        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                 April 14, 2015 Session

                STATE OF TENNESSEE v. MICHAEL BONSKY

              Direct Appeal from the Criminal Court for Shelby County
                    No. 12-02445 James M. Lammey, Jr., Judge



                No. W2014-00675-CCA-R3-CD - Filed April 27, 2016



The Appellant, Michael Bonsky, was convicted by a jury in the Shelby County Criminal
Court of second degree murder, attempted second degree murder, and especially
aggravated robbery. The trial court imposed a total effective sentence of sixty years in
the Tennessee Department of Correction. On appeal, the Appellant raises the following
issues: (1) whether the trial court erred by drafting its own jury instruction regarding
diminished capacity; (2) whether the trial court erred by admitting evidence regarding the
Appellant‘s presence at a casino and committing a robbery in Mississippi within hours of
the instant offenses; (3) whether the trial court erred by admitting a recording of the
telephone call one of the victims made to 911; (4) whether the trial court erred by
admitting the Appellant‘s statement into evidence; (5) whether the trial court erred by not
allowing an expert witness to testify regarding the Appellant‘s level of intoxication and
his ability to form the requisite intent; (6) whether the trial court erred in sentencing the
Appellant; and (7) whether the evidence was sufficient to sustain the Appellant‘s
convictions. Upon review, we conclude that the trial court‘s instruction to the jury
regarding diminished capacity was error and that the error was not harmless; therefore,
the Appellant‘s convictions are reversed, and the case is remanded for a new trial.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., joined. JAMES CURWOOD WITT, JR., J., filed a concurring opinion.

Vickie M. Carriker (on appeal and at trial) and David Hamilton (at trial), Memphis,
Tennessee, for the Appellant, Michael Bonsky.
Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Glen Baity and Bryce
Phillips, Assistant District Attorneys General, for the Appellee, State of Tennessee.

                                                  OPINION

                                         I. Factual Background

       The Appellant‘s charges stemmed from a March 25, 2012, shooting that resulted
in the death of thirty-year-old Roy Townsel, Jr., and the injury of Townsel‘s girlfriend,
Courtney Smith. At trial, the Appellant contended that he was intoxicated and did not
intend to kill or injure the victims.

        Foad Ahmadi testified at trial that around 6:30 p.m. on Sunday, March 25, 2012,
he went to Townsel‘s residence in the Orange Mound area of Memphis. Townsel lived
with Steve McKinney and McKinney‘s girlfriend, Kristen Smith. When Ahmadi arrived,
the Appellant was asleep on a couch. Ahmadi and Townsel left, went to Walmart, and
visited friends. As Ahmadi drove Townsel home, Townsel spoke with Courtney1 over
the telephone and arranged to go out to eat later that night. At approximately 9:30 p.m.,
Ahmadi dropped off Townsel at his home. Thirty minutes to one hour later, a friend
called and told Ahmadi that Townsel had been shot. Ahmadi did not believe the report
and went to Townsel‘s residence to check on him. While there, Ahmadi spoke with the
police and gave a statement.

       Ahmadi testified that he was at Townsel‘s residence on the Saturday prior to the
shooting. The Appellant was there at that time, and Ahmadi did not see him take illegal
drugs.

       On cross-examination, Ahmadi said that the Appellant, Townsel, and McKinney
were friends and were in the music business together. He said that on Saturday, Ahmadi,
McKinney, Kristen, Townsel, Courtney, and the Appellant were ―hanging out‖ and
watching television at Townsel‘s residence. Everyone got along and had no problems
with each other.

       Ahmadi said that when he saw the Appellant on Sunday, the Appellant appeared to
be asleep. He did not see any weapons around the Appellant. Townsel did not mention
having problems with anyone and appeared to be in a good mood.

    Jeremiah King, a 911 dispatcher with the communications department of the
Memphis Police Department, testified that 911 received a call at 10:41 p.m. on March 25,
1
  Some of the witnesses in this case share a surname. Therefore, for clarity, we have chosen to utilize their first
names. We mean no disrespect to these individuals.
                                                       -2-
2012. He identified a compact disk (CD) on which was a copy of the call, and the CD
was entered as an exhibit.

       Courtney Smith testified that at the time of trial, she was a second-year law
student and was living in Little Rock, Arkansas. In March 2012, she lived in Memphis
and had been dating Townsel for a few months.

        Courtney said that at approximately 9:30 or 10:00 p.m. on the day of the shooting,
she drove to Townsel‘s residence on Carson Street in her 1999 Lexus ES300 sedan,
which was worth a few thousand dollars. When she arrived, she parked with the front of
her car facing the house. Townsel let her in the front door, which opened into the living
room. The Appellant, a white man in his late twenties with ―brownish‖ hair, was lying
on the couch in the living room watching television. Courtney and Townsel walked past
the Appellant and went into Townsel‘s bedroom. They sat on the couch inside the
bedroom and talked. Townsel sat closest to the door. About fifteen or twenty minutes
later, the Appellant kicked open the bedroom door and shot each of them multiple times.
Courtney dropped to the floor, and the Appellant shot her in the back as she crawled
under the bed. Courtney surreptitiously grabbed Townsel‘s cellular telephone off the
floor and hid it underneath her. At some point, she was able to call 911. The recording
of the 911 call was played for the jury.

       Courtney said that after the shooting ended, the Appellant rifled through her purse
and her belongings, which were strewn on the floor, and then demanded her car keys.
Courtney told him that the keys were in the purse. The Appellant took the keys and told
her ―not to f[****]n‘ leave.‖ After the Appellant left, Courtney crawled from beneath the
bed and ran to a neighbor‘s house. She was bleeding heavily from the bullet wounds.
The neighbor would not let her inside the house but called 911 for her.

      Courtney said that she spent two and one-half weeks in the hospital. While she
was there, the police brought a photograph array, from which she immediately identified
the Appellant. When she saw her car after the shooting, it had some damage and
numerous scratches that were not there prior to the shooting.

       Courtney said that she was shot in the back, lung, elbow, and wrist. She had nerve
damage to her arm, and her elbow had to be reconstructed. At the time of trial, she was
using a ―breathing apparatus‖ on a daily basis.

       On cross-examination, Courtney said that she had been to Townsel‘s residence
four to six times before the day of the shooting. When she saw Townsel immediately
prior to the shooting, he did not appear to be agitated and did not mention that he had
been in a fight. When asked whether the Appellant had a reason to hurt her, she
responded, ―I‘m not sure. I mean, he did take my car. I don‘t know.‖
                                           -3-
       Kristen Smith testified that in March 2012, she and her boyfriend, McKinney, had
been living on Carson Street for approximately one year, and Townsel had lived with
them for about six months. She had known the Appellant for a long time, and they were
good friends.

       Kristen said that when she awoke on March 25, 2012, the Appellant was asleep on
a couch. Around noon, she and McKinney went fishing and to a few other places then
returned home. They, Townsel, and the Appellant watched ―a little bit‖ of a basketball
game with Antonio and Tori,2 then she and McKinney left the house around 4:30 p.m.

       Kristen said that around 10:00 p.m., McKinney received a call from the Appellant,
and they went home. When they arrived, the Appellant was standing beside Courtney‘s
car. Kristen recalled that Courtney usually parked with the front of the car facing the
house, but that day it was facing the street. Kristen and McKinney got out of their car,
and she heard Courtney talking on a neighbor‘s porch. Kristen walked to the porch to
check on Courtney and discovered that Courtney was bleeding and was on the telephone
with 911. She heard Courtney say that Townsel was dead. Kristen ran inside her house
and saw Townsel on a couch. He was dead.

       Kristen said that when the police arrived, they put her in a police car and that
Courtney was taken to a hospital. Kristen said that she gave the police a statement at the
scene. Kristen testified that she did not know why the Appellant killed Townsel. After
speaking with the police, she went home and discovered that a PlayStation video game
system worth approximately $300, five PlayStation video games worth approximately
$200, and a laptop computer worth approximately $600 were missing from the house.
The items were in the house when she left at 4:30 p.m.

      Kristen acknowledged that she told the police she had seen Courtney‘s car when
she arrived home but said that she forgot to tell the police she had also seen the
Appellant. She explained that she thought the Appellant was a good friend and that she
was in shock after discovering that Townsel was dead. Kristen said that at the time she
spoke with the police, she had not noticed that the items were missing from the house.

        On cross-examination, Kristen said that on the day before the shooting, the
Appellant was at her house with McKinney, Townsel, Antonio, and Tori; they were
―doing music‖ and watching television. Everyone got along and had a good time. They
all stayed awake until about 1:00 a.m. When she awoke around 9:30 or 10:00 a.m. the
next morning, the Appellant was asleep on a couch. She and McKinney left at noon, and
the Appellant was still asleep. She did not see the Appellant awake that day.

2
    The record does not reveal the surname of either Antonio or Tori.
                                                     -4-
       Kristen said that she had never seen the Appellant have a problem with anyone,
including Townsel. Additionally, she had never seen the Appellant with a gun. She
acknowledged that the house was hers and that she might get in trouble if anyone had
drugs in the house.

       On redirect examination, Kristen said that she had smoked marijuana in the house
and that she knew the Appellant had smoked marijuana a couple of times. She never saw
the Appellant take ―harder‖ drugs than marijuana but knew that he had taken Ecstasy a
couple of times when he was out of town. She said that Courtney‘s car was not at the
house when Kristen returned from the police station.

       Steve McKinney testified that he had known Townsel for at least seventeen years
and considered him to be a good friend. McKinney had known the Appellant for at least
fourteen years and was also a friend of his.

        McKinney said that on the day of the shooting, he, Kristen, and Townsel watched
a basketball game on television. Around 4:00 p.m., McKinney and Kristen left and went
to a friend‘s house. Sometime around 10:00 p.m., the Appellant called and said that three
white men came into the house and tried to rob him and Townsel. The Appellant said
that he had been shot in the shoulder. McKinney said that the Appellant sounded
―panicky.‖

       McKinney said that he and Kristen immediately drove home, arriving within five
to seven minutes. As they pulled into the driveway, he noticed the front door was open,
but the screen door was closed. Normally, they did not leave the front door open. Kristen
got out of the car; McKinney stayed to do ―something to the car because . . . it was
running hot.‖ Kristen came back to the car and told him Townsel had been shot and was
dead. McKinney and Kristen went into the house and saw Townsel lying unresponsive
on a couch in his bedroom. McKinney‘s friend Tori was upstairs in the soundproofed
music studio. Kristen and McKinney went outside and saw that the police had arrived.
McKinney said that he never saw Courtney because he went straight into his house.

       McKinney said that later, he and Kristen went to the police station to give
statements. When they returned home, he discovered that a PlayStation video game
system, PlayStation video games, and a laptop computer were missing. He estimated that
the value of the missing items was over $2,000.

       McKinney acknowledged that he had smoked marijuana in the past and that seven
or eight years earlier, he was convicted of selling marijuana. After his conviction, he
stopped selling drugs and made money by installing flooring. He explained that making
music was something he did ―on the side.‖
                                          -5-
       McKinney said that he knew the Appellant had smoked marijuana and taken
Xanax in the past. The Appellant never told him that he used ―hard drugs.‖ McKinney
noted that the Appellant had been in and out of town a lot prior to the shooting and that
he did not know if the Appellant used drugs while he was out of town. He noted,
however, that Kristen found something in a spoon in a bathroom of their house on one
occasion and that when asked about it, the Appellant ―said he wasn‘t doing anything.‖

       On cross-examination, McKinney said that the name of his music business was
240 East Entertainment, that he was a producer, and that the Appellant worked as the
―computer guy.‖ The Appellant had stayed with McKinney on prior occasions and came
to the house a couple of days prior to the shooting. The day before the shooting, the
Appellant, McKinney, Kristen, Townsel, Tori, and ―a couple of other people‖ watched a
basketball game at McKinney‘s house. McKinney recalled that everyone got along. He
said that the Appellant did not fight with anyone, that he did not use drugs, and that he
did not have a gun. McKinney acknowledged, however, that he did not watch the
Appellant the entire night.

        McKinney said that he went to bed around 11:30 p.m. or midnight and that he got
up at 11:00 or 11:30 a.m. The Appellant was still asleep and slept the majority of the
day. McKinney said that when the Appellant called to say that he and Townsel had been
shot, the Appellant did not sound like himself and was not calm.

       McKinney acknowledged that the Appellant did not have ―a problem‖ with Xanax.
The Appellant took Xanax to ―[g]et so high, he‘d just want to be sitting there passing
out.‖ McKinney said that the spoon Kristen found in the bathroom was empty when he
saw it. Kristen told McKinney that she also found a tissue with a small amount of blood
on it. McKinney thought that the Appellant might have been ―shooting up‖ and asserted
that neither he, Kristen, nor Townsel used intravenous drugs. McKinney acknowledged
that he had been convicted of selling drugs and that he would have gotten in trouble for
having drugs in the house. McKinney said that he did not own a weapon, noting that he
was a convicted felon and could not legally own a handgun.

        On redirect examination, McKinney said that he had never seen the Appellant with
a gun. McKinney had no idea why the Appellant would shoot Townsel. McKinney said
that the Appellant had never behaved violently after smoking marijuana.

       Memphis Police Officer Norman Bruce White testified that on March 25, 2012, he
responded to a report of a shooting on Carson Street. He arrived around the same time as
his partner, Officer Lisa Lester. The officers saw a couple, a male and a female, in the
driveway of the house next door, and the couple said that their friend had been shot. The
officers entered the house where the shooting occurred and looked around to confirm that
                                          -6-
the shooter was gone. In the back bedroom of the house, the officers found a black male
who had been shot and was unresponsive. When the officers spoke to the couple again,
they learned that the Appellant was the shooter and that he had driven off around the
same time the police arrived. The officers learned that a female also had been shot.

