                                                                                       05/15/2020
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                          Assigned on Briefs March 3, 2020

               STATE OF TENNESSEE v. JOCQUEZ PARHAM

                 Appeal from the Criminal Court for Shelby County
                   No. 17-01986      James M. Lammey, Judge
                     ___________________________________

                          No. W2019-00868-CCA-R3-CD
                      ___________________________________


A Shelby County jury convicted the defendant, Jocquez Parham, of second-degree
murder (Count 1), seven counts of attempted second-degree murder (Counts 2-8), and
possession of a firearm during the commission of attempted second-degree murder
(Count 9), for which the trial court imposed an effective sentence of eighty-eight years.
On appeal, the defendant challenges the sufficiency of the evidence supporting his
convictions and argues the trial court erred in failing to designate Antonio Tibbs as an
accomplice and in failing to charge the jury accordingly. After our review, we affirm the
judgments of the trial court.

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

J. ROSS DYER, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR.
and TIMOTHY L. EASTER, JJ., joined.

Shae Atkinson, Memphis, Tennessee (on appeal) and Juni Ganguli, Memphis, Tennessee
(at trial), for the appellant, Jocquez Parham.

Herbert H. Slatery III, Attorney General and Reporter; Cody N. Brandon, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Stephanie Johnson
and Ryan Thompson, Assistant District Attorneys General, for the appellee, State of
Tennessee.


                                       OPINION

                             Facts and Procedural History
       This case arises after the defendant, Jocquez Parham, fired multiple shots into the
home of Sandra Rudd as she and her family gathered on the front porch and in the living
room. For his actions, the defendant was charged with the first-degree murder of
Ronevia Williams (Count 1); seven counts of attempted first-degree murder against
victims, O.W. Williams, Marquisha Williams, Kenkeunia Williams, Melissa Williams,
O’Mir Williams,1 Sandra Rudd, and Antonio Tibbs (Counts 2-8, respectively); and
employing a firearm during the commission of a dangerous felony (Count 9). Tenn.
Code Ann. §§ 39-12-101; -13-202; -210; -17-1324(b); -1324(i)(1)(A). The following
evidence was presented at trial.

       On December 7, 2016, Sandra Rudd hosted several members of her family at her
home located at 1911 The Oaks Avenue (“the Oaks”) in Shelby County, Tennessee. Ms.
Rudd’s children, Marquisha, Melissa, and O.W., gathered at her home along with
Marquisha’s daughters, Ronevia and Kenkeunia, and O.W.’s seven-day-old son, O’Mir.
The events that led to the shooting stemmed from a series of telephone calls exchanged
among the defendant, Mr. Tibbs, and O.W. which resulted in the three men gathering on
the porch of Ms. Rudd’s home. Around 12:00 p.m., Mr. Tibbs received a phone call from
his friend, Deshun Williams, followed shortly thereafter by a phone call from the
defendant. The defendant stated “he wanted a weapon,” but Mr. Tibbs told the defendant
he could not help him obtain one. Around the same time, Mr. Tibbs called O.W. and
asked to meet him at the Oaks. O.W. arranged to meet Mr. Tibbs in his old neighborhood
instead. Despite these plans, Mr. Tibbs and the defendant arrived at the Oaks and
approached the porch of the home. Several of the defendant’s victims testified about the
shooting as seen from their own perspectives.

        O.W. testified he had known Mr. Tibbs for approximately two years, he spoke to
him on a daily basis, and Mr. Tibbs often met O.W. at the Oaks. On December 7, 2016,
Mr. Tibbs arrived at the Oaks in a burgundy “SUV type truck with a couple of guys.”
After the vehicle parked in a neighboring driveway, Mr. Tibbs got out of the back-
passenger side and joined O.W. and Melissa on the front porch. Even though they had
planned to meet elsewhere, O.W. stated he was not upset with Mr. Tibbs when he arrived.
O.W. next saw the defendant get out of driver’s seat of the vehicle as another person
remained in the front passenger seat. O.W. did not know the defendant, but Mr. Tibbs
stated the defendant was his cousin. The defendant walked up to the porch, tried to sell
marijuana to the group, and asked, “Where the dude at with the gun.” O.W. responded,
“It ain’t no gun for sale.” The defendant then rubbed his head, got back in the vehicle,
and drove away. O.W. stated the entire interaction lasted about five minutes, and no one
was angry. When O.W. told Mr. Tibbs the defendant was leaving, Mr. Tibbs stated,

        1
           Because several of the victims have the same surname, we will refer to them by their first names
for clarity. No disrespect is intended.
                                                   -2-
“Aw, naw, I’m fixing to stay here.” As such, O.W. and Mr. Tibbs remained on the porch,
and Melissa went back inside.

       Approximately five minutes later, O.W. saw the vehicle again and said to Mr.
Tibbs, “There go your cousin and them going back to pick you up.” In response, Mr.
Tibbs stated, “Naw, they ain’t fixing to pick me up.” When the vehicle stopped in front
of the Oaks, O.W. saw the defendant and then saw guns emerge from the front and back
driver’s side windows. O.W. initially froze as he looked at the defendant’s face,
explaining he could not believe what was happening. O.W. saw “fire coming out the gun
barrels” and heard “quite a few” gunshots as the defendant fired his gun for about two or
three seconds. As he tried to run, O.W. was hit by a bullet. Melissa pulled O.W. inside
the home where he was hit by another bullet. After the shooting ended, Mr. Tibbs came
inside the house and then left.

