State of Tennessee v. Ronald Eugene Brewer, Jr.

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs April 26, 2011

STATE OF TENNESSEE v. RONALD EUGENE BREWER, JR.

Appeal from the Criminal Court for Hawkins County
No. 09CR0022 John F. Dugger, Jr., Judge

No. E2010-01147-CCA-R3-CD - Filed July 14, 2011

Following a jury trial, the Defendant, Ronald Eugene Brewer, Jr., was convicted of first
degree premeditated murder, first degree murder in the attempt to perpetrate a first degree
murder, and criminal attempt to commit first degree murder. Following a sentencing hearing,
the jury sentenced the Defendant to life imprisonment without the possibility of parole for
each count of first degree murder. The trial court merged the two counts of first degree
murder and imposed a concurrent twenty-five-year sentence for the third count. In this direct
appeal, the Defendant raises the following issues for our review: (1) The State presented
insufficient evidence to sustain a conviction for first degree murder; (2) The indictment
alleging the intent to directly kill the victim was improperly before the jury; (3) The trial
court erred when it refused a change of venue; (4) The trial court erred when it allowed the
911 tape to be admitted into evidence; (5) The trial court erred when it allowed the
Defendant’s signed statement, and a comment he made to a police officer while being
transported, to be admitted into evidence; (6) The trial court erred when it allowed material
related to gangs and gang activity to be admitted into evidence; (7) The trial court erred when
it allowed purported expert testimony about gangs; (8) The trial court erred when it allowed
testimony about a shell casing found in the Defendant’s vehicle; (9) The trial court erred
when it allowed the State to use and present two aggravating circumstances to the jury; and
(10) The evidence was insufficient to support a sentence of life imprisonment without the
possibility of parole. After our review, we affirm the judgments of the trial court.

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

D AVID H. W ELLES, S P. J., delivered the opinion of the Court, in which T HOMAS T. W OODALL
and J OHN E VERETT W ILLIAMS,. JJ., joined.

Greg W. Eichelman, Morristown, Tennessee, for the appellant, Ronald Eugene Brewer, Jr.
Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney
General; C. Berkeley Bell, District Attorney General; and John D. Godbee, Assistant District
Attorney General, for the appellee, State of Tennessee.

OPINION

Factual Background

Around 8:30 p.m. on December 9, 2008, Jackson Blue Sellers, the eighteen-year-old
victim, was talking to friends in the parking lot of the Rogersville Wal-Mart when he was
shot and killed by the nineteen-year-old Defendant. When the Defendant fired his rifle into
the parking lot from an abandoned car wash perched upon an adjacent hill, the victim was
not his intended target. The Defendant claimed that, when he fired the shot, he was trying
to wound, but not kill, Josh Hinkle.

A Hawkins County grand jury returned an indictment charging the Defendant with one
count of premeditated first degree murder, one count of first degree murder in the attempt to
perpetrate the first degree murder of Josh Hinkle, and one count of criminal attempt to
commit the first degree murder of Josh Hinkle. The Defendant’s trial was conducted
February 15-18, 2010.

The State presented the testimony of multiple witnesses who were in the Wal-Mart
parking lot at the time the victim was shot. Jason Greene recalled that he and the victim were
engaged in a conversation with some friends. Mr. Greene turned around toward his vehicle
to get a cigarette and, at that time, he heard what he thought was a firecracker. When he
came back to where the victim was standing, he saw the victim holding his throat. Mr.
Greene stated that blood started to come out of the victim’s mouth and that the victim then
fell to the ground.

Meghan Brooks testified that, during the evening of December 9, 2008, she went to
Wal-Mart with her friend Samantha Allen. By the time they arrived, some of their friends
had already started gathering in the parking lot. She recalled that Jordan Hinkle, Josh Hinkle,
Jason Morelock, Cody Harmon, Travis Goins, and the Defendant were all there. She said
that Mr. Goins yelled for her to come over to where he and the Defendant were, however, she
did not go over right away. The two men then drove over to Ms. Brooks and spoke to her.
Before they pulled off, the Defendant told Ms. Brooks to “make sure none of these boys
leave the parking lot” and “that he was serious.” Ms. Brooks said that Mr. Goins and the
Defendant were in a black Nissan Maxima and that she saw them leave the parking lot and
go toward the highway.

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 Ms. Brooks saw the two men return, about ten to fifteen minutes later, and park in the
parking lot “[f]or a little bit.” Then, she witnessed them leave through Wal-Mart’s back
entrance. After she saw them leave, she said that she and the other people there “[j]ust sat
around and socialized.” About five minutes after the Defendant and Mr. Goins left the
parking lot, however, Ms. Brooks heard a “pop.” She testified that the victim began bleeding
from his mouth and then fell to the ground.

Ms. Brooks said she believed that Josh Hinkle and Jordan Hinkle were affiliated with
a gang called the Bloods, whose color was red, and that the Defendant and Mr. Goins were
affiliated with a gang called the Crips, whose color was blue.

Samantha Allen testified that, on the night of the shooting, she saw the Defendant and
Mr. Goins driving a black Nissan Maxima. She recalled that they were in the Wal-Mart
parking lot for a little while, but then she saw them leave. Later, she heard what she thought
was a firecracker and then she saw a black Maxima “flying out of the car wash.” Ms. Allen
also testified that Josh Hinkle and Jordan Hinkle were “wanna-be” gang members of the
Bloods.

Wesley Lyles testified that he was friends with the victim and, on the night of
December 9, 2008, the two men talked and drove around town together. They ended up at
Wal-Mart, where they spoke to friends in the parking lot. Mr. Lyles described what
happened next as follows:

We were standing there and me and him were talking, and then he was
going to get with Danielle, and I think they was going to go get a bite to eat or
something like that, and he was going to come back and holler at me in a little
bit, and we were standing there talking and we just—We heard something that
sounded like a firecracker went off and then he just—He was—He staggered
around there for a minute and he was rubbing his face and he kept asking what
happened, and I didn’t know what happened. He was just standing around and
kept rubbing his face and he just collapsed right there.

Mr. Lyles said that, as his friend was lying on the ground, he put his hand behind the victim’s
head and blood drained all over it.

After Mr. Lyles heard the noise that sounded like a firecracker, he heard a vehicle
“squealing out” and said, “It sounded like it was up on the hill, but I didn’t—All I seen was
the tail lights.” He then clarified that by “up on the hill,” he meant the car wash at an old gas
station.

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 Charles Hoke said that, on the night of the shooting, he was talking to friends in the
Wal-Mart parking lot. He recalled, “After I was there for a while, I looked up on the hill and
I seen a car go by real slow and two guys looking down.” He said that both of the people he
saw in the car on the hill by the car wash were white with black hair. Then, Mr. Hoke heard
a gunshot.

Michael Allmon testified that he owns a cleaning service and was cleaning the
Walgreens pharmacy store right next to the Rogersville Wal-Mart. Sometime between 8:00
and 8:30 p.m., he was outside smoking a cigarette when he saw a dark-colored car, with its
light off, go up on the hill and into the abandoned car wash. He recalled that he later heard
a pop but did not know what the noise was.

Jordan Hinkle, who was sixteen years old at the time of the trial, testified that he and
his brother Josh were affiliated with a gang called the Bloods. He said that, on the night of
the shooting, he went to the Wal-Mart parking lot, where he saw the Defendant and Mr.
Goins. He said that he saw them leave, then come back to the parking lot, and then leave
again. After he saw them leave the second time, he heard what he thought was a firecracker.
Then, he heard tires squeal at the top of the hill and saw a black Nissan drive off.

