           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT JACKSON
                           Assigned on Briefs March 6, 2013

                   STATE OF TENNESSEE v. LASHUN GRAY

                  Appeal from the Criminal Court for Shelby County
                    No. 10-00629 James M. Lammey, Jr., Judge


                 No. W2012-00415-CCA-R3-CD - Filed June 26, 2013


              STATE OF TENNESSEE v. STANLEY WILLIAMS1

                  Appeal from the Criminal Court for Shelby County
                    No. 10-00629 James M. Lammey, Jr., Judge


                             No. W2012-01052-CCA-R3-CD


The Defendants, Lashun Gray and Stanley Williams, were tried jointly before a Shelby
County Criminal Court jury. Defendant Gray was convicted of attempt to commit first
degree murder, a Class A felony, and employing a firearm during the commission of a
dangerous felony, a Class C felony. See T.C.A. §§ 39-13-202, 39-12-101, 39-17-1324
(2010). He was sentenced as a Range I, standard offender to consecutive sentences of
twenty-four years for the attempted first degree murder conviction and ten years for the
firearm violation, for an effective thirty-four-year sentence. Defendant Williams was
convicted of first degree murder, attempt to commit first degree murder, a Class A felony,
and employing a firearm during the commission of a dangerous felony, a Class C felony. See
id. He was sentenced to life imprisonment for the first degree murder conviction and as a
Range I, standard offender to consecutive terms of twenty-four years for the attempted first
degree murder conviction and ten years for the firearm violation, for an effective sentence
of life plus thirty-four years. On appeal, Defendant Gray contends that (1) the evidence is

       1
         The Defendants were indicted and tried jointly. Defendant Gray filed his notice of
appeal on February 9, 2012, and Defendant Williams filed his notice of appeal on February 16,
2012. The Defendants were each given a unique Court of Criminal Appeals docket number, but
the cases were consolidated for purposes of this appeal on May 21, 2012. The docket number
assigned to Gray became the primary docket number.
insufficient to support his conviction for attempted first degree murder, (2) the trial court
erred by allowing the medical examiner to testify about the effects of a gunshot wound on
a living person, and (3) the court erred during sentencing. Defendant Williams contends that
(4) the evidence is insufficient to support his convictions for attempted first degree murder
and the firearm violation, and (5) the court erred in instructing the jury regarding criminal
responsibility. We affirm the Defendants’ convictions, but because of inappropriate
sentences, we reverse the Defendants’ judgments for employing a firearm during the
commission of a dangerous felony and remand the case for entry of judgments reflecting six-
year sentences.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
                    in Part; Reversed in Part; Case Remanded

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which J ERRY L. S MITH and
R OGER A. P AGE, JJ., joined.

Joseph S. Ozment (on appeal) and Larry Eugene Copeland, Jr., (at trial), Memphis
Tennessee, for the appellant, Lashun Gray.

Coleman Garrett (at trial and on appeal) and David Stowers (on appeal), Memphis,
Tennessee, for the appellant, Stanley Williams.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Amy
P. Weirich, District Attorney General; and Paul Hagerman and Neal Oldham, Assistant
District Attorneys General, for the appellee, State of Tennessee.

                                         OPINION

        This case arises from a shooting at a Shelby County night club on October 18, 2009,
in which Jimmie Johnson died as result of a single gunshot wound and Eldridge Donaldson
received a gunshot injury. At the trial, Patricia Thomas, Mr. Johnson’s mother, testified that
her son was thirty-one years old when he died and that she last saw him the day he died. She
said the Defendant drove her and the Defendant’s son to her daughter’s home. She said the
Defendant and his girlfriend left her daughter’s home around 1:00 a.m. and went to a party
at the Boom Boom Room, a local nightclub. She denied attending the party. She learned that
a shooting occurred at the club, that Mr. Johnson was taken to the hospital, and that he died
as a result of his injuries. On cross-examination, she stated that Mr. Johnson was 6'7'' and
weighed about 245 pounds. She said that although Mr. Johnson drank alcohol, he did not
drink the night of the shooting.



                                             -2-
        April Campbell testified that Mr. Johnson and her sister, Janice Campbell, were dating
at the time of Mr. Johnson’s death and that she attended a party at the club on October 19,
2009. She said that she arrived around 11:00 p.m. and that her sister and Mr. Johnson arrived
at 1:30 a.m. She said about twenty people were inside the club at that time. She said Mr.
Johnson bought a few drinks and brought them to the table. She said that a man named
“Booka” knocked over Mr. Johnson’s drink and that Mr. Johnson asked Booka to apologize.
She said “Junior” was standing near the table and heard Mr. Johnson ask Booka to apologize.
She heard Junior say to Mr. Johnson, “What the f--- you all a n----- for - you all talking to my
young n----- for?” She stated that Defendant Williams said something to Mr. Johnson and
that they began to fight. She said no firearms were used during the fight. She said Defendant
Gray and the people with the Defendants “jumped” Mr. Johnson. She said that when the
fight ended, the Defendants ran outside. She stated that she, her sister, and Mr. Johnson
decided to leave but that as they were leaving, Williams entered the club shooting at them.
She said that they ran and gathered near the bar, that she saw Williams shoot Mr. Johnson,
and that she heard four gunshots. She said she ran to the kitchen and saw Gray walking
toward Mr. Johnson and carrying a handgun. She denied seeing anyone else with a gun that
night.

