        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                  March 1, 2011 Session

             STATE OF TENNESSEE v. OSAYAMIEN OGBEIWI

              Direct Appeal from the Criminal Court for Shelby County
                       No. 06-01475     Lee V. Coffee, Judge


                  No. W2010-00117-CCA-R3-CD - Filed July 29, 2011


The defendant, Osayamien Ogbeiwi, was convicted by a Shelby County Criminal Court jury
of first degree premeditated murder and was sentenced to life imprisonment. On appeal, he
argues that: (1) the trial court erred in denying his request for a continuance so he could
obtain a mental evaluation; (2) the trial court erred in denying his motion to suppress; (3) the
trial court erred in denying his objections concerning the admission of the store surveillance
video; (4) the trial court erred in not requiring the State to develop legally sufficient corpus
proof; (5) the trial court erred in overruling his objections to the State’s closing argument;
(6) the evidence was insufficient to sustain his conviction; (7) the trial court erred in
charging the jury that it must first acquit the defendant before considering lesser offenses;
and (8) the trial court erred in charging the jury with an inconsistent verdict form. After
review, we affirm the judgment of the trial court.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which R OBERT W. W EDEMEYER
and C AMILLE R. M CM ULLEN, JJ., joined.

Michael E. Scholl, Memphis, Tennessee, for the appellant, Osayamien Ogbeiwi.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;
William L. Gibbons, District Attorney General; and Glen Baity and Doug Carriker, Assistant
District Attorneys General, for the appellee, State of Tennessee.

                                          OPINION

                                           FACTS

       This case relates to the defendant’s shooting of a Citgo gas station convenience store
clerk, Ali Abdiaziz, for which he was indicted on charges of first degree felony murder and
first degree premeditated murder.

                                         State’s Proof

       Officer Bennie Washington with the Memphis Police Department testified that he
was dispatched to a Citgo gas station convenience store on South Perkins Road in Memphis
during the early morning hours of December 20, 2005, in response to an armed robbery
where the clerk was possibly injured. Officer Washington was the first person on the scene
and, when he entered the store, saw the “clerk positioned behind the counter, and he had
been shot multiple times.” Officer Washington called for an ambulance, and it arrived
shortly thereafter.

       Tina Watkins testified that she was a regular customer of the Citgo convenience store
in December 2005, and, on December 20, she stopped in at the store around 2:20 a.m. When
she pulled in, she noted that the victim was not visible from the window like usual and that
store merchandise appeared to have been knocked over. Watkins walked slowly into the
store and saw the floor littered with merchandise and the victim on the floor with his back
against the wall. Upon seeing blood coming from the victim’s mouth and ear, Watkins left
the store and called 911. When shown a picture of the victim, Watkins identified the
deceased as the store clerk and said that she knew him by sight but not by name.

       On cross-examination, Watkins acknowledged that the store was small and that upon
entering, a person was almost right at the front counter. She said that the victim was about
five feet away from her when she went inside. Watkins never saw whether the victim kept
a gun in the store, and he never mentioned a gun in their conversations.

        Sergeant David Sloan with the Memphis Police Department Felony Response Unit
testified that he arrived to the scene at the Citgo store on December 20, 2005, around 3:00
a.m. Sergeant Sloan talked to Watkins and the crime scene officer. Sergeant Sloan observed
what he believed to be blood inside the store near one of the walls, near the doorway inside
the store, and outside the store in the parking lot. He observed two different calibers of shell
casings, forty and forty-five, inside the store on the floor near the counter. Outside the store,
Sergeant Sloan saw an item of jewelry and a hotel key card.

        Sergeant Sloan testified that the store manager came to the store and allowed Sergeant
Sloan to view the surveillance video. The relevant time on the video showed three males
dressed in dark clothing with their hoods pulled up and trying to cover the lower portion of
their faces. After viewing the tape, Sergeant Sloan gave it to Officer Payment who tagged
it into evidence.

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      Officer Chester Striplin with the Memphis Police Department testified that he
converted the store’s VHS surveillance recording to a DVD format. Officer Striplin created
two DVDs: one showed four cameras and ran at regular speed, and on the other he “slowed
some of the sections of the video down, and . . . broke the cameras into individual cameras.”
Both videos were played for the jury.

        On cross-examination, Officer Striplin acknowledged that the date stamped on the
screen of the surveillance video indicated March 6, 2005, as the date it was taken. The video
also indicated a date of December 19, 1972. Officer Striplin hypothesized that the
discrepancy could be due to the store owner not resetting the clock for daylight savings time
or recording over a used tape which could lead to “a little bleed over[.]” He admitted that
the screen also showed a time of 7:13 p.m. On redirect examination, Officer Striplin stated
that it was not unusual for a store’s tapes to show a date that did not coincide with the actual
date of an occurrence.

       Kimberly Dwayne Jeans, an employee of Guardsmart Security assigned to The
Regional Medical Center (“The Med”) in Memphis, testified that he was working in the
shock trauma unit during the early morning hours of December 20, 2005, when “a civilian -
a male black . . . came through the ambulance area and let us know that he had someone in
the car who had been shot.” The person seeking medical attention was in a green Ford
Crown Victoria that was parked in the ambulance bay, and there were two other African-
American men inside the car. Medical personnel removed the injured man from the car and
took him inside for treatment. Jeans asked the man who had initially alerted to the situation
if he would come inside and give them more information, but the man, instead, got into his
car and left.

        Officer Ashton Britton with the Memphis Police Department testified that he was
called to the trauma area of The Med during the early morning hours of December 20, 2005,
with regard to a gunshot victim. He explained that anytime the hospital received patients
with “gunshot wounds, stabbings, wounded parties that’s been in fights – if a crime has been
committed,” the hospital would call the police to take a report of the situation. Officer
Britton said that gunshot wounds were typically reported as aggravated assaults, so he took
a report listing the injured man, identified in court as the defendant, as the victim. Officer
Britton said that his report indicated that the defendant arrived at the hospital at 2:35 a.m.
At some point, medical personnel alerted Officer Britton that they had collected the
defendant’s clothing and personal items in a clear plastic bag. Officer Britton “just
watched” the items and did not “tag” them as evidence.

        Officer David Payment with the Crime Scene Unit of the Memphis Police Department
testified that he was called to the scene at the Citgo convenience store during the early

                                              -3-
morning hours of December 20, 2005. Officer Payment photographed and prepared a sketch
of the entire crime scene as well as generated a written report. On his sketch of the outside,
Officer Payment noted a gold ring, an earring backing, a bullet hole, a spent bullet, a
possible bullet impact, and areas of possible blood. On his sketch of the inside, Officer
Payment noted a baseball cap, four spent forty-caliber shell casings, a spent forty-five caliber
shell casing, two spent bullets, and areas of possible blood. Officer Payment also collected
relevant evidence around the scene, both inside and outside, including samples of the areas
of possible blood, and placed them in the property room. In addition, Officer Payment
retrieved a VHS security tape from the Citgo store.

