IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

February 25, 2020 Session

STATE OF TENNESSEE v. ODELL GLASS

Appeal from the Criminal Court for Knox County

No. 109941 Bob McGee, Judge

No. E2019-00965-CCA-R3-CD

The defendant, Odell Glass, appeals his Knox County Criminal Court jury convictions of 

possession of a firearm by a convicted felon, felony murder, and reckless homicide, 

challenging the admission of testimony from the medical examiner regarding muzzle 

distance, the admission of surveillance video, and the sufficiency of the convicting 

evidence. Discerning no error, we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY 

THOMAS, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Joshua Hedrick, Knoxville, Tennessee, for the appellant, Odell Glass.

Herbert H. Slatery III, Attorney General and Reporter; Cody N. Brandon, Assistant 

Attorney General; Charme P. Allen, District Attorney General; and Phillip Morton and 

TaKisha Fitzgerald, Assistant District Attorneys General, for the appellee, State of 

Tennessee.

OPINION

The Knox County Grand Jury charged the defendant via presentment with 

one count of possession of a firearm after having been previously convicted of a felony 

involving the use of violence, one count of possession of a firearm after having 

previously been convicted of a felony involving the use of force, one count of the 

possession of a firearm after having been previously convicted of a felony involving the 

use of a deadly weapon, first degree felony murder in the perpetration of burglary, first 

degree felony murder in the perpetration of attempted burglary, first degree felony 

06/09/2020
-2-

murder in the perpetration of theft, first degree felony murder in the perpetration of 

robbery, and first degree premeditated murder for the death of the victim, Michael Nolan.

James Walker testified that he and Avis Mills went to the Holiday Market 

in East Knoxville on January 3, 2017. Mr. Walker recalled that Mr. Mills went into the 

store, and when he returned to the car, Mr. Walker “heard numerous gunshots” and 

ducked down in his seat. As Mr. Walker began to back out of the parking lot, he saw 

“this red car come out, turn to the right. He hit the curve and it went up the street.” At 

that point, a man named Juney Burdine asked Mr. Walker for “a ride up the street, 

because it was his friend, he said, that got shot.” Mr. Walker drove Mr. Burdine to 

Hobby Car Repair Center (“Hobby’s”). Once there, “Juney looked in the car and got 

back in the car with me and said, yeah, he been shot, so just take me back.” Mr. Walker 

took Mr. Burdine back to Holiday Market, where Mr. Walker overheard Mr. Burdine tell 

Mark Nolan that his brother had been shot. Mr. Walker then left Holiday Market to go 

home but found his way “blocked off with police cars.” He then drove “back down 

Martin Luther King and numerous police cars had got behind me.” Thinking that the 

police cars wanted to get by him, he pulled into a parking lot. The police cars followed 

him, and several officers “pulled their guns on me and told me not to get out of the car.” 

After sitting in the car for some time, he was taken to the police station, where he gave a 

recorded statement.

Mr. Mills testified that as he “was getting out of the car, about to go in the 

store,” he “heard a gunshot, so I ducked down in front of the car.” After the shooting 

stopped, Mr. Mills got up and saw a red car pull out of the parking lot across the street 

and drive toward Hobby’s. Mr. Mills got back into Mr. Walker’s car “and rode up the 

street. And then that’s when I seen that car that was parked over there in the parking lot 

right there.” He recalled that the driver was “just bent over the car like that in the front 

seat.” At that point, Mr. Mills saw “the white guy. He was standing right there next to 

him trying to get his attention. My thing was, why he didn’t just call the ambulance or 

the police or something like that to . . . try to help the man out.” Mr. Mills said that he 

and Mr. Walker went to the police department to be questioned and then to Mr. Walker’s 

house.

During cross-examination, Mr. Mills estimated that Mr. Burdine was out of 

Mr. Walker’s car for five to 10 minutes but maintained that Mr. Burdine did not touch the 

victim’s car and instead only “looked in the window to see if he was all right.”

Charles Nichols, who “was buying some CDs in the parking lot where Myrl 

set up shop in his white car” “right across the street” from “Chipper Grimes place” and 

“probably 50 feet from” Hobby’s, testified that he heard “gunshots, pop, pop, pop, pop. 

And once I hear that, I turn to where it was. I see a maroon car which a gentleman in it --
-3-

now, who I know was Nolan -- and then I see a grayish Audi pull from the car.” The man 

in the maroon car “drove away,” making a right out of the parking lot at “Chipper Grimes 

place.”

Tim Hobby, the owner of Hobby’s, was sitting in his van in the parking lot 

adjacent to Hobby’s when he heard gunshots. He said that he “didn’t pay no attention to 

them. You hear them over there all the time.” Shortly thereafter, the victim, whom Mr. 

