State of Tennessee v. Barry Smith, Julian Kneeland and Barron Smith

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
March 5, 2013 Session

STATE OF TENNESSEE v. BARRY SMITH, JULIAN KNEELAND, AND
BARRON SMITH

Appeal from the Criminal Court for Shelby County
No. 10-02543 John T. Fowlkes, Jr., Judge

No. W2011-02122-CCA-R3-CD - Filed December 5, 2013

The Defendants, Barry Smith, Barron Smith, and Julian Kneeland, were convicted by a
Shelby County Criminal Court jury of eight counts of aggravated assault, Class C felonies;
one count of reckless endangerment committed with a deadly weapon, a Class E felony; eight
counts of reckless endangerment, Class A misdemeanors; and one count of aggravated
criminal trespass, a Class A misdemeanor. See T.C.A. §§ 39-13-102, 39-13-103, 39-14-406
(2010). The trial court merged the eight counts of reckless endangerment with the eight
counts of aggravated assault. Defendant Barry Smith was sentenced as a Range I, standard
offender to five years for each aggravated assault conviction, one year for the reckless
endangerment committed with a deadly weapon conviction, and eleven months, twenty-nine
days for each misdemeanor conviction. The court ordered two of the aggravated assault
convictions to run consecutively and the remainder of the convictions to run concurrently,
for an effective ten-year sentence. Defendant Barron Smith was sentenced as a Range II,
multiple offender to seven years for each aggravated assault conviction, three years for the
reckless endangerment committed with a deadly weapon conviction, and eleven months,
twenty-nine days for each misdemeanor conviction. The court ordered two of the aggravated
assault convictions to run consecutively and the remainder of the convictions to run
concurrently, for an effective fourteen-year sentence. Defendant Julian Kneeland was
sentenced as a Range I, standard offender to four years for each aggravated assault
conviction, one year for the reckless endangerment committed with a deadly weapon
conviction, and eleven months, twenty-nine days for each misdemeanor conviction. The
court ordered two of the aggravated assault convictions to run consecutively and the
remainder of the convictions to run concurrently, for an effective eight-year sentence. On
appeal, the Defendants contend that (1) the evidence is insufficient to support their
convictions, (2) the trial court erred by allowing the jury to hear a 9-1-1 recording, and (3)
the court erred in sentencing. We affirm the Defendants’ convictions except the aggravated
assault convictions in Count 21, which we reverse and dismiss. We vacate the judgments for
the remaining aggravated assault and reckless endangerment convictions and remand the case
for entry of a single judgment for each aggravated assault conviction, noting merger of the
reckless endangerment convictions.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
in Part; Reversed and Dismissed in Part; Vacated in Part; Case Remanded

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which J ERRY L. S MITH and
R OGER A. P AGE, JJ., joined.

Paul Guibao (on appeal) and Samuel Lee Perkins (at trial), Memphis, Tennessee, for the
appellant, Barry Smith.

Andre Bernard Mathis, Memphis, Tennessee, for the appellant, Barron Smith.

Marvin Earl Ballin (at trial and on appeal) and Richard S. Townley (on appeal), Memphis,
Tennessee, for the appellant, Julian Kneeland.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;
Amy P. Weirich, District Attorney General; and Theresa Smith McCusker and Jose Francisco
Leon, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

This case arose from an August 8, 2009 shooting during a family barbecue in which
Erica Irby was injured. At the trial, Memphis Police Officer Terrance Wilson testified that
he responded to a call on August 8, 2009, at 2:00 p.m. and that the scene was chaotic when
he arrived. He found people coming from the house who told him a woman, later identified
as Erica Irby, had been shot. He said that the injured woman came out of the house and
showed him her wound in the buttocks area and that he called for an ambulance. He said that
when he went into the house, he found bullet holes in different areas of the walls and that a
few people were still there. He thought that about fourteen people came from the house but
that a few men left the scene. He identified a photograph of the house where the shooting
occurred and said it was in South Memphis behind a middle school. He requested more
officers to respond after he saw the number of people coming from the house. He said the
people told him that someone had shot at the house.

On cross-examination, Officer Wilson testified that he did not see Defendant Barron
Smith on August 8, 2009. He said that he could have received the call regarding the shooting
more than an hour after he started his shift at 2:00 p.m. and that he was unsure of the time.
He thought he remembered listing fourteen victims but said more people were probably at

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the house. He did not know if the victims were related and did not remember their names.
He said they told him the nicknames of two men who shot at the house. He wrote the names
of the victims, took statements from a couple of people at the scene, and submitted a report
with the information the victims told him.

Officer Wilson testified that his name was listed as the reporting officer on the crime
scene log, which usually listed everyone who came to the scene, but that he did not know
why the ambulance personnel were not listed. He said he saw an ambulance arrive but did
not see Ms. Irby get into or leave in the ambulance. He said that he saw Ms. Irby’s wound,
that there was a little blood, and that she had been grazed by a bullet. He did not remember
if bullet holes were in the front wall or the outside walls but said he saw bullet holes in the
inside walls.

Memphis Police Officer Thomas Ellis testified that he responded to the shooting with
the Crime Scene Unit on the evening of August 8, 2009, to collect evidence and photograph
the scene. He said that when he arrived, he spoke with the scene officer to obtain his
information for the report. He identified two aerial photographs of the house, which was
located in a residential neighborhood. He photographed the inside and outside of the house
and collected and transported the evidence to the property room. He identified photographs
of a spent 7.62 shell casing found in the street in front of the house, a spent shell casing near
the sidewalk, and other spent shell casings outside the front of the house. He said bullet
holes were on the outside of the house on the north side and inside the house. He identified
photographs of bullet holes in a shutter on the front of the house, the front porch ceiling, the
siding on the front of the house, and the north side of the house. He said that inside, he found
bullet fragments, several bullet holes, and blood on the floor.

Officer Ellis testified that he found approximately thirty bullet holes inside the house.
He said he found bullet holes in the interior walls, the photographs hanging on the walls, the
hallway, the bedroom doors, and the walls and identified photographs of the holes. He said
that inside the house, he collected five spent “7.62 times 39 Wolf” shell casings, three spent
nine-millimeter Luger shell casings, and two bullet fragments and that he did not recover
guns. He identified photographs of blood found on the floor. He said that outside the house,
he collected six 7.62 shell casings in the street, two spent nine-millimeter Luger shell casings
on the sidewalk in front of the house, a spent 7.62 shell casing in the front yard near the
porch, and a spent nine-millimeter shell casing in the front wall of the house.

On cross-examination, Officer Ellis testified that he received the call at 5:40 p.m. and
arrived at the scene at 6:00 p.m. but was unsure what time the shooting occurred. He was
unsure what type of gun shot 7.62 bullets. He did not try to obtain fingerprints from the shell
casings and was unaware if anyone attempted to find fingerprints on the casings after they

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were taken to the property room. He said he went to the front room, the stairwell, and the
bedroom and did not go through the entire house because he only photographed and collected
what the investigator instructed.

Officer Ellis testified that he had never been to the house before and did not know
how long the bullets had been there. He said he could not determine if the bullet holes were
made by guns shot inside or outside the house. He said all the photographs he took of the
bullet holes in the outside of the house were in the front.

Martha Ann Gray testified that she was home on August 8, 2009, preparing for a
barbecue when the shooting occurred. She said that she was inside when she heard gunfire
and that she saw the people shooting. She identified Defendant Barry Smith, also known as
“Skinny,” Defendant Barron Smith, also known as “Fat,” and Defendant Kneeland as the
shooters. She said Erica Irby, also known as “Shell,” Faith, Tonya, Krissy, Pam, Tiffany,
Chico, who was her brother, Mario, Gidget, and her nieces, nephews, and cousins, who were
young children, were at her house that day. She said that when the shooting began, she
looked out the window and that everyone ran into the house. She said she ran to a bedroom
and attempted to hide. She said that the shooting lasted for ten or fifteen minutes and that
during the shooing, she heard “hollering, bullets, people screaming, [and] bullets flying from
every angle.” She said that she called 9-1-1 when she was lying on the floor, that she was
placed on hold and hung up, and that she heard others in the house calling 9-1-1. She said
that she knew the Defendants because they had been to her house to play games, use the
computer, and talk with her nephew, cousin, and sons and that the Defendants had eaten and
stayed overnight at her house. She said she did not have a weapon and did not attack the
Defendants.