       On cross-examination, Officer Payment acknowledged that the name of the victim
he recorded on the envelope containing the blood samples was “Derrick LaTodd,” the name
of the victim listed on the trial jacket was “Abidrahama Yusuf,” and the name listed on the
indictment was “Abdiaziz Ali.”

        Officer Gerald Paige with the Crime Scene Unit of the Memphis Police Department
testified that he was dispatched to The Med around 4:00 a.m. on December 20, 2005, to
“[c]ollect clothing that could have been from the victim of a crime.” Officer Paige met a
detective at The Med who advised him that he needed to collect some clothing. He then saw
a member of medical personnel who gave him a plastic bag containing “socks, shoes, [and]
some gray pants” that belonged to the defendant. When Officer Paige took the clothing to
the property room, he observed that the gray pants had what appeared to be blood on them.
Officer Paige noted that the pants had been cut by medical personnel to facilitate treatment.

       Officer Paige testified that, in addition to the clothing, he was also given other items
of the defendant’s by a member of medical personnel. These other items included, among
other things, a gun holster, a green New Testament Bible with a baptismal certificate inside
of it made out to the defendant, a City of Memphis Credit Union teller card bearing the
defendant’s name, some keys, and assorted papers. At The Med, Officer Paige also
collected items belonging to the victim, including his wallet which contained, among other
things, a Tennessee photo identification for Ali Abdiaziz, a Virginia photo driver’s license
for Ali Abdiaziz, a Bank of America debit card for Ali Abdiaziz, a permanent resident card
bearing the name of Ali Abdiaziz, a social security card for Ali Azizharra Ali, a Family Care
Health Plan card for Ali Abdiaziz, a Western Union gold card for Ali Abdiaziz, a check
from Night and Day Food Mart made out to Ali Abdiaziz, a U.S. Transportation Task Force
card for a task force officer named James Maledo, a social security card for Hason Safia, and
a social security card for Hason Mohamed, a social security card for Ali Fara Ali, a gold
check card from Bank of America issued to Yusuf Abidrahamn, a The One Club card issued
to Yusuf Abidrahamn, and a Western Union gold card issued to Hiloee Zucharia. The
victim also had nearly $1000 in his wallet.

                                              -4-
        On cross-examination, Officer Paige admitted that there was no money among the
personal effects of the defendant that he collected at the hospital. Officer Paige also
acknowledged that the victim had several pieces of identification in his wallet that were not
in his name. He counted six identifications in the name of Ali Abdiaziz and seven
identifications, including four social security cards, that were in other various names. The
Tennessee and Virginia identifications that were in the name of Ali Abdiaziz listed his date
of birth as May 15, 1967. However, Officer Paige acknowledged that the date of birth listed
for the victim on various envelopes of body fluids collected at the Citgo crime scene was
different than the date listed on the identifications.

       On redirect examination, Officer Paige noted that only three of the identifications
collected from the victim had photographs on them, and each of those was in the name of
Ali Abdiaziz and appeared to have the same person in the photographs.

       Dr. Martin Croce, the medical director for the trauma center at The Med, testified
that he was working in the trauma unit on December 20, 2005, and treated a patient who
arrived at the hospital by private car around 2:30 a.m., suffering from two gunshot wounds.
Dr. Croce later learned the patient to be the defendant. In order to treat the defendant, Dr.
Croce cut off the defendant’s clothing.

       Sergeant Andrew Kjellin with the Felony Response Unit of the Memphis Police
Department testified that he responded to The Med around 3:20 a.m. the morning of the
incident and was advised that the victim had been pronounced dead at 3:10 a.m. Sergeant
Kjellin then went to check on another patient, an African-American male in his mid-
twenties. The patient would not respond to Sergeant Kjellin’s attempt to ascertain his
identity, so Sergeant Kjellin took the patient’s photograph, which was admitted into
evidence.

        Officer James Luckett, who worked in the Homicide Bureau of the Memphis Police
Department at the time of the incident, testified that he was the lead investigator on this case.
Officer Luckett went to the scene at the Citgo the following morning and learned that the
store clerk had been shot and was deceased and that the defendant was possibly involved.
Officer Luckett went to The Med to obtain a thumb print from the defendant and then went
a second time to talk to the defendant, who was considered a suspect “[d]ue to the
circumstances of him arriving at The Med.”

        At this second visit, Officer Luckett identified himself to the defendant and advised
him of his rights, but the defendant did not agree to talk to the officer. The defendant also
declined to provide a DNA swab. Officer Luckett obtained a search warrant and returned
to the hospital where he procured a DNA swab of the defendant. Officer Luckett delivered

                                               -5-
the swab kit to the Tennessee Bureau of Investigation (“TBI”) lab for testing. He also
delivered fluid samples and “some gray pants” that he retrieved from the property room, and
an FTA card from the morgue that contained the victim’s blood samples, to the TBI lab for
testing.

        Officer Luckett testified that he was at the scene at the Citgo two days after the
incident and was given a bullet slug and bullet jacket that had been found by “two gentlemen
. . . while they were cleaning up,” as well as a box of forty-five caliber rounds. The box
contained forty bullets, although it held fifty bullets. Officer Luckett believed that the
bullets belonged to the store owner. Officer Luckett explained that he took all these items
to the TBI for analysis because blood had been found outside the door of the store, and they
wanted to make a DNA comparison.

        On cross-examination, Officer Luckett admitted that he had never received training
for taking a buccal swab sample and this was his first time for doing so. Officer Luckett also
acknowledged that he later learned that some portion of the buccal swab evidence collected
from the defendant was misplaced in the property room.

       On redirect examination, in answering an omitted question, Officer Luckett testified
that the pants he took to the TBI lab for processing were tagged as belonging to the
defendant. He stated that it was significant that the pants were gray because the suspect in
the surveillance video was wearing gray pants.

        Sergeant William Merritt with the Homicide Division of the Memphis Police
Department testified that he was in the property room on August 27, 2007, when he spoke
to Lieutenant Barham about a piece of property that had been returned from the TBI lab after
forensic testing but had not been assigned a property receipt number. Sergeant Merritt stated
that he received an envelope from Lieutenant Barham that was closed with an evidence label
from the TBI lab. Inside the envelope were two saliva samples that had been taken from the
defendant for DNA testing. However, Sergeant Merritt did not open the sealed inner
envelope that contained the actual swab. Sergeant Merritt then gave the evidence a property
receipt number.

       On cross-examination, Sergeant Merritt testified that he had no idea why it was listed
that the evidence was recovered from “4566 Cottonwood, Memphis, Tennessee” on the
evidence permanent assignment receipt unless a clerk mistakenly listed the defendant’s
address as the recovery address.