Hobby had known for several years, “pulled up beside me and actually put the car up in 

park, looked over at me and never said a word, just fell back. A few seconds went by and 

he raised back up.” Mr. Hobby “thought [the victim] was having a seizure” because he 

could not see any blood. Mr. Hobby telephoned the victim’s brother, Gary, and told him 

that “his brother was up there and something was wrong with him,” but before Gary 

arrived, “someone pulled up and told me he had been shot . . . . And that was when I 

called Gary back and told Gary that.” By that time, Mr. Hobby “could see the blood and 

see bullet casings in the car at that time. And then [the victim] died.”

Athena Dalton, a nurse who participated in the victim’s treatment, testified 

that the victim arrived at the University of Tennessee Medical Center at 3:58 p.m. with a 

single gunshot wound to the left thigh. He was immediately designated a “full alert” 

trauma, meaning that he was “very unstable.” The victim had no pulse, and an ultrasound 

examination showed that “he had no cardiac motion at that time.” The victim’s pupils 

were not reactive. He was declared dead at 3:59 p.m. Ms. Dalton said that, based upon 

the location of the injury and the amount of blood loss, she “assumed that it was the 

femoral artery” and noted that “[a]ny kind of arterial injury normally is potentially fatal.”

Timothy Schade, who worked for the Knoxville Police Department 

(“KPD”) in the forensic unit at the time of the shooting, testified that he collected 

evidence and took photographs during the search of a house at 2315 Chester Drive. He 

also collected evidence from and took photographs of a silver Audi A4 in the KPD 

impound lot. From the Chester Drive residence, Mr. Schade collected an LG cell phone; 

a black wallet containing an ID, insurance card, a pawn ticket, and half of a white pill; a 

.45-caliber ACP pistol and two magazines; and a “Fresenius medical care bag, with 

earbuds, blanket, gray shirt, a white/aqua-striped shirt and paper.”

Investigator Brandon Wardlaw, who conducted the investigation with his 

partner, Investigator Jeff Day, testified that when the investigation led them to a Pilot 

store near the intersection of Northshore and Papermill, he contacted the legal department 

to obtain the video surveillance from that store.

Investigator Day testified that he responded to the scene and drove directly 

“to where the victim’s car was at Hobby’s.” By the time he arrived, the victim had 
-4-

already been transported to the hospital. Investigator Day then drove to the parking lot 

across from the Holiday Market where other officers and witnesses had congregated. He 

instructed a patrol officer to take the witnesses to the police department for questioning. 

He also arranged for the securing of video surveillance from the nearby buildings.

When he returned to the police station, Investigator Day interviewed Mr. 

Walker and Mr. Mills. Between the two interviews, he learned that the surveillance 

footage showed “the victim’s vehicle sitting in the parking lot and then the silver Audi 

pulling up and stopping, suspect getting out, the incident taking place, him leaving.” 

Based upon this information, the KPD issued a “BOLO” for the silver Audi. A short time 

later, Investigator Day learned that officers had stopped that vehicle. The driver of the 

vehicle, Casey Woodley, was transported to the police station. Before Investigator Day 

had the opportunity to interview Ms. Woodley, Akeva Dixon, Ms. Woodley’s sister and 

the owner of the silver Audi, arrived at the police station. Apparently, Ms. Dixon had 

been to the scene, had learned that a silver Audi had been involved, and had gone to the 

police station to “ask us what was going on, in terms of what we knew, and she also 

wanted to apprise us with information about that vehicle.”

Investigator Day testified that the date stamp on the surveillance video 

showed that the video recording was taken on January 3, 2017, but that “[t]he time 

appears to be off,” which he said was “somewhat normal” for surveillance videos. He 

said that the video showed the defendant approach the victim’s car with his gun drawn 

and open the door. He testified that, based upon the other information he gleaned during 

his investigation, the video recording appeared to accurately capture the events of 

January 3, 2017.

After speaking to Ms. Woodley, Investigator Day attempted to locate the 

defendant by tracking his location via his cellular telephone. Later that evening, tracking 

information indicated that the cellular telephone linked to the defendant was located 

inside a duplex on Chester Drive. Because the tracking data did not provide sufficient 

information for the officers to discern which half of the duplex the defendant was in, they 

set up surveillance to “watch the street, watch the houses there to see if . . . any person 

matching that description for [the defendant] would show up.” In the meantime, officers 

obtained video surveillance footage from the Pilot station where Ms. Woodley worked. 

That footage showed the defendant driving the Audi while wearing the same clothing 

worn by the shooter in the surveillance video. Officers arrested the defendant on the 

following day at 2315 Chester Drive. After the defendant was transported to the police 

station, officers asked the defendant’s girlfriend, Latara Moore, if they could search the 

residence, and she agreed. In addition to the items collected by Mr. Schade, Officers 

discovered a piece of mail bearing the defendant’s sister’s name along with a credit card 

bearing the defendant’s name inside the residence. Investigator Day examined the gray 
-5-

shirt collected from 2315 Chester Drive and said that the shirt “appears to be exactly the 

same as the one in the video of the shooting.”

