        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs April 12, 2016

       STATE OF TENNESSEE v. YTOCKIE FULLER aka YTEIKIE
                        WASHINGTON

                 Appeal from the Circuit Court for Madison County
                      No. 14399 Roy B. Morgan, Jr., Judge
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             No. W2015-00965-CCA-R3-CD - Filed November 15, 2016
                    ___________________________________

The defendant, Ytockie Fuller aka Yteikie Washington, was convicted of first degree
murder, Tenn. Code Ann. § 39-13-202, and possession of a firearm after a felony
conviction, Tenn. Code Ann. § 39-17-1307(b)(1)(A). On appeal, the defendant
challenges the sufficiency of the evidence supporting the first degree murder conviction
arguing that the State failed to prove premeditation. Additionally, the defendant contends
that statements made by the victim in a recorded telephone call prior to his death were
inadmissible hearsay and that the State‟s multiple playing of the recording served to
inflame the jury. After our review, we conclude that the defendant‟s arguments are
without merit. Accordingly, we affirm the judgments of the trial court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which ALAN E. GLENN
and ROBERT H. MONTGOMERY, JR., JJ., joined.

Stephen M. Milam, Lexington, Tennessee, for the appellant, Ytockie Fuller.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Jerry Woodall, District Attorney General; and Jody S. Pickens,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                                        FACTS

      On March 11, 2014, Aljernon Lloyd, Jr. died after being shot in the face by the
defendant in Jackson, Tennessee. Prior to the shooting, the victim took his companion,
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Katherine Dickerson, and her daughter shopping in his car. The three ended the shopping
trip at Ms. Dickerson‟s house in Jackson. Before arriving at the house, the victim
received a telephone call from Steve McCorry. Because Mr. McCorry was an inmate
with the Illinois Department of Corrections, the phone call was recorded.

       Once at home, Ms. Dickerson began unloading the shopping bags while the victim
continued his conversation with Mr. McCorry in the car. The defendant soon pulled up
to Ms. Dickerson‟s house in a green Ford Explorer. The defendant briefly interacted with
Ms. Dickerson‟s daughter before telling Ms. Dickerson to take her daughter inside so that
he could “holler” at the victim. The defendant and Ms. Dickerson began to argue. She
told the defendant that he did not need to speak with the victim. The defendant got angry
and told her to “shut the f**k up.” Ms. Dickerson responded in kind, and the defendant
yelled: “You think I‟m something to play with?” By this time, the defendant had pulled
out a gun that had been concealed on his hip and was standing by the driver‟s side door of
the victim‟s car.

        The victim was sitting in the driver‟s seat of his car, unarmed. As the defendant
approached him, the victim stopped his conversation with Mr. McCorry. The victim said:
“Hold up, this man‟s got a pistol.” The victim tried to explain to the defendant that he
was “giving the baby a ride.” However, the defendant called the victim a “punk a**
n*****” and shot the victim in the face. Ms. Dickerson did not see the defendant pull the
trigger, but she did hear the gunshot. The defendant dropped the gun and fled the scene
in the green Ford Explorer.

       After being shot, the victim drove in the direction to Jackson-Madison County
General Hospital which was close to Ms. Dickerson‟s house. However, he lost control of
his car and crashed into a house located less than a mile from the Dickerson residence.
The bullet had pierced the victim‟s right external carotid artery.

       The State provided testimony from officers who investigated the scene of the
shooting and the scene of the subsequent car accident. At the accident scene, officers
found the victim surrounded by blood and slumped over into the passenger‟s side of the
car. However, neither the responding officers nor the paramedics saw any signs of life
from the victim at the scene. The victim was transported to Jackson-Madison County
General Hospital where he was pronounced dead at 8:21 p.m. on March 11, 2014.

        Dr. Erin Carney, an expert forensic pathologist, performed an autopsy of the
victim. Dr. Carney testified that the victim died from a gunshot wound of the head and
neck. The bullet entered through the left side of the victim‟s upper lip and exited on the
right side of his neck. The trajectory of the bullet was consistent with someone standing
over the victim from a distance.

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       The scene of the shooting, the scene of the car accident, and the victim‟s car were
examined for evidence. Officers found a .40 caliber bullet near Ms. Dickerson‟s house.
A spent shell casing and projectile fragments were found in the victim‟s car. Eric
Warren, a ballistics and firearm identifications expert, testified that the .40 caliber bullet
and the shell casing were cycled through the same semi-automatic gun. The defendant‟s
fingerprints were not found on the victim‟s car.

       Officers then turned their search towards the defendant and the green Ford
Explorer. They found the Ford Explorer, which was owned by the defendant‟s girlfriend,
in Jackson the day after the shooting. However, the defendant was not found until two
days later when he turned himself in to a Jackson city police officer on March 13, 2014.

