                                                                                            10/18/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                               September 12, 2017 Session

        STATE OF TENNESSEE v. LAMANTEZ DESHA ROBINSON

                Appeal from the Criminal Court for Davidson County
                  No. 2014-B-1383 J. Randall Wyatt, Jr., Judge
                     ___________________________________

                            No. M2016-02335-CCA-R3-CD
                        ___________________________________


Lamantez Desha Robinson (“the Defendant”) was convicted by a Davidson County jury
of attempted second degree murder and sentenced to twelve years’ incarceration. In this
direct appeal, the Defendant contends that the trial court erred in admitting into evidence
a Facebook photograph of the Defendant posing with two handguns and that the evidence
submitted at trial was insufficient to support his conviction. Discerning no error, we
affirm the judgment of the trial court.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which JOHN
EVERETT WILLIAMS and ROBERT H. MONTGOMERY, JR., JJ., joined.

David A. Collins, Nashville, Tennessee, for the appellant, Lamantez Desha Robinson.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Glenn Funk, District Attorney General; and Amy Hunter and Addie Askew, Assistant
District Attorneys General, for the appellee, State of Tennessee.


                                         OPINION

                         I. Factual and Procedural Background

                                  Pretrial Motion Hearing

        Prior to trial, the Defendant filed a Motion to Exclude Photograph, arguing that a
photograph of the Defendant holding two handguns, which the State intended to admit at
trial, was irrelevant, that it could not be authenticated, and that the prejudicial effect far
outweighed its probative value. He further argued that the photograph was propensity
evidence meant to demonstrate that the Defendant was “a violent person” with the
“propensity to commit these kinds of offenses.” The State argued that the evidence was
not offered as propensity evidence but to establish the Defendant’s identity as the shooter.

       At a hearing on the motion, the trial court heard evidence that the photograph was
taken from the Defendant’s Facebook page at www.facebook.com/Lamantez.Robinson.
The State established that the photograph of the Defendant was posted to his Facebook
page two and a half months before the offense in this case was committed; however, the
State could not establish the date on which the photograph was taken or who posted the
photograph to Facebook. The trial court took the motion under advisement and later
entered a thorough written order denying the Motion to Exclude Photograph.

       In its order denying the Motion to Exclude Photograph, the trial court found:

               This cause came to be heard on May 20, 2016, on the Defendant’s
       motion to exclude a photograph of the Defendant that the State pulled from
       his Facebook page. The Defendant is charged in this case with attempted
       second degree murder. The date of the alleged offense was August 30,
       2013. The Defendant was subsequently arrested at a house on September
       27, 2013. At the house where the Defendant was arrested, law enforcement
       officers found three pistols outside in a grill, including a Glock pistol that
       was later confirmed to be the pistol used in the alleged offense through
       ballistics testing. Prior to this trial, the State discovered that . . . a
       photograph was posted to the Defendant’s Facebook page on June 13,
       2013. The photograph shows an individual who appears to be the
       Defendant holding a pistol in each hand. Based on the State’s motion, the
       Court is given to understand that Special Agent Kevin Warner, who
       conducted the ballistics test, would testify at trial that the pistol in the
       Defendant’s right hand was “consistent with a Glock.” The State seeks to
       use the photograph to show that the gun found in the grill at the house
       where the Defendant was arrested was actually the Defendant’s gun. The
       Defendant argued that the photograph should be excluded on three grounds:

              1. The photograph is irrelevant to the trial;

              2. The photograph cannot be properly authenticated; and

              3. The prejudicial effect substantially outweighs the probative value
              of the photograph.

                                            -2-
       With respect to relevance, the trial court found that “if the photograph [was] of the
Defendant and [was] of a real gun, the evidence [was] relevant, regardless of when it was
taken.” The court stated, “The Defendant being in a possession of a firearm that looks
like the firearm he was found with tends to make it more likely that that was actually his
firearm, and thus, that he was involved in the incident.” Accordingly, the trial court
determined that the photograph was relevant.

       As to authentication, the trial court reasoned:

              [I]n order for the photograph in question to be properly
       authenticated, the Court must be satisfied that there is sufficient evidence to
       support a finding by the trier of fact that the matter in question is what the
       State claims.

