        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT JACKSON

                      SEPTEMBE R SESSION, 1998          FILED
                                                     January 8, 1999
STATE OF TENNESSEE,         )   C.C.A. NO. 02C01-9707-CR-00286
                            )                      Cecil Crowson, Jr.
      Appellee,             )                           Appellate C ourt Clerk

                            )
                            )   SHELBY COUNTY
VS.                         )
                            )   HON. ARTHUR T. BENNETT
CRAIG BRYANT,               )   JUDGE
                            )
      Appe llant.           )   (Attempted Murder &
                            )   Aggra vated A ssault)


                ON APPEAL FROM THE JUDGMENT OF THE
                 CRIMINAL COURT OF SHELBY COUNTY


FOR THE APPELLANT:              FOR THE APPELLEE:

A.C. WHARTON                    JOHN KNOX WALKUP
Public Defender                 Attorney General and Reporter

WA LKER GW INN                  DOUGLAS D. HIMES
Assistant Public Defender       Assistant Attorney General
201 Poplar Avenue               425 Fifth Avenu e North
Memphis, TN 38103               Nashville, TN 37243-0493

                                WILLIAM GIBBONS
                                District Attorney General

                                LEE V. COFFEE
                                Assistant District Attorney General
                                Criminal Justice Complex, Suite 301
                                201 Poplar Avenue
                                Memphis, TN 38103



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                     OPINION
         The Defendant, Craig Bryant, appeals as of right from a Shelb y Coun ty jury

verdict convicting him of ag gravated assau lt and attempted second degree

murder.        The trial court se ntence d him a s a Ran ge I stand ard offen der to

consecu tive sentences of three years for aggravated assault and ten years for

attempted second degree murd er. Th e Def enda nt now appe als pu rsuan t to Ru le

3 of the Tennessee Rules of Appellate Pro cedure. W e affirm the judgment of the

trial court.



         The Defen dant pre sents six iss ues on appea l: (1) whether the criminal

attempt statute is applic able to the crime of second degree murder; (2) whether

the trial court erred by failing to charge the jury that the Defendant could not be

found guilty of attempted second degree murder unless he acted with the intent

to kill Casondra B ryant; (3) whether the evidence is sufficient to support the

Defe ndan t’s conviction for aggravated assault on Jenitra Stone; (4) whether the

trial court erred by instructing the jury on the doctrine of transferred intent; (5)

whether the trial court erred by allowing Stacy Muncey, a witness for the

prosecution, to testify about statements made to her by Casondra Bryant

concerning the De fenda nt’s previous abusive behavior towards Bryant; and (6)

whether the trial court erred by ordering the Defendan t’s sentences for

aggravated assault and a ttempted se cond deg ree murd er to run conse cutively.1



         The Defendant and Casondra Bryant, one of the two victims in this case,

were married in 1993 in Memphis, Tennessee. The Defendant began working

1
    For purposes of clarity and brevity, we have consolidated some of the issues presented.

                                              -2-
as a truck driver for M.S. Carriers in 1994, and his wife bega n work ing as an ad ult

entertainer at Tiffany’s C abaret in 1996. Bryant2 testified that d uring the month

of Marc h in 1996, she moved in with a friend for about two weeks and also took

up reside nce a t The Mem phis Inn, a hotel. Sh e stated th at she w as “[t]rying to

get away fr om [th e Def enda nt]” bec ause he wa s “stalk ing” her and had been

abusing her for some time. She testified that she was forc ed to move

appro ximate ly once a week during March in order to avoid the Defendant. She

reported that the Defen dant follow ed her e verywhe re and w as alwa ys able to

discove r where s he mo ved, des pite her effo rts at secre cy.



       At trial, Bryant recalled several encounters with the Defendant leading up

to the incident which gave rise to the Defendant’s present convictions. The first

encounter that Bryant reported occurred on March 11, 1996 at approximately

3:30 a.m. when she arrived at The Memphis Inn parking lot after work. She

testified that as she wa s getting out of her c ar, she saw a man running toward her

with something in his hand. Realizing that it was the Defendant, she got back

into the ca r, but, ac cordin g to her testimony, the D efendant “bu sted [her]

window ,” jumped in her car, and struck her on the back with a crowbar. He then

took the ca r and d rove it to North Carolina, where his parents lived. Following

this incident, Bryant filed for divorce from the Defendant on March 15, 1996 and

reques ted a res training ord er again st him.



       Bryant also testified that on April 1, 1996, around one o’clock in the

afternoon, she was sitting in her car in the parking lot of MegaMarket, waiting for



2
  For the remainder of this opinion, Casondra Bryant will be referred to as “Bryant,” and
Craig Bryant will be referred to as “the Defendant.”

