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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON SEPTEMBE R SESSION, 1998
Appellate C ourt Clerk
STATE OF TENNESSEE, Appellee,
VS. CRAIG BRYANT, Appe llant.
) ) ) ) ) ) ) ) ) ) )
January 8, 1999 C.C.A. NO. 02C01-9707-CR-00286 Cecil Crowson, Jr.
SHELBY COUNTY HON. ARTHUR T. BENNETT JUDGE (Attempted Murder & Aggra vated A ssault)
ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF SHELBY COUNTY
FOR THE APPELLANT : A.C. WHARTON Public Defender WA LKER GW INN Assistant Public Defender 201 Poplar Avenue Memphis, TN 38103
FOR THE APPELLEE: JOHN KNOX WALKUP Attorney General and Reporter DOUGLAS D. HIMES Assistant Attorney General 425 Fifth Avenu e North Nashville, TN 37243-0493 WILLIAM GIBBONS District Attorney General LEE V. COFFEE Assistant District Attorney General Criminal Justice Complex, Suite 301 201 Poplar Avenue Memphis, TN 38103
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES, JUDGE
The Defendant, Craig Bryant, appeals as of right from a Shelb y Coun ty jury verdict convicting him of ag gravated assau lt and attempted second degree murder. The trial court se ntence d him a s a Ran ge I stand ard offen der to
consecu tive sentences of three years for aggravated assault and ten years for attempted second degree murd er. Th e Def enda nt now appe als pu rsuan t to Ru le 3 of the Tennessee Rules of Appellate Pro cedure. W e affirm the judgment of the trial court.
The Defen dant pre sents six iss ues on appea l: (1) whether the criminal attempt statute is applic able to the crime of second degree murder; (2) whether the trial court erred by failing to charge the jury that the Defendant could not be found guilty of attempted second degree murder unless he acted with the intent to kill Casondra B ryant; (3) whether the evidence is sufficient to support the Defe ndan t’s conviction for aggravated assault on Jenitra Stone; (4) whether the trial court erred by instructing the jury on the doctrine of transferred intent; (5) whether the trial court erred by allowing Stacy Muncey, a witness for the prosecution, to testify about statements made to her by Casondra Bryant concerning the De fenda nt’s previous abusive behavior towards Bryant; and (6) whether the trial court erred by ordering the Defendan t’s sentences for aggravated assault and a ttempted se cond deg ree murd er to run conse cutively.1
The Defendant and Casondra Bryant, one of the two victims in this case, were married in 1993 in Memphis, Tennessee. The Defendant began working
For purposes of clarity and brevity, we have consolidated some of the issues presented.
as a truck driver for M.S. Carriers in 1994, and his wife bega n work ing as an ad ult entertainer at Tiffany’s C abaret in 1996. Bryant2 testified that d uring the month of Marc h in 1996, she moved in with a friend for about two weeks and also took up reside nce a t The Mem phis Inn, a hotel. Sh e stated th at she w as “[t]rying to get away fr om [th e Def enda nt]” bec ause he wa s “stalk ing” her and had been abusing her for some time. She testified that she was forc ed to move appro ximate ly once a week during March in order to avoid the Defendant. She reported that the Defen dant follow ed her e verywhe re and w as alwa ys able to discove r where s he mo ved, des pite her effo rts at secre cy.
At trial, Bryant recalled several encounters with the Defendant leading up to the incident which gave rise to the Defendant’s present convictions. The first encounter that Bryant reported occurred on March 11, 1996 at approximately 3:30 a.m. when she arrived at The Memphis Inn parking lot after work. She testified that as she wa s getting out of her c ar, she saw a man running toward her with something in his hand. Realizing that it was the Defendant, she got back into the ca r, but, ac cordin g to her testimony, the D efendant “bu sted [her] window ,” jumped in her car, and struck her on the back with a crowbar. He then took the ca r and d rove it to North Carolina, where his parents lived. Following this incident, Bryant filed for divorce from the Defendant on March 15, 1996 and reques ted a res training ord er again st him.
Bryant also testified that on April 1, 1996, around one o’clock in the afternoon, she was sitting in her car in the parking lot of MegaMarket, waiting for
For the remainder of this opinion, Casondra Bryant will be referred to as “Bryant,” and Craig Bryant will be referred to as “the Defendant.”
a friend to run an erran d inside th e store.