Ms. Gray testified that the police and an ambulance came to her house after the
shooting and that her niece Shell had been hit by a bullet and was treated. She said that she
did not invite the Defendants to her house on August 8, 2009, and that they did not have
permission to enter her house or to have a key to her house. She gave a statement to the
police about the shooting, identified the Defendants in photograph lineups, and verified her
signature on the lineups. She identified a photograph of her house and said the bullet holes
pictured were not there the night before the shooting. She said the bullets found were not
lying inside or outside her house before the day of the shooting. She identified the blood on
the floor as Shell’s and said it was not there before the shooting. She said that Shell, her
sister Faith, her sons, her cousin Herman, her young nephew Cavion and another young child
of a family friend, who were hiding in a dresser, her nephew Demario, and other children in
the closet with Shell and “Tan” were all hiding in the bedroom with her. She said she was
“scared to death” as she hid on the floor because she did not know if they were going to live.
She said that everyone hid because of the shooting and that they had no warning the shooting

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would occur. She identified a photograph of the front of her house from the day of the
shooting and identified “Tasha’s” baby carrier, which was still sitting on the front porch. She
said Tasha was inside the house at the time of the shooting.

On cross-examination, Ms. Gray testified that the shooting occurred around 3:00 or
4:00 p.m. She said she was in the living room when she heard the first shot and walked
toward the door. She said that after several shots, people started running into the house and
that she ran to the bedroom. She said she never saw the shooter and never saw anyone with
a gun. She did not see any of her family members with a gun. She said that she came to the
courthouse with some of the people who were in her house the day of the shooting. She said
that she saw them everyday and that they were family but that they did not discuss the case.
She said her sister, Cynthia Gray, was at the house at the time of the shooting. She admitted
that she did not see the shooters but heard other people call the shooters by name as they
were running into the house away from the shots.

Erica “Shell” Irby testified that Martha Gray was her aunt and that she was at Ms.
Gray’s house on August 8, 2009, around 6:30 or 7:00 p.m. She said that between twenty and
thirty people were there when she arrived, including Ethel Gray, Faith Harris, who was her
mother, Tasha Gray, Cynthia Gray, “a lot of kids and a lot of adults.” She said everyone was
preparing for a barbecue, which was normal for her family.

Ms. Irby testified that when she was at the party, she was grazed by a bullet on the
right side of her buttocks. She said that when she arrived, she and her friend Lashonda Gray
went to the porch where Ethel Gray, Gidget Lanier, and Darryl Gray were sitting and that
children were in the yard. She said that about ten people were outside, that she saw a silver
car approaching the house, and that they all ran inside the house when they heard gunshots.
She said that she heard more shots coming from the back of the house after she was inside
and that she hid in the closet with her four-year-old godson, Joell, and her sister, Lantondra
Harris. She said that she did not see from where the shots came or who was shooting when
she was in the closet but that bullets came from everywhere. She said that Martha Gray,
Ethel Gray, Herman, and a lot of young children hid in the same room with her and that she
could not remember everyone in the room because there were so many. She said her uncle,
Dale, was already in the house when the first shots were fired and that Martha Gray and her
husband were in the kitchen.

Ms. Irby testified that the shooting stopped and that she tried to run from the closet
through the living room. She said that when she was running, she heard another bullet and
felt “something.” She said her uncle was lying on the couch and told her to get down
because shots were being fired. She said that she crawled back to the closet and that when
her sister told her she was bleeding, she realized she had been shot. She said she was unable

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to sit down as the shooting continued. She said that after she returned to the closet, she saw
her cousin, Dercedes Gray, come from the back of the house toward the front.

Ms. Irby testified that she saw “Julian” and “Skinny” in the doorway shooting,
identifying Defendant Kneeland as Julian and Defendant Barry Smith as Skinny. She said
that she saw Kneeland using a silver and black gun and that he hesitated and backed away
as if he did not want to shoot but then began shooting. She said Kneeland and Barry Smith
pushed open the door, stood in front of the door, and shot into the house. She said that she
was standing in the middle of the living room when she saw them shooting and that she knew
them from the neighborhood.

Ms. Irby testified that Defendants Kneeland and Barry Smith stood beside each other
in the doorway, that Kneeland was on the right, and that Barry Smith was on the left. She
said that Kneeland paced the front porch when her aunt, Cynthia Gray, yelled that children
were inside but that after he stopped pacing, he began shooting again. She said that
Kneeland acted as if he was under pressure and did not want to “let his home boys down” but
that Barry Smith did not care and continued shooting. She said she did not see them reload
their guns but heard two pauses in the shooting. She said she did not see anyone other than
Kneeland and Barry Smith with guns that day.

Ms. Irby testified that she remained in the closet until the police arrived. She said that
an ambulance came to the scene and treated her wound and that she did not go to the hospital
for treatment. She said the shooting lasted about forty-five minutes to one hour. She said
that she did not remember the type of gun Defendant Barry Smith used and that she was
distraught and scared.

Ms. Irby testified that she made a statement and identified each Defendant in a
photograph lineup at the police station. At the trial, she identified Defendant Barron Smith
as Fat and said he was Defendant Barry Smith’s twin brother. She said she did not see
Barron Smith at the door shooting but saw him in the car as it approached. She said that she
was on the porch when she saw the car approaching but that she ran inside after she heard
gunshots. She said she did not see anyone with a gun when she heard the first shots. She
said all three Defendants were in the car when it approached.

Ms. Irby testified that a baby carrier was on the porch and that an eight-month-old
baby had been in the carrier when she saw the Defendants’ car approached. She said that the
baby’s father was her cousin, Ebony Payno, and that she grabbed the baby and ran inside
when the shooting began. She said Defendants Kneeland and Barry Smith never came
through the door but stood at the door.

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 On cross-examination, Ms. Irby testified that she sat on the porch about five minutes
before she heard gunshots. She said seven to ten people were outside and fifteen to twenty
people were inside. She said that she ran inside and that when she reached the center of the
living room, she heard more shots, which she thought were coming from the back of the
house but was unsure. She said she saw Martha Gray inside the house on the left side
coming from the kitchen. She said she did not see anyone in the house with a gun or hear any
member of her family shooting. She agreed she was related to most of the people in the
house.

Ms. Irby testified that she was not in the closet for the entire forty-five minutes of
shooting. She said she came to the courthouse each day during the trial and sat in the witness
room with others who were testifying. She agreed that the people in the witness room were
her family members but denied talking about the case.

Ms. Irby testified that she went to the police station after the shooting, gave a
statement, and viewed photograph lineups. She said that although she did not see Defendant
Barron Smith shooting, she identified him in a photograph lineup and wrote on the lineup
that he and his twin brother “shot up” her aunt’s house.

Ms. Irby testified that Defendants Kneeland and Barry Smith pointed their guns in
the house but not at her. She said that people drank beer at the family barbecues but that she
had not had anything to drink. She reviewed her statement to the police and agreed she wrote
that she saw Defendants Barry Smith and Barron Smith enter through the back and that she
did not see Kneeland. She said, though, that she saw Kneeland when she left the closet after
she heard the pause in the shooting and went to the front room. Referring to the dates on the
photograph lineups, she said that she identified Barron Smith and Barry Smith on August 8,
2009, and identified Kneeland on August 12, 2009. She said she had known Kneeland for
years through mutual friends in the neighborhood and had been at the house with him many
times. She said the police called her after her initial statement and asked her to identify
Defendant Kneeland, but she did not remember the specifics of the conversation. She said
she did not remember what the Defendants wore the day of the shooting but knew that
Kneeland had a black shirt wrapped around his face.

Ethel Gray testified that she was at her aunt’s house on August 8, 2009, preparing for
a barbecue and that she had an altercation with Kentetra Matthews, who “used to go with
Skinny.” She said that five or ten minutes after the altercation, a gray car pulled up to where
Ms. Matthews was standing and that Defendants Barry Smith, Barron Smith, and Kneeland
were in the car. She thought “Kenisha” pulled a gun from her shirt and passed it to Barry
Smith.

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 Ms. Gray testified that she saw Defendant Barron Smith step out of the car when
Defendant Barry Smith was driving. She said that her cousin grabbed her young nephew,
who was on the porch, and that she ran inside looking for somewhere to hide because she
was scared they were about to start shooting. She said more than twelve or thirteen people
were in the house, including Martha, her aunt Faith, her cousin Tonya, her son Cavion, her
nieces Micia Allen and Tonia Allen, Tonya Gray, her uncle Moon, and her uncle Dale. She
said that she ran to a bedroom and hid under a bed against a wall, that her son hid in the
drawer of a dresser in the same bedroom, and that her cousin Herman, Lantondra, and Ms.
Irby were in the bedroom hiding with her. She said she saw Ms. Irby get wounded in the
buttocks. She said that the shooting lasted about fifteen minutes and that the police and an
ambulance came to the scene. She said that the shooting ended when the Defendants used
all their bullets and that she did not know where they went after they finished shooting.

Ms. Gray testified that she gave a statement to the police about the shooting and
viewed photograph lineups. She said that she identified Defendant Barron Smith in one
photograph lineup and that her writing stated she saw him shoot. She identified Defendant
Barry Smith and Defendant Kneeland in two other photograph lineups. She saw Barron
Smith standing inside the front door shooting a gray gun, Kneeland in the car, and Barry
Smith driving the car but not in the house shooting.

