### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs S eptember 25, 2001
STATE OF TEN

NESSEE v. PA

TRICK D. PA

RIS
Appeal from the Criminal Court for Hamilton County Nos. 216583-216585 Stephen M. Bevil, Judge

No. E2000-02672-CCA-R3-CD October 29, 2001

The defendant, Patrick

D. Paris, appeals from

his convictions for attempted first degree murder and especially aggravated robbery, contending that the evidence is insufficient to supporthis convictions andthat the trial court er

red by allowing hearsay

testimony into evidence as an excited utterance. We affirm the judgments of conviction.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

J OSEPH M. T IPTON , J., delivered the opinion of the court, in which J OE G. R ILEY and A LAN E. G LENN , JJ., joined.
Jeffrey S. Schaar schmidt (on appeal) and John Brooks (at trial), Chattanooga, Tennessee, for the appellant, Patric

k D. Paris.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney Ge

neral; William H. Cox , III, District A ttorney General; and Barry Allen Steelman, Assistant District Attorney General, for the appellee, State of Tennesse e.
OPINION

The defendant was convicted by a jury for att emp ted fir st d egre e mu rder , a C las s A f elo ny, andespec ially a ggrava ted ro bbery, a Class A felo ny. The trial court sente nced h im as a Range I, standardoffender to twe

nty-th ree years i n the Department of Correction for the attempted first degree murder conviction. He received a concurrent sent ence of twenty yea

rs with no parole for the especially aggravated robber y conviction.

This case relates to

the shooting of Jason Davis on April 7, 1997. The victim testified that
on April 5, 1997, he was living in Clarksville and that he and Derrick Jenkins drove the victim’s Chevrolet Blazer to Chattan

ooga. He said th

at he went there

to visit his family

and that he and Mr. Jenkin s spent the night in a hotel. He said that the next morning, he drove Mr. Jenkins aroun d Chattanoo ga

to show him the city

. He said that th

ey drove by the

defendant’s house and that the-2-

defendant flagged him

down. He said that he and the defendant, also known as “Patti Boo,” smoked marijuana and talked. He said that

he and the defendant were not friends but that they had hung out together and smoked marijuana before.

The victim testified that the defendant told him that Edward “Ace” Williams wanted to talk to the victim. The victim said that he, the defendant, and Mr. Jenkins drove the Blazer to Mr. Williams’ house. He said tha t they talke

d with Mr. Williams until Mr. Williams’ girlf

riend came home. He said that he, the defendant, Mr. Williams, and Mr. Jenkins rode around in the Blazer for
a while and smoked marijuana. He said that they returned to Mr. Will

iams’ house

that afternoon, parked the Blazer, and left again in Mr. Williams’ r ental car. He said that he was carrying a 9 millimetergun and that the defendant was carrying a .38 caliber gun. He said that they rode around until about 12:30 a.m. on A pril 7, when they

stopped at the Krystal Restaurant on Highway 58 and ate. He said that they left the restaurant and de cided to go t o a house owned by someone named “Land” and talk to him about buying drugs. He said that they decided to take a sh ortcut to Mr. Land’s house. He said that they parked by the Side Pocke ts pool hall on Highway

58 and that he, the defendant, and Mr. Williams started walking on a trail to Mr. Land’s house, while Mr. Jenkins slept in t he car. He sai d that as th ey started walk ing, he decided to re turn to the Krystal to use the bathroom. He said that before he left, he gave his gun to Mr. Williams or the defendant. He said that he drove Mr. Williams’ car to the Krystal, used the bathroom, and drove back to Side

Pockets. He said that when he got

back to the trail, Mr. Williams a nd the defendant

were hiding fr

om him. He said that

he saw Mr. Williams hiding, told Mr. Williams and the defendant to come out, and that the two men came out and met him. He said that the defendant gave him his gun back and that he thought “something was kind of funny,” so he checked to make sure the gun wa s still loaded. He said that the three of them started up the trail to Mr. Land’s house. He said that Mr. Williams was in front of him and that the defendant was behind him. He said that as they were wa lking , the defendant shot him, and everything went black.

