State of Tennessee v. Ray A. Tullos

.IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs March 26, 2013

STATE OF TENNESSEE V. RAY A. TULLOS

Direct Appeal from the Circuit Court for Bledsoe County
No. 2009-CR-10 Buddy D. Perry, Judge

No. E2012-01634-CCA-R3-CD - Filed September 27, 2013

A Bledsoe County Circuit Court Jury convicted the appellant, Ray A. Tullos, of attempted
second degree murder. The trial court sentenced the appellant to eleven years in the
Tennessee Department of Correction. On appeal, the appellant challenges the trial court’s
evidentiary rulings, the sufficiency of the evidence sustaining his conviction, and the
sentence imposed. Upon review, we affirm the judgment of the trial court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which T HOMAS T. W OODALL
and R OBERT W. W EDEMEYER, JJ., joined.

M. Keith Davis (at trial and on appeal), Dunlap, Tennessee, and Paul Cross (at trial),
Monteagle, Tennessee, for the appellant, Ray A. Tullos.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel; J.
Michael Taylor, District Attorney General; and James W. Pope, III, Assistant District
Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

The appellant and his three co-defendants, Preston Parker, Lonnie Angel, Jr.,1 and
Clinton Watson, were indicted for the first degree premeditated murder, felony murder, and

1
Some of the witnesses in this case share a surname. Therefore, for clarity, we have chosen to utilize
their first names, and, in the case of Lonnie, Jr., and Lonnie, Sr., we will also utilize the appropriate suffix.
We mean no disrespect to these individuals.
especially aggravated kidnapping of the victim, Donnie Lawson. Before trial, Parker pled
guilty to second degree murder, and the appellant’s case was severed from that of his
remaining co-defendants.2

At trial, Preston Parker testified that in the late afternoon of February 21, 2009, he;
his girlfriend, Evalee Holloway; his son, P.J. Parker; and his nephew, Dalton Parker, attended
a cookout at Lonnie, Jr.’s barn on Norwood Road. The barn was located 100 to 150 yards
from Lonnie, Jr.’s mobile home. When Preston and his family arrived, Lonnie, Jr., and the
victim were already at the barn, and their trucks were parked nearby. Lonnie, Sr., was passed
out in the victim’s truck. The men drank beer and grilled deer meat.

Preston said that about thirty minutes to an hour later, while Lonnie, Jr., and Watson
were present, he asked the victim if he had killed Clyde Angel, who was Lonnie, Sr.’s
brother. Clyde died in a house fire in February 2009. Lonnie, Sr., and the victim were at the
house at the time of the fire. The victim approached Preston, saying, “‘What if I did?’”
Preston grabbed the victim’s beard, pulled it, and hit the victim with his left hand, knocking
him to the ground. Preston said that his left hand was disabled and in a cast. Preston kicked
the victim once or twice in the head, which rendered him unconscious. Lonnie, Jr., and
Watson were present during the altercation. Watson kicked the victim twice as the victim
lay on the ground.

Preston said that approximately ten minutes after the altercation, the appellant and
Mark Sherman arrived. The victim was on the ground, moving a little and bleeding from the
nose. The appellant asked what had happened. Preston replied that he and the victim had
fought because the victim “supposedly . . . burnt Clyde Angel up.” The appellant, who had
been friends with Clyde, “flipped out,” struck the victim twice with a wine bottle, grabbed
a “posthole driver,” and swung it toward the victim. Preston did not see if the post hole
driver hit the victim. The appellant also kicked the victim in the stomach and hit the victim
in the head twice with a pair of rubber boots that he had taken from Lonnie, Jr.’s truck.
Lonnie, Jr., also kicked the victim.

Preston said that the attack lasted “off and on” for fifteen to twenty minutes. The
victim tried to get up once, and Preston kicked him in the head. Lonnie, Jr., had a gun and
was preparing to the shoot the victim when Lonnie, Sr., came into the barn and told everyone
to stop. Lonnie, Sr., said that the victim had not done anything. The victim’s face and head
were bleeding. Preston, Lonnie, Jr., Watson, and the appellant discussed taking the victim’s
body “to the rock crusher.” However, Lonnie, Sr., stopped them and said he was going to

2
The record reflects that Lonnie, Jr., was convicted of second degree murder. The record does not
reflect the disposition of the case against Watson.

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call an ambulance. Sherman and Lonnie, Sr., left to make the call. Shortly thereafter,
Preston, Watson, and the appellant heard police sirens and fled. Preston said that when he
left the barn, the victim was alive but was having trouble breathing.

Preston acknowledged that he pled guilty to second degree murder for his role in the
victim’s death. Preston said that he never saw anyone urinate on the victim, but the appellant
told Preston that the appellant urinated on the victim.

On cross-examination, Preston said that earlier in the day, he had taken P.J. and
Dalton to a “chicken fight.” Preston met Lonnie, Jr., at the fight. Preston stated that Lonnie,
Jr., was a large man, approximately six feet, seven inches tall. Preston said that the victim
“was a pretty good size fellow, too.”

Preston clarified that he was left-handed; that his cast was on his right arm, not his
left; and that he did not recall whether he was wearing the cast on the day of the offense.
Preston said that his “first punch” rendered the victim unconscious. He did not want the
victim to be able to get up because the victim was “a dangerous man.” Preston
acknowledged that he “kicked the hell out of” the victim and that he kicked him
approximately seven times.

Preston said that Lonnie, Jr., had a gun and did not want anyone to leave after Preston
first hit the victim. When the appellant and Sherman arrived, the victim was lying on the
ground. The victim roused, and Watson cautioned Preston that the victim was trying to get
up. Preston kicked the victim in the head about three times and punched him until he lost
consciousness.

Preston acknowledged that when he initially spoke with Agent Mark Wilson, he tried
to minimize the number of times he struck the victim. Preston maintained that he could not
recall specifically how many times he struck the victim. He conceded that his initial
statements to Agent Wilson about what transpired after the beating were untrue.

On redirect examination, Preston said that when the appellant arrived, the victim “was
on the ground pretty much out of it” and was not a threat to anyone. Preston did not see
anyone tell the appellant to strike the victim.

