined three swabs from the Springfield nine
millimeter. Special Agent Newport tested the swabs for touch DNA. No DNA profile
was obtained from the swabs of the grip and trigger of the gun. A limited DNA profile
was obtained from the swab of the magazine of the gun; however, the limited profile was
                                           -7-
available for exclusionary purposes only. Special Agent Newport testified that the
comparison that was performed with the standard of Defendant’s DNA was inconclusive.

        Stephanie Housewright, a crime scene technician at the KPD, testified that she
responded to the crime scene in the early morning hours of April 2, 2016, at Townview
Towers. After she arrived on the scene, she took photographs of Mr. North, who she
found lying on the sidewalk. Ms. Housewright identified photographs that she had taken
at the crime scene of Mr. North’s injuries, the general location of the crime scene, and all
items that were at the crime scene. Ms. Housewright identified eight casings and three
bullet fragments that she collected from the scene. She testified that all of the casings
were nine millimeter casings. Ms. Housewright testified that she retrieved a bullet
fragment from UT Medical Center that was extracted from the victim. Ms. Housewright
testified that she also observed a large duffle bag approximately five or six feet from the
victim. The duffle bag was retrieved by a family member of the victim.

        On April 4, 2016, Ms. Housewright responded to a call to process a scene where
the foot pursuit had taken place at Morningside Park. After she arrived, she was told by
other officers that they had found some items of evidence they needed photographed and
collected. She photographed the .38 Special Revolver that was fully loaded and took
possession of it. She also photographed two cell phones that were at the scene and took
possession of them as well. Ms. Housewright photographed a bandana with bullets inside
of it that the officers found inside Defendant’s pocket.

       Patricia Resig, a firearms examiner in the forensic unit at the KPD, testified as an
expert in firearms examination. Ms. Resig testified that the Springfield nine millimeter
that was found at Morningside Park was a semiautomatic pistol that required a separate
pull of the trigger after each shot was fired, and the casing was automatically extracted
from the chamber and ejected from the gun. She also explained that the gun required a
detachable box magazine that contained the live rounds or the cartridges, which would be
inserted into the gun in order to fire the gun. Ms. Resig testified that the casings from the
scene of the shooting were all Winchester manufactured, nine millimeter Luger caliber.
Ms. Resig testified that the casings found at the scene were not fired from the .38 Special
Revolver that was found on April 4, 2016. After Ms. Resig examined the eight casings
from the scene, she determined that seven out of the eight were fired in the same
unknown gun. The eighth casing did not have enough individual characteristics to make
such a determination; however, it was probably fired in the same gun as the other seven
casings. Ms. Resig testified that the two fired bullet fragments and the one bullet
fragment from Mr. North were fired from the same nine millimeter gun.

       Ms. Resig testified that she was able to determine that seven out of the eight
casings that she examined from the crime scene were fired from the Springfield nine
                                            -8-
millimeter that was found at Morningside Park on April 14, 2016, based on her
examination of markings on the casings. The eighth casing did not have enough of the
characteristics in order for her to make such a determination. Ms. Resig also testified that
the two fired bullet fragments and the one bullet fragment that was extracted from Mr.
North shared class characteristics and “could have been fired from the same gun.”

       Based on this proof, the jury found Defendant guilty on all charges.

                                        II. Analysis

        On appeal, Defendant contends that the evidence at trial was insufficient to
support his convictions for attempted first degree murder and employing a firearm during
the commission of a dangerous felony. The State responds that it provided sufficient
evidence for any rational trier of fact to convict Defendant of three counts of attempted
first degree murder and two counts of employing a firearm during the commission of a
dangerous felony. We agree with the State.

        Our standard of review for a sufficiency of the evidence challenge 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) (emphasis in original); see also Tenn. R.
App. P. 13(e). Questions of fact, the credibility of witnesses, and weight of the evidence
are resolved by the fact finder. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This
court will not reweigh the evidence. Id. Our standard of review “is the same whether the
conviction is based upon direct or circumstantial evidence.” State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)) (internal quotation marks omitted).