The victim testified thathe awoke about tw o hours later with a

loud ringing in h

is ears. He said that, at first, he thought the defendant had hit him in the head with a brick. He said that he tried to get up but kept falling over. He said that he knew something was wrong and that he touched the back of his headand felt blood and a hole. He said that he kne w he had been shot

. He said that his gun, beep er, j ewel ry, car keys, and $600 were gone. He said th

at he crawled a

cross Highway

58 to the Golden Gallon convenience store , pulled up on to the door, and fell inside. He said that he thought he remembered

saying, “Patti Boo shot me.” The victim stated that he was in the hospital for eight day

s.
The victim testified that he had pulled out his mone y in f ront of the defendant while they
were at the Krystal. He said that after the s hooting, he met the defendant in the hallway of the Hamilton County

Ja il, and the defendant told him, “I should have killed you, I wish I would have killed you.” The prosecution showed the victim a photograph that the police took on April 23, 1997, showing the defendant sta nding in front of a

Chevrolet Blazer

. The victim identif

ied his Blazer in the photograph and said that the defendant was wearing the victim’s shirt and tennis shoes.-3-

At the time of trial, th

e victim w as s erving an eleven-year sentence for two robbery convictions. On cross-examinat ion, he acknowle

dged that he did

not have a job at the time he was shot. He said that he g

ot the $600 from his

girlfriend, his

brother, and sell

ing marijuana. H

e said that in 1996, he pled guilty to robbery and a ggravated burglary. He said that in 1998, he pled g

uilty to an aggravated robbery that wa s committed in Hamilton County on April 5, 1997, two days before he was shot. He de

nied that he went to

Chattanooga to c

ommit a robbery, and he denied planning to rob Mr. Land’s house. He acknowledged being on proba tion when he was shot, having an extensive juvenile record, and previously lying under oath.
Jennifer Ellis, manager of the Golden Gallon on Hi

ghway 58,

testified as follo

ws: At 6:30
a.m. on April 7, 1997, the victim walked into

the Golden Gallon on Highway 58. He was covered withblood and said he ha

d been shot. Ms. Ellis

laid the victim down on his stomach because he had
a hole in the back of his hea d. She tried to kee p the victim conscio

us by asking

him questions. Although Ms. Ellis could not understand most of what the victim said, she heard him say repe ate dly, “Patti Boo done shot me.”

Mike Wallaford, who lives across the street from the Golden Gallon, testif ied as follows: At about 4 :00 a.m. on April 7, 1997, he heard one gunshot. He thought that his neighbors were shooting at each other and called 9-1-1.

BillPhillips, an investigator with the Ch attanooga Police Department, testified that he went to the hospital on April 7, 1997, and asked the victim questions. He said that the vic tim told him

that the defendant and Mr. Williams shot him. He said that he formally interviewed the victim on April 22, 1997, and that the victim told him the defendant shot him . He said that he a

sked the victim if the f our men had gone to Mr. Land’s house to rob someone and that the victim said he could no t remember. He saidthat the victim told him that before he went back to the Krystal to use the bathroom, he gave his gun to Mr. Williams, not the defendant. He said that the vic tim told him

they parked at the Side Pockets pool hall so that they would not be seen.

Officer Phillips said that he met with the defendant on April 10, 1997, and that, at first, the defendant said he did not know anything a bout the shooting. He said that over

the course of his investigation, the defe ndant ga ve four different versions of what happened. He said that the defendant told him that Mr. Williams probably shot the victim because there was a contract

out on the victim’s life. He said that on April 23, 1997, he found the victim’s Blazer on the street where the defendant lived. Hesaid that the defendant told him that he bought the Blazer from the v

ictim. He said that he ne

ver found the gu

n that was used to sh

oot the victim.
Kaya Reeves, the victim’s girlfriend, testified as follows: She and the victim lived together in Clarksville. On April 7, 1997, the defendant and Derrick Jenkins came to h er house. The defendant was driving the victim’s Blazer and told her that he was the victim’s cousin. He told her t hat the victim had been in a shootout with police and that the victim was in jail with a $10,000 bond. The d efendant to ld her that the victim asked him t o go to Clarksville and get his stuff. Ms. Reeves started to call the victim’s parents in Chattanooga to tell them that the v ictim was in jail.-4-

However, the defendant tol d her that the vict

i m did not want his mother to find out. Ms. Reeves packed the victim’s clothes and gave them to the defendant. The defendant took most of the victim’s clothes, a gun, and a Playstation. After the defendant le

ft, Ms. Reeves called the Chattanooga and Clarksville

jail s, but she could not find the victim. Ms. Reeves called the victim’s mother and learned that he had been

shot. On cross-exa

mination, Ms. Reeve

s said that the victi

m did not work or sell drugs. She said that she gave him $600 to buy clothes and marijuana in Chattanooga. She said that the victim kept a gun u nder the couch in

her house and that he carr

ied another gun

with him.