She testified that the Defendant
appeared and got into her locked car, using a second set of keys to the car. She stated that the Defendant pointed a gun at her and said, “This is the on ly way I can talk to you.” She reported that she then fled the car and ran into the store for help.
According to Bryant, her next confrontation with the Defendant took place on April 3, 1996. Between noon and two o’c lock in the afternoon, Bryant and a friend, Stacy Muncey, were entering Tiffany’s Caberet to eat lunch at a buffet inside the club. Bryant testified that wh en she an d Munce y got out of the car, the Defendant pulled into the parking lot behind them. Bryant stated that she yelled, “Stacy, run,” and the two girls ran inside the club to call the police.
Stacy Muncey verified this story. Muncey also testified that she helped Bryant move a number of times to get away from the Defendant and that the Defendant contin ually called her to d eterm ine Bry ant’s whereabouts. She further testified that Brya nt was a fraid of the D efenda nt and “fe ared for h er life.” In addition, she reported seeing a large bruise on Bryant’s back after the incident on March 11, 1996, wh en Bryant claim ed to have be en hit with a crowb ar.
The incident from which the Defendant’s present convictions arose occurred on April 4, 1996. Bryant reported that five minutes after arriving at her hotel room that afternoon, she received a telephone call from the Defendant, who told her that he wanted to talk to her. She stated that she had not given the Defendant the name of her hotel or her phone number. Upon realizing that the call was from the Defendant, she immediately hung up the phone and called - 4-
Muncey, who advised her to leave the hotel room. Bryant quickly showered and left approximately fifteen minutes later, fearful that the Defendant would come to the hotel. restaura nt. She then got into her car and d rove to a nea rby Mc Don ald’s
Bryant described the incident as follows: While ordering food at the speaker for the “drive-thru” line at McDonald’s, she heard a noise. When she turned, she realized that the Defendant was in her car holding a gun.3 T he Defendant told her if she said anything, he “would b low [her] f__ king hea d off.” A police officer who interviewed Bryant after the incident testified that Bryant reported to him that the Defendant also to ld her “if he couldn’t have her nobody else could.” In respon se, Bryant drove forward to avoid the drive-thru speaker blocking her do or, unlo cked her do or, and turned aroun d to retr ieve her pocketbook. During the time that she was trying to get out of the car, the Defendant was grabb ing her, pulling her hair, and striking her with his fist. When she grabbed her pocke tbook, the Defen dant sh ot her an d then b egan to try to pull her out of the car while she held onto the steering wheel. She later recounted that she de veloped a bruise o n her ch est and shoulde r from trying to hold on to the wheel. At this point, someone said, “Police,” and the Defendant ran, dropping the keys to the car. B ryant then put the ca r into gear a nd drove onto the street. She spotted a police officer, stopped the car on the median, and got out. Other witnesses presen t at McD onald’s o n April 4, 19 96 ess entially verified B ryant’s version of the shooting. However, no one actually saw who fired the gun.
Bryant testified that she believed the Defendant got into her locked vehicle by using an extra set of car keys which he kept for the vehicle.
Jenitra Stone, the seco nd victim in this case, was working as a cashier on April 4, 1996 at the drive-thru line at McDonald’s. She testified that she saw a car, later identified as that be longing to Bryant, pull up to the window. Inside the car, she saw a woman with blood all over her face screaming for help as a man in the car beat her, hit her, and pulled her hair, parts of her body and clothes. At trial, Jenitra identified the woman as Bryant and the man as the Defendant. She stated that the Defe ndan t appe ared to be trying to pull B ryant o ut of the car wh ile Bryant, who was holding onto the driver’s-side door, appeared to be trying to get out of the car. Upon seeing this strugg le, Jenitra testified that she turned to get her manager, and as she did so, she heard a loud noise and the shattering of glass, an d she d ucked . It was later d etermin ed that w hen Br yant was shot, the bullet entered the left side of Bryant’s head and exited her head above her e ye near her left eyebrow, about an inch away from its place of entrance. The bullet then traveled o utside B ryant’s car, sha ttered th e drive -thru w indow , and h it Stone ’s cap, knocking it off of her head. Stone was treated for cuts and
abrasio ns on h er face ca used b y glass from the shatte red wind ow.
At trial, Stone stated, “[A]t the time, I didn’t know that the cap was knocked off my head. I was more a fraid whe n the glas s shattere d.” She further testified, “I was shocked. At the time I didn’t really think anything. I was still wondering what was going on.” On cross-examination, in response to whether she was afraid at the tim e of the shooting, she stated she was not afraid because she “didn’t know what was going on.” However, on redirect, Stone admitted that she was afra id when she he ard the b ullet com e throug h the wind ow.