                                            -3-
a friend to run an erran d inside th e store.    She testified that the Defendant

appeared and got into her locked car, using a second set of keys to the car. She

stated that the Defendant pointed a gun at her and said, “This is the on ly way I

can talk to you.” She reported that she then fled the car and ran into the store for

help.



        According to Bryant, her next confrontation with the Defendant took place

on April 3, 1996. Between noon and two o’c lock in the afternoon, Bryant and a

friend, Stacy Muncey, were entering Tiffany’s Caberet to eat lunch at a buffet

inside the club. Bryant testified that wh en she an d Munce y got out of the car, the

Defendant pulled into the parking lot behind them. Bryant stated that she yelled,

“Stacy, run,” and the two girls ran inside the club to call the police.



        Stacy Muncey verified this story. Muncey also testified that she helped

Bryant move a number of times to get away from the Defendant and that the

Defendant contin ually called her to d eterm ine Bry ant’s whereabouts. She further

testified that Brya nt was a fraid of the D efenda nt and “fe ared for h er life.” In

addition, she reported seeing a large bruise on Bryant’s back after the incident

on March 11, 1996, wh en Bryant claim ed to have be en hit with a crowb ar.



        The incident from which the Defendant’s present convictions arose

occurred on April 4, 1996. Bryant reported that five minutes after arriving at her

hotel room that afternoon, she received a telephone call from the Defendant, who

told her that he wanted to talk to her. She stated that she had not given the

Defendant the name of her hotel or her phone number. Upon realizing that the

call was from the Defendant, she immediately hung up the phone and called

                                         -4-
Muncey, who advised her to leave the hotel room. Bryant quickly showered and

left approximately fifteen minutes later, fearful that the Defendant would come to

the hotel.     She then got into her car and d rove to a nea rby Mc Don ald’s

restaura nt.



       Bryant described the incident as follows: While ordering food at the

speaker for the “drive-thru” line at McDonald’s, she heard a noise. When she

turned, she realized that the Defendant was in her car holding a gun.3 The

Defendant told her if she said anything, he “would b low [her] f__ king hea d off.”

A police officer who interviewed Bryant after the incident testified that Bryant

reported to him that the Defendant also to ld her “if he couldn’t have her nobody

else could.” In respon se, Bryant drove forward to avoid the drive-thru speaker

blocking her do or, unlo cked her do or, and turned aroun d to retr ieve her

pocketbook. During the time that she was trying to get out of the car, the

Defendant was grabb ing her, pulling her hair, and striking her with his fist. When

she grabbed her pocke tbook, the Defen dant sh ot her an d then b egan to try to pull

her out of the car while she held onto the steering wheel. She later recounted

that she de veloped a bruise o n her ch est and shoulde r from trying to hold on to

the wheel. At this point, someone said, “Police,” and the Defendant ran, dropping

the keys to the car. B ryant then put the ca r into gear a nd drove onto the street.

She spotted a police officer, stopped the car on the median, and got out. Other

witnesses presen t at McD onald’s o n April 4, 19 96 ess entially verified B ryant’s

version of the shooting. However, no one actually saw who fired the gun.




3
   Bryant testified that she believed the Defendant got into her locked vehicle by using
an extra set of car keys which he kept for the vehicle.

                                            -5-
       Jenitra Stone, the seco nd victim in this case, was working as a cashier on

April 4, 1996 at the drive-thru line at McDonald’s. She testified that she saw a

car, later identified as that be longing to Bryant, pull up to the window. Inside the

car, she saw a woman with blood all over her face screaming for help as a man

in the car beat her, hit her, and pulled her hair, parts of her body and clothes. At

trial, Jenitra identified the woman as Bryant and the man as the Defendant. She

stated that the Defe ndan t appe ared to be trying to pull B ryant o ut of the car wh ile

Bryant, who was holding onto the driver’s-side door, appeared to be trying to get

out of the car. Upon seeing this strugg le, Jenitra testified that she turned to get

her manager, and as she did so, she heard a loud noise and the shattering of

glass, an d she d ucked . It was later d etermin ed that w hen Br yant was shot, the

bullet entered the left side of Bryant’s head and exited her head above her e ye

near her left eyebrow, about an inch away from its place of entrance. The bullet

then traveled o utside B ryant’s car, sha ttered th e drive -thru w indow , and h it

Stone ’s cap, knocking it off of her head.         Stone was treated for cuts and

abrasio ns on h er face ca used b y glass from the shatte red wind ow.



       At trial, Stone stated, “[A]t the time, I didn’t know that the cap was knocked

off my head. I was more a fraid whe n the glas s shattere d.” She further testified,

“I was shocked. At the time I didn’t really think anything. I was still wondering

what was going on.” On cross-examination, in response to whether she was

afraid at the tim e of the shooting, she stated she was not afraid because she

“didn’t know what was going on.” However, on redirect, Stone admitted that she

was afra id when she he ard the b ullet com e throug h the wind ow.