William Mark Sherman testified that he was fifty years old and unemployed. He had
known the appellant all of the appellant’s life. Around 2:00 p.m. on February 21, 2009, the
appellant came to Sherman’s house, and over the course of two or three hours, they drank a
six-pack of beer and some whiskey. Eventually, they drove to a Jiffy Mart convenience store
to purchase more beer. After leaving the store, Sherman drove them to a friend’s house

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where they drank more beer. As they left the friend’s home, they decided to go to Lonnie,
Jr.’s house to visit.

Sherman said that they arrived at Lonnie, Jr.’s residence around 8:00 or 8:30 p.m.
There was no activity at the mobile home, so Sherman drove to the barn. Inside the barn,
Sherman saw Lonnie, Jr., Watson, and Preston. The victim was lying on the ground, was
bleeding, and had lacerations on his face. His breathing was “hoarse.” Sherman said that
the victim was not a threat to anyone.

Sherman and the appellant were told that the victim was responsible for killing Clyde
Angel. The appellant looked around, picked up a wooden stick, and approached the victim.
Sherman disarmed the appellant and told him to calm down. Sherman then went behind the
barn to relieve himself, and when he returned, the appellant was approaching the victim with
a “small, probably three-eighths inch piece of like rebar,” which might have been a “flower
arrangement stand.” When the appellant was about seven feet from the victim, the appellant
raised the object above his head, preparing to strike the victim. Once again, Sherman
intervened and disarmed the appellant. The appellant picked up a “concrete boot, . . . a green
dairy boot” and threw it at the victim. Sherman could not see if the boot struck the victim.
Sherman said that no one was forcing the appellant to do anything or preventing the appellant
from leaving.

Sherman said that he and the appellant went behind the barn and then separated. When
Sherman heard a commotion, he went back inside the barn. Lonnie, Sr., came inside and said
to leave the victim alone because he was not responsible for Clyde’s death. Lonnie, Sr., told
Sherman that he would call an ambulance.

Sherman said that he heard sirens when he left Lonnie, Sr., at his sister’s house.
Sherman returned to the barn and noticed fresh blood on the victim.

On cross-examination, Sherman stated that Lonnie, Jr., was a “pretty good size
fellow.” Sherman agreed that the appellant “snapped” after hearing that the victim had killed
the appellant’s friend. Sherman saw Watson, who had a gun, kick the victim on the leg.
Preston kicked the victim two or three times and stomped on the victim’s face. Sherman
never saw the appellant hit the victim with a beer bottle.

Lonnie Angel, Sr., testified that he was fifty-two years old and that Lonnie, Jr., was
thirty-two years old. Lonnie, Sr., said that although the victim was his “double first cousin,”
the victim was “[m]ore like a brother.” Several months prior to February 2009, a fire
occurred at Lonnie, Sr.’s house, during which his brother, Clyde, lost his life. Lonnie, Sr.,
the victim, and several other family members were also at the house at the time of the fire.

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The cause of the fire was never determined. Lonnie, Sr., said the victim was not responsible
for the fire.

Lonnie, Sr., said that on February 21, 2009, he went to a rooster fight with his son,
Timmy, and then they went to get beer. Afterward, Lonnie, Sr., drove to the victim’s house.
Lonnie, Sr., stayed with the victim to help him put air in a tire and sent Timmy back to the
rooster fight. Once the tire was repaired, the victim and Lonnie, Sr., went to the rooster fight.
Thereafter, they stopped at a store for more beer and kerosene before going to Lonnie, Jr.’s
barn to attend a cookout.

Lonnie, Sr., said that when they arrived at Lonnie, Jr.’s barn, Lonnie, Jr., Watson, and
Preston were there. The victim went into the barn, and Lonnie, Sr., took a nap in the victim’s
truck. When Lonnie, Sr., woke, he went into the barn and noticed that the appellant and
Sherman had arrived. Lonnie, Sr., saw the victim lying on the ground near the tailgate of
Lonnie, Jr.’s truck. The victim was bleeding, was not moving, and was in “[p]retty bad
shape.” Lonnie, Sr., asked what was happening, and someone responded that the victim had
killed Clyde. Lonnie, Sr., told the men to leave the victim alone. The appellant had a “post-
driver” and said, “‘Let’s do him in.’” Lonnie, Sr., responded, “‘You’re crazy as H-E-L-L.’
. . . [H]e was whooped inside the barn.” Lonnie, Sr., did not see anyone else with a weapon.
According to Lonnie, Sr., the appellant and Preston kicked the victim while he was lying on
the ground. When Lonnie, Sr., left the barn, the victim was alive and lying on the ground.
Lonnie, Sr., called 911. Lonnie, Sr., said that the victim never attempted to stand up and was
not a threat to anyone.

On cross-examination, Lonnie, Sr., said that the morning after the attack, he told
Agent Wilson that he was an alcoholic, had been drinking that night, and had taken a lot of
medication. Lonnie, Sr., saw Preston kick the victim once or twice. Lonnie, Sr., never saw
the appellant hit the victim and never saw anyone hit the victim with a bottle. Preston tried
to urinate on the victim, but Lonnie, Sr., pushed him away before he could accomplish the
act.

Tennessee Bureau of Investigation (TBI) Special Agent Criminal Investigator Mark
Wilson testified that on February 21, 2009, he assisted the Bledsoe County Sheriff’s
Department in the investigation of the victim’s death. Agent Wilson went to Erlanger
Hospital and learned that the victim had died. The victim had injuries to his face, cranial
area, torso, and stomach. Agent Wilson arranged for the body to be transported to the
medical examiner’s office for an autopsy. Later, Agent Wilson went to the crime scene and
collected evidence. At the scene, he found a post hole driver and a 32-ounce King Cobra
bottle, both of which appeared to have blood on them. On the rear bumper of Lonnie, Jr.’s
truck, he saw dark spots that appeared to be blood and took a swab of the spots. He also

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collected a rubber boot from the back of Lonnie, Jr.’s truck. The boot appeared to have
blood on it. Additionally, he obtained a sample of the victim’s blood and buccal swabs from
Preston, the appellant, and Watson. Agent Wilson sent the blood sample, boot, swabs, bottle,
and post hole driver to the TBI crime laboratory for testing.