After the shooting, B ryant was taken to the emerg ency room at the Regional Medica l Center fo r treatme nt. She was released from the emergency room on the sam e night. 4 A c ustodian of medical records at the hospital testified at trial that Bryant’s records indicated she was treated in the emergency room by a surgery resident for a gunshot wound to the left eye. Records from follow-up visits to the hospital indicated that while Bryant’s vision in her right eye was 20/20, vision in her left eye deteriorated to 20/50 by February 13, 1997.
Stacy Muncey picked up Bryant from the hospital to take he r home . She and Bryan t each testified that as they we re leav ing the hosp ital, they saw the Defendant in the w aiting a rea. T hey re ported that wh en the y screa med for help from the security guard, the Defendant ran.
Officers Ronnie Elrod and Shannon Bowen of the Memphis Police Department were on patrol on the evening of April 8, 1996. They each testified that during their shift, they noticed a white Buick Regal bearing North Carolina tags5 p ull out of the parking lot of a hotel with the headlights off. They stopped the driver of the car for driving withou t lights and asked the driver, later determined to be the Defendant, for identification. When the Defendant did not produce identification, the officers asked his name and date of birth. The officers testified the Defendant told them that his name was Eric Bryant and that his da te of birth was Feb ruary 14, 1968.6 T he officers then escorted the Defendant to the
Hospital records indicated that Bryant was scheduled for surgery at the Regional Medical Center, but she was never admitted to the hospital.
The car belonged to the Defendant’s mother. Eric Bryant is the Defendant’s brother.
back of their police vehicle an d ran a c heck o n him a nd the ca r. The rep ort, which was bro adcas t on the po lice radio w ithin hearin g distanc e of the Defen dant, who remained in the back of the police vehicle, informed the officers that the car was the suspect ve hicle in a recent shooting. The dispatcher also reported that the suspect involved in the incident was a man by the name of Cra ig Bryant. The officers testified that upon hearing this information, the Defendant admitted that he was Craig Bryant and provided a different date of birth, which turned out to be his true date of birth. The officers placed the Defendant under arrest. The officers then searched the Defendant’s vehicle and found a loaded .380 semi-automatic chrome pistol under the driver’s seat, as well as “three live rounds laying in the front floorboard” and “one live round in [the Defendant’s] pocke t.”
At trial, De lphia Marlow Bryant, the Defendant’s mother, testified that she owned the gun used to shoot Casondra Bryant. She recalled that she loaned the gun to Bryant in 1994 because Bryant wanted to protect herself while her husband was frequently on the road driving trucks. She stated that no one was present at the time she ga ve the gu n to Bryant and that no one was aware of the exchange.
The Defe ndan t also testified at trial. He stated tha t he neve r hit his wife with a crowbar, nor had he ever hit his wife, although he admitted that he did take her car and drive it to North Carolina. He explained that he had access to the car because he maintained a second set of keys to the vehicle. He claimed that the car, as well as the rest of their possessions, belon ged to both h im and his wife; and he claimed that they each made payments on the vehicle. He explained that - 8-
his wife’s name alone appeared on the car title because they had agreed to buy their next vehicle in his nam e. Furthermore, he testified that he never pulled a gun on Bryant in the MegaMarket parking lot; in fact, he claimed not to have even been in the city of Mem phis on A pril 1, 1996 , the date of the alleg ed incide nt. In addition, appa rently to discre dit his wife’s testimony, the Defendant testified that his wife reg ularly used drugs d uring the course of their ma rriage.
With regard to the day of the shooting, the Defendant testified that he and his wife had arranged to meet at their storage unit. He maintained that he was to page his wife on her pager when he was ready to meet. The Defendant stated that before paging her, he drove to Sam’s Wholesale Warehouse, located behind McDonald’s, to run an errand fo r a friend. H e testified that w hile in th e Sam ’s parking lot, he happened to notice Bryan t’s car in the McDonald’s drive-thru line. According to the Defendant, he walked to her car, tapped twice on the window, opened the doo r, which w as not loc ked, an d got insid e. He testified that they then spoke amicably and agreed to go to their storage unit together after she received her food order.
