State of Tennessee v. Joshua L. Carter and Adonis Lashawn McLemore

• Court: Court of Criminal Appeals of Tennessee
• Decided: June 26, 2015
• Docket: M2014-00767-CCA-R3-CD
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs April 22, 2015

STATE OF TENNESSEE v. JOSHUA L. CARTER AND ADONIS LASHAWN MCLEMORE

Appeal from the Criminal Court for Davidson County Nos. 2011-B-1648 & 2011-D-3013 Mark J. Fishburn, Judge

No. M2014-00767-CCA-R3-CD – Filed June 26, 2015

Appellant Joshua L. Carter was convicted in case 2011-B-1648 of the sale of less than .5 grams of cocaine in a drug-free zone, a Class B felony; possession with the intent to sell or deliver more than .5 grams of cocaine in a drug-free zone, a Class A felony; simple possession of marijuana, a Class A misdemeanor; and evading arrest, a Class A misdemeanor. As a Range II, multiple offender, his effective sentence in case 2011-B- 1648 was forty years. Appellant Carter was convicted in case 2011-D-3013 of felony murder; attempted especially aggravated robbery, a Class B felony; and voluntary manslaughter, a Class C felony that the trial court merged with the felony murder conviction. For these offenses, appellant Carter received an effective life sentence, consecutive to his effective forty-year sentence in case 2011-B-1648. Appellant McLemore was convicted in case 2011-D-3013 of facilitation of especially aggravated robbery, a Class B felony, and facilitation of felony murder, a Class A felony. Appellant McLemore, as a Range III, persistent offender, received an effective sentence of fifty years. On appeal, appellant Carter argues that evidence was insufficient to support his convictions in both cases and that in case 2011-D-3013, the trial court erred under Tennessee Rule of Evidence 609 by allowing the State to impeach him with a prior conviction for selling drugs. Appellant McLemore argues that the evidence was insufficient to support his convictions. Following 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

ROGER A. PAGE, J., delivered the opinion of the court, in which ALAN E. GLENN, J., joined. JOHN EVERETT WILLIAMS, J., filed a separate, concurring opinion.

Dwight E. Scott, Nashville, Tennessee, for the appellant, Joshua L. Carter. Kyle Fite Mothershead (on appeal); and Jay Norman (at trial), Nashville, Tennessee, for the appellant Adonis LaShawn McLemore.

Herbert H. Slatery III, Attorney General and Reporter; Clarence E. Lutz, Senior Counsel; Victor S. Johnson III, District Attorney General; and Sarah N. Davis and Janice Norman, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

This appeal involves two separate cases, 2011-B-1648 (“1648”) and 2011-D-3013

(“3013”), with appellant Joshua L. Carter as the defendant.1 Appellant Adonis LaShawn

McLemore was appellant Carter‟s co-defendant in Case 3013, and his appeal was

consolidated by order of this court with appellant Carter‟s appeal. Case 1648 stemmed

from an undercover operation by the Metro Nashville Police Department investigating

drug trafficking in Nashville that resulted in the Davidson County grand jury‟s indicting

appellant Carter for selling less than .5 grams of cocaine in a drug-free zone; possession

with intent to sell or deliver more than .5 grams of cocaine in a drug-free zone; simple

possession of marijuana; possession of drug paraphernalia; and evading arrest. Case

3013 stemmed from an encounter between appellants Carter and McLemore and murder

victim Jordan Gardner across the street from the Out of Bounds nightclub in Nashville

that resulted in the grand jury‟s indicting appellant Carter for premeditated murder and

both appellant Carter and appellant McLemore for especially aggravated robbery and

felony murder.

1 There is no order in the record consolidating appellant Carter‟s two cases for appeal; thus, we conclude that consolidation was inadvertent. -2- I. Facts Related to Case 1648

Metro Nashville Police Detective Jeremy Smith testified that on March 4, 2011, he

was the undercover officer in a “buy-bust” narcotics operation. He explained that a “buy-

bust” operation involves an undercover officer who purchases drugs, a “close-cover”

team that surveils the situation for the officer‟s safety, and a “take-down” team that

arrests the drug dealer after the purchase. The undercover officer would wear a listening

device that transmitted audio to other members of the team but did not record audio.

Detective Smith testified that for the March 4, 2011 operation, he was posing as a drug

user. He approached Purvis Edwards in a tobacco store parking lot to ask for a lighter.

Mr. Edwards entered Detective Smith‟s car, and Detective Smith asked Mr. Edwards

whether he had a “twenty” or could get him a “twenty.” Detective Smith explained that a

“twenty” was $20 worth of crack cocaine. Mr. Edwards responded that he could take the

detective to get the drugs but wanted to go to a Money Gram store first. Prior to going to

the Money Gram store, Mr. Edwards called someone and told that person that he wanted

two “twenties.”

Detective Smith testified that he took Mr. Edwards to the Money Gram store, and

when Mr. Edwards returned to Detective Smith‟s car, he made another telephone call,

this time saying that he was on his way. Mr. Edwards directed Detective Smith to the

Cee Bee Food Store on Lafayette Street and Charles E. Davis Boulevard. Detective

-3- Smith parked and gave Mr. Edwards two $5 bills and one $10 bill, all of which had been

previously photocopied. Mr. Edwards walked towards the store and out of Detective

Smith‟s sight. When Mr. Edwards returned to the car, he gave back to Detective Smith

the $20, saying that he could not make the drug purchase “because the vice was out.”

Detective Smith explained that meant someone in the area had seen police officers. Mr.

Edwards made another telephone call, again asking for two “twenties,” as Detective

Smith was driving away from Cee Bee Food Store. Mr. Edwards directed Detective

Smith to return to the food store. Mr. Edwards took the previously-photocopied money

from Detective Smith and walked to the front corner of the store. Detective Smith

testified that Mr. Edwards met a black male wearing a black, long-sleeved shirt and a

“gray puffy-like . . . jacket with no sleeves.” Detective Smith said that an obstruction

prevented him from seeing their hands. The two men were together for approximately

thirty seconds, and then Mr. Edwards returned to Detective Smith‟s car. Mr. Edwards

showed Detective Smith several loose white rocks in his hand, which he then gave to the

detective. Detective Smith testified that having a small amount of drugs loose and held in

a hand rather than in a bag was typical because drug dealers would break off a piece of a

larger rock of crack cocaine to give it to the buyer. When he had the drugs in his hand,

Detective Smith gave a signal to other officers to begin the “take-down.” He said that

appellant Carter ran towards the J.C. Napier housing project, where he was taken into

custody.