                                          -6-
        After the shooting, B ryant was taken to the emerg ency room at the

Regional Medica l Center fo r treatme nt. She was released from the emergency

room on the sam e night. 4 A custodian of medical records at the hospital testified

at trial that Bryant’s records indicated she was treated in the emergency room by

a surgery resident for a gunshot wound to the left eye. Records from follow-up

visits to the hospital indicated that while Bryant’s vision in her right eye was

20/20, vision in her left eye deteriorated to 20/50 by February 13, 1997.



        Stacy Muncey picked up Bryant from the hospital to take he r home . She

and Bryan t each testified that as they we re leav ing the hosp ital, they saw the

Defendant in the w aiting a rea. T hey re ported that wh en the y screa med for help

from the security guard, the Defendant ran.



        Officers Ronnie Elrod and Shannon Bowen of the Memphis Police

Department were on patrol on the evening of April 8, 1996. They each testified

that during their shift, they noticed a white Buick Regal bearing North Carolina

tags5 pull out of the parking lot of a hotel with the headlights off. They stopped

the driver of the car for driving withou t lights and asked the driver, later

determined to be the Defendant, for identification. When the Defendant did not

produce identification, the officers asked his name and date of birth. The officers

testified the Defendant told them that his name was Eric Bryant and that his da te

of birth was Feb ruary 14, 1968.6 The officers then escorted the Defendant to the



4
 Hospital records indicated that Bryant was scheduled for surgery at the Regional Medical
Center, but she was never admitted to the hospital.
5
    The car belonged to the Defendant’s mother.
6
    Eric Bryant is the Defendant’s brother.

                                              -7-
back of their police vehicle an d ran a c heck o n him a nd the ca r. The rep ort,

which was bro adcas t on the po lice radio w ithin hearin g distanc e of the

Defen dant, who remained in the back of the police vehicle, informed the officers

that the car was the suspect ve hicle in a recent shooting. The dispatcher also

reported that the suspect involved in the incident was a man by the name of Cra ig

Bryant. The officers testified that upon hearing this information, the Defendant

admitted that he was Craig Bryant and provided a different date of birth, which

turned out to be his true date of birth. The officers placed the Defendant under

arrest. The officers then searched the Defendant’s vehicle and found a loaded

.380 semi-automatic chrome pistol under the driver’s seat, as well as “three live

rounds laying in the front floorboard” and “one live round in [the Defendant’s]

pocke t.”



       At trial, De lphia Marlow Bryant, the Defendant’s mother, testified that she

owned the gun used to shoot Casondra Bryant. She recalled that she loaned the

gun to Bryant in 1994 because Bryant wanted to protect herself while her

husband was frequently on the road driving trucks. She stated that no one was

present at the time she ga ve the gu n to Bryant and that no one was aware of the

exchange.



       The Defe ndan t also testified at trial. He stated tha t he neve r hit his wife

with a crowbar, nor had he ever hit his wife, although he admitted that he did take

her car and drive it to North Carolina. He explained that he had access to the car

because he maintained a second set of keys to the vehicle. He claimed that the

car, as well as the rest of their possessions, belon ged to both h im and his wife;

and he claimed that they each made payments on the vehicle. He explained that

                                         -8-
his wife’s name alone appeared on the car title because they had agreed to buy

their next vehicle in his nam e. Furthermore, he testified that he never pulled a

gun on Bryant in the MegaMarket parking lot; in fact, he claimed not to have even

been in the city of Mem phis on A pril 1, 1996 , the date of the alleg ed incide nt. In

addition, appa rently to discre dit his wife’s testimony, the Defendant testified that

his wife reg ularly used drugs d uring the course of their ma rriage.



      With regard to the day of the shooting, the Defendant testified that he and

his wife had arranged to meet at their storage unit. He maintained that he was

to page his wife on her pager when he was ready to meet. The Defendant stated

that before paging her, he drove to Sam’s Wholesale Warehouse, located behind

McDonald’s, to run an errand fo r a friend. H e testified that w hile in th e Sam ’s

parking lot, he happened to notice Bryan t’s car in the McDonald’s drive-thru line.

According to the Defendant, he walked to her car, tapped twice on the window,

opened the doo r, which w as not loc ked, an d got insid e. He testified that they

then spoke amicably and agreed to go to their storage unit together after she

received her food order.