Howeve r, the Defe ndant c laimed that instea d of waiting for her food, Bryant pulled forwar d, told h im she w ould g et food later, an d sud denly slammed on her brakes when th e car sat b eside the drive-thru w indow. The Defendant testified that his head hit the windshield, and when he turned to look at his wife, she was holding a gun pointed at him. He testified that she stated, “Get out,” and he asked her, “Ha ve you los t your min d?” He reported that as he ask ed this
question, he made a fist to knock the gun away from him and hit the gun, which
angled up towards the roof of the car and fired a shot. 7 H e testified that Bryant then told him, “Baby, I think I’m shot,” and he began to scan her body for blood. Desp ite testimony from witnesses present at McDonald’s at the time of the shooting that “there was quite a bit of blood” a nd that B ryant was “covered with blood,” the Defendant testified that he notice d only o ne dro p of blo od on his wife ’s left shoulder. He state d that he th en beg an to try to he lp her into the pa ssen ger’s seat so that he could drive her to the ho spital. However, she became hysterical and began screaming, “Just leave,” so he got out of the c ar, taking th e gun w ith him so that sh e would not shoot he rself or him, and went back to his car. He denied ever hitting Bryant while in the drive-thru line. He also denied going to the Regional Medica l Center la ter that eve ning, claiming instead that he w ent to anoth er Me mph is area hospital to look for his wife but left when he wa s una ble to find her.
The Defenda nt also presen ted a different version of his arrest.
admitted that he was not carrying identification on the evening of April 8, 1996, but he denied ever having told the police that his name was Eric. In fact, he recalled that a p olice officer asked, “You’re Eric Bryant?” and when he denied this, the officer “kept saying, ‘Ye s, you are .’” In addition, the Defendant insisted that the officers did not find the pistol used in Bryant’s shooting on the floorboa rd under his seat, but rather in a briefcase in the trunk of his car. He claimed that the gun wa s not load ed. Finally, he reported that the headlights on his car were not off at the time he was stopped.
The Defendant testified that he was unsure what happened after he “hit the gun or how the bullet hit his wife in the head. At one point, he stated, “[w]hen the gun hit the roof of the car, that’s when I heard the shot go off. So simultaneously whenever this gun hit the roof of the car, at some point in time between the roof of the car it simultaneously went off hitting her in the side of the head.”
I. ATTEMPTED SECOND DEGREE MURDER A . Validity of the Crime Charged T he Defendant first contends that the Tennessee criminal attempt statute, codified at Tennessee Code Annotated § 39-12-101, should not apply to the crim e of second degree murder, codified at § 39-13-210. He points to the fact that the attempt statute requires one to act with a specific intent t o cause the result of the crime attempted; stated differently, he argues that an attem pt is mere ly a failure to do what one intended. He argues that this statute therefore may not be reco nciled with the seco nd deg ree mu rder statu te because intent to kill is not an element of the offense of second degree murder; rather, the second degree murder statute simply requires a knowing k illing.
As a preliminary matter, w e note fro m a rea ding of the record th at the Defendant has failed to include this issue in his motion for new trial. T he State contends that this issu e is therefo re waived . However, “[i]ssue s whic h, if
meritorious, would mandate a dismissal may still be considered, even though not listed in the motion for a n ew trial.” State v. Sowder, 826 S.W.2d 924, 926 (Tenn. Crim. App. 19 91); see also Tenn . R. App. P. 3(e). Beca use we believe tha t a successful disposition of this argument would result in dismissal of the charge against the Defendant for attempted second degree murder, rather than a new trial, we will proc eed to a ddress this issue o n the m erits.
Our legislature has defined second degree murder as “[a] knowing killing of another.” Tenn. Co de Ann. § 3 9-13-210(a )(1).8 K nowing, in turn, is defined as referring to a person who ac ts knowingly with res pect to the condu ct or to circumstances surrounding the condu ct when the p erson is awa re of the natur e of the co nduct o r that the cir cums tances exist. A person acts kn owing ly with resp ect to a result o f the pe rson’s conduct when the person is awa re that th e con duct is reaso nably certain to c ause th e result. Id. § 39-11 -302(b). “A person commits an attempted second-degree murder when he know ingly acts with th e intent to kill his targ et and his actio ns co nstitute ‘a substantial step toward the com mission’ of the m urder.” State v. Frederick R. Porter, No. 03C01-9606 -CC-00238, 199 7 WL 661419, at *3 (Tenn . Crim. A pp., Knoxville, Oct. 24, 1 997) (citing Tenn. Code Ann. 39-12-101(a)(3)). “Conduct does not cons titute a sub stantial step . . . unless the person’s entire course of action is corrobo rative of the in tent to com mit the offe nse.” Tenn . Code Ann. § 39-12-1 01(b).