Ms. Gray testified that about five minutes elapsed between the time she saw
Defendants Kneeland and Barry Smith in the car and the time the shooting began. She said
that they got out of the car and started shooting and that she ran and hid because she was
terrified. She said bullets were coming from every angle of the house. She said that none
of her family had guns and that she did not have a weapon. She identified a picture of her
aunt’s house with a baby car seat on the front porch and said the baby was in the seat when
the Defendants arrived.

On cross-examination, Ms. Gray testified that at the time of the shooting, she did not
know Defendants Barron Smith and Barry Smith’s given names. She said that the
Defendants’ car stopped beside the bushes in front of her aunt’s house, that she was sitting
in the middle of the front porch, and that she ran inside before the shooting began. She said
that by the time she was able to get inside, shots were being fired. She said that the five
people on the porch ran inside when she did and that about twelve people were already
inside.

Ms. Gray testified that she had heard Defendant Barron Smith’s name but that she
knew him only as “Fat.” She said she wrote “Barron Smith” on the photograph lineup after
she saw the name tattooed on her cousin, who had previously dated him. She said that the
Defendants drove a gray car, that Defendant Barry Smith was driving, that Barron Smith was

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sitting on the front seat, and that Defendant Kneeland was on the back seat. She said that
Barron Smith jumped out of the car and came to the front door and that she never saw Barry
Smith or Kneeland at the front of the house. She said she was near Ms. Irby throughout the
incident. She said she heard more than ten shots but agreed that the statement she gave to
the police showed she heard six to eight shots.

Ms. Gray testified that after the shooting, she stayed at her aunt’s house until the
police arrived. She said that she did not remember anyone moving the chairs from the front
porch but that they were probably moved when everyone ran from the porch. She said the
baby carrier was the only thing left on the porch. She said that Defendant Barry Smith was
driving and that he never said anything to her or anyone else to her knowledge. She said that
Kenisha was on the backseat in the car with the Defendants and that she saw Kenisha pass
Defendant Barry Smith a weapon when the car stopped in front of the house. She said that
when she saw the car approach, she told everyone on the porch the Defendants were about
to shoot, that shooting began as soon as she made the statement, and that everyone on the
porch ran in the house. She said that her cousin grabbed the baby and that she helped her two
nieces, her nephew, and her son run in the house. She said she did not see anyone shooting
before she ran inside. She admitted she and the others in the house talked about what
happened that day.

Ms. Gray testified that the shooting occurred around 1:00 p.m. and lasted until about
1:15 p.m. and that the police arrived around 1:30 p.m. She said the ambulance came to treat
her cousin, Ms. Irby, who was also known as Erica Harris. She said that Cynthia Gray, also
known as Becky, was on the porch with her and that Martha Gray was in the house. She said
that the Defendants’ car came toward the front of the house and that the tree in the front yard
did not block her view of the car.

Ms. Gray testified that she did not know who was in the living room when she ran into
the house. She said that she hid under one of the beds in the bedroom and that her cousin
Marico hid under the other bed. She said she could see the front door from her position
under the bed and saw Defendant Barron Smith shooting.

Ms. Gray testified that she told the police that Defendant Kneeland had been shooting
but agreed his name was not in her written statement to the police on the day of the incident.
She said that she told the police four people were in the car and that she identified
Defendants Barron Smith and Barry Smith. She said that she did not know Kneeland’s name
but that she told the police she could recognize him in a photograph lineup.

Ms. Gray testified that she went to the police station four days after the shooting to
give another statement and to identify Defendant Kneeland in a photograph lineup. She said

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that each time she gave a statement, the police typed the statement and that she signed it. She
said she did not see Kneeland with a gun or see him shooting. She said she saw him in the
car but did not see him get out.

Cynthia Gray testified that she was at her sister’s house preparing for a barbecue on
August 8, 2009, and that her nephew, Darryl Gray, had a “real heated” argument with
Defendant Barron Smith. She said that she went into the house because she thought the
argument was becoming “confrontational” and that Barron Smith left in a gray car, which she
saw circle the block twice as she stood in the doorway. She said that the third time the car
circled, two men got out of the car and that she went to the back of the kitchen and laid on
the floor. She said she was on the floor about four minutes when the first shots were fired
through the side door window. She said that a few minutes later, Barron Smith came through
the door and kept shooting “like he owned the place” and that Defendant Barry Smith was
standing near the driveway shooting. She said that after she saw Barron Smith come in the
door, she crawled to the other side of the door and that she was scared for her life. She said
that he emptied his gun and left. She said that she stood up and tried to leave through the
back door but that someone she could not see was shooting in the back. She said she
returned to the floor and crawled to look out a window. She said that she saw Defendant
Kneeland shooting on one side of the house and that he ran and got into a gray car. She
named thirty-five people who were in the house, including Ethel Lynn and her brother Darryl
Gray, who were both listed as victims in the indictment, and said a lot of children were there.

Ms. Gray testified that the shooting lasted twenty to twenty-five minutes and that she
did not have a weapon. She said that many people called 9-1-1 and that she called and told
the dispatcher to send the police quickly because children were in the house. She said her
niece, Erica Irby, was shot. She said the police wrote the victims’ names and asked them
what happened. She said she went with the police and gave a statement. She viewed two
photograph lineups and identified Defendants Barron Smith and Barry Smith. She said that
she did not know them personally and did not know their real names at the time but that she
knew them because they visited her sister’s house and were friends with her sister’s children.

Ms. Gray testified that when the shooting stopped, she tried to check on everyone and
that people were hiding everywhere. She said that Defendant Barron Smith’s gun was black
and silver, that Defendants Kneeland’s and Barry Smith’s guns were both black, and that all
three guns were handguns. She said she did not see anyone in her family shooting at the
Defendants. She said that after the shooting, she saw the Defendants run to their car and
leave.

On cross-examination, Ms. Gray testified that she arrived at Martha Gray’s house
about 10:30 a.m. on August 8, 2009, and that everyone arrived about that time to bring food

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and to prepare for the barbecue. She said that Erica Irby and Ethel Gray were already there
and had brought her sister, who was Ms. Irby’s mother. Although she was unsure, she said
the shooting occurred around 2:45 or 3:00 p.m.

Ms. Gray testified that the altercation she saw was between Darryl Gray and
Defendant Barron Smith. She recalled testifying previously that the altercation was between
Darryl Gray and Defendant Barry Smith and said all three were arguing, “taking turns with
each other.” She said that she saw Barron Smith driving, that the car stopped down the
street, that one of the Defendants got out of the car, went into a house, and jumped back into
the car, and that the car circled the block twice before stopping again. She said three people
got out of the car with guns in their hands but did not remember in which hand they held the
guns. She said she ran to hide in the kitchen. She said that Barron Smith stood inside the
house at the front door, that she saw Kneeland get out of the car before she took cover, and
that she saw Barry Smith shooting in the driveway on the side of the house.

Reading from a statement she made August 8, 2009, at 8:36 p.m., Ms. Gray testified
that she told the police that she arrived at the house about 3:00 or 3:30 p.m. and that she saw
two men get out of the car. She agreed her previous statements were different from her
testimony at the trial but said she was nervous that day because of the shooting. She said she
was not familiar with guns. Reading again from her previous statement, she said she told the
police that she saw a black .38 with a brown handle and a nine-millimeter gun. She said that
she told the police she could have been wrong because she did not know guns well but that
her uncertainty was not reflected in her statement. She said that her statement did not have
information about Defendant Barron Smith’s shooting a black and silver gun and that the
statement did not contain many of the things she told the police.

Ms. Gray testified that Defendant Barron Smith was in the car when he and Darryl
Gray were arguing and that she was sitting on the porch when she saw them. She said she
did not see Mr. Gray display or shoot a gun. She said that more than twenty people were in
the house at the time of the shooting, including babies, pregnant women, and her sick sister.

Ms. Gray testified that she was unsure who was driving the car when it passed the
house as she was trying to take cover. She said she entered the house when the car parked
and saw the Defendants leave the car with guns. She said that Defendant Barry Smith did
not come into the house and that looking through a window after Defendant Barron Smith
stopped shooting, she saw Barry Smith fire two shots. She said she did not tell the police she
saw Barry Smith shooting and agreed the information was not in her statement. She said that
the police must have left information out of her statement because a lot was happening and
that she also could have left information out because she was shaken.

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 Ms. Gray testified that she had to stand up at the trial to see a photograph because it
was of poor quality, not because of her eyesight. She said she was prescribed eyeglasses but
did not wear them. She said that she was both farsighted and nearsighted but that she could
see “pretty good.” She said that she arrived at the barbecue about 10:30 a.m., not 3:30 p.m.
as she told the police.