Josh Hinkle, who was twenty years old at the time of the trial, testified that he was
affiliated with a gang called the Bloods on December 9, 2008. However, he said that, since
then, he had “tried to put all that stuff behind [him].” He testified that he knew both the
Defendant and Mr. Goins and that he and the Defendant “have had problems since back in
middle school” because they did not see eye to eye. He acknowledged that, if they saw each
other at the “right time,” then they “might fight,” but that they never pre-arranged times to
fight. Josh Hinkle said there were also problems between him and Mr. Goins because they
had been involved in a car accident in Mr. Goins’ step-father’s vehicle a few years prior and
Josh Hinkle refused to pay to repair the damaged car.

On the night of the shooting, Josh Hinkle went to the Wal-Mart parking lot and “just
hung out with a lot of people.” He recalled that, at the time of the shooting, he was sitting
on a corral where returned shopping carts are kept. He stated, “Everybody else was standing
around me, and then we heard pop, a real loud pop.” He said that he then saw the victim grab
his neck and collapse.

Danielle Bailey testified that she knew the victim and his mother. She recalled that,
when she went shopping at Wal-Mart on December 9, 2008, she saw the victim in the
parking lot as she was leaving and pulled over to talk with him. She said that they talked for
a little while and then they decided to go hang out together. Ms. Bailey testified, “I was
sitting in my car and he was about maybe three foot [sic] away from the driver’s fender and

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I was, like, let’s go, and he was telling everybody bye, and that’s when it happened.” She
described that she heard a “pop” and then saw that the victim was bleeding.

Amy Snapp testified that she used to be a “queen” in a gang called the Black Gangster
Disciple, which is a “cousin” to the Crips. Ms. Snapp said that she knew the Defendant and
Mr. Goins were affiliated with the Crips and that she “took them under [her] wing.” She was
at Wal-Mart on the night of December 9, 2008, and was in the process of leaving the parking
lot and going to get something to eat, when she “heard a pow, like a firecracker.” She did
not know that the victim had been shot, and she and her cousin continued to drive toward the
restaurant. She then described, “As we was at the red light, I seen a black car jump over—It
was coming from the car wash and the Exxon.” She said that the black car was the same car
in which she had seen the Defendant and Mr. Goins earlier that evening.

Through testimony of an employee who worked at a gas station near the crime scene,
the State introduced surveillance pictures showing the Defendant and Mr. Goins at the gas
station at 5:31 p.m. The pictures show that the men were in a black Nissan Maxima.

Dr. William McCormick performed an autopsy on the victim and testified that the
victim “was shot one time at a distance with a bullet entering the junction in the back of the
head and the upper neck, just to the left of midline. The bullet angled from above downward
and ended up lodged on the inside of the large jaw, the mandible.” Dr. McCormick also
stated that, when the bullet traveled through the victim’s neck, it caused bleeding. He said
that he found that the victim both inhaled and swallowed blood and that the victim’s death,
caused by his aspiration of blood, “would have been rapid but not instantaneous.”

Special Agent Scotty Ferguson from the Tennessee Bureau of Investigation testified
that he reported to the crime scene the night of the shooting, but he arrived after the victim
was taken to the hospital. Although he could not be sure where the victim was standing
when he was shot, based on witness statements, he estimated that the victim was standing
approximately ninety-two feet from the edge of the concrete at the old car wash. He also said
that the victim was standing approximately twenty-two feet from where Josh Hinkle was
sitting on the shopping cart corral.

Special Agent Ferguson recalled that the Defendant was arrested on December 13,
2008. After his arrest, the Defendant gave consent for the police to search the black Nissan
Maxima, which was found at his father’s girlfriend’s residence. Special Agent Ferguson
testified that a .22 caliber shell casing was found on the floorboard on the front passenger’s
side of the Nissan Maxima.

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 On December 13, 2008, the Defendant signed a rights waiver and gave a statement
to Special Agent Ferguson. In pertinent part, the Defendant’s statement provided as follows:

Josh Hinkle and Travis [Goins] used to be good friends. Josh wrecked
Travis’s car (it had been Travis’s dad’s car). Josh never paid Travis back for
the car.

This has been going on since 2003. I was trying to get Josh for Travis.
Josh always runs from Travis and me.

Josh has got some of his little buddies to talk trash and stuff about me
and Travis. They do it on the phone and on My Space. Josh and his little boys
think they are Bloods. Bloods are black.

....

They send messages on My Space about beating me up. Josh calls on
my cell phone and says he wants to fight but he never shows up.

I had went to Josh’s house but learned he lives with his Grandmother.
I learned it was his Grandmother’s place and she is elderly so I didn’t want to
disrespect her.

Jordan Hinkle and some of his black buddies said on My Space that
they were going to come and kick in my Grandmother’s door. This was
around February. . . .

I saw Jordan Tuesday afternoon at school. He was throwing up gang
signs (at the buses). It was when they were getting out of school at about 3:00
p.m. I was driving the black Nissan Maxima. I got it since I was getting ready
to have a kid. I got out and did it back to him. Travis and Adam (red hair)
were with me and saw Jordan throwing the signs.

Me and Travis rode around some that day. We took showers (Dad’s
house). I live with my Granny. We went to Travis’s girl’s house (Jasmine) but
she was sick. We rode around town and talked to some people. We went to
Wal-Mart. We were sitting w[h]ere everyone was. Travis was talking to Jim
Ward and I was talking to Shane Harmon/Harlan (just got out of Army).
Jordan and Josh pulled up in their Brat. Jordan jumped out and started talking
to all the Blood dudes. Jordan said I seen Eugene Brewer at school but then

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he seen me sitting there so then he started whispering to his buddies. Jordan
came over to the car and talked to Travis. Jordan said that he didn’t have a
problem with Travis but just with me. I told him that I never had a problem
with him until he threatened to kick my Grandmother’s door. He then left and
went back to his buddies.

We then went to Big Lots to see if anyone was there. We then went to
Jasmine’s because Travis was worried someone else might be there. Then we
came back to Wal-Mart. We went to same spot and I talked to Shane again.
Everyone was just talking and staring and stuff. More of Josh and Jordan’s
friends (Bloods) started coming in and you know something was up. I can feel
the animosity. I have seen Josh and Jordan with guns before. I did not see any
guns that night but they have threatened to shoot me.

I then talked to Danny Bledsoe—him and Candy were getting ready to
go into Wal-Mart. I told Danny that they were getting pretty deep and I
thought something was going to happen. . . .

I thought something was going to happen. They kept getting deeper and
deeper. I asked Danny if he would help and he said he would but he did not
believe anything was going to happen.

Danny went on in the store.

Me and Travis just sat there and watch what was going on. . . . They
were yelling at us but never came toward us. We went to Dad’s to get the [.]22
rifle. The gun was in my bedroom. It was short and had a scope. It held 6
rounds. It was loaded. I worry about them kicking my doors in. Beck and
Rhonda were there[.] I don’t think they saw me get the gun. Travis went in
to charge his phone. I don’t know if Travis saw me or not. I put the gun
beside the seat. The gun was between the driver’s seat and console. Rhonda
came out while I was sitting in the car. Rhonda said Brandon West was put in
jail. She said that Travis was charging his phone and would be out in a
minute.

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 We went back to Wal-Mart. I was driving. We parked in front of the
gas part. We were parked about 151 minutes. We moved up some in the
parking lot. We drove around toward Wal-Mart and then to another parking
spot on the other side of them. I saw Brandon West drive around and go out
at the red light. They (Hinkle’s [sic] and Bloods) were hollering. There were
more coming in. They were yelling at us and making hand gestures.

We sat there a little longer. I figured they would eventually come to the
car. They were driving around our car some. We left the parking lot. We
went up to the car wash. We sat there. We just were off 66.

I got into the passenger seat. Travis drove to where we could see the
people. He pulled too close. I told him to pull back. Everyone knew we were
up there. I put the gun out of the window and I asked Travis where Josh was
sitting. He said he was sitting on the cart thing. Travis asked me not to kill
him so I aimed low (chest area). I pulled the trigger. I assume Jackson walked
in front of Josh. I don’t know Jackson. We drove off. We went to Kingsport
on the back roads. We went to some apartment parking lot.