       Special Agent Donna Nelson, a forensic scientist with the TBI Crime Lab in the field
of serology and DNA, testified that she analyzed eight samples of possible bloodstains found

                                             -6-
at the Citgo and compared them to known samples from the defendant and victim. One of
the samples was blood and matched the defendant’s DNA at seven of thirteen areas, but
Agent Nelson was not able to get a profile on the remaining areas. Three samples were
blood and completely matched the defendant’s DNA. Two of the samples were blood and
matched the victim’s DNA. One sample did not indicate the presence of blood, and on one
sample Agent Nelson was not able to get a DNA profile because there either was not enough
DNA in the sample or the sample was degraded. She analyzed a stain on the pants collected
from the defendant and determined that the stain was the defendant’s blood. Once her
testing of the evidence was completed, Agent Nelson said that Sergeant Harris with the
Memphis Police Department picked the evidence up on March 21, 2006. She said that she
did not consider any of the samples she received to be contaminated because contamination
would have been evident in her testing.

        Dr. Lisa Funte, an assistant medical examiner for Shelby County, testified that the
victim’s body was received from The Med and assigned an identification number. The
autopsy revealed that the victim suffered multiple gunshot wounds, which was the
ascertained cause of death. One bullet entered the victim’s right shoulder and exited straight
out his back; one bullet entered the left side of his chest and exited from the lower right side
of his back; and a third bullet entered the victim’s right cheek and exited under his chin.
The victim’s facial wound exhibited stippling. On cross-examination, Dr. Funte
acknowledged that the information they received identifying the victim as “Abdiaziz Ali”
came from the hospital or the police, not from a family-member identification.

                                     Defendant’s Proof

        The mother of the defendant’s children, Demetria Love, testified that both she and
the defendant worked in 2005. The defendant had two jobs at the time, and they were not
having any financial problems. Love stated that the defendant carried a gun as a condition
of his job as a security officer and was licensed to carry it. Not long before the incident in
this case, the defendant bought their son a puppy for $1200, which initially upset Love.
However, the dog was stolen by one of the defendant’s “so-called friends,” and the
defendant and his friend were in an ongoing altercation over the dog. A few days prior to
the incident at the Citgo, the defendant’s friend “shot up” Love’s car with the defendant and
their son inside. Nevertheless, they did not file a police report about the shooting.

        Love testified that the defendant told her he was going to get the dog back. The night
of the shooting, she heard the defendant arguing on the phone with someone and then he left
the apartment, which was unusual for him to do late at night. However, the defendant did
not tell her that the reason he was leaving was to get the dog back. Love said that the next
time she saw the defendant was in the hospital after he had been shot. Shortly after the

                                              -7-
shooting, the defendant went to stay with some friends in Jamaica to heal. When she
informed the defendant that there was a warrant for his arrest, he flew home and was
arrested coming through customs.

        On cross-examination, Love admitted that they did not file a police report about the
stolen dog. She said that she only knew the defendant’s friend who stole the dog as “Blue,”
and she did not have independent knowledge, aside from what the defendant told her, that
Blue had stolen the dog. However, she heard the defendant arguing on the phone about the
dog. Love also acknowledged that they did not file a police report about the shooting of her
car even though the shooting evidenced an intent to kill. She had taken photographs of the
damaged car but had misplaced them. On redirect examination, Love explained that she did
not file police reports because they lived in a “pretty rough” area of town, and she felt that
the police did not take complaints from their area seriously.

       The defendant elected to testify. He admitted that he was the man seen on the video
entering the store and shooting the victim. He said that, since the incident, he had been
under the care of a psychiatrist and was taking numerous anti-psychotic medications. He felt
bad that the victim had died, noting that there was no reason for him to have lost his life.
At the time, the defendant worked as a security guard for two different companies and was
licensed to carry the gun used in this offense.

       The defendant explained the sequence of events giving rise to the shooting.
Sometime before the shooting, the defendant bought an expensive puppy for his son, and
it was stolen by “Blue,” whom he believed to be a friend. The defendant had several
conversations with “Blue” concerning the dog and, two days before the Citgo shooting, went
to meet “Blue” to, he presumed, pick up the dog. When he arrived at their meeting location,
“Blue” shot at the defendant’s car with the defendant and his son inside, so the defendant
drove off.

        The defendant testified that the night of the Citgo shooting, he had another
conversation with “Blue” and, as a result of that conversation, went to get the dog back or
have “Blue” pay for the dog. The defendant and two of his friends went to The Memphis
Inn, which was approximately one block away from the Citgo, to meet “Blue.” They parked
at another nearby hotel and walked toward The Memphis Inn. As they were passing an
abandoned business on the walk to The Memphis Inn, a person, who appeared to be “Blue,”
got out of a car parked at the business and started shooting at them. In an effort to take
cover from the gunfire, the defendant ran to “the closest place that [he] could get into, and
that was the [Citgo] store.” Once inside the store, the defendant retrieved his weapon, but
the store clerk, the victim, seeing the defendant’s weapon, pulled out a gun of his own. The
defendant told the victim, “Whoa, whoa, whoa,” but the victim shot the defendant in the

                                             -8-
foot and then the chest, and the defendant “just returned fire.”

       The defendant testified that he left the store but then realized that the victim’s gun
was near his hand, and he did not want the victim to get the gun in his hand. Therefore, the
defendant “ran back to get the gun. But [the victim] had the gun in his hand, and [the
defendant] grabbed the gun when it went off, boom. When it went off, that’s when [the
defendant] snatched it out of his hand, and [the defendant] ran out of the store.” The
defendant said that the round did not hit the victim; the victim had already been shot three
times by that point. After the shooting, the defendant ran out of the store because he was
scared and wounded, and the two friends that had been with him returned and took him to
the hospital.

        The defendant testified that after he was released from the hospital, he went to
Jamaica to stay with friends of the family because he knew that he “was going to have to
deal with this situation eventually, but [he] didn’t want to have to come to jail with the bullet
holes in [his] leg, in [his] foot, in [his] chest[.]” He said there was no warrant for his arrest
when he left for Jamaica, and, upon learning that there was a warrant for his arrest, he made
arrangements to return to Memphis and turn himself in. He said that he did not choose to
stay in Jamaica because “first of all, [he] felt like [he] had to explain [him]self. Second of
all, you know, what happened to the man. And third,” he did not want to abandon his
family. The defendant denied that he went to the store to commit robbery or to kill the
victim.