              In light of this, the pertinent question is what the State claims the
       photograph to be. It is the Court’s understanding that the State is claiming
       that the photograph is the Defendant holding a pistol similar to the Glock
       which was found in the grill at the home where the Defendant was arrested.
       The evidence the Court believes the State would offer in support of this
       contention is Detective [Jeremy] Smith’s testimony that the individual in
       the photograph appears to be the Defendant and [] Agent Warner’s
       testimony that the pistol in the individual’s “right hand is consistent with a
       Glock.” While the Court is not certain that this actually is what the
       photograph is, the Court does believe that this evidence is sufficient to
       support a finding by the jury that the photograph is what the State claims it
       is. Accordingly, the Court is of the opinion that the authentication
       requirement is met.

        With respect to the danger of unfair prejudice, the trial court first determined that
the issue should be analyzed under Rule 403 rather than Rule 404(b). The trial court
noted that the Tennessee Supreme Court had held previously that possession of a weapon
is not a crime or bad act, and thus does not implicate Rule 404(b), citing State v. Reid,
213 S.W.3d 792, 813-14 (Tenn. 2006). The trial court then concluded that, under Rule
403, the probative value of the photograph was not substantially outweighed by the
danger of unfair prejudice to the Defendant. The court noted that it was “sensitive to the
fact that admitting this photograph carries some danger of unfair prejudice to the
Defendant[.]” However, the trial court reasoned that the identity of the perpetrator was
the sole issue at trial and that the photograph tended to make it more likely that the
Defendant was in possession of the weapon used to shoot the victim. Accordingly, the
trial court determined that the photograph was admissible.

                                            -3-
                                                   Trial

        Keneuk Helton (“the victim”) testified that he worked as a railroad engineer on a
train that ran from Evansville, Indiana, to Nashville, a trip that took twelve hours. The
victim explained that, upon reaching Nashville, he would stay in a hotel for the night and
make the return trip to Evansville the next day. He recalled that he arrived in Nashville
on August 30, 2013, and stayed at La Quinta Inn and Suites in Donelson that night.
While there, the victim changed the oil in his truck and then took his truck to Shine On
Auto Wash on Elm Hill Pike around 10:00 p.m. When he arrived at the car wash, the
victim pulled into a car wash bay, stepped out of his truck, and noticed two black men he
had never seen before approaching him from a parking lot next door. No one else was at
the car wash. One of the men walked through an adjacent car wash bay and then passed
in front of the victim’s truck about ten to twelve feet away from the victim. The man
asked the victim, “How are you doing, sir?” and continued to walk into the next bay. The
victim testified that lights were on in the car wash bays, and he was able to clearly see the
man’s face. He confirmed that there was nothing that prevented him from “getting a look
at” the man’s face.

        A few seconds later, the same man approached the victim with a gun drawn. The
man had on a black “neoprene type mask” or t-shirt covering his face up to his nose. The
man pointed the gun at the victim and told him “not to move.” The victim testified that
he knew it was the same man who had just spoken to him because the man was wearing
the same clothing and had the same hairstyle. The man stood about six feet from the
victim, near the front of the truck and directly in front of the victim. The victim noticed
that the second man was standing at the back of the car wash bay with a blue bandana
over his face. The victim, who was standing behind the open driver’s side door, reached
into the cab of his truck with one hand and retrieved his handgun.1 Because he was afraid
the man would see the gun, the victim kept it “tucked behind [his] leg[.]” The victim
heard two gunshots and felt himself “being twisted . . . around[.]” He then realized that
he had been shot and that he had fallen to the ground in the car wash bay. He stated that
he had five dollars’ worth of quarters sitting on top of the car wash machine and that he
did not know if the Defendant or his accomplice took anything from the scene before
they fled. The victim was able to stand up, retrieve his cell phone, and call 911. The
victim walked out into the parking lot towards some vacuum cleaners to try to “wave
traffic down[.]” A car pulled into the parking lot, and two people got out of the car to
help the victim. The victim gave his gun to one of these people before the police and
ambulance arrived. The victim testified that he spent two weeks in the hospital. He had
been shot through the back of his arm and under his armpit. He suffered a collapsed


       1
           The victim testified that he had a concealed carry permit for the handgun.
                                                    -4-
lung, which had to be “re-inflated” twice, and the complete loss of his hearing in the left
ear.