Ms. Gray testified that no one told her anything about the shooting, that she was there
and saw it, and that she made a 9-1-1 call. She said she viewed the photograph lineups and
told the police she could identify the shooters. Her statement said that she identified
Defendants Barron Smith and Barry Smith and that she was “120 percent” sure of their
identity. She said that she told the police that if they showed her a photograph, she could
identify the third shooter but that she did not know his name at the time. She admitted
someone told her his name. She said two Tashas were at the house, Tasha Gray and another
Tasha, who was Shell’s friend. She said she did not know Defendant Kneeland’s name but
knew who he was because his father ran a church close to where she previously lived and
because she was a school parent where he attended school. She said Kneeland wore blue
jean shorts and a white t-shirt with a black shirt draped over his neck the day of the shooting.

Eddie Heaston, a 9-1-1 dispatcher and the keeper of records, testified that every 9-1-1
call was recorded from the time the line was answered until the call was disconnected. He
agreed his office had a business duty to record the calls and said the call recordings were kept
for eighteen months unless a request was made to hold them longer. He agreed the
recordings were kept in the course of regularly conducted 9-1-1 operator and office business
activity. He identified and said he had listened to the full recording of the calls received on
August 8, 2009, beginning at 5:08 p.m., from the same location as the shooting. He
identified a “slightly edited” version of the recording, which he had heard, and it was played
for the jury.

On cross-examination, Mr. Heaston testified that all the calls originated from cell
phones in the area of the address of the shooting. He said that during one of the calls, the
caller said someone at the house had called her, told her about a shooting, and asked her to
call 9-1-1 and that the dispatcher typed that the call was from a woman at an address on the
same street as the shooting. He said, though, that the cell phone towers gave the vicinity of
a call, not the exact address.

The 9-1-1 recording contained multiple calls from different people. Several people
were screaming but much of the communication was indiscernible. The first female caller
asked for the police because someone was shooting. A male caller gave the intersection
where the house was located. A female caller gave the address of the house and her phone
number to the ambulance dispatcher and said someone had been shot but would not answer

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questions. Another female caller gave the address of the house, and another caller reported
that a female victim had been shot. Tasha Allen called 9-1-1, requested police, and said
someone called and told her that “Fat” shot at her aunt’s house and that her cousin had been
shot. She said she was not there but someone had called her. A male caller requested the
police and an ambulance and said his female cousin had been shot and was bleeding from her
buttocks.

Upon this evidence, Defendants Baron Smith, Barry Smith, and Kneeland were each
convicted of eight counts of aggravated assault, one count of reckless endangerment
committed with a deadly weapon, eight counts of reckless endangerment, and one count of
aggravated criminal trespass. See T.C.A. §§ 39-13-102, 39-13-103, 39-14-406. The trial
court merged the eight counts of reckless endangerment with the eight counts of aggravated
assault. Defendant Barry Smith received an effective ten-year sentence. Defendant Barron
Smith received an effective fourteen-year sentence. Defendant Julian Kneeland received an
effective eight-year sentence. This appeal followed.

I

The Defendants contend that the evidence is insufficient to sustain their convictions.
They assert that the evidence is insufficient to establish their identity as the shooters because
the witness testimony was inaccurate and contradictory. They also assert that the evidence
did not show six of the eight victims named in the indictment were placed in fear of
imminent bodily injury. They argue that the victims in Counts 13, 17, 21, 29, 33, and 37 did
not testify and that the witnesses who did testify did not state that the other six were in fear
of imminent bodily injury. The State counters that the evidence is sufficient.

Our standard of review when the sufficiency of the evidence is questioned on appeal
is “whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). We do not reweigh the evidence but
presume that the trier of fact has resolved all conflicts in the testimony and drawn all
reasonable inferences from the evidence in favor of the State. See State v. Sheffield, 676
S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
Questions about witness credibility are resolved by the jury. See State v. Bland, 958 S.W.2d
651, 659 (Tenn. 1997).

“‘A crime may be established by direct evidence, circumstantial evidence, or a
combination of the two.’” State v. Sutton, 166 S.W.3d 686, 691 (Tenn. 2005) (quoting State
v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998)). Circumstantial evidence alone may be
sufficient to support a conviction. State v. Richmond, 7 S.W.3d 90, 91 (Tenn. Crim. App.

-13-
1999); State v. Buttrey, 756 S.W.2d 718, 721 (Tenn. Crim. App. 1988). The standard of
proof is the same, whether the evidence is direct or circumstantial. State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011). Likewise, appellate review of the convicting evidence “‘is
the same whether the conviction is based upon direct or circumstantial evidence.’” Id.
(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

Relevant to this appeal, aggravated assault occurs when a person “[i]ntentionally or
knowingly commits an assault . . . and . . . [c]auses serious bodily injury to another [or] [u]ses
or displays a deadly weapon[.]” T.C.A. § 39-13-102(a)(1)(A)(i)-(ii) (2010). An assault
occurs when a person “(1) Intentionally, knowingly or recklessly causes bodily injury to
another; (2) Intentionally or knowingly causes another to reasonably fear imminent bodily
injury[.]” Id. at § 39-13-101(a)(1)-(2) (2010). “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.” Id. at § 39-11-302(b) (2010). “When acting knowingly suffices to
establish an element, that element is also established if a person acts intentionally.” Id. at §
39-11-301(a)(2) (2010). “[A] person . . . acts intentionally with respect to the nature of the
conduct or to a result of conduct when it is the person’s conscious objective or desire to
engage in the conduct or cause the result.” Id. at § 39-11-302(a).

Reckless endangerment is committed when a person “recklessly engages in conduct
that places or may place another person in imminent danger of death or serious bodily
injury.” T.C.A. § 39-13-103(a) (2010). Reckless endangerment is a Class A misdemeanor
unless it is committed with a deadly weapon, in which case it is a Class E felony. Id. at § 39-
13-103(b)(1)-(2).

Aggravated criminal trespass occurs when a person “enters or remains on property
when: (1) [t]he person knows the person does not have the property owner’s effective
consent to do so; and (2) [t]he person intends, knows, or is reckless about whether such
person’s presence will cause fear for the safety of another[.]” T.C.A. § 39-14-406(a)(1)-(2)
(Supp. 2013). “Enter” means “intrusion of the entire body.” Id. at 39-14-406(b). When the
aggravated criminal trespass is committed in a habitation, it is a Class A misdemeanor. Id.
at § 39-14-406(c).

A. Identity

With regard to the Defendants’ argument that the testimony about their identities was
insufficient, we acknowledge that the evidence was conflicting. The duty of the jury, as the
trier of fact, was to resolve those inconsistencies by crediting the evidence worthy of belief
and discrediting the evidence that was less trustworthy. On appeal, the defendant has the
burden of demonstrating that the evidence is insufficient. State v. Tuggle, 639 S.W.2d 913,

-14-
914 (Tenn. 1982). The appellate court resolves all conflicting testimony in favor of the jury’s
verdict and the trial court’s judgment. Id.

In the light most favorable to the State, each of the eye witnesses identified the
Defendants at the trial and in photograph lineups after the shooting. Although on cross-
examination she denied seeing the shooters, Martha Ann Gray identified the Defendants as
the shooters during direct examination and in photograph lineups and was familiar with them
because they had been to her house, eaten, and stayed the night. Darryl Gray argued with
Defendants Barry Smith and Barron Smith shortly before the shooting, and the Defendants
left in a gray car with Barron Smith driving. They circled the block twice before stopping
down the street where one Defendant got out, went inside a house, and returned to the car.
The car continued and stopped in front of the house where the shooting occurred. Ethel Gray
saw the Defendants arrive at the house in a gray car with Barry Smith driving, Barron Smith
on the front seat, and Defendant Kneeland on the back seat and saw a weapon passed to
Barry Smith. Cynthia Gray saw three people leave the car with guns in their hands and
described the Defendants’ guns. Ethel Gray and Cynthia Gray saw Barron Smith enter
through the front door shooting. Although Erica Irby denied seeing Barron Smith at the door
shooting, she saw him in a silver car with Kneeland and Barry Smith as it approached the
house. Cynthia Gray saw Kneeland get out of the car before she took cover, saw him
shooting on one side of the house, and saw him get into a gray car after he finished shooting.
She also saw Barry Smith shooting in the driveway on the side of the house. Erica Irby saw
Kneeland and Barry Smith standing in front of the door shooting into the house when she
was standing in the middle of the living room.

Although inconsistencies exist in the witnesses’ statements to the police and their
testimony at the trial, the record shows that approximately thirty bullet holes were found
inside the house, that the shooting lasted from ten minutes to one hour, and that all three
Defendants were seen at the house during the shooting with guns. We conclude that a
rational trier of fact could have resolved the conflicts in favor of the State and found that the
Defendants were the shooters.