        On cross-examination, the defendant explained that he decided to meet “Blue” to
negotiate about the dog although he knew “Blue” to be dangerous because he did not want
to look like a “coward,” which could lead to further victimization of his family. Asked
whether he actually expected “Blue” to return the dog, the defendant said, “I had what I had
on me, and I knew that if he shot at me that I was going to be able to shoot back.” The
defendant maintained that he did not shoot the victim when he walked back in the store after
starting to leave. He said that the victim was standing when he shot the victim in the chest
even though the medical examiner had testified that the victim’s gunshot wound to the chest
was at a downward angle. The defendant acknowledged that his handgun carry permit had
been a conditional permit and that it had been rescinded at the time of the shooting.

       In response to questions from the jury and on redirect examination, the defendant
admitted that his and his two friends’ faces were covered and hoods pulled up when they
entered the store. Asked why, he explained that “[t]hey were already pulled over when we
were going to get up with Blue.” He elaborated that he believed that “Blue” was going to
shoot at him, and he “had on a hoodie because if [“Blue”] had shot at [him], [he] was going
to shoot back at [“Blue”].” However, he did not anticipate “Blue” shooting at him the way

                                               -9-
he did, and the defendant panicked “because [he] had never been shot at before[.]” The
defendant maintained that when he first started to exit the Citgo store after the shooting, the
victim was still moving and had his gun in his hand. On recross-examination, the defendant
indicated that he already had his gun drawn when “Blue” began to shoot at him.

                                       Rebuttal Proof

       Lieutenant James Luckett with the Memphis Police Department testified that after
learning about the shooting at the Citgo, he and other officers went to the area to see if any
surrounding businesses had surveillance videotapes without any success. He said that there
were no reports of other shootings in the area that night.

       On cross-examination, Lieutenant Luckett acknowledged that there were not many
businesses in between the area of The Memphis Inn and the Citgo, and most businesses were
closed at 2:00 a.m.

        After the conclusion of the proof, the jury deliberated and was unable to reach a
verdict on count one of the indictment, the charge of felony murder, and the court declared
a mistrial on that count. However, the jury convicted the defendant as charged in the second
count of the indictment of premeditated first degree murder. Upon the verdict of the jury,
the trial court sentenced the defendant to life imprisonment.

                                        ANALYSIS

                                I. Motion for Continuance

        The defendant argues that the trial court erred in denying his request for a
continuance for him to obtain a mental evaluation. He asserts that his “mental capacity at
the time of the commission of the crime seems to be questionable especially concerning his
ability to form the proper mens rea to commit the crime.”

        The record indicates that on June 12, 2009, defense counsel informed the trial court
that he had learned that the defendant was taking anti-psychotic medications and that he
wished to have a mental evaluation conducted in order to ascertain whether the defendant
had a mental disorder. Defense counsel received approval to hire Dr. Joseph Angelillo, to
conduct the evaluation; however, Dr. Angelillo was unable to conduct the evaluation before
trial due to his being out-of-town. On July 10, 2009, the defendant asked for a continuance
in order to have the doctor conduct the evaluation.



                                             -10-
       In denying the defendant’s request for a continuance, the trial court reviewed the
history of the defendant’s case from his arrest on June 13, 2006, to the present time. The
court noted that the defendant was evaluated after his arrest to determine his sanity and
competency to stand trial and was found competent to proceed even though he initially
refused to cooperate with the doctor. The court found that there was nothing in the original
evaluation that indicated a diminished capacity defense would apply in the defendant’s case
and that one of the counts of which the defendant was charged, felony murder, required no
mental state. The court observed that the case had been continued many times and that the
defendant himself had expressed frustration that his case had yet to be tried. The court
concluded that it would not be in the best interest of justice and fairness to grant a
continuance, but that the defendant could still have the evaluation and the court would
review it during the motion for new trial if the defendant was in fact convicted.

       Dr. Angelillo’s report was introduced at the motion for new trial hearing. The
evaluation noted that the defendant had no psychiatric history prior to this incarceration. In
the evaluation, Dr. Angelillo found that the defendant suffered from various mental
problems. However, Dr. Angelillo made no finding that the defendant suffered from
diminished capacity that would negate the defendant’s specific intent to commit the crime.

        The granting of a continuance lies within the sound discretion of the trial court, and
we will not reverse that decision absent a showing of an abuse of discretion. State v.
Schmeiderer, 319 S.W.3d 607, 617 (Tenn. 2010) (citing State v. Odom, 137 S.W.3d 572,
589 (Tenn. 2004)). “‘An abuse of discretion is demonstrated by showing that the failure to
grant a continuance denied defendant a fair trial or that it could be reasonably concluded that
a different result would have followed had the continuance been granted.’” Id. (quoting
State v. Hines, 919 S.W.2d 573, 579 (Tenn. 1995)).

         Upon review, we cannot conclude that the trial court abused its discretion in denying
the defendant’s request for a continuance. As noted by the trial court at the motion for new
trial, the defendant had three years to develop any sort of diminished capacity defense and
had in fact been evaluated by a psychiatrist who determined that such defense could not be
sustained. In any event, the results of the second evaluation do not indicate that the denial
of a continuance denied the defendant a fair trial or that there was a reasonable probability
of a different result had a continuance been granted. Therefore, the defendant cannot show
that the trial court abused its discretion on this issue.

                                  II. Motion to Suppress

       On June 16, 2009, the defendant filed a motion to suppress, arguing that his personal
clothing items were seized from the hospital and later used for DNA testing in violation of

                                             -11-
his Fourth Amendment rights.

       The trial court conducted a hearing on the motion, at which Lieutenant Kedra
Lockhart with the Memphis Police Department testified that during her involvement in this
case, she learned that an injured person “show[ed] up” at The Med but, because they did not
have any information connecting him to this case, he was initially treated as a victim instead
of a suspect. Lieutenant Lockhart stated that it was not unusual, and was in fact part of
written police policy, to collect the clothing or personal effects of seriously wounded
individuals at the hospital particularly when the person was injured by a gunshot or stabbing.
Officers collected the injured man’s clothing but “not in relation to . . . the shooting where
the man was killed. It was under this R&I where we treated this person as a victim.”

       On cross-examination, Lieutenant Lockhart referenced the Memphis Police
Department’s crime scene investigation policy and procedure manual, which stated: “In
cases of aggravated assault where the victims have been transported to a medical facility, the
[c]rime [s]cene investigator should follow up his or her investigation with photographs of
injuries or to collect . . . items of clothing.”

       Officer Gerald Paige with the Crime Response Unit of the Memphis Police
Department testified that he was involved in the collection of evidence regarding a shooting
between a store clerk and a suspect at 2726 Perkins Road in Memphis where the suspect or
victim was taken to The Med. At The Med, Officer Paige retrieved several pieces of
clothing and personal items belonging to the defendant, who was known as a victim at the
time, as well as personal items belonging to another person. Officer Paige said that it was
not unusual for him to collect clothing from The Med that belonged to an injured victim or
suspect.