The primary case upon which the Defendant relies in arguing that the crime of attemp ted seco nd deg ree mu rder doe s not exist in Tennessee is State v. Kimbrough, 924 S.W.2d 888 (Tenn. 1996). W e believe th at Kimbrough is
disting uisha ble from the present case. In Kimbrough, the Tennessee Supreme Court concluded that “one cannot intend to accomplish the unintended” and therefore determined that “the offense of attempted felony-murder does not exist in Tennes see.” Id. at 892. H oweve r, unlike the crime o f felony-murder, which
Tennessee Code Annotated § 39-13-210(a)(2) also presents a second type of second degree murder which is not at issue in the case at bar. Tenn. Code Ann. § 39-13-210(a)(2).
requires no culpa ble me ntal state, T enn. Code Ann . § 39-13-202 (a)(2); 9 t he crime of second degree murder requires that one act knowingly. One commits second degree murd er if one know ingly tries to kill another and succeeds in doing so. Howeve r, if one d oes n ot suc ceed , and h is or her actions constitute a substantial step toward the com mission of the killing, he or she is g uilty of attempted s econd degree murde r. We conc lude th at Te nnes see’s attem pt statu te is applicab le to the offense of se cond deg ree murd er.
In the case at bar, the State pre sented evide nce from w hich the jury could conclude that the Defen dant entered Casond ra Bryant’s car carrying a gun and that he subsequently shot his wife in the head. Furth ermo re, we b elieve th at it was well within the purview of the jury to c onclud e that the D efenda nt acted w ith the awareness that this conduct was reaso nably c ertain to cause his wife’s death. Howeve r, because his wife was not killed, bu t rather seriously injured, we believe that the jury could reasonably have determined that the Defenda nt is guilty of attempted s econd de gree mu rder.
B. Jury Instruction The Defendant also argues that the trial court erred by failing to charge the jury that the Defendant could not be found guilty of attempted second degree murde r unless h e acted with an inte nt to kill Cas ondra Bryan t. W e will address the issue even though Defendant has failed to include this issue in his motion for new trial. The jury was instructed, pursuant to T.P.I. - Crim. 4.01 (4th ed. 1995 ), that the de fenda nt mu st have “intend ed to c omm it the sp ecific offense o f Murder
Except, of course, the intent to commit the underlying felony.
Second Degree ” and “d id some act intending to complete a course of action or cause a result that would constitute Murder Second Degree...” This was a proper instruction. See S tate v. Eldridge, 951 S.W .2d 775, 779 (Tenn. Crim . App. 1997 ). This issu e is withou t merit.
II. AGGRAVATED ASSAULT A. Sufficiency of the Evidence The Defe ndan t next co ntend s that th e evide nce is insuffic ient to u phold his conviction for aggravated assault against Jenitra Stone. He argues that he had no intent to assault Stone or to put her in fear of imminent bodily injury, nor were there any “circum stance s from w hich it can b e inferred that he was aware that any condu ct on his p art would be reas onably c ertain to put Stone in fear of imminen t bodily injury.” He suggests that the only person whom he could ha ve been found guilty of intending to harm is his wife, Casondra Bryant. Thus, he argues that he could be found guilty of aggravated assault aga inst Sto ne on ly through the doctrine of transferred intent. He contends that the doctrine of transferred intent is inapplicable to assault cases in Tennessee.
Tennessee Rule of App ellate Procedu re 13(e) presc ribes that “[findings] of guilt in criminal actions wh ether by the trial court or jury shall be set aside if the evidence is insufficient to support the finding by the trier of fact beyond a reaso nable doubt.” T enn. R . App. P. 1 3(e). “Qu estions c oncern ing the cre dibility of the witn esse s, the w eight a nd valu e to be given th e evide nce a s well a s all factual issues raised by the e vidence, are reso lved by the trier o f fact, no t this Court.” State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987) (citing State v. Grace , 493 S.W .2d 474, 476 (Tenn. 197 3)). Nor may this Court re-weigh - 14-
or re-evalua te the evide nce. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992) (citing State v. Cabbage , 571 S.W .2d 832, 836 (Tenn. 197 8)).
