FILED

January 8, 1999

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

SEPTEMBER SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9707-CR-00286

)

Appellee, )

)

) SHELBY COUNTY

VS. )

) HON. ARTHUR T. BENNETT

CRAIG BRYANT, ) JUDGE

)

Appellant. ) (Attempted Murder & 

) Aggravated Assault)

ON APPEAL FROM THE JUDGMENT OF THE

CRIMINAL COURT OF SHELBY COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

A.C. WHARTON JOHN KNOX WALKUP

Public Defender Attorney General and Reporter

WALKER GWINN DOUGLAS D. HIMES

Assistant Public Defender Assistant Attorney General

201 Poplar Avenue 425 Fifth Avenue North

Memphis, TN 38103 Nashville, TN 37243-0493

WILLIAM GIBBONS

District Attorney General

LEE V. COFFEE

Assistant District Attorney General

Criminal Justice Complex, Suite 301

201 Poplar Avenue

Memphis, TN 38103

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
 1 For purposes of clarity and brevity, we have consolidated some of the issues presented.

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OPINION

The Defendant, Craig Bryant, appeals as of right from a Shelby County jury

verdict convicting him of aggravated assault and attempted second degree

murder. The trial court sentenced him as a Range I standard offender to

consecutive sentences of three years for aggravated assault and ten years for

attempted second degree murder. The Defendant now appeals pursuant to Rule

3 of the Tennessee Rules of Appellate Procedure. We affirm the judgment of the

trial court. 

The Defendant presents six issues on appeal: (1) whether the criminal

attempt statute is applicable to the crime of second degree murder; (2) whether

the trial court erred by failing to charge the jury that the Defendant could not be

found guilty of attempted second degree murder unless he acted with the intent

to kill Casondra Bryant; (3) whether the evidence is sufficient to support the

Defendant’s conviction for aggravated assault on Jenitra Stone; (4) whether the

trial court erred by instructing the jury on the doctrine of transferred intent; (5)

whether the trial court erred by allowing Stacy Muncey, a witness for the

prosecution, to testify about statements made to her by Casondra Bryant

concerning the Defendant’s previous abusive behavior towards Bryant; and (6)

whether the trial court erred by ordering the Defendant’s sentences for

aggravated assault and attempted second degree murder to run consecutively.1

The Defendant and Casondra Bryant, one of the two victims in this case,

were married in 1993 in Memphis, Tennessee. The Defendant began working
 2 For the remainder of this opinion, Casondra Bryant will be referred to as “Bryant,” and

Craig Bryant will be referred to as “the Defendant.”

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as a truck driver for M.S. Carriers in 1994, and his wife began working as an adult

entertainer at Tiffany’s Cabaret in 1996. Bryant2

 testified that during the month

of March in 1996, she moved in with a friend for about two weeks and also took

up residence at The Memphis Inn, a hotel. She stated that she was “[t]rying to

get away from [the Defendant]” because he was “stalking” her and had been

abusing her for some time. She testified that she was forced to move

approximately once a week during March in order to avoid the Defendant. She

reported that the Defendant followed her everywhere and was always able to

discover where she moved, despite her efforts at secrecy. 

At trial, Bryant recalled several encounters with the Defendant leading up

to the incident which gave rise to the Defendant’s present convictions. The first

encounter that Bryant reported occurred on March 11, 1996 at approximately

3:30 a.m. when she arrived at The Memphis Inn parking lot after work. She

testified that as she was getting out of her car, she saw a man running toward her

with something in his hand. Realizing that it was the Defendant, she got back

into the car, but, according to her testimony, the Defendant “busted [her]

window,” jumped in her car, and struck her on the back with a crowbar. He then

took the car and drove it to North Carolina, where his parents lived. Following

this incident, Bryant filed for divorce from the Defendant on March 15, 1996 and

requested a restraining order against him. 

Bryant also testified that on April 1, 1996, around one o’clock in the

afternoon, she was sitting in her car in the parking lot of MegaMarket, waiting for
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a friend to run an errand inside the store. She testified that the Defendant

appeared and got into her locked car, using a second set of keys to the car. She

stated that the Defendant pointed a gun at her and said, “This is the only way I

can talk to you.” She reported that she then fled the car and ran into the store for

help. 