Travis began getting scared. He was excited when I first shot. We had
about hit a police car on 11W (it had its blue lights). After that Travis freaked
out whenever a car passed. He said we can’t go back to Rogersville, he would
lose his job and not see his daughter. At the parking lot Travis was getting
calls that people were threatening his family. He kept saying he was going to
turn himself in.

I spent the night in the car. I have only slept one night since it
happened.

I tried to call Kayla.

The car is at Rhonda’s trailer in Bulls Gap. She does not know it is
there. I threw the gun in a dumpster in Kingsport. I think it was Model City
Apt. we were at. I put the gun in one of the large dumpsters that a truck picks
up. The dumpster was right there at the apartments we were at. The dumpster
was to the right.

1
It is not clear whether the statement says ten or fifteen minutes. The written statement appears to
say fifteen minutes but Special Agent Ferguson, who wrote out the statement that the Defendant signed, said
ten minutes when he read the Defendant’s statement during the trial.

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 The dude that died, I did not mean for him to die. I would tell him I
was sorry. There is nothing I can say to [sic] dude, he is gone.

I kept the gun was [sic] in my room. Dad had the gun. Mom had took
it but Mom brought it back.

I was just wanting to see Kayla. We were in Dad’s van.

I gave this statement freely and voluntarily. No threats or promises
have been made to me. I gave this statement because I wanted to tell the truth
and give my side of the story.

When Special Agent Ferguson was asked about the Defendant’s demeanor while he was
giving the statement, he replied, “I wouldn’t say he was overly upset and not real, real
nervous. He was actually very matter of factly.”

Assistant Chief James Hammonds, from the Rogersville Police Department, testified
that, on December 15, 2008, after the Defendant’s arraignment, he transported the Defendant
from Rogersville to the Grainger County Jail. He stated that, during the trip, the Defendant
said, “[T]his is just a bad dream and I am waiting to wake up[.] I’ve really messed up.”

Shelley Betts, employed by the Tennessee Bureau of Investigation and assigned to the
firearms identification unit, testified that she examined a fired cartridge case and described
that “[i]t was a Remington manufactured brass cartridge case, and it was .22 long rifle
caliber.” Ms. Betts also examined the bullet that struck the victim and said that “it was
consistent in all regards to Remington bullets.”

Investigator James Quick, from the Knoxville Police Department Intelligence/Gang
Unit, testified that he identifies gang members by utilizing a point system that “break[s]
down gang identifiers as well as criminal activity.” He explained that, if a person had ten
points or more, it would verify that they were a gang member. Investigator Quick testified
that he reviewed literature, pictures, and posters found in a search of the Defendant’s
bedroom and assigned twenty-three points to the Defendant.

The Defendant, twenty-one years old at the time of the trial, testified that he became
fascinated with the Crips when he was ten or eleven years old and was a member of the gang.
He described Josh and Jordan Hinkle as “wannabe Bloods.” However, he explained that
their different gang affiliations did not cause his dislike of the Hinkles. The Defendant said
that “the feud started over the car of Travis’s deceased father. Hinkle had wrecked it and
said he would pay for it, the damage, and never did.”

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 On the night of the shooting, the Defendant said that, when he was in the Wal-Mart
parking lot, he felt “the tension was building up.” He elaborated, “I figured something was
going to happen because it was . . . the first time that me and Hinkle had actually been that
close to one another without him running away.” Therefore, he went to his father’s house
and got a .22 caliber rifle. The Defendant claimed that he got it because he knew the Hinkles
“tend to carry guns and stuff.”

The Defendant recalled that he and Mr. Goins returned to the parking lot and observed
people “standing around there and talking and stuff and making hand gestures or whatever
towards” their car. He explained that the hand gestures he saw were used to indicate “what
are you looking at, or something like, do you have a problem?”

Then, the two men went up to the car wash. When asked why, the Defendant replied,
“I wanted to observe the crowd of people, I guess at a better angle.” The Defendant
described what happened next as follows:

[W]e pulled up on the backside of the car wash and we sat there for a minute.
And I told Travis to get in the driver’s seat, so I got out and walked around the
car, and he walked around the front of the car and I walked around the back.
And then when I got in the car I took the gun out and put it on my side, on the
passenger side. And then when he got, you know, in the driver’s seat he pulled
through the back bay and went around to the front until we could see the
parking lot. And he pulled up more towards the parking lot than I wanted him
to so I asked him to pull back. And then he pulled more to the building, and
I put the gun out the window. And I looked through the scope and it was dark
so I couldn’t see real well at the time. I mean, I could see where the light in
the parking lot was on the people standing there. And I seen Hinkle sitting on
the car—return cart rack, and I made sure, I asked Travis, I said, Is Hinkle
setting on the cart rack? And he told that, yes, that’s where he’s sitting.

And then, you know, I looked through the scope again or whatever, and
Travis asked me not to kill no one. And I had no intentions of killing anyone,
anyways. I aimed low like below the hip—between the hip and knee area
because he was sitting on the cart rack. And I pulled the trigger.

The Defendant said that they then drove away. He claimed that he did not know if anyone
had been struck by the bullet. However, when asked why he left, he replied, “I fired a shot
into a—a public area.”

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 The Defendant explained that the catalyst that brought about the shooting was a threat
that the Hinkles had made to kick in his grandmother’s door and shoot at her house. He
testified, “I was just tired of the threats and, you know, I had started dwelling on the situation
so I decided, you know, I figured I would scare the dude.” Although the Defendant did not
agree that he planned the shooting, he acknowledged that he “thought about it.”

The Defendant maintained that, when he fired the rifle, he “aimed to wound and
scare” Josh Hinkle. However, when asked whether he knew he shot somebody when he left
the scene, he replied, “Well, yes. I aimed at the dude to wound and scare him. So I figured
it would hit him. I figured somebody would have been shot.”

Regarding the notation in his statement that he aimed for Josh Hinkle’s chest area, the
Defendant said that Special Agent Ferguson must have misunderstood him. He recalled his
conversation with Special Agent Ferguson as follows: “[H]e said, What do you mean low?
He said, [c]hest area? And I said, no, chest would be high.”

Regarding his assumption that the victim must have walked in front of Josh Hinkle
at the moment he fired the rifle, the Defendant explained, “It was the only thing I could
figure out because at the time I didn’t—nobody was in front of him. I mean, they [sic] might
have been people off to the right of him or the left of him. There was nobody directly in
front of him, though.” The Defendant said that he did not know the victim and that, as far
as he knew, the victim “had nothing to do with any gang activity.”

The jury returned guilty verdicts for all three counts as charged and assessed a
$25,000 fine for count three (criminal attempt to commit the first degree murder of Josh
Hinkle). A sentencing hearing was conducted for the two counts of first degree murder and,
on each count, the jury sentenced the Defendant to life imprisonment without the possibility
of parole. The trial court merged the two counts of first degree murder and imposed a
concurrent twenty-five-year sentence for count three. The Defendant now appeals.

Analysis

In this direct appeal, the Defendant raises the following issues for our review: (1) The
State presented insufficient evidence to sustain a conviction for first degree murder; (2) The
indictment alleging the intent to directly kill the victim was improperly before the jury; (3)
The trial court erred when it refused a change of venue; (4) The trial court erred when it
allowed the 911 tape to be admitted into evidence; (5) The trial court erred when it allowed
the Defendant’s signed statement, and a comment he made to a police officer while being
transported, to be admitted into evidence; (6) The trial court erred when it allowed material
related to gangs and gang activity to be admitted into evidence; (7) The trial court erred when

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it allowed purported expert testimony about gangs; (8) The trial court erred when it allowed
testimony about a shell casing found in the Defendant’s vehicle; (9) The trial court erred
when it allowed the State to use and present two aggravating circumstances to the jury; and
(10) The evidence was insufficient to support a sentence of life imprisonment without the
possibility of parole.