Agent Wilson said that on the morning of February 22, 2009, he interviewed the
appellant at the Bledsoe County Sheriff’s Office. Investigator Ricky Seals and Sheriff Jimmy
Morris were also present for the interview. After being advised of his Miranda rights, the
appellant agreed to give a recorded statement. Agent Wilson read the statement to the jury.
During the interview, the appellant said that he drank alcohol before going to Sherman’s
house and that he drank more alcohol at Sherman’s house. The appellant and Sherman left
to visit a friend and then went “riding around.” The appellant suggested that they go visit
Lonnie, Jr. When they arrived around 9:00 or 10:00 p.m., the appellant saw Lonnie, Sr.,
sitting in a truck but did not see Lonnie, Jr. The appellant heard people talking and went into
the barn where he saw the victim lying on the ground behind a blue truck. The appellant
approached the victim, whom he did not know. The appellant and Sherman asked what was
happening. Preston said that he had “knocked [the victim] out.” The appellant noticed the
victim had blood on his face, but he was not dead. Preston kicked the victim a few times.
After the kicks, the victim was still moving. The appellant went behind the barn to relieve
himself and heard Lonnie, Sr., say, “Don’t kick him no more.” The appellant saw the victim
try to get up, and Preston kicked him to the ground. Preston was the only person the
appellant saw strike the victim, but he did not hit him with a weapon. The appellant said he
was drunk and picked up a pipe to hit the victim, but Lonnie, Sr., told him to stop. The
appellant said, “[H]ell, I’m going to go ahead and hit.” Lonnie, Sr., told the appellant that
he was going to leave the barn and call the police. Preston and Lonnie, Jr., said that “they
was going to finish him like that but I don’t think he meant to hurt him [or kill him].” The
appellant said that he and Sherman did not intend to let anyone “take [the victim] off and kill
him because he was still alive.” The appellant acknowledged that he did not tell the men not
to hit the victim, explaining that “it wouldn’t have done no good. They might have knocked
the hell out of me.” When the appellant left the barn with Lonnie, Jr., the victim was still
alive. Approximately ten minutes later, the police arrived, and the appellant and Sherman
fled. Near the end of the interview, the appellant said that he kicked the victim because
“[t]hey said he was sorry as sh[*]t. We’s drunk. We’s just a bunch of drunks out there. I
had been drinking a little moonshine. But I never kicked him in his face or head and he
wasn’t dead when we left.”

On cross-examination, Agent Wilson said that he interviewed numerous witnesses in
addition to the appellant, including Lonnie, Sr., Preston, Watson, and Sherman. Agent
Wilson could not definitively say that any of the victim’s wounds were caused by the rubber
boot. Agent Wilson acknowledged that Preston told him that the appellant had urinated on

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the victim. Preston did not implicate anyone else in the assault until late in the interview.

Suzanne Lafferty of the TBI crime laboratory testified that she was unable to find any
fingerprints on the post hole driver or the boot. She found one fingerprint on the bottle but
was unable to match it to any of the suspects.

Mark Dunlap, a special agent forensic scientist with the Serology and DNA Unit of
the TBI Crime Laboratory, testified that the victim’s blood was on the boot, the post hole
driver, the bottle, and the swab from the truck bumper. Although he tested the bottle for
saliva, he was unable to discern the identity of the person who drank from the bottle.

Evalee Cleo Holloway testified that on February 21, 2009, she was dating Preston, and
that they, P.J., and Dalton went to Lonnie, Jr.’s barn. When they arrived, she saw the victim,
Lonnie, Jr., and Lonnie, Sr. Holloway went to the mobile home to prepare food while
Lonnie, Jr., grilled deer steaks. Elaine Angel, Lonnie, Jr.’s wife, was at work, so only the
children were at the house.

Holloway stated that at some point that evening, the children went to the barn. When
they returned to the mobile home, they told her there was a problem in the barn. Holloway
began walking toward the barn to investigate, but Preston ordered her to return to the house.
Later, the appellant, Preston, and Watson came to the house to eat. However, when they
heard police sirens, they ran out the back door. Holloway went to the barn when the
ambulance arrived and saw the victim lying on the ground, noting he had been “beat[en] so
bad” that it was difficult to recognize him. The victim tried to talk to Holloway but
“gurgl[ed] on his own blood.”

On cross-examination, Holloway said that she had been to the chicken fight with
Preston earlier that day. Preston took off his cast and left it in her vehicle.

Twelve-year-old Dalton Parker testified that in February 2009, he went with his uncle,
Preston; Holloway; and P.J. to Lonnie, Jr.’s residence for a cookout. After they arrived,
Dalton, Christopher, Kelvin, and P.J. went to the loft of the barn, looked down, and saw
Lonnie, Jr., Preston, Watson, the victim, and the appellant. Someone started talking about
how Clyde died. Preston grabbed the victim’s beard, pulled his head down, and punched and
kicked him repeatedly. The appellant hit the victim “with a post thing” and with a beer
bottle. Dalton saw Lonnie, Jr., with a gun and heard him say that he intended to shoot the
victim and “put him in the ground.” Someone told the children to go to the mobile home, and
they complied. Thereafter, the police arrived.

On cross-examination, Dalton said that he loved Preston and that Preston had told him

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“about the boots.” He stated that Preston did not beat the victim “badly” and that Preston
was wearing his cast when he struck the victim.

Mitchell Rice, an EMT, testified that on February 21, 2009, he, Paul Putnam, and
Ryan Angel responded to a call for an ambulance at Lonnie, Jr.’s barn. Rice went into the
barn and saw the victim lying on the dirt. The victim was alive but unresponsive. He had
a large knot on the back of his head, and a large amount of blood was around his head and
coming out of his nose and ears. The victim was having trouble breathing, was unable to
speak, and was “gargling” blood or fluid in his throat. Rice opined that the blood was
coming from the victim’s head injuries. The EMTs put the victim into the ambulance and
tried to keep his airway open as they transported him to the hospital. However, on the way,
the victim stopped breathing, and the EMTs began performing cardiopulmonary resuscitation
(CPR). They continued trying to resuscitate the victim as they took him into the hospital but
stopped approximately fifteen to thirty minutes later when a doctor pronounced the victim
dead.