       On March 15, 2014, Detective Jeremy Smith of the Metro-Nashville Police
Department (MNPD) prepared a photographic lineup for the victim to view, which
contained the Defendant’s photograph. The victim circled the Defendant’s photograph
and stated that he was the shooter. The victim testified that he took the lineup seriously
and looked at each photograph carefully and stated that it took about forty-five minutes
for him to make the identification. He explained that it took him forty-five minutes
because he could not decide between the Defendant’s photograph and one other. When
the victim told Detective Smith that he was “sure” about the identification, Detective
Smith told him that the Defendant had been arrested. At trial, the victim again identified
the Defendant as the man who shot him. He testified that he was able to “get a good
view” of the Defendant and that he was “absolutely positive” that the man with the gun
was the Defendant.

       Officer Bradley Bracey, a K-9 officer with the MNPD, testified that he responded
to the shooting call at the car wash on Elm Hill Pike. Officer Bracey was provided a
description of the suspects and was told which direction the suspects ran. Officer Bracey
and the K-9 “tracked” the suspects down the sidewalk of Elm Hill Pike towards a hotel,
about a block away from the car wash. However, the K-9 “lost what [it] was tracking
from the scene.” Officer Bracey testified that it appeared that the suspects ran towards
the hotel but then got into a vehicle.

        Officer Lynsie Smith with the MNPD testified that she also responded to the scene
of the shooting on August 30, 2013. Upon arrival, Officer Smith saw the victim lying on
the ground in front of the car wash. The victim was bleeding from his shoulder and chest
and was having trouble breathing. Officer Smith attempted to control the victim’s
bleeding before paramedics arrived, and she asked the victim for a description of the
suspect. The victim said that the suspects were two black males and that they fled down
Elm Hill Pike towards Briley Parkway. The victim told Officer Smith that a passerby had
stopped at the scene and taken his gun. Officer Smith testified that she viewed the scene
after the victim was loaded into an ambulance. She saw blood on the ground inside the
car wash bay by the victim’s truck. She noted that the window to the driver’s door had
been “shot out,” and there was “glass all over the floor” of the car wash bay.

        Sergeant Johnny Crumby and Officer Steven Heimback of the MNPD testified
that, as part of the investigation, they went to a residence on Merry Oaks Drive around
10:30 p.m. on the night of the shooting. There, they spoke to two witnesses, John
Sanders and Joli Overstreet, who turned over the victim’s handgun. Mr. Sanders and Ms.
Overstreet stated that they were at an Arby’s restaurant near the Shine On Auto Wash
                                           -5-
when they heard gunshots coming from the location of the car wash. Mr. Sanders and
Ms. Overstreet pulled into the parking lot of the car wash where they saw the victim.
They noticed a gun lying on the ground, and for safety reasons, they picked up the gun
and put it into the trunk of their car. Mr. Sanders and Ms. Overstreet explained that they
had two small children with them, who were frightened and upset, so they left the scene
and went to their residence. They called 911 and advised officers that they had the
victim’s gun.

        Investigator Douglas Felter, with the MNPD Crime Scene Investigation Section,
testified that he collected two cartridge casings and a holster from the car wash bay. He
testified that he found “defects” in the driver’s side window of the victim’s truck caused
by two apparent bullet strikes. Investigator Felter testified that one of the defects showed
a “left to right directionality,” meaning that, when the bullet struck the surface of the
window, it was “coming from the left-hand side going towards the right[.]” He stated
that this was consistent with someone standing in front of the left side of the victim’s
vehicle and firing at the vehicle.

        John Sanders and Joli Overstreet testified that, on August 30, 2013, they were at
the drive-thru at Arby’s on Elm Hill Pike when they heard four to five gunshots. As they
left Arby’s, Ms. Overstreet saw a man lying in the entryway of the car wash “kind of
waving.” Ms. Overstreet thought that someone had been shot and pulled their car into the
parking lot of Shine On Auto Wash where they found the victim lying on the ground.
They both got out of the car and approached the victim, who had been shot multiple
times. Mr. Sanders called 911, and Ms. Overstreet applied pressure to the victim’s
wounds. Mr. Sanders and Ms. Overstreet had two children in their car, so they decided to
leave the scene. Ms. Overstreet explained that, as a safety precaution, Mr. Sanders
picked up the victim’s gun and took it to their residence where they again called 911 to
let police know that they had picked up a gun at the scene. Within five minutes, officers
arrived at their home on Merry Oaks Drive, and they turned over the gun.