      The parties then entered the following stipulation:

                     ―That on April 2nd, 2012, a Memphis Police Officer
             Barbarotto processed an Apple cell phone, Cricket phone, a
             cigarette lighter, remote control, and a Sprint cell phone for
             latent prints.

                    Further, that on April 6th, 2012, Memphis Police
             Officer Carlisle processed a 1999 Lexus for latent prints.
             These prints were examined by latent print examiner Larry
             Preston who compared these prints to the inked finger
             impressions for [the Appellant]. Examiner Preston found that
             the latent prints did not match the prints belonging to [the
             Appellant].‖

       Officer Eric Hutchison, a crime scene investigator with the Memphis Police
Department, testified that he and Officer L.D. Walker processed the crime scene. The
residence was a red brick, single family dwelling. The front door was ―a side load type‖
that opened into the living room. In the living room were three couches, a coffee table,
and a television.

       Officer Hutchison said that in Townsel‘s bedroom, he found a purse lying on the
bed. He also found five shell casings that had been fired by a 9 millimeter Luger semi-
automatic handgun. The bullets were larger than a .22 or .25 caliber. Officer Hutchison
explained that a 9 millimeter bullet was a ―[f]airly large caliber, . . . just below‖ a .40
caliber bullet in size. Officer Hutchison had known of suspects picking up shell casings
in an attempt to ―cover their tracks.‖

       On cross-examination, Officer Hutchison acknowledged that all of the shell
casings he found were in plain sight.

       Officer Hutchison said that he found a large amount of blood under the bed and a
possible blood smear along the west wall and window frame. The blood transfer puddles,
smears, and drips he found along the bedroom floor were consistent with someone
crawling from underneath the bed.


                                           -7-
      In the driveway, Officer Hutchison found keys and a cellular telephone. More
blood was found on the front porch of a neighbor‘s house; the house was on the same
side of the street as the victim‘s house, and the houses were separated by only a
driveway.

       Crime Scene Investigator Eric Carlisle testified that on April 6, 2012, he and
Sergeant Eric Freeman went to Ashland City, Mississippi, to process a gold Lexus ES300
that was in the custody of the Benton County Sheriff‘s Department. Investigator Carlisle
said that there were scratches and dents on the car and that the license plate had been
removed. Investigator Carlisle found some fingerprints in the car, but none matched the
Appellant. A single leather work glove was found in the trunk. Investigator Carlisle said
that wearing gloves would prevent someone from leaving fingerprints.

       On cross-examination, Investigator Carlisle said that no DNA test was performed
on the glove and that he did not know who had worn the glove.

        Memphis Police Sergeant Anthony Mullins testified that on the night of the
shooting, he and Sergeant Freeman spoke with witnesses who identified the shooter as
―Memphis Mike,‖ which was the Appellant‘s nickname. On March 27, 2012, the
Appellant was apprehended in Albany, Mississippi. The Appellant was the sole suspect
in the shooting.

       Dr. Marco Ross, the Shelby County Medical Examiner, testified as an expert in
forensic pathology. Dr. Ross performed an autopsy on Townsel‘s body. He determined
that Townsel had been shot five times and that the cause of death was multiple gunshot
wounds. The right middle finger and ―ring finger‖ had been struck by a bullet. Dr. Ross
opined that the wounds to Townsel‘s fingers were possibly defensive wounds. A
toxicology test was performed, which revealed a ―fairly low level‖ of Oxycodone in the
victim‘s blood. Dr. Ross said that the level was consistent with a therapeutic dose.

       On cross-examination, Dr. Ross said that Oxycodone levels typically diminish
over time, that he did not know when the victim took the drug, and that he did not know
whether the victim had a prescription for the drug.

      The Appellant testified that when he was twelve years old, he began stealing
Xanax from his mother. By the time he was fifteen years old, he was addicted to drugs.
He said that his mother had physically and sexually abused him and that they had a
―rocky relationship.‖ The Appellant said that when he was fifteen or sixteen years old,
he experimented with Ecstasy and prescription cough syrup.

      The Appellant said that in 2006, he was with Chrissy Davis, a good friend whom
he called his ―sister.‖ They were attempting to buy marijuana, and some people
                                          -8-
attempted to rob them and shot into the Appellant‘s car. During the altercation, Davis
was shot in the back but was not killed. The Appellant said that he started having
nightmares, paranoia, and ―bad anxiety‖ and that he never recuperated from the event.
The Appellant sought treatment from Dr. Thomas Bannister, whom he saw two or three
times. Dr. Bannister diagnosed him with post-traumatic stress disorder (PTSD), manic
anxiety, and depression. The Appellant was prescribed Xanax, Celexa, and Seroquel.
The Appellant‘s grandmother, who paid for him to see Dr. Bannister, also paid to have
the prescriptions filled. The Appellant began abusing the medication, and his
grandmother refused to take him back to the doctor.

      The Appellant acknowledged that in 2006, he was convicted of misdemeanor theft
in Tennessee and that in 2010, he was convicted of larceny in Mississippi.

      The Appellant said that he had been a friend of McKinney for over ten years.
Eventually, the Appellant started ―doing music‖ with McKinney, through whom he met
Townsel. All three men became good friends.

       The Appellant said that at the time of the shooting, he had been staying at
McKinney‘s house for approximately two weeks. On Friday, March 23, 2012, two days
before the shooting, the Appellant‘s father sent the Appellant a ―moneygram.‖ The
Appellant paid a few debts with the money and bought 20 ―bars‖ of Xanax, marijuana,
Oxycodone, and heroin. After obtaining the drugs, he ―hung out‖ at McKinney‘s studio,
listened to music, and took the drugs he had bought. The Appellant maintained that he
and the friends with whom he was staying ―all kind of dealt with drugs.‖

       The Appellant said that he knew he used drugs on Saturday but could not
remember the amount. He could not recall the time he awoke on Sunday. He went to the
studio and smoked marijuana with McKinney, Kristen, and Townsel. Thereafter,
McKinney and Kristen left the residence, and the Appellant lay down on the couch. The
Appellant‘s next recollection was Townsel‘s waking him, saying that the Appellant‘s
friend Jamie was there. After Jamie came in, the Appellant got up, and they smoked
marijuana. The Appellant and Townsel ate pizza after Jamie left, then Townsel left.

       The Appellant said that his friends knew he was taking Xanax and smoking
marijuana but that they thought he was selling the Oxycodone and heroin. Thereafter, on
Sunday, he waited until his friends were out of the house before he took the Oxycodone
and the heroin, which he used intravenously. The Appellant said that the drugs ―made
[him] feel normal‖ and ―zone[d him] out.‖

       The Appellant knew that Townsel had said Courtney was coming over for a date
but could not recall if he saw her come into the house. The Appellant said that when he
―came to,‖ he had a ―weird feeling‖ that someone who intended to rob them was outside
                                         -9-
the house. He felt paranoid and looked out the window. He saw ―suspicious things‖ and
got a gun from McKinney‘s bedroom. The Appellant said that McKinney had obtained
the gun for protection after he was robbed in 2010. After getting the gun, the Appellant
went back to sleep on the couch. He said, ―It felt like a dream.‖ His last thought before
falling asleep was that ―someone was going to try to rob us.‖

       The Appellant said that when he ―came to,‖ he ―had shot [Townsel], and Courtney
was screaming, and she was underneath the bed.‖ The Appellant maintained that he had
not met Courtney before the shooting and that he had no problems with Townsel. He
asserted that he had not associated his feelings of paranoia with Courtney or Townsel. He
did not recall picking up any shell casings after the shooting, taking the PlayStation, or
saying anything to Courtney. He did, however, recall grabbing Courtney‘s car keys from
the floor and driving away in her car. He maintained that he did not remember calling
McKinney at 10:44 p.m. on the night of the shooting and that he ―[v]aguely‖ remembered
seeing McKinney and Kristen outside before he drove from the scene.

       The Appellant said that he had no continuous memory of the events of that night
and that he remembered only ―bits and pieces.‖ When he drove away from the house, he
knew that he had shot his friend Townsel but was not aware that Courtney had been shot.
He said that his memories of the weekend started to ―blur‖ after he started taking drugs
on Friday, noting, ―I was coming in and out.‖ The Appellant explained that he had
experienced a couple of blackout episodes each week for a number of years and that he
had reported the blackouts to doctors. He also stated that his friends knew about his
blackouts. He said that his friends did not know that he was ―shooting up‖ but that they
almost caught him when they found a spoon in the bathroom the week before the
shooting.

       The Appellant acknowledged that he spoke with officers from the Memphis Police
Department while he was in DeSoto County and gave a lengthy, detailed statement. He
remembered meeting with the police and said that he was not having a blackout at the
time. However, he could not recall much of what he said because he was ―under detox
medication‖ and hallucinating when he gave the statement. In the statement, the
Appellant said that on the night of the shooting, he saw four large black men outside
McKinney‘s house and that each man was over thirty years old. The Appellant then said
that one of the men must have been over thirty-five. One of the men was rolling a
marijuana ―blunt.‖ The Appellant told Townsel that ―[t]hose dudes are out there,‖ but
Townsel told him that he was high and should lie down. Instead, the Appellant went
outside to stand on the porch. One of the ―dudes‖ then ―knock[ed the Appellant] off in a
car‖ and asked, ―‗Can I buy a bar,‘‖ meaning he wanted to purchase Xanax from the
Appellant. The Appellant responded that he had Xanax. The Appellant told police that
the men had a little revolver and a ―big silver weapon.‖ One of the men put a gun to the
back of the Appellant‘s head, led him in the house, and tried to push him into the
                                          - 10 -
bathroom. Another man ran upstairs to the studio. Yet another man went into
McKinney‘s bedroom and came out with a pistol; the Appellant said that the man was
unarmed before he went into the room. The Appellant told the police that he did not
know where McKinney kept the gun or he would have gotten it to protect himself; he
said, however, that he had a .22 caliber pistol in his waistband.

       In the statement, the Appellant also said that Townsel was shot while trying to get
up from the couch. Courtney was in Townsel‘s lap, and Townsel tried to push her out of
the room. The Appellant said that he did not know Courtney was shot and that he
thought she ran away. The Appellant recalled five or six shots being fired. After the
gunmen shot Townsel, the Appellant chased them and shot at them. The Appellant also
said that one of the gunmen got the keys to Courtney‘s car. When the Appellant went
outside to chase the men, the car was empty and was running; the Appellant got in the car
and left. The Appellant stated that he searched the car the next morning and discovered a
bag of change, an Acer mini laptop computer, and a gun. He threw the gun ―in the
water.‖

      The Appellant testified that he was no longer hallucinating when he spoke with
Dr. Smith. The Appellant told Dr. Smith that he saw three black males and that after he
saw the men, he got a gun and lay down.

       The Appellant said that after the shooting, he went to the Horseshoe Casino in
Tunica, Mississippi, ―to try to blend in with the crowd and get away from – I didn‘t know
what else to do.‖ He explained that he wanted to hide because he was afraid he would be
killed. He did not remember getting a player‘s rewards card while at the casino. He
remembered having some mixed drinks but could not recall anything that happened after
he ―started drinking heavily.‖

      The Appellant testified that before he was apprehended, he was

             down in Benton County, Mississippi, [and] I started smoking
             some methamphetamine. I‘d ran out of pills and drugs, and I
             started hallucinating as the police were surrounding the
             house, and I took the gun and threw it in the field behind the
             house in the woods, not far from where I parked the car.

       On redirect examination, the Appellant acknowledged that he shot Townsel and
Courtney and that he had no reason to do so. He said that he gave his statement to the
police while he was in jail in DeSoto County. He said that he talked to Dr. Smith a ―few
months after coming here‖ and that he was not under the influence of any intoxicants
when he spoke to the doctor.

                                          - 11 -
        On recross-examination, the Appellant acknowledged that he signed an advice of
rights form before speaking with the police on March 28, 2012. He said, ―I was coming
off of the drugs, and I was hallucinating. I don‘t really remember much about all that.‖

        Bridget Lea Burford, a licensed practical nurse who worked at the DeSoto County
Jail, testified that the prisoners were given any medication they needed at three different
times a day: 8:00 a.m., 2:00 p.m., and 8:00 p.m. At the time the Appellant was
incarcerated at the jail, the staff relied on prisoners to disclose any drug problems they
had. The Appellant disclosed that he had taken heroin and Xanax. Burford explained
that the Appellant was put on an ―opiate protocol‖ to treat any symptoms associated with
his withdrawal from heroin; the protocol consisted of ibuprofen for aches and pains and
Phenergan for nausea and vomiting. The Appellant was also put on a ―klonopin taper‖
because ―you can‘t stop benzodiazepines [like Xanax] abruptly.‖ Burford stated that
Phenergan and klonopin cause sedation and dizziness. The Appellant was given the
medication for the first time on the morning of March 29, 2012.

       On cross-examination, Burford said that the protocols the Appellant was on would
not cause a person to be ―incoherent or out of [his] mind.‖

      On redirect examination, Burford stated that she did not personally treat the
Appellant or observe the effects of the medication.

      Dr. Murray Smith, an expert in addiction medicine, testified that he evaluated the
Appellant in September 2013 and that he prepared a report about the evaluation on
September 16, 2013. The evaluation consisted of a face-to-face meeting with the
Appellant and an examination of his medical and jail records. The records revealed that
the Appellant had been treated for anxiety, depression, panic attacks, and PTSD.
Additionally, the Appellant had hepatitis C, which typically resulted from intravenous
drug use. The Appellant also ―met the criteria for poly substance drug addiction.‖

       Dr. Smith said the Appellant reported that his mother and maternal grandfather
were alcoholics, which led Dr. Smith to believe the Appellant had a genetic
predisposition to addiction.