-4- Detective Smith testified that in connection with the buy-bust operation, the police

collected a large rock of cocaine, several small rocks of cocaine, and marijuana separated

into small bags. Detective Smith further testified that the police collected $215 in

currency from appellant Carter, including the two $5 bills and the one $10 bill that

Detective Smith had previously photographed and had given to Mr. Edwards.2

On cross-examination, Detective Smith said that he did not remember testifying in

a January 2012 proceeding that he saw appellant Carter place something in Mr. Edwards‟

hand. He stated that the January statement was “true and correct” because it was closer

to the date of the operation. Detective Smith agreed that he did not give a description of

appellant Carter to other officers and explained that other officers watching the scene

would have given that description. Detective Smith testified that he did not see appellant

Carter throw anything on the ground before his arrest and did not see his arrest. He said

that one would not find drugs just lying on the ground in that general area. Detective

Smith could not remember whether Mr. Edwards, after being arrested, asked where the

person was who had sold him the drugs.

On re-direct examination, Detective Smith clarified that he saw hand movements

between appellant Carter and Mr. Edwards but that he did not see the actual items being

exchanged. Detective Smith testified that he was familiar with the area where the buy-

2 Because chain of custody is not an issue on appeal, we have omitted all testimony relating to chain of custody. -5- bust operation had occurred and had conducted routine walking patrols around the J.C.

Napier housing project. He had never seen drugs lying on the ground.

David Kline testified that he managed the mapping division at the Metro Nashville

Planning Department and that as part of his duties he created 1,000 feet drug-free zones

around certain properties. For purposes of appellant Carter‟s trial, he had created a map

showing Cameron Middle School, the drug-free zone around the school, and Cee Bee

Food Store. He testified that he was familiar with Cameron Middle School on a personal

level because he tutored there twice weekly, including the time that the buy-bust

operation occurred; therefore, he knew that the middle school was “an opening and

functioning” public school.

Tennessee Bureau of Investigation (“TBI”) Special Agent forensic scientist

Cassandra Ann Franklin-Beavers testified that she weighed and tested the substances

given to her in relation to this case. Two substances were cocaine base, also known as

crack cocaine, one of which weighed 2.52 grams and the other 0.3 grams. The third

substance was marijuana. While Agent Franklin-Beavers did not testify about the weight

of the marijuana, her laboratory report, entered as an exhibit to the trial, indicated that the

marijuana weighed 4.5 grams.

-6- Purvis Lee Edwards, an indicted co-defendant in this case, testified that he had

numerous prior convictions, including four misdemeanor theft convictions, two felony

forgery convictions, two misdemeanor fraudulent use of a credit card convictions, and

three possession of less than .5 grams of cocaine convictions. He said that the drug and

theft convictions were related to his drug use. Mr. Edwards testified that in March 2011,

he had been living in a hotel after being released from incarceration. On the day in

question, his brother had sent him a Money Gram to help him pay for rent, but Mr.

Edwards did not have a way to get to the Money Gram store to retrieve the money. He

was walking to a nearby store when a white man in a vehicle, Detective Smith, stopped

him to ask if he knew where to get “D,” which Mr. Edwards explained meant “dope.”

Mr. Edwards responded affirmatively and asked for a ride to the Money Gram store.

Detective Smith drove him to the Money Gram store and then back to Cee Bee Food

Store. Mr. Edwards testified that he wanted to simply pay Detective Smith for the ride

and leave but that the man reminded him about getting drugs. Mr. Edwards said that he

walked around the block, returned to Detective Smith, and told him that there were no

drugs because “vice was out.” Mr. Edwards stated that he had not made a real effort to

find any drugs at that point but that he reconsidered when Detective Smith pointed out

that he would have already gotten the drugs he wanted if he had not taken Mr. Edwards to

the Money Gram store. Mr. Edwards testified that he then made a concerted effort to find

drugs, so he called several people, including appellant Carter. When he asked appellant

Carter if he was in the area, appellant Carter responded that he was “right here.” Mr.

-7- Edwards testified that he met appellant Carter in front of the check cashing store directly

next to Cee Bee Food Store and that they walked together to the front of Cee Bee Food

Store. Mr. Edwards said that he asked appellant Carter for two “dimes,” or two $10

pieces of crack cocaine. Mr. Edwards testified that he and appellant Carter exchanged

money for the drugs and that he returned to Detective Smith‟s vehicle. He gave

Detective Smith all of the cocaine and was subsequently arrested. Mr. Edwards testified

that the Thursday before appellant Carter‟s trial began, the two men were in a holding

cell awaiting a court date when appellant Carter told Mr. Edwards that he wanted him to

give appellant Carter‟s attorney a version of events with which Mr. Edwards disagreed.

Mr. Edwards said that appellant Carter wrote down that he wanted Mr. Edwards to say

that he had given appellant Carter the “marked” money in exchange for a $20 bill and

that Detective Smith had been parked on the side of the building where he could not have

seen their transaction. Mr. Edwards said that he recalled Detective Smith being parked

directly behind the men.

On cross-examination, Mr. Edwards testified that appellant Carter had written

down the information for him; however, Mr. Edwards tore up the paper and flushed it

down a toilet. He said that he had a change of heart and did not want to start a new life

with a lie. Mr. Edwards agreed that he gave appellant Carter money and that appellant

Carter gave him drugs. Mr. Edwards also confirmed that when both men were arrested,

he asked the police officers where the man was who had sold him the drugs and said that

-8- appellant Carter was not the man. Mr. Edwards stated that he was lying when he said

that to the police and that he “was actually laying a foundation for Mr. Carter to build

upon later because he was [Mr. Edwards‟] drug dealer at that time.”

Metro Nashville Police Detective Marcel Chalou testified that on March 4, 2011,

he was providing “close cover” for Detective Smith in the buy-bust operation, meaning

that he was in an unmarked car close to Detective Smith. Detective Chalou said that he

was parked in the Cee Bee Food Store parking lot and watched Mr. Edwards approach

appellant Carter. He testified that he saw a “hand-to-hand transaction” and described

exactly what he observed: “I see Mr. Edwards, his hands go as if he‟s passing something

to Mr. Carter, then I see them, they‟re looking down, I see Mr. Edwards‟ hand is out flat

and Mr. Carter, what I viewed is him placing something in Mr. Edwards‟ hands.”

Detective Chalou said that he relayed appellant Carter‟s description to the rest of the team

— “short male black, blue jeans, black shirt, gray puffy vest.” After both appellant

Carter and Mr. Edwards were taken into custody, Detective Chalou looked at both of

their telephones and saw that Mr. Edwards had called appellant Carter.

On cross-examination, Detective Chalou testified that he followed appellant Carter

across Lafayette Street into the J.C. Napier housing project but that he turned right

instead of following directly behind appellant Carter in an attempt to intercept him.

Detective Chalou said that he did not see appellant Carter discard anything. Detective

-9- Chalou further said that he had seen drugs on the ground in that neighborhood but that

there was “[g]enerally . . . a reason why.” He stated that he had never “just randomly

come up, been walking down the street and found [a] bag of drugs.” Detective Chalou

could not recall citizens being in the immediate area of appellant Carter‟s arrest but

believed that some people were around the buildings nearby.