       On cross-examination, Officer Paige elaborated that an employee of The Med handed
him the property, and he did not know from where he or she retrieved it. He admitted that
he did not ask the defendant whether he could take the defendant’s property.

       The defendant testified that his clothing and other property were taken from him at
The Med without his permission the night he was injured. He asked that his property not
be taken from him and, after he was released, requested that his property be returned to him.
He did not know who took his property. On cross-examination, the defendant admitted that
he had surgery at the hospital, but then he elaborated that “[t]hey didn’t open [him] up. . .
. [He] was conscious all the time.” In any event, the hospital staff removed his clothing, and
he did not know what happened to it thereafter.

       Officer Ashton Britton with the Memphis Police Department testified that in the

                                             -12-
course of his duties, he had been to the emergency room at The Med and collected personal
items from a victim or someone receiving treatment. Officer Britton explained that, on such
occasions, he usually received the items from hospital staff, and they would be packaged in
a clear plastic bag. He had never personally taken items off a victim and had never received
items from anyone other than medical staff.

        Dr. Louis Magnotti testified that he was one of the attending trauma surgeons at The
Med but said he did not have anything to do with the defendant’s case. Dr. Magnotti looked
at the defendant’s medical records from The Med and noted that his clothing was cut off,
which was the typical practice to facilitate the care of a shooting victim. He explained that
if someone were admitted with two gunshots, all of the person’s clothing would be cut off
and collected by a healthcare provider, then recorded and bagged in a clear plastic bag. Dr.
Magnotti added that hospital policy dictated that only healthcare providers were allowed in
the trauma room until the initial resuscitation of the patient was over or the patient had died.

       On cross-examination, Dr. Magnotti stated that all of a patient’s belongings are
recorded, logged, and placed in a sealed container. He agreed that the belongings were
treated this way because the items were the individual’s personal property and were to be
kept private from others.

        In ruling on the motion to suppress, the trial court observed that the defendant was
not a suspect at the time he presented at the hospital and that the hospital staff, per its policy,
made the decision to turn the items of clothing and other belongings removed from the
defendant over to the police because the defendant appeared to be the victim of a shooting.
The court said that there was no governmental action involved in seizing the defendant’s
belongings, and the Fourth Amendment only limited intrusions by law enforcement. Relying
on State v. Cowan, 46 S.W.3d 227 (Tenn. Crim. App. 2000), the court also observed that
there can be no reasonable expectation of privacy “when a person is presented to a trauma
unit to have bullets taken from his person.”

       When this court reviews a trial court’s ruling on a motion to suppress evidence,
“[q]uestions of credibility of the witnesses, the weight and value of the evidence, and
resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of
fact.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The party prevailing at the
suppression hearing is afforded the “strongest legitimate view of the evidence and all
reasonable and legitimate inferences that may be drawn from that evidence.” State v. Keith,
978 S.W.2d 861, 864 (Tenn. 1998). The findings of a trial court in a suppression hearing
are upheld unless the evidence preponderates against those findings. See id. However, the
application of the law to the facts found by the trial court is a question of law and is
reviewed de novo. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001); State v. Crutcher, 989

                                               -13-
S.W.2d 295, 299 (Tenn. 1999); State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).

       Both the Fourth Amendment to the United States Constitution and article I, section
7 of the Tennessee Constitution protect individuals against unreasonable searches and
seizures. See U.S. Const. amend. IV; Tenn. Const. art. I, § 7. “These constitutional
provisions are designed to ‘safeguard the privacy and security of individuals against
arbitrary invasions of government officials.’” Keith, 978 S.W.2d at 865 (quoting Camara
v. Municipal Court, 387 U.S. 523, 528 (1967)). A search or seizure conducted without a
warrant is presumed unreasonable, and evidence obtained as a result will be suppressed
“unless the prosecution demonstrates by a preponderance of the evidence that the search or
seizure was conducted pursuant to an exception to the warrant requirement.” Id. (citations
omitted).

       Upon review of this issue, we conclude that the defendant’s argument regarding
suppression of his clothing and the results obtained from the testing of his clothing is moot.
The record shows that the State obtained a search warrant, which is unchallenged by the
defendant, and thereby obtained the defendant’s DNA. The defendant’s DNA tied the
defendant to the scene. At oral argument, defense counsel suggested that the defendant’s
unlawfully obtained clothing was essentially the basis for the search warrant obtained by the
State. However, it does not appear that the search warrant is in the record, and there is no
proof in the record as to the basis for the search warrant. It further does not appear that the
defendant ever contested the legality of the search warrant, which we presume that the
warrant would have been contested had there been a basis for contesting it. Therefore, the
defendant is not entitled to relief on this issue because the defendant was tied to the scene
by lawfully obtained evidence.

                                  III. Surveillance Video

       The defendant raises several errors regarding the trial court’s admission of the
surveillance videotape into evidence. He asserts that the video lacked a proper foundation
and was never authenticated. He claims that the authentication by Sergeant Sloan was
insufficient because Sergeant Sloan was not present during the shooting nor was he aware
of “the keeping of the tapes by the store owner in the ordinary course of business.” The
defendant further asserts that after the tape was admitted, the court allowed irrelevant and
prejudicial sound portions of the video to be played. He maintains that the only relevant
portion of the videotape was the actual shooting of the victim, but, instead, the video was
allowed to continue playing, displaying “a series of irrelevant and prejudicial screams and
moans.”



                                             -14-
       Proffered evidence must be authenticated or identified as a condition precedent to
admissibility. Tenn. R. Evid. 901(a). This requirement is satisfied “by evidence sufficient
to the court to support a finding by the trier of fact that the matter in question is what its
proponent claims.” Id. Authentication may be established by the testimony of a witness
with knowledge that a matter is what it is claimed to be. Id. R. 901(b)(1). The trial court
is the “arbiter of authentication issues,” and the court’s discretion will not be disturbed
absent clear mistake. Tenn. R. Evid. 901, Advisory Commission Cmts.; State v. Mickens,
123 S.W.3d 355, 376 (Tenn. Crim. App. 2003).

       As to the authentication of the videotape, the trial court found that Sergeant Sloan’s
testimony served to authenticate that the video in question was the video recovered from the
crime scene on December 20, 2005. The court noted Sergeant Sloan’s testimony that, upon
arriving at the scene, he checked to see whether a surveillance video was available and that
a person purporting to be the store owner’s wife telephoned and he told her to have the store
owner come to the store so he could view the videotape. Sergeant Sloan testified that the
purported owner arrived, they reviewed the videotape, and he identified the videotape “as
the tape that he picked up from Citgo on December 20th, 2005[.]” The trial court observed
that the information on the tape was consistent with and supplemented the testimonies of
Tina Watkins and Officer Bennie Washington. In addition, the defendant later testified that
he was the gunman seen on the video shooting the victim. In light of this evidence, we
cannot conclude that the trial court made a clear mistake in determining that the video “in
question [wa]s what its proponent claim[ed].”