       Dr. Smith stated that generally PTSD was caused by a traumatic event, which he
described as an event that threatened severe damage to a person‘s body or death. He
explained that PTSD could cause a person to have trouble sleeping, which in turn could
lead to the person‘s self-medicating by taking calming drugs such as alcohol, marijuana,
or Xanax. The Appellant disclosed two events that led to his PTSD. First, he was
physically abused by his stepfather and his mother when he was twelve years old.
Second, in June 2006, he saw his best friend, a female, get shot.

                                           - 12 -
       The Appellant told Dr. Smith that on March 25, 2012, he ―was doing what he
normally did at that time,‖ namely drinking alcohol, taking Xanax, smoking marijuana,
and injecting narcotics intravenously. The Appellant reported that when he was twelve
years old, he began having episodes of amnesia related to the use of alcohol and Xanax.
On the afternoon of March 25, the Appellant was experiencing amnesia. Dr. Smith said
that amnesia could occur two ways. First, the person could remember one thing then
nothing else until ―wak[ing] up,‖ like turning ―an on/off switch.‖ Second, the person
could remember certain things, ―like little snippets from a movie.‖

       The Appellant told Dr. Smith that during his amnesia on the afternoon of March
25, he remembered seeing people on the street outside that he thought were coming into
the house to rob and shoot people. When the Appellant told Townsel, Townsel reassured
him that nothing suspicious was happening. The Appellant said that he knew a gun was
hidden in the house and that he got the gun for protection. Dr. Smith opined, ―[T]hat
reaction would fit with both the use of alcohol and drugs impairing his perception and
judgment; and also, the PTSD, having witnessed the shooting of his friend, that this
might well happen to him, and he was feeling that in his own self, that he was in grave
danger.‖

       Dr. Smith said that when in a state of amnesia, a person‘s ―perceptions of what‘s
real are altered. Your judgment of what‘s right/wrong, good/bad, what‘s the best
discernment of what to do is impaired so that the amnesia is also a symptom of other
things happening in the brain . . . .‖ Dr. Smith further explained:

             And what we know is, that at that stage of intoxication or
             poisoning – toxic means poison – so intoxicated means you‘re
             in the state of brain poisoning, you resort down to what‘s
             called the survival brain – the brain that enables you to figure
             out how to make sure you don‘t get hurt – how to get out of
             situations – how do you perform functions that keep you alive
             and going. So, it‘s more like living in a reflex type situation
             where you‘re operating even though you‘re operating with
             not the higher part of your reasoning intact but just the
             survival part.

       The Appellant told Dr. Smith that he ―found himself . . . with a gun in his hand
and having shot his good friend.‖ At the point when the Appellant ―found himself,‖ he
was ―out of his blackout‖ but may have still been impaired depending on the drugs he had
taken. Dr. Smith theorized that the Appellant‘s ―survival brain‖ caused him to grab the
keys to Courtney‘s car and leave, explaining that ―survival means you either fight or you
flee.‖

                                          - 13 -
      Dr. Smith said:

             It is my opinion that [the Appellant] was poisoned, that his
             brain was not functioning in a way that he could perceive the
             reality of what was happening or make realistic decisions
             about what he should do. He could not discern what was
             necessary to conform his actions to those that a non-
             intoxicated person would be able to discern.

Dr. Smith further opined that the Appellant could not form the intent to commit first
degree murder because ―he was not in realistic time or place. His perceptions, his
judgment were not there in the way that a non-poisonous brain would do.‖ Dr. Smith
said that the Appellant was acting reflexively and that

             his decisions were entirely primitive brain-type decisions and
             not thoughtful concerned judgmental decisions. They were
             reflex survival decisions.        And his survival, he felt
             delusionally; and delusion means that you have a firmly-held
             belief that actually was not in fact. His delusion belief is that
             he was going to be attacked, and he was reacting, in some
             way, to that delusion; but he was not in realistic time.

Dr. Smith attributed the Appellant‘s reactions to his ―overlying fear from the PTSD that
his life was being threatened, and then he had the impaired or poisoned brain from the
Xanax, alcohol, mari[j]uana, and narcotics.‖

       On cross-examination, Dr. Smith agreed that his diagnoses were based upon the
Diagnostic and Statistic Manual (DSM) and that there had been several versions of the
DSM, the most current of which was the DSM-V. Dr. Smith conceded that in the various
versions of the DSM, ―some things have been considered mental disorders at one time,
and some of them have been considered not disorders at another time.‖

        Dr. Smith said that PTSD can cause ―hyper-vigilance‖ and sleep disturbances but
that it did not necessarily cause violent behavior. Dr. Smith said that the Appellant‘s
―horrendous‖ reaction to telling the doctor about his friend being shot ―gave [the doctor]
the impression‖ that the friend had died. Dr. Smith acknowledged that lots of people
experience traumatic events without developing PTSD.

      Dr. Smith said that the Appellant said that he took a lot of different drugs but that
Dr. Smith had no way of verifying the drug usage. The doctor noted that many addicts
were secretive about the type and amount of drugs they take. Dr. Smith said that it was
not unusual for his patients to report episodes of amnesia. He acknowledged, however,
                                           - 14 -
that there was no way to verify that a patient had a blackout and that the Appellant‘s
medical records did not reflect a history of blackouts.

       Dr. Smith acknowledged that the Appellant gave a lengthy, detailed statement to
the police on March 28, 2012, and that many of the details differed from what the
Appellant told the doctor and what the Appellant told McKinney on the telephone. Dr.
Smith said that the Appellant was ―still under the influence‖ and that he was ―receiving
Ativan, which is in the same family as a Xanax,‖ at the time he gave his statement to
police. When asked if the Appellant would have motivation to ―not have memories of
certain things,‖ Dr. Smith responded, ―[H]e was still in survival brain.‖

       Dr. Smith acknowledged that he usually testified on behalf of the defense. He said
that he spent two hours talking with the Appellant and seven hours reviewing the
Appellant‘s records. Dr. Smith opined that the Appellant was candid with him. Dr.
Smith knew that the Appellant went to the casino after the shooting and said it did not
change his opinion regarding the Appellant‘s ability to premeditate. He explained, ―The
level of what he took and when he took it was going down, so his brain was becoming
less poisoned as time went on.‖

       On redirect examination, Dr. Smith said that he had reviewed the statements of the
witnesses, such as McKinney, Kristen, and Courtney. He opined that the statements
supported his conclusion that the Appellant was under the influence that day.
Specifically, he said that the statements reflected that the Appellant was alone on the
couch, not paying much attention to anyone, ―which, to me, meant that his brain alertness
was decreased from the use of the drugs.‖

      When asked about the statement the Appellant gave to police, Dr. Smith said:

                     I think two things were influencing him at the time.
             First is he was still coming down from the brain poisoning
             from the intoxication, and he also had medication in his
             system that was administered by the jail to detox him from
             the Xanax, and the medication to detox him would have a
             similar effect on the brain but just a lesser amount gradually
             as the Xanax that was one of the principal causes for his brain
             poisoning or intoxication.

       Dr. Smith said that addicts generally did not seek medical help because ―they‘re
prescribing their own medicine.‖ He stated that the Appellant‘s blackouts were induced
by drug and alcohol use.


                                          - 15 -
       On recross-examination, Dr. Smith again said that the witnesses‘ statements
indicated that prior to the shooting, the Appellant ―was isolated on the couch and not
spending time to relate to them socially.‖ He acknowledged, however, that the Appellant
could have been asleep instead. After the doctor testified, the defense concluded its
proof.

        James Phillip Mixon, the surveillance manager at the Horseshoe Casino in
Robinsonville, Mississippi, testified as the State‘s first rebuttal witness. He said that on
March 26, 2012, the casino received a ―be on the lookout‖ notice (BOLO) from Tunica
County law enforcement ―for a suspect that was wanted in a possible armed robbery.‖
The BOLO contained a description of the Appellant, including the tattoo on his right
wrist. Security staff recognized that the Appellant had been playing at the craps table
earlier that morning. The staff reviewed the security video and saw the Appellant playing
at the craps table around 2:00 a.m.

        At that point, the security video from the casino was played for the jury. The
video revealed that the Appellant came into the casino at approximately 1:00 a.m.,
immediately walked to a bar, and ordered a mixed drink. Mixon noted that the casino‘s
bartenders had been instructed not to serve alcohol to anyone who was obviously
intoxicated. On the video, after the Appellant obtained his drink, he walked to the Total
Rewards counter and applied for and received a player‘s card to earn points by playing
the games. Thereafter, the Appellant played some slot machines, using the player‘s card
each time. He then played at the craps table, which Mixon described as ―the most
difficult game that we have on the casino floor.‖ The Appellant ―actively particpat[ed]‖
in the game and made several successful bets. The Appellant left the casino at 2:21 a.m.

       On cross-examination, Mixon acknowledged that people got intoxicated at the
casino but again asserted that staff members were supposed to refuse to serve alcohol to
any intoxicated person. Mixon agreed that the video did not necessarily depict the
Appellant‘s having long conversations or interactions with other people.

       William Henry Mullen, Jr., an investigator with the Tunica County Sheriff‘s
Department,3 testified that on March 26, 2012, he received a report of a robbery at a
convenience store. Mullen went to the scene and looked at the store‘s security footage.
The footage revealed that the Appellant arrived in the parking lot in a light-colored
Lexus. At approximately 3:30 a.m., the Appellant robbed the store clerk. Mullen
obtained a photograph of the Appellant from the security footage and distributed it to the
news media and the local casinos. Shortly thereafter, an employee from Horseshoe
Casino reported that the Appellant had been seen on the premises.


3
    At the time of trial, Mullen was no longer with the sheriff‘s department.
                                                          - 16 -
        Eddie Baker testified that he was working at the convenience store on March 26,
2012. Sometime between 2:00 and 4:00 a.m., the Appellant came into the store. He
bought two cigarillos, which were on sale. At the time of the purchase, other customers
were in the store. After making the purchase, the Appellant left the store. Once the other
customers left, the Appellant returned. He told Baker that he wanted two more cigarillos
because he had gotten such a ―good deal‖ on the first two. Baker turned to get the items.
When he turned back to face the Appellant, he saw that the Appellant was pointing a
handgun at him ―[s]ideways.‖ Baker opined that the gun looked like a ―nickel-plated
forty.‖

      Baker said that the Appellant took approximately $300 from the store. Baker said
he was so nervous that he initially gave the Appellant only part of the money. The
Appellant demanded all of the money, saying, ―Man, just give me the money. Don‘t
make me – don‘t make me bust you.‖ Baker responded, ―Man, you don‘t have to do that,
man. The money [is] insured. You don‘t have to do that.‖ After the Appellant got the
money, he told Baker to walk over to the ice cream machine and face the wall. Baker
complied, and the Appellant left the store.

        Baker said that one or two days after the robbery, the police showed him a
photograph array, from which he identified the Appellant. Baker identified the Appellant
in court as the perpetrator. He said that he was ―ninety-nine percent sure‖ of his in-court
identification, noting that the Appellant had gained weight and was wearing glasses.

       Memphis Police Sergeant Michael A. Brown testified that after the Appellant was
apprehended in Mississippi, he and Sergeant Carson went to the DeSoto County Jail on
March 28, 2012, and at around 11:55 a.m., took a statement from the Appellant. Prior to
the statement, the officers advised the Appellant of his rights. Sergeant Brown saw
nothing to indicate the Appellant was under the influence of drugs or alcohol. Sergeant
Brown said that the Appellant seemed to comprehend the questions and that his answers
were understandable.

      On cross-examination, Sergeant Brown said that he was unaware that the
Appellant began medication for an ―opiate protocol‖ at 8:00 a.m. on the morning of the
statement.

       On redirect examination, Sergeant Brown said that he saw nothing unusual about
the Appellant. He stated that the Appellant was talkative and seemed ready for the
officers to take his statement. The Appellant was coherent, asked questions, and was able
to explain his answers.

       Based upon the foregoing, the jury found the Appellant guilty of the lesser-
included offenses of second degree murder and attempted second degree murder, as well
                                           - 17 -
as the charged offense of especially aggravated robbery. The trial court sentenced the
Appellant to twenty-five years, ten years, and twenty-five years, respectively. The court
ordered the sentences to be served consecutively for a total effective sentence of sixty
years.

        On appeal, the Appellant raises the following issues: (1) whether the trial court
erred by drafting its own jury instruction regarding diminished capacity; (2) whether the
trial court erred by allowing evidence regarding the Appellant‘s presence at a casino and
committing a robbery in Mississippi within hours of the instant shooting; (3) whether the
court erred by allowing the State to play the call Courtney made to 911; (4) whether the
trial court erred by admitting the Appellant‘s statement into evidence; (5) whether the
trial court erred by denying the testimony of Dr. Zager regarding the Appellant‘s level of
intoxication and ability to form the requisite intent; (6) whether the trial court erred in
sentencing the Appellant; and (7) whether the evidence was sufficient to sustain the
Appellant‘s convictions. We will address the Appellant‘s issues in a different order than
that in which they were raised.

                                       II. Analysis

                                       A. 911 Tape

                                     1. Admissibility

        The Appellant contends that the trial court erred by admitting the audiotape of
Courtney‘s call to 911. He argues that the recording was not relevant and, if relevant, its
probative value was outweighed by the danger of unfair prejudice. The State asserts that
the trial court correctly admitted the tape. We agree with the State.

