        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                January 6, 2015 Session

           STATE OF TENNESSEE v. TRAVIS LAMONTE STEED

                  Appeal from the Criminal Court for Madison County
                       No. 12-523    Donald H. Allen, Judge


                No. W2014-00146-CCA-R3-CD - Filed May 14, 2015



The defendant, Travis Lamonte Steed, was convicted by a Madison County Criminal
Court jury of first degree felony murder; second degree murder, a Class A felony; felony
reckless endangerment, a Class E felony; convicted felon in possession of a handgun, a
Class E felony; and attempted second degree murder, a Class B felony. The court
sentenced the defendant as a Range I, violent offender to concurrent sentences of life for
the felony murder conviction and twenty-five years for the second degree murder
conviction. The court sentenced the defendant as a Range II, multiple offender to twenty
years for the attempted second degree murder conviction and four years each for the felon
in possession of a handgun and felony reckless endangerment convictions. The court
ordered that the defendant serve the four-year sentences for felony reckless endangerment
and felon in possession of a handgun concurrently to each other but consecutively to the
twenty-year sentence for attempted second degree murder. The court also ordered that
the defendant serve the twenty-year sentence for attempted second degree murder
consecutively to the life sentence, for a total effective sentence of life plus twenty-four
years in the Department of Correction. The defendant raises three issues on appeal: (1)
whether the evidence is sufficient to sustain his murder and attempted murder
convictions; (2) whether the jury‟s verdicts finding him guilty of first degree felony
murder and attempted second degree murder are mutually exclusive; and (3) whether the
trial court erred in ordering consecutive sentencing. Following our review, we affirm the
judgments of the trial court but remand for entry of corrected judgments to reflect that the
defendant‟s second degree murder conviction is merged into his felony murder
conviction.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
                and Remanded for Entry of Corrected Judgments
ALAN E. GLENN, J., delivered the opinion of the court, in which CAMILLE R. MCMULLEN
and ROGER A. PAGE, JJ., joined.
George Morton Googe, District Public Defender; and Gregory D. Gookin, Assistant
Public Defender, for the Defendant-Appellant, Travis Lamonte Steed.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;
James G. Woodall, District Attorney General; and Shaun A. Brown, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                       OPINION

                                        FACTS

       On the night of February 26, 2012, a party in a downtown Jackson nightclub ended
in gunfire that left over a dozen people injured and one man dead. The defendant was
subsequently indicted by the Madison County Grand Jury with the premeditated first
degree murder of LeCarlos Todd, the first degree felony murder of Todd in the
perpetration of the attempted first degree premeditated murder of Triveno Freeman, the
attempted first degree premeditated murder of Freeman, the aggravated assault of Jarvis
Rockamore, the aggravated assault of Solomon Robinson, and being a felon in possession
of a handgun.

        Jerry Gardner, who was the agent for Karma Ultra Lounge in February 2012,
testified that on the night of February 26, 2012, the club was holding a homecoming party
for Lane College, with a little over 200 in attendance. At approximately 2:00 a.m., he
was standing outside the front door to the club when he heard gunfire and saw patrons
running out of the club. He went around the side of the building, saw people coming out
the back door, and then went back around to the front. The gunfire started up again as he
was about to go inside the front door, so he went to the end of the building to raise the
double garage doors. When the building finally cleared out, he saw the defendant crawl
out the door and roll over onto his back.

        Investigator Ron Pugh of the Jackson Police Department‟s Violent Crimes Unit
identified the copy he had made of the club‟s surveillance footage of the incident, which
was admitted as an exhibit and played for the jury.

        Officer John Reese of the Jackson Police Department testified that at 2:00 a.m. on
February 26, 2012, he responded to a shots-fired call at the Karma Lounge in downtown
Jackson. The scene was chaotic, with “people running everywhere,” and by the time he
had taken two steps from his patrol car, a man came up to him and said he had been shot.
After calling for an ambulance, Officer Reese began making his way toward the building.
En route, he encountered a second injured person lying on the sidewalk and a third, later
identified as the defendant, lying in front of the garage doors. He stopped to assist the
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defendant, who had a fractured wrist, blood coming from his leg, and an entrance wound
to his torso, while his partner, Officer Arnold, continued inside the building, where
several people were performing CPR on a “totally unresponsive” victim.

       When he went inside the club to help sweep for suspects, Officer Reese observed
cell phones, IDs, blood and blood trails, several projectiles and .45 and .380 casings, and
a semi-automatic .45 caliber Smith and Wesson, which was located near the bar. On
cross-examination, he testified that he personally encountered twelve or thirteen different
gunshot victims at the scene.