Metro Nashville Police Detective Steven Jenkins testified that he was on the “take-

down” team involved in the March 4, 2011 buy-bust operation that resulted in appellant

Carter‟s arrest. He said that in his experience, he had learned that oftentimes suspects

would try to hide from police in the housing projects. On March 4, he tried to position

himself and his partner, Detective Robert Young, for the likelihood of a foot pursuit. He

recalled hearing Detective Chalou‟s description of appellant Carter over the radio. After

receiving the description, Detective Young exited their vehicle in an attempt to cut off

appellant Carter. Detective Jenkins said that he parked the car and followed Detective

Young. He saw appellant Carter running down a hill. Detective Young first encountered

appellant Carter, and appellant Carter attempted to reverse course. Detective Jenkins

chased after him, and he saw appellant Carter throw a baggy. The baggy hit a brick wall

and fell to the ground. Detective Jenkins said that he was only three to four feet away

from appellant Carter at that point and then took him into custody. Detective Young

recovered the bag soon thereafter. Detective Jenkins testified that after he was arrested,

appellant Carter made a statement that he knew he should not have been selling because

-10- he had seen “the white girl,” which Detective Jenkins interpreted to mean Detective Dills,

a female detective on the take-down team that day.

Detective Young corroborated Detective Jenkins‟ testimony. He added that the

bag discarded by appellant Carter contained crack cocaine and marijuana. Detective

Young searched appellant Carter and found over $200 in currency. Detective Young said

that he was carrying a photocopy of the buy money used in the operation and was able to

confirm on the scene that appellant Carter‟s currency included the bills used as buy

money. On cross-examination, Detective Young stated that he believed he and Detective

Jenkins exited the car at the same time. He was not sure whether appellant Carter had

retrieved the bag from a pocket or whether it had been in his hand.

After Detective Young‟s testimony, the State rested its case-in-chief. Thereafter,

appellant Carter moved for a judgment of acquittal on all counts. The trial court granted

the judgment of acquittal for the drug paraphernalia count after the State conceded it had

not presented proof to support that charge. The trial court otherwise denied appellant

Carter‟s motion. Appellant Carter did not put on any proof. Subsequently, the jury

convicted appellant Carter of the sale of less than .5 grams of cocaine in a drug-free zone,

a Class B felony; possession with the intent to sell or deliver more than .5 grams of

cocaine in a drug-free zone, a Class A felony; simple possession of marijuana, a Class A

misdemeanor; and evading arrest, a Class A misdemeanor. The trial court found that

-11- appellant Carter was a Range II, multiple offender. It sentenced him to concurrent terms

of forty years (twenty-year mandatory minimum to serve) for the Class A felony; twenty

years (twelve-year mandatory minimum to serve) for the Class B felony; and eleven

months, twenty-nine days for each Class A misdemeanor.

II. Analysis — Case 1648

Appellant Carter contends that the evidence was insufficient to support his

convictions in case 1648. Specifically, he argues that the jury should have disregarded all

impeached testimony and claims that the testimony of appellant Carter‟s accomplice was

uncorroborated. The State responds that it met its burden of proving each element of the

offenses beyond a reasonable doubt. We agree with the State.

The standard for appellate review of a claim challenging the sufficiency of the

State‟s evidence 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) (citing

Johnson v. Louisiana, 406 U.S. 356, 362 (1972)); see Tenn. R. App. P. 13(e); State v.

Davis, 354 S.W.3d 718, 729 (Tenn. 2011). To obtain relief on a claim of insufficient

evidence, appellant must demonstrate that no reasonable trier of fact could have found the

essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at

-12- 319. This standard of review is identical whether the conviction is predicated on direct or

circumstantial evidence, or a combination of both. State v. Dorantes, 331 S.W.3d 370,

379 (Tenn. 2011); State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977).

On appellate review, “„we afford the prosecution the strongest legitimate view of

the evidence as well as all reasonable and legitimate inferences which may be drawn

therefrom.‟” Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857

(Tenn. 2010)); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage,

571 S.W.2d 832, 835 (Tenn. 1978). In a jury trial, questions involving the credibility of

witnesses and the weight and value to be given the evidence, as well as all factual

disputes raised by the evidence, are resolved by the jury as trier of fact. State v. Bland,

958 S.W.2d 651, 659 (Tenn. 1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).

This court presumes that the jury has afforded the State all reasonable inferences from the

evidence and resolved all conflicts in the testimony in favor of the State; as such, we will

not substitute our own inferences drawn from the evidence for those drawn by the jury,

nor will we re-weigh or re-evaluate the evidence. Dorantes, 331 S.W.3d at 379;

Cabbage, 571 S.W.2d at 835; see State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).

Because a jury conviction removes the presumption of innocence that appellant enjoyed

at trial and replaces it with one of guilt at the appellate level, the burden of proof shifts

from the State to the convicted appellant, who must demonstrate to this court that the

evidence is insufficient to support the jury‟s findings. Davis, 354 S.W.3d at 729 (citing

-13- State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011)).

Appellant Carter was convicted of selling less than .5 grams of cocaine in a drug-

free zone; possessing with the intent to sell or deliver more than .5 grams of cocaine in a

drug-free zone; simple possession of marijuana; and evading arrest. In order to support

his convictions, the State had to prove that appellant Carter sold cocaine in an amount

less than .5 grams within 1,000 feet of a school, see Tennessee Code Annotated sections

39-17-417(a)(3), -417(b)(2), -432(b)(1); that he possessed with the intent to sell or deliver

more than .5 grams of cocaine within 1,000 feet of a school, see Tennessee Code

Annotated sections 39-17-417(a)(4), -417(b)(1), -432(b)(1); that he knowingly possessed

a controlled substance, see Tennessee Code Annotated section 39-17-418(a); and that he

intentionally fled from a person he knew to be a law enforcement officer when he knew

the law enforcement officer was attempting to arrest him, see Tennessee Code Annotated

section 39-16-603(a)(1)(A).

Viewed in the light most favorable to the State, the evidence presented at appellant

Carter‟s trial showed that Purvis Edwards called him to purchase cocaine; that he met Mr.

Edwards in front of a store; that he gave Mr. Edwards .3 grams of cocaine in exchange

for twenty dollars; that the exchange took place within 1,000 feet of a school; that he ran

away from the police when they attempted to arrest him; that he had the previously

photocopied money from Detective Smith on his person; and that he threw down, in the

-14- presence of two officers, a bag containing 4.5 grams of marijuana and 2.52 grams of

cocaine. On appeal, appellant Carter contends that due to discrepancies in Detective

Smith‟s testimony at trial and testimony at a prior proceeding, the jury should have

dismissed Detective Smith‟s testimony entirely. Likewise, he claims that the jury should

have disregarded Mr. Edwards‟ testimony because of his prior convictions. In both

situations, the issue is a matter of credibility, which is in the purview of the jury. Bland,

958 S.W.2d at 659. As such, we will not re-visit the issue. Dorantes, 331 S.W.3d at 379.

Appellant also argues that Mr. Edwards‟ testimony was not corroborated; however, the

only portion of Mr. Edwards‟ testimony about which he complains was Mr. Edwards‟

assertion that appellant Carter attempted to influence Mr. Edwards‟ testimony prior to

trial. While it is true that “a conviction may not be based solely upon the uncorroborated

testimony of an accomplice to the offense,” State v. Bane, 57 S.W.3d 411, 419 (Tenn.