       Prior to trial, defense counsel filed a motion in limine, seeking exclusion of the
audiotape recording of Courtney‘s call to 911. At a hearing on the motion, which was
held immediately before trial began, defense counsel argued that the tape was not
relevant or material and was unfairly prejudicial. The State responded that nothing about
the tape was unfairly prejudicial. The trial court asked when the call took place. The
State answered that Courtney called 911 at 10:41 p.m. and that the Appellant called
McKinney at 10:45 p.m. to report that he and Townsel had been shot by white men who
broke into the residence. The court found that the call occurred on or about the time of
the event and that the timing of the call was highly relevant. Defense counsel asked the
court to listen to the tape, explaining that during the call Courtney described her wounds,
asked for help, and said that she did not know where she was. Defense counsel
contended that Courtney could testify as to what transpired during the 911 call. Defense
counsel noted that Kristen also could be heard on the recording ―just screaming and
crying . . . very emotional[, saying,] ‗My friend is dead – my friend is dead.‘‖ Defense
                                           - 18 -
counsel again asserted that if the recording were relevant, it was unfairly prejudicial. The
trial court responded, ―I‘ve never seen a 911 tape that was unfairly prejudicial since I‘ve
been doing this.‖ Nevertheless, the trial court stated that it would adjourn court for the
day and address the issue the next day.

       The following morning, the trial court listened to the recording, which lasted
approximately ten minutes. At the beginning of the recording, Courtney told the 911
operator that she had been shot, that she could not breathe, and that she needed help. The
operator asked for her address, and Courtney responded that she did not know the
address. The operator said that she could not send help if Courtney did not tell her where
to send it. After some rustling sounds, Courtney said she was on Carson Avenue but did
not know the number of the house. The 911 operator again said that she needed an
address in order to send help. Soon thereafter, Courtney knocked on the neighbor‘s door.
She told the neighbor that she had been shot in the house next door and needed the
neighbor to tell the 911 operator the address.4 Courtney relayed the address the neighbor
gave her, and the operator promised to dispatch an ambulance. Courtney then told the
operator that someone had stolen her car and shot her. The operator asked Courtney who
shot her. Courtney responded, ―I don‘t know, some white guy.‖ Courtney begged for
help, saying, ―I‘m bleeding so much.‖ The operator again asked who shot Courtney, and
Courtney replied, ―I don‘t know. . . . I don‘t know this man at all who shot me.‖ She
said that she was at a friend‘s house when she was shot. At that point, Kristen‘s voice
could be heard in the background, talking to Courtney. The operator asked to speak with
the other person. When Courtney remained on the line, the operator asked for more
details about the shooting. Courtney said, ―I was in the house and this white guy came
and shot us.‖ Kristen asked, ―In our house?‖ Courtney responded, ―Yes.‖ The operator
asked, ―Who was that in the background,‖ and Courtney handed the telephone to Kristen.
The operator asked Kristen what had happened. Kristen said, ―I just got to my house.‖
She said that she saw Courtney on the front porch and that Courtney had been shot.
Kristen began crying and stated, ―She said Roy‘s dead.‖ Kristen told the operator that
she did not know exactly what happened but repeatedly declared that ―[h]e‘s dead. . . .
My friend‘s dead.‖ Kristen began speaking in a high-pitched, distressed voice and asked
for an ambulance to be sent. The call ended at that point.

       After listening to the recording, the court stated, ―I don‘t hear anything particularly
unduly prejudicial about that. They do say that it was a white guy, so it‘s relevant for
I.D.‖ The court further noted that the call transpired on or about the time of the event,
that the statements were excited utterances, and that the call was relevant to the timing of
events. The court asserted that it did not hear anything particularly troubling on the
recording. The court found that the probative value of the recording was not substantially

4
 At that point, the neighbor made a separate call to 911 while Courtney continued to talk to the 911
operator. The neighbor‘s call was not played for the jury.
                                                  - 19 -
outweighed by any unfair prejudice.

       Defense counsel then requested that the court redact Kristen‘s statement ―My
friend is dead.‖ Defense counsel argued that Kristen‘s statement did nothing to identify a
perpetrator or place anyone at the scene. Defense counsel contended that her statements
were unduly prejudicial. The court disagreed and ruled that the entire recording could be
played for the jury. On appeal, the Appellant argues that the recording was not relevant
and was unduly prejudicial.

       Generally, ―[a]ll relevant evidence is admissible except as [otherwise] provided. . .
. Evidence which is not relevant is not admissible.‖ Tenn. R. Evid. 402. ―‗Relevant
evidence‘ means evidence having any tendency to make the existence of any fact that is
of consequence to the determination of the action more probable or less probable than it
would be without the evidence.‖ Tenn. R. Evid. 401; see also State v. Kennedy, 7
S.W.3d 58, 68 (Tenn. Crim. App. 1999). However, even relevant evidence ―may be
excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence.‖ Tenn. R. Evid.
403. It is within the trial court‘s discretion to determine whether the proffered evidence
is relevant; thus, we will not overturn the trial court‘s decision absent an abuse of
discretion. See State v. Forbes, 918 S.W.2d 431, 449 (Tenn. Crim. App. 1995).

        The trial court found that the recording of the 911 call was relevant to establish
timing and a description of the shooter. We agree and conclude that the Appellant is not
entitled to relief on this issue.

                                        2. Mistrial

        The Appellant next contends that the trial court erred by failing to grant a mistrial
after the victims‘ families were disruptive during trial. The State maintains that the trial
court properly refused to grant a mistrial.

        The record reflects that after the recording of the 911 call was played for the jury,
the trial court stated for the record, ―[State,] if you would please inform the family –
people on that side of the courtroom, I will not tolerate any further outbursts. . . . and if
they do it again, they‘re not coming back in the building. If you would inform them of
that, I would appreciate it.‖ The State complied.

       Defense counsel asked for a jury-out hearing, which the trial court granted. The
State apologized, saying, ―I didn‘t anticipate that. I mean, I didn‘t think it would cause
that kind of a . . . .‖ The court interjected, ―It didn‘t help you any.‖ The State agreed.
Defense counsel began to speak, but the trial court interrupted:
                                            - 20 -
                     It‘s not grounds for a mistrial. It didn‘t help the state
             at all. In fact, it hurt their case tremendously. If that‘s what
             the family wants to do is hurt the state‘s case, that‘s fine.
             That‘s up to them. They are not coming back in the
             courtroom if they are going to cause disturbances like that;
             but it is not prejudicial against [the Appellant]. I will assure
             you that it hurt the state tremendously; and so I‘m not even
             entertaining any type of mistrial. It wasn‘t that bad. It was
             just the family got upset and stormed out and basically made
             fools of themselves. So, if that‘s what they want to do, they
             can stay out of the courtroom.

      Defense counsel responded:

                    Judge, I understand you overruled it before I could
             make it; but for the purposes of the record, I would[] like to
             say[] we were going to move for a mistrial due to the
             outburst. It would go, once again, to the prejudicial factor of
             the tape – or at least that end part of the tape. . . . The family
             became upset and disrupted the proceedings.

       The court denied the motion but acknowledged that it might have to grant a
mistrial if the family continued to be disruptive. When the jury returned to the
courtroom, the trial court stated:

                    All right. Ladies and gentlemen, before we took a
             recess, there was some disturbance in the back of the
             courtroom. I will have to admonish you – remind you that
             you are to base your decision in this case on the evidence that
             comes through the witness stand, the law that I give you to
             that evidence without any sympathy or prejudice for or
             against either side. Okay. So, is that understood?

                    ....

                    So, please disregard everything that happened before.
             I don‘t anticipate it will happen again.

       On appeal, the Appellant maintains that ―[w]hile the tape was played, family
members began to cry and become extremely disruptive. . . . While it is not reflected in
the written record, the trial was halted because family members were screaming and some
                                           - 21 -
were bodily escorted from the courtroom.‖ He challenges the trial court‘s denial of his
motion for mistrial after the disruption. The State responds that a mistrial was not
warranted. We agree with the State.

       A mistrial is a procedural device that is only appropriate when the trial cannot
continue without causing a miscarriage of justice. State v. McPherson, 882 S.W.2d 365,
370 (Tenn. Crim. App. 1994). In other words, there must be a ―manifest necessity‖ for a
mistrial to be declared. State v. Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim. App.
1991). The party seeking the mistrial has the burden of establishing the necessity of
granting the mistrial. State v. Banks, 271 S.W.3d 90, 137 (Tenn. 2008). In conducting
our review of this issue, we note that this court has previously found that ―[t]he decision
of whether to grant a mistrial is within the sound discretion of the trial court. This court
will not disturb that decision absent a finding of abuse of discretion.‖ State v. Mathis,
969 S.W.2d 418, 422 (Tenn. Crim. App. 1997) (citation omitted).

        In the instant case, the trial court determined that the appropriate remedy for the
victim‘s family‘s outburst was to give a curative instruction, not to grant a mistrial. We
conclude that the trial court did not abuse its discretion. The Appellant is not entitled to
relief.

                                   B. Expert Testimony

       The Appellant argues that the trial court erred when it refused to allow Dr. Lynn
Zager to testify for the defense regarding the Appellant‘s capacity to form the necessary
mens rea for first degree murder, which is referred to as diminished capacity. The State
responds that the trial court correctly ruled that Dr. Zager‘s testimony did not meet the
necessary requirements for testifying about the Appellant‘s capacity to form a mental
state.

      During a jury-out voir-dire examination, Dr. Lynne Zager testified that Dr. John
Worley, Debbie Nichols, and she evaluated the Appellant. Dr. Zager reviewed the
information provided by the State, including ―the probable cause, an affidavit of
complaint, and then the homicide defendant‘s statement.‖ She was not, however,
provided statements from any of the witnesses. She also spoke with the Appellant.

       Dr. Zager said that she and Dr. Worley agreed that

              ―[a]lthough details of the shooting are not clear, there is
              nothing to suggest that the [Appellant] would have been
              impaired in his ability to appreciate wrongfulness by any
              mental illness, and his ability to form intent or to choose not

                                           - 22 -
              to commit such crimes would have been unimpaired in the
              absence of intoxication.‖

       After the doctors reviewed the Appellant‘s jail records, they learned that the
Appellant had been given medication for PTSD. The Appellant had no symptoms of
psychosis and exhibited nothing to support an insanity defense. The Appellant told Dr.
Zager that he was abusing opiates intravenously and that he was intoxicated at the time of
the shooting. He recalled ―coming to‖ after the shooting and hearing a woman scream.
The Appellant said that he did not ―recall what happened from a certain time when he had
concerns about people who were outside. He was concerned about their safety. He went
to sleep, and the next thing he recall[ed] is that a woman was screaming and a shooting
had occurred.‖

      Dr. Zager diagnosed the Appellant with PTSD, polysubstance abuse and
dependence, and anxiety. She found that ―[w]ith regard to diminished capacity at the
time of the alleged offense of murder first degree, the [Appellant‘s] ability to form the
culpable mental state was impacted by a self-imported [(sic)] substance[] intoxication.‖

       On cross-examination, Dr. Zager acknowledged that neither her report nor Dr.
Worley‘s report stated that the Appellant ―lacked the ability to form a specific intent.‖ Dr.
Zager said that the Appellant‘s

              ability to form the culpable mental state was impacted by
              self-reported substance intoxication.       And I think it‘s
              important that it be noted that it‘s self-reported; that I don‘t
              have independent information to support that he was
              intoxicated. In some cases there might be that; in this case,
              what I have is his report.

Dr. Zager said that she did not agree with Dr. Smith‘s finding that the Appellant ―did not
have the ability to form a specific intent for premeditation.‖

      The trial court asked Dr. Zager if the difference in her opinion and Dr. Smith‘s
opinion was ―semantics.‖ She responded:

                     Having not talk[ed] to him about it – Dr. Smith, I don‘t
              know. I don‘t know it‘s important to me as a mental health
              professional. I am not a lawyer. I don‘t know legal things
              except what I‘ve learned through the years through the
              lawyers I‘ve worked with. And I think it‘s important that
              issues like this, that my job is to do a mental health evaluation
              and determine, from my expertise, if and what is wrong with
                                            - 23 -
              a person and then be available to explain that to the court. In
              terms of what the conclusion is, that‘s up to the trier of fact.

       Dr. Zager said that at the time of the shooting, the Appellant was suffering from
the ―Axis I mental defect‖ of ―substance dependence . . . [a]nd anxiety issues.‖ She
explained that the substance dependence diagnosis was based solely upon the Appellant‘s
self-reported behavior but that the diagnosis of anxiety was ―not just self-report[ed]. It‘s
based on a traumatic incident that he experienced; and there are some records that support
that versus just what he tells me.‖

      The court asked Dr. Zager if her opinion was affected by the Appellant‘s behavior,
namely committing another robbery after the shooting. She replied:

                      It certainly does. The problem that I have is when
              somebody is in a blacked-out state, they really – they might
              have bits and pieces. That‘s the most honest person who is
              telling me about being in a blacked-out state. They have bits
              and pieces, but they don‘t recall exactly what happened.

                     Now, when that blacked-out state stops and the person
              is cognizant of what they‘re doing again, it may well be that
              the blackout stopped and hours later, he was aware of what he
              was doing, casing a place and robbing a place. So, it‘s very
              difficult for me to say, without having been there – or without
              having somebody who was there who was doing good
              observation that they can share with me. It‘s very hard for me
              to speak exactly about what occurred.