       A guilty verdict removes the presumption of innocence, replacing it with a
presumption of guilt. Bland, 958 S.W.2d at 659; State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). The defendant bears the burden of proving why the evidence was
insufficient to support the conviction. Bland, 958 S.W.2d at 659; Tuggle, 639 S.W.2d at
914. On appeal, the “State must be afforded the strongest legitimate view of the evidence
and all reasonable inferences that may be drawn therefrom.” State v. Vasques, 221
S.W.3d 514, 521 (Tenn. 2007).

       As relevant here, first degree murder is “[a] premeditated and intentional killing of
another[.]” Tenn. Code Ann. § 39-13-202(a)(1) (2016). “A person commits criminal
attempt who, acting with the kind of culpability otherwise required for the offense . . .
[a]cts 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
                                            -9-
be, and the conduct constitutes a substantial step toward the commission of the offense.”
Tenn. Code Ann. § 39-12-101(a)(3) (2016).

        A person acts intentionally “when it is the person’s conscious objective or desire
to engage in the conduct or cause the result.” Tenn. Code Ann. § 39-11-302(a) (2016).
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.” Tenn. Code Ann. § 39-13-202(d) (2016). Additionally, “[t]he
mental state of the accused at the time the accused allegedly decided to kill must be
carefully considered in order to determine whether the accused was sufficiently free from
excitement and passion as to be capable of premeditation.” Id.

        Premeditation “may be established by proof of the circumstances surrounding the
killing.” State v. Suttles, 30 S.W.3d 252, 261 (Tenn. 2000). Moreover, there are several
factors which tend to support the existence of premeditation, including the use of a
deadly weapon upon an unarmed victim, the fact that the killing was particularly cruel,
declarations of an intent to kill by the defendant, evidence of procurement of a weapon,
the making of preparations before the killing for the purpose of concealing the crime, and
calmness immediately after the killing. Id. “Whether premeditation is present in a given
case is a question of fact to be determined by the jury from all of the circumstances
surrounding the killing.” State v. Davidson, 121 S.W.3d 600, 614 (Tenn. 2003) (citing
Suttles, 30 S.W.3d at 261); State v. Pike, 978 S.W.2d 904, 914 (Tenn. 1998)).

       The identity of the perpetrator is an essential element of any crime and may be
proven by circumstantial evidence alone. State v. Rice, 184 S.W.3d 646, 662 (Tenn.
2006) (citing State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002) and State v. Thompson, 519
S.W.2d 789, 793 (Tenn. 1975)). The weight to be given to circumstantial evidence, the
inferences to be drawn from such evidence, and “the extent to which the circumstances
are consistent with guilt and inconsistent with innocence” are questions for the jury. Id.
(quoting Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958)).

                                      A. Larry North

                                        i. Count 2

      Defendant argues that the “State did not produce sufficient evidence that []
Defendant attempted the first[]degree murder of [Mr.] North.” The State responds that it
provided sufficient evidence for any rational trier of fact to convict Defendant of
attempted first degree murder of Mr. North. We agree with the State.

                                           - 10 -
        As pertinent here, serious bodily injury is defined as “bodily injury that involves”
“[a] substantial risk of death”; “[p]rotracted unconsciousness”; “[e]xtreme physical pain”;
“[p]rotracted or obvious disfigurement”; “[p]rotracted loss or substantial impairment of a
function of a bodily member, organ or mental faculty[.]” Tenn. Code Ann. § 39-11-
106(a)(34)(A)-(E) (2016). “‘Bodily injury’ includes a cut, abrasion, bruise, burn or
disfigurement, and physical pain or temporary illness or impairment of the function of a
bodily member, organ, or mental faculty[.]” Tenn. Code Ann. § 39-11-106(a)(2) (2016).
This court has held that the subjective nature of pain is a fact to be determined by the trier
of fact. State v. Eric A. Dedmon, No. M2005-00762-CCA-R3-CD, 2006 WL 448653, at
*5 (Tenn. Crim. App. Feb. 23, 2006), no perm. app. filed.