       Officer Michael Arnold of the Jackson Police Department testified that when he
arrived at the club a few minutes after 2:00 a.m. on February 26, 2012, he observed
“hundreds of people trying to get out from inside the club,” as well as several people with
gunshot wounds. He entered the club to secure the scene and found an unresponsive
victim, later identified as LeCarlos Todd, lying on the floor behind the DJ booth with a
gunshot wound to the upper left side of his chest. Several individuals were standing
around him, and a young woman was beside him attempting CPR. He pulled away the
young woman and the other individuals, checked Todd‟s vital signs, found that he had no
pulse and was not breathing, and began performing CPR himself. He continued
performing CPR after EMS arrived, stopping only after Todd had been loaded into the
ambulance.

       Officer Arnold testified that after EMS transported Todd from the scene, he went
back inside the club, where he observed shell casings, a magazine lying in the middle of
the floor on the lower level of the club, and a handgun by the bar. He started to clear the
handgun to make it safe but then realized that it was “stove-piped,” or jammed, and
therefore left it alone without touching it.

        Officer Joseph King of the Jackson Police Department testified that he responded
to the scene to find “massive chaos,” with gunshot victims exiting the club, other victims
lying on the ground, and “vehicles . . . leaving in a hurry.” As he got out of his patrol
vehicle, he was approached by several gunshot victims asking for help. After directing
them to either the hospital or EMS, he continued toward the nightclub, where he observed
the defendant lying on the ground in front of the door with multiple gunshot wounds.

        Sergeant Shane Beaver of the Jackson Police Department, who was down the
street from the Karma Lounge at the time of the shooting, testified that he first noticed
some people running from the club and then heard what sounded like gunshots. He drove
to the club, pulling up close to the front door as a “stampede of people” came out of the
building, with some rushing through the doors, others breaking windows to climb out,
and still others trampling each other in their haste to escape. Sergeant Beaver testified
                                            3
that the first victim he came into contact with was the defendant, who was lying directly
in front of the business. He said he went inside the club, where an officer was
performing CPR on another gunshot victim who was “for the most part already
deceased[,]” and then went back outside, where “a bunch of other people just started
coming back with gunshot wounds.” He stated that the worst injuries were to the
deceased victim and to the defendant. The other gunshot victims, who numbered “in the
teens,” had “superficial wounds” to the bottoms of their feet, the backs of their legs, or to
their ankles.

       Sergeant Beaver identified himself on the club‟s video of the scene, which was
again played for the jury. He testified that he did not observe any weapon around the
defendant but inside the club found numerous shell casings and projectiles, as well as the
gun that was lying on the floor in the vicinity of the bar.

        Dr. Thomas Deering, a forensic pathologist who was present during the autopsy of
Todd‟s body, testified that the cause of death was multiple gunshot wounds, with Todd
having suffered a “through and through” gunshot wound to each thigh and a gunshot
wound to the torso in which the bullet entered the left upper chest, traveled downward
into the chest cavity, hit the left lung, the heart, and the aorta, and finally lodged in one of
the vertebra of the backbone on the right side of the victim‟s back. On cross-
examination, he acknowledged he could not determine in what position Todd had been
when shot or whether the wounds to his legs came from the same weapon as the wound
to his torso.

        Memphis resident Triveno Freeman, nicknamed “Veno,” a former Lane College
student, testified that he attended the February 26, 2012 homecoming party at the Karma
Lounge with several Memphis friends, including Solomon Robinson, nicknamed “Solo,”
two individuals nicknamed “Itchy,” and LeCarlos Todd. Sometime around 1:30 a.m., he
was walking across the crowded dance floor with some of his Memphis friends when he
grabbed a young woman‟s hand in an attempt to get her phone number. A man who was
walking with the woman responded by knocking into him with his shoulder, and the two
of them then got into a brief physical fight, exchanging several blows, until the man fell
down. At that point, Freeman said, he continued to the DJ area of the club, where he told
all his “Memphis people” what had just happened. A little later, the man he had fought
came up to the DJ area, shook “Mitchell‟s” hand, apologized, and told him that
everything was “cool.” Freeman and his Memphis friends then began to relax.
Approximately eight or nine minutes later, however, a man Freeman did not know, but
whom he identified in the courtroom as the defendant, walked up to the Memphis group,
pulled out a handgun, pointed it directly at Freeman, and fired two or three shots.



                                               4
         Freeman testified that he was struck by a bullet on his right elbow and that he
initially froze in shock. He said the people who were standing with him, including
LeCarlos Todd, fell back when the defendant started shooting and that Robinson, who
was standing right behind Todd, responded by pulling out a .45 handgun and shooting at
the defendant. The defendant ran toward the middle of the dance floor, returning fire as
he ran, while Freeman ran toward the back door of the club, where he paused for a few
seconds to see if his “partner, Solo, g[o]t out,” before exiting the club. Freeman testified
that the door he exited led to a side street, where “some random car,” driven by a former
Lane College student that he recognized as not being from Jackson, stopped, picked him
up, and took him to the hospital.