2001), appellant Carter was not tried for any offense relating to this portion of Mr.

Edwards‟ testimony. The portions of Mr. Edwards‟ testimony that related directly to

appellant were corroborated by two police officers who were eyewitnesses to the

transaction. Taking all of this evidence and appellant‟s arguments into consideration, we

conclude that the State presented sufficient evidence to convict appellant Carter of the

sale of less than .5 grams of cocaine in a drug-free zone; possession with the intent to sell

or deliver more than .5 grams of cocaine in a drug-free zone; simple possession of

marijuana; and evading arrest.

-15- III. Facts Related to Case 3013

Metro Nashville Police Officer Zachary Grunow testified that on May 6, 2011, he

responded to a shooting on Murfreesboro Road, specifically in a parking lot of a law firm

that was across the street from the Out of Bounds Sports Bar. Officer Grunow said that

the victim was already deceased when he arrived and that the victim was lying between

two vehicles, a green Honda and a white Pontiac. Officer Grunow stated that the officers

on the scene were securing the scene and interviewing witnesses. For his part, he

conducted a preliminary interview of Jay Artis.

On cross-examination, Officer Grunow testified that he arrived at the scene

between 2:00 and 3:00 a.m. He said that the parking lot was lit by street lights but did

not know whether the police had provided additional lighting by the time a photograph of

the scene was taken. Officer Grunow testified that Mr. Artis gave him a description of

the suspects and that his report reflected that the description of one suspect was “a male

black approximately 5′7, wearing a white T-shirt with writing on it.” The second suspect

was described as “a male black approximately 5′9[,] wearing a plain black T-shirt and a

light blue hat.”

Jay Artis testified that on May 5, 2011, he and the victim, Jordan Gardner, whom

he had known for approximately one year, went to Out of Bounds. Before they went to

-16- the club, they each obtained a one hundred dollar bill that they wrapped around several

one dollar bills, to make it seem as if they had more money than they did. At the club,

they sat in a booth with two women. While he could not remember the name of either, it

is clear from other testimony that one of the women was Pamela Jenkins, an indicted co-

defendant in this case. Mr. Artis recalled that he and the victim stayed together all night

but that Ms. Jenkins came and went. He remembered that she made several telephone

calls, but he said that he never heard her telephone conversations. Mr. Artis testified that

he and the victim flashed their rolls of money at times. At closing time, the victim left

the club with Ms. Jenkins, and Mr. Artis followed them. Mr. Artis said that the victim

told him there was a woman outside for Mr. Artis to meet. Ms. Jenkins told Mr. Artis

that the woman was her sister, and other testimony reveals that the woman was Jessica

Rucker. Mr. Artis entered Ms. Rucker‟s car, and she drove across the street to the lot

where Mr. Artis and the victim had parked. Ms. Jenkins and the victim walked to the lot.

Mr. Artis testified that the victim and Ms. Jenkins were talking outside of Ms. Rucker‟s

car, and he was talking to Ms. Rucker inside her car. He said that he then saw the victim

struggling with a man. The victim and the man moved to the back of the car during their

struggle, and Mr. Artis opened the door to get out and help the victim. He testified that

the victim managed to push the man away but that the man drew a gun and shot the

victim twice. Mr. Artis described the shooter as short and as having facial hair. At that

point, Mr. Artis said that he saw a second man behind the shooter wearing a light blue

cap. Mr. Artis said that later, the police showed him several sets of photographs. He

-17- identified both the shooter and the second man in those photographs. For the shooter,

Mr. Artis said that he was one hundred percent sure of his identification in the

photograph array, and he also identified appellant Carter from the witness stand as the

shooter. For the second man, Mr. Artis said that he was eighty percent sure of his

identification in the photograph array, and Mr. Artis identified appellant McLemore in

the courtroom as the second man involved in the shooting. Mr. Artis identified the

photograph array that the police showed to him and on which he had circled the fifth

photograph. He had also written on the array, “Number 5 is the shooter 100%.” Mr.

Artis also identified a second photograph array on which he had circled the first

photograph and written, “I feel 80% sure he was behind the shooter.”

On cross-examination, Mr. Artis testified that the second person never said

anything. He agreed that it was possible the second person was not involved. He said

that both the shooter and the second person ran behind a building after the victim was

shot. Mr. Artis testified that the second person was 5′10″ or 5′11″. He said that the

shooter‟s facial hair was a thin beard.

Metro Nashville Police Detective Johnny Ray Crumby, Jr., testified that he

responded to the scene of the shooting on May 6, 2011. While at the scene, he was

notified that the police had stopped a black male in a white vehicle because a security

guard had reported seeing a white vehicle leaving the area of the shooting at a rapid

-18- speed. Detective Crumby talked to the driver of the white vehicle who reported that he

had driven away so quickly because he heard the shooting and was scared. Detective

Crumby also had Mr. Artis view the driver to determine whether he was involved, and

Mr. Artis said that he was not. Detective Crumby testified that he assisted Detective

Andrew Injaychock in interviewing Mr. Artis at the police station. Mr. Artis reported to

them that the shooter was 5′6″ or 5′7″ and that the second man was 5′10″ or 5′11″.

Detective Crumby testified that during the investigation, he obtained appellant Carter‟s

cellular telephone records and looked at the numbers he called around the time of the

shooting. He also received a lead that a man named Shawn was involved, so he began

dialing numbers listed in appellant Carter‟s records to determine whether any of those

numbers belonged to Shawn. When he successfully connected to appellant McLemore,

he arranged to meet with him. He confirmed that the number listed in appellant Carter‟s

telephone belonged to appellant McLemore.

Jessica Rucker testified that Pamela Jenkins was her cousin. In May 2011, Ms.

Jenkins and her children lived with Ms. Rucker. Ms. Rucker recalled that she had been

concerned at the time that Ms. Jenkins was abusing prescription pain medication. Ms.

Rucker testified that on May 5, 2011, she dropped Ms. Jenkins off at a store so that Ms.

Jenkins could go to a club with a friend. She then picked up Ms. Jenkins‟ child from her

mother‟s house and gave a ride to a friend called “Boo-Master” and his girlfriend. Ms.

Rucker said that Ms. Jenkins called her from the club and told her about a man there with

-19- a lot of money. Ms. Rucker said that the man was the victim. Ms. Jenkins asked Ms.

Rucker to call Boo-Master about coming to the club. Ms. Rucker testified that she

interpreted the conversation to mean that Ms. Jenkins wanted Boo-Master to come to the

club to rob the man. Ms. Rucker stated that she was unable to contact Boo-Master. She

said that Ms. Jenkins called her again close to the club‟s closing time so that Ms. Rucker

could pick her up. Ms. Rucker testified that she was driving Ms. Jenkins‟ white Pontiac

Grand Prix. Ms. Rucker went to the club, and Ms. Jenkins exited the club with two men,

one of whom was the victim. Ms. Jenkins said that she did not know their names. One

man got into the car with her while the other one walked across the street with Ms.