       MNPD Detective Brian Harris testified that, on September 27, 2013, he was
working on the Flex Team within the department. In that capacity, Detective Harris went
to a residence on 9th Avenue North around 8:00 p.m., after receiving information that a
gang member who had outstanding warrants, Karl Archibald, was inside the residence.
Detective Harris explained that the residence was located in the “Cheatham Homes
projects” and that Mr. Archibald was a member of the Rollin’ 40 Crips. Upon arrival,
several individuals ran inside the residence. Detective Harris verified through bystanders
that Mr. Archibald was inside the residence, so officers surrounded the home and waited.
Officers knocked and announced themselves, trying to get Mr. Archibald to come to the
door. Officers used a PA system to address Mr. Archibald, and Mr. Archibald’s mother
tried to talk him out of the residence. However, no one inside the residence would
                                           -6-
answer the door. After three hours with no response, officers obtained a search warrant
for the residence. Detective Harris announced over the PA system that officers had a
search warrant, and they were going to enter the residence. As officers were getting
ready to go in through the front door, multiple individuals, including Mr. Archibald and
the Defendant, exited the residence. During the execution of the search warrant, officers
found three handguns located inside a covered grill that sat on the front porch. Detective
Harris testified that the grill was in the front of the home and was close enough to the
house that “[y]ou could have touched the grill while standing inside the doorway.” On
cross-examination, Detective Harris acknowledged that the grill was accessible to anyone
walking by the residence and that weapons charges were eventually dismissed against the
individuals inside the residence because it could not be established who possessed the
weapons.

       Detective Jeremy Smith with the MNPD testified that he investigated the victim’s
shooting and that he initially responded to Vanderbilt Hospital to try to speak to the
victim. While the victim was being treated by medical staff, he spoke with Detective
Smith. The victim stated that he went to the car wash to wash his truck, and two black
men pulled into one of the bays. They then “split up,” and one of the men walked past
the front of the victim’s truck. The man said something to the victim “to the effect of
how you doing.” The victim reached into his truck and retrieved his handgun. When he
got out of his truck, the man walked back in front of the truck and had a blue bandana
over his face. The man told the victim, “[D]on’t move.” He then shot the victim, and the
victim fell to the ground. The victim provided a description of the shooter as a black man
with dreadlocks, wearing dark blue running pants, a dark shirt, and a blue bandana over
his face. The victim estimated that the man was in his “early 20s” and over six feet tall.
The victim told Detective Smith hat he was unable to see the face of the second man at
the back of his truck.

       At the car wash, Detective Smith noted that there were lights on inside each of the
bays. The driver’s side door of the victim’s truck was open, and there were two cartridge
casings on the ground. Detective Smith stated that one round went through the driver’s
side door window. Detective Smith later collected projectiles that had been removed
from the victim during surgery, and he sent the projectiles and the cartridge casings from
the crime scene to the Tennessee Bureau of Investigation (TBI) crime lab for analysis.

       Detective Smith explained that, in February 2014, he learned that the TBI linked
the two cartridge casings from the car wash to a .9mm Glock 17, which had been
recovered during the execution of the search warrant on the 9th Avenue North residence.
Detective Smith testified that, out of all the individuals found at the 9th Avenue North
residence at the time of the search warrant, only the Defendant matched the physical

                                          -7-
description given by the victim of the shooter.2 Detective Smith created a photographic
lineup for the victim to view, which contained the Defendant’s photograph. Detective
Smith stated that it took the victim six or seven minutes to pick out the Defendant from
the lineup. The victim identified the Defendant, and said, “[T]hat’s him. That’s the
shooter.” The victim stated that he was “100 percent sure” of his identification.
Detective Smith stated that it did not take the victim forty-five minutes; he noted that he
would not have let the selection process continue for forty-five minutes.

        Detective Smith testified that he searched for the Defendant on Facebook.
Detective Smith stated that, on the Defendant’s Facebook page, there were multiple
photographs of the Defendant. One photograph, which was posted on June 13, 2013,
showed the Defendant holding up two handguns, one in each hand. The photograph was
titled, “How could you not know, two guns up.” Detective Smith testified that he did not
know when the photograph was taken or who took the photograph. Detective Smith
stated that the gun in the Defendant’s right hand appeared similar to a Glock pistol. The
photograph was introduced into evidence as an exhibit.