I. Sufficiency of the Evidence for First Degree Murder

The Defendant was convicted of one count of premeditated first degree murder (count
one) and one count of first degree murder during the attempt to perpetrate the first degree
murder of Josh Hinkle (count two). In this appeal, the Defendant argues that the State failed
to present sufficient evidence to convict him. It appears that the Defendant argues that the
evidence was insufficient under either theory of first degree murder. Although the trial court
merged the two convictions, we will address the sufficiency of the evidence for each count.

Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings of guilt in
criminal actions whether by the trial court or jury shall be set aside if the evidence is
insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt.”
A convicted criminal defendant who challenges the sufficiency of the evidence on appeal
bears the burden of demonstrating why the evidence is insufficient to support the verdict,
because a verdict of guilt destroys the presumption of innocence and imposes a presumption
of guilt. See State v. Evans, 108 S.W.3d 231, 237 (Tenn. 2003); State v. Carruthers, 35
S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This
Court must reject a convicted criminal defendant’s challenge to the sufficiency of the
evidence if, after considering the evidence in a light most favorable to the prosecution, we
determine that any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v. Hall,
8 S.W.3d 593, 599 (Tenn. 1999).

On appeal, the State is entitled to the strongest legitimate view of the evidence and all
reasonable and legitimate inferences which may be drawn therefrom. See Carruthers, 35
S.W.3d at 558; Hall, 8 S.W.3d at 599. A guilty verdict by the trier of fact accredits the
testimony of the State’s witnesses and resolves all conflicts in the evidence in favor of the
prosecution’s theory. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Questions
about the credibility of witnesses, the weight and value of the evidence, as well as all factual
issues raised by the evidence are resolved by the trier of fact, and this Court will not re-weigh
or re-evaluate the evidence. See Evans, 108 S.W.3d at 236; Bland, 958 S.W.2d at 659. Nor
will this Court substitute its own inferences drawn from circumstantial evidence for those
drawn by the trier of fact. See Evans, 108 S.W.3d at 236-37; Carruthers, 35 S.W.3d at 557.

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 A. Count One—Premeditated First Degree Murder

Tennessee Code Annotated section 39-13-202(a)(1) states that “[a] premeditated and
intentional killing of another” is first degree murder. The statute further provides that
“‘premeditation’ is an act done after the exercise of reflection and judgment. ‘Premeditation’
means that the intent to kill must have been formed prior to the act itself.” Tenn. Code Ann.
§ 39-13-202(d). However, this Court has noted that “[p]roof of premeditation is inherently
circumstantial. The trier of fact cannot speculate what was in the killer’s mind, so the
existence of premeditation must be determined from the defendant’s conduct in light of the
circumstances surrounding the crime.” State v. Gann, 251 S.W.3d 446, 455 (Tenn. Crim.
App. 2007); see also Bass v. State, 231 S.W.2d 707, 711 (Tenn. 1950) (“Both premeditation
and deliberation may be inferred from the circumstances of a homicide.”). Specifically, the
following factors have been used to support a finding of premeditation:

the use of a deadly weapon upon an unarmed victim; the particular cruelty of
a killing; the defendant’s threats or declarations of intent to kill; the
defendant’s procurement of a weapon; any preparations to conceal the crime
undertaken before the crime is committed; destruction or secretion of evidence
of the killing; and a defendant’s calmness after a killing.

State v. Leach, 148 S.W.3d 42, 53-54 (Tenn. 2004).

In Millen v. State, 988 S.W.2d 164, 165 (Tenn. 1999), our supreme court examined
a case in which a fourteen-year-old girl was struck and killed by a bullet fired by the
defendant, who was a member of the “Bloods” gang. When the defendant fired the gun, his
intended target was a member of the “Crips” gang. Id. The court looked at the common law
doctrine of “transferred intent” but concluded that it was not necessary to apply it to a
situation such as this, as the crime met the elements of our first degree murder statute. Id.
at 167. The supreme court explained as follows:

The legislature has broadly defined an “intentional” act as: “a person who acts
intentionally with respect to the nature of the conduct or to a result of the
conduct when it is the person’s conscious objective or desire to engage in the
conduct or cause the result.” Tenn. Code Ann. § 39-11-302(a) (1991)
(emphasis added). A plain reading of this statute as applied to first degree
murder indicates that a defendant’s conscious objective need not be to kill a
specific victim. Rather, the statute simply requires proof that the defendant’s
conscious objective was to kill a person, i.e., “cause the result.” In short, if the
evidence demonstrates that the defendant intended to “cause the result,” the
death of a person, and that he did so with premeditation and deliberation, then

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 the killing of another, even if not the intended victim (i.e., intended result), is
first degree murder.

Id. at 168.

We conclude that the evidence presented was sufficient to convict the Defendant of
first degree premeditated murder. The Defendant had been feuding with Josh Hinkle for
several years, ever since he refused to pay to repair damage to Mr. Goins’ father’s car. He
alleged that the Hinkles threatened to kick in his grandmother’s door and that, the night of
the shooting, he was dwelling on their threat. The Defendant and Mr. Goins went to the Wal-
Mart parking lot, where they saw the Hinkles. They then drove to the Defendant’s father’s
house, and the Defendant got a .22 caliber rifle. They returned to the Wal-Mart parking lot,
but parked away from the group of people they were observing. Then, they exited the Wal-
Mart parking lot and went to an abandoned car wash atop an adjacent hill. The Defendant
explained that he wanted to observe the crowd “at a better angle.” He got out of the driver’s
seat and got into the passenger’s seat of the vehicle, asked Mr. Goins to verify Josh Hinkle’s
position amongst the group below and, upon his verification, he pulled the trigger. The
Defendant fled the scene, threw the rifle in a dumpster at an apartment complex in Kingsport,
and moved around from county to county until he was apprehended by police four days later.
The evidence was sufficient for a rational trier of fact to conclude that the Defendant
intended to cause the death of a person, Josh Hinkle, and that he did so with premeditation,
but struck the victim, an innocent bystander, instead. The Defendant is not entitled to relief
on this issue.

B. Count Two—First Degree Murder Committed in the Attempt to Perpetrate
a First Degree Murder

Tennessee Code Annotated section 39-13-202(a)(2), commonly referred to as the
“felony murder” statute, provides that “[f]irst degree murder is . . . [a] killing of another
committed in the perpetration of or attempt to perpetrate any first degree murder.” In Millen,
although our supreme found that the death of an unintended victim could be prosecuted under
the theory of premeditated first degree murder, the court noted that “prosecuting these
‘unintended victim’ cases as felony murder would appear to be the most appropriate
application of the statute.” 988 S.W.2d at 167.

As discussed above, the evidence was sufficient to support a theory that, when he fired
his .22 rifle into the Wal-Mart parking lot, the Defendant intended to kill Josh Hinkle but
missed him and shot and killed the victim. Thus, we find that the evidence was sufficient for
a rational trier of fact to convict the Defendant of first degree murder committed in the
attempt to perpetrate the first degree murder of Josh Hinkle.

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II. Two Theories of First Degree Murder

The Defendant argues that “allowing the presentation of two different theories of first
degree murder was both confusing and unnecessary.” However, the Defendant’s argument
is misplaced, as he summarized the two theories as follows: “a deliberate attempt to murder
Jackson B. Sellers as opposed to the death of Jackson Sellers pursuant to an attempt to kill
another individual.” As discussed above, the State was not required to prove that the
Defendant intended to kill the victim to prevail on the premeditated first degree murder
charge because it presented sufficient evidence for the jury to conclude that the Defendant
intended to kill Josh Hinkle. See Millen, 988 S.W.2d at 168 (“[A] defendant’s conscious
objective need not be to kill a specific victim.”).