Jenkins. Ms. Rucker said that she drove over to the lot across the street because that was

where she was told to park. She stated that she had no intention of “hanging out” with

the two men, but one of them kept asking whether she was hungry, as in whether she

wanted to eat somewhere. Ms. Rucker said that the “robbery thing” happened then. She

testified that she saw a man in all black fighting with the victim, who was fighting back.

She said that she exited the car, heard gunshots, and ran to a nearby restaurant. Ms.

Rucker recalled that the man wearing all black said, “„Don‟t you owe me something,‟”

when he walked up to the car.

Ms. Rucker testified that while she ran across the street, Ms. Jenkins remained by

the building at which they had parked. She recalled Ms. Jenkins screaming during the

attack but stated that afterwards, Ms. Jenkins “really didn‟t want to talk about it . . . it‟s

-20- like it wasn‟t affecting her like it was affecting me.” Eventually, a friend took Ms.

Jenkins and Ms. Rucker home. Later, the police came to their home and took Ms.

Jenkins to the police station. A couple of days later, she was stopped by the police on the

interstate highway. Ms. Jenkins and Ms. Rucker‟s sister were also in the vehicle. They

all went to the police precinct to speak with the police. She testified that she told the

police the same thing she had told the jury.

On cross-examination, Ms. Rucker testified that she did not know Boo-Master‟s

real name and that she had known him for several years. At the time of the shooting,

Boo-Master was not working. Ms. Rucker said that Ms. Jenkins asked her to call Boo-

Master and asked her to tell Boo-Master to call Ms. Jenkins. She said that she did not see

the person who shot the victim exit a car and did not see where he went afterwards. Ms.

Rucker denied ever telling Ms. Jenkins not to talk to the police.

Metro Nashville Police Officer Rhonda Evans testified that she was an officer with

the identification section and that she helped process the crime scene connected to this

case. Officer Evans stated that she photographed the scene using both the flash on her

camera and “natural light.” She explained that the flash allowed her camera to record the

necessary details of the scene but that the natural light captured the lighting as it actually

appeared without assistance of the flash. The natural light photographs were admitted

into evidence as collective exhibit seven, and the flash photographs were admitted into

-21- evidence as collective exhibit eight. Officer Evans and another crime scene technician

processed various items collected around the crime scene, the two vehicles that were next

to the victim‟s body, and an area of Out of Bounds for fingerprints. She explained that

she processed the area at Out of Bounds because the police had information that parties

involved in the shooting had been at the club. Officer Evans testified that a projectile

was found and collected at the scene. Metro Nashville Police Officer Sharon Tilley, also

with the identification section, corroborated Officer Evans‟ testimony. In addition,

Officer Tilley photographed the victim‟s body during the autopsy and photographed the

contents of the victim‟s pockets. The victim had ten one-dollar bills but no one-hundred

dollar bills.

Pamela Jenkins testified that she had been indicted in the instant case. She said

that she had not received any kind of deal in exchange for her testimony. Ms. Jenkins

testified that she went to Out of Bounds with a friend named Chris on May 5, 2011. She

met Jay Artis and the victim3 on the dance floor and then sat with them in a booth until

closing time. She recalled that they were both throwing money around while on the

dance floor and that she warned them about getting robbed. She said that the men had a

verbal argument with someone in the club but that they “squashed” the argument by

apologizing. Ms. Jenkins testified that appellant Carter was also in the club that evening,

wearing an orange shirt. Ms. Jenkins authenticated several photographs taken inside Out

3 She referred to Jay Artis as “Big J” and the victim as “Little J.” -22- of Bounds that night by a promotion company. In the photographs, she identified herself,

sitting in a booth, and appellant Carter, standing in the background of the photographs.

In the photographs, appellant Carter was wearing a short-sleeved, orange shirt over a

long-sleeved, light-colored shirt.

Ms. Jenkins further testified that she called her cousin Jessica Rucker and asked

her to contact Boo-Master. She explained that she wanted Boo-Master to come to the

club to rob Mr. Artis and the victim. However, she never spoke with Boo-Master that

night nor did she see him. She said that the next time she talked to Ms. Rucker, she asked

Ms. Rucker to pick her up at the club. Ms. Jenkins testified that she was not expecting

Boo-Master to accompany Ms. Rucker because she had already talked to appellant Carter

about robbing the victim and Mr. Artis. She stated that she told appellant Carter that the

two men had a lot of money. He said that he would rob them and instructed her to get the

men outside of the club. Ms. Jenkins testified that she left the club with the two men and

that Mr. Artis got into the car with Ms. Rucker. Ms. Rucker drove across the street, and

Ms. Jenkins walked across the street with the victim to where his car was parked. She

said that she and the victim were talking to Ms. Rucker when appellants Carter and

McLemore “came out of nowhere.” She testified, “[Appellant Carter] had a gun on [the

victim], and [appellant McLemore] was wrestling with [Mr. Artis], and next thing I know

they got to scuffling over the gun[,] and the gun went off three times[,] and we took off.”

Ms. Jenkins recalled hearing appellant Carter say, “„[G]ive me what you owe me.‟” She

-23- said that the appellants got into a black car after the shooting.

Ms. Jenkins testified that immediately after the shooting, she called appellant

Carter, but he did not answer his telephone. The next time she talked to him, he asked

her to meet him “out south,” which she clarified as meaning a specific housing project.

He told her that he did not want to talk over the telephone. Ms. Jenkins said that she

spoke with the police that day, May 6, but did not tell them who had robbed the victim.

She stated that she did not tell the truth because she was scared of the appellants. The

next day, she met appellant Carter. Upon her request, he had a person drive her to her

car. Ms. Jenkins said that appellant Carter instructed the person “to bring [Ms. Jenkins]

back to him.” When she got her car, she returned to appellant Carter‟s location at a

housing project. Appellant McLemore was also present. Ms. Jenkins said that she asked

appellant Carter why he had shot the victim. He did not answer her. She also asked

whether he had gotten any money from the victim, and he told her he did not. Ms.

Jenkins testified that appellant Carter told her not to talk to anyone and threatened to

shoot up her mother‟s house. However, the police stopped her on the interstate sometime

later and took her in to the precinct. She said that she told the police then that appellants

Carter and McLemore were responsible for the robbery. Ms. Jenkins admitted that she

had misdemeanor convictions for shoplifting and attempted false report.