        The trial court then instructed the jury:

               You have just seen a . . . photograph of the [D]efendant holding two
        objects that could be guns and you have testimony regarding that
        photograph. The State has offered this evidence in its effort to prove the
        identity of the [D]efendant as the individual who committed the crime with
        which he is charged in this case.

              Possession of a firearm or multiple firearms is neither a crime nor a
        bad act, accordingly, the photograph and the testimony regarding it, if
        considered by you for any purpose should only be considered for the
        purpose of determining whether the Defendant is the individual who
        committed the offense with which he is now on trial.

                In other words, it goes to the State’s argument regarding
        identification . . . .

       On cross-examination, Detective Smith testified that, on the night of the offense,
the victim said that the shooter had on a black ski mask. However, in a follow-up
interview, the victim said that the shooter had on a bandana, and the man to the rear of his
truck had on a black ski mask. Detective Smith agreed that, after the victim identified the

        2
         Detective Harris testified that the Defendant was the only individual at the residence that had
dreadlocks.
                                                 -8-
Defendant in the photographic lineup, he told the victim that the Defendant had been
found at the residence where the gun used in the shooting had been found. He did not
recall the victim saying that the suspect in the shooting wore a blue hoodie.

       Special Agent Kevin Warner, a forensic scientist with the TBI crime lab and
expert in firearm and tool-mark identification, testified that he received the .9mm Glock
17 found at the 9th Avenue North residence, as well as the two cartridge casings
discovered at the car wash. He test-fired the pistol and compared the two cartridge cases
to the cases produced by the test-firing. Agent Warner determined that the two cartridge
cases collected at the car wash had been fired from the .9mm Glock 17. Additionally,
Agent Warner testified that the weapon was visually consistent with the handgun held by
the Defendant in his right hand in the photograph. Agent Warner explained that his
conclusion was based on the size and the physical characteristics of the gun, including the
shape of the trigger guard, the shape of the frame, the bottom of the grip, and the “butt
plate of the magazine.”

      On cross-examination, Agent Warner stated that he could not tell if the pistol held
by the Defendant in the photograph was the same .9mm Glock 17 used in the offense.
Additionally, Agent Warner stated that he could not testify with certainty that the gun
held by the Defendant was a “real functional gun[.]” Agent Warner estimated that there
were “well over a million” Glock 17 pistols in existence.

       Dr. Jeffrey Neuschatz, a cognitive psychologist, testified as an expert in
eyewitness identification. Dr. Neuschatz reviewed the police reports, line-up reports, and
transcripts of prior hearings in the case. He stated that the victim’s ability to identify the
perpetrator could have been affected because he was under a “high stress situation” when
he was shot. He further stated that, because the victim was white and the Defendant was
black, the victim’s identification was a “cross-race identification,” which could make
proper identification more difficult. On cross-examination, Dr. Neuschatz stated that he
could not say whether the victim’s identification was accurate or not. He explained that
he had no opinion as to whether the victim was able to make an accurate identification of
the Defendant; his testimony simply concerned the various factors that could affect
eyewitness identification. He stated that he had no expert opinion about whether
“weapon focus” or “cross-rac[ial] bias” had any bearing on the victim’s identification of
the Defendant.

       Jessica Van Dyke testified on behalf of the Defendant about Facebook. Regarding
photographs posted to a Facebook page, Ms. Van Dyke testified that “it won’t say when
the picture was taken or . . . how it came into existence, it only says when it was posted
on Facebook on that specific timeline.” She stated that the photograph appeared to have

                                            -9-
been posted on the Defendant’s Facebook page on June 13, 2013, but she could not
identify who posted the photograph.

        Following deliberations, the jury found the Defendant guilty of attempted second
degree murder. At a sentencing hearing, the trial court sentenced the Defendant, as a
Standard Range I offender, to twelve years’ incarceration. The Defendant filed a timely
Motion for New Trial and Amended Motion for New Trial, which the trial court denied
after a hearing. This timely appeal follows.