Ronnie Bennett testified

that he is serving a twenty-one-y ear federal

sentence for cocaine and firearm convictions. He said that he and the defend ant met in July 1996 and that they were good friends. He said that

in November 1996, he met the victim and that the two of them started spending
a lot of time together. He said that the defendant was jealous of his friendship w

ith the victim. He saidthat he was in jail when he heard about th

e victim getting

shot. He said that h

e call ed th e defendant and that the defendant told him, “I got your boy .” He said that the defendant told him that he shot the victim in the back of the head as they were walking to Mr. Land’ s house. He said that the defendant told him that he bought

the victim’s truck from the victim. He said that the defendant thought the victim was messing with the defendant’s girlfriend.

Edward “Ace” Williams tes tifie d that he was charged with attempted first degree murder, especially aggravated robbery, and a ccessory after the fac t in connect ion with t he victim’ s shootin g. He said that in return for testifying against the defendant, he w as allowed to plead g

uilty to accessory after the fact and receive a two- to four-year sentence for his participation in the crime. He said that the victim, the defendant, and Derrick Jenkins came to his house on April 6, 1997. He said that he, the defendant, the victim, and Mr. Jenkins left in the victim’s Blazer. He said that they drove into
a bank parking lot, where other cars were parked. He said that he got ou t and talked to a g

irl while the defendant, the v

ictim, and Mr. Jenkins

sat in the Blazer and smoked marijuana. He said that the four of themdrove back to his house a bout 4:00 p.m. He sai

d that when he go

t home, the defend

ant, the victim, and Mr. Jenkins left and that he called his brother. He said that he wanted his brothe

r to steal the rad io out of the victim’s Blazer. He said that the victim, the defendant, and Mr. Jenki n s returned to his house about 11:00 p.m. and that he got the victim to le ave the Blazer at his house, while the four of them r

ode around in

his rental car. He said that he planned to keep the defendant away from the Blazer long enough for his brother to steal the radio out of it.

Mr. Williams testified that they rode around for about two hours and that they stopped to get something to eat. He said that after they ate, they parked beside a poolhall on Highway 58. He said that the four of them wa

lked a trail

to Mr. Land’s h

ouse in order for the vic

tim to buy drug

s. He said that the victim had to use

the bathroom and b

orrowed Mr. Willia

ms’ car to return to the Krystal. He said that before the v

ictim left, the vict

im gave his gun t

o the defendant.

He said that the vic

tim and Mr. Jenkins left and thathe went into the woods to use the bathroom. He said that the defendant said the victim had been messing with thedefendant’s girlfriend and added, “Man, if the n***** lie about it I’m going to bust him.” Mr. Williams stated that he was still in the woods when the victi m returned and that the victim said, “Where you all at, man?” He said that he came out of the woods and that he and the defendant met the victim. He said that Mr. Jenkins stayed in the car.-5-

Mr. Williams testified that the defendant returned the victim’s gun. He said that he walked back to the car while the defendant and the victim went

to Mr. Land’s house. He said that after they hadbeen gone

about twenty

minutes, he went to l

ook for them. He sa

id that he saw them coming toward him andthat he walked into the woods. He said that when he got to the woods, he heard a shot. He said that he went back to the car and that the defendant ran to the car an

d said someone was shooting at them. He said that he asked the defendant where the victim was and that the defendant said the victim ran a different way. He said that he, the defendant, and Mr. Jenkins rode around and looked for the victim. He said that they never found the vi ctim and went bac k to Mr. Williams’ house. He said that when they got to his house, he noticed that his brother had not broken into the Blazer. He said that

the defendant got into the victim’s Blazer and left. He said that the defendant told him that the victim gave the defendant the keys to the Blazer.