        On cross-examination, Ms. Campbell testified that the Defendants were already at the
club when she arrived. She denied drinking and smoking drugs. She said that about thirty
minutes after she arrived, an argument related to drugs occurred outside. She said that the
Defendants and Booka went outside but that she stayed inside. She agreed her sister stated
that Defendant Gray shot Mr. Johnson and said she did not see Gray fire his gun. She said
that Gray entered the club after Defendant Williams shot Mr. Johnson. She agreed her sister
stated that Gray shot Mr. Johnson after Williams shot him. She said she thought Mr. Johnson
was shot twice in the stomach.

       Ms. Campbell testified that before she saw Defendant Williams shoot Mr. Johnson,
she saw Williams arguing with two men and saw the Defendants fighting a group of people
on the stage. She said that she knew Williams by sight but not by name before the shooting.
She said that Mr. Johnson and Booka argued about Booka’s spilling Mr. Johnson’s drink and
that the Defendants fought with a group of people on the stage. She agreed the fight
involving Mr. Johnson and the Defendants occurred next.

        Ms. Campbell testified that while Mr. Johnson and the Defendants were fighting,
Junior told Defendant Williams to “go get the chopper,” which she interpreted as Junior
telling Williams to get a gun. She said that Williams said something when he entered the
club with the gun, although she could not understand him. She agreed she told the police
that Williams said, “There that b---- go.” She admitted smoking marijuana at 6:00 p.m. the
night of the shooting but denied being “high” at the time of the shooting.

                                              -3-
       Ms. Campbell testified that although she did not know Defendant Williams’s name
the night of the shooting, she told the police that she saw a young man wearing brown chase
Mr. Johnson through the club and shoot him. After she learned Williams’s name, she
provided it to the police. She said that when she arrived at the club, she saw guns in the
trunk of a car parked near the front door.

       Jamaica Cartwright testified that she went to the club with a group of people for a
birthday party the night of the shooting and that she arrived around 9:00 p.m. She said that
she saw a “verbal fight” between Antoine Gunn and a group of men, that Mr. Gunn was
drunk and arguing with everyone, and that the “fight” occurred outside the club before Mr.
Johnson arrived. She agreed she smoked marijuana at the time of the fight.

       Ms. Cartwright testified that Mr. Johnson arrived, that she returned to the club, and
that she saw another fight. She stated that she stood near the table with the alcohol and that
she saw Mr. Johnson pour a couple of drinks and sit in a booth. She said a fight began on
the dance floor between several men. She said she also saw a fight involving Mr. Johnson.
She said she ran outside and saw several men standing at the trunk of a white Buick. She
said one of the men loaded a gun. She stated that she ran inside the club to warn everyone
but nobody heard her because of the loud music and fighting. She said she heard gunshots
outside the club and saw that Eldridge Donelson had been shot. She said she got under a
table and called 9-1-1 when she saw the man with the gun enter the club. She said she heard
five gunshots and screams.

       On cross-examination, Ms. Cartwright testified that she went outside the club multiple
times on the night of the shooting. She said that she did not see guns during the fight on the
dance floor and that half the people at the club were involved in the fight. She agreed she
was hit during the fight. She said that although she saw five people at the trunk of the car
when she ran outside the club, only one was loading a gun. She denied seeing the face of the
person who entered the club with a gun or seeing who shot the victims. She said that she saw
Mr. Johnson fighting, that he was only “helping his family,” and that he did not start the
fight.

       Janice Campbell testified that on October 18, 2009, Mr. Johnson was her boyfriend
and that they went to a birthday party for Mr. Johnson’s cousin at the club. She said that they
met her sister, April Campbell, at the club and that they sat at a table near the dance floor.
She said that Mr. Johnson left the table to get a drink and that she saw Booka spill a drink
on Mr. Johnson. She said Mr. Johnson returned to the table, told her what happened, and
walked to the dance floor. She said a fight began on the dance floor, which involved Mr.
Johnson, the Defendants, and other people who were on the dance floor.



                                              -4-
       Ms. Campbell testified that she grabbed Mr. Johnson and ran toward the door, that
Defendant Williams entered the club with a gun, and that Williams shot Mr. Johnson in the
stomach. She said she also saw Defendant Gray shooting a gun. She said that Gray was “the
second shooter” and that he fired his gun “everywhere.” She said that Mr. Johnson was still
standing after Williams shot him and that he fell after Gray ran through the club shooting.
She said Williams seemed mad and aimed his gun at Mr. Johnson. She said that after the
shooting, Williams left the club as though nothing happened. She thought Mr. Johnson was
shot twice because the Defendants shot at Mr. Johnson, and she denied knowing he was only
shot once.

       On cross-examination, Ms. Campbell testified that she and her sister did not discuss
who shot Mr. Johnson. She agreed that although she told the police the Defendants shot Mr.
Johnson, she did not see Defendant Gray shoot Mr. Johnson. She did not know the number
of people who entered the club after Defendant Williams entered with the gun. She said she
ran when she saw the gun and dropped to the floor beside Mr. Johnson.

       Ms. Campbell testified that the fight involving Mr. Johnson and the Defendants
occurred near the dance floor and about fifteen feet from where she was sitting. She said she
grabbed Mr. Johnson and walked toward the door to leave about seven minutes later. She
said that the Defendants left the club before she and Mr. Johnson attempted to leave and that
she saw Defendant Williams enter the club as she and Mr. Johnson walked toward the door.