Investigator Day interviewed the defendant, and an audio recording of that 

interview was played for the jury.

In the interview, the defendant initially claimed that he did not know why 

he had been arrested and claimed to have been home until 4:00 p.m. on the day of the 

shooting. He also initially claimed that he “knew of” the victim but “didn’t know him 

personally.” After being confronted with the surveillance footage, witness statements, 

and cellular telephone location information, the defendant acknowledged having shot the 

victim. He said that the victim was armed with “a 380 or a nine” millimeter handgun and 

“either he threw it or got rid of it or something.” The defendant explained that he had 

paid the victim “like $2,500” for “like 50 Opanas” that he later learned were “fake.” The 

defendant used another person’s telephone to call the victim to complain, and the two got 

into an argument over the telephone. The victim “aggressively” told the defendant “to 

pull up on MLK.” “As soon as I pull up, I seen him like reaching, so I run up to the car. 

I’m not trying to kill this man at all. Period.” The defendant said that he believed the 

victim was going to give him his money back, but he said that the victim “was talking 

s***.” The defendant said that he “hit him in the leg” specifically because he was not 

trying to kill the victim. The victim then threw some money out the window, “but it 

wasn’t nothing but like some $70.” The defendant demanded the remainder of his 

money. The defendant said that he fired two shots, aiming both at the victim’s legs. He 

said that he did not initially believe reports that the victim had died.

Investigator Day testified that he “could find no correlation, no connection 

between the defendant’s phone and the victim’s. There w[ere] no calls to or from the 

victim and [the defendant] on that day.” The results of the forensic examination 

established that the defendant “had used his phone several, several times before the 

shooting and after,” but Investigator Day was unable to corroborate the defendant’s claim 

about a phone call of some kind from the victim.

During cross-examination, Investigator Day acknowledged that it was 

possible that the defendant used more than one telephone. Investigator Day admitted that 

although only one cellular telephone was found in the victim’s car, it was possible that he 

had a second cellular telephone.

Investigator Day said that the evidence established that two shots were 

fired; one bullet was recovered from underneath the driver’s seat and was likely the shot 

that went through the victim’s leg, and the other bullet was found lodged in the door seal. 

He said that the trajectory of the bullet indicated that “the gun had to be elevated” but 
-6-

clarified that “[t]he angle of that bullet was not vertical, but probably close.” The first 

bullet either “goes through the window or his hand is through the window,” but “[y]ou 

can’t see it on the video.” He said that “the second shot -- or the shot into the door had to 

be with the door open, obviously.” He admitted that it would be difficult to glean much 

regarding the position of the gun from the location of the spent casing inside the car 

because it could have struck something inside the car before landing. Investigator Day 

acknowledged that a number of people, including the friends and family of the victim, 

arrived on the scene before the police and emergency personnel.

Tennessee Bureau of Investigation (“TBI”) Special Agent and Forensic 

Scientist Laura Hodge testified as an expert in firearms identification. In this case, she 

received a firearm and magazines, two fired cartridge cases, and 21 unfired cartridge 

cases from the KPD. “Both magazines are what I call an aftermarket magazine. This is 

not the magazine that the manufacturer intended to have with this gun.” One magazine 

was designed to hold eight cartridges, and the other was designed to hold 15 cartridges. 

Agent Hodge “was able to determine that the two cartridge cases . . . had been fired 

from” the handgun collected from 2315 Chester Drive. She testified that “[t]he cartridge 

cases will eject on the right side of the pistol” and that “this particular pistol, when I testfired it, the cartridge cases went from 4 to 12 feet at three o’clock. That means I’m 

holding the firearm at a twelve o’clock position firing it. The cartridge cases go out at 

three o’clock.”

During cross-examination, Agent Hodge said that she did not recall if the 

cartridge case traveled in “an arch or if it was straight out” when expelled. Agent Hodge 

said that the TBI had conducted “muzzle-to-garment distance testing” in other cases but 

had not been asked to do so in this case. She said that by examining a garment 

“microscopically, visually and chemically, if there’s powder present, then I can take the 

firearm that was identified as being used and the same type of ammunition and conduct 

test patterns, and I could give a range.” She said that, “[t]ypically, for reporting, a range 

could be greater than contact, less than 36 inches.” She said that it would be necessary to 

have the same garment, firearm, and ammunition to arrive at an accurate estimate 

“[b]ecause manufacturers use different powders . . . and bullets, even. So you . . . must 

have all three components to do it as accurately as possible.” She said that she could not 

have conducted muzzle-to-garment testing in this case because she did not have the 

clothing that the victim was wearing.

During redirect examination, Agent Hodge reiterated that muzzle-togarment testing could not provide an exact distance but would give a range of “greater 

than contact, less than 36 inches.” She said that “[t]he typical maximum distance at 

which gunshot residue will deposit on clothing is typically four to five feet.” She agreed 

that “[w]ith minor action, with medical examiners, yes, they are able to make [the 
-7-

muzzle-to-garment] determination when they do the autopsy.”