A jury verdict approved by the trial judge accredits the State’s witnesses and resolve s all con flicts in favor of the State. State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983). On appeal, the State is entitled to the stron gest legitim ate view of the evidence and all inferences therefrom. State v. Tug gle , 639 S.W.2d 913, 914 (Tenn. 1982) (citing Cabbage , 571 S.W.2d at 835). Because a verdict of guilt remo ves the presu mptio n of inn ocen ce an d repla ces it with a presumption of guilt, the accused h as the burde n in this Court of illustrating why the evidence is insufficient to support the verdict returned by the trier of fa ct. McBe e v.State , 372 S.W .2d 173 , 176 (T enn. 19 63); see also E vans , 838 S.W .2d at 191 (citing Grace , 493 S.W .2d at 476 ); Tug gle , 639 S.W.2d at 914.
In the pre sent c ase, th e Def enda nt was charg ed with “intentio nally comm it[ting] an assa ult on Jen itra D. Ston e . . . by use o f a dead ly weapo n . . . caus [ing her] to reasonably fear imminent bodily injury.” Thus, the following portion of the Te nness ee ass ault statute is at issue here: “A p erson c omm its assa ult who . . . [i]ntentionally or knowingly causes another to reasonably fear imminent bodily injury . . . .” Id. § 3 9-13-101(a)(2). In addition, the following portion of our a ggrav ated a ssau lt statute is at issue: “A person comm its aggravated assault who . . . [i]ntentionally or knowingly commits an assault as defined in § 39-13-101 and . . . [u]ses or displays a de adly weapo n . . . .” Id. § 39-13-1 02(a)(1) (B).
In making the argument that his conviction for aggravated assa ult ma y only be upheld by a finding of transferred intent, the Defendant fails to note the mens era of “know ing” in the s tatutes cite d above . The ag gravated assau lt statute plainly states that a Defendant may be found guilty of the crime of aggravated assa ult if he acts “intentionally or know ingly .” Id. ( emphasis added). Because a conviction for aggravated assault does not require a finding of specific intent, we need not address the question o f wheth er the d octrine of trans ferred intent is applic able to the crim e of agg ravated a ssault. To sustain an aggra vated assa ult conviction, it is enough for a jury to find that a defendant acted knowingly. As previously stated,
a person acts knowingly with res pect to the condu ct or to circumstances surrounding the condu ct when the p erson is awa re of the nature of the conduct or that the circumstances exist. A person acts knowingly with respect to a
result of the person’s conduct when the perso n is aw are tha t the co nduc t is reason ably certa in to caus e the res ult. Id. § 39-11-30 2(b).
In this case, the State presented evidence from which the jury could infer that St one re ason ably fea red im mine nt bod ily injury at the time of the shooting. Stone herse lf testified that sh e was “shoc ked” b y the inc ident a nd afra id when she heard the bullet come through the w indow. More over, the State presented evidence from which the jury could infer that the Defendant knowingly caused Stone to fear imminent bodily injury. The State presented evidence that the Defendant entered his wife’s car with a loaded gun, pointe d the g un at h is wife, and fired the gun while the car was beside the drive-thru window of a restau rant. W e find this evidence sufficient to support the conclusion that the Defendant acted with the awareness that his conduct was reasonably certain to cause others, including Stone, th e cash ier at the drive-thru window, to fear imminent bodily injury.
B . Jury Instruction T he Defendant next argues that the judge committed plain error by instructing the jury on the doctrine of transferre d intent. Again , we no te that th is issue was not raised in the Defendant’s moti on for new trial, thus waiving the issue on appeal, see T enn. R. App. P. 3(e); but we will briefly address the Defendant’s argument. The contested instruction is as follows: Under a doctrine kno wn as “transferre d intent” a crime may be aggravated assault when the person assaulted could have been killed and wa s not the one whom the accused intended to kill or injure such as where one shooting [sic] at another and kills or assaults a bystander or third person coming within range. Howeve r, before the jury may find the defendant guilty of the offense of agg ravate d ass ault or any included class of assault, you must be satisfied beyond a reasonable doubt that the assault of
Jenitra D. Stone was aggravated assault or any included class of assau lt and was comm itted by the d efenda nt. Jury instructions on the doctrine of transferred intent, such as that above, are app ropriate in case s involvin g crim es in w hich sp ecific inte nt is an elem ent. As we ha ve alre ady co nclud ed, the crime of agg ravate d ass ault does not require spec ific intent. Although in some cases, specific intent may be an element of the crime , the D efend ant in the present case must only have acted knowingly. For this reaso n, we find th e forego ing instruc tion unne cessar y.