                                        II. Analysis

                                Admission of Photograph

      The Defendant contends that the trial court erred when it admitted into evidence
the Facebook photograph of the Defendant posing with two handguns. Essentially, the
Defendant asserts that, although the State argued at trial that the photograph was relevant
to the identity of the Defendant as the shooter, its true purpose was to show the
Defendant’s propensity for violence. In his brief, the Defendant argues that:

       [t]he picture does nothing to resolve the identity question but merely casts
       the [Defendant], in the minds of the jury, as a person who is comfortable
       handling handguns whom they had already heard hung out with gang
       members in the projects, one of whom, the police had to threaten with a
       search warrant to get him to come out and surrender on a different arrest
       warrant.

The State responds that the trial court properly admitted the photograph, arguing that it
was highly probative because it showed that the Defendant had access to, or owned, the
gun used to shoot the victim and that the probative value outweighed any unfair prejudice
to the Defendant. We agree with the State.

       In order to be admitted into evidence, a photograph must be relevant to an issue
that the jury must decide. State v. Thomas, 158 S.W.3d 361, 394 (Tenn. 2005); see also
Tenn. R. Evid. 402. “[E]vidence is relevant if it helps the trier of fact resolve an issue of
fact.” State v. James, 81 S.W.3d 751, 757 (Tenn. 2002) (quoting Neil P. Cohen, et al.,
Tennessee Law of Evidence § 4.01[4], at 4-8 (4th ed. 2000)); see also Tenn. R. Evid.
401. However, Rule 403 of the Tennessee Rules of Evidence provides, “Although
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.” “Unfair prejudice” is defined as “‘[a]n undue tendency to suggest decision on
                                           - 10 -
an improper basis, commonly, though not necessarily, an emotional one.’” State v.
Banks, 564 S.W.2d 947, 951 (Tenn. 1978) (quoting Advisory Committee Note to Federal
Rule of Evidence 403). Generally, this court reviews a trial court’s decision to admit
evidence based upon its relevancy under an abuse of discretion standard. State v.
DuBose, 953 S.W.2d 649, 652 (Tenn. 1997).

       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 that character trait. Tenn. R. Evid.
404(b). However, evidence of other crimes, wrongs, or acts may be admissible “when
the prior conduct is relevant to an issue other than the accused’s character, such as
identity, motive, common scheme or plan, intent, or absence of mistake.” State v. Adams,
405 S.W.3d 641, 659 (Tenn. 2013); see also State v. Gilliland, 22 S.W.3d 266, 271 n.6
(Tenn. 2000). Our supreme court has interpreted Rule 404(b) to apply only to “bad acts.”
State v. Clark, 452 S.W.3d 268, 289 (Tenn. 2014). Accordingly, testimony about
behavior which is relevant and which does not constitute a crime or bad act is not
analyzed under Rule 404(b). Reid, 213 S.W.3d at 814. Possession of a handgun is not a
“bad act” requiring the application of the Rule 404(b). Id.

       We agree with the trial court’s conclusion that the photograph introduced into
evidence showing the Defendant’s holding two handguns does not constitute evidence of
a prior bad act as contemplated by Rule 404(b).3 See id. Accordingly, the trial court
properly reviewed the issue under the standard set forth in Rule 403. In concluding that
the probative value of the photograph was not substantially outweighed by the danger of
unfair prejudice, the trial court reasoned that the identity of the perpetrator was the sole
issue at trial and that the photograph tended to make it more likely that the Defendant was
in possession of the weapon used to shoot the victim. The record supports this
conclusion.

       At trial, the State presented evidence that the victim was shot with a .9mm Glock
17 pistol on August 30, 2013, and that the weapon used in the shooting was found less
than a month later at the 9th Avenue North residence where the Defendant was present.
Detective Harris testified that some of the occupants of the 9th Avenue North residence,
including the Defendant, had been charged with possession of one of the guns, but the
charges were dismissed because a connection to the gun could not be established.