Dr. Amy R. McMaster, a forensic pathologist who performed the victim’s autopsy,
testified that the victim was five feet, nine inches tall and weighed 220 pounds. He had
several blunt force injuries on his head; abrasions and scratches on his scalp; and a cut to the
right eyebrow. Both of the victim’s eyes were black and blue; there were abrasions on his
cheek; his upper lip was bruised and swollen; his right jaw was fractured; he had scratches,
bruises, and a cut behind his right ear; and he had a bruise on his left flank above his hip but
below his ribcage. During her internal examination, Dr. McMaster found bleeding on both
sides of the victim’s scalp in the temple area. His brain was swollen, and he had bleeding
on both sides of his brain. However, his skull was not fractured. The victim’s blood alcohol
content was .124. Dr. McMaster concluded that the victim’s death was caused by blunt force
trauma to the head. Dr. McMaster stated that no single blow killed the victim but that his
death was from the cumulative, concussive effect of all of the blows. She stated that the
victim’s injuries could have been caused by boots, a beer bottle, or a metal pipe but also
stated that the injuries could have been caused by “none of those.”

On cross-examination, Dr. McMaster said that if the appellant had hit the victim’s
skull “full force” with a metal object, the blow would likely have fractured the victim’s skull.
However, a glancing blow might not have fractured the skull.

The State rested its case-in-chief. Defense counsel made a motion for judgment of
acquittal, which the trial court granted as to the felony murder and aggravated kidnapping
charges.

The first defense witness, Dr. David Solovey, a clinical psychologist with a Ph.D. in

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psychology, testified that he had examined the forty-nine-year-old appellant and reviewed
the appellant’s medical records. From the records, Dr. Solovey learned that in 1997, the
appellant was hospitalized for major depression with psychotic features, bipolar disorder, and
anxiety or panic disorder without agoraphobia. Since that diagnosis, the appellant had been
continuously treated and was taking citalopram, Seroquel, and clonazepam for anxiety and
depression. The appellant had maintained employment throughout most of his adult life and
was a father.

Dr. Solovey said that he administered psychological tests to the appellant, which
revealed that he was competent to stand trial and that he had an I.Q. of 66, which fell within
the level of mild mental retardation. He saw no indication that the appellant was
malingering. Dr. Solovey stated that, typically, someone with the appellant’s symptoms
could live a mostly normal life.

Dr. Solovey stated that the appellant was “pretty low functioning” and that “his own
personal resources for determining how to behave are not real strong.” Regarding the
appellant’s actions in the attack, Dr. Solovey opined that the appellant likely panicked and
did not respond in a clear and organized manner due to the stress of the situation and his
alcohol consumption. He stated that the appellant was a follower “who would be part of a
group rather than strike out or do things that would require individual decisions.” He also
concluded that the appellant was “not very internally cohesive, and his ability to handle
unusual or stressful situations is pretty weak anyway, so the effect would be disorganized,
and you know, somewhat unclear erratic behavior.”

On cross-examination, Dr. Solovey acknowledged that individuals with the same I.Q.
as the appellant could function in society and maintain employment. The appellant had
served in the military, received an honorable discharge, and held several different types of
“[b]lue collar” jobs. The appellant married his wife approximately eighteen months prior to
trial, but they had been together for twenty years and had a nineteen-year-old son. Dr.
Solovey believed the appellant was on medication for anxiety and depression in February
2009. However, on the date of the offense, the appellant also had consumed alcohol, which
had an unpredictable effect when combined with the medication. Dr. Solovey’s report
reflected that the appellant was suspicious and distrustful of people and that he was wary and
alert to potential insults.

Randy Sharp testified that he and the appellant grew up together and that they lived
next door to each other as children. Sharp attended school with the appellant and knew the
appellant was assigned to special education and vocational classes. Sharp said that when
they were children, the appellant was nicknamed “Slobbers and Slobber-box” because he
“slobbered uncontrollably.”

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 Sharp said that about three years before the appellant’s trial, he, the appellant, and
others went camping. As they began bedding down for the night, the appellant had a panic
attack and started “trying to ram his head out anywhere he could see daylight to get out of
his tent, and was just hollering and screaming and crying.” Sharp was disturbed by the
appellant’s actions but was able to calm him after five or ten minutes. Afterward, the
appellant started crying. Sharp said that the episode was the most severe breakdown he had
seen the appellant have but noted that during childhood sleepovers, the appellant had
nightmares and woke up yelling. Sharp believed the appellant’s “spells” occurred randomly.
He thought the appellant had been taking medication for the past ten years.

On cross-examination, Sharp acknowledged that the appellant had passed all of his
classes and had graduated. Sharp agreed that the appellant was “a pretty easy going fellow.”
When asked “if it was a different story” when the appellant was mad, Sharp responded,
“Well, it all depends.”

Virgil Eller testified that he was in a relationship with Margaret Lackey, Watson’s
sister. On February 21, 2009, he was at Lonnie, Jr.’s barn with Watson. Also present were
the victim, Lonnie, Sr., and Preston. At first, the men stood around talking and eating. As
the victim was walking out the door to leave, Preston hit him on the back of the head. The
victim had not moved toward Preston prior to being hit. Preston hit the victim several times
on the head. The victim fell to the ground, and Preston repeatedly kicked and stomped his
head. Preston was wearing a pair of steel-toed work boots. The victim never got up. Eller
said that the appellant and Sherman were not present and that Lonnie, Jr., did not join in the
attack. Eller said that he just stood still because he was afraid and did not know what to do.

Eller stated that he had to get “clearance” from Lonnie, Jr., to leave, explaining that
it took him and Watson fifteen minutes to persuade Lonnie, Jr., to allow Eller to leave the
barn to pick Lackey up at work. Eller left in Watson’s truck. As he left, he saw a silver and
maroon Blazer approaching the barn. Eller did not call the police after he left.

On cross-examination, Eller stated that he and Watson had been drinking beer that
day. He left the barn at approximately 8:20 p.m. He said that “they” would not let Watson
leave with him. Eller acknowledged that he had lied to police and told them that he had not
been at Lonnie, Jr.’s on the night in question and that he did not know anything about the
incident, explaining that he was scared.