B. Fear of Imminent Bodily Injury

“The element of ‘fear’ is satisfied if the circumstances of the incident, within reason
and common experience, are of such a nature as to cause a person to reasonably fear
imminent bodily injury.” State v. Gregory Whitfield, No. 02C01-9706-CR-00226, slip op.
at 4 (Tenn. Crim. App. May 8, 1998), perm. app. denied (Tenn. Dec. 7, 1998). “A victim’s
fear of imminent bodily injury may be proven with circumstantial evidence.” State v. Jessie
James Austin, No. W2001-00120-CCA-R3-CD, slip op. at 5 (Tenn. Crim. App. Jan. 25,
2002) (concluding that although only one victim testified, circumstantial evidence was

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sufficient to show that the defendant’s actions caused both victims to reasonably fear
imminent bodily injury), perm. app. denied (Tenn. July 15, 2002); see also State v. Harry
Jamieson, No. W2003-02666-CCA-R3-CD, slip. op. at 9 (Tenn. Crim. App. Dec. 23, 2004)
(concluding that the evidence was sufficient to infer that two victims who did not testify
reasonably feared imminent bodily injury when another witness testified that the defendant
confronted the victims with a gun, ordered them to the floor, and pointed the gun at the two
victims, who were hysterical as they lay face down on the floor during the robbery).

In the light most favorable to the State, the evidence shows that Erica Irby, Ethel
Gray, Lantandra Harris, Mario Gray, Darryl Gray, Dercedes Gray, and Cavion Gray, who
were the victims in Counts 5, 9, 13, 17, 29, 33, and 37, were in the house when the
Defendants were shooting. Erica Irby hid in a closet during the shooting and was struck by
a bullet. Ethel Gray ran and hid under a bed because she was scared and saw Ms. Irby get
shot. Lantandra Harris hid in the same bedroom as Martha Ann Gray and Ethel Gray and in
the closet with Erica Irby. Martha Ann Gray said Mario was at her house that day. Darryl
Gray was on the porch with others when Ms. Irby arrived for the barbecue, and Cynthia Gray
saw him at the house. Dercedes Gray came from the back of the house toward the front
during the shooting when Ms. Irby was hiding in the closet. Ethel Gray’s son, Cavion, hid
in a drawer of a dresser in the bedroom.

The witnesses who were inside the house at the time of the shooting testified that they
were scared. Martha Ann Gray said that she feared for her life and was “scared to death” as
she hid on the floor. She said everyone ran into the house and hid when the shooting began.
During the shooting, she heard “hollering, bullets, people screaming, [and] bullets flying
from every angle.” She called 9-1-1 when she was lying on the floor and heard others in the
house calling 9-1-1. Ms. Irby testified that she was distraught and scared because she had
never been in a similar situation and that bullets came from everywhere. She said that when
she arrived, about ten people were outside and that they ran inside the house when they heard
gunshots. Ethel Gray said that she ran inside and hid because she was terrified the
Defendants were about to start shooting and that bullets came from every angle of the house.
Cynthia Gray said she was scared for her life. Officer Wilson said the scene was chaotic
when he arrived. Officer Ellis found approximately thirty bullet holes inside the house,
collected eight shell casings and two bullet fragments inside, found blood on the floor, and
collected eight spent shell casings on the sidewalk in front of the house, one spent shell
casing in the front yard near the porch, and another spent shell casing in the front wall of the
house.

This court has concluded that fearfulness may be shown by a concern for self-defense,
the inability to concentrate, and turning to the police for help. See State v. Tommy Arwood,
Jr., No. 01C01-9505-CC-00159, slip op. at 6 (Tenn. Crim. App. May 24, 1996); see also

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State v. Jamie John Schrantz, No. W2002-01507-CCA-R3-CD, slip op. at 4 (Tenn. Crim.
App. Dec. 2, 2003). Although the record does not show any self-defense was attempted, self-
preservation was. The record reflects that Erica Irby, Ethel Gray, Lantandra Harris, Mario
Gray, Darryl Gray, Dercedes Gray, and Cavion Gray all hid inside the house during the
shooting. Martha Ann Gray called 9-1-1 for help and heard others do the same. The
witnesses who testified at the trial said they feared for their lives. We conclude that the
circumstances of the incident would reasonably cause the victims in Counts 5, 9, 13, 17, 29,
33, and 37 to fear imminent bodily injury and that the evidence is sufficient as to these
counts.

Regarding the Defendants’ argument that the record does not show Autumn Allen, the
victim named in Count 21, was in the house, we find no evidence that Ms. Allen was present
during the shooting. Ms. Allen did not testify, and nothing in the record shows she was there.
A rational trier of fact could not have found the essential elements of aggravated assault upon
Ms. Allen without evidence of her presence at the house where the shooting occurred. The
Defendants’ convictions for aggravated assault against Autumn Allen are reversed, and the
charge is dismissed.

II

The Defendants contend that the trial court erred in allowing the jury to hear the 9-1-1
recording over their hearsay objections. The State responds that the court properly allowed
the evidence.

During the trial, a jury-out hearing was held to determine whether the 9-1-1 recording
would be admitted as evidence. The prosecutor sought to introduce the recording as a
business record. The Defendants objected, contending that the recording was hearsay. They
argued that an authentication issue existed because the recording was a “convolution” of 9-1-
1 recordings and that it was unclear who was making the statements during portions of the
recordings. The State responded that the recording was admissible hearsay under Tennessee
Rule of Evidence 803 because it is a record of a regularly conducted business activity and
that one of the State’s witnesses, the 9-1-1 supervisor, could identify the dispatchers in the
recording. Defendant Barron Smith responded that authentication of the dispatchers was not
the issue but rather the identification of the callers.

After listening to the recording, the trial court determined that the “individuals
involved were really suffering from the incident[.]” The court stated that the callers sounded
scared and that chaos and screaming were audible. It found that the recording satisfied “all
the requirements” and that the declarants were operating under the excitement of the events.
The court overruled the objections and ordered the statements about an earlier shooting at the

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house be redacted. Defendant Kneeland renewed his hearsay objection before the tape was
played for the jury. The court found that “besides the business act, [the calls] are excited
utterances” and allowed the tapes to be played as an exception to the hearsay rule.

“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tenn. R. Evid.
801(c). Hearsay is not admissible unless admission is authorized by the evidence rules or by
other controlling provisions of law. Id. at 802. One exception to the hearsay rule is for an
excited utterance, “[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.” Id. at 803(2).
Our supreme court has stated three prerequisites to admission pursuant to the excited
utterance exception:

The first requirement is “a startling event or condition” that “‘suspend[s] the
normal, reflective thought processes of the declarant.’” State v. Stout, 46
S.W.3d 689, 699 (Tenn. 2001) (quoting State v. Gordon, 952 S.W.2d 817, 820
(Tenn. 1997)) (other internal quotations omitted) [(abrogated by statute on
other grounds as stated in State v. Odom, 137 S.W.3d 572, 580-81 (Tenn.
2004))]. Second, the statement must “relate to” the startling event or
condition. Id. This broad requirement offers “considerable leeway” such that
“the statement may describe all or part of the event or condition, or deal with
the effect or impact of that event or condition.” Gordon, 952 S.W.2d at 820
(quotation omitted); [Neil P.] Cohen et al., [Tennessee Law of Evidence] §
8.07[3][c] at 8-76 [(5th ed. 2005)]. The third and final requirement dictates
that the declarant make the statement while “under the stress or excitement
from the event or condition.” Stout, 46 S.W.3d at 699-700. This requirement
considers a variety of factors, including the interval of time between the
startling event and the statement. Id. at 700.

State v. Franklin, 308 S.W.3d 799, 823 (Tenn. 2010) (footnotes omitted). The “ultimate test”
for determining the admissibility of an excited utterance is “spontaneity and logical relation
to the main event and where an act or declaration springs out of the transaction while the
parties are still laboring under the excitement and strain of the circumstances and at a time
so near it as to preclude the idea of deliberation and fabrication.” State v. Smith, 857 S.W.2d
1, 9 (Tenn. 1993).

The qualifying startling event occurred when the Defendants shot handguns at the
house where a group had gathered for a family barbecue. Testimony at the trial established
that the people at the house ran to hide when the shooting began. The witnesses at the trial
testified that they were scared for their lives. In the 9-1-1 recording, the callers screamed and

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cried. The statements in the recording related to the startling event because they described
the location of the shooting, what happened, and who was injured. Mr. Heaston testified that
the calls originated from cell phones at the address of the shooting on the day of the shooting.
The callers made the statements while “under the stress or excitement from the event or
condition” because they called 9-1-1 during or immediately after the shooting. Although
testimony varied about the time of the shooting, all witnesses agreed that the shooting
occurred sometime in the afternoon on August 8, 2009. The 9-1-1 calls began at 5:08 that
afternoon. Cynthia Gray testified that she called 9-1-1 around the time of the shooting.
Martha Ann Gray called 9-1-1 while she was hiding on the floor during the shooting. They
both heard others in the house calling 9-1-1.