       Howeve r, the Defe ndant c laimed that instea d of waiting for her food, Bryant

pulled forwar d, told h im she w ould g et food later, an d sud denly slammed on her

brakes when th e car sat b eside the drive-thru w indow. The Defendant testified

that his head hit the windshield, and when he turned to look at his wife, she was

holding a gun pointed at him. He testified that she stated, “Get out,” and he

asked her, “Ha ve you los t your min d?”        He reported that as he ask ed this

question, he made a fist to knock the gun away from him and hit the gun, which




                                          -9-
      angled up towards the roof of the car and fired a shot. 7 He testified that Bryant

      then told him, “Baby, I think I’m shot,” and he began to scan her body for blood.

      Desp ite testimony from witnesses present at McDonald’s at the time of the

      shooting that “there was quite a bit of blood” a nd that B ryant was “covered with

      blood,” the Defendant testified that he notice d only o ne dro p of blo od on his wife ’s

      left shoulder. He state d that he th en beg an to try to he lp her into the pa ssen ger’s

      seat so that he could drive her to the ho spital. However, she became hysterical

      and began screaming, “Just leave,” so he got out of the c ar, taking th e gun w ith

      him so that sh e would not shoot he rself or him, and went back to his car. He

      denied ever hitting Bryant while in the drive-thru line. He also denied going to the

      Regional Medica l Center la ter that eve ning, claiming instead that he w ent to

      anoth er Me mph is area hospital to look for his wife but left when he wa s una ble

      to find her.



              The Defenda nt also presen ted a different version of his arrest.                     He

      admitted that he was not carrying identification on the evening of April 8, 1996,

      but he denied ever having told the police that his name was Eric. In fact, he

      recalled that a p olice officer asked, “You’re Eric Bryant?” and when he denied

      this, the officer “kept saying, ‘Ye s, you are .’” In addition, the Defendant insisted

      that the officers did not find the pistol used in Bryant’s shooting on the floorboa rd

      under his seat, but rather in a briefcase in the trunk of his car. He claimed that

      the gun wa s not load ed. Finally, he reported that the headlights on his car were

      not off at the time he was stopped.


       7
           The Defendant testified that he was unsure what happened after he “hit the gun
upwards”     or how the bullet hit his wife in the head. At one point, he stated, “[w]hen the gun
             hit the roof of the car, that’s when I heard the shot go off. So simultaneously
             whenever this gun hit the roof of the car, at some point in time between the roof of
             the car it simultaneously went off hitting her in the side of the head.”

                                                   -10-
                 I. ATTEMPTED SECOND DEGREE MURDER

                        A. Validity of the Crime Charged

       The Defendant first contends that the Tennessee criminal attempt statute,

codified at Tennessee Code Annotated § 39-12-101, should not apply to the

crim e of second degree murder, codified at § 39-13-210. He points to the fact

that the attempt statute requires one to act with a specific intent to cause the

result of the crime attempted; stated differently, he argues that an attem pt is

mere ly a failure to do what one intended. He argues that this statute therefore

may not be reco nciled with the seco nd deg ree mu rder statu te because intent to

kill is not an element of the offense of second degree murder; rather, the second

degree murder statute simply requires a knowing killing.



       As a preliminary matter, w e note fro m a rea ding of the record th at the

Defendant has failed to include this issue in his motion for new trial. T he State

contends that this issu e is therefo re waived .       However, “[i]ssue s whic h, if

meritorious, would mandate a dismissal may still be considered, even though not

listed in the motion for a n ew trial.” State v. Sowder, 826 S.W.2d 924, 926 (Tenn.

Crim. App. 19 91); see also Tenn . R. App. P. 3(e). Beca use we believe tha t a

successful disposition of this argument would result in dismissal of the charge

against the Defendant for attempted second degree murder, rather than a new

trial, we will proc eed to a ddress this issue o n the m erits.




                                          -11-
       Our legislature has defined second degree murder as “[a] knowing killing

of another.” Tenn. Co de Ann. § 3 9-13-210(a )(1).8 Knowing, in turn, is defined

as referring to

       a person who ac ts knowingly with res pect to the condu ct or to
       circumstances surrounding the condu ct when the p erson is awa re
       of the natur e of the co nduct o r that the cir cums tances exist. A
       person acts kn owing ly with resp ect to a result o f the pe rson’s
       conduct when the person is awa re that th e con duct is reaso nably
       certain to c ause th e result. Id. § 39-11 -302(b).

       “A person commits an attempted second-degree murder when he

know ingly acts with th e intent to kill his targ et and his actio ns co nstitute ‘a

substantial step toward the com mission’ of the m urder.” State v. Frederick R.

Porter, No. 03C01-9606 -CC-00238, 199 7 WL 661419, at *3 (Tenn . Crim. A pp.,

Knoxville, Oct. 24, 1 997) (citing Tenn. Code Ann. 39-12-101(a)(3)). “Conduct

does not cons titute a sub stantial step . . . unless the person’s entire course of

action is corrobo rative of the in tent to com mit the offe nse.” Tenn . Code Ann. §

39-12-1 01(b).