According to Bryant, her next confrontation with the Defendant took place

on April 3, 1996. Between noon and two o’clock in the afternoon, Bryant and a

friend, Stacy Muncey, were entering Tiffany’s Caberet to eat lunch at a buffet

inside the club. Bryant testified that when she and Muncey got out of the car, the

Defendant pulled into the parking lot behind them. Bryant stated that she yelled,

“Stacy, run,” and the two girls ran inside the club to call the police.

Stacy Muncey verified this story. Muncey also testified that she helped

Bryant move a number of times to get away from the Defendant and that the

Defendant continually called her to determine Bryant’s whereabouts. She further

testified that Bryant was afraid of the Defendant and “feared for her life.” In

addition, she reported seeing a large bruise on Bryant’s back after the incident

on March 11, 1996, when Bryant claimed to have been hit with a crowbar.

The incident from which the Defendant’s present convictions arose

occurred on April 4, 1996. Bryant reported that five minutes after arriving at her

hotel room that afternoon, she received a telephone call from the Defendant, who

told her that he wanted to talk to her. She stated that she had not given the

Defendant the name of her hotel or her phone number. Upon realizing that the

call was from the Defendant, she immediately hung up the phone and called
 3 Bryant testified that she believed the Defendant got into her locked vehicle by using

an extra set of car keys which he kept for the vehicle.

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Muncey, who advised her to leave the hotel room. Bryant quickly showered and

left approximately fifteen minutes later, fearful that the Defendant would come to

the hotel. She then got into her car and drove to a nearby McDonald’s

restaurant.

Bryant described the incident as follows: While ordering food at the

speaker for the “drive-thru” line at McDonald’s, she heard a noise. When she

turned, she realized that the Defendant was in her car holding a gun.3 The

Defendant told her if she said anything, he “would blow [her] f__king head off.”

A police officer who interviewed Bryant after the incident testified that Bryant

reported to him that the Defendant also told her “if he couldn’t have her nobody

else could.” In response, Bryant drove forward to avoid the drive-thru speaker

blocking her door, unlocked her door, and turned around to retrieve her

pocketbook. During the time that she was trying to get out of the car, the

Defendant was grabbing her, pulling her hair, and striking her with his fist. When

she grabbed her pocketbook, the Defendant shot her and then began to try to pull

her out of the car while she held onto the steering wheel. She later recounted

that she developed a bruise on her chest and shoulder from trying to hold onto

the wheel. At this point, someone said, “Police,” and the Defendant ran, dropping

the keys to the car. Bryant then put the car into gear and drove onto the street.

She spotted a police officer, stopped the car on the median, and got out. Other

witnesses present at McDonald’s on April 4, 1996 essentially verified Bryant’s

version of the shooting. However, no one actually saw who fired the gun.
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Jenitra Stone, the second victim in this case, was working as a cashier on

April 4, 1996 at the drive-thru line at McDonald’s. She testified that she saw a

car, later identified as that belonging to Bryant, pull up to the window. Inside the

car, she saw a woman with blood all over her face screaming for help as a man

in the car beat her, hit her, and pulled her hair, parts of her body and clothes. At

trial, Jenitra identified the woman as Bryant and the man as the Defendant. She

stated that the Defendant appeared to be trying to pull Bryant out of the car while

Bryant, who was holding onto the driver’s-side door, appeared to be trying to get

out of the car. Upon seeing this struggle, Jenitra testified that she turned to get

her manager, and as she did so, she heard a loud noise and the shattering of

glass, and she ducked. It was later determined that when Bryant was shot, the

bullet entered the left side of Bryant’s head and exited her head above her eye

near her left eyebrow, about an inch away from its place of entrance. The bullet

then traveled outside Bryant’s car, shattered the drive-thru window, and hit

Stone’s cap, knocking it off of her head. Stone was treated for cuts and

abrasions on her face caused by glass from the shattered window. 

At trial, Stone stated, “[A]t the time, I didn’t know that the cap was knocked

off my head. I was more afraid when the glass shattered.” She further testified,

“I was shocked. At the time I didn’t really think anything. I was still wondering

what was going on.” On cross-examination, in response to whether she was

afraid at the time of the shooting, she stated she was not afraid because she

“didn’t know what was going on.” However, on redirect, Stone admitted that she

was afraid when she heard the bullet come through the window. 
 4 Hospital records indicated that Bryant was scheduled for surgery at the Regional Medical

Center, but she was never admitted to the hospital. 