       The police arrived, and O.W. was transported to the hospital where he remained
for twelve days while being treated for a broken left femur and a gunshot wound to the
right Achilles tendon. While in the hospital, O.W. provided a statement to law
enforcement and learned Ronevia had died. O.W. also reviewed a photographic lineup
from which he identified the defendant as the shooter and identified the maroon/burgundy
SUV as the vehicle involved. O.W. stated he was positive the defendant was driving the
vehicle during the shooting because of a “dark spot” on the defendant’s face and noted he
described the defendant as having a “dark mark” on his face in his statement. O.W. also
made an in-court identification of the defendant during trial.

       Antonio Tibbs provided similar testimony. After speaking to Deshun and the
defendant on the telephone, Mr. Tibbs began walking towards the Oaks. At
approximately 1:00 p.m., the defendant drove by in a maroon SUV and picked Mr. Tibbs
up. Mr. Tibbs testified he did not see any weapons in the vehicle but stated there was
another passenger inside whom Mr. Tibbs recognized but did not know. Mr. Tibbs stated
the defendant did not ask about a gun as they drove nor did he seem angry or upset.

       Upon arriving at the Oaks, the defendant backed into the driveway. Mr. Tibbs
exited the vehicle and approached the porch where he talked to O.W. and Melissa. The
defendant then exited the vehicle from the driver’s seat, approached the porch, and
started “talking about a weapon” and marijuana. Specifically, the defendant offered to
sell marijuana to the group but everyone declined. Then, the defendant asked to buy a
gun. The defendant was rejected, and “everything changed.” Mr. Tibbs stated the entire
conversation lasted approximately thirty seconds during which the defendant’s facial
expressions indicated “something was wrong, like something was going on, like
something wasn’t right.” The defendant became angry, walked away, got into the
maroon vehicle, and drove away from the Oaks. Mr. Tibbs remained on the porch.
                                          -3-
       Approximately two minutes later, the defendant drove back by the Oaks with the
passenger side of the vehicle facing the porch. As the shooting began, Mr. Tibbs saw the
defendant in the driver’s seat with his passenger on the other side. During the shooting,
Mr. Tibbs saw an “AK” “coming out the window on the passenger side” but also
assumed the defendant was shooting from the driver’s side. Mr. Tibbs heard 14
gunshots, and a bullet grazed his right knee. Mr. Tibbs’s testimony began to waver as he
continued, stating that he was unsure who was driving the vehicle during the shooting but
that he saw the defendant’s face and then saw bullets. Mr. Tibbs stated that the vehicle
stopped during the shooting but no one exited and that he did “not really” see the shooter.
Mr. Tibbs again stated he thought the gunshots came from the passenger side of the
vehicle but admitted the shooting happened “so fast.” Ultimately, Mr. Tibbs clarified that
there was one person shooting from the front passenger side of the vehicle and that he
saw the defendant in the vehicle during the shooting.

       When the shooting ended, Mr. Tibbs went inside the home and saw O.W. on the
floor. He called 9-1-1 and then went to a neighbor’s house for help. Mr. Tibbs then
“went to the woods” to call his uncle, Christopher Tibbs. He told his uncle “an accident
had just happened” and asked his uncle to pick him up. When his uncle did so, Mr. Tibbs
told him that he and O.W. had been shot and that he needed to go back to the scene. Mr.
Tibbs’s uncle drove him back to the scene, and Mr. Tibbs provided a statement to law
enforcement.

       Mr. Tibbs reviewed his statement during his testimony. In the statement, he told
police that the defendant picked him up in a maroon, four-door Honda SUV, and he
asked the defendant to drive him to the Oaks. Upon entering the vehicle, Mr. Tibbs did
not look in the back compartment of the vehicle and noted he had never seen the
defendant’s passenger. While inside the vehicle, the defendant again asked Mr. Tibbs
about purchasing a gun. When Mr. Tibbs told the defendant that he could not help him
obtain a gun, the defendant gave Mr. Tibbs “a dirty look.” As noted in the statement,
while on the porch, Mr. Tibbs asked O.W. if O.W. had “anything,” meaning a weapon,
but O.W. stated he did not. The defendant then approached the porch and gave Mr. Tibbs
and O.W. a dirty look. The defendant asked if either Mr. Tibbs or O.W. wanted “2 for
$25,” referring to two grams of marijuana, but both men declined. The defendant again
gave them a dirty look. In contrast to his in-court testimony, in his statement, Mr. Tibbs
described the shooting, as follows: “The driver’s side was closest and they was going on
and shooting out the driver’s side, 13, 14 shots.” Mr. Tibbs identified the defendant, also
known as “Two Face,” as the shooter.

       When asked to identify the defendant during trial, Mr. Tibbs initially stated he did
not see the defendant in the courtroom but ultimately identified the defendant. Mr. Tibbs
                                           -4-
stated he was unable to identify the other person in the vehicle at the time of the shooting
and stated he does not know Martavious Barnes, Camerio Whitley, or Cordell Anderson.
Finally, Mr. Tibbs testified he was not threatened prior to testifying against the defendant.