       Freeman testified that he did not initially tell the police what had happened
because he was afraid that Robinson would get into trouble. He said that he did not have
a gun and that he never saw anyone besides Robinson and the defendant with any
weapon. On cross-examination, he acknowledged that he lied in statements he gave to
police on February 26 and March 4, 2012, by, among other things, not telling the police
that he was involved in a physical fight at the club, saying that the person he saw
shooting a gun had a “low haircut” instead of dreads, telling the police that he saw two
men shoot into the ground, and not saying anything in his second statement about having
seen the defendant firing a gun at him.

        Jarvis Rockamore, another former Lane College student who attended the 2012
homecoming party at the club, testified that he was talking with some friends at the DJ
area when the defendant tapped him on the shoulder and said something along the lines
of “Let me talk to V[e]no.” The defendant walked up to Triveno Freeman in an
aggressive manner and said something that Rockamore was unable to hear before taking
a step back. One of Rockamore‟s friends yelled out that the defendant had a gun, and the
defendant replied, “[Y]eah, I got a gun,” as he waved it toward Rockamore and his
friends, who had all jumped back and were standing together in the corner against the
wall. Next, the defendant fired the gun directly into the crowd of men. Rockamore
testified that he fell back and LeCarlos Todd fell on top of him. He said he was not shot
but was afraid for his life. Looking to the left, he saw “Little Itchy,” or “Jacq,” pull a gun
out of his coat and cock it. Although he did not see him fire the weapon, he was “pretty
sure” that he did. He did, however, see the defendant, who was “running low” down the
stairs of the club, still shooting as he ran toward the front door.

       Rockamore testified that after the initial shooting had stopped and he was about to
get up, the gunfire started again and he looked up to see Solomon Robinson standing by
the bathroom shooting a handgun. When the shooting was over, Rockamore picked Todd
up, saw that he was dead, and then exited the club with his friends through the back door.

                                              5
He said he did not know the defendant at the time of the shooting but later identified him
as the shooter from a photographic array he was shown by the police.

       On cross-examination, Rockamore insisted that his February 29, 2012 statement to
police in which he said, “Itchy and the dude with dreads started firing,” was not
inconsistent with his testimony that the defendant fired his gun first and that he “kn[e]w
for a fact [the defendant] shot first.” He acknowledged that in his preliminary hearing
testimony, he said that he did not see anyone besides the defendant with a gun. He
further acknowledged that he had pled guilty to criminal impersonation in 2009. On
redirect, he explained that he was confused during the preliminary hearing and thought he
was being asked if he saw anyone else with the defendant who had a gun.

        Lane College student Solomon Robinson, who attended the homecoming party
with his friends, including LeCarlos Todd, testified that he was in the VIP area of the
club when the fight occurred. He said he then left the VIP section and was leaning
against a rail between the VIP section and the DJ area when the defendant, who had some
other people behind him, walked up to the DJ booth, said something, backed up, lifted his
shirt to show the gun that was in his waistband, and then pulled the gun out and started
shooting at the group of people that was standing with Robinson, which included Triveno
Freeman and LeCarlos Todd. Robinson said he was not hurt but was “traumatized” and
scared for his life. He stated that he dropped to the floor, crawled to the corner, and
began shooting back with his “45 Highpoint.” The defendant ran down the stairs and
Robinson followed, shooting at him. The defendant fired back, and Robinson fell down
and got behind the DJ booth. He did not know where the defendant went after that.
Robinson said he started to get up but then heard more gunshots originating from
somewhere else, so he stayed down a couple more seconds until the shooting stopped.
He then ran out the back door, taking his gun with him.

       Robinson testified that he had never seen the defendant before that night. On
cross-examination, he said he brought the gun with him to the club “for protection,”
because he was expecting to run into trouble. He said he did not see either Mitchell
Jones, nicknamed “Cuz Boo,” or “Jacq” Mitchell with a gun that night. He
acknowledged that he lied in his March 5 statement to police by saying that he did not
have a gun himself and never saw anyone at the club with a gun. On redirect
examination, he said he told the police the truth in a March 7 statement, in which he
related the events just as he had in his direct examination testimony. On re-cross
examination, he conceded that he was released from jail after speaking with the
investigator and that no charges were brought against him for his role in the shooting.

       Marvin Hall, a recent Lane College graduate who was still a student at the time he
attended the homecoming party at the club, testified that he was standing by the DJ booth
                                            6
with “Little Drink” and others when a man he had never seen before, whom he identified
in the courtroom as the defendant, walked up to the DJ booth and, after pacing back and
forth for a minute or two, pulled out a gun and began shooting at the group of people who
were standing with Hall. Hall said he was grazed in the head, hip, and thigh. He did not
know how many times the defendant fired and did not see anyone else with a gun but he
heard “[p]lenty” of gunfire. He was certain that the defendant fired first.