       The evidence at trial established that Mr. North and Defendant exchanged
messages on April 1, 2016, and they planned to meet in order for Mr. North to give
Defendant a duffle bag that Defendant had left at Mr. North’s apartment. Defendant
insisted on meeting Mr. North at the steps near Townview Towers. Defendant
immediately opened fire after Mr. North walked over to the top of the steps with the
minor victim. Mr. North immediately pushed the minor victim out of the way after
Defendant began shooting. There was no proof presented at trial to show that Mr. North
was armed. A rational trier of fact could have determined that Defendant had time to
think and premeditate over his actions before he went to the bottom of the steps at
Townview Towers and opened fire on Mr. North. Mr. North testified that he was shot
twice on his right calf muscle, once on his left inner thigh, twice on his right inner thigh,
once on his front right thigh, once on his hip, and once in his arm. The gunshot wound
that Mr. North sustained in his arm shattered bone, which required him to get a plate
inserted in his arm. Mr. North testified that he was unable to work because the plate
placed too much strain on his arm. See Tenn. Code Ann. § 39-11-106(a)(34)(C) (2016).
Mr. North also testified that because of the way he landed on his hand when he fell to the
ground after being shot, he was unable to bend two of his fingers on his dominant hand.
See id. § 39-11-106(a)(34)(E) (2016). Ms. Cardwell testified that she saw the shooter
stand “there for a good minute and then he slowly actually turned to walk away [with] . . .
the gun down by his side.” There was evidence that a gun, the same gun that was used in
the shooting of Mr. North, was found in a park on April 14, 2016, in an area that
Defendant crossed while he attempted to flee from the police after a traffic stop on April
4, 2016. Defendant is not entitled to relief.

                         a. Identity and the Rule of Cancellation

       Defendant additionally argues that Mr. North’s testimony was subject to the rule
of cancellation because “his critical testimony about the identity of the person who shot at
him [was] contradictory, and [should not] [have been] used to support the attempted first-

                                            - 11 -
degree murder conviction.” The State responds that because there was additional
evidence to support the crimes, this issue is without merit. We agree with the State.

        Tennessee courts have recognized the rule of law, commonly referred to as the
cancellation rule, “that contradictory [sworn] statements made by a witness as to the same
fact can cancel each other out.” State v. Caldwell, 977 S.W.2d 110, 118 (Tenn. Crim.
App. 1997) (citing Taylor v. Nashville Banner Publ’g Co., 573 S.W.2d 476, 482 (Tenn.
Ct. App. 1978)). When “the proof of [a] fact lies wholly with one witness, and he both
affirms and denies it,” then there is no “evidence at all to prove the fact.” State v.
Matthews, 888 S.W.2d 446, 449-50 (Tenn. Crim. App. 1993) (quoting Johnston v.
Cincinnati N.O. & T.P. Ry. Co., 240 S.W. 429, 436 (Tenn. 1922)). “However, this rule
applies only when inconsistency in a witness’s testimony is unexplained and when
neither version of his testimony is corroborated by other evidence.” Caldwell, 977
S.W.2d at 118. This court will only disregard testimony “if it is so indefinite,
contradictory or unreliable that it would be unsafe to rest a conviction thereon.” Letner v.
State, 512 S.W.2d 643, 649 (Tenn. Crim. App. 1974) (quoting 23 C.J.S. Criminal Law §
903).

       On cross-examination at trial, Mr. North stated that he had testified under oath at
the preliminary hearing that he did not see who the shooter was because the shooter had a
“black hood on and . . . the area that he was in, it’s no lights -- no lighting right there, so
with that hood on, you just see like the shadow from the hood and then a black hoodie.”
However, there is ample evidence that corroborates Mr. North’s testimony that Defendant
was the shooter. At trial, Mr. North testified that he exchanged text messages with
Defendant throughout the day on April 1, 2016. At the beginning of the day, they
planned to meet to smoke weed; however after 9:54 p.m. on April 1, 2016, Mr. North and
Defendant exchanged text messages to discuss where to meet so Mr. North could give
Defendant his duffle bag that Defendant had left at Mr. North’s apartment. The last text
message exchanged between Mr. North and Defendant was at 11:58 p.m., before Mr.
North left his apartment with the minor victim and Defendant’s duffle bag to meet
Defendant at the steps near Townview Towers that led down to the Vistas. There was no
proof presented at trial to show that Defendant attempted to contact Mr. North after the
shooting occurred.