On cross-examination, Ms. Jenkins testified that she told the police that the person

-24- with whom the victim and Mr. Artis argued in the club was wearing a white shirt and

blue hat. She denied that the person with whom they argued was Boo-Master. She said

she had grown up with Boo-Master, and she agreed that he robbed people. Ms. Jenkins

said that she only tried to call Boo-Master once that evening and that Ms. Rucker placed

the call using the three-way function on her telephone. Ms. Jenkins testified that

appellant Carter was her height — 5′3″. She said that when he shot the victim, he was

wearing the same thing he had been wearing in the club, and she affirmed that he had

been wearing an orange shirt. Ms. Jenkins denied telling the police that the robbers

exited a black Monte Carlo. She said that when she was standing across the street after

the shooting, she saw them leave the area in a black Monte Carlo. Ms. Jenkins confirmed

that she saw appellant McLemore “scuffling” with Mr. Artis. She also confirmed that

Ms. Rucker told her not to talk to anyone about the event. Ms. Jenkins did not remember

giving an interview to an officer at the crime scene after the shooting. She agreed that in

her initial interview with detectives, she told them that she did not know either man

involved in the shooting and could not describe them. She recalled telling the police that

the victim had said he had a “Chopper” in the trunk of his car. She did not remember

telling the police that the victim had grabbed her throat and threatened her. Ms. Jenkins

agreed that appellant Carter had not yet threatened her when she gave her initial

interview. Ms. Jenkins agreed that appellant Carter did not have any facial hair. She

confirmed that she heard three shots that night.

-25- On re-direct examination, Ms. Jenkins testified that she had been drinking alcohol

at the club and had taken one or two Xanax “bars.”

Dr. Bridgette Eutenier testified that the victim had a gunshot entry wound on the

left side of his neck and that the corresponding exit wound was on the right side of his

head. The projectile damaged his esophagus, a vertebral artery, the cervical vertebrae,

and the base of his skull. It also caused a subarachnoidal hemorrhage. She testified that

the victim would have lived for a few minutes without medical intervention, and she

agreed that it was possible that he would have dropped to the ground immediately after

being shot.

TBI Special Agent Richard Wesley Littlehale testified as an expert in the use of

telecommunication records in criminal investigations. Regarding cellular telephone

location information, Agent Littlehale testified that historical cellular telephone records

indicated which cellular tower a particular telephone used at any given point. He said

that a telephone will generally use the closest cellular tower that has open channels. A

telephone will use towers that are farther away if the closest tower is “full,” is having

technical problems, or is blocked by an obstruction.

Metro Nashville Police Sergeant Andrew Injaychock testified that he was a

homicide detective at the time of the May 6, 2011 shooting of the victim and that he was

-26- the lead investigator for the case. He responded to the scene within a short time of the

shooting. Sergeant Injaychock described the area as being neither dimly lit nor well-lit.

He testified that one of the first things the investigators did was to interview the driver of

a white vehicle that had been seen leaving the area of the shooting, Joshua Martin.

Sergeant Injaychock said that Mr. Artis, in a “show-up” identification, stated that Mr.

Martin did not participate in the robbery/shooting.

Sergeant Injaychock testified that he had Detective Ball locate and interview

Pamela Jenkins, explaining that Ms. Jenkins had left the crime scene. Sergeant

Injaychock said that he obtained surveillance video from inside Out of Bounds but that

the quality of the video was poor and did not show the club exits. There was no

surveillance video outside the club, and the law firm next to which the shooting occurred

did not have a functioning surveillance camera. Sergeant Injaychock also obtained still

photographs taken inside the club. After completing their survey of the crime scene,

Sergeant Injaychock and Detective Crumby interviewed Mr. Artis at the police precinct.

Sergeant Injaychock said that he focused more on Ms. Jenkins after interviewing

Mr. Artis because she had not been honest in her interview with Detective Ball. Sergeant

Injaychock interviewed Ms. Jenkins again on the Sunday following the shooting. Ms.

Jenkins told him that she had been with the victim and Mr. Artis in the club and that they

had been “flashing” money. She tried to call someone about robbing the victim and Mr.

-27- Artis. When she was unsuccessful, she talked to appellant Carter, whom she said she had

known since elementary school. Ms. Jenkins also told Sergeant Injaychock that

“Boxhead Shawn” and appellant Carter were responsible for what happened in the

parking lot. Thereafter, Sergeant Injaychock showed a photograph array to Mr. Artis,

and he identified appellant Carter as the shooter. Sergeant Injaychock also showed Mr.

Artis a photograph array that included the person Ms. Jenkins had originally tried to

contact about the robbery, Cornell Bradley, also known as Boo-Master. Mr. Artis did not

make an identification from that array.

Sergeant Injaychock testified that to identify “Boxhead Shawn,” the police “cold-

called” numbers listed in appellant Carter‟s telephone records until someone answered

that he was “Shawn.” The person agreed to an interview, and subsequently, the police

learned that his real name was Adonis McLemore. Sergeant Injaychock testified that he

asked appellant McLemore whether he went by the nickname “Boxhead Shawn,” and

appellant McLemore agreed that he did. He also said that few people knew that

nickname. Sergeant Injaychock later showed Mr. Artis a photograph array that included

appellant McLemore‟s photograph. Mr. Artis identified appellant McLemore as the

second person involved but stated that he was only eighty percent sure. The police also

showed Ms. Jenkins a photograph array including appellant McLemore‟s photograph, and

she identified his photograph as “Boxhead Shawn.” Sergeant Injaychock testified that he

had obtained the cellular telephone records of Jessica Rucker, Pamela Jenkins, appellant

-28- Carter, and appellant McLemore. After learning that appellant Carter called Joshua

Martin, the man who had been driving the white car after the shooting, Sergeant

Injaychock interviewed Mr. Martin again and also showed Mr. Artis a photograph array

including Mr. Martin. Thereafter, he eliminated Mr. Martin as a suspect.

Sergeant Injaychock next testified about the information he gleaned from the

cellular telephone records collected in this case. As a point of reference, he testified that

the 9-1-1 call reporting the shooting occurred at 2:38:35 a.m. The records of Ms. Jenkins

and Ms. Rucker reflect many calls back and forth in the early morning hours of May 6.

Appellants Carter and McLemore had six telephone exchanges between 2:04 a.m. and

2:15 a.m. Sergeant Injaychock did not testify4 about the cellular tower to which appellant

Carter‟s telephone connected during those calls; however, he testified that appellant

McLemore‟s telephone connected to Sprint Tower 1479, 3.79 miles from the crime

scene, at 2:04 a.m. From 2:05 a.m. until 2:10 a.m., appellant McLemore‟s telephone used

Sprint Tower 1387, 3.29 miles from the crime scene. At 2:15 a.m., appellant

McLemore‟s telephone used Sprint Tower 1389, 1.5 miles from the crime scene. Maps

showing the locations of the towers were shown to the jury. Appellant McLemore did

not use his telephone again until 2:46 a.m. Ms. Jenkins first called appellant Carter at

2:16 a.m. During that call, her cellular telephone used Cricket Tower 147, 0.17 miles

4 Sergeant Injaychock utilized a PowerPoint presentation during his testimony. That presentation was not entered into evidence, and due to the highly technical nature of the telephone records that were introduced into evidence, we are limited to presenting Sergeant Injaychock‟s oral testimony.

-29- from the crime scene.5 Appellant Carter‟s telephone used Cricket Tower 51, 1.78 miles

from the crime scene. Appellant Carter and Ms. Jenkins exchanged calls at 2:25 a.m.,

2:32 a.m., and 2:33 a.m., and for all three calls, appellant Carter‟s and Ms. Jenkins‟

telephones were using Cricket Tower 147. At 2:38 a.m., appellant Carter called Ms.