Regarding the statements made on the 9-1-1 recording by Tasha Allen, who was not
at the house but was told by someone at the scene that a shooting had occurred, there are two
levels of out-of-court statements involved: (1) Ms. Allen’s statements to the dispatcher and
(2) the unknown caller’s statements to Ms. Allen that shooting had occurred at her aunt’s
house and that Defendant Barron Smith was one of the shooters. As stated above, the
unknown caller’s statements to Ms. Allen qualified as excited utterances. However, Ms.
Allen’s statements to the dispatcher relayed information she received from a third party, and
she lacked personal knowledge of the matter.

“The only competency requirement for an excited utterance under Rule 803(2) is that
the declarant must have had an opportunity to observe the facts contained in the extrajudicial
statement.” State v. Land, 34 S.W.3d 516, 529 (Tenn. Crim. App. 2000). An excited
utterance is inadmissible if the declarant lacked personal knowledge. Id. Rule 603 provides
that “[a] witness may not testify to a matter unless evidence is introduced sufficient to
support a finding that the witness has personal knowledge of the matter. Evidence to prove
personal knowledge may, but need not, consist of the witness’s own testimony.” Personal
knowledge may be inferred from the statements and the surrounding facts and circumstances.
Land, 34 S.W.3d at 529. “[T]he party offering the testimony must introduce sufficient
evidence to support a jury finding that the witness had personal knowledge of the matter.”
Id. No evidence in the record shows that Ms. Allen had personal knowledge that her aunt’s
house or her cousin were shot. The State failed to show that Ms. Allen either saw or
otherwise perceived the shooting, and the record suggests she did not.

The trial court did not err in admitting the 9-1-1 recording as an excited utterance but
erred in admitting Ms. Allen’s portion of the recording because she lacked personal
knowledge of the events. We conclude, however, that the error was harmless. See T.R.A.P.
36(b). The other callers, who were at the house during the shooting, told the dispatchers
information similar to that Ms. Allen relayed. Further, the evidence at the trial corroborated
the information.

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 A. Defendant Barry Smith

Defendant Barry Smith argues that the discernable portions of the recording were
irrelevant and played upon the emotions of the jury. The State argues that the issue is waived
because the Defendant did not object to relevancy at the trial. In the alternative, it argues that
the court did not abuse its discretion in admitting the tape and that the Defendants were not
prejudiced.

Generally, relief is unavailable to “a party responsible for an error or who failed to
take whatever action was reasonably available to prevent or nullify the harmful effect of an
error.” T.R.A.P. 36(a). A party may not assert one basis for excluding evidence at the trial
and a different basis on appeal. State v. Adkisson, 899 S.W.2d 626, 635 (Tenn. Crim. App.
1994). Because Defendant Barry Smith failed to make a contemporaneous objection to the
admission of the 9-1-1 recording on any basis other than hearsay, he has waived his issue
concerning the recording’s relevance. See Tenn. R. Evid. 103(a)(1).

B. Defendant Barron Smith

Defendant Barron Smith argues that Tasha Allen’s 9-1-1 call was not an excited
utterance because she stated she was not at the house where the shooting occurred and that
her call was prejudicial, not harmless, because she was the only caller to name him as a
shooter. He also argues that the 9-1-1 recording was not properly authenticated because it
was admitted under the excited utterance exception, that the State only authenticated it as a
business record, and that the callers and the dispatchers were not identified.

Regarding Ms. Allen’s 9-1-1 call, as we discussed above, the trial court erred in
admitting Ms. Allen’s portion of the recording. Although Ms. Allen was the only caller to
identify one of the shooters by the name “Fat,” Martha Ann Gray, Ethel Gray, and Cynthia
Gray identified Defendant Barron Smith by his nickname, “Fat,” at the trial and testified that
he was one of the shooters. The error was harmless. See T.R.A.P. 36(b).

Regarding Defendant Barron’s argument that the hearsay statements were not
authenticated as excited utterances, we acknowledge that pursuant to Rule 901(b)(5) the
voices on the 9-1-1 tape could be identified “by opinion based upon hearing the voice at any
time under circumstances connecting it with the alleged speaker.” Tenn. R. Evid. 901(b)(5).
We note, though, that this provision of Rule 901 is an illustration only, not a limitation. Id.
The rule provides that the “requirement of authentication or identification as a condition
precedent to admissibility is satisfied by evidence sufficient to the court to support a finding
by the trier of fact that the matter in question is what its proponent claims.” Tenn. R. Evid.
901(a). Once this foundation is presented, the “‘trier of fact then makes the ultimate decision

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of whether the item is actually what it purports to be.’” State v. Hinton, 42 S.W.3d 113, 127
(Tenn. Crim. App. 2000) (quoting Cohen et al., § 901.1 at 613 (3d ed. 2005)).

Eddie Heaston testified that he was the custodian of the 9-1-1 recording. He
explained that the calls were recorded from the time the line was answered until the call was
disconnected and said the call recordings were kept for eighteen months. Before the
recording was played for the jury, he stated that he had listened to the recording of the calls,
that the calls were from August 8, 2009, and that the first call was made at 5:08 p.m. that day.
He stated during cross-examination that all the calls originated from cell phones in the area
of the address of the shooting. We believe that this evidence was sufficient for the trial court
to determine that the jury could find that the recording was of the 9-1-1 calls made
concerning the shooting on August 8, 2009. The jury was then free to determine whether the
recording was of the 9-1-1 calls involved in this case and the weight it should receive.

C. Defendant Julian Kneeland

Defendant Kneeland argues that contrary to the trial court’s ruling, the business record
exception is inapplicable to the 9-1-1 recording. He also argues that the trial court’s failure
to consider whether the declarants had personal knowledge was an abuse of discretion, that
the statements were irrelevant, and that the recording was prejudicial.

Regarding the argument that the business record exception is inapplicable to the 9-1-1
recording, we agree. To the extent the State argued and the trial court found that the 9-1-1
recording should be admitted pursuant to the business records exception to the hearsay rule,
the recording does not qualify for admission pursuant to that rule. See Tenn. R. Evid. 803(6).
The business records exception to the hearsay rule “specifically requires that the declarant
have ‘a business duty to record or transmit’ information.” Id., Advisory Comm’n Cmts.
Because the callers in the recording were the declarants of the statements, not the 9-1-1
supervisor or operators, who had a business duty, the recording would not have been
admissible under the business records exception. See Tony A. Phipps v. State, No. E2008-
01784-CCA-R3-PC, slip op. at 12 (Tenn. Crim. App. Oct. 11, 2010) (concluding that an
audio recording of a 9-1-1 call did not qualify for admission through the business records
exception to the hearsay rule because the declarant did not have a business duty to record or
transmit the information). In any event, the recording was properly admitted under the
excited utterance exception to the hearsay rule as stated above.

Regarding Defendant Kneeland’s argument that the trial court failed to consider the
declarants’ personal knowledge, “[t]he only competency requirement of an excited utterance
under Rule 803(2) is that the declarant must have had an opportunity to observe the facts
contained in the extrajudicial statement.” Land, 34 S.W.3d at 529. The personal knowledge

-21-
requirement applies to excited utterances. State v. Stanley Phillip Chapman, No. W2004-
02404-CCA-R3-CD, slip op. at 22 (Tenn. Crim. App. Nov. 2, 2005), perm. app. denied
(Tenn. Mar. 27, 2006).

The trial court found that the “individuals involved were really suffering from the
incident,” that “something horrible had happened at the house,” and that the recording
satisfied “all the requirements.” Mr. Heaston’s testimony shows that the calls were made
on the day and at the time of the shooting. A victim described by some of the callers as a
cousin was shot in her buttocks, and Ms. Irby, who was the cousin of many of the people in
the house, was shot in her buttocks. The record reflects that the court found the phone calls
were based on personal knowledge. The records supports the trial court’s findings.

Regarding Defendant Kneeland’s argument that the 9-1-1 recording was irrelevant,
relief is unavailable to “a party responsible for an error or who failed to take whatever action
was reasonably available to prevent or nullify the harmful effect of an error.” T.R.A.P. 36(a).
A party may not assert one basis for excluding evidence at the trial and a different basis on
appeal. Adkisson, 899 S.W.2d at 635. Because Defendant Kneeland failed to make a
contemporaneous objection to the admission of the 9-1-1 recording on any basis other than
hearsay, he has waived his issue concerning the recording’s relevance. See Tenn. R. Evid.
103(a)(1). We conclude that the trial court did not abuse its discretion.