Moreover, we conclude that both theories were properly before the jury. In Carter v.
State, 958 S.W.2d 620, 624 (Tenn. 1997), our supreme court noted “that there is no
constitutional or statutory prohibition against a jury rendering a general verdict of guilty of
first degree murder where both premeditated and felony murder are charged and submitted
to the jury.” The high court has also said that trial courts “should instruct a jury to render a
verdict as to each count of a multiple count indictment which requires specific jury findings
on different theories of first-degree murder.” State v. Howard, 30 S.W.3d 271, 274 n.4
(Tenn. 2000) (emphasis removed). However, “when only one person has been murdered, a
jury verdict of guilt on more than one count of an indictment charging different means of
committing first degree murder will support only one judgment of conviction for first degree
murder.” State v. Cribbs, 967 S.W.2d 773, 788 (Tenn. 1998). In Howard, the supreme court
instructed that, “[i]f the jury does return a verdict of guilt on more than one theory of first-
degree murder, the court may merge the offenses and impose a single judgment of
conviction.” 30 S.W.3d at 274 n.4.

In the instant case, it was proper for the State to charge the Defendant with both
premeditated first degree murder and first degree murder in the attempt to perpetrate the first
degree murder of Josh Hinkle. Additionally, we conclude that the trial court did not err when
it allowed both counts to be tried together and that the trial court properly merged the two
first degree murder convictions. The Defendant is not entitled to relief on this issue.

III. Change of Venue

The Defendant filed a motion to change venue due to the pretrial publicity about this
shooting, as well as the fear that “[i]t would be difficult to find a jury which did not have
residual concern for its own well[-]being,” given that the crime occurred in the Wal-Mart
parking lot just a couple of weeks before Christmas. In this appeal, the Defendant argues that
the trial court erred when it denied his motion to change venue.

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 Rule 21(a) of the Tennessee Rules of Criminal Procedure provides that a trial court
“should order a venue change when a fair trial is unlikely because of undue excitement
against the defendant in the county where the offense was committed or for any other cause.”
The decision of whether to grant a request for a change of venue is left to the sound
discretion of the trial court and will not be reversed on appeal absent an affirmative and clear
abuse of that discretion. See State v. Howell, 868 S.W.2d 238, 249 (Tenn. 1993).
Furthermore, the Defendant must demonstrate that the jurors were biased or prejudiced
against him before his convictions will be overturned on appeal. See State v. Melson, 638
S.W.2d 342, 361 (Tenn. 1982). “Prejudice will not be presumed on the mere showing that
there was considerable pretrial publicity.” State v. Kyger, 787 S.W.2d 13, 19 (Tenn. Crim.
App. 1990).

In State v. Hoover, this Court listed seventeen factors for trial courts to consider when
ruling on a motion to change venue. 594 S.W.2d 743, 746 (Tenn. Crim. App. 1979). In the
instant case, during the pretrial hearing regarding the Defendant’s motion, the trial court
specifically referenced Hoover and meticulously examined each of the seventeen factors
before it concluded that “there has not been undue excitement against the [D]efendant from
the county where the offense was committed” and denied the Defendant’s motion. Upon our
review of the record, we conclude that the trial court did not err or abuse its discretion when
it denied the Defendant’s motion for a change of venue. Moreover, the Defendant has failed
to demonstrate that any of the jurors were biased or prejudiced against him. The Defendant
is not entitled to relief on this issue.

IV. Admission of the 911 Tape

The State played a recording, approximately three minutes long, of calls made to 911
regarding the shooting. The first caller was Jason Greene, one of the State’s witnesses. Mr.
Greene told the 911 operator that they needed help at Wal-Mart because someone had been
shot in the neck. Sounds of people screaming and yelling can be heard in the background of
the call. The 911 operator asked Mr. Greene if he knew who shot the victim, and Mr. Greene
said that it was a black car. Later during the call, he explained that he did not see it, but
“that’s what people are saying around here.”

The next call on the tape was very brief. The caller reported that he had just arrived
at Wal-Mart and that someone had been shot. The dispatcher said that she would send
someone out there, and the call ended. The last caller identified himself as “441” and,
presumably, was a police officer or paramedic. He indicated that he could not find the
gunshot victim but then, seconds later, he said, “Never mind, I found them.”

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 The Defendant filed a pretrial motion to exclude the 911 tape. During a pretrial
hearing about the issue, the State argued that the tape “sets the scene.” The trial court found
that it would be admissible and stated, “There were a lot of excited utterances in there,
basically, occurring at the scene. Everybody is under stress of the situation and what they’re
saying. I think it would come in. Most 911 tapes do come in.”

The Defendant asserts that the trial court erred when it allowed the 911 tape to be
admitted into evidence. Specifically, the Defendant argues that the 911 tape was irrelevant
and that it contained hearsay. In response, the State contends, “The tape was relevant to
establish what occurred at the scene immediately after the shooting and was relevant to
helping the jury to understand what was transpiring at the time.” Additionally, the State
argues that the 911 tape “was also relevant to show that there were several people present
when the defendant fired a gun into the crowd, thus placing several other people in danger
of being shot or killed.”

“‘Relevant evidence’ means evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Tenn. R. Evid. 401. Tennessee Rule of
Evidence 402 provides that “[a]ll relevant evidence is admissible except as [otherwise]
provided . . . . Evidence which is not relevant is not admissible.” However, even relevant
evidence “may be excluded if its probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of cumulative evidence.” Tenn. R. Evid.
403. It is within the trial court’s discretion to determine whether the proffered evidence is
relevant; thus, we will not overturn the trial court’s decision absent an abuse of discretion.
State v. Forbes, 918 S.W.2d 431, 449 (Tenn. Crim. App. 1995).

In the instant case, we cannot conclude that the trial court abused its discretion when
allowing the State to present the 911 tape. The Defendant only broadly argues that the tape
contains hearsay but does not specify which parts of the tape he objects to. In our view, the
statements on the tape are excited utterances and are not excluded by the hearsay rule. See
Tenn. R. Evid. 803(2) (“A statement relating to a startling event or condition made while the
declarant was under the stress of excitement caused by the event or condition.”). Regarding
the Defendant’s argument that the recording was irrelevant, we agree with the State that the
tape was relevant, as it went to the facts that the victim was shot in the neck and that there
were multiple people in the vicinity at the time of the shooting. In our view, the trial court
did not abuse its discretion by allowing the 911 recording into evidence. The Defendant is
not entitled to relief on this issue.

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V. Admission of the Defendant’s Statements

The Defendant filed a motion to suppress a written statement he signed after being
interviewed by Special Agent Ferguson on December 13, 2008, as well as an oral statement
he made in the car to Assistant Chief Hammonds on December 15, 2008. The trial court held
a suppression hearing on January 15, 2010.

Special Agent Ferguson testified that the Defendant was arrested on the evening of
December 13, 2008, and that he took a written statement from the Defendant the same night.
Special Agent Ferguson said that he advised the Defendant of his constitutional rights before
taking the statement and that the Defendant signed a written waiver of those rights at 6:40
p.m. Special Agent Ferguson recalled that the Defendant “seemed to be fine” and that he did
not seem intoxicated. He also stated that the Defendant “communicated very well” and he
described the Defendant’s demeanor as “just very matter of fact.” Special Agent Ferguson
testified that he reduced the Defendant’s comments to writing and that Investigator Teddy
Collingsworth from the district attorney’s office reviewed the statement with the Defendant.
Special Agent Ferguson recalled that the Defendant signed the statement at 8:20 p.m.

Officer Chris Pinkston, from the Rogersville City Police Department, testified that he
saw the Defendant at the police department on the morning of December 15, 2008. The
Defendant had been transported from the Grainger County Jail to the Rogersville police
station, from which he was going to be taken to Kingsport to help look for his gun. Officer
Pinkston recalled that, while the Defendant was at the police station, the Defendant was
advised of, and waived, his constitutional rights. Officer Pinkston signed the Defendant’s
admonition and waiver of rights form as a witness.