W e conclude, without addressing the merits of the Defendant’s argument concerning transferred intent, that any error possibly caused by this instruction was clearly harmless error. The instruction is worded in very general terms and does not require that the jury utilize the doctrine of transferred intent to convict the Defendant of aggravated assault, allowing the jury to convict based upon the statutory definition of aggravated assault, which requires only that the Defendant act know ingly.
Moreover, had the jury relied upon the foregoing instruction to convict the Defendant of aggravated assault, the result w ould h ave be en no differen t than if the jury simply relied upon our aggrava ted assault statute to convict. The transferred intent instruction in this case required the jury to find specific inte nt, which is a greater state of mental culpability than the mens era o f knowing. Thus, if the jury relied on the transferred intent instruction, the jury necessarily must have found that the Defendant acted at l east k nowingly. Th is issue is therefore without m erit.
III. HEARSAY OBJEC TION TO TRIAL TES TIMONY The Defen dant arg ues tha t the trial court e rred in ad mitting, over objections by defense counsel, certain testimony by Stacy Muncey. Specifically, Muncey testified that Cas ondra B ryant told he r “that Cra ig was sta lking her, that she needed to hide, that he kept finding her an d calling [her hotel] room .” She stated that Cason dra “feare d for her life.” She also testified tha t Casondra told her the Defendant “hit her with a crowba r,” causing a “large br uise [to form ] on her b ack.” The Defendant contends that this is highly prejudicial hearsay testimony which shou ld have been exclud ed at tria l.
Although it is somewhat unclear from the record, it appears that the trial judge allowed a t least part o f this testimo ny unde r the “excited utterance” exception to the hea rsay rule. See T enn. R. Evid. 803(2). From a reading of the record, we agree with the D efendant tha t this testimony app ears to be hearsa y. Furthermore, it appears that the record do es not supp ort the State’s contention that the testimony fits into one or more of the exce ptions to th e hears ay rule. See gene rally Ten n. R. E vid. 803 . How ever, in light of other testimony presented at trial and the en tire reco rd befo re us, in cludin g Cas ondra Bryan t’s testimony to the same effect as tha t of Mun cey, we are sa tisfied th at adm ission of Mun cey’s testimony was harmless error. Tenn. R. App. P. 36(b); Tenn. R. Crim. P. 52(a ).
IV. SENTENCING Finally, the Defend ant argues tha t the trial court imprope rly ordered his sentences for attempted second degree murder and aggravated assault to be served consecutively. The trial court ordered consecutive sentencing after
determ ining that th e Defe ndant is a dange rous offe nder. - 19-
When an accused challenges the length, range, o r mann er of service of a sentence, this Court has a duty to conduct a de novo r eview of the sen tence w ith a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This presumption is ?conditioned u pon the affirma tive showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstanc es.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 19 91).
In conducting a de n ovo r eview of a senten ce, this court mu st consider: (a) the evidence, if any, received at the trial and sentencing hearing; (b) the presentence report; (c) the principles of senten cing and argum ents as to sentencing alternatives; (d) the nature and characteristics of the criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement made by the defendant regarding sentencing; and (g) the potential or lack of potential for rehab ilitation or treatm ent. State v. S mith , 735 S.W.2d 859, 863 (Tenn . Crim. A pp. 198 7); Ten n. Cod e Ann. §§ 40-35-102, -103, -210.
If our review reflects that the trial court followed the statutory sentencing procedure, that the court imposed a lawful sentence after having given due consideration and proper weight to the factors and principles set out under the sentencing law, and that the trial court’s findings of fact are adequately supported by the record, then we may not modify the sentence even if we would have preferred a different re sult. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991 ).