        Tennessee Rule of Evidence 401, which governs the initial issue of admissibility,
requires the trial court to determine whether the proffered evidence is relevant. Evidence
is relevant if it has “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. Tennessee Rule of Evidence 403 provides that, even if
relevant, evidence may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice. While it can be said that photographs of crime victims who
suffer serious bodily injury are prejudicial by their very nature, a prejudicial photograph is
not per se excludable. What is excluded is evidence which is unfairly prejudicial, in other
words, evidence which has an undue tendency to suggest a decision on an improper basis,
frequently, though not necessarily, an emotional one. State v. Banks, 564 S.W.2d 947, 951
(Tenn. 1978).

        As to the relevancy and prejudicial effect of the post-shooting portion of the
videotape, the trial court found that whatever transpired after the shooting would be relevant
to the State’s allegation of premeditated murder in count two. In particular, the court noted
that the video showed, as indicative of premeditation, that the defendant failed to render aid

                                             -15-
or call 911 to report the crime. The court observed that the video was not particularly
gruesome or horrifying. The court concluded that the prejudicial effect of the video did not
substantially outweigh its probative value.

        We cannot conclude that the trial court abused its discretion in reaching this decision.
As noted by the trial court, what transpired after the shooting was relevant to the issue of
premeditation, specifically that the defendant rendered no aid to the victim. The post-
shooting portion of the video also established that the crime scene was not altered or
changed in any way until the discovery of the victim. This court has previously found that
because the State had the burden of proof, the trial court did not abuse its discretion in
allowing twenty minutes of a trooper in-car camera to be played to the jury in which the
trooper was shown lying dead in the road. See State v. Orlando Daniel Garcia, No. W2009-
00164-CCA-R3-CD, 2010 WL 3766942, at *8 (Tenn. Crim. App. Sept. 28, 2010), perm. to
appeal denied (Tenn. Mar. 9, 2011). Moreover, that the jury was unable to reach a verdict
on count one of the indictment indicates that the jury was not unduly swayed by emotion
caused from watching the video. Thus, even if it were error for the post-shooting portion
of the videotape to be shown to the jury, such error had no impact on the verdict. See Tenn.
R. App. P. 36(b).

                                   IV. Identity of Victim

        The defendant argues that the State failed to establish the identity of the dead person.
He asserts that no one actually testified that the deceased was “Abdiaziz Ali,” the victim
named in the indictment, and the thirteen various forms of identification recovered from the
deceased’s belongings were in six different names. He also points out that two exhibits of
body fluid samples recovered from the scene noted two different dates of birth for the
victim, and those dates were different than the date of birth listed on two of the forms of
identification recovered from the deceased.

       “‘Corpus delicti’ literally means the body of the crime.” State v. Ellis, 89 S.W.3d
584, 600 (Tenn. Crim. App. 2000). Two elements, which must be proven by the State
beyond a reasonable doubt, make up the corpus delicti: “(1) That a certain result has been
produced, and (2) That the result was created through criminal agency.” State v. Ervin, 731
S.W.2d 70, 71-72 (Tenn. Crim. App. 1986); see Ellis, 89 S.W.3d at 600. “The evidence to
establish the corpus delicti in cases of homicide must show that the life of a human being
has been taken, which question involves the subordinate inquiry as to the identity of the
person charged to have been killed[.]” Bolden v. State, 203 S.W. 755, 755 (Tenn. 1918).
In addition to any confession by the defendant, some corroborating evidence is required to
establish the corpus delicti of the offense charged. State v. Smith, 24 S.W.3d 274, 281
(Tenn. 2000). However, when the defendant has made a confession, the corroborative

                                             -16-
evidence “need not be as convincing as the evidence necessary to establish a corpus delicti
in the absence of any confession.” Ricketts v. State, 241 S.W.2d 604, 606 (Tenn. 1951).
Whether the State has sufficiently established the corpus delicti is primarily a jury question.
State v. Jones, 15 S.W.3d 880, 891 (Tenn. Crim. App. 1999).

        At the motion for new trial, the trial court noted that even though the victim “may
have had different identifications on him . . . under other names other than Ali, but there is
no doubt that the person for whom [the defendant] was convicted of killing is, in fact,
dead[.]” The court observed that Tina Watkins knew the victim as a result of her regular
visits to the store and that there was sufficient proof that the deceased was Abdiaziz Ali
despite the fact he had other identifications on him.

       Tina Watkins testified that she was a regular customer of the Citgo store. On the
night of the shooting, Watkins entered the store and discovered the store clerk wounded, but
alive. She called 911 and remained until the police officers arrived. Watkins identified a
photograph taken from the Virginia driver’s license of Ali Abdiaziz as the Citgo store clerk
whom she discovered that night. Officer Bennie Washington testified that he responded to
the scene where he found the store clerk lying on the floor, having been shot. Officer
Washington called for an ambulance, which arrived to transport the victim to the hospital.

        Officer Gerald Paige testified that he responded to the hospital where he collected,
among other things, the victim’s wallet containing multiple forms of identification.
Although several pieces of identification bore different names, six of the identifications bore
the name Ali Abdiaziz. Only three of the identifications collected from the victim had
photographs on them, and each of those was in the name of Ali Abdiaziz and appeared to
have the same person in the photographs. One of the photograph identifications was the
Virginia driver’s license, which contained the photograph that Watkins was shown to
identify the victim. In addition, a check from Night and Day Food Mart made out to Ali
Abdiaziz was in the victim’s wallet. Dr. Funte testified that an autopsy was performed on
a subject identified as Abdiaziz Ali on December 20, 2005. Various photographs were taken
of the deceased, and those were entered into evidence at the trial. Dr. Funte testified that the
victim died of multiple gunshot wounds. Moreover, the defendant admitted that he was the
man shown on the surveillance video shooting the store clerk. In light of the sum of this
evidence, we conclude that the State met its burden of proof regarding corpus delicti.

       However, as conceded by the State, the defendant’s argument possibly raises the issue
of a variance between the indictment and the proof at trial because the name included in the
indictment was Abdiaziz Ali, but the bulk of the proof identified the victim as Ali Abdiaziz.

       A variance arises when the proof presented at trial departs from the allegations in the

                                             -17-
indictment. State v. Keel, 882 S.W.2d 410, 416 (Tenn. Crim. App. 1994). Before a variance
will be deemed fatal to a prosecution, it must be both material and prejudicial. State v.
Moss, 662 S.W.2d 590, 592 (Tenn. 1984). In general, a variance between an indictment and
the proof at trial

       is not fatal if (1) the defendant is sufficiently informed of the charges levied
       against him so that he can adequately prepare for trial and, (2) the defendant
       is protected against a subsequent prosecution for the same offense based on
       double jeopardy grounds. The variance is not to be regarded as material when
       the indictment and proof substantially correspond. A material variance occurs
       only if the prosecutor has attempted to rely at the trial upon theories and
       evidence that were not fairly embraced in the allegations made in the
       indictment.