Mr. Williams testified that about an hour later, thedefendant retur ned and told him the v

ictim
was in jail and had a $10,000 bond. He sai d that the d efendant le ft again and t hat later th at morning, Mr. Williams took Mr. Jenkins to the defendant’s house. He said that when they got to the defendant’s house, the defendant came out and told him, “I shot that n*****, man.” He said he left Mr. Jenkins at the defendant’s house, went to work, and went back to the defendant’s house to pick up Mr. Jenkins, but the defendant and Mr. Jenkins were gon e. He said that three days

later, his parole officer told

him there was a warrant for his and the defendant’s arrests. He said that he went to the defendant’s house and that the defendant was washing the v ictim’s Blazer. He said that he told the defendant that a warrant had been issued for their arrests. He said that they turned themselves in and got out on bond. Mr. Williams said that he took t he de fendant to see Mr. Williams’ attorney and that the defendant gave the attorney a tape recorded statement. He said that the defendant lied throughout the statement.

On cross-examination, Mr. W ill iams testified that while he was riding around with the defendant,

the victim, and Mr.

Jenkins on April 6, the

victim pulled a gu

n on some people in a white
car. He said that the defendant was planning to rob Mr. Land. Mr.Williams testified that he has a very bad reputation and that he has been shot nine times. He said that he is not “streetwise.”

Russell Bean, Edward Williams’ attorney, testified as follows: Mr. Williams brought th e defendant to his office on April 11, 1997. The

defendant gav

e a tape record

ed statement and s

aid that he and Mr. Williams were not involved in the victim’s shooting.

The defendant testified that he met the victim in Novemb

er 1996. He said th

at on April

6, 1997, the victim and Mr. Jenkins came to his house and that he and the victim smoked marijuana. He said that he, the victim, and Mr. Jenkins went to Mr. Williams’ house about 2:00 p.m. He said that about thirty minutes later, all four of them left in the victim’s Blazer to go to the park. He said that they never made it to the park and tha t the victim tried to chase down some men in a white, Chevrolet Caprice. He said that they parked at a car wash and that Mr. Williams got out to tal

k to
a girl while he, the victim, and Mr. Jenkins smoked marijuana in theBlazer. He said that they left the car wash and left Mr. Williams at his house about 3:00 p.m. He said that he, the victim, and Mr.-6-

Jenkins returned to Mr. Williams’ house about 10:00 p.m. and that the fo ur of them le ft in Mr. Williams’ car. He said

that the victim and Mr. Williams were talking abo ut c omm itt ing a rob bery.

The defendant said that he had a .38 caliber pistol with him tha t he had gotten from Mr. Williams and that the v

ictim also was car

rying a g un. He said that the

y went to Mr.

Land’s house to rob it and that

they waited in the

bushes behind Mr. Land’s house. He said that about 1:00 a.m., they got hungry and went

to the Krystal. He said that they stay ed at the restaurant about forty-five minutes. He said th

ey l eft the restaurant and parked in the Side Pockets parking lot. He said that they hid in the bushes “to scope the place out for a minute.” He said that he and the victim walked the trail to Mr. La

nd’s house, while M

r. Williams remaine

d in the bushes. He s

aid that Mr. Jenkins
re turned to the car. He said that the victim left to return to the Krystal but that the victim did not give him a gun.

The defendant testif

ied that when the v

ictim returned fr

om the Krysta

l, he and the victim decided not to rob Mr. Land’s house. He said that he and the victim started walking side by side back to Mr. Williams’ car. He said that somebody came up behind them and fired a shot and that he ran to the car. He said that he noticed that Mr. Williams was behind him. He said that the two of them jumped into the car and that he thought Mr. Williams shot the victim. He said that he, Mr. Williams, and Mr. Jenkins rode aro und a nd looked for the victim and that they went back to Mr. Williams’ house. He said that Mr. Williams gave him the keys to the victim’s Blazer and

that he drove the Blazer

home about 3:00 a.m

. He said that Mr. Jen

kins stayed w

ith Mr. Williams.