 5 The car belonged to the Defendant’s mother.

 6 Eric Bryant is the Defendant’s brother. 

-7-

After the shooting, Bryant was taken to the emergency room at the

Regional Medical Center for treatment. She was released from the emergency

room on the same night. 4 A custodian of medical records at the hospital testified

at trial that Bryant’s records indicated she was treated in the emergency room by

a surgery resident for a gunshot wound to the left eye. Records from follow-up

visits to the hospital indicated that while Bryant’s vision in her right eye was

20/20, vision in her left eye deteriorated to 20/50 by February 13, 1997.

Stacy Muncey picked up Bryant from the hospital to take her home. She

and Bryant each testified that as they were leaving the hospital, they saw the

Defendant in the waiting area. They reported that when they screamed for help

from the security guard, the Defendant ran.

Officers Ronnie Elrod and Shannon Bowen of the Memphis Police

Department were on patrol on the evening of April 8, 1996. They each testified

that during their shift, they noticed a white Buick Regal bearing North Carolina

tags5 pull out of the parking lot of a hotel with the headlights off. They stopped

the driver of the car for driving without lights and asked the driver, later

determined to be the Defendant, for identification. When the Defendant did not

produce identification, the officers asked his name and date of birth. The officers

testified the Defendant told them that his name was Eric Bryant and that his date

of birth was February 14, 1968.6 The officers then escorted the Defendant to the
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back of their police vehicle and ran a check on him and the car. The report,

which was broadcast on the police radio within hearing distance of the

Defendant, who remained in the back of the police vehicle, informed the officers

that the car was the suspect vehicle in a recent shooting. The dispatcher also

reported that the suspect involved in the incident was a man by the name of Craig

Bryant. The officers testified that upon hearing this information, the Defendant

admitted that he was Craig Bryant and provided a different date of birth, which

turned out to be his true date of birth. The officers placed the Defendant under

arrest. The officers then searched the Defendant’s vehicle and found a loaded

.380 semi-automatic chrome pistol under the driver’s seat, as well as “three live

rounds laying in the front floorboard” and “one live round in [the Defendant’s]

pocket.”

 

At trial, Delphia Marlow Bryant, the Defendant’s mother, testified that she

owned the gun used to shoot Casondra Bryant. She recalled that she loaned the

gun to Bryant in 1994 because Bryant wanted to protect herself while her

husband was frequently on the road driving trucks. She stated that no one was

present at the time she gave the gun to Bryant and that no one was aware of the

exchange.

The Defendant also testified at trial. He stated that he never hit his wife

with a crowbar, nor had he ever hit his wife, although he admitted that he did take

her car and drive it to North Carolina. He explained that he had access to the car

because he maintained a second set of keys to the vehicle. He claimed that the

car, as well as the rest of their possessions, belonged to both him and his wife;

and he claimed that they each made payments on the vehicle. He explained that
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his wife’s name alone appeared on the car title because they had agreed to buy

their next vehicle in his nam e. Furthermore, he testified that he never pulled a

gun on Bryant in the MegaMarket parking lot; in fact, he claimed not to have even

been in the city of Memphis on April 1, 1996, the date of the alleged incident. In

addition, apparently to discredit his wife’s testimony, the Defendant testified that

his wife regularly used drugs during the course of their marriage. 

 With regard to the day of the shooting, the Defendant testified that he and

his wife had arranged to meet at their storage unit. He maintained that he was

to page his wife on her pager when he was ready to meet. The Defendant stated

that before paging her, he drove to Sam’s Wholesale Warehouse, located behind

McDonald’s, to run an errand for a friend. He testified that while in the Sam ’s

parking lot, he happened to notice Bryant’s car in the McDonald’s drive-thru line.

According to the Defendant, he walked to her car, tapped twice on the window,

opened the door, which was not locked, and got inside. He testified that they

then spoke amicably and agreed to go to their storage unit together after she

received her food order. 