       At that point, defense counsel conducted redirect examination of the doctor. She
said that knowing the Appellant gambled and committed a robbery after the shooting
would not change her opinion. She noted that she did not know when the Appellant‘s
blackout stopped but that he said it was over when he heard screaming. She explained
that when the blackout ended, the Appellant was able to think and plan. She stated:

              I don‘t think it‘s clear for me, when it comes time for
              diminished capacity – for or insanity, it says I can‘t offer an
              opinion – I cannot tell you yes or no, although I‘m often
              forced to do that. But, as I understand what the law says, I‘m
              not supposed to give an opinion about that; I‘m just supposed
              to provide information. So it would be helpful for me to have
              more information so I can do a better job for the court.

                                           - 24 -
Dr. Zager acknowledged that in a blackout, a person could do something they would not
do under normal circumstances because the ―filters‖ that ordinarily stop them are not
working.

        At the conclusion of Dr. Zager‘s testimony, the State asserted that her testimony
should not be allowed unless she was willing to testify that the Appellant lacked the
ability to form the requisite intent for the charged offense. The trial court observed that
Dr. Zager ―didn‘t go as far as Dr. Smith did in the two-prong analysis that‘s required
under the law. So, because of that, I mean, what she has to say is very interesting; but I
don‘t think she met the standard under the two-prong test.‖ The court summarized, ―She
didn‘t say the magic words. . . . And the state gave her an opportunity to do that and she
said she really couldn‘t answer it.‖

        Generally, expert testimony regarding a defendant‘s capacity or lack of capacity to
form the mental state required for the commission of an offense is admissible if it
satisfies ―general relevancy standards as well as the evidentiary rules which specifically
govern expert testimony.‖ State v. Hall, 958 S.W.2d 679, 689 (Tenn. 1997). In this
regard, Tennessee Rule of Evidence 401 broadly provides that ―‗[r]elevant evidence‘
means evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it
would be without the evidence.‖ Even relevant evidence may be excluded, however, if
its probative value is ―substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury.‖ Tenn. R. Evid. 403. Moreover,
Tennessee Rule of Evidence 702 requires that expert testimony ―substantially assist the
trier of fact to understand the evidence or to determine a fact in issue,‖ and Rule 703
requires that the facts or data underlying the expert‘s opinion be trustworthy. A trial
court‘s application of these rules to exclude expert testimony will not be reversed on
appeal absent an abuse of discretion. State v. Edison, 9 S.W.3d 75, 77 (Tenn. 1999).

       Under Tennessee law, evidence of a mental disease or defect that does not rise to
the level of an insanity defense is nevertheless admissible to negate elements of specific
intent. State v. Phipps, 883 S.W.2d 138, 149 (Tenn. Crim. App. 1994). In Hall, our
supreme court explained ―diminished capacity‖ as follows:

             [D]iminished capacity is not considered a justification or
             excuse for a crime, but rather an attempt to prove that the
             defendant, incapable of the requisite intent of the crime
             charged, is innocent of that crime but most likely guilty of a
             lesser included offense.       Thus, a defendant claiming
             diminished capacity contemplates full responsibility, but only
             for the crime actually committed.          In other words,
             ―diminished capacity‖ is actually a defendant‘s presentation
                                           - 25 -
             of expert, psychiatric evidence aimed at negating the requisite
             culpable mental state.

958 S.W.2d at 688 (citations omitted). However, the Hall court cautioned that ―such
evidence should not be proffered as proof of ‗diminished capacity.‘ Instead, such
evidence should be presented to the trial court as relevant to negate the existence of the
culpable mental state required to establish the criminal offense for which the defendant is
being tried.‖ Id. at 690. Our supreme court emphasized that ―‗[i]t is the showing of [a]
lack of capacity to form the requisite culpable mental intent [due to a mental disease or
defect] that is central to evaluating the admissibility of expert psychiatric testimony on
the issue.‘‖ State v. Faulkner, 154 S.W.3d 48, 56-57 (Tenn. 2005) (quoting Hall, 958
S.W.2d at 690).

       In State v. Ferrell, 277 S.W.3d 372, 379 (Tenn. 2009), our supreme court clarified
that the ―decision in Hall established that the [mental health] testimony is properly
admissible if it satisfies the relevancy and expert testimony provisions in the Tennessee
Rules of Evidence and its content indicates that a defendant lacked the capacity to form
the required mental state for an offense. . . .‖ Id. at 379. Our supreme court explained
that the Hall holding ―was based upon the broader legal principle that ‗expert testimony
relevant to negating intent is admissible in Tennessee even though diminished capacity is
not a defense.‘‖ Id. (quoting Hall, 958 S.W.2d at 691). The court further explained that
―Hall recognized that a defendant may negate an element of the offense as a defense to
the prosecution.‖ Id. at 380. The Hall court explained that

             to gain admissibility, expert testimony regarding a
             defendant‘s incapacity to form the required mental state must
             satisfy the general relevancy standards as well as the
             evidentiary rules which specifically govern expert testimony.
             Assuming that those standards are satisfied, psychiatric
             evidence that the defendant lacks the capacity, because of
             mental disease or defect, to form the requisite culpable mental
             state to commit the offense charged is admissible under
             Tennessee law.

958 S.W.2d at 689.

       We agree with the State that Dr. Zager‘s testimony was inadmissible under Hall
because she did not testify that the Appellant lacked the mental capacity to commit the
crimes. See Faulkner, 154 S.W.3d at 56-57; State v. Frederick Thomas, No. W2013-
02763-CCA-R3-CD, 2015 WL 2258151, at *5 (Tenn. Crim. App. at Jackson, May 6,
2015), perm. to appeal denied, (Tenn. Aug. 13, 2015). In Hall, our supreme court
specifically stated that the admissibility of an expert‘s testimony regarding a defendant‘s
                                           - 26 -
diminished capacity requires a showing (1) that the defendant ―lacked the capacity‖ to
form the culpable mental state and (2) that he lacked the capacity due to a mental disease
or defect. In the instant case, Dr. Zager testified about the Appellant‘s PTSD, anxiety,
and intoxication. However, when the State specifically asked if she could say that the
Appellant lacked the capacity to premeditate or act intentionally, she answered
negatively, saying that she could only state that his ability to form a mental state was
―impacted.‖ The fact that the Appellant‘s mental disease may have impaired or reduced
his capacity to form the requisite mental state does not satisfy the two-prong requirement
in Hall. Therefore, we conclude that the trial court did not abuse its discretion by ruling
that Dr. Zager‘s testimony was inadmissible.

                                   C. Rebuttal Evidence

        The Appellant argues that the trial court erred by allowing the State to admit proof
regarding the Appellant‘s presence at a casino, his robbery of a convenience store, and
his statement to the police as rebuttal evidence. The Appellant contends that the State did
not present evidence that he felt animosity toward the victims or needed money. He
further contends that evidence regarding his presence at the casino and the subsequent
convenience store robbery was irrelevant to the case and that he did not open the door to
allow the acts to be admitted. The State responds that the trial court did not err by
admitting any of the proof.

       ―Rebuttal evidence is ‗any competent evidence which explains or is in direct reply
to or a contradiction of material evidence introduced by the accused.‘‖ State v.
Thompson, 43 S.W.3d 516, 524 (Tenn. Crim. App. 2000) (quoting Nease v. State, 592
S.W.2d 327, 331 (Tenn. Crim. App. 1979)). ―The state is given the right of rebuttal
because it ‗does not and cannot know what evidence the defense will use until it is
presented at trial.‘‖ Id. (citing State v. Cyrus Deville Wilson, No. 01C01-9408-CR-
00266, 1995 WL 676398, at *4 (Tenn. Crim. App. at Nashville, Nov. 15, 1995)). The
admission of rebuttal evidence is within the sound discretion of the trial court, and we
will not overturn the trial court‘s decision absent an abuse of that discretion. See State v.
Dellinger, 79 S.W.3d 458, 488 (Tenn. 2002).

                                         1. Casino

       First, we will address whether the trial court abused its discretion by admitting
proof that the Appellant went to a casino following the shooting. Initially, we note that
the Appellant made scant argument in his brief regarding the admissibility of proof
regarding the Appellant‘s presence at the casino, gave only the most general citations to
authority, and listed almost no citations to the record. Tennessee Rule of Appellate
Procedure 27(a)(7) provides that an appellant‘s brief must contain an argument that sets
forth:
                                            - 27 -
              (A) the contentions of the appellant with respect to the issues
              presented, and the reasons therefor, including the reasons why
              the contentions require appellate relief, with citations to the
              authorities and appropriate references to the record (which
              may be quoted verbatim) relied on; and

              (B) for each issue, a concise statement of the applicable
              standard of review (which may appear in the discussion of the
              issue or under a separate heading placed before the discussion
              of the issues)[.]

      The Appellant has met this burden in only the most superficial way on the issue of
the admissibility of evidence regarding the Appellant‘s presence at the casino.
Nevertheless, we will address this issue.

        The record reflects that at the conclusion of the defense proof, the State announced
its intention to present as rebuttal, evidence regarding the Appellant‘s visit to a casino in
Tunica. Defense counsel responded:

                     We‘ve reviewed the tapes and the reports that were
              given to us today right before lunch, I believe. One of those
              is basically surveillance video from Tunica. And this is
              rebuttal evidence. He knew, on cross examination, that he
              was in Tunica and he might have been sitting in a slot, he was
              doing (indiscernible) then. So, there‘s no – there‘s no
              challenge. I mean, he admitted to that. So, for this as rebuttal
              proof, it seems like this is inappropriate. It‘s to rebut
              something that we have put on in our case-in-chief, and he
              has already admitted to that.

       The State argued that its

              position is that in order for us to rebut this lack of
              premeditation, we‘re attempting to show that [the Appellant]
              went down to the Horseshoe Casino. He has denied that he
              got or had the Player‘s Card, which our proof will show is not
              true.

                   Also, he‘s down there playing some very complex
              games which require a lot more mental thought than
              somebody who does not have that type of . . . . He‘s playing
                                            - 28 -
              craps, which is one of the most complicated games that you
              can play down there.

        Defense counsel noted that the video did not show that the Appellant interacted
much with people. Counsel observed that the Appellant admitted on cross-examination
that he went to the casino, got a drink, and played games. She then asked, ―So, what is
there to rebut?‖ The State explained that ―this goes to his – the whole situation where he
is claiming that he can‘t remember most things. And this is two hours after the killing.‖

       The court said that the Appellant ―testified that he was basically in a sedated state;
that when he got there it started wearing off. But he had a few drinks, and, therefore, he
was in a sedated state again.‖ The court observed, ―I‘ve tried to play craps too, and I lose
all my money every time I do it. So, it is quite a complex game. You really have to
know what you‘re doing.‖ The State noted that the Appellant won some of his bets at the
craps table.

       On appeal, the Appellant argues that the trial court erred in holding that the
Appellant‘s testimony regarding his mental state ―opened the door to any and all
subsequent behavior.‖ The Appellant alleges that the court‘s ―misapplication of the law
and murky understanding of diminished capacity opened the door to everything [the
Appellant] did from hours to days after the shooting.‖ The State responds that the
Appellant‘s proof suggested that the shooting ―resulted from his drug addiction, post-
traumatic stress disorder, and psychotic delusions.‖ The State explained that the rebuttal
proof demonstrated that ―just hours later he was casually strolling through a casino,
playing complex games, and committing another armed robbery,‖ and argued that the
State was entitled to challenge the Appellant‘s claim. We agree with the State.

       The defense‘s proof at trial was that the Appellant began taking marijuana,
Oxycodone, heroin, and Xanax on Friday and continued to use the drugs periodically
over the course of the weekend. The Appellant contended that on Sunday, he was so
intoxicated, or as Dr. Smith testified, ―brain poisoned,‖ that he shot Townsel and
Courtney. The Appellant contended that immediately after the shooting, he ―came to,‖
grabbed Courtney‘s car keys, and left the residence. He did not recall taking any
additional items from the residence. Dr. Smith said that once the Appellant ―found
himself,‖ he was out of the blackout state but could have still been impaired. The
Appellant acknowledged that he went to a casino after the shooting. He said that his
intoxication was beginning to wear off but that once he had a few mixed drinks, he
became intoxicated again. Dr. Smith said that at the casino, the Appellant‘s brain was
―becoming less poisoned.‖

       The trial court observed that the Appellant was

                                            - 29 -
             the one that said he was comatose for days – and
             hallucinating, so come on. . . . Let‘s just assume, for
             argument sake, that you have a video, and he‘s stumbling
             around there falling dead drunk, stammering, hitting the
             walls, bouncing off the walls, people are helping him up, you
             would put that in. No doubt – no doubt. So, I mean, we have
             the opposite situation. We have someone that‘s lucid – that‘s
             able to play craps – that‘s winning at craps – staking out a
             place to rob . . . .

                    Okay. So, I don‘t know. I think it‘s a stretch to say
             that it‘s not relevant. It‘s clearly relevant. I think the
             probative value completely outweighs any unfair prejudice
             because he‘s the one that says he was comatose. He‘s the one
             that says his mental capacity was such that he couldn‘t
             formulate any premeditation or any intent or any knowledge
             or anything like that. He was just totally surprised at all this.
             So, I don‘t know. I think it‘s clearly relevant.

       As the trial court observed, the Appellant‘s proof was that he was coming in and
out of a ―sedated‖ state for as many as three days after the shooting. Therefore, the
Appellant‘s behavior a few short hours after the shooting was relevant. The State‘s
rebuttal proof demonstrated that during that time, the Appellant acted normally in the
casino and did not demonstrate any remorse, going so far as to obtain a player‘s card to
earn rewards while gambling shortly after killing his friend. Additionally, the Appellant
actively and skillfully played craps, a game that required thought and strategy, which
demonstrated that the Appellant‘s ability to think and plan was not as impaired as the
Appellant and Dr. Smith alleged. Given the foregoing, we conclude that the trial court
did not err by allowing the State to introduce proof of the Appellant‘s activities at the
casino as rebuttal evidence.