       The primary case upon which the Defendant relies in arguing that the crime

of attemp ted seco nd deg ree mu rder doe s not exist in Tennessee is State v.

Kimbrough, 924 S.W.2d 888 (Tenn. 1996).                 W e believe th at Kimbrough is

disting uisha ble from the present case. In Kimbrough, the Tennessee Supreme

Court concluded that “one cannot intend to accomplish the unintended” and

therefore determined that “the offense of attempted felony-murder does not exist

in Tennes see.” Id. at 892. H oweve r, unlike the crime o f felony-murder, which




8
  Tennessee Code Annotated § 39-13-210(a)(2) also presents a second type of second
degree murder which is not at issue in the case at bar. Tenn. Code Ann. § 39-13-210(a)(2).

                                            -12-
requires no culpa ble me ntal state, T enn. Code Ann . § 39-13-202 (a)(2); 9 the crime

of second degree murder requires that one act knowingly. One commits second

degree murd er if one know ingly tries to kill another and succeeds in doing so.

Howeve r, if one d oes n ot suc ceed , and h is or her actions constitute a substantial

step toward the com mission of the killing, he or she is g uilty of attempted second

degree murde r. We conc lude th at Te nnes see’s attem pt statu te is applicab le to

the offense of se cond deg ree murd er.



        In the case at bar, the State pre sented evide nce from w hich the jury could

conclude that the Defen dant entered Casond ra Bryant’s car carrying a gun and

that he subsequently shot his wife in the head. Furth ermo re, we b elieve th at it

was well within the purview of the jury to c onclud e that the D efenda nt acted w ith

the awareness that this conduct was reaso nably c ertain to cause his wife’s death.

Howeve r, because his wife was not killed, bu t rather seriously injured, we believe

that the jury could reasonably have determined that the Defenda nt is guilty of

attempted s econd de gree mu rder.



                                     B. Jury Instruction

        The Defendant also argues that the trial court erred by failing to charge the

jury that the Defendant could not be found guilty of attempted second degree

murde r unless h e acted with an inte nt to kill Cas ondra Bryan t. W e will address

the issue even though Defendant has failed to include this issue in his motion for

new trial. The jury was instructed, pursuant to T.P.I. - Crim. 4.01 (4th ed. 1995 ),

that the de fenda nt mu st have “intend ed to c omm it the sp ecific offense o f Murder




9
    Except, of course, the intent to commit the underlying felony.

                                             -13-
Second Degree” and “d id some act intending to complete a course of action or

cause a result that would constitute Murder Second Degree...” This was a proper

instruction. See State v. Eldridge, 951 S.W .2d 775, 779 (Tenn. Crim . App. 1997 ).

This issu e is withou t merit.



                           II. AGGRAVATED ASSAULT

                           A. Sufficiency of the Evidence

       The Defe ndan t next co ntend s that th e evide nce is insuffic ient to u phold his

conviction for aggravated assault against Jenitra Stone. He argues that he had

no intent to assault Stone or to put her in fear of imminent bodily injury, nor were

there any “circum stance s from w hich it can b e inferred that he was aware that

any condu ct on his p art would be reas onably c ertain to put Stone in fear of

imminen t bodily injury.” He suggests that the only person whom he could ha ve

been found guilty of intending to harm is his wife, Casondra Bryant. Thus, he

argues that he could be found guilty of aggravated assault aga inst Sto ne on ly

through the doctrine of transferred intent. He contends that the doctrine of

transferred intent is inapplicable to assault cases in Tennessee.



       Tennessee Rule of App ellate Procedu re 13(e) presc ribes that “[findings]

of guilt in criminal actions wh ether by the trial court or jury shall be set aside if the

evidence is insufficient to support the finding by the trier of fact beyond a

reaso nable doubt.” T enn. R . App. P. 1 3(e). “Qu estions c oncern ing the cre dibility

of the witn esse s, the w eight a nd valu e to be given th e evide nce a s well a s all

factual issues raised by the e vidence, are reso lved by the trier o f fact, no t this

Court.” State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987) (citing

State v. Grace, 493 S.W .2d 474, 476 (Tenn. 197 3)). Nor may this Court re-weigh

                                          -14-
or re-evalua te the evide nce. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992)

(citing State v. Cabbage, 571 S.W .2d 832, 836 (Tenn. 197 8)).