Assistant Chief James Hammonds of the Rogersville City Police Department testified
that, on December 15, 2008, he transported the Defendant from the Grainger County Jail to
the Rogersville police station, from the Rogersville police station to Kingsport, from
Kingsport to Hawkins County General Sessions Court, and then back to the Grainger County
Jail. Assistant Chief Hammonds recalled that, during the trip from general sessions court to
the Grainger County Jail, the Defendant said, “This is just a bad dream and I’m waiting to
wake up. I’ve really messed up.”

The Defendant testified that he went to school until the tenth grade but that he only
had fourth-grade reading and writing levels. With regards to the December 13, 2008 waiver,
he said that he signed the waiver after the six-page statement was made. When asked if he
knew he had a right to an attorney, the Defendant replied, “Well, I mean, I know I have a
right to an attorney. I wasn’t arrested.” He also acknowledged that he did not ask for an
attorney.

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 Regarding his mental state at the time he made the statement, the Defendant testified,
“I had been smoking meth for three to four days since the shooting had happened.”
However, he testified that those things did not affect his statement and further explained, “I
was in a hurry to get out of the room with the police.” The Defendant acknowledged that
Investigator Collingsworth read his statement to him and that he initialed it and signed it.

The Defendant remembered signing a second waiver at the Rogersville police station
before he was taken to Kingsport. He testified that he was not questioned by the police
officer driving him either on the way to Kingsport or on the way back to the jail.

On cross-examination, the Defendant testified that he understood he was arrested for
murder when he arrived at the police station and that he was willing to tell his side of the
story to the police officers. The Defendant said that the police did not threaten him or
promise him anything. Regarding the comment he made in the car to Assistant Chief
Hammonds, the Defendant recalled, “I didn’t say I really messed up. I just said I wished I
would wake up. It all felt like a bad dream.”

The trial court found that the Defendant’s December 13, 2008 statement occurred
when he was in custody and that “Miranda had been given, and it was given properly.” The
trial court denied the Defendant’s motion to suppress, noting that the statement “was freely
and voluntarily and understandably given.”

The trial court also denied the Defendant’s motion to suppress the Defendant’s
December 15, 2008 comment to Assistant Chief Hammonds, explaining as follows:

He was not being interrogated at the time. He was on his way back to the
Grainger County [J]ail, and he had been read his Miranda warnings but he just
volunteered that particular statement. So the [c]ourt finds that the statement
should be admissible, that they were voluntarily, knowingly, and
understandably made, and his rights were voluntarily, understandably and
knowingly waived to give a statement.

In this appeal, the Defendant contends that the trial court erred when it admitted these
two statements. The State argues that the trial court properly admitted the statements because
both statements were given after the Defendant waived his Miranda rights.

Regarding the standard of review for a trial court’s ruling on a motion to suppress, our
supreme court has stated as follows:

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 Questions of credibility of the witnesses, the weight and value of the
evidence, and resolution of conflicts in the evidence are matters entrusted to
the trial judge as the trier of fact. The party prevailing in the trial court is
entitled to the strongest legitimate view of the evidence adduced at the
suppression hearing as well as all reasonable and legitimate inferences that
may be drawn from that evidence. So long as the greater weight of the
evidence supports the trial court’s findings, those findings shall be upheld. In
other words, a trial court’s findings of fact in a suppression hearing will be
upheld unless the evidence preponderates otherwise.

State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). However, this Court reviews de novo a trial
court’s conclusions of law and application of law to the facts. See State v. Daniel, 12 S.W.3d
420, 423 (Tenn. 2000).

The right against self-incrimination is protected both by the Fifth Amendment to the
United States Constitution, and the Tennessee Constitution article I, section 9. To help
ensure the protections of the Fifth Amendment in the criminal process, the United States
Supreme Court held in Miranda v. Arizona that “the prosecution may not use statements,
whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant
unless it demonstrates the use of procedural safeguards effective to secure the privilege
against self-incrimination.” 384 U.S. 436, 444 (1966). “Prior to any questioning, the person
must be warned that he has a right to remain silent, that any statement he does make may be
used as evidence against him, and that he has a right to the presence of an attorney, either
retained or appointed.” Id. A defendant can waive his Miranda rights, “provided the waiver
is made voluntarily, knowingly, and intelligently.” Id. “In determining whether a confession
has been made knowingly and voluntarily, courts must look to the totality of the
circumstances.” State v. Middlebrooks, 840 S.W.2d 317, 326 (Tenn. 1992).

The Defendant was arrested on December 13, 2008, and questioned later that day.
Special Agent Ferguson testified that he advised the Defendant of his rights and that he
witnessed the Defendant waive his rights at 6:40 p.m. He interviewed the Defendant and
reduced his version of events to writing. Special Agent Ferguson said that Investigator
Collingsworth reviewed the statement with the Defendant and that the Defendant signed the
statement at 8:20 p.m. Moreover, Special Agent Ferguson recalled that the Defendant
“seemed to be fine” and that he “communicated very well.” Although the Defendant claimed
that he did not sign the rights waiver form until after he gave his statement, the trial court
found that the Defendant’s statement was given after he was advised of, and waived, his
rights. We conclude that the evidence does not preponderate against the trial court’s finding
that the Defendant voluntarily, knowingly, and intelligently waived his Miranda rights.

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 We also conclude that the trial court did not err when it denied the Defendant’s motion
to suppress the oral statement he made in the car to Assistant Chief Hammonds. Officer
Pinkston testified that, on December 15, 2008, the Defendant was advised of, and waived,
his Miranda rights. The Defendant also acknowledged signing a waiver form before he was
transported to Kingsport and that he made the comment in the car to Assistant Chief
Hammonds spontaneously, without any questioning from the officer. Although the
Defendant contends that he did not say “I really messed up,” the trial court noted that the
officer made notes about the Defendant’s comment and that it was a “credibility issue.” We
conclude that the evidence does not preponderate against the trial court’s findings that the
Defendant’s comment to Assistant Chief Hammonds was made after he had been advised of,
and waived, his Miranda rights.

Finally, the Defendant argues that the statement he allegedly made to Assistant Chief
Hammonds is not relevant and should have been excluded. Assistant Chief Hammonds
testified that the Defendant said, “This is just a bad dream and I’m waiting to wake up. I’ve
really messed up.” We conclude that the trial court did not abuse its discretion in allowing
the statement to be admitted into evidence. The Defendant is not entitled to relief on this
issue.

VI. Gang-Related Material

During the course of the police investigation, a search was conducted at the
Defendant’s house and alleged gang-related literature, pictures, and posters were obtained.
A search warrant for the Defendant’s My Space page was also obtained, which revealed more
photographs. The Defendant objected to the introduction of any gang-related material. The
trial court overruled the Defendant’s objection and, in this appeal, the Defendant asserts that
the trial court erred when it allowed the admission of material related to gangs and gang
activity.

In State v. Crayton, this Court stated that “evidence concerning gang affiliation is
character evidence subject to Rule 404(b).” No. W2000-00213-CCA-R3-CD, 2001 WL
720612, at *3 (Tenn. Crim. App., Jackson, June 27, 2001). Rule 404(b) of the Tennessee
Rules of Evidence provides, “Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in conformity with the character trait.
It may, however, be admissible for other purposes.” Our supreme court has said that “[t]he
other purposes may include evidence of ‘the motive of the defendant, intent of the defendant,
the identity of the defendant, the absence of mistake or accident if that is a defense, and
rarely, the existence of a larger continuing plan, scheme, or conspiracy of which the crime
on trial is a part.’” State v. Toliver, 117 S.W.3d 216, 230 (Tenn. 2003) (quoting State v.
Gilliland, 22 S.W.3d 266, 271 n.6 (Tenn. 2000)).