At the conclusion of the proof, the jury found the appellant guilty of attempted second
degree murder, for which the trial court imposed a sentence of eleven years. On appeal, the
appellant challenges the trial court’s evidentiary rulings, the sufficiency of the evidence, and
the sentence imposed.

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 II. Analysis

A. Evidentiary Rulings

The appellant argues that the trial court “abused its discretion when it allowed the
State to improperly elicit testimony about [the appellant’s] character . . . [and that] the trial
court erred when it refused to allow him to introduce evidence of his co-defendants’
propensity for violence.” The State contends that the appellant waived these issues by failing
to provide citations to the record in the argument section of his brief. See Tenn. Ct. Crim.
App. R. 10(b). However, our review of the appellant’s brief shows that he cited to the record
sufficiently enough to preserve the issues.

1. Testimony about the Appellant’s Character

The appellant argues that “the trial court abused its discretion when it allowed the
State to improperly elicit testimony about [the appellant’s] character,” specifically asserting
that the appellant did not “open the door” to such testimony. See Tenn. R. Evid. 401(a). In
response, the State contends that the testimony was properly admitted in response to
statements made during defense counsel’s direct examination of Dr. Solovey and Sharp.

During the presentation of the defense’s proof, Dr. Solovey testified on direct
examination that the appellant’s ability to handle stressful situations was weak and that he
was “not very internally cohesive.” Accordingly, when the appellant was confronted by
stressful situations, especially when he had consumed alcohol, he would likely respond in a
panicked and disorganized manner. Dr. Solovey stated that the appellant was a follower
“who would be part of a group rather than strike out or do things that would require
individual decisions.” Thereafter, on direct examination, Sharp testified that he had gone to
school with the appellant and knew the appellant had attended special education classes. He
testified about a specific instance when the appellant had an unprovoked panic attack during
a camping trip. During the State’s cross-examination of Sharp, the following colloquy
occurred:

[The State:] Okay. And [the appellant], having grown
up with him, basically, you know, he’s a pretty easy going
fellow, wasn’t he?

[Sharp:] Yes

[The State:] But if you made him mad, different story?

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 [Sharp:] Well, it all depends.

[The State:] Okay. But you’ve see that happen, haven’t
you?

[Sharp:] Yes.

[Defense Counsel:] Your Honor, I object to this. Only
the defense can raise that subject.

[Trial Court:] Overruled.

At the motion for new trial hearing, defense counsel asserted that the appellant did not
“open the door” to evidence of the appellant’s character, and therefore, that the State should
not have been allowed to ask Sharp how the appellant responded when angry. In response,
the State cited the testimonies of Dr. Solovey and Sharp regarding the appellant’s responses
to stressful situations and his emotional problems. The State maintained that the foregoing
question was asked to rebut the defense’s proof “that . . . because of some medical condition
. . . he responded a certain way” by demonstrating that “he was like anybody else when you
made him mad.” The trial court summarily overruled the appellant’s motion for new trial.

Our supreme court has stated that, generally, “questions concerning the admissibility
of evidence rest within the sound discretion of the trial court, and this Court will not interfere
in the absence of abuse appearing on the face of the record.” Pylant v. State, 263 S.W.3d
854, 870, 871 n.26 (Tenn. 2008) (citing State v. Dotson, 254 S.W.3d 378, 392 (Tenn. 2008);
State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997); State v. Van Tran, 864 S.W.2d 465, 477
(Tenn. 1993); State v. Harris, 839 S.W.2d 54, 73 (Tenn. 1992)). The trial court’s discretion
in determining the admissibility of evidence is generally circumscribed by the Tennessee
Rules of Evidence.

Ordinarily, “[e]vidence of a person’s character or a trait of character is not admissible
for the purpose of proving action in conformity with the character or trait on a particular
occasion.” Tenn. R. Evid. 404(a); see also Tenn. R. Evid. 404(b). Specifically, Rule 404(a)
provides:

[E]vidence of a person’s character or a trait of character is not
admissible for the purpose of proving action in conformity with
the character or trait on a particular occasion, except:

(1) . . . evidence of a pertinent character trait offered by

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 an accused or by the prosecution to rebut the same . . . .

Tenn. R. Evid. 404(a)(1).

Rule 404(a)(1) embodies a very important exception to the general bar on the
admissibility of character evidence of the accused. Neil P. Cohen et al. Tennessee Law of
Evidence §4.04[4][a] (LEXIS publishing, 6th ed. 2011). An accused may open the door to
otherwise inadmissible character evidence “by raising the subject of that evidence at trial.”
State v. Gomez, 367 S.W.3d 237, 246 (Tenn. 2012). Our supreme court has explained that
“[w]hen a party raises a subject at trial, the party ‘expand[s] the realm of relevance,’ and the
opposing party may be permitted to present evidence on that subject.” Id. (quoting 21
Charles Alan Wright et al. Federal Practice & Procedure Evidence § 5039.1 (2d ed. 1987)).
In sum, “‘opening the door’ is an equitable principle that permits a party to respond to an act
of another party by introducing otherwise inadmissible evidence.” Id.

In the instant case, the testimony of Dr. Solovey and Sharp concerned the appellant’s
level of mental functioning and his ability to cope with stressful situations. The defense
presented this testimony to establish the appellant’s mens rea at the time of the charged
offense. However, as the appellant asserts, the witnesses did not address the appellant’s
“character for peacefulness” on direct examination, although on cross-examination, the
witnesses testified that the appellant was “easy-going.” Accordingly, we conclude that the
appellant did not “open the door” to the contested testimony.

Nevertheless, our supreme court has explained that “[w]here an error is not of a
constitutional variety, Tennessee law places the burden on the defendant who is seeking to
invalidate his or her conviction to demonstrate that the error ‘more probably than not affected
the judgment or would result in prejudice to the judicial process.’” State v. Rodriguez, 254
S.W.3d 361, 371 (Tenn. 2008) (quoting Tenn. R. App. P. 36(b)). Sharp’s testimony reflected
that the appellant’s reaction to situations when he was angry “depend[ed]” on the factors
involved. Thus, his testimony was, at most, minimally prejudicial to the appellant. Therefore,
we conclude that although the trial court erred by not sustaining the appellant’s objection to
the State’s question, the error was harmless. See Tenn. R. App. P. 36(b).