However, the Defendant claimed that instead of waiting for her food, Bryant

pulled forward, told him she would get food later, and suddenly slammed on her

brakes when the car sat beside the drive-thru window. The Defendant testified

that his head hit the windshield, and when he turned to look at his wife, she was

holding a gun pointed at him. He testified that she stated, “Get out,” and he

asked her, “Have you lost your mind?” He reported that as he asked this

question, he made a fist to knock the gun away from him and hit the gun, which
 7 The Defendant testified that he was unsure what happened after he “hit the gun

upwards” or how the bullet hit his wife in the head. At one point, he stated, “[w]hen the gun

hit the roof of the car, that’s when I heard the shot go off. So simultaneously

whenever this gun hit the roof of the car, at some point in time between the roof of

the car it simultaneously went off hitting her in the side of the head.”

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angled up towards the roof of the car and fired a shot. 7 He testified that Bryant

then told him, “Baby, I think I’m shot,” and he began to scan her body for blood.

Despite testimony from witnesses present at McDonald’s at the time of the

shooting that “there was quite a bit of blood” and that Bryant was “covered with

blood,” the Defendant testified that he noticed only one drop of blood on his wife’s

left shoulder. He stated that he then began to try to help her into the passenger’s

seat so that he could drive her to the hospital. However, she became hysterical

and began screaming, “Just leave,” so he got out of the car, taking the gun with

him so that she would not shoot herself or him, and went back to his car. He

denied ever hitting Bryant while in the drive-thru line. He also denied going to the

Regional Medical Center later that evening, claiming instead that he went to

another Memphis area hospital to look for his wife but left when he was unable

to find her.

The Defendant also presented a different version of his arrest. He

admitted that he was not carrying identification on the evening of April 8, 1996,

but he denied ever having told the police that his name was Eric. In fact, he

recalled that a police officer asked, “You’re Eric Bryant?” and when he denied

this, the officer “kept saying, ‘Yes, you are.’” In addition, the Defendant insisted

that the officers did not find the pistol used in Bryant’s shooting on the floorboard

under his seat, but rather in a briefcase in the trunk of his car. He claimed that

the gun was not loaded. Finally, he reported that the headlights on his car were

not off at the time he was stopped.
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I. ATTEMPTED SECOND DEGREE MURDER 

A. Validity of the Crime Charged 

The Defendant first contends that the Tennessee criminal attempt statute,

codified at Tennessee Code Annotated § 39-12-101, should not apply to the

crime of second degree murder, codified at § 39-13-210. He points to the fact

that the attempt statute requires one to act with a specific intent to cause the

result of the crime attempted; stated differently, he argues that an attempt is

merely a failure to do what one intended. He argues that this statute therefore

may not be reconciled with the second degree murder statute because intent to

kill is not an element of the offense of second degree murder; rather, the second

degree murder statute simply requires a knowing killing.

As a preliminary matter, we note from a reading of the record that the

Defendant has failed to include this issue in his motion for new trial. The State

contends that this issue is therefore waived. However, “[i]ssues which, if

meritorious, would mandate a dismissal may still be considered, even though not

listed in the motion for a new trial.” State v. Sowder, 826 S.W.2d 924, 926 (Tenn.

Crim. App. 1991); see also Tenn. R. App. P. 3(e). Because we believe that a

successful disposition of this argument would result in dismissal of the charge

against the Defendant for attempted second degree murder, rather than a new

trial, we will proceed to address this issue on the merits. 
 8 Tennessee Code Annotated § 39-13-210(a)(2) also presents a second type of second

degree murder which is not at issue in the case at bar. Tenn. Code Ann. § 39-13-210(a)(2).

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Our legislature has defined second degree murder as “[a] knowing killing

of another.” Tenn. Code Ann. § 39-13-210(a)(1).8

 Knowing, in turn, is defined

as referring to 

a person who acts knowingly with respect to the conduct or to

circumstances surrounding the conduct when the person is aware

of the nature of the conduct or that the circumstances exist. A

person acts knowingly with respect to a result of the person’s

conduct when the person is aware that the conduct is reasonably

certain to cause the result. Id. § 39-11-302(b). 

“A person commits an attempted second-degree murder when he

knowingly acts with the intent to kill his target and his actions constitute ‘a

substantial step toward the commission’ of the murder.” State v. Frederick R.