        3
           Although the Defendant attacks the admissibility of the photograph in the context of the
Defendant’s association with gang activity and the location of the 9th Avenue North residence, he made
no effort to exclude evidence of his connection to Mr. Archibald and the location of the residence at trial.
The Defendant could have objected to the introduction of this testimony but failed to do so; accordingly,
these issues, if properly raised on appeal, would be considered waived. See Tenn. R. Evid. 103(a)(1)
(stating that “[e]rror may not be predicated upon a ruling which admits evidence . . . unless a substantial
right of the party is affected, and . . . a timely objection or motion to strike” is made).
                                                  - 11 -
However, prior to the Defendant’s trial, the State discovered a photograph posted to the
Defendant’s Facebook page on June 13, 2013, which showed the Defendant holding a
pistol in each hand. The State’s firearm identification expert, Agent Warner, testified that
the weapon used in the shooting was visually consistent with the handgun held by the
Defendant in his right hand in the photograph. Agent Warner explained that his
conclusion was based on the size of the gun and the physical characteristics, including the
shape of the trigger guard, the shape of the frame, the bottom of the grip, and the “butt
plate of the magazine.” Based on this testimony, the photograph was clearly probative as
it tended to connect the Defendant to the handgun used in the shooting and, thereby, to
support the victim’s identification of the Defendant as the shooter. The trial court did not
abuse its discretion by admitting the photograph into evidence.

                               Sufficiency of the Evidence

       The Defendant argues that “[t]he evidence was insufficient as a matter of law for
any reasonable trier of fact to find the [Defendant] guilty beyond a reasonable doubt.”
Specifically, he contends that the evidence was insufficient to establish his identity as the
man who shot the victim. The State responds that the evidence was sufficient to support
the jury’s finding that the Defendant was the perpetrator. We agree with the State.

        Our standard of review for a sufficiency of the evidence challenge is “whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original); see also Tenn. R.
App. P. 13(e). Questions of fact, the credibility of witnesses, and weight of the evidence
are resolved by the fact-finder. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This
court will not reweigh the evidence. Id. Our standard of review “is the same whether the
conviction is based upon direct or circumstantial evidence.” State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)) (internal quotation marks omitted).

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

       The identity of the perpetrator is “an essential element of any crime.” State v.
Rice, 184 S.W.3d 646, 662 (Tenn. 2006). Identity may be established with circumstantial
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evidence alone, and the “jury decides the weight to be given to circumstantial evidence,
and [t]he inferences to be drawn from such evidence . . . .” Id. (internal quotation marks
omitted). The question of identity is a question of fact left to the trier of fact to resolve.
State v. Crawford, 635 S.W.2d 704, 705 (Tenn. Crim. App. 1982). “The credible
testimony of one identification witness is sufficient to support a conviction if the witness
viewed the accused under such circumstances as would permit a positive identification to
be made.” State v. Koffman, 207 S.W.3d 309, 322 (Tenn. Crim. App. 2006) (citing State
v. Radley, 29 S.W.3d 532, 536 (Tenn. Crim. App. 1999)).

       The reliability of an in-court identification depends on the totality of the
       circumstances, “including the opportunity of the witness to view the
       offender at the time of the crime, the witness’s degree of attention, the
       accuracy of the prior description of the offender, the level of certainty of
       the witness at the confrontation, and the length of time between the crime,
       and the confrontation.”

Id. (quoting State v. Beal, 614 S.W.2d 77, 82 (Tenn. Crim. App. 1981)).

        In this case, the victim identified the Defendant in a photographic lineup and at
trial as the man who shot him. The victim testified that the car wash bay was well-lit, and
he could see the Defendant’s face clearly as the Defendant walked past the front of the
truck and spoke to him. Although the Defendant’s face was partially covered when he
approached the victim the second time, the victim stated that he knew it was the same
person based on the man’s clothing and hairstyle. Following the shooting, the victim
provided investigators with a physical description of the shooter, which matched the
Defendant. The victim testified that he was 100 percent sure of his identification.
Because the victim viewed the Defendant under such circumstances that would permit a
positive identification to be made, the victim’s testimony alone would be sufficient, if
credited by the jury, to support the Defendant’s conviction. See Koffman, 207 S.W.3d at
322.

       The State, however, presented additional circumstantial evidence to support the
victim’s identification. The jury heard evidence that, less than a month after the
shooting, police found the Defendant at a residence where the .9mm Glock 17 pistol used
in the shooting was located. The State then introduced a photograph of the Defendant
holding a gun that was visibly consistent with that handgun. When viewed in the light
most favorable to the State, the evidence is sufficient for any rational trier of fact to find
that the Defendant was the perpetrator of the offense beyond a reasonable doubt. The
Defendant is not entitled to relief.



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                              III. Conclusion

For the aforementioned reasons, the judgment of the trial court is affirmed.


                                      ____________________________________
                                      ROBERT L. HOLLOWAY, JR., JUDGE




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