III

The Defendants contend that the trial court erred in several ways during sentencing.
The State contends that the court properly sentenced the Defendants.

At the sentencing hearing, Defendant Barry Smith chose not to make a statement. His
family was present at the sentencing hearing to support him. Counsel said that the family and
Barry Smith were cooperative with him in getting the matter resolved and that he thought
Barry Smith regretted what happened. Counsel also stated that although Barry Smith was
in town at the time of the shooting, he had been away at school on a basketball scholarship
before he was arrested.

Defendant Barron Smith stated that he was sorry about what happened to the Gray
family and that he was not a violent person. He said that he had seven- and ten-year-old
daughters and that he needed to be released to be with them because he loved being a father.
He said he attended school in Arkansas and did not get into trouble. He said that he had a
drug conviction when he was eighteen years old, that he did not know much about the law
then, and that he “took the first thing so [he could] get back out” because he had a child. He
said that he did not commit the crimes the State alleged but that the jury convicted him. He

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said that he had been incarcerated for two years, that he needed to get out of jail, and that his
incarceration was hurting his “folks.” He said the basketball coach at LeMoyne-Owen
Community College wanted him to re-enroll in school and participate in the basketball
program. Four of Barron Smith’s family members were in the courtroom to support him
during sentencing.

Defendant Kneeland stated that he understood the jury convicted him but that he was
not the person the State portrayed because if he were, he would have had a record before the
current convictions. He said he had two daughters and a family willing to support him. He
said he was trying to return to his life. He apologized for the situation with the Gray family.
The court read nine letters of support for Kneeland, and his father, stepmother, and other
family members were in the courtroom to support him during sentencing. Counsel stated that
a job was available for Kneeland should the court sentence him to probation.

Ms. Irby testified that the incident had a tremendous impact on the life of her family.
She said that she knew the Defendants were not bad or violent people but that they should
be held accountable for their actions. She said the Defendants knew what they were doing
when they chose to use guns that day. She said her family moved from the neighborhood
after the shooting. She said that she lived with the incident everyday and that it was “by the
grace of God” that she was still alive. She said that she was shot and that she did not think
justice was being served.

The trial court noted that the offense was a “bad one” and that it was “mindful” of the
victims’ testimony. It stated that the Defendants continued to deny the charges but that a jury
had convicted them. The court found that the Defendants “really show[ed] a total disregard
for the value of human life,” that the facts of the case were “horrific,” and that the offenses
were “an act of terrorism, human terrorism.” The court also noted “the extreme nature of the
offenses.”

In enhancing the Defendants’ sentences, the trial court applied enhancement factor
(10) because the offenses involved victims other than those named in the indictments.
T.C.A. § 40-35-114(10) (“The defendant had no hesitation about committing a crime when
the risk to human life was high.”). It found that although the factor did not apply to
aggravated assault convictions when the victims were each identified in the indictment, the
factor was applicable when there were victims who were not named in the charges. The
court found that ten victims were identified in the indictments and that the trial testimony
showed more than ten people were in the house, including children and adults.

The trial court applied enhancement factor (8) to Defendant Barron Smith’s sentence
because he was on probation at the time he committed the present offenses. T.C.A. § 40-35-

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114(8) (“The defendant, before trial or sentencing, failed to comply with the conditions of
a sentence involving release into the community.”). The court found that “this enhancement
factor is applicable when the defendant is being sentenced for a crime committed while on
probation or some other form of sentencing involving release in the community.”

In determining consecutive sentencing was appropriate, the trial court relied on the
facts as presented by the victims and credited by the jury’s verdict. The court found that the
Defendants were dangerous, that their behavior indicated no regard for human life, and that
they showed no hesitation about committing a crime where the risk to human life was high.
It determined that the sentences without consecutive sentencing were “inadequate” and that
consecutive sentencing related to the seriousness of the offenses involved.

In denying probation, the trial court reviewed the enhancement factors, presentence
reports, facts and circumstances of the offenses, criminal history, and expectation of
rehabilitation. The court relied on the Defendants’ backgrounds and found the facts of the
offenses were “just too extreme.” The court noted the offense was “another one of those
cases involving gun violence in our neighborhood” and found probation would depreciate
the seriousness of the offenses and would not provide deterrence.

The trial court sentenced Defendant Barry Smith as a Range I, standard offender to
five years for each aggravated assault conviction, one year for the reckless endangerment
committed with a deadly weapon conviction, and eleven months, twenty-nine days for each
misdemeanor conviction. The court sentenced Defendant Barron Smith as a Range II,
multiple offender to seven years for each aggravated assault conviction, three years for the
reckless endangerment committed with a deadly weapon conviction, and eleven months,
twenty-nine days for each misdemeanor conviction. The court sentenced Defendant
Kneeland as a Range I, standard offender to four years for each aggravated assault
conviction, one year for the reckless endangerment committed with a deadly weapon
conviction, and eleven months, twenty-nine days for each misdemeanor conviction. For each
Defendant, the trial court merged the eight counts of reckless endangerment with the eight
counts of aggravated assault and ordered Count 5 to be served consecutively to the remainder
of the convictions, which were to run concurrently.

The Tennessee Supreme Court adopted the present standard of review for sentencing
in State v. Bise, 380 S.W.3d 682, 706 (Tenn. 2012). The length of a sentence “within the
appropriate statutory range [is] to be reviewed under an abuse of discretion standard with a
‘presumption of reasonableness.’” Id. at 708. In determining the proper sentence, the trial
court must consider: (1) any evidence received at the trial and 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, (5) any mitigating or

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statutory enhancement factors, (6) statistical information provided by the administrative
office of the courts as to sentencing practices for similar offenses in Tennessee, (7) any
statement that the defendant made on his own behalf, and (8) the potential for rehabilitation
or treatment. T.C.A. §§ 40-35-102, -103, -210; see State v. Ashby, 823 S.W.2d 166, 168
(Tenn. 1991); State v. Moss, 727 S.W.2d 229, 236 (Tenn. 1986).

Challenges to a trial court’s application of enhancement and mitigating factors are
reviewed under an abuse of discretion standard. Bise, 380 S.W.3d at 706. We must apply
“a presumption of reasonableness to within-range sentencing decisions that reflect a proper
application of the purposes and principles of our Sentencing Act.” Id. at 707. “[A] trial
court’s misapplication of an enhancement or mitigating factor does not invalidate the
sentence imposed unless the trial court wholly departed from the 1989 Act, as amended in
2005.” Id. at 706. “So 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.” Id.

A. Defendant Barry Smith

Defendant Barry Smith contends that the trial court erred in ordering two of his
aggravated assault convictions to run consecutively. He argues that he is not a dangerous
offender under Tennessee Code Annotated section 40-35-115(b)(4) and that the court failed
to analyze whether consecutive sentencing was needed to protect the public or related to the
severity of the offense.

In determining Defendant Barry Smith’s sentence, the trial court found no previous
felony convictions. The court noted that the presentence report showed he had four
misdemeanor convictions, that he did not finish high school but earned his GED, and that he
had listed one job, which could not be verified by the probation officer. The court applied
enhancement factor (10). T.C.A. § 40-35-114(10). He received an effective ten-year
sentence.

Regarding Defendant Barry Smith’s argument that the trial court erred in ordering
consecutive sentencing, the determination of concurrent or consecutive sentences is a matter
left to the discretion of the trial court and should not be disturbed on appeal absent an abuse
of discretion. State v. Blouvet, 965 S.W.2d 489, 495 (Tenn. Crim. App. 1997). Consecutive
sentencing is guided by Tennessee Code Annotated section 40-35-115(b) (2010), which
states, in pertinent part, that the court may order sentences to run consecutively if it finds by
a preponderance of the evidence that “[t]he defendant is a dangerous offender whose
behavior indicates little or no regard for human life and no hesitation about committing a
crime in which the risk to human life is high.” Id. § 40-35-115(b)(4). Our supreme court

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concluded that when the imposition of consecutive sentences is based on the trial court’s
finding the defendant to be a dangerous offender, the court must also find “that an extended
sentence is necessary to protect the public against further criminal conduct by the defendant
and that the consecutive sentences must reasonably relate to the severity of the offenses
committed.” State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995); see State v. Lane, 3
S.W.3d 456, 461 (Tenn. 1999).

The trial court noted the “horrific” facts and “the extreme nature of the offenses” and
determined that consecutive sentencing related to the seriousness of the offenses involved.
The record supports the court’s findings that the nature of the offenses was extreme and
consecutive sentencing was reasonably related to the severity of the offenses. See Lane, 3
S.W.3d at 461. Although the court made no specific finding that the public needed
protection from Defendant Barry Smith’s further criminal conduct, we conclude that the
record supports the trial court’s imposition of consecutive sentencing. After an argument
between one of the Defendants and Darryl Gray, Barry Smith and his codefendants shot
handguns multiple times into a house occupied by more than ten people, including young
children, and struck one victim. His conduct warrants a finding that the sentences are
necessary to protect the public. We determine that the record supports the imposition of
consecutive sentences because Barry Smith is a dangerous offender, the sentences reasonably
relate to the severity of the offenses, and the sentences are necessary to protect the public.