The defendant testified that later that morning, Mr. Williams brought Mr. Jenkins over to his house. He said

that Mr. Williams told h

imto kill Mr. Jenkins. The defendant said that he took Mr. Jenkins to Clarksville and that they went to Kaya Reeves’ house. He said that he told Ms. Reeves the victim was in jail

and that he took the victim’s clothes. He said that hetook Mr. Jenkins home and that he returned to Chattanooga.

The defendant acknowledged that he lied when he gave his taped statement to attorney Russell Bean. He said th

at Mr. Williams threa

tened to kill him if

he said anything about Mr. Williams. He said that he lied to Officer Phillips on April 10, 1997, because he was afraid that Mr. Williams would hurt

him. The defendant denied shooting the victim or taking any

thing from him. He said that he and the victim were in the Hamilton County Jail after the shooting and that the victim came to his cell and said, “I’m going to get y ou and I put that on everything I love.”

On cross-examination, the defendant acknowledged that he was lying when he sa id he owned the Blazer. He said that in the photograph the police took on A pril 23, 1997, the on ly items belonging to the victim that he wore were the victim’s tennis shoes. He said that Mr. Williams was jealous that the de

fendant was hang

ing around the vi

ctim.-7- I. SUFFICIENCY OF THE EVIDENCE

The defendant contends that the evidence is insuffi cient to support his convictions for attemptedfirst degree m

urder and espec

ially agg ravated robber

y. The state

argues that the

evidence is sufficient. We agree with the state.

Our standard of review w hen the suffi ciency of t he evidence is qu

estioned on appea

l is “whether, after

viewing the evid

ence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a rea sonable doubt.” Jackson
v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). We do not reweigh the evidence but presume that the jury has re

solved all conflic

ts in the testimony

and drawn all re

asonable inferences from the evidence in favor of the state. See State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984); Statev. Cabb age , 571 S.W .2d 832, 835 (Tenn. 1978). Questions about witness credibility were resolved by the jury. See State v. Bland , 958 S.W.2d 651, 659 (Tenn. 1997).

Criminal attempt requires that one act “with

the kind of culpabi lit y o therwise required for the offense . . . [and] with intent to cause a result that is an element of the offense, and believes the conduct will cause the re

sult without furthe

r conduct on the pe

rson’s pa rt.” Tenn. Code Ann. § 39-12-101(a)(2). First

degree murder is

the “prem

editated and inten

tional kil ling of an other[.]” Tenn. Code Ann. § 39

-13-202(a)(1) . Premeditation is de fined as:

an act d one after the exe rcise of reflec

tion and judgment. “Premeditation” means that the inte nt to kill must have been formed prior to the act itself. It is not necessary that the pur pose to k ill pre-exist in the mind of the accus ed for an y definite period of time. The mental state of the accused at th e time the accuse

d allegedly decided to k i ll must be carefully considered in order to determine whether the accus ed w as sufficiently free from excitement and passion as to be capable of premeditation.

Tenn. Code Ann. § 39-13-202(d). Theelement of preme ditation isa question for the jury and may be established by proof of the circumstances surrounding the killing. State v. Bland , 958 S.W.2d at 660. O ur supreme court has delineated th

e following fac

tors that demonstra

te the existe

nce o f premeditation: the use of a deadly weapon upon an unarmed victi m, the particular cruelty of the killing, declarations by the defendant of an intent to kill, evidenc e of procu rement of a weapon, preparations before the killing for concealmen

t of th e crime, and calmness immediately after the killing. Id.
Especially

aggravated robbery is defined as robbery

that is “(1) [a]cco

mplished with a dea

dly weapon; and(2) [w]here the victim suffers serious bodily injury.” Tenn. Code Ann. § 39-13-403(a). A deadly weapon

is defined as “[a]nything that in the manner of its use o

r intended use is c

apable of causing death or serious bodily injury [.]” Tenn. Code Ann. § 39-11-106(a)(5)(B).-8-