       Ms. Campbell testified that no fight occurred on the dance floor or stage before Mr.
Johnson began fighting the Defendants. She agreed she saw Booka spill alcohol on Mr.
Johnson but denied hearing what was said. She said she had never seen Defendant Williams
before the night of the shooting. She said Williams wore a white t-shirt and khaki pants that
night.

        Ms. Campbell testified that she told the police Defendant Gray was responsible for
Mr. Johnson’s death and that she saw Gray shoot Mr. Johnson. She agreed that the police
asked if Gray was with anyone that night and that she told the police there were “a lot of
guys, but the boy walking up to [Jimmie] shot him.” She said that two men walked up to Mr.
Johnson, that Defendant Williams shot Mr. Johnson, and that Gray was with Williams. She
clarified that she saw Williams shoot Mr. Johnson and that she thought Gray shot Mr.
Johnson, too, because Mr. Johnson fell to the floor when Gray ran through the club shooting.
She did not know that her seeing Williams shoot Mr. Johnson was not in her statement to the
police, although she said she told the police she saw Williams shoot Mr. Johnson.




                                             -5-
        Ms. Campbell testified that Defendant Williams shot Mr. Johnson, that Mr. Johnson
continued standing until Defendant Gray shot Mr. Johnson and that five minutes separated
the gunshots. She heard Gray say, “I got you, B----,” before shooting Mr. Johnson. She
denied telling the police that Williams said, “I got you, B----,” and that Williams shot Mr.
Johnson in the stomach. She agreed she and her sister, April, saw different things that night
and said they ran in different directions during the shooting. She said that Mr. Johnson
became hot after being shot, that he took off his t-shirt, that he gave it to her, and that she
gave it to a police officer. She said the shirt had two bullet holes. She agreed the statement
did not mention the shirt or the bullet holes.

       Eldridge Donelson testified that he was serving a sentence for aggravated robbery at
the time of the trial and that he went to the club with his cousins the night of the shooting.
He said that he drank and smoked marijuana at the club and that he left and returned thirty
minutes later. He said that he saw someone knock a drink from Mr. Johnson’s hand, that a
fight occurred on the dance floor, which did not involve Mr. Johnson, and that Mr. Johnson
became involved in a second fight with three or four men. He admitted joining the fight
because he wanted to help Mr. Johnson, who was his cousin. He said the fight lasted thirty
seconds to one minute. He said that the fight ended and that everyone began to leave.

       Mr. Donelson, who was eighteen at the time of the shooting, testified that he left the
club and walked to the parking lot, that he heard gunshots as he attempted to get into the car
with Antuwn Gunn, and that he was shot in the stomach. He said he looked back when he
heard the gunshots and saw a crowd of people and an unidentified man pointing a gun at him.
He ran into the club after he was shot and crawled under a pool table. He stayed there until
he saw other people running to the front door. He ran to the car, and his cousins took him
to the hospital. He said that he awoke at the hospital two or three days later and that he
underwent surgery and stayed in the hospital seven days.

       On cross-examination, Mr. Donelson testified that he was not able to identify the
person who shot him and that the shooter was about twenty feet away. He did not know if
the gun was a semi-automatic pistol or a revolver. He agreed it was difficult to see inside the
club because the lights were low. He said there was a lot of commotion and chaos.

        Cecilia Williams testified that she arrived at the club around 11:30 p.m. for a birthday
party and that she heard an argument when she arrived regarding someone vomiting or
spilling a drink on someone’s shoes. She denied that the people arguing fought, that the fight
ended, and that they began dancing. She said she saw a fight that stemmed from Booka
knocking over Mr. Johnson’s cup. She said she saw beer bottles tossed, tables overturned,
and men fighting. She said that she ran outside and saw a car by the front door and that the
men inside the car grabbed guns. Although she did not recognize everyone, she said she saw

                                              -6-
Defendant Williams with a handgun. She said she saw one of the men with a “big gun” and
thought it might have been a “chopper - AK or SK.” She said Williams entered the club with
the gun.

       On cross-examination, Ms. Williams testified that she told the police Defendant Gray
shot Mr. Johnson. She agreed that although she knew who entered the club with the guns,
she did not see who shot Mr. Johnson. She said there were about fifty or sixty people inside
the club around the time of the shooting. She admitted drinking one pink lemonade with
vodka. She said that about ten men with guns entered the club and that she heard gunshots
from outside. She said she did not know Gray’s full name at the time of the shooting.

       Memphis Police Officer Will Bryson testified that he responded to the shooting and
secured the scene until detectives arrived. He said he provided aid to Mr. Johnson before the
paramedics arrived. On cross-examination, Officer Bryson testified that five to ten people
were at the scene when he arrived, that he did not speak to anyone outside the club, and that
he recalled speaking to three witnesses inside the club. He did not look for evidence in the
parking lot.

       Memphis Police Crime Scene Investigator Demar Wells testified that he arrived at the
scene at 2:15 a.m. and that neither Mr. Johnson nor Mr. Donelson were there. He said he
found one fired nine-millimeter shell casing and two fired forty-caliber shell casings. One
nine millimeter shell casing was found outside the club, and three were found inside. He also
recovered bullet fragments. He was familiar with assault rifles and said “chopper” referred
to an AK-47 or SK assault rifle. He identified a photograph of a bullet hole in the wall and
said he was able to recover the bullet from the wall.