       Melissa Williams also provided her recollection of the events leading up to the
shooting. She recalled the phone call between Mr. Tibbs and O.W. on December 7,
2016. Mr. Tibbs stated he was coming over but O.W. told him that he would meet Mr.
Tibbs “on the block” instead. Approximately five minutes later, around 8:30 or 9:00
a.m., Mr. Tibbs and the defendant arrived at the Oaks in a maroon SUV. The vehicle
pulled in front of the mailbox before backing into the neighbor’s driveway. Mr. Tibbs
got out of the backseat of the vehicle, and the defendant exited the driver’s seat. The two
men approached the porch where Melissa and O.W. stood. The defendant offered to sell
Melissa two grams of marijuana for $25, but she declined. The defendant then turned
around to talk to O.W. Melissa did not hear what the defendant asked O.W. but stated
O.W.’s response must not have been “very satisfying” because the defendant seemed
angry as he left the porch and returned to his vehicle. When Melissa told Mr. Tibbs that
he was being left behind, Mr. Tibbs stated the defendant was his cousin and always acted
that way. The defendant then drove away, Melissa went back inside, and O.W. and Mr.
Tibbs remained on the porch. Approximately three to five minutes passed before Melissa
heard gunshots. Once the shooting began, Melissa ran to the door and saw the defendant
driving the maroon vehicle. She testified that the passenger window was rolled down and
the defendant “had a smirk on his face that will haunt you.”

       After the shooting, Melissa pulled O.W. inside the home because he had been shot
“pretty bad.” Melissa stated that there were too many gunshots to count and that it was
“chaotic inside” the house. She saw Mr. Tibbs on the phone and then saw him walk
away. The police arrived, and Melissa provided a statement. She identified the
defendant as the shooter in a photographic lineup on December 12, 2016. In several
photographic exhibits entered into evidence, Melissa identified her home at the Oaks and
the maroon vehicle the defendant drove on the day of the shooting.

       During cross-examination, Melissa stated she was not expecting Mr. Tibbs to
come over on December 7 and recalled that O.W. told him not to come during their
phone call. She stated no one argued while on the porch; however, after she declined the
defendant’s marijuana sale, the defendant “said something” to O.W. and became angry.
Melissa reviewed the statement she gave to law enforcement and acknowledged she did
not tell police that the defendant seemed angry or that she saw him smirk during the
shooting. When the defendant drove away, Melissa was not expecting him to return.
However, when the vehicle returned, Melissa stated that the driver’s side was closest to
the house and that the gunshots were coming from the back-driver’s side. Melissa stated
she did not see the defendant fire a weapon but again noted the defendant had a smirk on
                                            -5-
his face. In reviewing the photographic lineup wherein she identified the defendant as
the shooter, Melissa admitted it was a mistake to tell police the defendant was the shooter
because she did not actually see him shoot as he was driving. During redirect
examination, Melissa explained she could not tell for sure that the defendant was not
shooting because everything happened so fast. Finally, Melissa reviewed her statement
again and noted, “It just didn’t seem right. It felt like [Mr. Tibbs] was setting [O.W.]
up.”

       Marquisha, Kenkeunia, and Ms. Rudd also testified regarding what they observed
from inside the home. Prior to the shooting, Marquisha was sitting in the living room
when a burgundy SUV pulled up to the mailbox and stopped. Marquisha thought this
was unusual and noted the vehicle remained by the mailbox for approximately three
minutes before pulling into the neighbor’s driveway. She saw Mr. Tibbs exit the front
passenger side of the vehicle and “saw a few more heads” inside. Mr. Tibbs knocked on
the door looking for O.W. Marquisha answered the door, called for O.W., and O.W. and
Melissa joined Mr. Tibbs on the porch. Marquisha stated the three were “just talking and
laughing” before Melissa came back inside the house. The defendant then exited the
vehicle and approached the porch. After having a conversation, the defendant left the
porch, returned to his vehicle, and drove away.

       Shortly thereafter, Marquisha heard a “thump” followed by gunshots. She stated
O.W. and Mr. Tibbs were on the porch and Melissa was standing near the door. Inside
the home, there were “bullets flying” and “everything was being hit.” When the shooting
began, Ronevia was standing beside Marquisha as Marquisha held O’Mir on the couch
with Kenkeunia. She stated the shooting was “quick,” and after it ended, she saw Melissa
“tending to O.W.” who “was bleeding everywhere.” Marquisha heard Ronevia yell “that
she had been shot” and saw Ronevia walk into the hallway and fall. When the shooting
ended, Marquisha found Ronevia “laying face down” and attempted to locate her wound.
Two photographs of Ronevia were entered into evidence. According to Marquisha, Mr.
Tibbs was on the porch during the shooting, but she did not recall if he returned to the
scene.

        Marquisha reviewed the statement she provided to law enforcement on December
7, 2016, which mirrored her trial testimony. In the statement, Marquisha told police that
after the vehicle parked, “It was [Mr. Tibbs] who got out of the front passenger seat. I
saw someone driving and someone in the rear seat. The driver’s seat was leaning all the
way back so you couldn’t see his face.”

      Sandra Rudd also testified, stating she found it odd when Mr. Tibbs came to her
house as she had not seen him in years and was not expecting him. Ms. Rudd went to the
back of the house to change O’Mir’s diaper while O.W. and Mr. Tibbs talked on the
                                           -6-
porch. Before doing so, she saw Melissa join them outside. Not long afterwards, Ms.
Rudd heard numerous gunshots and saw the glass door shatter. Marquisha told Ms. Rudd
to get down and told the children to go to the back of the house. During the shooting,
O.W. fell, and Melissa pulled him inside. O.W. indicated he had been shot, but Ms. Rudd
could not find his wound. Ms. Rudd then heard Ronevia scream and fall to the floor.
Ms. Rudd and Marquisha tried to find Ronevia’s wound, believing she was bleeding
internally. Once the shooting stopped, Ms. Rudd called 9-1-1 and provided a statement
to law enforcement. Ms. Rudd testified she did not overhear any conversations between
those on the porch, she did not see the shooter, and she did not know where Mr. Tibbs
was during the shooting.