       The defendant testified at trial. He acknowledged the dialogue captured on the
McCorry phone call, but stated that he was acting in self-defense at the time of the
shooting. The defendant admitted to illegally carrying a .40 caliber Smith & Wesson gun
on the day of the shooting and that he knew the victim was unarmed. However, the
defendant explained that he only pulled out the gun after the victim hit him with the car.
The defendant stated that he feared for his safety and offered the following testimony:

              Once I was struck by the vehicle, when I‟m stumbling trying to keep
       my footing, I poured - - I literally poured out the gun and cocked it. Once
       he grabbed it from me pointing it in his direction, I grabbed the top of the
       car and I‟m running with the vehicle as he backing back and he panicking
       [be]cause the gun is on him. So he trying to get it out of my hand, I‟m
       trying to put it back, and I understand that he‟s scared, but I can‟t let the
       gun go now [be]cause he got it and he won‟t let it go, and we just heading
       on down the driveway.

According to the defendant, the gun went off when the victim‟s car hit the bottom of the
driveway. The defendant stated he did not intentionally pull the trigger. He dropped the
gun at the scene and left in the green Ford Explorer. The defendant further explained that
he went home to watch the news to see if the victim had been hurt. He then fled to his
sister‟s home in Nashville, despite knowing the police and U.S. Marshals were looking
for him.

       The jury convicted the defendant of first degree murder and possession of a
firearm after a felony conviction. Tenn. Code Ann. §§ 39-13-202; 39-17-1307(b)(1)(A).
The defendant received a life sentence without the possibility of parole for the first
degree murder conviction. The trial court imposed an eight-year sentence for the


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possession of a firearm after a felony conviction, to be served consecutively to the
defendant‟s life sentence.

       On appeal, the defendant argues the victim‟s statements made in the McCorry
phone call are hearsay and should have been excluded from evidence and that the State‟s
use of the McCorry phone call inflamed the jury. The defendant also argues there was
insufficient evidence to support the conviction of first degree murder. The defendant
does not challenge his conviction for possession of a firearm after a felony conviction on
appeal. The State contends the victim‟s statements from the McCorry phone call were
properly admitted into evidence under the excited utterance exception to the hearsay rule.
The State asserts the defendant waived any argument regarding the use of the McCorry
phone call at trial as it was not properly preserved for appeal. Finally, the State argues
the evidence was sufficient to convict the defendant of first degree murder. Upon our
review, we agree with the State.

                                       ANALYSIS

                                 I. The McCorry Phone Call

       The defendant argues the victim‟s statements in the McCorry phone call are
inadmissible as they do not fall under any exceptions to the hearsay rule. Hearsay is “a
statement other than one made by the declarant while testifying at a trial or hearing,
offered in evidence to prove the truth of the matter asserted.” Tenn. R. Evid. 801(c).
Generally, hearsay is not admissible unless an exception applies. Tenn. R. Evid. 802. An
excited utterance, or “[a] statement relating to a startling event or condition made while
the declarant was under the stress of excitement caused by the event or condition,” is an
admissible exception under the rule. Tenn. R. Evid. 803(2).

       In order to determine the admissibility of an alleged excited utterance, courts are
to apply a three-part test. First, the court must determine if a startling event or condition
occurred. The event “must be „sufficiently startling to suspend the normal, reflective
thought process of the declarant.‟” Kendrick v. State, 454 S.W.3d 450, 478 (Tenn. 2015),
cert. denied, 136 S. Ct. 335 (Oct. 13, 2015) (quoting State v. Gordon, 952 S.W.2d 817,
820 (Tenn. 1997)). Next, the court must determine whether the alleged statement relates
to the startling event. “A statement relates to the startling event when it describes all or
part of the event or condition, or deals with the effect or impact of that event or
condition.” Id. (citing State v. Stout, 46 S.W.3d 689, 699 (Tenn. 2001)). Finally, the
court must find that the statement was made while the declarant was under stress or
excitement from the startling event. Id. Courts should consider “whether the statement
suggests „spontaneity‟ and whether the statement has a „logical relation‟ to the shocking
event.” Id. (quoting Gordon, 952 S.W.2d at 820); see also State v. Smith, 857 S.W.2d 1,

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9 (Tenn. 1993); Garrison v. State, 40 S.W.2d 1009, 1011 (1931). When a statement
meets each prong of the test, it passes muster under the excited utterance exception to the
hearsay rule. Id.
       The three-part test guides this Court‟s review of the victim‟s statements in the
McCorry phone call. However, the Tennessee Supreme Court recently announced the
following standard regarding our review of hearsay evidence on appeal:

               The standard of review for rulings on hearsay evidence has multiple
       layers. Initially, the trial court must determine whether the statement is
       hearsay. If the statement is hearsay, the trial court must then determine
       whether the hearsay statement fits within one of the exceptions. To answer
       these questions, the trial court may need to receive evidence and hear
       testimony. When the trial court makes factual findings and credibility
       determinations in the course of ruling on an evidentiary motion, these
       factual and credibility findings are binding on a reviewing court unless the
       evidence in the record preponderates against them. Once the trial court has
       made its factual findings, the next questions – whether the facts prove that
       the statement (1) was hearsay and (2) fits under one of the exceptions to the
       hearsay rule – are questions of law subject to de novo review.

Id. at 479.

        Here, the facts in the record support the trial court‟s admittance of the victim‟s
statements in the McCorry phone call under the excited utterance exception to the
hearsay rule. Tenn. R. Evid. 803(2). The statements at issue, though not specifically
identified by the defendant, occurred as the defendant approached the victim with a gun.
The victim, who was on the phone with Mr. McCorry, said, “hold up, this man‟s got a
pistol.” The trial court specifically analyzed the victim‟s statements under the three
prongs of the excited utterance test in a motion to suppress hearing held prior to trial.
The court explained:

               The [c]ourt finds specifically looking to the totality of the
       circumstances as has been set forth to the [c]ourt today that this would have
       been a startling event. The statements relate to the event taking place,
       resulting in what the [d]efendant‟s been charged with at this point in time,
       and the statements were made while the declarant was in an excited state
       right in the middle of this event occurring, there again, a man showing up
       with a gun standing in his doorway of the car and having it cocked.

As a result, the trial court held the victim‟s statements were admissible under the excited
utterance exception to the hearsay rule.
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        The defendant now argues the victim‟s statements do not constitute excited
utterances because the victim was not sufficiently startled when the defendant
approached him and pulled out a concealed gun. The defendant claims that the victim
was “merely reporting information to the individual with whom he [was] conversing
rather than reacting to a startling event or condition.” We disagree.

       The record makes clear that while the victim was on the phone with Mr. McCorry,
the defendant got angry with Ms. Dickerson, cursed at the victim, approached the
victim‟s car, pulled out a concealed gun, and pointed it towards the victim. The victim
was sitting in his car, unarmed. These facts establish that a sufficiently startling event
occurred. The victim‟s statements regarding the defendant‟s possession of a gun relates
to the startling event of the defendant approaching him with a gun. Finally, the record
makes clear that the victim‟s statements were made while he was under stress from the
defendant‟s armed approach. The facts in the record surrounding the statements made by
the victim in the McCorry phone call meet the requirements of the excited utterance test.
Accordingly, the victim‟s statements were properly admitted into evidence at trial. See
Kendrick, 454 S.W.3d at 478-79. We affirm the ruling of the trial court.

       The defendant also argues that the victim‟s statements in the McCorry phone call
are not statements made under the belief of impending death pursuant to Rule 804(b)(2)
of the Tennessee Rules of Evidence. However, the defendant did not address this
argument in his motion for new trial. Tenn. R. App. P. 3(e). Further, the trial court
specifically ruled that the victim‟s statements were admitted into evidence as excited
utterances under Rule 803(2). Accordingly, the defendant has waived this argument on
appeal and it is without merit.

        In addition, the defendant contends that the State‟s use of the McCorry phone call
served to inflame the jury because the State played graphic portions of the call twice at
trial. The State responds by stating that the defendant has not properly preserved this
argument for appeal, that the defendant has not cited any legal authority for this
argument, and that the record does not clearly show that the jury heard the “graphic
material” a second time. After reviewing the record, we agree with the State. The
defendant has waived this issue by not specifically stating it in his motion for a new trial.
Tenn. R. App. P. 3(e). The defendant has not offered any legal authority to support this
argument. Tennessee Court of Criminal Appeals Rule 10(b) states that “[i]ssues which
are not supported by argument, citation to authority, or appropriate references to the
record will be treated as waived in this court.” See also Tenn. R. App. P. 27(a)(7). And
finally, the record does not adequately show that the jury heard the “graphic material” in
the McCorry phone call a second time. This argument is also without merit.