Porter, No. 03C01-9606-CC-00238, 1997 WL 661419, at *3 (Tenn. Crim. App.,

Knoxville, Oct. 24, 1997) (citing Tenn. Code Ann. 39-12-101(a)(3)). “Conduct

does not constitute a substantial step . . . unless the person’s entire course of

action is corroborative of the intent to com mit the offense.” Tenn. Code Ann. §

39-12-101(b). 

The primary case upon which the Defendant relies in arguing that the crime

of attempted second degree murder does not exist in Tennessee is State v.

Kimbrough, 924 S.W.2d 888 (Tenn. 1996). W e believe that Kimbrough is

distinguishable from the present case. In Kimbrough, the Tennessee Supreme

Court concluded that “one cannot intend to accomplish the unintended” and

therefore determined that “the offense of attempted felony-murder does not exist

in Tennessee.” Id. at 892. However, unlike the crime of felony-murder, which
 9 Except, of course, the intent to commit the underlying felony.

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requires no culpable mental state, Tenn. Code Ann. § 39-13-202(a)(2);9 the crime

of second degree murder requires that one act knowingly. One commits second

degree murder if one knowingly tries to kill another and succeeds in doing so.

However, if one does not succeed, and his or her actions constitute a substantial

step toward the commission of the killing, he or she is guilty of attempted second

degree murder. We conclude that Tennessee’s attempt statute is applicable to

the offense of second degree murder.

In the case at bar, the State presented evidence from which the jury could

conclude that the Defendant entered Casondra Bryant’s car carrying a gun and

that he subsequently shot his wife in the head. Furthermore, we believe that it

was well within the purview of the jury to conclude that the Defendant acted with

the awareness that this conduct was reasonably certain to cause his wife’s death.

However, because his wife was not killed, but rather seriously injured, we believe

that the jury could reasonably have determined that the Defendant is guilty of

attempted second degree murder.

B. Jury Instruction

The Defendant also argues that the trial court erred by failing to charge the

jury that the Defendant could not be found guilty of attempted second degree

murder unless he acted with an intent to kill Casondra Bryant. We will address

the issue even though Defendant has failed to include this issue in his motion for

new trial. The jury was instructed, pursuant to T.P.I. - Crim. 4.01 (4th ed. 1995),

that the defendant must have “intended to commit the specific offense of Murder
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Second Degree” and “did some act intending to complete a course of action or

cause a result that would constitute Murder Second Degree...” This was a proper

instruction. See State v. Eldridge, 951 S.W.2d 775, 779 (Tenn. Crim. App. 1997).

This issue is without merit. 

II. AGGRAVATED ASSAULT

A. Sufficiency of the Evidence

The Defendant next contends that the evidence is insufficient to uphold his

conviction for aggravated assault against Jenitra Stone. He argues that he had

no intent to assault Stone or to put her in fear of imminent bodily injury, nor were

there any “circum stances from which it can be inferred that he was aware that

any conduct on his part would be reasonably certain to put Stone in fear of

imminent bodily injury.” He suggests that the only person whom he could have

been found guilty of intending to harm is his wife, Casondra Bryant. Thus, he

argues that he could be found guilty of aggravated assault against Stone only

through the doctrine of transferred intent. He contends that the doctrine of

transferred intent is inapplicable to assault cases in Tennessee.

Tennessee Rule of Appellate Procedure 13(e) prescribes that “[findings]

of guilt in criminal actions whether by the trial court or jury shall be set aside if the

evidence is insufficient to support the finding by the trier of fact beyond a

reasonable doubt.” Tenn. R. App. P. 13(e). “Questions concerning the credibility

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

factual issues raised by the evidence, are resolved by the trier of fact, not this

Court.” State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987) (citing

State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973)). Nor may this Court re-weigh
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or re-evaluate the evidence. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992)

(citing State v. Cabbage, 571 S.W.2d 832, 836 (Tenn. 1978)).