       Prior to the shooting, Kenkeunia was sitting on the couch when a man came to the
front porch and O.W. went outside to talk to him. She did not know if the man who
knocked on the door was Mr. Tibbs but stated she did not see anyone else on the porch at
the time. When she heard gunshots, Kenkeunia was frightened and “tucked [her] head
into the couch” with Marquisha. She did not know who fired the shots and could not
remember how long the shooting lasted but thought approximately five shots were fired.
Kenkeunia saw “a bullet in the TV, a bullet in the couch,” and “the front door glass was
gone.” When the shooting stopped, Kenkeunia went to the back of the house with O’Mir
and saw that both O.W. and Ronevia had been shot. She provided a statement to law
enforcement after the shooting.

        Officer Jeremy Montgomery of the Memphis Police Department (MPD)
responded to the scene sometime after 12:00 or 1:00 p.m. where his duties included
rendering aid, making arrests, and preparing a report. He identified a map of the general
area and Ms. Rudd’s home in photographs presented during trial. Officer Montgomery
explained he was equipped with a body camera as he entered the “chaotic” scene. As the
State played the body camera footage for the jury, Officer Montgomery described the
same. Near the shattered glass door, he found O.W. bleeding and suffering from a
gunshot wound to the leg. Officer Montgomery advised Ms. Rudd as to how to apply a
tourniquet and then checked on Ronevia who had also been shot. Officer Montgomery
testified that Ms. Rudd indicated who the shooter was while he was on the scene, noting
the potential shooter’s name was Antonio according to the name heard on the body
camera footage. Officer Montgomery did not hear anyone state that “Two-Face” was the
shooter.

       Numerous diagrams and photographs of the scene were entered into evidence and
described for the jury by responding MPD Officer David Smith. Officer Smith also
tagged evidence at the scene which included nine 7.62 cartridge casings and one
projectile. Due to the number of vehicles on the scene, Officer Smith explained he was

                                          -7-
not confident that he collected all of the spent cartridge casings, bullet fragments, or
bullet projectiles and noted it was possible some bullets struck the hill by the house.

       MPD Officer Jennifer Burton also responded to the scene where she created the
crime scene log and maintained the perimeter. Before securing the scene, Officer Burton
spoke with Mr. Tibbs who arrived in his uncle’s vehicle and stated he was a victim of the
shooting. Mr. Tibbs stated that he had been shot on his hand and that he had a hole in his
pants. Officer Burton and Mr. Tibbs’s interactions were captured on her body camera,
and the footage was played for the jury.

       MPD Homicide Investigator Clifton Dupree took the lead role in investigating
Ronevia’s death. He responded to the scene, conducted initial interviews, and canvassed
the neighborhood. Investigator Dupree also took the evidence collected from the scene to
the Tennessee Bureau of Investigation (TBI). The evidence included nine 7.62 cartridge
casings, a projectile, and a bullet fragment obtained from Ronevia’s autopsy.

      Dr. Marco Ross, an expert in forensic pathology, completed the autopsy of
Ronevia on December 8, 2016, noting she died of a gunshot wound to the pelvis.
Photographs taken during the autopsy and x-rays of Ronevia’s injuries were entered into
evidence, including one photograph showing bullet fragments found within the pelvic
wound track.

       As the investigation progressed, Investigator Dupree interviewed and presented
photographic lineups to O.W., Melissa, and Mr. Tibbs. Investigator Dupree also learned
the suspect was nick-named “Two Face.” However, it took approximately one week to
identify the defendant as the suspect. In an effort to locate the defendant, Investigator
Dupree contacted MPD Officer Walter Doty who participated in locating the defendant as
part of the Multi-Agency Gang Unit. After a confidential informant provided a tip on the
defendant’s location, Officer Doty and approximately ten other officers located the
defendant at a hotel where he was arrested on January 10, 2017.

       Investigator Dupree also searched for the vehicle involved in the shooting after
several witnesses described the vehicle as a maroon SUV. Investigator Dupree
acknowledged that Mr. Tibbs described the vehicle as a maroon Honda Pilot though the
investigation ultimately led to a maroon Mazda SUV. The vehicle was located on
January 17, 2017, at the home of the defendant’s brother, Martaveous Barnes. Mr.
Barnes, Kamerio Whitley, and Cordell Anderson were standing near the vehicle when
law enforcement arrived, and a 9-millimeter handgun along with two 7.62 by 39-
millimeter cartridge casings were found in the vehicle. Investigator Dupree stated the
casings came from an assault rifle and were turned over to the TBI. Investigator Dupree

                                          -8-
identified the vehicle used in the shooting in photographs presented at trial and noted the
owner of the vehicle filed an automobile theft report in November 2016.

        Investigator Dupree testified that Mr. Tibbs was unable to identify Mr. Barnes,
Mr. Whitley, or Mr. Anderson in photographic lineups but could not remember if he
presented the same lineups to Melissa, O.W., Sandra, Marquisha, or Kenkeunia. Lyndie
Sugg, a victim witness coordinator for the district attorney’s office, testified she was
unable to obtain personal service or contact with Mr. Whitley or Mr. Anderson prior to
trial. She obtained personal service on Mr. Barnes who confirmed he would be in court
for the defendant’s trial. However, when Mr. Barnes failed to appear in court, Ms. Sugg
had no explanation for his absence.