       Hall testified that he eventually got up from his position of cover and left out the
back door of the club. As he was exiting, he saw “Josh” and “Cuz Boo.” “Cuz Boo” told
him that Todd was “down” and gave him a pistol. Although hesitant, he took the
weapon, placed it under the passenger seat of his car, and gave his car keys to “Josh”
before having his girlfriend drive him to the hospital in her vehicle. He never saw the
weapon again. On cross-examination, he acknowledged that when interviewed by the
police immediately after the shooting, he claimed not to have seen who was doing the
shooting.

       Aimee Oxley, the director of the property and evidence unit for the Jackson Police
Department and a senior certified crime scene analyst, identified and described
photographs she took of the crime scene and various items that were collected into
evidence, including a bullet recovered from the murdered victim‟s back; spent .40, .45,
and .380 caliber projectiles and casings, a Smith and Wesson .45-caliber magazine, and
the Smith and Wesson pistol, which were recovered from various locations inside the
club; a Taurus PT 945 with magazine and four ACP hollow point ammunition, which was
submitted to the evidence room by Officer Mullins; and a bullet recovered from the
defendant‟s buttocks.

       Officer James Mullins of the Jackson Police Department testified that at 2:30 a.m.
on February 26, 2012, he responded to the report of a suspicious vehicle at the Walgreens
on the corner of Campbell and Highland, in which a male driver, identified as Joshua
Matthews, appeared to be passed out at the wheel. During the inventory of that vehicle,
he and his fellow officers found a Taurus 45, which he subsequently transported to the
property and evidence room at the Jackson Police Department.

       Sergeant John Gause of the Jackson Police Department testified that he recovered
a .45 caliber semi-automatic Highpoint handgun during the March 5, 2012 execution of a
search warrant at 405 Division Street.

       Sergeant Danielle Jones of the Jackson Police Department identified the evidence
envelope containing a bullet that was recovered from the defendant‟s buttocks, which she
collected into evidence on February 26, 2012, from the Jackson-Madison County General
Hospital.
                                            7
       Sergeant Chris Chestnut of the Violent Crimes Unit of the Jackson Police
Department described his investigation of the shooting, which included his collection of
buccal swabs from various suspects in the case and Jarvis Rockamore‟s February 29,
2012 identification from a photographic array of the defendant as the man who shot
LeCarlos Todd. On cross-examination, he testified that in other photographic arrays,
Rockamore identified Jacque Mitchell as “Little Itchy who shot the Jackson, Tennessee
man with dreads” and Solomon Robinson as “Solo” “the man . . . responsible for
shooting the Jackson dude in Karma.”

      Investigator Aubrey Richardson of the Jackson Police Department‟s Violent
Crimes Unit testified that she participated in the collection of buccal swabs from
Solomon Robinson and Mitchell Jones.

       Tennessee Bureau of Investigation (“TBI”) Special Agent Forensic Scientist Eric
Warren, an expert in firearms identification and ballistics analysis, testified at some
length regarding his examination of the various weapons, projectiles, and casings
submitted in the case. On cross-examination, he testified that he examined a total of
fourteen bullets, twenty-five cartridge cases, and three weapons and was able to
determine that one bullet and four cartridge cases came from the Smith and Wesson,
three bullets and four cartridge cases came from the Taurus pistol, and four bullets and
eight cartridge cases came from the Hi-Point pistol. All of the weapons he examined
were .45 caliber, but there were casings and/or projectiles from at least two unknown
weapons – a .380 caliber and a .40 caliber.

        TBI Special Agent Forensic Scientist Donna Nelson, an expert in DNA analysis,
testified that the barrel of the .45 Smith and Wesson contained the DNA profile of an
unidentified male individual. The trigger and slide of the weapon contained a mixture of
genetic material from at least two different individuals, with eight of nine markers
consistent with the DNA profile of Jacque Mitchell and three of nine markers consistent
with the DNA profile of Solomon Robinson. She found DNA from an unidentified male
on the handle of the .45 Taurus pistol and a mixture of genetic material from that same
unidentified male and another unidentified male on the trigger of the weapon. She was
unable to locate any DNA on the Hi-Point .45 pistol.

       At the conclusion of the State‟s proof, the trial court granted the defendant‟s
motion for judgment of acquittal as to count three of the indictment, which charged the
defendant with the aggravated assault of Jarvis Rockamore causing serious bodily injury.
The defendant elected not to testify and rested his case without presenting any evidence.
Following jury deliberations and a subsequent bench trial on the convicted felon element
of the weapons charge, the defendant was convicted of the second degree murder of Todd
                                           8
as a lesser offense of the first degree premeditated murder of Todd charged in count one
of the indictment, the first degree felony murder of Todd in the perpetration of the
attempted first degree premeditated murder of Triveno Freeman, as charged in count two
of the indictment, felony reckless endangerment as a lesser offense of the aggravated
assault against Solomon Robinson charged in count four of the indictment, being a
convicted felon in possession of a handgun as charged in count five of the indictment,
and the attempted second degree murder of Triveno Freeman as a lesser offense of the
attempted first degree premeditated murder of Freeman charged in count six of the
indictment.