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 Tennessee Rule of Evidence 404(b) states that, in order for evidence of other crimes,
wrongs, or acts to be admissible for “other purposes,” the following conditions must be
satisfied:

(1) The court upon request must hold a hearing outside the jury’s
presence;

(2) The court must determine that a material issue exists other than
conduct conforming with a character trait and must upon request state on the
record the material issue, the ruling, and the reasons for admitting the
evidence;

(3) The court must find proof of the other crime, wrong, or act to be
clear and convincing; and

(4) The court must exclude the evidence if its probative value is
outweighed by the danger of unfair prejudice.

When reviewing a trial court’s decision on evidentiary matters under Rule 404(b), this Court
employs an abuse of discretion standard. See State v. Gilley, 297 S.W.3d 739, 758 (Tenn.
Crim. App. 2008).

During a pretrial hearing, the State argued that the gang-related materials were
relevant to show the Defendant’s motive for the shooting. The trial court reviewed the
material to which the Defendant objected and concluded, “[T]his gang stuff is relevant.” The
trial court later elaborated, “[T]he material issue is motive. It is argued that—and even in the
[D]efendant’s statement that there was going to be trouble with the Bloods and the intended
victim in this case was considered a Blood and the [D]efendant holds himself out to be a
Crip.” The trial court also noted that the pictures the State wanted to introduce included the
Defendant making gang signs. The trial court found that, of the twenty-three pictures at
issue, seven should be excluded because any probative value was outweighed by the danger
of unfair prejudice. Regarding the remaining sixteen photographs, the trial court stated that
they “offer[ed] clear and convincing evidence of motive,” and it ruled that the photos were
admissible.

We conclude that the trial court did not abuse its discretion when it allowed evidence
of gangs and the Defendant’s gang-related activities to be introduced into evidence. In the
Defendant’s statement regarding the shooting, he made many references to gang activity. He
said that “Josh and his little boys think they are Bloods,” that Jordan Hinkle was “throwing
up gang signs” at the school on the day of the shooting, that Josh Hinkle and Jordan Hinkle

-22-
were talking “to all the Blood dudes” in the Wal-Mart parking lot, that more of the Hinkles’
friends arrived at Wal-Mart, that he could “feel the animosity,” that he “thought something
was going to happen,” and that, when they returned to Wal-Mart after getting the rifle, the
Hinkles’ and the Bloods were hollering and making hand gestures at he and Mr. Goins. The
trial court did not abuse its discretion in allowing the evidence of gang activity because the
State’s theory was that the rival gang affiliations of the Defendant and Josh Hinkle provided
the motive for the shooting. Moreover, we agree with the trial court that the probative value
of the photographs allowed outweighed the danger of unfair prejudice. The Defendant is not
entitled to relief on this issue.

VII. Gang Expert

The Defendant argues that the trial court erred when it classified Investigator Quick
as an expert and allowed him to provide testimony about gangs. The State asserts that the
trial court properly allowed Investigator Quick’s testimony because it was relevant to show
the Defendant’s motive for the shooting.

The admissibility of expert testimony is governed by Rules 702 and 703 of the
Tennessee Rules of Evidence. Rule 702 states, “If scientific, technical, or other specialized
knowledge will substantially assist the trier of fact to understand the evidence or to determine
a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise.” Rule 703 further provides as
follows:

The facts or data in the particular case upon which an expert bases an
opinion or inference may be those perceived by or made known to the expert
at or before the hearing. If of a type reasonably relied upon by experts in the
particular field in forming opinions or inferences upon the subject, the facts or
data need not be admissible in evidence. Facts or data that are otherwise
inadmissible shall not be disclosed to the jury by the proponent of the opinion
or inference unless the court determines that their probative value in assisting
the jury to evaluate the expert’s opinion substantially outweighs their
prejudicial effect. The court shall disallow testimony in the form of an opinion
or inference if the underlying facts or data indicate lack of trustworthiness.

Tenn. R. Evid. 703.

This Court has stated that “[t]he allowance of expert testimony, the qualifications of
expert witnesses, and the relevancy and competency of expert testimony are matters which
rest within the sound discretion of the trial court.” State v. Davis, 872 S.W.2d 950, 954

-23-
(Tenn. Crim. App. 1993). We will not reverse the trial court’s decision “absent a clear
showing of abuse of discretion.” Id.; see State v. Reid, 91 S.W.3d 247, 302 (Tenn. 2002).
This Court will not find an abuse of discretion unless “it appears that a trial court applied an
incorrect legal standard, or reached a decision which is against logic or reasoning that caused
an injustice to the party complaining.” State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997).

Investigator Quick testified that, since 1996, he has been a member of the gang task
force of the Knoxville Police Department. He also said that he was one of the founding
members and was the current regional Vice President of the Tennessee Gang Investigative
Association. Investigator Quick received training from the Federal Bureau of Investigation,
the Tennessee Bureau of Investigation, the Bureau of Alcohol, Tobacco, Firearms, and
Explosives, and the Regional Organized Crime Information Center. He said that he had been
trained in how to identify gang members by looking at the colors they wear, hand signs,
tattoos, different wording they use, and alphabets. Investigator Quick stated that he was
familiar with Tennessee law regarding gangs and that he had testified as a gang expert in
both state and federal courts.

In his brief, the Defendant appears to argue that, because Investigator Quick’s “shorter
and concise” definition of a gang 2 differs from the definition in Tennessee Code Annotated
section 40-35-121, it proves that he was not properly qualified to testify as an expert in
gangs. However, we note that Investigator Quick testified that he was familiar with
Tennessee’s gang law, described it as “pretty lengthy,” and asked if he could read the
definition they use in Knoxville. The Defendant was free to cross-examine Investigator
Quick about his knowledge of the statutory definition of a gang and call the jury’s attention
to any discrepancies between that definition and the one Investigator Quick recited.

As we discussed above, we agree with the trial court that the Defendant’s gang
activity was relevant to show his motive for the shooting. As for Investigator Quick’s
qualifications, we note that our supreme court has stated that a “witness may acquire the
necessary expertise through formal education or life experiences.” Reid, 91 S.W.3d at 302.
Investigator Quick testified that he had been on a gang task force since 1996, had attended

2
When asked about the definition of a gang, Investigator Quick stated as follows:

There’s different definitions around. Of course, the [S]tate’s definition is pretty
lengthy. The one we use in Knoxville is a little shorter and concise . . . .

It’s a group of three of more individuals who meet all the following criteria: They
have a name or identifiable leadership. They maintain a geographic, economic or criminal
enterprise turf. They associate on [sic] continuous or regular basis, and they engage in
delinquent or criminal activity.

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numerous training programs, and had been qualified as a gang expert in both state and federal
courts. We conclude that the trial court did not abuse its discretion when it classified
Investigator Quick as a gang expert. See State v. Justin Mathis, No. W2005-02903-CCA-R3-
CD, 2007 WL 2120190, at *9 (Tenn. Crim. App., Jackson, July 20, 2007) (finding that the
trial court did not err when it classified a police officer as an expert in gangs). The
Defendant is not entitled to relief on this issue.

VIII. Shell Casing

The Defendant argues that the trial court erred when it permitted Ms. Betts to testify
about a shell casing found in the Defendant’s vehicle. Specifically, he argues that her
testimony was “neither relevant nor material and should not have been admitted.” We
disagree.

Special Agent Ferguson testified that the Defendant informed him where he parked
the black Nissan Maxima and that, during a search of the vehicle, a .22 caliber shell casing
was found on the floorboard on the front passenger’s side of the car. Special Agent Ferguson
testified that he collected the evidence and sent it to Ms. Betts at the Tennessee Bureau of
Investigation crime laboratory. Ms. Betts testified that she examined the fired cartridge case
and described that “[i]t was a Remington manufactured brass cartridge case, and it was .22
long rifle caliber.” Ms. Betts also examined the bullet that struck the victim, which was
recovered during his autopsy, and said that “it was consistent in all regards to Remington
bullets.” Thus, we conclude that Ms. Betts’ testimony was relevant and that the trial court
did not abuse its discretion when it admitted her testimony. The Defendant is not entitled to
relief on this issue.