       In addition, when Officer Schettler apprehended Defendant after a foot pursuit on
April 4, 2016, Officer Schettler recovered a red bandana with eight, nine millimeter
bullets from Defendant’s pants pocket. These bullets matched the bullets that were used
in the shooting of Mr. North on April 2, 2016. Furthermore, a Springfield nine
millimeter was found on April 14, 2016, in an area that Defendant had crossed while he
attempted to flee from the police after the traffic stop on April 4, 2016. Although the
DNA found on the gun was inconclusive, Ms. Resig testified that seven out of the eight
                                            - 12 -
casings retrieved from the crime scene were fired from the same Springfield nine
millimeter that was found on April 14, 2016. Therefore, although Mr. North’s testimony
at trial regarding Defendant’s identity may have contradicted his testimony from the
preliminary hearing, Mr. North’s testimony at trial is corroborated by other evidence that
is discussed above. The rule of cancellation does not apply and Defendant’s identity
issue is without merit. Defendant is not entitled to relief.

                                         b. Intent

        Defendant also argues that, even if Defendant was the shooter, the State failed to
prove that he intended to kill Mr. North. The State responds that the evidence was
sufficient to show that Defendant intended to kill Mr. North because he fired multiple
shots at Mr. North. We agree with the State.

        The evidence at trial established that Mr. North’s relationship with Defendant, Mr.
George, Mr. Colbert, and Mr. Bassett deteriorated in December 2015 because Mr. North
spoke to the police regarding an unrelated shooting. As a result, the jury could have
inferred that Mr. North’s friends were disgruntled with him because they stopped
communicating with him. Furthermore, the State presented evidence that Mr. George
and Mr. Colbert threatened Mr. North for talking to the police. There was no evidence
that Mr. North was armed during the offenses, so the jury could have inferred that
Defendant used a deadly weapon against an unarmed victim. The evidence at trial
established that Mr. North was shot twice on his right calf muscle, once on his left inner
thigh, twice on his right inner thigh, once on his front right thigh, once on his hip, and
once in his arm. In addition, Ms. Cardwell testified that she saw the shooter stand “there
for a good minute and then he slowly actually turned to walk away [with] . . . the gun
down by his side.” There was evidence that the gun that was used in the shooting of Mr.
North was found in a park on April 14, 2016, in an area that Defendant crossed while he
attempted to flee from the police after the traffic stop on April 4, 2016. The jury could
have inferred that Defendant disposed of the gun after the shooting, which could indicate
an effort to conceal the crime. Therefore, there were multiple factors—the use of a
deadly weapon upon an unarmed victim; motive to kill; multiple gunshot injuries; and
calmness immediately after the shooting—that supported a finding that Defendant acted
intentionally and in a premeditated manner. In sum, the abovementioned evidence was
sufficient for any rational trier of fact to find that Defendant acted with premeditated
intent to kill Mr. North. Defendant is not entitled to relief.

       ii. Employing a Firearm during the Commission of a Dangerous Felony

      Defendant argues that if Defendant’s attempted first degree murder conviction
cannot be sustained, his conviction of employing a firearm during the commission of a
                                          - 13 -
dangerous felony has “no underlying legal predicate.” The State responds that the
evidence was sufficient to sustain Defendant’s conviction of employing a firearm during
the commission of a dangerous felony. We agree with the State.

       “It is an offense to employ a firearm during the[] . . . [c]omission of a dangerous
felony[.]” Tenn. Code. Ann. § 39-17-1324(b)(1) (2016). Attempt to commit first degree
murder is a “dangerous felony.” Tenn. Code Ann. § 39-17-1324(i)(1)(A) (2016). The
term “employ” means “to make use of.” State v. Fayne, 451 S.W.3d 362, 370 (Tenn.
2014).

       The proof at trial established that Defendant came to the bottom of the steps near
Townview Towers with a Springfield nine millimeter and shot Mr. North eight times.
Furthermore, because Defendant’s challenge to the sufficiency of the evidence supporting
the underlying conviction of employing a firearm during the commission of a dangerous
felony hinges entirely on the sufficiency of the attempted first degree murder convictions,
this court concludes that the evidence is sufficient to support that conviction as well.
Defendant is not entitled to relief.