       At the sentencing hearing, the State introduced the defendant‟s presentence report
as well as certified copies of his prior convictions, probation violations, and community
corrections revocation orders. The State also introduced documents to show that the
defendant was on bond and on parole when the instant offenses occurred.

       The deceased victim‟s mother, Charlotte Todd Watson, testified that her son was
only nineteen years old when murdered, was a good child who was never in any trouble,
and had been enrolled at Lane College with a bright future ahead of him that was cut
short by his untimely death. She said she forgave the defendant but believed that he
should remain in prison for the remainder of his life to prevent him from causing the
same kind of pain to another family.

       Solomon Robinson testified the entire Lane College community had been affected
by the defendant‟s actions, and he was of the opinion that the defendant should remain in
prison for the rest of his life.

       The thirty-two-year-old defendant opted not to speak and presented no evidence
on his behalf at the sentencing hearing.

        The trial court found the following enhancement factors applicable to all the
offenses: the defendant had a previous history of criminal convictions or behavior in
addition to those necessary to establish his range; the defendant, before trial or
sentencing, failed to comply with the conditions of a sentence involving release into the
community; and, at the time the felonies were committed, the defendant was on parole
status for some offenses and had been released on pretrial bail or bond status in at least
one other pending case. See Tenn. Code Ann. § 40-35-114(1), (8), (13) (2014). The trial
court found enhancement factor (9), the defendant possessed or employed a firearm
during the commission of the offenses, applicable to counts one and six and enhancement
factor (10), the defendant had no hesitation about committing a crime when the risk to
human life was great, applicable to count six. See id. § 40-35-114(9), (10). The court
found no applicable mitigating factors.
                                            9
        The trial court sentenced the defendant as a Range I offender to concurrent terms
of life for the felony murder conviction and twenty-five years at 100% for the second
degree murder conviction. The court sentenced the defendant as a Range II, multiple
offender to the maximum terms of four years at 35% for the reckless endangerment
conviction, four years at 35% for the convicted felon in possession of a handgun
conviction, and twenty years at 35% for the attempted second degree murder conviction.
Finding that the defendant was an offender whose record of criminal activity was
extensive and that he committed the felony offenses while on parole from other felony
convictions, the trial court ordered that the four-year sentences for reckless endangerment
and convicted felon in possession of a handgun be served concurrently to each other but
consecutively to the twenty-year sentence for attempted second degree murder. The
court additionally ordered that the twenty-year sentence be served consecutively to the
life sentence, for an effective term of life plus twenty-four years in the Department of
Correction, to be served consecutively to the sentences for which the defendant was on
parole at the time he committed the instant offenses.

                                           ANALYSIS

                                 I. Sufficiency of the Evidence

        The defendant challenges the sufficiency of the evidence in support of his felony
murder, second degree murder, and attempted second degree murder convictions. In
considering this issue, we apply the rule that where 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:



                                            10
      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).

                            A. First Degree Felony Murder

      To sustain the conviction for first degree felony murder, the State had to prove
beyond a reasonable doubt that the defendant killed LeCarlos Todd during his attempt to
commit the first degree premeditated murder of Triveno Freeman. See Tenn. Code Ann.
§ 39-13-202(a)(2). “Premeditation” is defined as

      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).

       The “element of premeditation is a question of fact” for the jury to determine
based upon a consideration of all the evidence. State v. Suttles, 30 S.W.3d 252, 261
(Tenn. 2000) (citing State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997)).
“[P]remeditation may be established by any evidence from which a rational trier of fact
may infer that the killing was done „after the exercise of reflection and judgment‟ as
required by Tennessee Code Annotated section 39-13-202(d).” State v. Davidson, 121
S.W.3d 600, 615 (Tenn. 2003). A jury may infer premeditation from circumstantial
evidence surrounding the crime, including the manner and circumstances of the killing.
                                            11
See State v. Pike, 978 S.W.2d 904, 914 (Tenn. 1998); State v. Addison, 973 S.W.2d 260,
265 (Tenn. Crim. App. 1997). There are several factors which our courts have concluded
may be evidence of premeditation: “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.” Bland, 958 S.W.2d at 660.
Additional factors from which a jury may infer premeditation include the defendant‟s
failure to render aid to the victim, see State v. Lewis, 36 S.W.3d 88, 96 (Tenn. Crim.
App. 2000), and evidence establishing a motive for the killing. See State v. Nesbit, 978
S.W.2d 872, 898 (Tenn. 1998).