                             2. Convenience Store Robbery

        The Appellant contends the trial court erred under Tennessee Rule of Evidence
404(b) by allowing evidence of the convenience store robbery. The Appellant maintains
that the defense proof of diminished capacity did not ―open the door‖ to evidence of other
acts and that it was offered as propensity. He maintained that his testimony at trial was
that at the time of the shooting, he was incapable of forming the mens rea for first degree
murder and that immediately after the shooting, he awoke from his ―blacked out state.‖
The State asserts that the trial court did not err.


                                           - 30 -
        At trial, the State informed the trial court that it intended to introduce video and
witnesses to prove that the Appellant robbed a convenience store. The court stated, ―That
definitely goes to culpable mental state – guilty knowledge . . . .‖ Defense counsel
objected, arguing that the Appellant was charged with especially aggravated robbery in
the instant case and that introducing proof of another robbery was ―very dangerous
territory . . . it‘s to show conformity.‖ The State responded, ―No, it‘s not.‖ The trial
court found, ―It‘s to show intent – that he had the ability to form – formulate the mental
capacity to commit a murder.‖ The State asserted

              that it goes towards motive. His motive was – part of it was
              to get proceeds from the original robbery selling off some of
              the goods in the interim hour; he‘s down in Tunica two hours
              later gambling with some type of money. And then he used
              the stolen car to get down there and to get the robbery and
              escape the robbery with hundreds more dollars.

       Defense counsel asked if the State had proof that the Appellant pawned the items
taken from the scene of the shooting, and the State acknowledged that it did not. The
court observed that the State could ―make an inference that he did certain things.‖

       The court observed that in relation to Rule 404(b), with a video and witness
testimony, ―it‘s pretty clear that it happened.‖ The court said:

              Now, what is the relevance of it? – that‘s all 404(b) is, is a
              rule of relevance.

                     Most of the time, if it shows propensity to commit a
              crime, but here we have within hours. You know, these are
              the hours that [the Appellant] is claiming that he is just
              completely whacked out. He‘s in a comatose state –

                     ....

                     . . . He‘s all this stuff, and so [defense counsel] is
              saying that it‘s not relevant to show that his mental capacity
              and his ability to reason and his ability to do certain things
              during this whole time – I mean, this is just a matter of hours.

      The court asked how much time elapsed between the shooting and the
convenience store robbery, and the State responded that it was approximately four hours.
The State alleged that the convenience store surveillance video showed that that the
Appellant planned the robbery, noting that
                                           - 31 -
             [h]e goes in the store twice. He goes in and cases it when the
             customers are there. He leaves. He goes in to buy something
             – under the pretense of buying something. He goes right back
             out. When all the customers leave, he comes back in and robs
             the place. I mean, that‘s planning.

      Defense counsel argued, ―The testimony was that he was in a blackout state and he
came to at the time of the murder.‖ The court said:

                     So, I mean, is the jury going to believe that? – so
             everything that has something to do with whether they believe
             that or not is relevant. So, that‘s what 404(b) is, is relevant –
             whether it‘s relevant.

                    ....

                    And to say that his ability to do this four hours later
             when he claims to have been in a comatose state and sedated
             such that he couldn‘t remember where he was, what he did –
             anything? I think the jury ought to be allowed to hear that.

      Defense counsel further argued that the proof demonstrated

             that everything was not a complete and total blackout; that
             this was in and out. Dr. Smith has testified that brain toxin
             and what happened to his brain, that goes up and down. And
             we feel that when we put him on during direct, that did not
             open the door. He came to, and while he can‘t remember
             everything, he does remember some things. So, our argument
             is, first of all, that that door was not opened; that it‘s unfairly
             prejudicial and that it‘s inappropriate under 404(b).

      The court stated:

                    Well, I think it is definitely appropriate[] under 404(b).
             I mean, if it had been ten days later – ten days before, but
             we‘re talking about a matter of hours when [the Appellant] is
             claiming that he‘s in and out – in and out. Well, who is to
             decide that‘s true? – me? I might have said, ―Well, yeah, I
             believe him,‖ so, therefore I‘m not going to let the evidence
             in. I can‘t – I can‘t do that. It is for the jury to decide
                                            - 32 -
              whether or not they want to believe it. So, regardless, if they
              want to believe every word Dr. Smith had to say, well, that‘s
              their prerogative. If they don‘t want to believe any of it,
              that‘s their prerogative. And you‘re saying that based on
              what he said, he was coming in and out, therefore, you
              shouldn‘t let this 404(b) evidence in. That‘s – that‘s – I think
              I‘ve made my point. It is certainly relevant.

       Tennessee Rule of Evidence 404 provides:

              (b) Other Crimes, Wrongs, or Acts. - Evidence of other
              crimes, wrongs, or acts is not admissible to prove the
              character of a person in order to show action in conformity
              with the character trait. It may, however, be admissible for
              other purposes. The conditions which must be satisfied
              before allowing such evidence are:

              (1) The court upon request must hold a hearing outside the
              jury‘s presence;

              (2) The court must determine that a material issue exists other
              than conduct conforming with a character trait and must upon
              request state on the record the material issue, the ruling, and
              the reasons for admitting the evidence;

              (3) The court must find proof of the other crime, wrong, or
              act to be clear and convincing; and

              (4) The court must exclude the evidence if its probative value
              is outweighed by the danger of unfair prejudice.

See also State v. Thacker, 164 S.W.3d 208, 240 (Tenn. 2005); State v. Parton, 694
S.W.2d 299, 302 (Tenn. 1985). A trial court‘s decision regarding the admission of Rule
404(b) evidence will be reviewed under an abuse of discretion standard; however, ―the
decision of the trial court should be afforded no deference unless there has been
substantial compliance with the procedural requirements of the Rule.‖ State v. DuBose,
953 S.W.2d 649, 652 (Tenn. 1997).

       Generally, ―[o]nly in an exceptional case will another crime, wrong, or bad act be
relevant to an issue other than the accused‘s character. Such exceptional cases include
identity, intent, motive, opportunity, or rebuttal of mistake or accident.‖ State v. Luellen,
867 S.W.2d 736, 740 (Tenn. Crim. App. 1992). ―Rule 404(b) would permit the
                                            - 33 -
introduction of evidence of subsequent acts to establish one‘s intent during a prior act in
appropriate cases. In determining whether to allow the admission of evidence of
subsequent crimes, wrongs, or acts in a given case, trial courts should be mindful of the
similarity of the offenses or acts and the proximity in time.‖ State v. Elkins, 102 S.W.3d
578, 584 (Tenn. 2003).

        In making its decision regarding the admissibility of the testimony, the trial court
must first determine if the offered testimony is relevant to prove something other than the
Appellant‘s character. In the instant case, the trial court determined that the proof about
the convenience store robbery was ―highly relevant‖ to show the Appellant‘s ability to
form a mental state. The court also determined, given the video of the robbery, that the
proof of the crime was clear and convincing. The court found that the probative value of
the crime was not outweighed by the danger of unfair prejudice. We acknowledge that
proof of another robbery within four hours of the robbery that accompanied the shooting
was potentially highly prejudicial. See State v. Calvin Person, No. W2011-02682-CCA-
R3-CD, 2013 WL 5883796, at *14 (Tenn. Crim. App. at Jackson, Oct. 31, 2013). ―On
the other hand, similarity may make the probative value quite high as well.‖ Neil P.
Cohen et al., Tennessee Law of Evidence ' 4.04[8][e] (LEXIS publishing, 6th ed. 2011).
The convenience store robbery was committed in the timeframe during which the
Appellant alleged he was intoxicated and not thinking clearly, making the probative value
great. See State v. Richard Dickerson, No. W2012-02283-CCA-R3-CD, 2014 WL
1102003, at *10 (Tenn. Crim. App. at Jackson, Mar. 19, 2014), perm. to appeal denied,
(Tenn. Sept. 3, 2014). Moreover, we note that the trial court gave a detailed instruction
to the jury regarding how the evidence should be considered.

       From the foregoing, we conclude that the trial court did not abuse its discretion by
allowing the evidence of the convenience store robbery to be admitted as rebuttal proof.

                                 3. Appellant‘s Statement

        The Appellant contends that the trial court erred when it allowed his statement into
evidence. However, he did not support this contention with argument, authority, or
citations to the record. Generally, ―[i]ssues which are not supported by argument,
citation to authorities, or appropriate references to the record will be treated as waived in
this court.‖ Tenn. Ct. Crim. App. R. 10(b); see also Tenn. R. App. P. 27(a)(7).

                                    D. Jury Instruction

       The Appellant argues that the trial court erred by creating its own jury instruction
regarding how to consider proof of the Appellant‘s mental state. The State responds that
the jury instruction ―properly set forth the law regarding the use of expert testimony to
prove [the Appellant‘s] mental state.‖ In the alternative, the State maintains that any
                                            - 34 -
error regarding the instruction was harmless.

      Near the end of the defense‘s proof, the trial court asked the parties to review the
proposed jury instructions. The court said:

                     You know, I‘m looking at this mental charge that‘s in
             this pattern jury instruction; and it doesn‘t go along at all with
             the law on diminished capacity. It doesn‘t go along with it at
             all. I mean, it seems, at the very least, that the two-prong test,
             there ought to be something in there about what responsibility
             – because on insanity, that‘s an affirmative defense, and the
             defense has to prove that he was insane. And it‘s pretty much
             the same way with diminished capacity. I don‘t know what
             the – because it‘s the same jury charge. . . .

                    ....

             . . . I know there‘s several cases, one, they raised a mental
             defense, but they also wanted a separate diminished capacity;
             and they said, ―Well, the mental – insanity covers it.‖ But
             there was another one where they said, ―Well, basically
             diminished capacity is saying that he couldn‘t form intent,‖ so
             there‘s no need to even have a jury instruction on diminished
             capacity because the intent instruction – if he‘s so whacked
             out he couldn‘t intend anything, then, of course, they couldn‘t
             prove intent. So, it would be not really necessary to have an
             instruction.

                    ....

                     The problem with the instruction now is it doesn‘t say
             what is the responsibility and what is the burden of proof on
             behalf of the defendant when it comes to this. I don‘t know if
             it‘s clear and convincing evidence they have to show it by or
             if it‘s just by a preponderance of the evidence. And, of
             course, there‘s no instruction on that. It doesn‘t say that you
             have to prove it beyond a reasonable doubt. It doesn‘t say
             you don‘t have to either. You know what I mean? And so
             I‘m just concerned with giving an instruction that‘s improper
             because it uses the word ―might‖ – ―might have‖ – and, of
             course, I think you have to show that it did affect – the two-
             prong test to make it admissible.
                                           - 35 -
                     To make it admissible, it doesn‘t say that it might
              have. As a matter of fact, I think . . . we‘re lessening the
              responsibility of the defense – what they have to do. They
              have to meet these two criteria in order to – so, I think it
              should be in the jury charge that he did suffer – you have to
              find that he suffered from a mental defect or mental disease;
              and you have to find that he lacked the capacity to form the
              requisite mens rea.

                      And then, also, from the [Hall] case, it‘s pretty clear
              that – basically what the [Hall] case is saying is that, ―Well,
              you know,‖ – diminished capacity is basically saying that the
              defendant is accepting responsibility, but he‘s saying that he‘s
              not culpable for the charged offense; but he may, in fact, be
              culpable for a lesser-included offense. There‘s nothing in the
              charge about that. And that‘s basically what the whole
              purpose of diminished capacity is – where somebody accepts
              responsibility – ―yeah, I did it,‖ but I was so whacked out,
              you know, I didn‘t – I couldn‘t form the intent. . . . But
              there‘s nothing in there that says, you know, anything about
              that. It just doesn‘t look good.

                     ....

                     I just think the jury charge has to at least meet that
              instead of saying, ―Might have.‖

                      He did not have the requisite – not ―Might have,‖
              because that lowers the burden of the defense. Then, again,
              what is the – it‘s not beyond a reasonable doubt – is it by a
              preponderance of the evidence that you have to prove that, or
              is it by clear and convincing evidence? I think it‘s grossly
              unfair to say that it might have when the rule say‘s [(sic)] –
              doesn‘t use the word, ―Might.‖

       Defense counsel responded, ―I think it gets a little scarey [(sic)] to think of
constructing our own actual instruction considering that this . . . has been considered
sufficient.‖

       The next day of trial, the trial court noted that it had ―put together‖ an instruction
that ―more accurately reflects the actual law as it pertains to what is commonly called
                                            - 36 -
diminished capacity.‖ The court acknowledged that the words ―diminished capacity‖
should not be used in the charge.

      The court said:

                   But the charge – what I did was I took the law – the
            two elements that have to be shown to the jury, to the jury‘s
            satisfaction; that the defendant had a mental disease or defect
            at the time of the commission of the offenses charged; that
            because of the mental disease or defect, the [Appellant], at the
            time of the commission of the offenses charged, lacked the
            capacity to form the requisite culpable mental state. And I
            said that that had to be proved by clear and convincing
            evidence.