State v. Mayes, 854 S.W.2d 638, 640 (Tenn. 1993) (citations omitted). As long as the
defendant is not misled at trial, any variance is not considered to be a basis for reversal.
Johnson v. State, 596 S.W.2d 97, 103 (Tenn. Crim. App. 1979).

        In this case, the indictment listed the victim’s name as Abdiaziz Ali and charged that
the defendant killed Abdiaziz Ali on December 20, 2005. The proof at trial showed that the
victim had six forms of identification bearing the name Ali Abdiaziz. The proof at trial also
showed that the victim and the defendant engaged in a gun battle on December 20, 2005.
Given these facts, we cannot conclude that the transposition of the victim’s first and last
names on the indictment misled the defendant of the charges he had to defend against or
failed to protect him against subsequent prosecution for the same offense based on double
jeopardy grounds.

                                   V. Closing Argument

       The defendant argues that the State’s rebuttal argument improperly shifted the burden
of proof from the State to the defendant.

        During the defendant’s closing argument, defense counsel argued that the incident
at the Citgo was not an attempted robbery. He emphasized that no money was taken and that
the defendant had a regular job and was not in need of money. In rebuttal, the prosecutor
pointed out that there was no objective proof of the defendant’s employment by stating,
“He’s gainfully employed; he’s making all this money - of course, that’s what he says. No
employer or past employer has come in and said he worked a certain amount of time[.]”
Defense counsel objected, and the court ruled that the State was responding to the defense
arguments.

                                             -18-
        Tennessee courts “have traditionally provided counsel with a wide latitude of
discretion in the content of their final argument” and trial judges with “wide discretion in
control of the argument.” State v. Zirkle, 910 S.W.2d 874, 888 (Tenn. Crim. App. 1995).
A party’s closing argument “must be temperate, predicated on evidence introduced during
the trial, relevant to the issues being tried, and not otherwise improper under the facts or
law.” State v. Middlebrooks, 995 S.W.2d 550, 557 (Tenn. 1999). The five generally
recognized areas of prosecutorial misconduct in closing argument occur when the prosecutor
intentionally misstates the evidence or misleads the jury on the inferences it may draw from
the evidence; expresses his or her personal opinion on the evidence or the defendant’s guilt;
uses arguments calculated to inflame the passions or prejudices of the jury; diverts the jury
from its duty to decide the case on the evidence by injecting issues broader than the guilt or
innocence of the accused under the controlling law or by making predictions on the
consequences of the jury’s verdict; and intentionally refers to or argues facts outside the
record, other than those which are matters of common public knowledge. State v. Goltz, 111
S.W.3d 1, 6 (Tenn. Crim. App. 2003).

       For a defendant to be entitled to a new trial on the basis of allegedly improper
remarks during the closing argument, they must be shown to have prejudiced the case by
affecting the jury’s verdict. Middlebrooks, 995 S.W.2d at 559. In determining whether this
occurred, we consider the following factors: (1) the conduct viewed in light of the
circumstances and facts in the case; (2) any curative measures taken by the trial court and
the prosecution; (3) the prosecutor’s intent in making the improper statements; (4) the
cumulative effect of the prosecutor’s statements and other errors in the record; and (5) the
relative strength and weakness of the case. Id. at 560.

        Upon review, we discern no error in the trial court’s overruling the defendant’s
objection to the State’s rebuttal argument. The State’s argument was clearly in response to
the defendant’s repeated emphasis in closing that he had no motive to commit a robbery
because he was gainfully employed and earned decent compensation. “Where the criminal
defendant raises an issue in his defense, he cannot complain of references to the issue by the
prosecution, or argument on that issue, so long as the argument is fairly warranted by the
facts and circumstances of the case.” State v. Sutton, 562 S.W.2d 820, 823-24 (Tenn. 1978).

        In any event, the defendant cannot show that he was prejudiced by the rebuttal
argument of the State because the jury was unable to reach a verdict on the felony murder
count and a mistrial was declared, and evidence concerning the defendant’s financial
situation was clearly more applicable to the charge of murder during the attempted
perpetration of a robbery and not the charge of premeditated murder.



                                             -19-
                              VI. Sufficiency of the Evidence

        The defendant challenges the sufficiency of the convicting evidence, arguing that
there was no evidence that the killing was intentional and premeditated and, again, that the
State failed to prove that the person named in the indictment was the person actually killed.
When the sufficiency of the convicting evidence is challenged, the relevant question of the
reviewing court is “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Tenn.
R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury shall
be set aside if the evidence is insufficient to support the findings by the trier of fact of guilt
beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State
v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992).

        All questions involving the credibility of witnesses, the weight and value to be given
the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the
trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in
favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our
supreme court stated the rationale for this rule:

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

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212
Tenn. 464, 370 S.W.2d 523 (1963)).

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

      First degree murder is “[a] premeditated and intentional killing of another [.]” Tenn.
Code Ann. § 39-13-202(a)(1) (2006). “Premeditation” is defined in our criminal code as



                                              -20-
       an act done after the exercise of reflection and judgment. “Premeditation”
       means that the intent to kill must have been formed prior to the act itself. It is
       not necessary that the purpose to kill pre-exist in the mind of the accused for
       any definite period of time. The mental state of the accused at the time the
       accused allegedly decided to kill must be carefully considered in order to
       determine whether the accused was sufficiently free from excitement and
       passion as to be capable of premeditation.

Id. § 39-13-202(d).

        Whether premeditation exists in any particular case is a question of fact for the jury
to determine based upon a consideration of all the evidence, including the circumstantial
evidence surrounding the crime. See State v. Suttles, 30 S.W.3d 252, 261 (Tenn. 2000);
State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997); State v. Pike, 978 S.W.2d 904, 914
(Tenn. 1998). Facts from which the jury may infer premeditation include the defendant’s
declaration of an intent to kill the victim; the use of a deadly weapon upon an unarmed
victim; the establishment of a motive for the killing; the particular cruelty of the killing; the
infliction of multiple wounds; the defendant’s procurement of a weapon, preparations to
conceal the crime, and destruction or secretion of evidence of the killing; and the defendant’s
calmness immediately after the killing. State v. Jackson, 173 S.W.3d 401, 409 (Tenn. 2005);
State v. Thacker, 164 S.W.3d 208, 222 (Tenn. 2005); State v. Leach, 148 S.W.3d 42, 54
(Tenn. 2004); State v. Nichols, 24 S.W.3d 297, 302 (Tenn. 2000); Bland, 958 S.W.2d at 660.