        On cross-examination, Investigator Wells testified that he found two forty-caliber
shell casings near the front door and that the casings were about one and one-half feet apart.
He said the bullet fragment was sent to the Tennessee Bureau of Investigation (TBI) for
analysis. He did not see overturned tables or a lot of blood inside the club. He said the only
evidence of a shooting outside the club was the single shell casing. He did not know how
long the casing had been there and agreed he could not determine if the casing was from that
night or a previous night. He found no evidence that an AK-47 was used inside or outside
the club. He concluded that at least two handguns were used inside the club because a forty-
caliber bullet would not fire from a nine-millimeter handgun due to the size of the bullet.

       Memphis Police Officer Anthony Mullins testified that he obtained two of Mr.
Johnson’s t-shirts from Janice Campbell. He identified the shirts and examined them for
holes. He stated that the first shirt had one oblong-shaped hole and two very small defects.
He stated that the second shirt had two holes.

                                             -7-
        On cross-examination, Officer Mullins testified that the two defects could have been
caused by a very small bullet fragment or might have been unrelated to the shooting. He said
it was possible a small caliber bullet made the holes, such as a twenty-two or twenty-five
caliber bullet. He said that the holes in the second shirt were about the same size and that the
shirt had a blood stain. He agreed he did not know how the holes were created and did not
know if the holes in the shirts matched the victim’s wound. He said that he did not send the
shirts to the medical examiner and that to his knowledge, the medical examiner did not
request them.

       Officer Mullins testified that he interviewed Cecilia Williams. He did not recall
looking for anyone known as Boo or Junior. He said he recalled the name Marcus Hall but
did not recall looking for him. He admitted being present during a portion of Janice
Campbell’s interview and said he provided photograph lineups and obtained the shirts from
Ms. Campbell. He agreed April Campbell sent Janice Campbell a text message identifying
Defendant Gray as a suspect. He said Janice Campbell did not know the shooter’s name but
could identify his face.

        Shelby County Medical Examiner Miguel Laboy, an expert in forensic pathology,
testified that he performed Mr. Johnson’s autopsy. He observed an opening in Mr. Johnson’s
abdomen, an abrasion on his left cheek, multiple abrasions on the right side of his neck, and
an abrasion on his back. He said the cause of death was a gunshot wound to the abdomen.
He stated that the abdomen had many blood vessels and that a bullet passing through the area
perforated arteries. He said that a person might lose blood slowly and that depending upon
how the blood left the organs, a person might be able to perform many tasks. He said in Mr.
Johnson’s case, the bullet passed through his bowels and into the inferior vena cava, which
caused blood loss in the abdomen. He said the wound did not cause “a sudden stop of doing
anything.” He agreed a person could remain conscious, talk, and move for a period of time
after receiving wounds similar to Mr. Johnson’s depending upon the rate of blood loss. He
said Mr. Johnson’s wounds might or might not cause a lot of blood loss. He concluded that
Mr. Johnson was shot from an indeterminate range because no soot or stippling was found
on his body. He said the toxicology analysis of Mr. Johnson’s blood showed the presence
of marijuana.

       On cross-examination, Dr. Laboy testified that he retrieved the bullet from Mr.
Johnson’s abdomen. He said that the wound was cleaned and sterilized at the hospital, that
soot and stippling might have been cleaned from the wound, and that it would be difficult to
know whether soot and stippling were present on Mr. Johnson’s wound. He said that Mr.
Johnson was naked when his body arrived at his office and that he did not receive Mr.
Johnson’s clothing. He said he only found one gunshot wound.



                                              -8-
        Derias Pettis testified on behalf of Defendant Gray that he was at the club on the night
of the shooting and that he arrived around 10:00 p.m. He said he went to the club with Gray,
William Goliday, and Mario Lewis. He said that Gray and Mr. Goliday went to the dance
floor while he sat at a table and that Mr. Johnson entered the club around that time. He
denied that he drank alcohol or smoked marijuana that night. He said Mr. Johnson walked
to the dance floor, threw “stuff up in the air,” and told people “what he was going to do.”
He said that Mr. Goliday knocked Mr. Johnson’s drink from his hands and that they began
to argue. He said Mr. Goliday attempted to walk away, and he recalled Mr. Johnson’s hitting
Gray. He said that everyone on the dance floor began to fight, including Gray and Mr.
Johnson. He said the fight lasted ten or fifteen minutes until he heard a gunshot. He said that
he looked for Gray, that he found Gray, and that he heard a second gunshot when they
reached the front door. He said that it was chaotic but that he and Gray ran to his sister’s
home after they reached the parking lot. He denied seeing Gray with a weapon.

        On cross-examination, Mr. Pettis testified that Mr. Goliday was also known as Booka
and that they grew up together. He denied discussing the shootings with Defendant Gray and
said they did not know anyone died. He denied that Mr. Johnson and Gray fought that night.
He said that Mr. Johnson fought with Defendant Williams and that Gray did not participate
in that fight. He said he had known Williams for about five years and denied discussing the
case with Williams. He said that Mr. Lewis drove him and the others to the club that night
in a white Buick or Crown Victoria. He said that to his knowledge, nothing was inside the
trunk. He denied looking inside the trunk or seeing anyone retrieve a gun from the trunk.

        Mr. Pettis testified that he first saw Defendant Williams when Mr. Pettis entered the
club. Mr. Pettis sat at a table near the dance floor and said the fight began about five minutes
later. Defendant Gray fought a group of people, and Williams fought with Mr. Johnson. He
did not know if Booka was involved in the fight. He said Mr. Johnson entered the club alone
and walked to the dance floor immediately. He said Mr. Johnson was “throwing words . .
. in the air.” He said he heard Mr. Johnson mention Vice Lords and others talking about
Crips. He denied being a Crip and said that to his knowledge, the Defendants and Booka
were not members either.