2. Testimony about Co-Defendants’ Prior Acts

The appellant contends that the trial court violated his right to present a defense by
refusing to allow him to introduce proof of his co-defendants’ prior violent acts to establish
that the appellant “panicked and acted as he did” because he was afraid of his co-defendants,
who were “two very dangerous men.” In response, the State contends that the evidence was
not relevant because the appellant failed to lay a foundation for the admission of this

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evidence to establish “that he acted in self-defense or that he was acting under duress based
on his fear of the two co-defendants.”

Prior to trial, the appellant filed a motion in limine requesting permission to introduce
evidence of Preston and Lonnie, Jr.’s prior acts of violence. Specifically, the motion alleged
the following:

July 28, 2000- officers responded to a call and found Preston
Parker swinging a club at his father. When one of the officers
told Mr. Parker to drop the club, he responded by telling the
officer that he was going to kill him.

May 31, 2003- Mr. Parker assaulted Joshua Ferguson at the
Hardee’s Restaurant located in Pikeville, Tennessee.

October 30, 2003- Preston Parker jumped Newell Freeman
causing bruises and scratches over Mr. Freeman’s head and
bruises to his ribs where Mr. Parker had kicked him.

September 14, 2005- Mr. Parker and Lonnie Angel, Jr. shot into
the home of Tom Angel at his home . . . .

At the hearing on the motion, defense counsel explained that the proof should be
admissible to prove that the co-defendants were “a couple of tush hogs . . . [who will] beat
you up, they’ll beat you up bad.” Defense counsel said that the evidence of the prior bad acts
would explain the appellant’s “apprehension or fear,” which led him to act as he did after
witnessing his co-defendants attack the victim. The State argued that the appellant had not
raised self-defense or duress and had not established that the appellant hit the victim because
of threats. The trial court agreed with the State but held that if the appellant laid a foundation
establishing that he joined in the assault as a result of threats from Parker or Lonnie, Jr., the
evidence might be admissible.

A criminal defendant has a right to present a defense that is guaranteed by the Sixth
Amendment and the Due Process Clause of the Fourteenth Amendment of the United States
Constitution. State v. Brown, 29 S.W.3d 427, 432 (Tenn. 2000). However, in many
situations, the appellant’s due process right “‘must yield to other legitimate interests in the
criminal trial process.’” Id. at 432 (quoting Chambers v. Mississippi, 410 U.S. 284, 295 &
302 (1973)). To this end, “[s]o long as the rules of procedure and evidence are not applied
arbitrarily or disproportionately to defeat the purposes they are designed to serve, these rules
do not violate a defendant’s right to present a defense.” State v. Flood, 219 S.W.3d 307, 316

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(Tenn. 2007). To determine whether a defendant’s due process right to present a defense has
been violated by the exclusion of evidence, we must consider:

(1) Whether the excluded evidence is critical to the defense;

(2) Whether the evidence bears sufficient indicia of reliability;
and

(3) Whether the interest supporting exclusion of the evidence is
substantially important.

Id. at 316 (citing Brown, 29 S.W.3d at 434-35; State v. Rice, 184 S.W.3d 646, 673 (Tenn.
2006); State v. Rogers, 188 S.W.3d 593, 614 (Tenn. 2006)).

In considering a similar issue, this court recently stated, “Negative character evidence
offered against someone other than a criminal defendant is still subject to the remaining rules
of evidence. The general default rule that ‘[a]ll relevant evidence is admissible,’ established
by Rule 402, still applies, as does its proviso that ‘[e]vidence which is not relevant is not
admissible.’” State v. Lamont Johnson, No. W2012-01271-CCA-R3-CD, 2013 WL
2404057, at *5 (Tenn. Crim. App. at Jackson, May 30, 2013), application for perm. to appeal
filed (Tenn. July 24, 2013). In other words, the right to present a defense “does not mean
that a defendant has a right to present irrelevant evidence.” State v. Sheline, 955 S.W.2d 42,
47 (Tenn. 1997).

We agree with the State that the appellant failed to lay any foundation for the
admission of the evidence of his co-defendants’ violent history. During opening statements,
defense counsel contended that the appellant was a mildly mentally retarded individual who
stepped into a “charged situation.” Counsel did not allege that the appellant was threatened
or coerced into beating the victim. Moreover, in closing argument, defense counsel asserted
that the appellant, who had limited intelligence, walked into a charged situation and made
a bad decision but that he did not do anything to contribute to the victim’s death.

The appellant contends that the foundation was established by Eller’s testimony that
he had to obtain permission to leave, Sherman’s testimony that Watson had a gun, Preston’s
testimony that Lonnie, Jr., had a gun, and the appellant’s statement to Agent Wilson that he
did not “ask the others to stop . . . because they might have knocked the hell out of him.”
However, none of the witnesses testified that the appellant beat the victim because his co-
defendants threatened or coerced him. Indeed, in the appellant’s statement to the police he
said that he struck the victim because the appellant was drunk and because he had been told
that the victim was “sorry as sh[*]t.” Accordingly, we conclude that the trial court did not

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abuse its discretion in excluding the evidence of Preston and Lonnie, Jr.’s prior violent acts.

B. Sufficiency of the Evidence

The appellant contends that the evidence is insufficient to support the conviction
because it fails to show that he acted knowingly. On appeal, a jury conviction removes the
presumption of the appellant’s innocence and replaces it with one of guilt, so that the
appellant carries the burden of demonstrating to this court why the evidence will not support
the jury’s findings. See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The appellant
must establish that no reasonable trier of fact could have found the essential elements of the
offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979);
Tenn. R. App. P. 13(e).

Accordingly, on appeal, the State is entitled to the strongest legitimate view of the
evidence and all reasonable inferences which may be drawn therefrom. See State v.
Williams, 657 S.W.2d 405, 410 (Tenn. 1983). In other words, questions concerning the
credibility of witnesses and the weight and value to be given the evidence, as well as all
factual issues raised by the evidence, are resolved by the trier of fact, and not the appellate
courts. See State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).