       Kasia Lynch, an expert in firearms identification and a forensic scientist for the
TBI Memphis Crime Lab, analyzed four separate exhibits containing the evidence
provided by Investigator Dupree. At the time of her analysis, no firearms were provided
with which to compare the evidence. In her first exhibit, Ms. Lynch stated the evidence
was obtained from the Oaks and included nine 7.62 by 39-millimeter cartridge casings, a
separate bullet, and bullet fragments. She determined the nine cartridge casings all had
the same individual characteristics and concluded they were all fired from the same
weapon. Based upon the individual characteristics found on the separate bullet of exhibit
1, Ms. Lynch determined it was consistent with a .30 caliber bullet. The bullet fragments
of exhibit 1, however, did not retain individual characteristics, and Ms. Lynch was unable
to compare the fragments to the other evidence.

       Ms. Lynch’s second exhibit included two 7.62 by 39-millimeter cartridge casings
which came from the MPD crime processing division. She determined the casings in
exhibit 2 were fired from the same weapon, but they were not fired from the same
weapon as the casings in exhibit 1. Ms. Lynch’s third exhibit included bullet fragments
from the Medical Examiner’s Office that were obtained from Ronevia’s wound tract.
Ms. Lynch determined these bullet fragments were .30 caliber bullets. She compared the
.30 caliber bullet fragments taken from the wound track to the .30 caliber bullet of exhibit
1 and determined that the bullets were fired from the same weapon. The fourth exhibit
examined by Ms. Lynch included a bullet found at the Oaks. Ms. Lynch determined it
was “most consistent with having been fired in a 9-millimeter Ruger firearm, and I had
nothing to compare it to microscopically, because it was a different caliber.”
Photographs of the evidence were into evidence.

       Additionally, during the course of the investigation, Investigator Dupree requested
recordings of the telephone calls the defendant made while in jail. Ruben Ramirez of the
Criminal Intel Unit of the Shelby County Sheriff’s Office completed the request and
pulled eighteen of the defendant’s jail telephone calls on January 27, 2017. Portions of
                                           -9-
the telephone calls were played for the jury during trial. During one telephone call in
particular, the defendant indicated to his listener that she not put her life on hold because
of his actions.

       As the State presented its case, the trial court twice discussed the accomplice
status of Mr. Tibbs. First, the trial court asked the parties to consider whether the
accomplice jury instruction should be given. The record indicates the defendant did not
request the instruction at that time. In a later discussion, the trial court determined it
would allow the jury to decide whether Mr. Tibbs was an accomplice and would charge
the jury accordingly. The State asked the trial court to provide its reasoning for including
the accomplice instruction, and the trial court stated:

       Well, from the facts of the case it -- it could be argued that [O.W.] was
       lured outside and caused to stay outside by this Antonio Tibbs fellow. The
       family seemed to think it was a setup. They even testified to that. I think
       that more than makes it a question for the jury. I’d hate to not to -- I mean,
       even though there is other proof that shows he wasn’t an accomplice,
       because he was actually shot himself, it wasn’t serious bodily injury. I
       don’t know. It just appears from the proof that something was mighty
       strange. He showed up when he was told not to show up. He was told to
       meet him somewhere else when he didn’t meet him somewhere else.

       …

       So all of that just seems kind of peculiar to me. I’m kind of like the family,
       I’m – I’m like -- and plus, he -- he came off on the witness stand pretty
       shady too, I think. So --

The record indicates the defendant did not engage in the discussion. However, the trial
court ultimately decided the accomplice instruction was not warranted and did not
include it in the final jury instructions. The defendant failed to object to the trial court’s
ruling.

       The jury convicted the defendant of second-degree murder for the death of
Ronevia Williams (Count 1), seven counts of attempted second-degree murder against
O.W. Williams, Marquisha Williams, Kenkeunia Williams, Melissa Williams, O’Mir
Williams, Sandra Rudd, and Antonio Tibbs (Counts 2-8), and possession of a firearm
during the commission of attempted second-degree murder (Count 9). The trial court
conducted a sentencing hearing after which it imposed an effective eighty-eight-year
sentence. The defendant filed a motion for a new trial which was denied, and this timely
appeal followed.
                                            - 10 -
                                          Analysis

   I.      Sufficiency of the Evidence

       The defendant argues the evidence is insufficient to support his convictions
because the State failed to provide reliable witness testimony identifying him as either the
driver or the shooter. The State asserts sufficient evidence exists to support the
defendant’s convictions as “questions of credibility are left to the jury” and are not to be
reexamined on appeal, and we agree.

        When the sufficiency of the evidence is challenged, the relevant question of the
reviewing court 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) (“Findings of guilt in criminal actions whether by the trial court or
jury shall be set aside if the evidence is insufficient to support the findings by the trier of
fact of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92
(Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). All
questions involving the credibility of witnesses, the weight and value to be given the
evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by
the trial judge, accredits the testimony of the witnesses for the State and resolves all
conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn.
1973). Our Supreme Court has stated the rationale for this rule:

        This well-settled rule rests on a sound foundation. The trial judge and the
        jury see the witnesses face to face, hear their testimony and observe their
        demeanor on the stand. Thus the trial judge and jury are the primary
        instrumentality of justice to determine the weight and credibility to be
        given to the testimony of witnesses. In the trial forum alone is there human
        atmosphere and the totality of the evidence cannot be reproduced with a
        written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 212 Tenn. 464,
370 S.W.2d 523 (1963)). “A jury conviction removes the presumption of innocence with
which a defendant is initially cloaked and replaces it with one of guilt, so that on appeal a
convicted defendant has the burden of demonstrating that the evidence is insufficient.”
State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).