        Mr. Pettis testified that he heard the first gunshot around 10:30 p.m. but denied
knowing who fired the shot. He said he did not see anyone with a gun when he ran out the
front door. He admitted he did not call the police after the shooting. He denied knowing
Junior but then said he did not see Junior inside the club. On redirect examination, he said
the car in which he arrived was not in the parking lot when he ran from the club. He denied
that Defendant Williams rode with him to the club in the white car and said Defendant Gray
wore a purple and black “label jacket” the night of the shooting.



                                              -9-
       Karlos Miller testified on Defendant Williams’s behalf that his father was a part
owner of the club and that he helped provide security the night of the shooting. He said two
parties were scheduled the night of the shooting. He said he saw one fight on the stage
involving seven or eight people around 11:00 p.m. He said the shooting began about ten
minutes after the fight ended. He said that he and Williams were looking for Mr. Miller’s
keys near the stage when the shooting began. He admitted Williams was a childhood friend
and denied knowing the victims.

        Mr. Miller testified that the first gunshot came from outside the club and that the next
gunshot came from inside the club. He said he and Defendant Williams got under a table
after the shot was fired inside the club. He heard three gunshots inside the club but denied
seeing who was shooting. He denied knowing the number of guns being fired. He said that
after the shooting, he stood and saw Mr. Johnson lying on the floor. He denied talking to the
police about the shooting.

       On cross-examination, Mr. Miller testified that the night of the shooting was the first
time he had seen Defendant Williams at the club. He denied knowing Defendant Gray,
Booka, and Mr. Lewis. He admitted Williams was involved in a fight at the club but did not
know if Gray was involved. He denied that he ended the fight and said that he helped
Williams get off the floor. He said Williams was going to leave but could not find his car
keys and asked for his help. He denied Williams went outside, although he said everyone
else went outside to watch a fight.

      Mr. Miller testified that although he never found Defendant Williams’s car keys,
Williams left immediately after the shooting. He testified later, though, that he did not know
when Williams left. He said he learned from Williams’s family that he was arrested and
needed Mr. Miller to testify. He denied talking to Williams or his family about the case.

        Defendant Williams was convicted of first degree murder for the death of Mr.
Johnson, attempt to commit first degree murder for shooting Mr. Donelson, and employing
a firearm during the commission of a dangerous felony. He was sentenced to consecutive
terms of life imprisonment for the first degree murder conviction, twenty-four years for the
attempted first degree murder conviction, and ten years for the firearm violation, for an
effective sentence of life plus thirty-four years. Defendant Gray was acquitted of first degree
murder but was convicted of attempted first degree murder and employing a firearm during
the commission of a dangerous felony. He was sentenced to consecutive sentences of
twenty-four years for the attempted first degree murder conviction and ten years for the
firearm violation, for an effective thirty-four-year sentence. This appeal followed.




                                              -10-
                                                I

       Defendant Gray contends that the evidence is insufficient to sustain his conviction for
attempt to commit first degree murder of Mr. Donelson. He argues the evidence fails to
show that he shot Mr. Donelson and that he was criminally responsible for the actions of
whoever shot him. The State responds that the evidence is sufficient. We agree with the
State.

       Our standard of review when the sufficiency of the evidence is questioned on appeal
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). We do not reweigh the
evidence but presume that the trier of fact has resolved all conflicts in the testimony and
drawn all reasonable inferences from the evidence in favor of the State. See State v.
Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835
(Tenn. 1978). Questions about witness credibility are resolved by the jury. See State v.
Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

      “A crime may be established by direct evidence, circumstantial evidence, or a
combination of the two.” State v. Sutton, 166 S.W.3d 686, 691 (Tenn. 2005) (quoting State
v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998)). Circumstantial evidence alone may be
sufficient to support a conviction. State v. Richmond, 7 S.W.3d 90, 91 (Tenn. Crim. App.
1999); State v. Buttrey, 756 S.W.2d 718, 721 (Tenn. Crim. App. 1988). The standard of
proof is the same, whether the evidence is direct or circumstantial. State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011). Likewise, appellate review of the convicting evidence “‘is
the same whether the conviction is based upon direct or circumstantial evidence.’” Id.
(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

        Relevant to this appeal, first degree murder is defined as the premeditated and
intentional killing of another. T.C.A. § 39-13-202(a)(1) (2010). Intentional is defined as the
“conscious objective or desire to engage in the conduct or cause the result.” Id. § 39-11-
106(a)(18) (2010). Premeditation is defined as “an act done after the exercise of reflection
and judgment” Id. § 39-12-202(d). “[T]he 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.” Id. The determination of whether a defendant acted with
premeditation is a question of fact for the jury and may be established by direct and
circumstantial evidence. See State v. Davidson, 121 S.W.3d 600, 614 (Tenn. 2003); see also
State v. Brown, 836 S.W.2d 530, 541 (Tenn. 1992).




                                              -11-
      Criminal attempt is committed when a person acts with the kind of culpability
otherwise required for the offense and:

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

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

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

T.C.A. § 39-12-101(a)(1)-(3) (2010). “Conduct does not constitute a substantial step . . .
unless the person’s entire course of action is corroborative of the intent to commit the
offense.” Id. § 39-12-101(b).