        Viewed in the light most favorable to the State, the evidence is sufficient to sustain
the jury‟s finding that the defendant killed Todd during his attempt to commit a
premeditated killing of Freeman. The State‟s evidence showed that Freeman and another
man had engaged in a brief fist fight on the dance floor and that the man later apologized
to one of Freeman‟s associates, causing Freeman‟s group of friends, who were gathered
together around the DJ booth, to relax under the belief that tensions had subsided. Some
eight or nine minutes later, however, the defendant walked up to the same group of
Freeman‟s friends, asked to speak to Freeman, pulled out a gun, and, aiming directly at
Freeman, began shooting his weapon, in the process striking and killing Todd. From the
evidence presented at trial, the jury could reasonably infer that the defendant was a friend
or associate of the man Freeman fought and was motivated to kill the unarmed Freeman
as retaliation for Freeman‟s earlier fist fight with his friend. As the State points out, this
court has upheld convictions for felony murder even where the jury has acquitted the
defendant of the underlying predicate felony. See, e.g., State v. Shane Michael Grogger,
No. M2008-02015-CCA-R3-CD, 2009 WL 3832921, at *14 (Tenn. Crim. App. Nov. 17,
2009), perm. app. denied (Tenn. Apr. 14, 2010). We conclude, therefore, that the
evidence is sufficient to sustain the defendant‟s conviction for the first degree felony
murder of Todd.

                                B. Second Degree Murder

        To sustain the second degree murder conviction, the State had to prove beyond a
reasonable doubt that the defendant committed a knowing killing of LeCarlos Todd. See
Tenn. Code Ann. § 39-13-210(a)(1). “In second degree murder, the result of the conduct
is the sole element of the offense. . . . The statute focuses purely on the result and
punishes an actor who knowingly causes another‟s death.” State v. Ducker, 27 S.W.3d
889, 896 (Tenn. 2000). “A person acts knowingly with respect to a result of the person‟s
conduct when the person is aware that the conduct is reasonably certain to cause the
result.” Tenn. Code Ann. § 39-11-302(b). “A person can act knowingly irrespective of
his or her desire that the conduct or result will occur.” State v. Gray, 960 S.W.2d 598,
                                             12
604 (Tenn. Crim. App. 1997) (citing State v. Rutherford, 876 S.W.2d 118, 120 (Tenn.
Crim. App. 1993)).

       Viewed in the light most favorable to the State, the evidence is sufficient to sustain
the jury‟s finding that the defendant committed a knowing killing of Todd. The State‟s
eyewitnesses testified that the defendant walked up to Freeman, who was standing in the
middle of a group of men, pulled out his gun, and began firing at Freeman, in the process
striking not only Freeman but also Todd, who died of his wounds. The jury could
reasonably conclude that the defendant was aware that his conduct of firing a gun into a
group of close-standing men in a crowded nightclub, regardless of his intended target,
was reasonably certain to cause the death of one or more of the men in the group. We
conclude, therefore, that the evidence is sufficient to sustain the defendant‟s second
degree murder conviction.

                     C. Attempted Second Degree Murder

        To sustain the defendant‟s conviction for attempted second degree murder, the
State had to prove beyond a reasonable doubt that the defendant attempted to commit a
knowing killing of Triveno Freeman. The defendant argues that the evidence at trial
“would have, at most, supported a verdict of guilt for the offense of Attempted Voluntary
Manslaughter,” because provocation, in the form of Freeman‟s having punched the
defendant‟s associate on the dance floor, existed for firing his gun at Freeman. The jury,
however, found the defendant guilty of attempted second degree murder, despite being
instructed on the elements of attempted voluntary manslaughter as a lesser offense. By
so doing, the jury obviously rejected the defendant‟s claim of provocation. When viewed
in the light most favorable to the State, the evidence is more than sufficient to sustain the
jury‟s verdict. According to the eyewitnesses, there was a fairly significant lapse of time
between the cessation of the fist fight and the defendant‟s opening fire on Freeman with
his gun. There was enough time, in fact, for the man who had fought Freeman to come
up to Freeman‟s group to apologize to “Mitchell” for his actions, causing Freeman and
his friends to begin to relax. We conclude, therefore, that the evidence is sufficient to
sustain the defendant‟s conviction for attempted second degree murder.

                         II. Mutually Exclusive Verdicts

       The defendant next contends that the jury‟s verdicts finding him guilty of the
attempted second degree murder of Freeman and the first degree felony murder of Todd,
with the predicate underlying felony being the attempted first degree premeditated
murder of Freeman, are mutually exclusive and therefore should be overturned and the
case remanded for new trials on those offenses. In the alternative, he argues that the
felony murder conviction should be reduced to second degree murder. The defendant
                                             13
acknowledges that the doctrine of mutually exclusive verdicts has not been adopted in
Tennessee and that the issue is currently pending before our supreme court in State v.
Marlo Davis, No. W2011-01548-CCA-R3-CD, 2013 WL 2297131 (Tenn. Crim. App.
May 21, 2013), perm. app. granted (Tenn. Nov. 13, 2013). The State responds by arguing
that the doctrine of mutually exclusive verdicts, even if adopted in Tennessee, affords the
defendant no relief because the separate convictions contain no conflict in mental state
and involve different victims. The State also points out that consistency in verdicts is not
required in Tennessee. We agree with the State.