                                            - 11 -
        Guilt may be found beyond a reasonable doubt where there is direct evidence,
circumstantial evidence, or a combination of the two. State v. Matthews, 805 S.W.2d
776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331 (Tenn.
1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The standard of review for
sufficiency of the evidence “‘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)). The jury as the trier of
fact must evaluate the credibility of the witnesses, determine the weight given to
witnesses’ testimony, and reconcile all conflicts in the evidence. State v. Campbell, 245
S.W.3d 331, 335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim.
App. 1978)). Moreover, the jury determines the weight to be given to circumstantial
evidence and the inferences to be drawn from this evidence, and the extent to which the
circumstances are consistent with guilt and inconsistent with innocence are questions
primarily for the jury. Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d
646, 662 (Tenn. 2006)). This Court, when considering the sufficiency of the evidence,
shall not reweigh the evidence or substitute its inferences for those drawn by the trier of
fact. Id.

       The defendant’s convictions include second-degree murder, attempted second-
degree murder, and possession of a firearm during the attempt to commit second-degree
murder. Second-degree murder is the “knowing killing of another” and is a result-of-
conduct offense. Tenn. Code Ann. § 39-13-210(a)(1); State v. Page, 81 S.W.3d 781, 787
(Tenn. Crim. App. 2002). “In order to convict a defendant of attempted second-degree
murder, the state is required to prove that the defendant acted with the intent to cause the
knowing killing of another, believing his conduct would cause the result without further
conduct on his part.” State v. Inlow, 52 S.W.3d 101, 104 (Tenn. Crim. App. 2000); Tenn.
Code Ann. §§ 39-12-101(a)(2) and 39-13-210(a). A person acts knowingly “when the
person is aware that the conduct is reasonably certain to cause the result.” Tenn. Code
Ann. § 39-11-302(b).          “[T]he ‘nature of the conduct’ that causes death is
inconsequential.” Page, 81 S.W.3d at 787 (quoting State v. Ducker, 27 S.W.3d 889, 896
(Tenn. 2000)). Thus, a knowing intent is shown if the defendant acts with an awareness
that his conduct is reasonably certain to cause the victim’s death. See id. at 790-93.
Whether a defendant acted “knowingly” is a question of fact for the jury. Inlow, 52
S.W.3d at 104-105. In assessing the defendant’s intent, the jury may rely on “the
character of the assault, the nature of the act and [on] all the circumstances of the case in
evidence.” Id. at 105 (citing State v. Holland, 860 S.W.2d 53, 59 (Tenn. Crim. App.
1993)). “It is an offense to possess a firearm . . . with the intent to go armed during the
commission of or attempt to commit a dangerous felony.” Tenn. Code Ann. § 39-17-
1324(a). One such “dangerous felony” is attempted second degree murder. Tenn. Code
Ann. § 39-17-1324(a), (i)(1)(B).

                                           - 12 -
       Here, the record indicates that on December 7, 2016, the defendant wanted to
purchase a gun. In an effort to do so, the defendant contacted Mr. Tibbs and picked him
up in a stolen, maroon vehicle. The defendant, along with an unidentified passenger,
drove Mr. Tibbs to the Oaks in order to talk to O.W. When the defendant and Mr. Tibbs
arrived at the Oaks, Melissa, Marquisha, Kenkeunia, Ronevia, O’Mir, and Ms. Rudd
were also at the home. The defendant parked the stolen vehicle in a neighboring
driveway and approached the porch where O.W., Melissa, and Mr. Tibbs stood. While
on the porch, the defendant attempted to sell marijuana and to purchase a gun. When
both proposals were denied, the defendant became angry and drove away. The defendant
soon returned in the stolen vehicle with guns emerging from the rolled-down windows.
Numerous shots were fired as the vehicle stopped in front of the Oaks. O.W. testified the
defendant was driving the vehicle during the shooting and stated he saw the defendant
shooting for a few seconds. Melissa testified she saw the defendant driving the vehicle
during the shooting and noted the defendant “had a smirk on his face that will haunt
you.” Mr. Tibbs also testified the defendant was in the vehicle during the shooting. The
defendant fled the scene and successfully hid from law enforcement until his arrest on
January 10, 2017. In a recorded jail telephone call made after his arrest, the defendant
encouraged his listener not to put her life on hold because of his actions.

        During the investigation, O.W., Melissa, and Mr. Tibbs identified the defendant in
photographic lineups and O.W. made an in-court identification of the defendant. O.W.
and Melissa also identified the maroon SUV as the vehicle involved. Law enforcement
later located the vehicle at the home of the defendant’s brother, Martaveous Barnes.
Inside the vehicle, law enforcement found a 9-millimeter handgun and two 7.62 by 39-
millimeter cartridge casings. Ms. Lynch analyzed the evidence obtained during the
investigation and determined the nine 7.62 cartridge casings found at the scene were all
fired from the same weapon and the individual .30 caliber bullet found at the scene was
fired from the same weapon as the .30 caliber bullet fragments obtained during Ronevia’s
autopsy. Ms. Lynch also examined an additional bullet found at the scene which she
stated was “most consistent with having been fired in a 9-millimeter Ruger firearm.”