        A person is criminally responsible “if the offense is committed by the person’s own
conduct, by the conduct of another for which the person is criminally responsible, or by both.”
Id. § 39-11-401(a) (2010). Criminal responsibility is a theory upon which evidence may be
presented establishing a defendant’s guilt based upon the actions of another. State v. Mickens,
122 S.W.3d 355, 389-90 (Tenn. Crim. App. 2003). Presence and companionship with another
before and after the commission of a crime provide a basis for inferring participation in the
offense. State v. Ball, 973 S.W.2d 288, 293 (Tenn. Crim. App. 1998). Likewise, the State is
not required to establish that the defendant engaged in a particular act to be criminally liable.
Id. Rather, the defendant must “‘in some way associate . . . with the venture, act with
knowledge that an offense is to be committed, and share in the criminal intent of the principal
in the first degree.’” State v. Maxey, 898 S.W.2d 756, 757 (Tenn. Crim. App. 1994) (quoting
Hembree v. State, 546 S.W.2d 235, 239 (Tenn. Crim. App. 1976)).

        The evidence shows that Mr. Johnson and the Defendants fought inside the club. Mr.
Pettis traveled to the club in a white car with Mr. Goliday, Mr. Lewis, and Defendant Gray.
Mr. Goliday knocked Mr. Johnson’s drink from his hand, and they began to argue. Mr.
Johnson and Gray began to fight, which led to everyone on the dance floor fighting. Mr.
Donelson admitted joining the fight because he wanted to help Mr. Johnson, who was his
cousin. The fight ended and people began to leave. Mr. Donelson walked to his car, heard
gunshots, saw a man pointing a gun at him, and was shot in the stomach. He could not

                                              -12-
identify the man who shot him.

      After the fight, Jamaica Cartwright saw five men standing at the trunk of a white car
and saw one of them loading a gun. She attempted to warn people inside the club that men
were loading guns. Ms. Cartwright heard gunshots outside the club and saw that Mr.
Donelson had been shot. Cecilia Williams said she heard gunshots outside the club and saw
ten men with guns enter the club. Ms. Williams, April and Janice Campbell, and Ms.
Cartwright saw Defendant Gray shooting a gun the night of the shooting. Forty-caliber and
nine-millimeter shell casings recovered from the scene support the inference of two shooters.

       Although the evidence fails to establish the identity of the man who shot Mr. Donelson,
we conclude that Defendant Gray is criminally responsible for the shooting. Witnesses saw
multiple men standing at the trunk of a white car and loading guns. The Defendants were
seen firing guns that night, and Defendant Williams shot Mr. Johnson. The jury could have
inferred that either Defendant shot Mr. Donelson outside the club after retrieving the guns
from the trunk of the car but before entering the club. Alternatively, it could have inferred
that one of the men standing at the trunk of the white car shot Mr. Donelson, as five to ten
men retrieved guns from the trunk. Regardless of which inference the jury made, the evidence
showed that Gray acted with knowledge that the shooting was going to be committed. His
presence and companionship with Williams and the other men who retrieved guns from the
car provided a basis for inferring beyond a reasonable doubt that Gray participated in shooting
Mr. Donelson. See Ball, 973 S.W.2d at 293. Gray associated with the venture, acted with the
knowledge that the shooting was going to occur, and shared the criminal intent to shoot Mr.
Donelson. See Maxey, 898 S.W.2d at 757. The evidence is sufficient.

                                               II

        Defendant Gray contends that the trial court erred by allowing the medical examiner
to testify about the effects of a gunshot wound on a living person. He argues this testimony
was outside the medical examiner’s area of expertise in performing autopsies. The State
responds that the court properly allowed the medical examiner to testify about the effects of
gunshot wounds on a living person. We agree with the State.

        Tennessee Rule of Evidence 702 states, “If scientific, technical, or other specialized
knowledge will substantially assist the trier of fact to understand the evidence or to determine
a fact in issue, a witness, qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise.” Determinations about the
admissibility of expert testimony are within the sound discretion of the trial court. State v.
Ballard, 855 S.W.2d 557, 562 (Tenn. 1993). The standard of review is whether the court
abused its discretion, and in order to reverse a court’s ruling, this court must determine that

                                              -13-
the court “‘applied an incorrect legal standard, or reached a decision which is against logic
or reasoning that caused an injustice to the party complaining.’” State v. Shirley, 6 S.W.3d
243, 247 (Tenn. 1999) (quoting State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997)).

       Dr. Laboy testified as an expert in forensic pathology and concluded that Mr. Johnson’s
cause of death was a gunshot wound to the abdomen. The State asked Dr. Laboy “what would
that gunshot wound . . . do to a person, and what would be a person’s capabilities after
sustaining that wound as far as consciousness, the ability to stand, ability to talk – things like
that?” Dr. Laboy stated that the abdomen had many blood vessels and that a bullet passing
through the area perforated arteries. He said that a person might lose blood slowly and that
depending upon how the blood left the organs, a person might be able to perform many tasks.
He said that the bullet passed through Mr. Johnson’s bowels and into the inferior vena cava,
which caused blood loss in the abdomen. He said the wound did not cause “a sudden stop of
doing anything.” He agreed a person could remain conscious, talk, and move for a period of
time after receiving a gunshot wound similar to Mr. Johnson’s depending upon the rate of
blood loss. He said Mr. Johnson’s wounds might or might not have caused significant blood
loss.