                                   B. The minor victim

                            i. Attempted First Degree Murder

        Defendant argues that, even if Defendant was the shooter, the State failed to prove
that he intended to kill the minor victim. The State argues that the evidence was
sufficient to show that, by firing multiple shots at Mr. North and the minor victim,
“[Defendant’s] actions showed an intent to kill both victims.” We agree with the State.

        In Millen v. State, our supreme court concluded that 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[,]” 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 little application under modern statutory law.” Millen, 988 S.W.2d at 167. Our
supreme court held that “if 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. at 168.

      This court has expanded the ruling in Millen to convictions of attempted first
degree murder and attempted second degree murder, concluding that the reasoning in
                                          - 14 -
Millen applies to those offenses as well. See State v. Corderro Avant and Davario Fields,
No. W2018-01154-CCA-R3-CD, 2019 WL 3072131, at *18 (Tenn. Crim. App. July 12,
2019) (concluding that there was sufficient evidence for a rational trier of fact to find the
defendants guilty of attempted first degree murder when the defendants fired shots into a
home with the intent to kill when there were victims inside of the home), no perm. app.
filed; State v. Samuel Glass, No. E2012-01699-CCA-R3-CD, 2013 WL 4677654, at *11-
13 (Tenn. Crim. App. Aug. 28, 2013), perm. app. denied (Tenn. Dec. 26, 2013); State v.
Fabian Claxton, No. W2009-01679-CCA-R3-CD, 2011 WL 807459, at *6-7 (Tenn.
Crim. App. Mar. 7, 2011), no perm. app. filed; State v. Tarrence Parham, No. W2009-
00709-CCA-R3-CD, 2010 WL 2898785, at *11 (Tenn. Crim. App. July 26, 2010), perm.
app. denied (Tenn. Nov. 10, 2010); State v. Horace Demon Pulliam, No. M2001-00417-
CCA-R3-CD, 2002 WL 122928, at *5 (Tenn. Crim. App. Jan. 23, 2002), perm. app.
denied (Tenn. May 28, 2002).

        When viewed in the light most favorable to the State, the evidence was sufficient
for any rational trier of fact to find Defendant guilty of attempted first degree murder of
the minor victim. The proof at trial established that Mr. North walked over to the steps
near Townview Towers with the minor victim to meet Defendant. Mr. North testified
that the minor victim was with him during the shooting and that he pushed the minor
victim out of the way immediately after Defendant began shooting. The proof showed
that Defendant intentionally fired eight shots in the general direction of the minor victim,
who moments earlier walked alongside Mr. North to the steps near Townview Towers to
meet Defendant. Although the minor victim did not sustain any injuries from the
shooting, Mr. North was shot eight times and he sustained all of the injuries within a very
short time period. Because Defendant’s intent of attempted first degree murder is clear as
to Mr. North, we conclude that the proof is sufficient for conviction of attempted first
degree murder of the minor victim. Defendant is not entitled to relief.

        ii. Employing a Firearm during the Commission of a Dangerous Felony

        Defendant argues that if Defendant’s attempted first degree murder of the minor
victim cannot be sustained, his related conviction of employing a firearm during the
commission of a dangerous felony has “no underlying legal predicate.” The State
responds that the evidence was sufficient to sustain Defendant’s conviction of employing
a firearm during the commission of a dangerous felony. We agree with the State.

       We have previously set out the statutes and case law applicable to this offense.
The proof presented at trial established that Defendant showed up to the bottom of the
steps near Townview Towers with a Springfield nine millimeter and intentionally fired
eight shots in the general direction of the minor victim, who moments earlier had walked
alongside Mr. North to the top of the steps. Furthermore, because Defendant’s challenge
                                           - 15 -
to the sufficiency of the evidence supporting the underlying conviction of employing a
firearm during the commission of a dangerous felony hinges entirely on the sufficiency of
the attempted first degree murder convictions, this court concludes that the evidence is
sufficient to support that conviction as well. Defendant is not entitled to relief.

                                    III. Conclusion

      For the aforementioned reasons, we affirm the judgments of the trial court.


                                            ____________________________________
                                            ROBERT L. HOLLOWAY, JR., JUDGE




                                         - 16 -