Tennessee Code A nnotated § 4 0-35-115(b )(5) provides that a trial cou rt “may order sentences to run consecutively if the court finds by a preponderance of the evidence that . . . [t]he defendant is a dangerous offender whose behavior indicates little or no regard for human life, and no hesitation about committing a crime in which the risk to human life is high . . . .” Tenn. Code Ann. § 40-35115(b)(4). This rule, which is based upon cases decided by the Tennessee Supreme Court prior to its codification, see, e.g., State v. Wilkerson, 905 S.W.2d 933, 938 (Ten n. 1995), has been expanded through case law. In Gray v. S tate , 538 S.W.2d 391 (Tenn. 1976), our supreme court determined that “[t]he decision to impose consecutive sentences when crimes inhere ntly dangerous are involved shou ld be based upon the presence of aggravating circumstances and not merely on the fact that two or more da ngerous c rimes were comm itted.” Id. At 393. In addition, the sentencing terms imposed must be “reasonably related to the severity of the offenses committed and [must be] necessary in order to protect the public from further crim inal acts by the offen der.” Wilkerson, 905 S.W.2d at 938. The pu rpose o f consec utive sente ncing is to “p rotect soc iety from those who are unwilling to lead a prod uctive life and re sort to c rimina l activity in furtherance of their anti-societal lifestyle.” Gray, 538 S.W.2d at 393. How ever, our supreme court has also recognized that “‘sentencing is ines capably a human process that neithe r can no r should b e reduc ed to a set of fixed and mechanical rules.’” Wilkerson, 905 S.W.2d at 938 (citing 3 American Bar Association Standards for Criminal Justice , Sente ncing A lternatives and Procedures 1 8.11 (2 ed. 1986)).
In the case before us, the trial judge made the following observations at the sentencing hearing: - 21-
The Court notices in this c ase the bac kground. A pparently, . . . [Casondra Bryant] moved on several occasions trying to hide out so [the Defe ndant] wouldn’t locate her be cause ap parently [their] altercations would result in violent activity. And th e defe ndan t would find her the several times that she moved. .... And so the C ourt has to take tha t into consideration and th is continuo us stalking when s he was trying to stay a way from him. . . . .... The defendant has a previous history of criminal convictions or criminal behavior in addition to that necessary to establish the range. The defendant did have some previous criminal offenses and some assaults that were either nol-prossed [sic] or dismissed. And the Court has to con sider th e prior c rimina l beha vior in this situation. .... Looking at this defendan t over the period of tim e that we have facts conc erning the de fenda nt, the d efend ant de nies th at he d id anything that was dangerous or would be a dangerous offender. But according to the vic tim, he did se veral things. In fact, she was injured and had to get treatment for it. So that’s a dangerous offender. If you believe the victim that . . . she was struck with a tire tool on that one occasion and a baseball bat on anoth er, that’s certain ly a dangerous person in my opinion. And a perso n, also , who p ulls up a gun and fires it out in a public a rea trying to hurt the victim, that’s a dangero us person . The Cou rt will allow that to apply in regard to conse cutive sen tencing. . . . [T]he Court rejects the fact . . . that [the defense] is saying that this is a single c ourse o f condu ct that led to th e injury. It was a single course of conduct. Bu t when you fire a gun th at con duct is not restricted to one or tw o individua ls. A bullet is not restricted except by physical things that will p revent a bullet from going any further. . . . But in this case it was fired and ended up going through a window where it almos t struck the lady and could have easily hit someone else in tha t place of b usiness becau se . . . that window [was] open.
The record clearly supports the trial court’s finding that the Defendant is a dangerous offender. He d ischarged a gun in a fast-food restaurant drive-thru lane, a pub lic place which is typica lly crowde d, thus jeopardizing the lives of several people, including that of his wife who he shot in the head.10 M oreover,
The jury, by its conviction of the Defendant, accredited this version of the shooting.
the bullet narrowly missed striking Jenitra Stone; and had sh e been hit, it is quite poss ible that she c ould ha ve been killed. Giving deference to the findings of the trial court, whose sentencing determination is presumed to be correct, we agree with the decision that the sentences should run consecutively in order to protect the pub lic from furth er seriou s crimina l conduc t by the De fendan t.
Furthermore, for his attempted second degree murder conviction, the Defen dant wa s senten ced to a term in the m iddle of the senten cing range for a Class B felony, and for his aggravated assault conviction, he was sentenced to the minim um term for a Clas s C felon y. W e canno t say that the aggreg ate length of his sen tence s, whic h is on ly one year more than the maximum sentence for the crime of attempted second degree murder standing alone, is excessive. Noting that attempted second degree murder is among the most severe offenses that can be committed, we find that the terms of imprison ment re asona bly relate to the severity of the offenses. We therefore conclude that the record provides ample evidence to justify the sentences imposed in this case.
The jud gmen t of the trial cou rt is accord ingly affirme d.
____________________________________ DAVID H. WELLES, JUDGE
___________________________________ PAUL G. SUMMERS, JUDGE - 23-
___________________________________ JOE G. RILEY, JUDGE