Viewed in the lig

ht most favorable

to the state , the evidence reveals that the defendant committed especially aggravated robber y and attempted

to commit first

degree murde

r. The victim
was shot as he walked with the defendant and Mr. Williams to Mr. Land’s house. Mr. Williams was walking ahead of the victim, and the defendant waswalking behind th e victim, when the v

ictim lost consciousnes s. When the victim awoke, he heard a loud ringing in his ears and could not wal k withoutfalling over. He touched the back of his head, felt blood and a hole, and realized that he had been shot. The victim ’s gun, beepe r, jewelry, car k eys, and money were m issing. The defendant, who was carrying a gun when the victim was shot, told Mr. Williams and Ron nie Bennett

that he shotthe victim. Furthe

rmore, the defe

ndant lied to the vic

tim’ s girlfriend in order to obtain the victim’s clothing and told several witnesses that he bou ght the Bl azer from the victim. The defendant wore the victim’s clothes and drove the victi m’s Blazer i n the days after t he shootin g. Although the defendant

argues that

some of the state’ s witnesses were not credible, the

credibility of the witnesses and the weight to be given to their testimony are issues to be resolved by the trier of fact, not th

is cou rt. State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). The jury chose to believe the testimony of other witnesses over that of the defendan t, and that is its prerogative. Id. We believe the evi dence is suffici

ent to support the de

fendant’s convic

tions.

II. EXCITED UTTERANCE TESTIMONY

The defendant contends that the trial court erred b y admittin g hearsay testimony into evidence. He argues that the trial court improperly allowed Jennifer Ellis to testify that the victim stated, “Patti Boo done shot me.” Although the trial court found that the statement was

admissible under the excited utterance exception to the hears ayrule, the defendant argues that the excited utterance excep

tion does not apply

because the vic

tim had time to refle

ct on his injury and had

no memory of being shot in

the back of the he

ad. The state

argues that the testimony was admissible. We agree with the state.

Three requirements must be met for a hearsay statement to be admissi ble as an excited utterance: (1) there must be a startling event or con dition; (2) the statement must relate to the startling event or condition; and (3) the statement must be made whil e the declarant is under the stress or excitement from the event or c ondition. Tenn. R. Evid. 803( 2); State v. Gordon , 952 S.W.2d 817, 820 (Tenn. 1997). The “ultimate test” for determining the admissibility of an excited utteranceis “spontaneity and logical relation to the main event and where an act or decla ration springs out of the transaction while the parties are still laboring under the excitement and strain of the ci rcu mstances 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). Other re levant considera

tions include: (1) t

he time interval between the startling e vent and the statement; (2) the nature and seriousness of the condition; (3) the appearance, behavior, outlook, and circumstances of the declarant, including characteristics such as age, physical condition, and mental condition; and (4) the contents of the statement, which may indicate the presence or absence of stress. Gordon , 952 S.W.2d at 820. The rationale behind the excited utteranc

e exception is

that the hearsay statement is reliable because it is made when time for reflection and po ssible fabri cation are lacking and memory of the event is still fresh in the-9-

declarant’s mind. Id. at 819-20 (citing NeilP. Cohen et al., Tennessee Law of Evidence , § 803(2).1, at 532 (3d ed. 1995)).

We believe that being shot in the back of the head and the victim’s discovery of that fact are startling events and that the stat ement “Patti Bo o done shot me ” relates to those events. It is a

lso reasonable to conclude from the evidence that the victim was still under the stress and excitement of being shot when he made the statement. The evidence shows that the defendant shot the

victim at 4:00 a.m. and that th

e victim awoke ab

out two hours later

. The victim touche

d the back of his head, felt blood and a hole, and immediately began crawling f or help. At 6:30 a.m., he fell into the Golden Gallon and made the statement at issue. We do not believe the time interval is so great that the victim could not have been under stress from the sho oting. The defendant argues that the victim’s statement was ina dmissible because

the victim

mad e the statement af

ter he had time to reflect and because the

startling event

was not fresh in his

mind. However, th

e time interval is

just one factor to consider in an excited utter ance a nalysi s. In addition, the victim testified at trial that he remembered walkingthe trail to Mr. L and’s house and th

at Mr. Williams

was in front of him and the defendant was be

hind him . Th us, the victim remembered the events and moments leading up to the shooting, and

h e reasonably believed that the defendant shot him. We conclude that the victim’s statement was properly admitted by the trial cour t.

Based upon the foregoing and the record as a whole, we affirm the judg ments of conviction.

___________________________________ JOSEPH M. TIPTON, JUDGE