Jenkins. His telephone connected to Cricket Tower 51, 1.78 miles from the crime scene.

At 2:48, he called Ms. Jenkins again, and this time his telephone connected to Cricket

Tower 50, 3.25 miles from the crime scene.

Sergeant Injaychock testified that the records also reflected calls between Ms.

Jenkins and appellant Carter and between appellant Carter and appellant McLemore later

in the day on May 6. Also on May 6, appellant Carter called a number that he later called

again from jail. The call from jail was recorded, and the recording was played for the

jury. In it, appellant Carter discussed with an unidentified woman about how the woman

had given a ride to Ms. Jenkins on May 6. He also suggested to the woman that she

contact a private investigator already working on appellant Carter‟s case to say that Ms.

Jenkins had told her how tall the shooter was, which both appellant Carter and the

unidentified woman agreed was taller than appellant Carter‟s height. Sergeant

Injaychock testified that according to his driver‟s license, appellant Carter was 5′5″.

5 This distance is listed in a document provided by Metropolitan Planning Department. The parties stipulated to its entry as evidence. However, Sergeant Injaychock testified that Tower 147 was 1.7 miles from Out of Bounds. -30- On cross-examination, Sergeant Injaychock agreed that cellular telephone records

could only show the location of the tower that a telephone used, not the exact location of

the telephone. He also agreed that people had been celebrating Cinco de Mayo on May 5

and that the bars in Nashville closed between 2:00 a.m. and 3:00 a.m. Sergeant

Injaychock said that the victim did not have a wallet nor did he have the roll of money

with which he had been seen earlier in the day. He agreed that it was possible that the

victim had literally thrown away his money while on the dance floor in the club.

Following Sergeant Injaychock‟s testimony, the State closed its case-in-chief.

Appellants Carter and McLemore did not present any proof. Subsequently, the jury

convicted appellant Carter of the lesser-included offense of voluntary manslaughter, the

lesser-included offense of attempted especially aggravated robbery, and felony murder.

The trial court merged appellant Carter‟s voluntary manslaughter conviction into his

felony murder conviction. The court sentenced appellant Carter as a Range II, multiple

offender to twenty years for the attempted especially aggravated robbery conviction,

concurrent with his life sentence for felony murder. The trial court ordered that his

effective life sentence be served consecutively to his sentences in Case 1648.

Appellant McLemore was convicted of the lesser-included offense of facilitation

of especially aggravated robbery and the lesser-included offense of facilitation of felony

murder. The trial court sentenced appellant McLemore as a Range III, persistent offender

-31- to thirty years for the facilitation of especially aggravated robbery conviction and to a

concurrent sentence of fifty years for the facilitation of felony murder conviction.

Both appellants‟ motions for new trial were denied, and they now appeal their

convictions to this court.

IV. Analysis — Case 3013

A. Appellant Carter — Rule 609

Appellant Carter contends that the trial court erred by ruling that the State would

be allowed to impeach his credibility, should he have chosen to testify, with a prior

conviction for the sale of drugs.6 The State responds that the trial court did not abuse its

discretion in allowing, for impeachment purposes only, evidence of appellant‟s prior

conviction for the sale of drugs, especially because the trial court disallowed evidence of

two other prior convictions for facilitation of aggravated robbery and facilitation of

second degree murder.

We review a trial court‟s ruling on the admissibility of prior convictions for

impeachment purposes for abuse of discretion. State v. Lankford, 298 S.W.3d 176, 180

6 To clarify, appellant Carter‟s trial for the especially aggravated robbery and murder of Jordan Gardner was conducted separately from the drug case previously analyzed in this opinion. -32- (Tenn. Crim. App. 2008); State v. Waller, 118 S.W.3d 368, 371 (Tenn. 2003). Rule 609

of the Tennessee Rules of Evidence governs the use of prior convictions for impeachment

evidence. The rule states, in part:

(a)(3) If the witness to be impeached is the accused in a criminal

prosecution, the State must give the accused reasonable written notice of

the impeaching conviction before trial, and the court upon request must

determine that the conviction‟s probative value on credibility outweighs its

unfair prejudicial effect on the substantive issues. The court may rule on

the admissibility of such proof prior to the trial but in any event shall rule

prior to the testimony of the accused. If the court makes a final

determination that such proof is admissible for impeachment purposes, the

accused need not actually testify at the trial to later challenge the propriety

of the determination.

As applicable in this case, Rule 609 permits, under certain conditions, introduction of an

accused‟s felony convictions that are less than ten years old for impeachment purposes.

Tenn. R. Evid. 609(a)(2), (b). As our supreme court has stated, while Rule 609 “suggests

that the commission of any felony is „generally probative‟ of a criminal defendant‟s

credibility,” there is no “per se rule that permits impeachment by any and all felony

convictions.” Waller, 118 S.W.3d at 371 (quoting State v. Walker, 29 S.W.3d 885, 890

-33- (Tenn. Crim. App. 1999)). The trial court must make a determination of whether the

probative value of the prior conviction outweighs its prejudicial effect. Tenn. R. Evid.

609(a)(3). “[C]ourts must focus particular attention on: (1) the relevance of the

impeaching conviction to the issue of credibility; and (2) the similarity between the

charged offense and the impeaching conviction.” State v. Frederick Herron, --- S.W.3d -

--, No. W2012-01195-SC-R11-CD, 2015 WL 1361262, at *12 (Tenn. Mar. 26, 2015).

In this case, the State notified appellant Carter prior to trial of its intent to use

three of his prior convictions for impeachment purposes at trial: a 2002 conviction for

facilitation of second degree murder; a 2002 conviction for facilitation of aggravated

robbery; and a 2005 conviction for sale of less than .5 grams of a Schedule II controlled

substance. Appellant Carter requested a jury-out hearing to consider the admissibility of

the prior convictions, which the trial court held following the close of the State‟s case-in-

chief. The trial court subsequently determined that the State would not be allowed to

introduce evidence of the charges for facilitation of second degree murder and facilitation

of aggravated robery because they were substantially similar to the violent charges for

which appellant Carter was on trial and, thus, that the probative value was outweighed by

the prejudicial effect. However, the trial court further determined that the State would be

allowed to use appellant‟s prior drug conviction for impeachment purposes, stating:

-34- [W]here there‟s an actual sale, I think the credibility issue is much greater

than for example possession to [sell], and in light of the fact that there are a

number of criminal offenses, I think that, although the jury is not going to

know about it, in terms of admissib[ility], I think is [sic] a greater

justification for allowing that one in.

In addition, the trial court stated that should appellant Carter choose to testify, it would

give a limiting instruction to the jury that it should consider the prior conviction only for

its impact on appellant Carter‟s credibility.