Knox County Chief Medical Examiner Doctor Darinka Mileusnic-Polchan, 

who testified as an expert in forensic pathology, conducted the autopsy of the victim and 

determined that the “cause of death . . . was gunshot wound of left thigh, which severed 

the femoral vessels and caused exsanguination.” She said that the bullet traveled “from 

left to right, slightly front to back and it’s just about . . . an inch and a quarter downward, 

very, very minimal downward, almost straight.” The bullet “completely dissected” “the 

femoral artery and the femoral vein,” which would have resulted in a wound “that would 

bleed in a kind of gushing manner” and that would result in the presence of “a lot of 

arterial blood at the scene.” She observed that, given the location of the wound, “it 

would be hard to stop the bleeding, even if one had a tourniquet available at the time.” 

She said that the victim would have died within a matter of minutes, “ten minutes max.”

Doctor Mileusnic-Polchan testified that the regular shape of the wound 

indicated that “there’s really no barrier between the gun and . . . the thigh, except for the 

clothing.” She said that she could “basically categorize wounds in three major 

categories” based upon the position of the wound and the “deposit of soot or gunpowder 

on the body or on the clothes.” In this case, because the victim wore several layers of 

clothing at the time of the shooting, she “concentrate[d] on the clothing item” to look for 

the presence of soot or gunpowder. She identified a “two-inch span, where this spread of 

burned and unburned gunpowder happened” on the victim’s jeans. She also observed an 

area on “the inner part of the pocket” that appeared as “kind of almost like a burn and 

gunpowder deposit on the” hole caused by the bullet. Based upon these findings, Doctor 

Mileusnic-Polchan classified the victim’s wound as a “close-range gunshot wound.” She 

opined that “based on the density, not knowing much about the gun, is that it’s very 

dense; it’s coming all the way to the jeans; it burns the pocket underneath, so it has to be 

less than one foot.” She clarified that she could not narrow the distance any further 

without ballistics testing.

During cross-examination, Doctor Mileusnic-Polchan agreed that the type 

of gun and ammunition would affect the amount of gunpowder and soot produced. She 

said that ballistics testing could have been performed in this case because “you have the 

actual gun and you have the actual ammunition that is identical to the one used at the 

scene” and that, had such testing been done, she “could tell you this is between five to six 

or nine inches.” Doctor Mileusnic-Polchan did not calculate the angle of entry of the 

bullet in degrees, did not measure the door of the car or the distance between the top of 

the victim’s leg and the bottom of the window, and did not know the exact position of the 

victim’s feet inside the car.

Based on this evidence, the jury convicted the defendant as charged of 
-8-

possessing a firearm after having been convicted of a felony and felony murder. As to 

count eight, which charged premeditated first degree murder, the jury convicted the 

defendant of the lesser included offense of reckless homicide. The trial court merged the 

convictions as required by double jeopardy principles,

1

and, following a sentencing 

hearing, imposed a sentence of life plus eight years’ incarceration.

In this appeal, the defendant challenges the admission of Doctor MileusnicPolchan’s testimony regarding muzzle distance and the surveillance video depicting the 

shooting. He also challenges the sufficiency of the convicting evidence. We consider 

 

1 Despite that the three firearm counts rely on the same two predicate offenses and allege a 

violation of the same exact statue, Code section 39-17-1307(b)(1)(A) (“A person commits an offense who 

unlawfully possesses a firearm, as defined in § 39-11-106, and . . . [h]as been convicted of a felony 

involving the use or attempted use of force, violence, or a deadly weapon . . . .”), the State chose to break 

up what was, in reality, a single offense in violation of a solitary statutory provision into three distinct 

counts of the presentment. Additionally, the State broke the single charge of felony murder into five 

counts, including separate counts charging murder in the perpetration of “any burglary,” one in the 

perpetration of burglary and one in the perpetration of attempted burglary. The improper charging of the 

same offense in more than one count of an indictment results in multiplicity, the evils of which “are twofold.” “[M]ultiplicity may carry the potential of unfair prejudice, such as suggesting to the jury that a 

defendant is a multiple offender or falsely bolstering the state’s proof on such issues as the defendant’s 

motive or knowledge of wrongdoing” and “can lead to multiple convictions and punishment for only one 

offense.” State v. Whitmore, No. 03C01-9404-CR-00141, 1997 WL 334904, at *9 (Tenn. Crim. App., 

Jackson, June 19, 1997) (citing State v. Desirey, 909 S.W.2d 20, 27 (Tenn. Crim. App. 1995) (citations 

omitted)). The second problem, the potential for multiple punishments, can be cured by a merger of 

offenses. As to the first problem, however, even though “multiplicitousness never places a defendant in 

jeopardy of multiple sentences, the prolix pleading may have some psychological effect upon a jury by 

suggesting to it that defendant has committed not one but several crimes.” United States v. Mamber, 127 

F. Supp. 925, 927 (D. Mass. 1955); see also, e.g., United States v. Sue, 586 F.2d 70, 71-72 (8th Cir. 

1978). We can fathom no legal reason that compels the decision to break apart the offenses in this way. 