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                                II. Sufficiency of the Evidence

       Finally, the defendant argues the evidence presented at trial is insufficient to
support his conviction for first degree murder. When the sufficiency of the evidence is
challenged, appellate courts must determine “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). Appellate courts “do not reweigh the evidence but presume
that the jury has resolved all conflicts in the testimony and drawn all reasonable
inferences from the evidence in favor of the state.” State v. Adams, 45 S.W.3d 46, 55
(Tenn. Crim. App. 2000) (citing State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984);
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)). As a result, “„a jury verdict,
approved by the trial judge, accredits the testimony of the witnesses for the State.‟” State
v. Thorpe, 463 S.W.3d 851, 864 (Tenn. 2015) (quoting State v. Harris, 839 S.W.2d 54,
75 (Tenn. 1992)).

       Further, “[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). The Tennessee Supreme Court
explained as follows:

              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, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d
523, 527 (1963)). Guilt may be found beyond a reasonable doubt where there is direct
evidence, circumstantial evidence, or a combination of the two. State v. Matthews, 805
S.W.2d 776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331
(Tenn. 1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The standard of
review for sufficiency of the evidence “„is the same whether the conviction is based upon


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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)).

       The jury as the trier of fact must evaluate the credibility of the witnesses,
determine the weight given to witnesses‟ testimony, and reconcile all conflicts in the
evidence. State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008) (citing Byrge v. State,
575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)). The jury determines the weight to be
given to circumstantial evidence and the inferences to be drawn from this evidence.
Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)).
Further, the jury decides “„the extent to which the circumstances are consistent with guilt
and inconsistent with innocence.‟” Id. (quoting Rice, 184 S.W.3d at 662). This Court,
when considering the sufficiency of the evidence, shall not reweigh the evidence or
substitute its inferences for those drawn by the trier of fact. Id. Rather, “conflicts in the
testimony are resolved in favor of the verdict of the jury and the judgment of the trial
court, and the state is entitled to the strongest legitimate view of the evidence as well as
all reasonable and legitimate inferences that may be drawn therefrom.” Tuggle, 639
S.W.2d at 914 (citing Cabbage, 571 S.W.2d at 835).

        As charged in count one of the indictment, first degree murder is the
“premeditated and intentional killing of another.” Tenn. Code Ann. § 39-13-202(a)(1).
“„Premeditation‟ means that the intent to kill must have been formed prior to the act
itself.” Tenn. Code Ann. § 39-13-202(d). The Tennessee Supreme Court further defines
premeditation, and factors that support a finding of it, as follows:

               The elements of premeditation and deliberation are questions for the
       jury which may be established by proof of the circumstances surrounding
       the killing. There are several factors which tend to support the existence of
       these elements which include: the use of a deadly weapon upon an unarmed
       victim; the particular cruelty of the killing; declarations by the defendant of
       an intent to kill; evidence of procurement of a weapon; preparations before
       the killing for concealment of the crime, and calmness immediately after
       the killing.

State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997) (internal citations omitted) (citing
State v. Brown, 836 S.W.2d 530, 541-42 (Tenn. 1992)); State v. West, 844 S.W.2d 144,
148 (Tenn. 1992).

      The defendant challenges the sufficiency of the evidence supporting his first
degree murder conviction by arguing that the State failed to prove premeditation after the
defendant testified that he accidentally shot the victim. In support of this argument, the
defendant asserts that before he pulled out the concealed gun, the victim hit him with the

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victim‟s car. The defendant testified that after being hit, he pulled out the gun and then he
and the victim struggled over the gun. The defendant asserts he “accidentally” pulled the
trigger after “the impact of the victim‟s vehicle [hit] the street from the driveway.”
Further, the defendant argues that the series of events leading up to the victim‟s shooting
and death are disputable. He states that the defendant “was the only eyewitness to events
and the audio recording does not provide sufficient information to nullify the
[defendant‟s] testimony that the shooting was accidental.” We disagree.

        After a thorough review of the record, we conclude that the evidence presented at
trial supports the defendant‟s conviction for first degree murder. The record shows that
the defendant shot the victim in the face and the victim died of a gunshot wound to the
head and neck. The audio recording of the McCorry phone call and the corresponding
witness testimony outlined the interactions between the victim and the defendant leading
to the gunshot. Specifically, the defendant cursed at the victim, approached the unarmed
victim sitting in his car, engaged a concealed gun, shot the victim in the face, and then
fled the scene. The defendant testified that he acted in self-defense after the victim hit
him with his car. However, the jury heard the defendant‟s testimony regarding the
accidental nature of the shooting, weighed it in relation to the other evidence presented at
trial, and reconciled all of the evidence in favor of the State. This court will not reweigh
the evidence. Dorantes, 331 S.W.3d at 379. Accordingly, we conclude that sufficient
evidence exists to support the defendant‟s first degree murder conviction. The judgment
of the trial court is affirmed.

                                     CONCLUSION

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

                                   ____________________________________________
                                   THOMAS T. WOODALL, PRESIDING JUDGE




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