                    Now, the pattern jury instruction doesn‘t say that;
            however, when you look at the insanity charge, it says that
            that has to be shown by clear and convincing evidence. And
            the way that this charge was formulated, it appeared to me to
            – even though these two things had to be proven – it said,
            ―Well, if you find that he might have had a‖ – ―might have‖ –
            then, you know, you have to find him not guilty. And I don‘t
            think that‘s the law, and I don‘t know how that got in the
            pattern jury instructions. It doesn‘t seem right to me. So, I‘m
            changing it. And right or wrong, I believe that – they – they
            can‘t go back there an[d] think, ―Well, maybe the defense had
            to prove this beyond a reasonable doubt.‖ That would be
            something I would think – hey, if they put on an expert to say
            that, maybe they had to prove that beyond a reasonable doubt.
            And say, ―Well, no, they didn‘t prove it beyond a reasonable
            doubt that he had a mental disease or whatever,‖ but they may
            find, by clear and convincing evidence – you see what I
            mean? So that‘s the reason why I think there has to be
            something that tells them, you know, what standard of proof
            there is for the defense on this. Certainly it can‘t be beyond a
            reasonable doubt. That wouldn‘t be right. But I think clear
            and convincing evidence would be a proper thing to tell them.

                   So, I basically tweaked the pattern instruction and
            added those two criteria from . . . [Hall], but the – it seems
            like there was . . . another case that spelled out those two
            particular things.
                                         - 37 -
       Defense counsel objected, expressing a preference for the ―mental state
instruction.‖ The State contended that the trial court‘s proposed charge ―reflects the law
more clearly.‖

        A defendant has a ―constitutional right to a correct and complete charge of the
law.‖ State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990). Accordingly, trial courts should
give an ―instruction if it is supported by the evidence, embodies a party‘s theory, and is a
correct statement of the law.‖ State v. Phipps, 883 S.W.2d 138, 150 n. 20 (Tenn. Crim.
App. 1994). Our supreme court has cautioned that ―a trial court‘s jury charge should not
contain inaccurate or inapplicable statements of legal principles that might tend to
confuse the jury.‖ State v. Hatcher, 310 S.W.3d 788, 812 (Tenn. 2010) (internal
quotation marks and citations omitted). Moreover, we have previously noted that ―[w]e
must review the entire [jury] charge and only invalidate it if, when read as a whole, it
fails to fairly submit the legal issues or misleads the jury as to the applicable law.‖ State
v. Forbes, 918 S.W.2d 431, 447 (Tenn. Crim. App. 1995). A charge resulting in
prejudicial error is one that fails to fairly submit the legal issues to the jury or misleads
the jury about the applicable law. State v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997).

        At the time of trial,5 the Tennessee Pattern Jury Instruction regarding diminished

5
 The current pattern instruction omits the ―might have‖ and ―may have‖ language that concerned the trial
court and reads as follows:

                         The state must prove beyond a reasonable doubt the culpable
                mental state of the accused. Culpable mental state means the state of
                mind of the accused at the time of the offense. This means that you must
                consider all of the evidence to determine the state of mind of the accused
                at the time of the commission of the offense. The state of mind which
                the state must prove is contained in the elements of the offense(s) as
                outlined in these instructions [above] [below].

                         In this case, evidence has been offered that the defendant
                suffered from a mental [disease] [defect] that prevented [him] [her]
                from forming the culpable mental state required to commit a particular
                offense. The testimony must demonstrate that the defendant‘s inability
                to form the requisite culpable mental state was the product of mental
                disease or defect, not just a particular emotional state or mental
                condition. However, it is for the jury to determine whether or not the
                defendant suffered from a mental disease or defect and whether, as a
                result of the mental disease or defect, the defendant was unable to form
                the culpable mental state.

                        If you find from the evidence that the defendant was unable to
                form a particular culpable mental state, then you must determine beyond
                a reasonable doubt what the mental state of the defendant was at the time
                                                  - 38 -
capacity provided, in pertinent part, as follows:

                      ―The state must prove beyond a reasonable doubt the
               culpable mental state of the accused. Culpable mental state
               means the state of mind of the accused at the time of the
               offense. This means that you must consider all of the
               evidence to determine the state of mind of the accused at the
               time of the commission of the offense. The state of mind
               which the state must prove is contained in the elements of the
               offense(s) as outlined in these instructions [above] [below].

                      In this case, you have heard evidence that the
               defendant might have suffered from a mental [disease]
               [defect] which could have affected [his][her] capacity to
               form the culpable mental state required to commit a particular
               offense. . . .

                      If you find from the evidence that the defendant‘s
               capacity to form a culpable mental state may have been
               affected, then you must determine beyond a reasonable doubt
               what the mental state of the defendant was at the time of the
               commission of the offense to determine of which, if any,
               offense [he][she] is guilty.‖

Hatcher, 310 S.W.3d at 806-07 (quoting T.P.I.—Crim. 42.22 (2009)).

      Instead of utilizing the foregoing instruction, the trial court instructed the jury as
follows:

                              EVIDENCE OF MENTAL STATE

                      The State must prove beyond a reasonable doubt the
               culpable mental state of the accused. Culpable mental state
               means the state of mind of the accused at the time of the
               offense. This means that you must consider all of the
               evidence to determine the state of mind of the accused at the
               time of the commission of the offense. The state of mind

               of the commission of the offense to determine of which, if any, offense
               [he] [she] is guilty.

T.P.I.—Crim. 42.22 Evidence of mental state (footnotes omitted).

                                                 - 39 -
             which the state must prove is contained in the elements of the
             offenses as outlined in the instructions above.

                    In this case, you have heard evidence that the
             defendant may have suffered from a mental disease or defect,
             which affected his capacity to form the culpable mental state
             required to commit the offenses charged. The testimony must
             demonstrate by clear and convincing evidence:

                    1. That the defendant had a mental disease or defect at
             the time of the commission of the offenses charged; and

                   2. That because of the mental disease or defect, the
             defendant, at the time of the commission of the offenses
             charged, lacked the capacity to form the requisite culpable
             mental state.

                    ―Clear and convincing evidence‖ means evidence in
             which there is no serious or substantial doubt about the
             correctness of the conclusions drawn from the evidence.

                     The testimony must demonstrate that the defendant‘s
             inability to form the requisite culpable mental state was the
             product of mental disease or defect, not just a particular
             emotional state or mental condition. However, it is for the
             jury to determine whether or not the defendant suffered from
             a mental disease or defect.

                     If you find by clear and convincing evidence that the
             defendant‘s capacity to form a culpable mental state may
             have been affected, then you must determine beyond a
             reasonable doubt what the mental state of the defendant was
             at the time of the commission of the offense to determine of
             which, if any, offense he is guilty.

                     In determining the defendant‘s mental status at the
             time of the alleged crime, the jury is entitled to look to all the
             evidence of his actions and words before, at, and immediately
             after the commission of the alleged crime.

      Additionally, we note that when the trial court instructed the jury regarding the
charged and lesser-included offenses, the court asserted that the State must prove all of
                                           - 40 -
the essential elements, including mens rea, beyond a reasonable doubt. Further, the court
instructed that ―[t]he state has the burden of proving the guilt of the defendant beyond a
reasonable doubt, and this burden never shifts but remains on the state throughout the
trial of the case. The defendant is not required to prove his innocence.‖

      As the trial court instructed, the State, not a defendant, is responsible for proving
mens rea, which is an essential element of the crime(s) charged. Tenn. Code Ann. ' 39-
11-201(a)(2). ―A defendant is not required to present any proof at all.‖ State v. Clark,
452 S.W.3d 268, 290 (Tenn. 2014).

        This court has previously held that if the jury is properly instructed regarding the
mens rea for the charged and lesser-included offenses, no further instruction on
diminished capacity is absolutely necessary. See State v. Grose, 982 S.W.2d 349, 354
(Tenn. Crim. App. 1997); see also State v. Garland Godsey, No. E2000-01944-CCA-R3-
CD, 2001 WL 1543474, at *3 (Tenn. Crim. App. at Knoxville, Dec. 4, 2001); State v.
Larry Dean Dickerson, No. W2000-02201-CCA-R3-CD, 2001 WL 1042128, at *4 (Tenn.
Crim. App. at Jackson, Sept. 10, 2001). While pondering the correct instruction to give
regarding the Appellant‘s mental state, the trial court compared diminished capacity to
insanity. However, diminished capacity and insanity cannot be equated. ―[I]nsanity is an
affirmative defense, and as such, the defendant bears the burden of proving the defense
by clear and convincing evidence.‖ State v. Kennedy, 152 S.W.3d 16, 18 (Tenn. Crim.
App. 2004). Diminished capacity is not an affirmative defense; instead, it is ―a rule of
evidence which allows the introduction of evidence to negate the existence of specific
intent when a defendant is charged with a specific intent crime.‖ State v. Phipps, 883
S.W.2d 138, 148 (Tenn. 1994); see State v. Adams, 405 S.W.3d 641, 660 (Tenn. 2013)
(stating that ―diminished capacity is not a defense to a criminal charge, but evidence of
diminished capacity is admissible to negate mens rea‖). In other words, ―diminished
capacity is not considered a justification or excuse for a crime, but rather an attempt to
prove that the defendant, incapable of the requisite intent of the crime charged, is
innocent of that crime but most likely guilty of a lesser included offense.‖ State v. Hall,
958 S.W.2d 679, 688 (Tenn. 1997).

       The instant instruction required the Appellant to negate his mental state, an
essential element of the offense, by clear and convincing evidence. The instruction
shifted the burden of proof regarding an essential element of the offense to the Appellant;
therefore, the instruction was erroneous and unconstitutional. See McDonald v. Tenn.,
486 F. Supp. 550, 553 (M.D. Tenn. 1980) (―There can no longer be a shifting of the
burden of proof to the defendant as to any essential element of a criminal offense.‖). This
court has held that an erroneous jury instruction concerning ―‗an element of the offense
which might lessen the burden of proof placed upon the [S]tate is constitutional error and
requires a new trial unless the error is harmless beyond a reasonable doubt.‘‖ State v.
Finch, 465 S.W.3d 584, 605 (Tenn. Crim. App. 2013) (quoting State v. Guy, 165 S.W.3d
                                           - 41 -
651, 659 (Tenn. Crim. App. 2004)); see also State v. Page, 81 S.W.3d 781, 789 (Tenn.
Crim. App. 2002). The Appellant‘s mental state was a highly contested issue at trial. The
instruction essentially shifted the burden of proving a mental state to the Appellant,
effectively lessening the State‘s burden of proof. Accordingly, we cannot say that the
error was harmless beyond a reasonable doubt. As such, we must conclude that the
Appellant‘s convictions must be reversed.

                              E. Sufficiency of the Evidence

       Even though we have found it necessary to reverse the Appellant‘s convictions,
we must address the sufficiency of the evidence to determine whether he should be
subject to a new trial or the convictions should be reversed and the charges dismissed. On
appeal, a jury conviction removes the presumption of the appellant‘s innocence and
replaces it with one of guilt, so that the appellant carries the burden of demonstrating to
this court why the evidence will not support the jury‘s findings. See State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982). The appellant must establish that no reasonable trier of
fact could have found the essential elements of the offense beyond a reasonable doubt.
See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Tenn. R. App. P. 13(e).

       Accordingly, on appeal, the State is entitled to the strongest legitimate view of the
evidence and all reasonable inferences which may be drawn therefrom. See State v.
Williams, 657 S.W.2d 405, 410 (Tenn. 1983). In other words, questions concerning the
credibility of witnesses and the weight and value to be given the evidence, as well as all
factual issues raised by the evidence, are resolved by the trier of fact, and not the
appellate courts. See State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).

       The guilt of a defendant, including any fact required to be proven, may be
predicated upon direct evidence, circumstantial evidence, or a combination of both direct
and circumstantial evidence. See State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn.
Crim. App. 1999). Even though convictions may be established by different forms of
evidence, the standard of review for the sufficiency of that evidence is the same whether
the conviction is based upon direct or circumstantial evidence. See State v. Dorantes,
331 S.W.3d 370, 379 (Tenn. 2011).

        To sustain the Appellant‘s conviction for second degree murder, the State was
required to prove that the Appellant knowingly killed the victim. See Tenn. Code Ann. '
39-13-210(a)(1). ―A person acts knowingly with respect to a result of the person‘s
conduct when the person is aware that the conduct is reasonably certain to cause the
result.‖ Tenn. Code Ann. ' 39-11-302(b); see also State v. Ducker, 27 S.W.3d 889, 896
(Tenn. 2000). A criminal attempt occurs when a person acting with the kind of
culpability otherwise required for the offense:

                                           - 42 -
             (1) 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;

             (2) 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

             (3) 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.

Tenn. Code Ann. ' 39-12-101(a)(1)-(3).

        Especially aggravated robbery is robbery accomplished with a deadly weapon
where the victim suffers serious bodily injury. Tenn. Code Ann. ' 39-13-403(a)(1) and
(2). Robbery is defined as ―the intentional or knowing theft of property from the person
of another by violence or putting the person in fear.‖ Tenn. Code Ann. ' 39-13-401(a). A
theft of property occurs when someone, with the intent to deprive the owner of property,
knowingly obtains or exercises control over the property without the owner‘s effective
consent. Tenn. Code Ann. ' 39-14-103. Serious bodily injury is defined as a bodily
injury that involves:

             (A) A substantial risk of death;

             (B) Protracted unconsciousness;

             (C) Extreme physical pain;

             (D) Protracted or obvious disfigurement;

             (E) Protracted loss or substantial impairment of a function of
             a bodily member, organ or mental faculty; or

             (F) A broken bone of a child who is eight (8) years of age or
             less

Tenn. Code Ann. ' 39-11-106(a)(34).