        The evidence in this case, specifically the store surveillance video and Dr. Funte’s
testimony, when viewed in the light most favorable to the State, establishes that the
defendant killed the victim “after the exercise of reflection and judgment.” The video
showed that the defendant and two confederates walked into the Citgo store wearing hoods
and masks. The defendant removed his gun from his holster, and his two confederates left
the store. The defendant approached the victim, and the two exchanged gunfire while in a
standing position. The victim fell down and the defendant started to leave the store.
However, the defendant removed his hood, returned to the victim, and fired one more shot
as the victim tried to move away. It appears as though the victim grabbed his torso after the
last shot.

        Dr. Funte testified that the gunshot wound to the chest caused “pretty major injuries,”
including damage to the pancreas, small intestine, liver, inferior vena cava, and kidney and
that the trajectory was from up to down. Given the angle of the chest wound and the video
showing the victim grabbing his torso after the last shot, a rational trier of fact could
conclude that the defendant, instead of leaving the store, returned to the victim to fire a final
shot to ensure his death. Moreover, the defendant failed to render aid to the victim, which

                                              -21-
permits the jury to infer that the defendant’s actions were premeditated. See State v. Lewis,
36 S.W.3d 88, 96 (Tenn. Crim. App. 2000). It was within the province of the jury to reject
the defendant’s assertion that the gun accidentally fired when he returned to the victim to
remove the gun from his hand. In addition, as already addressed above, there was sufficient
proof that “the individual in the indictment or in the video had actually been killed.”

                                      VII. Jury Charge

       The defendant argues that the “acquittal-first” instruction charged by the court
precluded the jury from considering lesser-included offenses, specifically voluntary
manslaughter. He asserts that because voluntary manslaughter requires that one act
intentionally or knowingly plus the additional element of in “a state of passion produced by
adequate provocation[,] . . . it is theoretically impossible” for the jury to consider the offense
of voluntary manslaughter unless it has already found him guilty of a greater offense that
only requires that the killing be intentional or knowing but not in “a state of passion.”

       In this case, the trial court instructed the jury on the indicted offense of first degree
murder and the lesser-included offenses of second degree murder, facilitation of first degree
murder, facilitation of second degree murder, voluntary manslaughter, facilitation of
voluntary manslaughter, reckless homicide, and criminally negligent homicide. The trial
court also instructed the jury not to consider the lesser-included offenses unless it first
acquitted the defendant of the greater offense.

        The defendant acknowledges that sequential offense instructions are approved by the
Tennessee Supreme Court, see State v. Davis, 266 S.W.3d 896 (Tenn. 2008), but he urges
that “in practicality [such instructions are] flawed when it comes to the theory behind the
instruction.” In Davis, our supreme court held that

       where a criminal defendant is entitled to jury instructions on lesser-included
       offenses, the trial court shall instruct the jury to consider the offenses in order
       from greatest to least within each count of the indictment and that it shall not
       proceed to consider any lesser-included offense until it has first made a
       unanimous determination that the defendant is not guilty of the
       immediately-preceding greater offense.

Davis, 266 S.W.3d at 910. The court additionally endorsed the giving of sequential
instructions as a matter of policy. Id. at 905-08. We are bound to follow the dictates of our
supreme court, which has determined that sequential jury instructions are appropriate and
constitutional. It is not the province of this court to second-guess that decision. Moreover,
as indicated by the court in Davis, the jury, although not doing so explicitly, simultaneously

                                              -22-
considers lesser-included offenses supported by the proof when it considers the greater
offense, at least with respect to lesser-included offenses whose statutory elements are
included in the statutory elements of the greater offense which is the case here. Id. at 904.
Thus, the jury knew that it could acquit on a more serious charge in favor of convicting on
the lesser offense of voluntary manslaughter but chose not to do so. The defendant is not
entitled to relief on this issue.

                                     VIII. Verdict Form

       The defendant lastly argues that the verdict form used by the trial court was
inconsistent in that it emphasized the necessity for a unanimous verdict of not guilty but did
not emphasize the necessity for a unanimous verdict of guilty. He asserts that the
instructions misled the jury into thinking it could return a less than unanimous guilty verdict.

        We initially note that although the defendant objected to the verdict form on the basis
of its providing for “acquittal-first,” it does not appear that the defendant ever objected on
the basis of inconsistency regarding a unanimous verdict and has therefore waived review
of this issue. See Tenn. R. App. P. 36(a).

        Waiver notwithstanding, the defendant is not entitled to relief on this issue.
Defendants have 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 have the duty to give
“a complete charge of the law applicable to the facts of the case.” State v. Davenport, 973
S.W.2d 283, 287 (Tenn. Crim. App. 1998) (citing State v. Harbison, 704 S.W.2d 314, 319
(Tenn. 1986)). When reviewing challenged jury instructions, we must look at “the charge
as a whole in determining whether prejudicial error has been committed.” In re Estate of
Elam, 738 S.W.2d 169, 174 (Tenn. 1987); see also State v. Vann, 976 S.W.2d 93, 101
(Tenn. 1998). A charge is prejudicially erroneous “if it fails to fairly submit the legal issues
or if it misleads the jury as to the applicable law.” Vann, 976 S.W.2d at 101; State v.
Hodges, 944 S.W.2d 346, 352 (Tenn. 1997).

         In its opening instructions to the jury, the trial court informed the jury that it could
not find the defendant guilty unless it determined, unanimously, that the State had proven
the essential elements of the crime beyond a reasonable doubt. In its final written
instructions to the jury, the court stressed that “[a]ny verdict . . . reach[ed] in the jury room,
whether guilty or not guilty, must be unanimous.” A page and a half later, the instructions
provided that if the jury found the defendant guilty, it should return a verdict of guilty, but
if it unanimously found him not guilty, it should then consider lesser-included offenses. The
instructions further provided that if the jury unanimously found the defendant not guilty of
any lesser-included offenses, then it should return such verdict, but if it unanimously found

                                              -23-
him guilty of any lesser-included offense, then that would be its verdict. In its final oral
instructions to the jury, among other things, the court stressed, “And after you’ve deliberated
on this case . . . whether it’s guilty, not guilty, or guilty of lesser-included offenses, your
verdict has to be unanimous.” Upon our review, it is clear that the totality of the trial court’s
instructions to the jury and the attendant verdict form provided that the jury’s decision,
whether guilty or not guilty, must be unanimous. Thus, the defendant is not entitled to relief
on this issue.

                                       CONCLUSION

        Based on the foregoing authorities and reasoning, we affirm the judgment of the
trial court.

                                                     _________________________________
                                                     ALAN E. GLENN, JUDGE




                                              -24-