B. Defendant Barron Smith

Defendant Barron Smith contends that the trial court erred in its application of
enhancement factors. He also contends that the court erred in ordering two of his aggravated
assault convictions to run consecutively because it did not consider public protection or the
severity of the offense. He argues the court made its determination based on what could have
happened instead of what actually happened.

In determining Defendant Barron Smith’s sentence, the trial court found that he was
a Range II, multiple offender because he had two previous felony convictions. The court
applied enhancement factors (8) and (10). T.C.A. § 40-35-114(8), (10). The court noted that
his presentence report included an inmate disciplinary report showing he was found guilty
of assaulting another inmate while in jail, that he dropped out of school, that he had smoked
marijuana but had allegedly quit, and that no employment information was provided. He
received seven years for each aggravated assault conviction, three years for the reckless
endangerment committed with a deadly weapon conviction, and eleven months, twenty-nine
days for each misdemeanor conviction. The court ordered two of the aggravated assault
convictions to run consecutively and the remainder of the convictions to run concurrently.

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 Defendant Barron Smith argues that the trial court erred in applying enhancement
factor (10). He argues that high risk to human life and potential for bodily injury were
inherent to the offenses of aggravated assault and reckless endangerment and could not be
used to enhance his sentence. Enhancement factor (10) is generally inapplicable to an
aggravated assault conviction because “there is necessarily a risk to human life and the great
potential for bodily injury whenever a deadly weapon is used.” State v. Nix, 922 S.W.2d 894,
903 (Tenn. Crim. App. 1995). However, this court has concluded that when factor (10) is
inherent in the offense against the victim, it may apply if a person other than the victim was
in the area of risk. State v. Zonge, 973 S.W.2d 250, 259 (Tenn. Crim. App. 1997). The trial
court found that ten victims were identified in the indictments and that the trial testimony
showed more than ten people were in the house, including children and adults. The record
supports the court’s findings.

Defendant Barron Smith argues that everyone in the house was a victim named in the
indictment because Count 42 identified the victims as “Martha Gray, Cynthia Gray, and the
Children of the Gray family.” The indictment says “children.” The record shows that in
addition to the named victims, other adults, not only children, were at the house during the
shooting. Even if the description “children of the Gray family” was broadly interpreted to
mean all those present who were part of the extended Gray family, Martha Ann Gray said
that a child of a family friend hid in a dresser drawer. Cynthia Gray said that a woman
named Tasha, who was “Shell’s” friend, was at the house. Both of these victims are
identified as friends, not members of the Gray family. The trial court properly applied factor
(10).

Defendant Barron Smith argues that the trial court erred in applying enhancement
factor (8) because his failure to comply with the conditions of a sentence was based on his
being charged with the present offense. He argues that factor (8) should only apply when a
defendant has failed to comply with a condition of a sentence involving a release into the
community that is not the subject offense and that factor (13)(C) applies when the defendant
commits an offense while on probation. See T.C.A. § 40-35-114(8), (13)(C) (“At the time
the felony was committed, one (1) of the following classifications was applicable to the
defendant . . . Released on probation”).

Enhancement factor (8) contemplates a previous history of unwillingness to abide by
the conditions of release status and, therefore, cannot be triggered solely by the commission
of the offense for which the defendant is being sentenced. State v. Hayes, 899 S.W.2d 175,
186 (Tenn. Crim. App. 1995). The trial court improperly applied factor (8). However,
enhancement factor (13)(C) specifically addresses the enhancement of a sentence for a felony
committed while a defendant is on probation. Defendant Barron Smith concedes that factor
(13)(C) applies. The court’s misapplication of factor (8) does not invalidate the sentence

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because other reasons consistent with the purposes and principles of sentencing support the
within-range sentence. See Bise, 380 S.W.3d at 706.

Regarding Defendant Barron Smith’s argument that the trial court erred in ordering
consecutive sentencing, as noted above, the circumstances of the offense support the court’s
finding that Barron Smith is a dangerous offender whose behavior indicated little or no
regard for human life and had no hesitation about committing an offense when the risk to
human life was high. The record supports the court’s finding that consecutive sentencing
was reasonably related to the severity of the offenses, which is reflected in its determination
that consecutive sentencing related to the seriousness of the offenses involved. See Lane, 3
S.W.3d at 461. Although the court made no specific finding that the public needed
protection from Barron Smith’s further criminal conduct, we conclude that the record
supports the trial court’s imposition of consecutive sentencing. As stated above, after an
argument between one of the Defendants and Darryl Gray, Barron Smith and his
codefendants shot handguns multiple times into a house occupied by more than ten people,
including young children, and struck one victim. Further, according to an inmate disciplinary
report in the record, Barron Smith assaulted another inmate while incarcerated for the current
offenses, indicating he committed more violent acts. His conduct warrants a finding that the
sentences are necessary to protect the public. We determine that the record supports the
imposition of consecutive sentences because Barron Smith is a dangerous offender, the
sentences reasonably relate to the severity of the offenses, and the sentences are necessary
to protect the public.

C. Defendant Julian Kneeland

Defendant Julian Kneeland contends that the trial court erred in enhancing his
sentence under enhancement factor (10). He argues that risk to human life is inherent in the
offense of aggravated assault and that although the factor applies to people other than the
victims named in the indictment, Count 42 included “children of the Gray family.” He
argues that because the shooting occurred during a family barbecue, the people at the house
were children of the Gray family and that no proof established that at least one person was
not a family member and was in the zone of danger. He also contends that the court erred
in ordering two of his aggravated assault convictions to run consecutively because he was
a dangerous offender without making the required factual findings that consecutive
sentencing was necessary to protect the public and related to the seriousness of the offense.

In determining Defendant Kneeland’s sentence, the trial court found that he had
several misdemeanor convictions, that he had finished high school and attended some
college, and that he had held several jobs for various amounts of time. It took note of several
letters of support it received on the Defendant’s behalf. The court applied enhancement

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factor (10). T.C.A. § 40-35-114(10). He received four years for each aggravated assault
conviction, one year for the reckless endangerment committed with a deadly weapon
conviction, and eleven months, twenty-nine days for each misdemeanor conviction. The
court ordered two of the aggravated assault convictions to run consecutively and the
remainder of the convictions to run concurrently.

Regarding Defendant Kneeland’s argument that the trial court erred in applying
enhancement factor (10), this court has concluded that when factor (10) is inherent in the
offense against the victim, it may apply if a person other than the victim was in the area of
risk. Zonge, 973 S.W.2d at 259. Ten victims were identified in the indictment, and trial
testimony showed more than ten people were in the house, including children and adults,
during the shooting. The language in Count 42 identifying the victims as “Martha Gray,
Cynthia Gray, and the Children of the Gray family” does not preclude the application of
factor (10). The record shows that in addition to the victims named in the indictment, other
adults, not only children, were at the house and that at least two victims named in testimony
but not in the indictment were identified as friends of the Gray family. The trial court
properly applied enhancement factor (10).

Regarding Defendant Kneeland’s argument that the trial court erred in ordering
consecutive sentencing, we conclude that the court properly imposed consecutive sentences.
As noted above, the circumstances of the offense support the court’s finding that he is a
dangerous offender whose behavior indicated little or no regard for human life and no
hesitation about committing an offense when the risk to human life was high. The record
supports the court’s finding that consecutive sentencing was reasonably related to the severity
of the offenses. Although the court made no specific finding that the public needed
protection from Kneeland’s further criminal conduct, we conclude that the record supports
the court’s imposition of consecutive sentencing. After an argument between one of the
Defendants and Darryl Gray, Kneeland and his codefendants shot handguns multiple times
into a house occupied by more than ten people, including young children, and struck one
victim. His conduct warrants a finding that the sentences are necessary to protect the public.
We determine that the record supports the imposition of consecutive sentences because
Kneeland is a dangerous offender, the sentences reasonably relate to the severity of the
offenses, and the sentences are necessary to protect the public.

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 In consideration of the foregoing and the record as a whole, we affirm the Defendants’
convictions except the aggravated assault convictions in Count 21, which we reverse and
dismiss. We vacate the judgments for the remaining aggravated assault and reckless
endangerment convictions and remand the case to the Shelby County Criminal Court for
entry of a single judgment for each aggravated assault conviction, noting merger of the
reckless endangerment convictions.

____________________________________
JOSEPH M. TIPTON, PRESIDING JUDGE

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