       A jury verdict approved by the trial judge accredits the State’s witnesses

and resolve s all con flicts in favor of the State. State v. Williams, 657 S.W.2d 405,

410 (Tenn. 1983). On appeal, the State is entitled to the stron gest legitim ate

view of the evidence and all inferences therefrom. State v. Tug gle, 639 S.W.2d

913, 914 (Tenn. 1982) (citing Cabbage, 571 S.W.2d at 835). Because a verdict

of guilt remo ves the presu mptio n of inn ocen ce an d repla ces it with a presumption

of guilt, the accused h as the burde n in this Court of illustrating why the evidence

is insufficient to support the verdict returned by the trier of fa ct. McBe e v.State ,

372 S.W .2d 173 , 176 (T enn. 19 63); see also Evans, 838 S.W .2d at 191 (citing

Grace, 493 S.W .2d at 476 ); Tug gle, 639 S.W.2d at 914.



       In the pre sent c ase, th e Def enda nt was charg ed with “intentio nally

comm it[ting] an assa ult on Jen itra D. Ston e . . . by use o f a dead ly weapo n . . .

caus [ing her] to reasonably fear imminent bodily injury.” Thus, the following

portion of the Te nness ee ass ault statute is at issue here: “A p erson c omm its

assa ult who . . . [i]ntentionally or knowingly causes another to reasonably fear

imminent bodily injury . . . .” Id. § 39-13-101(a)(2). In addition, the following

portion of our a ggrav ated a ssau lt statute is at issue: “A person comm its

aggravated assault who . . . [i]ntentionally or knowingly commits an assault as

defined in § 39-13-101 and . . . [u]ses or displays a de adly weapo n . . . .” Id. §

39-13-1 02(a)(1) (B).




                                         -15-
      In making the argument that his conviction for aggravated assa ult ma y only

be upheld by a finding of transferred intent, the Defendant fails to note the mens

era of “know ing” in the s tatutes cite d above . The ag gravated assau lt statute

plainly states that a Defendant may be found guilty of the crime of aggravated

assa ult if he acts “intentionally or know ingly.” Id. (emphasis added). Because a

conviction for aggravated assault does not require a finding of specific intent, we

need not address the question o f wheth er the d octrine of trans ferred intent is

applic able to the crim e of agg ravated a ssault. To sustain an aggra vated assa ult

conviction, it is enough for a jury to find that a defendant acted knowingly. As

previously stated,


      a person acts knowingly with res pect to the condu ct or to
      circumstances surrounding the condu ct when the p erson is awa re
      of the nature of the conduct or that the circumstances exist. A
      person acts knowingly with respect to a




                                        -16-
result of the person’s conduct when the perso n is aw are tha t the co nduc t is
reason ably certa in to caus e the res ult. Id. § 39-11-30 2(b).


       In this case, the State presented evidence from which the jury could infer

that St one re ason ably fea red im mine nt bod ily injury at the time of the shooting.

Stone herse lf testified that sh e was “shoc ked” b y the inc ident a nd afra id when

she heard the bullet come through the w indow. More over, the State presented

evidence from which the jury could infer that the Defendant knowingly caused

Stone to fear imminent bodily injury. The State presented evidence that the

Defendant entered his wife’s car with a loaded gun, pointe d the g un at h is wife,

and fired the gun while the car was beside the drive-thru window of a restau rant.

W e find this evidence sufficient to support the conclusion that the Defendant

acted with the awareness that his conduct was reasonably certain to cause

others, including Stone, th e cash ier at the drive-thru window, to fear imminent

bodily injury.



                              B. Jury Instruction

       The Defendant next argues that the judge committed plain error by

instructing the jury on the doctrine of transferre d intent. Again , we no te that th is

issue was not raised in the Defendant’s moti on for new trial, thus waiving the

issue on appeal, see Tenn. R. App. P. 3(e); but we will briefly address the

Defendant’s argument. The contested instruction is as follows:

              Under a doctrine kno wn as “transferre d intent” a crime may be
       aggravated assault when the person assaulted could have been
       killed and wa s not the one whom the accused intended to kill or
       injure such as where one shooting [sic] at another and kills or
       assaults a bystander or third person coming within range.
              Howeve r, before the jury may find the defendant guilty of the
       offense of agg ravate d ass ault or any included class of assault, you
       must be satisfied beyond a reasonable doubt that the assault of



                                         -17-
       Jenitra D. Stone was aggravated assault or any included class of
       assau lt and was comm itted by the d efenda nt.

       Jury instructions on the doctrine of transferred intent, such as that above,

are app ropriate in case s involvin g crim es in w hich sp ecific inte nt is an elem ent.

As we ha ve alre ady co nclud ed, the crime of agg ravate d ass ault does not require

spec ific intent. Although in some cases, specific intent may be an element of the

crime , the D efend ant in the present case must only have acted knowingly. For

this reaso n, we find th e forego ing instruc tion unne cessar y.