Indeed, Code section 40-13-202 requires that an indictment “state the facts constituting the offense in 

ordinary and concise language, without prolixity or repetition, in a manner so as to enable a person of 

common understanding to know what is intended and with that degree of certainty which will enable the 

court . . . to pronounce the proper judgment.” T.C.A. § 40-13-202 (emphasis added). We also observe 

that excessive multiplicity, even when it does not violate double jeopardy principles or unfairly prejudice 

the defendant, increases the potential for error and juror confusion and unnecessarily consumes valuable 

judicial time and resources. For example, had the State elected to simply charge the defendant with 

felony murder in the perpetration of burglary, sufficient evidence of either a completed or attempted 

burglary would have been sufficient to support the conviction. See generally State v. Swett, No. M2011-

00439-CCA-R3-CD, 2013 WL 53993, at *16 (Tenn. Crim. App., Nashville, Jan. 4, 2013). Given that the 

evidence easily supports a conclusion that the defendant murdered the victim during the perpetration of at 

least an attempted burglary, significant judicial resources could have been saved both at trial and on 

appeal. Instead, the State’s charging decision resulted in the devotion of a significant amount of time and 

resources to the issue whether the defendant actually entered the victim’s car as that term is used in Code 

section 39-14-402, a determination that is, in the grand scheme of things, entirely unnecessary to a

conviction of first degree felony murder in the perpetration of “any burglary.”
-9-

each claim in turn.

I. Admission of Doctor Mileusnic-Polchan’s Testimony

The defendant first asserts that the trial court erred by permitting Doctor 

Mileusnic-Polchan “to offer an opinion regarding muzzle distance without fulfilling its 

gatekeeping role.”

On appeal, the defendant argues that, when he objected to Doctor 

Mileusnic-Polchan’s testimony regarding muzzle distance, the trial court should have 

evaluated the methodology employed by Doctor Mileusnic-Polchan to determine 

“whether those methods were sufficiently reliable” to support the admission of her 

opinion. The defendant contends that the trial court’s ruling that the challenge to the 

methodology “goes to the weight of the evidence and not its admissibility turns McDaniel 

and its progeny on its head.”

The admissibility of expert testimony is governed by Tennessee Rules of 

Evidence 702 and 703 of the Tennessee Rules of Evidence. See generally McDaniel v. 

CSX Transp., Inc., 955 S.W.2d 257 (Tenn. 1997). Rule 702 addresses the need for expert 

testimony and the qualifications of the expert: “If scientific, technical, or other 

specialized knowledge will substantially assist the trier of fact to understand the evidence 

or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, 

experience, training, or education may testify in the form of an opinion or otherwise.” 

Tenn. R. Evid. 702. Rule 703, which focuses on the reliability of expert opinion 

testimony, states:

The facts or data in the particular case upon which an expert 

bases an opinion or inference may be those perceived by or 

made known to the expert at or before the hearing. If of a 

type reasonably relied upon by experts in the particular field 

in forming opinions or inferences upon the subject, the facts 

or data need not be admissible in evidence. Facts or data that 

are otherwise inadmissible shall not be disclosed to the jury 

by the proponent of the opinion or inference unless the court 

determines that their probative value in assisting the jury to 

evaluate the expert’s opinion substantially outweighs their 

prejudicial effect. The court shall disallow testimony in the 

form of an opinion or inference if the underlying facts or data 

indicate lack of trustworthiness.

Tenn. R. Evid. R. 703.
-10-

Generally, the admissibility of expert testimony is a matter entrusted to the 

sound discretion of the trial court, and there can be no reversal on appeal absent clear 

abuse of that discretion. See State v. Scott, 275 S.W.3d 395, 404 (Tenn. 2010); State v. 

Copeland, 226 S.W.3d 287, 301 (Tenn. 2007). “A trial court abuses its discretion when it 

applies incorrect legal standards, reaches an illogical conclusion, bases its decision on a 

clearly erroneous assessment of the evidence, or employs reasoning that causes an 

injustice to the complaining party.” Scott, 275 S.W.3d at 404 (citing Konvalinka v. 

Chattanooga-Hamilton County Hosp. Auth., 249 S.W.3d 346, 358 (Tenn. 2008)).

As indicated, the defendant attacked the methodology behind Doctor 

Mileusnic-Polchan’s testimony about the muzzle-to-garment distance in this case. Our 

supreme court, in McDaniel, identified a list of factors “[t]o assess methodological and 

foundational reliability”:

(1) whether scientific evidence has been tested and the 

methodology with which it has been tested; (2) whether the 

evidence has been subjected to peer review or publication; (3) 

whether a potential rate of error is known; (4) whether the 

evidence is generally accepted in the scientific community; 

and (5) whether the expert’s research in the field has been 

conducted independent of litigation.