      This court thoroughly addressed the doctrines of “mutually exclusive verdicts” and
“inconsistent verdicts” in a recent case:

       In states that recognize the doctrine [of mutually exclusive verdicts], it
       applies when “a guilty verdict on one count logically excludes a finding of
       guilty on the other.” State v. Chris Jones, No. W2009-01698-CCA-R3-CD,
       2011 WL 856375, at *10 (Tenn. Crim. App. March 9, 2011), perm. app.
       denied (Tenn. Aug. 25, 2011) (quoting Jackson v. State, 577 S.W.2d 570,
       573 (Ga. 2003)). In finding the defendant guilty on both counts, the jury
       “necessarily reache[s] two positive findings of fact that cannot logically
       mutually exist.” Id.; see also State v. James Snipes, No. W2011-02161-
       CCA-R3-CD, 2013 WL 1557367, at *8 (Tenn. Crim. App. April 12, 2013),
       perm. app. denied (Tenn. Sept. 13, 2013). For example, verdicts would be
       mutually exclusive if the jury returned a guilty verdict “on two counts
       arising from the same act where one count requires proof of a negligent act
       and the other count requires evidence of an intentional act.” James Snipes,
       2013 WL 1557367, at *8; see also Chris Jones, 2011 WL 856375, at *10.

              Conversely, inconsistent verdicts “arise when a defendant is
       convicted of one offense and acquitted of another offense, although both
       offenses arose from the same criminal transaction.” James Snipes, 2013
       WL 1557367, at *8. “The key difference between the two doctrines is that
       mutually exclusive verdicts involve two positive findings of fact, whereas
       inconsistent verdicts involved one positive finding of fact and „the failure to
       make a positive finding of fact.‟” Chris Jones, 2011 WL 856375, at *10
       (quoting Jackson, 577 S.W.2d at 57).

               Inconsistent verdicts have long been permitted in both the state and
       federal systems. Such verdicts were first recognized in Dunn v. United
       States, 284 U.S. 390, 393 (1932). In that case, the defendant was convicted
       of maintaining a common nuisance by keeping intoxicating liquors for sale
       at a specified location but was acquitted of the possession and sale of
                                             14
intoxicating liquors, even though the evidence was the same for all three
counts. In upholding the verdict, the United States Supreme Court stated:

      The most that can be said in such cases is that the verdict
      shows that either in the acquittal or the conviction the jury did
      not speak their real conclusions, but that does not show that
      they were not convinced of the defendant‟s guilt. We interpret
      the acquittal as no more than their assumption of a power
      which they had no right to exercise, but to which they were
      disposed through lenity.

      That the verdict may have been a result of compromise, or of
      a mistake on the part of the jury, is possible. But verdicts
      cannot be upset by speculation or inquiry into such matters.

Id. at 393-94 (quotation marks and citations omitted).

       Over 50 years later, the same court upheld the Dunn jury lenity
rationale to support inconsistent verdicts in United States v. Powell, 469
U.S. 57 (1984). Further, the Powell Court noted that the Dunn rule
“embodies a prudent acknowledgment of a number of factors.” First,
“inconsistent verdicts -- even verdicts that acquit on a predicate offense
while convicting on the compound offense -- should not be necessarily
interpreted as a windfall to the Government at the defendant‟s expense.”
Powell, 469 U.S. at 65 (emphasis added). In such cases, there is no way to
tell why the jury returned an inconsistent verdict, but when it happens the
Government is precluded from redressing any perceived error on appeal by
application of the Double Jeopardy Clause. Id.

      ....

       Second, the Powell Court reasoned that a defendant misunderstands
the nature of inconsistent verdicts when he argues that an acquittal on a
predicate offense necessitates a finding of insufficient evidence for the
compound offense. Id. at 68. Such argument “necessarily assumes that the
acquittal on the predicate offense was proper -- the one the jury „really
meant.‟ This, of course, is not necessarily correct; all we know is that the
verdicts are inconsistent.” Id. at 68. Because appellate courts cannot know
the jury‟s motivations in reaching their verdicts, inconsistent verdicts are
not subject to review. Id. at 68-69.