       W e conclude, without addressing the merits of the Defendant’s argument

concerning transferred intent, that any error possibly caused by this instruction

was clearly harmless error. The instruction is worded in very general terms and

does not require that the jury utilize the doctrine of transferred intent to convict

the Defendant of aggravated assault, allowing the jury to convict based upon the

statutory definition of aggravated assault, which requires only that the Defendant

act know ingly.



       Moreover, had the jury relied upon the foregoing instruction to convict the

Defendant of aggravated assault, the result w ould h ave be en no differen t than if

the jury simply relied upon our aggrava ted assault statute to convict. The

transferred intent instruction in this case required the jury to find specific inte nt,

which is a greater state of mental culpability than the mens era of knowing. Thus,

if the jury relied on the transferred intent instruction, the jury necessarily must

have found that the Defendant acted at least knowingly. Th is issue is therefore

without m erit.




                                          -18-
              III. HEARSAY OBJEC TION TO TRIAL TES TIMONY

       The Defen dant arg ues tha t the trial court e rred in ad mitting, over objections

by defense counsel, certain testimony by Stacy Muncey. Specifically, Muncey

testified that Cas ondra B ryant told he r “that Cra ig was sta lking her, that she

needed to hide, that he kept finding her an d calling [her hotel] room .” She stated

that Cason dra “feare d for her life.” She also testified tha t Casondra told her the

Defendant “hit her with a crowba r,” causing a “large br uise [to form ] on her b ack.”

The Defendant contends that this is highly prejudicial hearsay testimony which

shou ld have been exclud ed at tria l.



       Although it is somewhat unclear from the record, it appears that the trial

judge allowed a t least part o f this testimo ny unde r the “excited utterance”

exception to the hea rsay rule. See Tenn. R. Evid. 803(2). From a reading of the

record, we agree with the D efendant tha t this testimony app ears to be hearsa y.

Furthermore, it appears that the record do es not supp ort the State’s contention

that the testimony fits into one or more of the exce ptions to th e hears ay rule. See

gene rally Ten n. R. E vid. 803 . How ever, in light of other testimony presented at

trial and the en tire reco rd befo re us, in cludin g Cas ondra Bryan t’s testimony to the

same effect as tha t of Mun cey, we are sa tisfied th at adm ission of Mun cey’s

testimony was harmless error. Tenn. R. App. P. 36(b); Tenn. R. Crim. P. 52(a ).



                                  IV. SENTENCING

       Finally, the Defend ant argues tha t the trial court imprope rly ordered his

sentences for attempted second degree murder and aggravated assault to be

served consecutively.      The trial court ordered consecutive sentencing after

determ ining that th e Defe ndant is a dange rous offe nder.

                                          -19-
      When an accused challenges the length, range, o r mann er of service of a

sentence, this Court has a duty to conduct a de novo review of the sen tence w ith

a presumption that the determinations made by the trial court are correct. Tenn.

Code Ann. § 40-35-401(d). This presumption is ?conditioned u pon the affirma tive

showing in the record that the trial court considered the sentencing principles and

all relevant facts and circumstanc es.” State v. Ashby, 823 S.W.2d 166, 169

(Tenn. 19 91).



      In conducting a de novo review of a senten ce, this court mu st consider: (a)

the evidence, if any, received at the trial and sentencing hearing; (b) the

presentence report; (c) the principles of senten cing and argum ents as to

sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) any statutory mitigating or enhancement factors; (f) any statement

made by the defendant regarding sentencing; and (g) the potential or lack of

potential for rehab ilitation or treatm ent. State v. S mith, 735 S.W.2d 859, 863

(Tenn . Crim. A pp. 198 7); Ten n. Cod e Ann. §§ 40-35-102, -103, -210.



      If our review reflects that the trial court followed the statutory sentencing

procedure, that the court imposed a lawful sentence after having given due

consideration and proper weight to the factors and principles set out under the

sentencing law, and that the trial court’s findings of fact are adequately supported

by the record, then we may not modify the sentence even if we would have

preferred a different re sult. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim.

App. 1991 ).




                                       -20-
      Tennessee Code A nnotated § 4 0-35-115(b )(5) provides that a trial cou rt

“may order sentences to run consecutively if the court finds by a preponderance

of the evidence that . . . [t]he defendant is a dangerous offender whose behavior

indicates little or no regard for human life, and no hesitation about committing a

crime in which the risk to human life is high . . . .” Tenn. Code Ann. § 40-35-

115(b)(4). This rule, which is based upon cases decided by the Tennessee

Supreme Court prior to its codification, see, e.g., State v. Wilkerson, 905 S.W.2d