Scott, 275 S.W.3d at 403-04 (citing McDaniel, 955 S.W.2d at 265). The court cautioned, 

however, that “[r]igid application of these factors is unnecessary” and that “[n]ot all 

expert testimony will ‘fit’ with these factors.” Scott, 275 S.W.3d at 404 (citing 

Copeland, 226 S.W.3d at 302; Brown v. Crown Equip. Corp., 181 S.W.3d 268, 277 

(Tenn. 2005)). Importantly, however, the trial court “must assure itself that the opinions 

are based on relevant scientific methods, processes, and data, and not upon an expert’s 

mere speculation,” keeping “in mind that the preliminary question . . . is one of 

admissibility of the evidence” as determined “within the framework of rules 702 and 

703.” McDaniel, 955 S.W.2d at 265 (citation omitted).

During the State’s direct examination of Doctor Mileusnic-Polchan, the 

defendant objected 

to the muzzle distance as being outside the scope of the 

qualifications we’ve discussed previously and for what she’s 

been admitted. If we’re going to talk about the distance of 

muzzle to wound, I would suggest that the methodology she 
-11-

used, unless she used test patterns, is not an acceptable 

methodology.

He argued that Doctor Mileusnic-Polchan had previously testified in an unrelated case 

that “you have to have test patterns in order to make that determination.” The State 

argued that she was qualified to offer the testimony “as a forensic pathologist and an 

anatomic pathologist.” The defendant argued that “at a minimum, if you’re going to 

accept it, I’m entitled to engage in voir dire about the validity of the methods used.” The 

court overruled the objection, concluding “that this objection goes to the weight of the 

evidence rather than the admissibility. I’ll allow it to be presented. Certainly, it will be 

subject to your cross-examination on the very issue you’ve raised.”

Although the trial court did not make an explicit ruling on the validity of 

the methodology employed by Doctor Mileusnic-Polchan, its ruling that the nature of the 

defendant’s objection impacted the weight of the evidence rather than its admissibility 

necessarily included an implicit conclusion that her opinion was based upon a valid 

methodology. Importantly, that Doctor Mileusnic-Polchan did not employ the same 

methodology as that described by Agent Hodge does not, ipso facto, lead to a conclusion 

that the methodology employed by Doctor Mileusnic-Polchan was invalid. Doctor 

Mileusnic-Polchan testified that she had been trained to assess the muzzle-to-target 

distance when conducting autopsies and that she included her conclusions in each of the 

autopsies she performed on gunshot wound victims. She explained the method she used 

generally and explained how she used that methodology to arrive at her conclusion in this 

case. Under these circumstances, we agree with the trial court that the fact that Doctor 

Mileusnic-Polchan did not employ the same methodology as Agent Hodge and did not 

engage in any test firing would impact the weight of her conclusions regarding the 

muzzle-to-target distance in this case and not the admissibility of her opinion on the 

subject. Moreover, given the overwhelming proof of the defendant’s guilt in this case, 

the admission of this evidence, even if erroneous, was harmless.

II. Admission of Surveillance Video

The defendant next contends that the trial court erred by admitting into 

evidence surveillance video that “purported to show the incident in question” via a 

witness who lacked the firsthand knowledge necessary to authenticate the video.

During Investigator Day’s direct examination testimony, he began 

describing what he saw when he viewed video surveillance footage from the scene of the 

shooting. The defendant objected on best evidence and authentication grounds. He 

argued that “we don’t have any authentication that this is, in fact, a recording of this 

incident. Right? ‘Cause we’ve got nobody to come in and say that this video is a video 
-12-

of this incident.” He also argued that “it’s a best evidence problem” because “[t]he 

contents of the recording are proved by the recording.” He asserted that the officer’s 

“saying it appears that he’s entering the car, it appears this, it appears that. Those are, to 

some extent, his judgments of what he sees based on watching the video.” The court 

agreed that “the best way to proceed is to introduce that video through this witness and 

allow him to describe it, narrate it for the jury as he goes.” The court also indicated an 

intent to “instruct the jury that it is the video and not the officer’s interpretation that is 

evidence.” At that point, the defendant reiterated his authentication objection to the 

video’s admission via Investigator Day, arguing that Investigator Day did not have 

“sufficient knowledge to say that this is a fair and accurate depiction of those events.” 

He noted that the officer was not present at the location when the events occurred and had 

no knowledge of the recording system. The State argued, 

[A]ll we’ve got to establish, we believe, is for the officer to 

testify that looking at this video, he can identify this 

defendant pulling out a gun -- or having a gun and shooting

the victim. He can do that. We don’t have to have the owner 

of the video. It’s just that this . . . officer can identify the 

location and the defendant committed a crime.