IX. Aggravating Circumstances

After the jury convicted the Defendant of first degree premeditated murder and first
degree murder in the attempt to perpetrate a first degree murder, a sentencing hearing was
conducted. The State presented two aggravating circumstances to the jury: (3) The defendant
knowingly created a great risk of death to two or more persons, other than the victim
murdered, during the act of murder; and (7) The murder was knowingly committed, solicited,
directed, or aided by the defendant, while the defendant had a substantial role in committing
or attempting to commit any first degree murder. See Tenn. Code Ann. § 39-13-204(i)(3),
(7). The jury found that both aggravating circumstances applied and sentenced the
Defendant to life imprisonment without the possibility of parole.

The Defendant contends that the trial court erred when it allowed the State to use and
present two aggravating circumstances to the jury. Specifically, he argues that presenting

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aggravating factor (7) was improper and contends, “This approach is tantamount to
establishing that a first degree murder which is based upon the concept of felony murder,
when that murder involves an attempt at first degree murder, will automatically be subject
to the possibility of life without parole.” The Defendant acknowledges that, in the trial court,
he “relied upon the judicial philosophy set forth” in State v. Middlebrooks, 840 S.W.2d 317
(Tenn. 1992). It appears the Defendant acknowledges that Middlebrooks is no longer the
controlling law regarding this issue, but he implores this Court to adopt its rationale
nonetheless. We decline to do so.

On multiple occasions, our supreme court has addressed the same argument that the
Defendant now presents to this Court. In State v. Banks, 271 S.W.3d 90, 152 (Tenn. 2008),
our high court explained as follows:

In 1992, this [c]ourt held that Tennessee’s broad definition of felony
murder and the duplicative language of the felony murder aggravating
circumstance required it to hold that Tennessee’s first degree murder statute,
as it existed at that time, did not sufficiently narrow the class of persons
eligible for the death penalty to comply with the Eighth Amendment to the
United States Constitution. State v. Middlebrooks, 840 S.W.2d at 346. The
Tennessee General Assembly responded to this decision in 1995 by amending
the aggravating circumstance in Tenn. Code Ann. § 39-13-204(i)(7) to require
that the murder “was knowingly committed, solicited, directed, or aided by the
defendant, while the defendant had a substantial role in committing or
attempting to commit” one of the enumerated felonies.3 This amendment
narrowed the class of offenders to whom the death penalty could be applied
sufficiently so as to leave no State v. Middlebrooks problem even in cases
where Tenn. Code Ann. § 39-13-204(i)(7) was the only aggravating
circumstance established and the conviction was for felony murder. State v.
Reid, 91 S.W.3d at 306 n.13 (appendix).

(footnote in original); see also Reid, 91 S.W.3d at 306 (rejecting the defendant’s argument
that it was improper for the State to present aggravating circumstance (7) to the jury when
the defendant had been convicted of both premeditated murder and felony murder); State v.
Stout, 46 S.W.3d 689, 705-06 (Tenn. 2001) (“Unlike the statutes analyzed in Middlebrooks,
the present versions of felony murder and the felony murder aggravating circumstance do not
duplicate the elements of one another. The aggravating circumstance applies only where the
jury finds that a defendant acted knowingly and had a substantial role in the offense. The
additional elements were not in the prior version of the felony murder aggravating

3
See Act of May 22, 1995, ch. 377, 1995 Tenn. Pub. Acts 587.

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circumstance.”). Thus, in accordance with the above decisions from our supreme court, we
conclude that it was proper for the State to present aggravating circumstance (7) to the jury
during the sentencing phase of the trial. The Defendant is not entitled to relief on this issue.

X. Sufficiency of the Evidence to Support Life Imprisonment Without the Possibility
of Parole

During the sentencing hearing, the Defendant presented testimony about the kind of
home in which he grew up. Lisa Brewer, the Defendant’s mother, testified that, when the
Defendant was growing up, her household “was not a good place to be” because of “drugs,
alcohol, [and] physical abuse.” She acknowledged that she did not care about his education
like she should have because she was “a drug addict and a drunk.” Ms. Brewer said that the
State took her son away from her when he was fourteen years old and placed him in various
group homes.

Janie Helton testified that she had known the Defendant since he was born. She
recalled that the Defendant started smoking cigarettes when he was five or six years old and
that, at his home, “drugs were done openly and freely.” However, Ms. Helton said, “I have
seen a side of Eugene that most people never get to see, and he has a warm heart and an open
heart and he can be a loving person.”

The Defendant testified that he went to school until the tenth grade, but that he had
obtained a special education diploma when he was in a juvenile detention facility. When the
Defendant was asked about his feelings about gangs, he replied, “They are really very
ignorant.” The Defendant read aloud a letter that he had written to the victim. In the letter,
he stated, in part, “I am sorry Jackson Blue Sellers. And I can’t say much more than that.
I did not write this for anyone to feel sorry for me. I wrote this because I am sorry for what
has happened to Jackson Blue Sellers.”

In addition to the two aggravating circumstances that the State presented, the jury was
asked to consider three mitigating factors: (2) The murder was committed while the
defendant was under the influence of extreme mental or emotional disturbance; (7) The youth
or advanced age of the defendant at the time of the crime; and (9) Any other mitigating factor
that is raised by the evidence produced by either the prosecution or defense, at either the guilt
or sentencing hearing. See Tenn. Code Ann. § 39-13-204(j)(2), (7), (9). The Defendant
asserts that the evidence was insufficient to support a sentence of life imprisonment without
the possibility of parole because the aggravating circumstances did not outweigh the
mitigating circumstances.

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 However, the Defendant is mistaken in his assertion that the aggravating
circumstances need to outweigh the mitigating circumstances. Tennessee Code Annotated
section 39-13-204(i) states that no “sentence of imprisonment for life without possibility of
parole shall be imposed, except under a unanimous finding that the state has proven beyond
a reasonable doubt the existence of one (1) or more of the statutory aggravating
circumstances.” See also State v. Butler, 980 S.W.2d 359, 362-63 (Tenn. 1998); cf. Tenn.
Code Ann. § 39-13-204(g)(1) (requiring that, in order to sentence a defendant to death, the
jury must find at least one aggravating circumstance and that the “circumstance or
circumstances have been proven by the state to outweigh any mitigating circumstances
beyond a reasonable doubt”). Regarding the imposition of a sentence of life imprisonment
or life imprisonment without the possibility of parole, our statute further provides that

[t]he trial judge shall instruct the jury that, in choosing between the sentences
of imprisonment for life without possibility of parole and imprisonment for
life, the jury shall weigh and consider the statutory aggravating circumstance
or circumstances proven by the state beyond a reasonable doubt and any
mitigating circumstance or circumstances.

Tenn. Code Ann. § 39-13-204(f)(2). “In determining whether the evidence supports the
application of the aggravating circumstances, the proper standard to consider is whether, after
reviewing the evidence in a light most favorable to the State, a rational trier of fact could
have found the existence of the aggravating circumstances beyond a reasonable doubt.” State
v. Stevens, 78 S.W.3d 817, 841 (Tenn. 2002).

We conclude that a rational trier of fact could have found the existence of both
aggravating circumstances that the State argued. Ample evidence was presented during the
trial that there was a crowd of people in the Wal-Mart parking in the same vicinity as the
victim when the Defendant aimed his rifle at Josh Hinkle and fired it. The Defendant even
acknowledged that he had fired his gun into a crowd of people. Additionally, both Ms.
Bailey and Mr. Lyles testified that they were talking to the victim in the parking lot
immediately before he was shot. Regarding aggravating circumstance (7), as we have
discussed above, the State presented sufficient evidence that the Defendant intended to kill
Josh Hinkle but missed him and hit the victim instead. The Defendant is not entitled to relief
on this issue.

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 Conclusion

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

_________________________________
DAVID H. WELLES, SPECIAL JUDGE

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