On appeal, appellant Carter argues that the trial court‟s ruling was in error because

drug convictions are only minimally probative of credibility, citing to our supreme

court‟s opinion in Waller, 118 S.W.3d at 373 (concluding that “prior felony drug

convictions are, at best, only slightly probative of [a defendant‟s] credibility”). However,

in the Waller case, the supreme court further ruled that the defendant‟s felony drug

convictions were substantially similar to the convictions for which he was on trial and

thus that the probative value was outweighed by the prejudicial effect. Id. Substantial

similarity is not an issue in this case because the trial court disallowed the admission of

appellant Carter‟s violent felony convictions, and no other argument has been adduced to

add weight to the prejudicial effect of the admission of the prior conviction for the sale of

drugs. While the trial court could have been more articulate in its ruling, it is clear that

-35- the trial court determined that the probative value of the prior conviction outweighed its

prejudicial effect. We conclude that the trial court did not abuse its discretion.

B. Appellant Carter — Sufficiency of the Evidence7

Appellant Carter argues that the evidence was insufficient to support his

convictions for felony murder, voluntary manslaughter, and attempted especially

aggravated robbery. His argument hinges completely on the credibility of the witnesses.

The State responds that the evidence was sufficient. We agree with the State.

In this case, to uphold appellant‟s convictions, the State had to show beyond a

reasonable doubt that appellants killed the victim “in the perpetration of or attempt to

perpetrate . . . robbery,” as charged in the indictment. Tenn. Code Ann. § 39-13-

202(a)(2). Especially aggravated robbery, the underlying felony, is defined as “the

intentional or knowing theft of property from the person of another by violence or putting

the person in fear” that is “[a]ccomplished with a deadly weapon” and “[w]here the

victim suffers serious bodily injury.” Id. § 39-13-401, -403. The jury was instructed that

attempt meant that appellant

7 For the applicable standard of review, see Section II. -36- intended to commit the specific offense of Especially Aggravated Robbery;

and . . . that he did some act intending to complete a course of action or

cause a result that would constitute Especially Aggravated Robbery under

the circumstances, as the defendant believed them to be at the time, and his

actions constituted a substantial step toward the commission of Especially

Aggravated Robbery.

See Tenn. Code Ann. § 39-12-101(a)(3). Appellant was also convicted of voluntary

manslaughter as a lesser-included offense of first degree premeditated murder. Voluntary

manslaughter is defined as “the intentional or knowing killing of another in a state of

passion produced by adequate provocation sufficient to lead a reasonable person to act in

an irrational manner.” Id. § 39-13-211(a).

Viewed in the light most favorable to the State, the evidence at trial showed that

appellant Carter approached the victim, that the two men “scuffled,” that appellant Carter

shot the victim, and that at his death, the victim did not have the money that he had

earlier in the evening. Appellant Carter was identified as the shooter by Jay Artis and by

his accomplice, Pamela Jenkins. Appellant Carter correctly notes that the witnesses‟

testimonies diverged about the clothing worn by the shooter and where the shooter went

after the shooting. He also contends that the jury should have disregarded Ms. Jenkins‟

testimony entirely for lack of credibility. However, in a jury trial, questions involving the

-37- credibility of witnesses and the weight and value to be given the evidence, as well as all

factual disputes raised by the evidence, are resolved by the jury as trier of fact. State v.

Bland, 958 S.W.2d 651, 659 (Tenn. 1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn.

1990). The jury in this case resolved the factual disputes in favor of the State, and we

conclude that the evidence was sufficient to support appellant Carter‟s convictions.

C. Appellant McLemore — Sufficiency of the Evidence

Appellant McLemore also challenges the sufficiency of the evidence supporting

his convictions for facilitation of especially aggravated robbery and facilitation of felony

murder. Specifically, he contends that the State‟s evidence was inadequate to corroborate

Ms. Jenkins‟ testimony. The State responds that the evidence was sufficient to uphold

appellant McLemore‟s convictions. We agree with the State.

Appellant McLemore was convicted of facilitating both especially aggravated

robbery and felony murder, which were defined in the section above. A conviction for

facilitation requires that the State prove that a defendant “knowingly furnishe[d]

substantial assistance in the commission of the felony.” Tenn. Code Ann. § 39-11-403.

In addition, there is no question that Ms. Jenkins was an accomplice to these offenses,

and “a conviction may not be based solely upon the uncorroborated testimony of an

-38- accomplice to the offense.” State v. Bane, 57 S.W.3d 411, 419 (Tenn. 2001). Our

supreme court has explained:

“[T]here must be some fact testified to, entirely independent of the

accomplice‟s testimony, which, taken by itself, leads to the inference, not

only that a crime has been committed, but also that the defendant is

implicated in it; and this independent corroborative testimony must also

include some fact establishing the defendant‟s identity. This corroborative

evidence may be direct or entirely circumstantial, and it need not be

adequate, in and of itself, to support a conviction; it is sufficient to meet the

requirements of the rule if it fairly and legitimately tends to connect the

defendant with the commission of the crime charged. It is not necessary that

the corroboration extend to every part of the accomplice‟s evidence.”

Bane, 57 S.W.3d at 419 (quoting State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994)).

Viewed in the light most favorable to the State, the evidence adduced at trial

showed that appellant McLemore engaged in several telephone conversations with

appellant Carter leading up to the commission of the offenses, that he was either standing

behind appellant Carter or fighting with Mr. Artis during the commission of the offenses,

that he left the scene of the crime with appellant Carter, and that he participated in a

-39- conversation after the offenses between appellant Carter and Ms. Jenkins, their

accomplice, in which appellant Carter threatened Ms. Jenkins if she told the truth about

the shooting. Ms. Jenkins identified the man with appellant Carter that night as

“Boxhead Shawn,” and the police verified that appellant McLemore used that nickname.

Mr. Artis identified appellant McLemore‟s photograph as the person he had seen with

appellant Carter. It was a matter for the jury to determine whether Mr. Artis‟s assertion

that he was eighty percent sure of his identification coupled with the telephone records

were sufficient to corroborate Ms. Jenkins‟ testimony. See State v. Griffis, 964 S.W.2d

577, 588 (Tenn. Crim. App. 1997).

Appellant McLemore cites Mathis v. State, 590 S.W.2d 449, 454 (Tenn. 1979), for

the proposition that evidence of a defendant‟s presence at the time of the offense is

insufficient to corroborate an accomplice‟s testimony. In that case, multiple witnesses

testified that Mathis was in the area while his alleged accomplice, Kimmons, was fighting

with the victim, but only Kimmons placed Mathis with him when Kimmons shot the

victim. Id. The supreme court concluded that this evidence was insufficient

corroboration of Kimmons‟ testimony. Id. In this case, Ms. Jenkins was not the only

person to testify that appellant McLemore was present. Mr. Artis placed appellant

McLemore immediately behind appellant Carter during the shooting. Thus, we conclude

that appellant McLemore was fairly and legitimately connected to the offense and that the

evidence was sufficient to sustain his convictions.

-40- CONCLUSION

Based on the record, the briefs of the parties, and the applicable law, we affirm the

judgments of the trial court.

_________________________________ ROGER A. PAGE, JUDGE

-41-