A jury verdict approved by the trial judge accredits the State’s witnesses

and resolves all conflicts in favor of the State. State v. Williams, 657 S.W.2d 405,

410 (Tenn. 1983). On appeal, the State is entitled to the strongest legitimate

view of the evidence and all inferences therefrom. State v. Tuggle, 639 S.W.2d

913, 914 (Tenn. 1982) (citing Cabbage, 571 S.W.2d at 835). Because a verdict

of guilt removes the presumption of innocence and replaces it with a presumption

of guilt, the accused has the burden in this Court of illustrating why the evidence

is insufficient to support the verdict returned by the trier of fact. McBee v.State,

372 S.W.2d 173, 176 (Tenn. 1963); see also Evans, 838 S.W.2d at 191 (citing

Grace, 493 S.W .2d at 476); Tuggle, 639 S.W.2d at 914.

In the present case, the Defendant was charged with “intentionally

comm it[ting] an assault on Jenitra D. Stone . . . by use of a deadly weapon . . .

caus[ing her] to reasonably fear imminent bodily injury.” Thus, the following

portion of the Tennessee assault statute is at issue here: “A person commits

assault who . . . [i]ntentionally or knowingly causes another to reasonably fear

imminent bodily injury . . . .” Id. § 39-13-101(a)(2). In addition, the following

portion of our aggravated assault statute is at issue: “A person comm its

aggravated assault who . . . [i]ntentionally or knowingly commits an assault as

defined in § 39-13-101 and . . . [u]ses or displays a deadly weapon . . . .” Id. §

39-13-102(a)(1)(B). 
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 In making the argument that his conviction for aggravated assault may only

be upheld by a finding of transferred intent, the Defendant fails to note the mens

era of “knowing” in the statutes cited above. The aggravated assault statute

plainly states that a Defendant may be found guilty of the crime of aggravated

assault if he acts “intentionally or knowingly.” Id. (emphasis added). Because a

conviction for aggravated assault does not require a finding of specific intent, we

need not address the question of whether the doctrine of transferred intent is

applicable to the crime of aggravated assault. To sustain an aggravated assault

conviction, it is enough for a jury to find that a defendant acted knowingly. As

previously stated,

a person acts knowingly with respect to the conduct or to

circumstances surrounding the conduct when the person is aware

of the nature of the conduct or that the circumstances exist. A

person acts knowingly with respect to a 
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result of the person’s conduct when the person is aware that the conduct is

reasonably certain to cause the result. Id. § 39-11-302(b).

In this case, the State presented evidence from which the jury could infer

that Stone reasonably feared imminent bodily injury at the time of the shooting.

Stone herself testified that she was “shocked” by the incident and afraid when

she heard the bullet come through the window. Moreover, the State presented

evidence from which the jury could infer that the Defendant knowingly caused

Stone to fear imminent bodily injury. The State presented evidence that the

Defendant entered his wife’s car with a loaded gun, pointed the gun at his wife,

and fired the gun while the car was beside the drive-thru window of a restaurant.

We find this evidence sufficient to support the conclusion that the Defendant

acted with the awareness that his conduct was reasonably certain to cause

others, including Stone, the cashier at the drive-thru window, to fear imminent

bodily injury. 

B. Jury Instruction 

The Defendant next argues that the judge committed plain error by

instructing the jury on the doctrine of transferred intent. Again, we note that this

issue was not raised in the Defendant’s motion for new trial, thus waiving the

issue on appeal, see Tenn. R. App. P. 3(e); but we will briefly address the

Defendant’s argument. The contested instruction is as follows:

Under a doctrine known as “transferred intent” a crime may be

aggravated assault when the person assaulted could have been

killed and was not the one whom the accused intended to kill or

injure such as where one shooting [sic] at another and kills or

assaults a bystander or third person coming within range.

However, before the jury may find the defendant guilty of the

offense of aggravated assault or any included class of assault, you

must be satisfied beyond a reasonable doubt that the assault of
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Jenitra D. Stone was aggravated assault or any included class of

assault and was comm itted by the defendant. 

Jury instructions on the doctrine of transferred intent, such as that above,

are appropriate in cases involving crimes in which specific intent is an element.

As we have already concluded, the crime of aggravated assault does not require

specific intent. Although in some cases, specific intent may be an element of the

crime, the Defendant in the present case must only have acted knowingly. For

this reason, we find the foregoing instruction unnecessary. 