        We conclude that the trial court did not abuse its discretion. Dr. Laboy testified that
he was a medical doctor specializing in forensic pathology, and the parties stipulated that he
was an expert in forensic pathology. At the trial, defense counsel objected to the relevant
testimony on the ground that it was outside the scope of Dr. Laboy’s expertise. The court
disagreed and overruled the objection. We note that the Defendant has failed to cite authority
stating that a medical examiner is not permitted to testify about the effects of a victim’s
wounds. Dr. Laboy’s expertise went beyond determining the cause of death and included
determining the effect the victim’s wound had on the body. Such a determination was
imperative in determining the cause of death. Likewise, Dr. Laboy’s testimony regarding the
effects of the gunshot wound on the body supported witness testimony that Mr. Johnson was
conscious, talking, and moving after being shot and that there was relatively little blood. This
issue is without merit.

                                               III

       Defendant Gray contends that the trial court erred during sentencing by ignoring his
acquittal of first degree murder and by improperly applying enhancement factors. The State
responds that the court properly considered and found the appropriate enhancement factors
but that the court improperly sentenced the Defendants regarding the employing a firearm
during the commission of a dangerous felony conviction. We agree with the State.




                                              -14-
       Although no witnesses testified at the sentencing hearing, a presentence report was
received as an exhibit. The report showed a 2008 misdemeanor conviction for a weapons
violation. Defendant Gray received ten months and twenty-three days’ probation. The report
showed juvenile adjudications for disorderly conduct, assault, theft of property valued at
$500 or less, obstruction of a highway, and a curfew violation. He finished the ninth grade,
reported leaving school for disciplinary reasons, reported good health, and denied using
drugs or alcohol.

        Although the trial court found that no mitigating factors applied, it noted that
Defendant Gray did not have a juvenile record that could be used to enhance his sentences.
The court noted, though, the “sheer volume . . . of juvenile contacts [.]” The court said that
Gray had ten or eleven contacts with the juvenile justice system dating from 2001 and found
that youth and inexperience played no role in the instant offenses. The court placed little
weight on Gray’s not having a substantial criminal history. The court stated that Gray “broke
into the adult system with style” and found that he had a previous history of convictions other
than those for which he was charged. See T.C.A. § 40-35-114(1) (2010). The court found
that enhancement factor (10) applied. See id. § 40-35-114(10) (“The defendant had no
hesitation about committing a crime when the risk to human life was high.”). The court
found that the Defendants fired multiple gunshots into a crowded room. The court placed
great weight on the fact that Gray left the club, went to a car, retrieved a gun, returned to the
building, and fired the gun.

        The trial court stated that it found no logic in the jury’s acquitting Defendant Gray of
first degree murder and said that it believed he was guilty of first degree murder. The court
found that his returning to a vehicle, obtaining a gun, and entering the club was “criminal
behavior in addition to that necessary to establish [the] appropriate range.” The court stated
that a twenty-five-year sentence was warranted because the evidence would have supported
a first degree murder conviction. The court stated, though, that based upon its finding two
enhancement factors it was sentencing Gray to twenty-four years for the attempt to commit
first degree murder conviction and ten years for the firearm conviction, six years to be served
at 100%.

        The Tennessee Supreme Court adopted a new standard of review for sentencing in
State v. Bise, 380 S.W.3d 682, 706 (Tenn. 2012). Currently, the length of a sentence “within
the appropriate statutory range [is] to be reviewed under an abuse of discretion standard with
a ‘presumption of reasonableness.’” Id. at 708. In determining the proper sentence, the trial
court must consider: (1) any evidence received at the trial and sentencing hearing, (2) the
presentence report, (3) the principles of sentencing and arguments as to sentencing
alternatives, (4) the nature and characteristics of the criminal conduct, (5) any mitigating or
statutory enhancement factors, (6) statistical information provided by the administrative

                                              -15-
office of the courts as to sentencing practices for similar offenses in Tennessee, (7) any
statement that the defendant made on his own behalf, and (8) the potential for rehabilitation
or treatment. T.C.A. §§ 40-35-102, -103, -210; see State v. Ashby, 823 S.W.2d 166, 168
(Tenn. 1991); State v. Moss, 727 S.W.2d 229, 236 (Tenn. 1986).

       Challenges to a trial court’s application of enhancement and mitigating factors are
reviewed under an abuse of discretion standard. Bise, 380 S.W.3d at 706. We must apply
“a presumption of reasonableness to within-range sentencing decisions that reflect a proper
application of the purposes and principles of our Sentencing Act.” Id. at 707. “[A] trial
court’s misapplication of an enhancement or mitigating factor does not invalidate the
sentence imposed unless the trial court wholly departed from the 1989 Act, as amended in
2005.” Id. at 706. “So long as there are other reasons consistent with the purposes and
principles of sentencing, as provided by statute, a sentence imposed by the trial court within
the appropriate range should be upheld.” Id.

       Defendant Gray argues the trial court improperly applied enhancement factors (1) and
(10). The presentence report showed a previous conviction for carrying a firearm on school
property, a misdemeanor. See T.C.A. § 40-35-114(1). The record shows that multiple people
were inside and outside the club when he fired his gun. He left the club, retrieved a gun,
returned to the club, and fired the gun while numerous people were inside. See id. § 40-35-
114(10). The court properly applied these enhancement factors.

       Although the trial court expressed disagreement with the jury’s verdict acquitting
Defendant Gray of first degree murder and found that the evidence supported a first degree
murder conviction, the court has authority to make such a finding. In any event, after the
court discussed its disagreement with the verdict, it stated that the sentence was based upon
the two applicable enhancement factors. We conclude that the court did not enhance Gray’s
sentence because it found that he was guilty of first degree murder.