       Viewing the evidence in the light most favorable to the State, the record reflects
numerous witnesses testified the defendant drove the vehicle from which two weapons
fired multiple gunshots at the home where O.W., Melissa, Marquisha, Ronevia,
Kenkeunia, O’Mir, Ms. Rudd, and Mr. Tibbs gathered. As a result of the shooting, O.W.,
Ronevia, and Mr. Tibbs were shot, and Ronevia ultimately died from her wounds. Based
upon this evidence, the jury was at liberty to infer the defendant knew that firing a gun in
the direction of the home which he knew to be filled with people could have resulted in
any of their deaths. Inlow, 52 S.W.3d at 105. Accordingly, sufficient evidence exists to
show the defendant “knowingly” shot and killed Ronevia and attempted to shoot O.W.,

                                           - 13 -
Melissa, Marquisha, Kenkeunia, O’Mir, Ms. Rudd, and Mr. Tibbs while possessing a
firearm.

        The defendant argues the State failed to prove he was the driver or the shooter
because several of the witnesses provided contradictory details of the shooting and/or
testified they did not actually see the defendant fire a gun. The evidence produced at
trial, however, demonstrates simply that each of the defendant’s victims described the
shooting from their own perspective. While slight discrepancies are apparent in the
testimonies of the defendant’s victims, this Court presumes that any conflicts between
their testimonies were resolved by the jury in reaching their verdict. See Campbell, 245
S.W.3d at 335; State v. Adams, 45 S.W.3d 46, 55 (Tenn. Crim. App. 2000). Furthermore,
as charged by the trial court, one is “criminally responsible for an offense committed by
the conduct of another, if: [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.” Tenn. Code Ann. § 39-11-
402(2). If convicted under the criminal responsibility theory, defendants are “considered
to be principal offenders, just as if they had committed the crime themselves.” State v.
Little, 402 S.W.3d 202, 217 (Tenn. 2013) (citing State v. Carson, 950 S.W.2d 951, 954
(Tenn. 1997)). As noted above, the record shows the defendant was in the vehicle as
multiple gunshots were fired at the Oaks from the same, and the jury attributed the
shooting to the defendant as a result. Accordingly, the defendant’s arguments alleging
conflicting testimony exists identifying him as either the driver or the shooter are without
merit and the defendant is not entitled to relief.

  I.   Jury Instructions

        The defendant argues the trial court erred by failing to designate Antonio Tibbs as
an accomplice and by failing to charge the jury accordingly. The defendant asserts Mr.
Tibbs is “criminally responsible as an accomplice” because “[h]is actions of riding over
to the house he was instructed not to be at, getting out of the same vehicle from which the
shots were fired, and luring people from inside the house to be outside on the porch just
prior to the shooting occurring makes Mr. Tibbs an accomplice.” The defendant suggests
the trial court’s omission of the accomplice jury instruction entitles him to plain error
review. The State asserts the defendant has waived the issue, the alleged error was
harmless, and the defendant cannot establish plain error as to this issue. Upon our review
of the record, we conclude the issue is waived, it was harmless, and plain error review is
not warranted.

       Initially, we note, the record indicates the defendant waived this issue for failing to
request a jury instruction on Mr. Tibbs’s status as an accomplice in writing and failing to
object to the exclusion of the jury instruction at trial. Tenn. R. App. P. 36(a); Tenn. R.
                                            - 14 -
Crim. P. 30(a); State v. Page, 184 S.W.3d 223, 230 (Tenn. 2006) (citing State v.
Cravens, 764 S.W.2d 754, 757 (Tenn. 1989)); State v. Robinson, 146 S.W.3d 469, 489
(Tenn. 2004); State v. Chad Edward Massengale, No. E2018-00387-CCA-R3-CD, 2019
WL 1965697, at *11 (Tenn. Crim. App. May 2, 2019). The defendant, however, does not
address waiver on appeal and instead asserts he is entitled to plain error analysis of this
issue. Our harmless and plain error analyses follow.

       A defendant has a right to a correct and complete jury charge. State v. Garrison,
40 S.W.3d 426, 432 (Tenn. 2000). This right is constitutional in nature. State v. Phipps,
883 S.W.2d 138, 142 (Tenn. Crim. App. 1994). The trial court must present the
propositions of law governing the case plainly to the jury, in such a manner as to enable
them to comprehend the principles involved. State v. Williamson, 919 S.W.2d 69, 80
(Tenn. Crim. App. 1995). “Nothing short of this will ‘satisfy the demands of justice’ or
the defendant’s right to a jury trial.” Id. (quoting Crawford v. State, 44 Tenn. 190, 195
(1867)).

       It is well-established that “a conviction may not be based upon the uncorroborated
testimony of an accomplice.” State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001) (citing
State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994)). This Court has defined the term
“accomplice” to mean “one who knowingly, voluntarily, and with common intent with
the principal unites in the commission of a crime.” State v. Allen, 976 S.W.2d 661, 666
(Tenn. Crim. App. 1997). This means that the person must do more than have a guilty
knowledge, be morally delinquent, or participate in other offenses with the principal
actor. State v. Jackson, 52 S.W.3d 661, 666 (Tenn. Crim. App. 2001). The test for
whether a witness qualifies as an accomplice is “whether the alleged accomplice could be
indicted for the same offense charged against the defendant.” Allen, 976 S.W.2d at 666.