                                     15
              The Tennessee Supreme Court specifically adopted the Dunn jury
      lenity rationale in Wiggins v. State, 498 S.W.2d 92, 93 (Tenn.1973). In so
      doing, the court stated, “Consistency in verdicts for multiple count
      indictments is unnecessary.” Id. at 94. Under Wiggins each count is treated
      as a separate indictment. Id. at 95. Accordingly, in reviewing the verdict,
      this Court looks solely to the evidence underlying the convicted offense to
      determine whether there is sufficient evidence to permit a rational fact
      finder to find the defendant guilty beyond a reasonable doubt. State v.
      Cynthia J. Finch, No. E2011-02544-CCA-R3-CD, 2013 WL 6174832, at
      *13 (Tenn. Crim. App. Nov. 22, 2013). “We will not attempt to divine
      some hidden meaning from the jury‟s actions regarding a separate count of
      the indictment.”

State v. Calvin Ellison, No. W2013-02786-CCA-R3-CD, 2014 WL 6977725, at *7-9
(Tenn. Crim. App. Dec. 10, 2014) (footnotes omitted).

       We agree with the State that the jury‟s verdicts are not mutually exclusive and that
sufficient evidence exists to sustain each conviction on the separate counts of the
indictment, regardless of any inconsistency involved in the jury‟s findings. We, therefore,
conclude that the defendant is not entitled to relief on the basis of this issue.

       We note, however, that the trial court, concerned that the felony murder conviction
might not be upheld because of the defendant‟s conviction for a lesser included offense
on the predicate underlying felony, did not merge the second degree murder conviction
into the felony murder conviction. “[O]rdinarily, when a defendant is convicted of both
felony murder and second degree murder on alternative theories, the trial court will
merge the conviction for second degree murder into the conviction for felony murder[.]”
State v. Paul Lee Whited, No. M1998-00478-CCA-R3-CD, 1999 WL 1209786, at *10
(Tenn. Crim. App. Dec. 17, 1999) (citing State v. Jason Cross, No. 03C01-9805-CC-
00181, 1999 WL 592225, at *5 (Tenn. Crim. App. Aug. 9, 1999)). “[W]hen only one
person has been murdered, a jury verdict of guilt on more than one count of an indictment
charging different means of committing . . . murder will support only one judgment of
conviction for [the] murder.” State v. Cribbs, 967 S.W.2d 773, 788 (Tenn. 1998).
Accordingly, we remand to the trial court for entry of corrected judgments reflecting that
the second degree murder conviction is merged into the felony murder conviction.

                              III. Consecutive Sentencing

       Lastly, the defendant contends that the trial court erred in ordering consecutive
sentencing. He acknowledges his extensive criminal record and the fact that the instant
offenses were committed while he was on parole but argues that concurrent sentencing,
                                            16
given his life sentence, is sufficient “to appreciate the gravity of [the] offenses while
serving to protect the public.”

       We review the trial court‟s consecutive sentencing determinations for an abuse of
discretion, with a presumption of reasonableness afforded to the trial court‟s decision.
See State v. Pollard, 432 S.W.3d 851, 860 (Tenn. 2013) (applying same deferential
standard announced in State v. Bise, 380 S.W.3d 682 (Tenn. 2012) to trial court‟s
consecutive sentencing decisions).

        We find no abuse of discretion in the trial court‟s sentencing determinations. The
trial court may, in its discretion, order multiple sentences to run consecutively if it finds
by a preponderance of evidence that one or more of the seven factors listed in Tennessee
Code Annotated section 40-35-115(b) apply, including that the defendant is an offender
whose record of criminal activity is extensive or that the defendant committed the
offenses while on probation. Id. § 40-35-115(b)(2)(6) (emphasis added). Although not
entirely clear, the trial court appeared to find that factor (6) of the consecutive sentencing
statute was applicable based on the fact that the defendant was on parole at the time he
committed the offenses. Although a consecutive sentence is mandatory when a defendant
is sentenced for a felony committed while on parole from another felony, see Tenn. R.
Crim. P. 32(c)(3)(A), subsection (6) of Tennessee Code Annotated section 40-35-115(b),
which grants the trial court discretion to order consecutive sentencing in certain cases,
applies only when a defendant commits a felony while on probation. See State v. Tracy
Thomas Hepburn, No. M2008-01979-CCA-R3-CD, 2010 WL 2889101, at *10 (Tenn.
Crim. App. July 23, 2010), perm. app. denied (Tenn. Jan. 13, 2011) (citations omitted).
Regardless, subsection (1) of the consecutive sentencing statute applies and provides
ample basis for the trial court‟s discretionary imposition of consecutive sentences.
Accordingly, we affirm the sentences imposed by the trial court.

                                       CONCLUSION

        Based on the foregoing authorities and reasoning, we affirm the judgments of the
trial court but remand for entry of corrected judgments to reflect that the second degree
murder conviction is merged into the first degree felony murder conviction.


                                                  _________________________________
                                                  ALAN E. GLENN, JUDGE




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