      The proof adduced at trial revealed that the Appellant was staying with McKinney,
                                          - 43 -
Kristen, and Townsel. The Appellant spent the day of the shooting on the couch,
apparently asleep. McKinney and Kristen left the residence, but Townsel and the
Appellant stayed. When Townsel‘s girlfriend, Courtney, arrived at the residence that
night, she and Townsel went into Townsel‘s bedroom to talk. Approximately fifteen
minutes later, the Appellant kicked in the bedroom door. Without saying anything, the
Appellant began shooting at them. Each victim was struck multiple times, and Townsel
was killed. The Appellant shot Courtney in the back as she crawled under the bed. The
Appellant took Courtney‘s car keys then walked through the house, taking a PlayStation
video game system, video games, and a laptop computer. The Appellant called
McKinney and said that three white males had broken into the house and shot him and
Townsel. By the time the police arrived, the Appellant had left in Courtney‘s car. The
Appellant drove to a casino in Tunica, Mississippi. Over the next couple of hours, the
Appellant obtained a player‘s reward card, drank several mixed drinks, and played slot
machines and a complicated table game. At the time of trial, Courtney still used a
ventilator on a daily basis.

        The Appellant concedes that he shot the victims; however, he maintains that he
could not have formed the mental state of knowingly at the time of the shooting. In
support of this contention, he asserts that the ―majority of witness testimony‖ was that the
Appellant was ―in a sedated state‖ for most of the day and that he was not involved in a
dispute with Townsel or Courtney. The Appellant also asserts that he and Dr. Smith
testified that at the time of the crime, the Appellant was suffering from a mental defect
and intoxication that caused him to black out; therefore, the Appellant ―was unable to act
with premeditation or in a knowing manner, and therefore was only guilty of a reckless
homicide.‖

        ―Our jurisprudence recognizes that the mental state, a necessary factor of almost
all our criminal statutes, is most often proven by circumstantial evidence, from which the
trier of fact makes inferences from the attendant circumstances and from which that body
weighs the circumstantial evidence.‖ State v. Jeffrey Antwon Burns, No. M1999-01830-
CCA-R3-CD, 2000 WL 1520261, at *3 (Tenn. Crim. App. at Nashville, Oct. 13, 2000).
The jury could infer that the Appellant acted knowingly by firing multiple shots at the
victims from relatively close range. See State v. Walfrido L. Rodriguez, No. M2005-
01351-CCA-R3-CD, 2006 WL 1626845, at *4 (Tenn. Crim. App. at Nashville, June 7,
2006). Moreover, it was within the province of the jury to determine the credibility of the
witnesses and to decide whether to accredit the Appellant‘s claim that he could not
formulate the necessary mens rea for the crime. See State v. Adams, 405 S.W.3d 641,
661 (Tenn. 2013); State v. Robert Leonard Mosley, No. W2004-00228-CCA-R3-CD,
2005 WL 905772, at *10 (Tenn. Crim. App. at Jackson, Apr. 19, 2005); State v. Derek T.
Payne, No. W2001-00532-CCA-R3-CD, 2002 WL 31624813, at *13 (Tenn. Crim. App.
at Jackson, Nov. 20, 2002). We conclude that the evidence was sufficient to sustain the
Appellant‘s convictions.
                                           - 44 -
                                       F. Sentencing

        Finally, the Appellant contends that the trial court erred when it imposed the
maximum sentence and ordered the sentences served consecutively. The State responds
that the trial court correctly sentenced the Appellant. Even though we have concluded
that the Appellant is entitled to a new trial, we will briefly address his sentencing issues
in the event of further appellate review.

        At the sentencing hearing, the State argued enhancement factor (1), that the
Appellant had a previous history of criminal convictions or criminal behavior in addition
to those necessary to establish the appropriate range, was applicable to all of the
convictions. The State acknowledged enhancement factor (6), that the personal injuries
inflicted upon, or the amount of damage to property sustained by or taken from the victim
was particularly great, was not applicable to the Appellant‘s especially aggravated
robbery conviction because it was an element of the offense but contended that it was
nevertheless applicable to the remaining convictions. The State argued that the trial court
should apply enhancement factor (8), that the Appellant, before trial or sentencing, failed
to comply with the conditions of a sentence involving release into the community. The
State noted that the Appellant was on probation or parole in Mississippi at the time of the
instant offenses and that his probationary sentence was revoked on April 15, 2012. The
State acknowledged enhancement factor (9), that the Appellant possessed or employed a
firearm, explosive device or other deadly weapon during the commission of the offense,
could not be applied to his especially aggravated robbery conviction because it was an
element of the offense but asserted that it was applicable to the remaining convictions.
The State further argued enhancement factor (13), that the Appellant was on probation or
parole at the time of the instant offenses, was applicable to all convictions.

       The State contended that the Appellant should receive consecutive sentencing
because he was a dangerous offender whose behavior indicated that he had little or no
regard for human life and no hesitation about committing a crime when the risk to human
life was high and because the Appellant was being sentenced for an offense committed
while on probation. Tenn. Code Ann. ' 40-35-115(b)(1), (6). The State argued:

                     Although [the Appellant] does not have a lengthy
              history, his behavior in the case is that he is very definitely a
              danger to the community because he is not hesitant about
              committing a crime that involves death or serious bodily
              injury. He has killed one person about 10:40, seriously
              wounds another victim. He takes the property from the
              house. He goes down to Mississippi and gambles as if, you
              know, he doesn‘t have a care in the world. Then he commits
                                            - 45 -
              a convenience store robbery where he places a weapon on a
              store clerk and takes money from there.

       Defense counsel said that the Appellant would not testify at the hearing but that
the Appellant would rely upon his testimony at trial concerning his mental issues.
Defense counsel contended that the Appellant did not have a sustained intent to violate
the law and that he had expressed remorse for the crimes. Defense counsel conceded that
the Appellant had ―some violations of probation and parole.‖ Defense counsel argued
that ―the finding of [the Appellant] as a dangerous offender must be solely based on
circumstances surrounding the crime which he is being sentenced for‖ and not for his
subsequent behavior in Mississippi.

        The trial court rejected the Appellant‘s claim that he was suffering from PTSD and
anxiety and from the effects of drugs at the time of the offenses, noting that
approximately one hour after the offenses, the Appellant was acting normally while
strolling around a casino. The court discredited defense counsel‘s assertion that the
Appellant did not have a sustained intent to violate the law, observing that the video of
the convenience store robbery ―indicates to me that he had a sustained intent to violate
the law. . . . Talk about someone that‘s cold – cold – that was just incredible.‖ Moreover,
the court found that the Appellant‘s lying immediately after the crime about white guys
committing the shooting then going to gamble made defense counsel‘s claim that the
Appellant was remorseful seem disingenuous. The court said that the Appellant said he
was remorseful but that the Appellant‘s actions demonstrated otherwise. The court said
that the Appellant‘s committing the instant offenses while on probation for grand larceny
proved that he was ―not subject to being rehabilitated.‖

        The court stated that enhancement factor (1) applied to each of the offenses
because the Appellant had a history of criminal convictions and that he had a history of
criminal behavior, namely his drug usage. Tenn. Code Ann. ' 40-35-114(1). The court
found that the Appellant treated Courtney with exceptional cruelty during the
commission of the offense and applied enhancement factor (5) to the attempted second
degree murder conviction. Id. at (5). The court said, ―He‘s shooting at her the whole
time she‘s crawling under the bed trying to escape. Then he has the audacity to come
back in and demand to know where the keys are to her car. If that‘s not heartless, I don‘t
know what is. That‘s – but it‘s definitely – that‘s cruel – in my opinion, that applies to
the criminal-attempt murder.‖ The court also found that enhancement factor (6), that the
personal injuries inflicted upon, or the amount of damage to property sustained by or
taken from, the victim was particularly great, applied to attempted second degree murder.
Id. at (6). The court found enhancement factors (8) and (13) applied to each of the
convictions because the Appellant was on probation at the time of the instant offenses. Id.
at (8) and (13). The court found enhancement factor (9), that the Appellant possessed or
employed a firearm during the commission of the offense, was applicable to the second
                                           - 46 -
degree murder and attempted second degree murder convictions. Id. at (9).

      The trial court said:

                    So, as far as the charge of murder second degree, he is
             facing fifteen to twenty-five years at one hundred percent. I
             think he was guilty of murder first degree which would have
             carried fifty-one years. I saw the proof. I think, by a
             preponderance of the evidence, he was guilty of maybe not
             beyond a reasonable doubt, but by a preponderance of the
             evidence. So, should I give him the minimum on murder
             second degree if I think he really was guilty of murder one?
             That‘s illogical in my opinion, plus all these aggravating
             circumstances that apply – his prior drug usage, his being on
             probation, his grand larceny, his prior criminal behavior, and
             the subsequent robbery at the store – twenty-five years at one
             hundred percent.

                    As to the criminal-attempt murder second degree, that
             is a B felony, eight to twelve years. I think ten years is
             appropriate. There were three aggravating circumstances that
             apply to that and no mitigation. I‘m sorry. I made a mistake
             that should be twelve years at a hundred percent.

                    And the especially-aggravated robbery, another A
             felony – fifteen to twenty-five years with no mitigation, with
             several enhancement factors that apply, that is also twenty-
             five years.

                     To say that he is not a dangerous offender is a joke. It
             really is. Just looking at the facts of this case – just by itself –
             discounting his other stuff going on, he‘s a dangerous
             offender. I don‘t know how anyone could look at it and say
             it‘s not. The circumstances surrounded the commission of
             this offense are particularly aggravated. He tried to lie to get
             out of trouble. He took the victim‘s car and went to Tunica to
             gamble. Talk about heartless.

                     He basically tortured one of the victims by shooting at
             her while she‘s trying to crawl under the bed to escape and
             kills the other victim.

                                            - 47 -
                    It‘s extremely violent. To say it‘s not – to run these
             concurrent would be an insult to the victims in this case.
             Basically it would be saying, ―Well, you can kill someone
             and attempt to kill someone – or rob them – but we‘re going
             to give you three for the price of one,‖ or whatever. It just is
             nonsense. Looking at the facts of this case, it is extremely
             aggravated, and I think the aggregate length of the sentences
             – consecutive sentences – reasonably relates to the offense for
             which the defendant stands convicted.

                    So, you add twenty-five and twenty-five, that‘s fifty,
             plus twelve is sixty-two years.

       Appellate review of the length, range, or manner of service of a sentence imposed
by the trial court are to be reviewed under an abuse of discretion standard with a
presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012); see
also State v. Pollard, 432 S.W.3d 851, 859 (Tenn. 2013) (applying the standard to
consecutive sentencing); State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012)
(applying the standard to alternative sentencing). In conducting its review, this court
considers the following factors: (1) the evidence, if any, received at the trial and the
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 involved; (5) evidence and information offered by the parties on enhancement
and mitigating factors; (6) any statistical information provided by the administrative
office of the courts as to sentencing practices for similar offenses in Tennessee; (7) any
statement by the appellant in his own behalf; and (8) the potential for rehabilitation or
treatment. See Tenn. Code Ann. '' 40-35-102, -103, -210; see also Bise, 380 S.W.3d at
697-98. The burden is on the appellant to demonstrate the impropriety of his sentence(s).
See Tenn. Code Ann. ' 40-35-401, Sentencing Comm‘n Cmts.

      In determining a specific sentence within a range of punishment, the trial court
should consider, but is not bound by, the following advisory guidelines:

                    (1) The minimum sentence within the range of
             punishment is the sentence that should be imposed, because
             the general assembly set the minimum length of sentence for
             each felony class to reflect the relative seriousness of each
             criminal offense in the felony classifications; and

                    (2) The sentence length within the range should be
             adjusted, as appropriate, by the presence or absence of
             mitigating and enhancement factors set out in '' 40-35-113
                                           - 48 -
               and 40-35-114.

Tenn. Code Ann. ' 40-35-210(c).

       Although the trial court should consider enhancement and mitigating factors, the
statutory enhancement factors are advisory only. See Tenn. Code Ann. ' 40-35-114; see
also Bise, 380 S.W.3d at 701; State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008). Our
supreme court has stated that ―a trial court‘s weighing of various mitigating and
enhancement factors [is] left to the trial court‘s sound discretion.‖ Carter, 254 S.W.3d at
345. In other words, ―the trial court is free to select any sentence within the applicable
range so long as the length of the sentence is ‗consistent with the purposes and principles
of [the Sentencing Act].‘‖ Id. at 343. Appellate courts are ―bound by a trial court‘s
decision as to the length of the sentence imposed so long as it is imposed in a manner
consistent with the purposes and principles set out in sections -102 and -103 of the
Sentencing Act.‖ Id. at 346.

       The Appellant contends that the trial court erred by imposing the maximum
sentence for his convictions and ordering the sentences to be served consecutively. The
Appellant does not dispute the application of any of the enhancement factors found by the
court or the finding that he was a dangerous offender. Instead, the Appellant contends
that the trial court imposed the maximum sentences because it thought that the jury
should have found the Appellant guilty of first degree murder, which the Appellant
argues violated Blakely v. Washington, 542 U.S. 296 (2004).6

       The trial court specifically noted that although the State may not have proven first
degree murder beyond a reasonable doubt, the offense was proven by a preponderance of
the evidence. The court did not, however, impose the maximum sentences and
consecutive sentencing solely on this basis. Instead, the court thoroughly reviewed the
enhancement and mitigating factors as well as the factors for consecutive sentencing. The
Appellant acknowledges that the court sentenced the Appellant within the appropriate
range. We conclude that the trial court did not abuse its discretion.

                                        III. Conclusion

      In sum, we conclude that the trial court‘s error in instructing the jury entitles the
Appellant to a reversal of his convictions and a new trial.

                                                     _________________________________
                                                     NORMA MCGEE OGLE, JUDGE
6
  In Blakely, the Supreme Court explained that the ―‗statutory maximum‘ for Apprendi[v. New Jersey,
530 U.S. 466 (2000)] purposes is the maximum sentence a judge may impose solely on the basis of the
facts reflected in the jury verdict or admitted by the defendant.‖ Blakely, 542 U.S. at 303.
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