     The issue of whether the court or the jury determines a witness’s status as an
accomplice has been previously determined by this Court:

      The question of who determines whether a witness is an accomplice
      depends upon the evidence introduced during the course of a trial. When
      the undisputed evidence clearly establishes the witness is an accomplice as
      a matter of law, the trial court, not the jury must decide the issue. On the
      other hand, if the evidence adduced at trial is unclear, conflicts, or is subject
      to different inferences, the jury, as the trier of fact, is to decide if the
      witness was an accomplice. If the jury finds the witness was an
      accomplice, the jury must decide whether the evidence adduced was
      sufficient to corroborate the witness’s testimony.

State v. Griffis, 964 S.W.2d 577, 588 (Tenn. Crim. App. 1997) (footnote omitted).
                                           - 15 -
        In the present case, the trial court determined the accomplice jury charge was not
warranted based upon the facts presented during trial. The record indicates the trial court
initially considered the applicability of the accomplice instruction based upon an
inference made during Melissa’s and, arguably, Ms. Rudd’s testimony. Melissa stated,
“It just didn’t seem right. It felt like [Mr. Tibbs] was setting [O.W.] up.” Ms. Rudd
testified she found it odd that Mr. Tibbs was at her home prior to the shooting. Before
the conclusion of trial, the trial court reasoned the testimony suggested that Mr. Tibbs’s
may have lured O.W. outside in order to be victimized by the defendant. At the
conclusion of the proof, however, the trial court retracted its reliance on this implication,
noting:

       Well, for the record, we have discussed the jury charge, made various
       changes. I decided to take accomplice out. When I was going through that
       I neglected to notice that the -- the witness[, Antonio Tibbs,] is also listed
       as a victim, and so I think it can be still argued that it’s mighty strange, the
       facts of the case surrounding -- surrounding him. But I don’t think there’s
       enough there to really say that he was an accomplice, just that it’s mighty
       strange how the facts came out, and the family sort of thought he was
       involved.

        In reviewing the record as a whole, we conclude the implications made by Melissa
and Ms. Rudd regarding Mr. Tibbs’s involvement in the defendant’s crimes do not
change the undisputed facts that Mr. Tibbs was not in the vehicle as the defendant fired
multiple gunshots at his victims, that a bullet grazed Mr. Tibbs during the shooting, that
Mr. Tibbs was considered to be a victim of the defendant’s crimes, and that Mr. Tibbs
was not charged in the crimes. As a result, we agree with the trial court that the record
does not contain sufficient evidence to warrant the accomplice jury instruction as it
relates to Mr. Tibbs.

       Regardless, it is clear the trial court did not present the jury with the accomplice
jury instruction. The defendant is correct in that, when a trial court fails to properly
instruct the jury concerning accomplice testimony, such an error is subject to plain error
analysis. See Robinson, 146 S.W.3d at 489. Such an error is harmless, however, when
the accomplice’s testimony is sufficiently corroborated in the record.                  Id.
“[C]orroborating evidence is sufficient if it connects the accused with the crime in
question.” Griffis, 964 S.W.2d at 589. As explained above, sufficient evidence exists in
the record to corroborate Mr. Tibbs’s testimony as numerous witnesses testified the
defendant drove the vehicle from which multiple gunshots were fired at the Oaks where
seven people were gathered, killing one victim, injuring two, and putting five others in
danger of being shot. Accordingly, any alleged failure of the trial court to instruct the
                                            - 16 -
jury concerning Mr. Tibbs’s status as an accomplice or the need for his testimony to be
corroborated was harmless. The defendant is not entitled to relief.

       Finally, the State asserts the defendant is not entitled to plain error review of this
issue, and we agree. Before an error may be recognized, it “must be ‘plain’ and it must
affect a ‘substantial right’ of the accused.” State v. Adkisson, 899 S.W.2d 626, 639
(Tenn. Crim. App. 1994). “An error would have to [be] especially egregious in nature,
striking at the very heart of the fairness of the judicial proceeding, to rise to the level of
plain error.” Page, 184 S.W.3d at 231. In State v. Smith, our Supreme Court adopted
Adkisson’s five-factor test for determining whether an error should be recognized as
plain:

       (a) The record must clearly establish what occurred in the trial court;

       (b) A clear and unequivocal rule of law must have been breached;

       (c) A substantial right of the accused must have been adversely affected;

       (d) The accused did not waive the issue for tactical reasons; and

       (e) Consideration of the error is “necessary to do substantial justice.”

24 S.W.3d 274, 282-83 (Tenn. 2000) (quoting Adkisson, 899 S.W.2d at 641-42). “[A]ll
five factors must be established by the record before this Court will recognize the
existence of plain error, and complete consideration of all the factors is not necessary
when it is clear from the record that at least one of the factors cannot be established.” Id.
at 283.

       Relying upon our foregoing analysis, plain error review of trial court’s decision
not to instruct the jury regarding the alleged accomplice status of Mr. Tibbs is not
warranted because a clear and unequivocal rule of law has not been breached and the
defendant has not been adversely affected by the trial court’s decision. Id. at 282-83. For
these reasons, the issue is waived, the alleged error was harmless, and as a result, the
defendant is not entitled to plain error review.

                                        Conclusion

       Based upon the foregoing authorities and reasoning, the judgments of the trial
court are affirmed.



                                            - 17 -
         _________________________
         J. ROSS DYER, JUDGE




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