933, 938 (Ten n. 1995), has been expanded through case law. In Gray v. S tate,

538 S.W.2d 391 (Tenn. 1976), our supreme court determined that “[t]he decision

to impose consecutive sentences when crimes inhere ntly dangerous are involved

shou ld be based upon the presence of aggravating circumstances and not merely

on the fact that two or more da ngerous c rimes were comm itted.” Id. At 393. In

addition, the sentencing terms imposed must be “reasonably related to the

severity of the offenses committed and [must be] necessary in order to protect

the public from further crim inal acts by the offen der.” Wilkerson, 905 S.W.2d at

938. The pu rpose o f consec utive sente ncing is to “p rotect soc iety from those

who are unwilling to lead a prod uctive life and re sort to c rimina l activity in

furtherance of their anti-societal lifestyle.” Gray, 538 S.W.2d at 393. How ever,

our supreme court has also recognized that “‘sentencing is ines capably a human

process that neithe r can no r should b e reduc ed to a set of fixed and mechanical

rules.’” Wilkerson, 905 S.W.2d at 938 (citing 3 American Bar Association

Standards for Criminal Justice, Sente ncing Alternatives and Procedures 18.11

(2 ed. 1986)).



      In the case before us, the trial judge made the following observations at the

sentencing hearing:

                                       -21-
                 The Court notices in this c ase the bac kground. A pparently,
        . . . [Casondra Bryant] moved on several occasions trying to hide out
        so [the Defe ndant] wouldn’t locate her be cause ap parently [their]
        altercations would result in violent activity. And th e defe ndan t would
        find her the several times that she moved.
        ....
                 And so the C ourt has to take tha t into consideration and th is
        continuo us stalking when s he was trying to stay a way from him. . .
        .
        ....
                 The defendant has a previous history of criminal convictions
        or criminal behavior in addition to that necessary to establish the
        range. The defendant did have some previous criminal offenses
        and some assaults that were either nol-prossed [sic] or dismissed.
        And the Court has to con sider th e prior c rimina l beha vior in this
        situation.
        ....
                 Looking at this defendan t over the period of tim e that we have
        facts conc erning the de fenda nt, the d efend ant de nies th at he d id
        anything that was dangerous or would be a dangerous offender. But
        according to the vic tim, he did se veral things. In fact, she was
        injured and had to get treatment for it. So that’s a dangerous
        offender.
                 If you believe the victim that . . . she was struck with a tire tool
        on that one occasion and a baseball bat on anoth er, that’s certain ly
        a dangerous person in my opinion. And a perso n, also , who p ulls
        up a gun and fires it out in a public a rea trying to hurt the victim,
        that’s a dangero us person . The Cou rt will allow that to apply in
        regard to conse cutive sen tencing. . . .
                 [T]he Court rejects the fact . . . that [the defense] is saying
        that this is a single c ourse o f condu ct that led to th e injury. It was a
        single course of conduct. Bu t when you fire a gun th at con duct is
        not restricted to one or tw o individua ls. A bullet is not restricted
        except by physical things that will p revent a bullet from going any
        further. . . .
                 But in this case it was fired and ended up going through a
        window where it almos t struck the lady and could have easily hit
        someone else in tha t place of b usiness becau se . . . that window
        [was] open.


         The record clearly supports the trial court’s finding that the Defendant is a

dangerous offender. He d ischarged a gun in a fast-food restaurant drive-thru

lane, a pub lic place which is typica lly crowde d, thus jeopardizing the lives of

several people, including that of his wife who he shot in the head.10 Moreover,


10
     The jury, by its conviction of the Defendant, accredited this version of the shooting.

                                              -22-
the bullet narrowly missed striking Jenitra Stone; and had sh e been hit, it is quite

poss ible that she c ould ha ve been killed. Giving deference to the findings of the

trial court, whose sentencing determination is presumed to be correct, we agree

with the decision that the sentences should run consecutively in order to protect

the pub lic from furth er seriou s crimina l conduc t by the De fendan t.



       Furthermore, for his attempted second degree murder conviction, the

Defen dant wa s senten ced to a term in the m iddle of the senten cing range for a

Class B felony, and for his aggravated assault conviction, he was sentenced to

the minim um term for a Clas s C felon y. W e canno t say that the aggreg ate length

of his sen tence s, whic h is on ly one year more than the maximum sentence for the

crime of attempted second degree murder standing alone, is excessive. Noting

that attempted second degree murder is among the most severe offenses that

can be committed, we find that the terms of imprison ment re asona bly relate to

the severity of the offenses. We therefore conclude that the record provides

ample evidence to justify the sentences imposed in this case.



       The jud gmen t of the trial cou rt is accord ingly affirme d.




                                   ____________________________________
                                   DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
PAUL G. SUMMERS, JUDGE

                                          -23-
___________________________________
JOE G. RILEY, JUDGE




                             -24-