The guilt of a defendant, including any fact required to be proved, may be predicated
upon direct evidence, circumstantial evidence, or a combination of both direct and
circumstantial evidence. See State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App.
1999). Even though convictions may be established by different forms of evidence, the
standard of review for the sufficiency of that evidence is the same whether the conviction is
based upon direct or circumstantial evidence. See State v. Dorantes, 331 S.W.3d 370, 379
(Tenn. 2011).

Second degree murder is the knowing killing of a victim. See Tenn. Code Ann. §
39-13-210(a)(1). Our supreme court has determined that second degree murder is a result
of conduct offense. See State v. Ducker, 27 S.W.3d 889, 896 (Tenn. 2000). Accordingly,
“[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). Moreover, “[o]ur jurisprudence recognizes that the mental state, a necessary
factor of almost all our criminal statutes, is most often proven by circumstantial evidence,
from which the trier of fact makes inferences from the attendant circumstances and from
which that body weighs the circumstantial evidence.” State v. Jeffrey Antwon Burns, No.
M1999-01830-CCA-R3-CD, 2000 WL 1520261, at *3 (Tenn. Crim. App. at Nashville, Oct.
13, 2000). A criminal attempt occurs when a person acting with the kind of culpability
otherwise required for the offense:

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 (1) Intentionally engages in action or causes a result that would
constitute an offense if the circumstances surrounding the
conduct were as the person believes them to be;

(2) Acts with intent to cause a result that is an element of the
offense, and believes the conduct will cause the result without
further conduct on the person’s part; or

(3) Acts with intent to complete a course of action or cause a
result that would constitute the offense, under the circumstances
surrounding the conduct as the person believes them to be, and
the conduct constitutes a substantial step toward the commission
of the offense.

Tenn. Code Ann. § 39-12-101(a)(1)-(3).

Taken in the light most favorable to the State, the proof at trial revealed that during
a cookout at Lonnie, Jr.’s barn, Preston accused the victim of killing Clyde Angel, who was
Lonnie, Jr.’s uncle and a friend of the appellant. The victim did not deny the accusation and
approached Preston. Preston knocked the victim to the ground and, once he was down,
repeatedly kicked him in the head. After the appellant and Sherman arrived at the barn,
Watson told Preston that the victim was trying to get up. Preston kicked the victim in the
head and hit him to render him unconscious. When Preston told the appellant that the victim
had killed Clyde, the appellant “flip[ped] out” and joined the attack on the victim. The
appellant hit the wounded and helpless victim with a bottle and swung a post hole driver at
him. The appellant also kicked the victim in the stomach and hit him in the head with a
rubber boot. Lonnie, Jr., and Watson also kicked the victim in the head. In his statement,
the appellant acknowledged that he kicked the victim because the appellant was drunk and
had been told the victim “was sorry as sh[*]t.” Lonnie, Sr., heard the appellant say, “‘Let’s
do [the victim] in.’” Testing revealed that the victim’s blood was on the boot, the post hole
driver, the bottle, and the bumper of Lonnie, Jr.’s truck, which was in the barn at the time of
the assault. The medical examiner stated that the victim died from blunt force trauma to the
head, explaining that no one blow killed the victim but that his death was caused by the
cumulative effect of all of the blows. The medical examiner asserted that the victim’s injuries
could have been caused by boots, a beer bottle, or a metal pipe or that the injuries could have
been caused by none of them. None of the witnesses saw anyone instruct or threaten the
appellant to hit or kick the victim.

On appeal, the appellant contends that the jury should have accredited his proof that,
due to his mental capacity and problems, he could not form the necessary mens rea for the

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crime. He further contends that he did not strike a blow that contributed to the victim’s
death. The jury, not this court, determines the credibility of the witnesses and the weight and
value to be given their testimony. The jurors, as they were free to do, chose to accredit the
evidence presented by the State. See State v. Millsaps, 30 S.W.3d 364, 368 (Tenn. Crim.
App. 2000). We conclude that the foregoing proof was sufficient to sustain the appellant’s
conviction for attempted second degree murder.

C. Sentencing

As his final issue, the appellant contends that the trial court “abused its discretion
when it improperly concluded that the [victim] was particularly vulnerable and the eleven
(11) year sentence which it subsequently imposed was unreasonable.” The State maintains
that the trial court properly sentenced the appellant. We agree with the State.

The appellant was convicted of attempted second degree murder, a Class B felony.
See Tenn. Code Ann. §§ 39-12-107(a); 39-13-210(c). Therefore, as a Range I, standard
offender, he was subject to a sentence between 8 and 12 years. Tenn. Code Ann. § 40-35-
112(a)(2).

At the sentencing hearing, Ola Sharp, a minister, testified that he had known the
appellant for the appellant’s entire life. After the appellant’s arrest, the appellant repeatedly
asked the church to pray for him and the victim’s family. The minister thought the appellant
was remorseful.

The trial court applied enhancement factor (1), that the appellant has a previous
history of criminal convictions or criminal behavior in addition to those necessary to establish
the appropriate range; enhancement factor (4), that a victim of the offense was particularly
vulnerable because of physical disability; and enhancement factor (9), that the appellant
possessed or employed a deadly weapon during the commission of the offense. Tenn. Code
Ann. § 40-35-114 (1),(4), (9). The trial court applied mitigating factor (3), that substantial
grounds exist tending to excuse or justify the appellant’s criminal conduct; mitigating factor
(8), that the appellant was suffering from a mental or physical condition that significantly
reduced his culpability for the offense; mitigating factor (9), that the appellant assisted the
authorities in uncovering offenses committed by other persons or in detecting or
apprehending other persons who had committed the offenses; mitigating factor (11), that the
appellant committed the offense under such unusual circumstances that it is unlikely that a
sustained intent to violate the law motivated the criminal conduct; and mitigating factor (12),
that the appellant acted under duress or under the domination of another person, even though
the duress or the domination of another person is not sufficient to constitute a defense to the
crime. Tenn. Code Ann. § 40-35-113 (3),(8), (9),(11), (12). The trial court found that the

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enhancement factors significantly outweighed the mitigating factors and sentenced the
appellant to eleven years.