The trial court sustained the objection as to best evidence but overruled the objection 

“based on capacity to the authentication.” Before the video recording was played for the 

jury, the trial court instructed the jury as follows:

Ladies and gentlemen of the jury, the State is now going to 

introduce into evidence a video that’s already begun. The 

witness is going to describe what he believes is happening in 

the video. The evidence is the video. In this particular 

situation, . . . the witness’s statements about his interpretation 

of the video are not actually evidence. They are intended to 

help you understand the evidence . . . if you want to use it for 

that purpose, but that’s not the evidence. The evidence is the 

video. And you’ll make up your own mind about what you 

see or don’t see.

Tennessee Rule of Evidence 901 provides that “[t]he requirement of 

authentication or identification as a condition precedent to admissibility is satisfied by 

evidence sufficient to the court to support a finding by the trier of fact that the matter in 

question is what its proponent claims.” Tenn. R. Evid. 901(a). “Authentication can be 

properly established by the testimony of a witness with knowledge that the ‘matter is 

what it is claimed to be.’” State v. Mickens, 123 S.W.3d 355, 376 (Tenn. Crim. App. 
-13-

2003) (citing Tenn. R. Evid. 901(b)(1)). Both Rule 901 and the common law designate 

the trial court as the “arbiter of authentication issues,” and, accordingly, that court’s 

ruling will not be disturbed absent a showing that the court clearly abused its discretion. 

See Tenn. R. Evid. 901, Advisory Comm’n Comments; Mickens, 123 S.W.3d at 376. An 

abuse of discretion occurs when the trial court applies an incorrect legal standard or 

reaches a conclusion that is “illogical or unreasonable and causes an injustice to the party 

complaining.” State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006), overruled on other 

grounds by State v. Patterson, 564 S.W.3d 423, 433 (Tenn. 2018); see State v. Shirley, 6

S.W.3d 243, 247 (Tenn. 1999).

The defendant argues that because Investigator Day was not present at the 

scene and had no knowledge about the origin of the allegedly erroneous time stamp, he 

could not properly say that the video recording was actually a video recording of the 

offense. That is not what the rule requires. To be sure, Rule 901 provides that 

authentication may be made by the testimony of a witness with knowledge that “a matter 

is what it is claimed to be.” Tenn. R. Evid. 901(b)(1). In this case, Investigator Day, 

importantly testified that he reviewed the video surveillance footage and that the video 

recording being offered into evidence was the same recording. That he could not say 

with certainty that the video recording actually captured the offense in progress or vouch 

for the accuracy of the time stamp was irrelevant to the determination whether the 

recording was properly authenticated under Rule 901; it was enough that Investigator 

Day testified that the recording was what it purported to be, the surveillance video 

collected on the day of the offense.

Moreover, Rule 901 provides that the testimony of a witness with 

knowledge is but one in a list provided “[b]y way of illustration only, and not by way of 

limitation.” Id. Also included in the illustrative list is the ability to authenticate a matter 

using “[a]ppearance, contents, substance, internal patterns, or other distinctive 

characteristics, taken in conjunction with circumstances.” Id. at (b)(4). Here, 

Investigator Day was familiar with the location of the offenses, the vehicles involved, the 

description of the perpetrator and his clothing, and the basic facts of the case. In 

consequence, he could ascertain whether the actions depicted in the video aligned with 

the information he had gleaned about the offense from his investigation and could, as a 

result, authenticate the video recording.

III. Sufficiency

Finally, the defendant asserts that the evidence was insufficient to support 

his convictions of felony murder.
-14-

Sufficient evidence exists to support a conviction if, after considering the 

evidence—both direct and circumstantial—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. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319 (1979); 

State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). This court will neither re-weigh 

the evidence nor substitute its inferences for those drawn by the trier of fact. Dorantes, 

331 S.W.3d at 379. The verdict of the jury resolves any questions concerning the 

credibility of the witnesses, the weight and value of the evidence, and the factual issues 

raised by the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). 

Significantly, this court must afford the State the strongest legitimate view of the 

evidence contained in the record as well as all reasonable and legitimate inferences which 

may be drawn from the evidence. Id.

Felony Murder in the Perpetration of Burglary

The defendant argues that the evidence was insufficient to support his 

conviction of felony murder in the perpetration of a burglary because no evidence 

conclusively established that the defendant actually entered the victim’s car. The State 

asserts that the jury could have inferred from the position of the defendant’s body on the 

surveillance video, the presence of the cartridge casing in the passenger’s side floor 

board, and the angle of the gunshot wound that the defendant’s hand was inside the 

victim’s car when he fired at least one of the two shots in this case.