       Although we affirm Defendant Gray’s sentence for attempt to commit first degree
murder, we conclude that the trial court improperly sentenced the Defendants to ten years for
the employing a firearm during the commission of a dangerous felony convictions.
Tennessee Code Annotated section 39-17-1324(h)(1) (2010) states that employing a firearm
during the commission of a dangerous felony is a Class C felony, punishable by a mandatory
minimum six years’ confinement. The mandatory minimum sentence becomes ten years’
confinement only when a defendant has a prior felony conviction. T.C.A. § 39-17-
1324(h)(2). The record shows that the Defendants did not have previous felony convictions.
As a result, the maximum sentence allowed by law was six years’ confinement. Id. § 39-35-
112(a)(3) (2010) (stating that a Range I sentence for a Class C felony is three to six years).
We reverse the Defendants’ judgments for employing a firearm during the commission of a

                                             -16-
dangerous felony and remand for entry of judgments reflecting six-year sentences. The
judgments should reflect an effective thirty-year sentence for Defendant Gray and an
effective sentence of life imprisonment plus thirty years for Defendant Williams.

                                              IV

       Defendant Williams contends that the evidence is insufficient to support his
convictions for attempt to commit first degree murder and employing a firearm during the
commission of a dangerous felony. He argues that no evidence was presented showing that
he shot Mr. Donelson. The State responds that the evidence is sufficient. We agree with the
State.

        Regarding the attempt to commit first degree murder conviction, the evidence shows
that after Mr. Johnson’s drink was knocked from his hands, Mr. Johnson and Defendant
Williams began fighting. April Campbell saw the Defendants and the people with the
Defendants “jump[]” Mr. Johnson. Mr. Donelson joined the fight to help Mr. Johnson. The
fight ended, people began to leave, and the Defendants ran outside. April and Janice
Campbell saw Williams reenter the club with a gun and shoot Mr. Johnson. They also saw
Defendant Gray fire a gun.

       April Campbell saw guns in the trunk of a car parked near the front door when she
arrived the night of the shooting. Jamaica Cartwright left after the fight, saw five men
standing at the trunk of a white car, and saw one loading a gun. Ms. Cartwright heard
gunshots outside the club, noticed Mr. Donelson was shot, and saw a man with a gun enter
the club. Mr. Donelson left the club after the fight and was shot before the Defendants
returned.

      Cecilia Williams ran outside the club during the fight involving Mr. Johnson and the
Defendants, and the other people on the stage. She saw a car near the front door, saw about
ten men retrieve guns from the car, and saw Defendant Williams take a handgun into the
club. She said she heard gunshots inside and outside the club. Forty-caliber and nine-
millimeter shell casings recovered from the scene support the inference of two shooters.

       Although the evidence fails to establish the identity of the man who shot Mr.
Donelson, we conclude that Defendant Williams is criminally responsible for the shooting.
Witnesses saw multiple men standing at the trunk of a white car and loading guns. The
Defendants were seen firing guns that night, and witnesses testified that Williams shot Mr.
Johnson. As we have stated, the jury could have inferred that the Defendants shot Mr.
Donelson outside the club after retrieving the guns from the trunk of the car but before
entering the club. Alternatively, it could have inferred from the evidence that five to ten men

                                             -17-
retrieved guns from the trunk of the white car and that one of the men standing shot Mr.
Donelson. Regardless of which inference the jury made, the evidence showed that Williams
acted with knowledge that the shooting was going to be committed. His presence and
companionship with Defendant Gray and the other men who retrieved guns from the car
provided a basis for inferring beyond a reasonable doubt that he participated in shooting Mr.
Donelson. See Ball, 973 S.W.2d at 293. Williams associated with the venture, acted with
knowledge of the shooting, and shared the criminal intent to shoot Mr. Donelson. See
Maxey, 898 S.W.2d at 757. The evidence is sufficient.

       Relevant to this appeal, “[i]t is an offense to employ a firearm during the commission
of a dangerous felony.” T.C.A. § 39-17-1324(b)(1). Witness testimony established that
Defendant Williams entered the club with a handgun after the fight with Mr. Johnson and
shot Mr. Johnson. The evidence is sufficient.

                                             V

       Defendant Williams contends that the trial court improperly instructed the jury on
criminal responsibility regarding attempt to commit first degree murder. He argues the
evidence did not warrant the jury instruction. The State contends that the court properly
instructed the jury. We agree with the State.

       As we have previously stated, the evidence is sufficient to support Defendant
Williams’s attempt to commit first degree murder conviction. Although the evidence fails
to establish the identity of the man who shot Mr. Donelson, the trial court did not err by
providing the criminal responsibility instruction. Witnesses saw multiple men standing at
the trunk of a white car and loading guns. The Defendants were seen firing guns that night.
The jury could have inferred that either Defendant shot Mr. Donelson or inferred that one of
the men standing at the trunk of the white car shot Mr. Donelson. Regardless of which
inference the jury made, the evidence showed that Williams acted with knowledge that the
shooting was going to be committed and shared the criminal intent to shoot Mr. Donelson.
See Maxey, 898 S.W.2d at 757.

       In consideration of the foregoing and the record as a whole, we affirm the Defendants’
convictions, but we reverse the employing a firearm during the commission of a dangerous
felony judgments and remand the case to the Shelby County Criminal Court for entry of
judgments reflecting six-year sentences.


                                           ____________________________________
                                           JOSEPH M. TIPTON, PRESIDING JUDGE

                                            -18-