Previously, appellate review of the length, range, or manner of service of a sentence
was de novo with a presumption of correctness. See Tenn. Code Ann. § 40-35-401(d).
However, our supreme court recently announced that “sentences imposed by the trial court
within the appropriate statutory range are to be reviewed under an abuse of discretion
standard with a ‘presumption of reasonableness.’” State v. Bise, 380 S.W.3d 682, 708 (Tenn.
2012). Our supreme court has further explicitly stated that “the abuse of discretion standard,
accompanied by a presumption of reasonableness, applies to within-range sentences that
reflect a decision based upon the purposes and principles of sentencing, including the
questions related to probation or any other alternative sentence.” State v. Caudle, 388
S.W.3d 273, 278-79 (Tenn. 2012). In conducting its review, this court considers the
following factors: (1) the evidence, if any, received at the trial and the sentencing hearing;
(2) the presentence report; (3) the principles of sentencing and arguments as to sentencing
alternatives; (4) the nature and characteristics of the criminal conduct involved; (5) evidence
and information offered by the parties on enhancement and mitigating factors; (6) any
statistical information provided by the administrative office of the courts as to sentencing
practices for similar offenses in Tennessee; (7) any statement by the appellant in his own
behalf; and (8) the potential for rehabilitation or treatment. See Tenn. Code Ann. §§
40-35-102, -103, -210; see also Bise, 380 S.W.3d at 697-98. The burden is on the appellant
to demonstrate the impropriety of his sentence. See Tenn. Code Ann. § 40-35-401,
Sentencing Comm’n Cmts.

In determining a specific sentence within a range of punishment, the trial court should
consider, but is not bound by, the following advisory guidelines:

(1) The minimum sentence within the range of
punishment is the sentence that should be imposed, because the
general assembly set the minimum length of sentence for each
felony class to reflect the relative seriousness of each criminal
offense in the felony classifications; and

(2) The sentence length within the range should be
adjusted, as appropriate, by the presence or absence of
mitigating and enhancement factors set out in §§ 40-35-113 and
40-35-114.

Tenn. Code Ann. § 40-35-210(c).

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 Although the trial court should consider enhancement and mitigating factors, the
statutory enhancement factors are advisory only. See Tenn. Code Ann. § 40-35-114; see also
Bise, 380 S.W.3d at 701; State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008). Our supreme
court has stated that “a trial court’s weighing of various mitigating and enhancement factors
[is] left to the trial court’s sound discretion.” Carter, 254 S.W.3d at 345. In other words,
“the trial court is free to select any sentence within the applicable range so long as the length
of the sentence is ‘consistent with the purposes and principles of [the Sentencing Act].’” Id.
at 343. “[A]ppellate courts are therefore left with a narrower set of circumstances in which
they might find that a trial court has abused its discretion in setting the length of a
defendant’s sentence.” Id. at 345-46. “[They are] bound by a trial court’s decision as to the
length of the sentence imposed so long as it is imposed in a manner consistent with the
purposes and principles set out in sections -102 and -103 of the Sentencing Act.” Id. at 346.

The appellant does not challenge the application of enhancement factors (1) and (9),
and we agree that those enhancement factors are applicable. The presentence report reflects
that the appellant has previously been convicted of driving under the influence, two counts
of possession of less than one-half of an ounce of a schedule VI drug, possession of 10
pounds to 70 pounds of a schedule VI drug, simple assault, and possession of a weapon with
the intent to go armed. Moreover, the proof at trial revealed that the appellant struck the
victim with a bottle and a post hole driver, which are deadly weapons. See Tenn. Code Ann.
§ 39-11-106(a)(5)(B) (providing that a “deadly weapon” is “[a]nything that in the manner of
its use or intended use is capable of causing death or serious bodily injury”).

The appellant challenges the trial court’s application of enhancement factor (4), that
the victim was particularly vulnerable because of physical disability. Tenn. Code Ann. § 40-
35-114 (4). He maintains that “the State bears the burden of showing that [the] vulnerability
was, in fact, a factor in the [appellant’s] actions”; in other words, he essentially argues that
the factor was inapplicable when the appellant did not commit the crime because of the
victim’s vulnerability.

Our supreme court has explained that “[a] vulnerability that is wholly irrelevant to the
crime is not ‘appropriate for the offense.’” State v. Lewis, 44 S.W.3d 501, 505 (Tenn. 2001).
However, this requirement does not “place an additional burden on the State to prove that a
defendant actually evaluated the vulnerabilities of his victims and then acted to capitalize on
those perceived vulnerabilities.” Id. This enhancement factor is appropriate when a victim’s
vulnerability “ had some bearing on, or some logical connection to, ‘an inability to resist the
crime, summon help, or testify at a later date.’” Id. (quoting State v. Poole, 945 S.W.2d 93,
96 (Tenn. 1997)). The proof at trial reflected that the victim was lying on the ground,
unarmed, severely wounded, and helpless when the appellant began to strike him. The victim
was not able to fight back or summon help. Further, the witnesses asserted that the victim

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was not a threat to anyone. Accordingly, we conclude that the trial court did not err in
applying this enhancement factor.

The appellant also contends that although the eleven-year sentence was within the
appropriate range, the sentence was unreasonable. However, as we have repeatedly stated,
the weighing of mitigating and enhancing factors is left to the trial court’s sound discretion.
Carter, 254 S.W.3d at 345. Accordingly, “[s]o long as there are other reasons consistent with
the purposes and principles of sentencing, as provided by statute, a sentence imposed by the
trial court within the appropriate range should be upheld.” Bise, 380 S.W.3d at 706. We
conclude that the trial court did not abuse its discretion in imposing a sentence of eleven
years for the appellant’s attempted second degree murder conviction.

III. Conclusion

In sum, we conclude that the trial court erred in allowing the State to question a
witness about the appellant’s character but that the error was harmless. We also conclude
that the trial court did not err in excluding evidence of the co-defendants’ propensity for
violence, that the evidence is sufficient to sustain the appellant’s conviction for attempted
second degree murder, and that the trial court properly sentenced the appellant. Therefore,
we affirm the judgment of the trial court.

_________________________________
NORMA McGEE OGLE, JUDGE

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