Felony murder, as charged in this case, is “[a] killing of another committed 

in the . . . attempt to perpetrate any . . . burglary.” T.C.A. § 39-13-202(a)(2). Burglary, as 

is applicable here, occurs when a person, “without the effective consent of the property 

owner . . . [e]nters any . . . automobile . . . with intent to commit a felony, theft or assault 

or commits or attempts to commit a felony, theft or assault.” Id. § 39-14-402(a)(4). As 

used in Code section 39-14-402, “‘enter means . . . (1) Intrusion of any part of the body; 

or (2) Intrusion of any object in physical contact with the body or any object controlled 

by remote control, electronic or otherwise.” Id. 39-14-402(b)(1)-(2). “Clearly, under this 

statutory definition, the crime of burglary is complete when entry has been made into an 

automobile without the owner’s consent and with an intent to commit a felony, theft, or 

assault.” State v. Ralph, 6 S.W.3d 251, 255 (Tenn. 1999) (citing State v. Lindsay, 637 

S.W.2d 886, 889 (Tenn. Crim. App. 1982)).

In his statement, the defendant acknowledged that he went looking for the 

victim on the day of the shooting, allegedly to recoup $2,500 that the victim owed him, 

and that he intentionally shot the victim, albeit because he thought the victim was 

reaching for a gun. The surveillance footage showed the defendant approach the victim’s 

car with his gun drawn and, at one point, open the door of the victim’s car. One cartridge 
-15-

casing was found inside the victim’s car. Agent Hodge testified that casings ejected at a 

right angle to the right side of the gun used to shoot the victim. From this evidence, a 

rational trier of fact could have concluded that the defendant’s hand or the gun entered 

into the passenger compartment of the victim’s car and that it was accompanied by the 

intent to commit a felony, theft, or assault.

Felony Murder in the Perpetration of Theft/Robbery

The defendant contends that the evidence was insufficient to support his 

conviction of felony murder in the perpetration of a theft or robbery because the State 

failed to establish that the defendant intended to take anything from the victim before 

deciding to shoot him.

Before a killing will “fall within the definition of felony murder, [it] must 

have been ‘done in pursuance of the unlawful act, and not collateral to it.’” State v. 

Banks, 271 S.W.3d 90, 140 (Tenn. 2008) (citing State v. Rice, 184 S.W.3d 646, 663 

(Tenn. 2006) (quoting Farmer v. State, 296 S.W.2d 879, 883 (1956))). “In other words, 

‘The killing must have had an intimate relation and close connection with the felony . . . , 

and not be separate, distinct, and independent from it [.]’” Farmer, 296 S.W.2d at 883 

(quoting Wharton on Homicide, § 126 (3rd ed.)); see also, e.g., Banks, 271 S.W.3d at 

140; State v. Thacker, 164 S.W.3d 208, 223 (Tenn. 2005). To satisfy the requirement of 

“an intimate relation and close connection,” “the killing ‘may precede, coincide with, or 

follow the felony and still be considered as occurring “in the perpetration of” the felony 

offense, so long as there is a connection in time, place, and continuity of action’”

Thacker, 164 S.W.3d at 223 (quoting State v. Buggs, 995 S.W.2d 102, 106 (Tenn. 1999)). 

The res gestae embraces not only the actual facts of the 

transaction and the circumstances surrounding it, but also the 

matters immediately antecedent to the transaction and having 

a direct causal connection with it, as well as acts immediately 

following it and so closely connected as to form in reality a 

part of the occurrence.

State v. Patrick Wingate, No. M1999-00624-CCA-R3-CD, slip op. at 9 (Tenn. Crim.

App., Nashville, May 25, 2000) (citing Payne v. State, 406 P.2d 922, 925 (Nev. 1965)). 

Although “the ‘intent to commit the underlying felony must exist prior to or concurrent 

with the commission of the act causing the death of the victim,’” the trier of fact “may 

reasonably infer from a defendant’s actions immediately after a killing that the defendant

had the intent to commit the felony prior to, or concurrent with, the killing.’” Thacker, 

164 S.W.3d at 223 (quoting Buggs, 955 S.W.2d at 107-08). “Proof that such intent to 
-16-

commit the underlying felony existed before, or concurrent with, the act of killing is a 

question of fact to be decided by the jury after consideration of all the facts and 

circumstances.” Buggs, 995 S.W.2d at 107-08 (citing Hall v. State, 490 S.W.2d 495, 496 

(Tenn. 1973); State v. Holland, 860 S.W.2d 53, 59 (Tenn. Crim. App. 1993)).

As indicated, the defendant admitted that he intended to confront the victim 

about the money the victim owed him. The surveillance footage showed that the 

defendant was armed when he encountered the victim, corroborating the defendant’s 

statement that he armed himself and went to confront the victim. The defendant also 

admitted that the victim thrust $70 at him. The surveillance video captured the defendant 

picking something up from the ground, and no money was discovered in or near the 

victim’s vehicle. The jury, as the trier of fact, was free to reject the defendant’s claim 

that the victim owed him money and that the victim reached for a gun. In our view, this 

evidence was sufficient to support the defendant’s convictions of felony murder in the 

perpetration of either robbery or theft.

Conclusion

Accordingly, we affirm the judgments of the trial court.

_________________________________ 

JAMES CURWOOD WITT, JR., JUDGE