We conclude, without addressing the merits of the Defendant’s argument

concerning transferred intent, that any error possibly caused by this instruction

was clearly harmless error. The instruction is worded in very general terms and

does not require that the jury utilize the doctrine of transferred intent to convict

the Defendant of aggravated assault, allowing the jury to convict based upon the

statutory definition of aggravated assault, which requires only that the Defendant

act knowingly. 

Moreover, had the jury relied upon the foregoing instruction to convict the

Defendant of aggravated assault, the result would have been no different than if

the jury simply relied upon our aggravated assault statute to convict. The

transferred intent instruction in this case required the jury to find specific intent,

which is a greater state of mental culpability than the mens era of knowing. Thus,

if the jury relied on the transferred intent instruction, the jury necessarily must

have found that the Defendant acted at least knowingly. This issue is therefore

without merit. 
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III. HEARSAY OBJECTION TO TRIAL TESTIMONY 

The Defendant argues that the trial court erred in admitting, over objections

by defense counsel, certain testimony by Stacy Muncey. Specifically, Muncey

testified that Casondra Bryant told her “that Craig was stalking her, that she

needed to hide, that he kept finding her and calling [her hotel] room .” She stated

that Casondra “feared for her life.” She also testified that Casondra told her the

Defendant “hit her with a crowbar,” causing a “large bruise [to form] on her back.”

The Defendant contends that this is highly prejudicial hearsay testimony which

should have been excluded at trial.

Although it is somewhat unclear from the record, it appears that the trial

judge allowed at least part of this testimony under the “excited utterance”

exception to the hearsay rule. See Tenn. R. Evid. 803(2). From a reading of the

record, we agree with the Defendant that this testimony appears to be hearsay.

Furthermore, it appears that the record does not support the State’s contention

that the testimony fits into one or more of the exceptions to the hearsay rule. See

generally Tenn. R. Evid. 803. However, in light of other testimony presented at

trial and the entire record before us, including Casondra Bryant’s testimony to the

same effect as that of Muncey, we are satisfied that admission of Muncey’s

testimony was harmless error. Tenn. R. App. P. 36(b); Tenn. R. Crim. P. 52(a).

IV. SENTENCING

Finally, the Defendant argues that the trial court improperly ordered his

sentences for attempted second degree murder and aggravated assault to be

served consecutively. The trial court ordered consecutive sentencing after

determining that the Defendant is a dangerous offender. 
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When an accused challenges the length, range, or manner of service of a

sentence, this Court has a duty to conduct a de novo review of the sentence with

a presumption that the determinations made by the trial court are correct. Tenn.

Code Ann. § 40-35-401(d). This presumption is ?conditioned upon the affirmative

showing in the record that the trial court considered the sentencing principles and

all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169

(Tenn. 1991).

In conducting a de novo review of a sentence, this court must consider: (a)

the evidence, if any, received at the trial and sentencing hearing; (b) the

presentence report; (c) the principles of sentencing and arguments as to

sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) any statutory mitigating or enhancement factors; (f) any statement

made by the defendant regarding sentencing; and (g) the potential or lack of

potential for rehabilitation or treatm ent. State v. Smith, 735 S.W.2d 859, 863

(Tenn. Crim. App. 1987); Tenn. Code Ann. §§ 40-35-102, -103, -210.

If our review reflects that the trial court followed the statutory sentencing

procedure, that the court imposed a lawful sentence after having given due

consideration and proper weight to the factors and principles set out under the

sentencing law, and that the trial court’s findings of fact are adequately supported

by the record, then we may not modify the sentence even if we would have

preferred a different result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim.

App. 1991).
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Tennessee Code Annotated § 40-35-115(b)(5) provides that a trial court

“may order sentences to run consecutively if the court finds by a preponderance

of the evidence that . . . [t]he defendant is a dangerous offender whose behavior

indicates little or no regard for human life, and no hesitation about committing a

crime in which the risk to human life is high . . . .” Tenn. Code Ann. § 40-35-

115(b)(4). This rule, which is based upon cases decided by the Tennessee

Supreme Court prior to its codification, see, e.g., State v. Wilkerson, 905 S.W.2d

933, 938 (Tenn. 1995), has been expanded through case law. In Gray v. State,

538 S.W.2d 391 (Tenn. 1976), our supreme court determined that “[t]he decision

to impose consecutive sentences when crimes inherently dangerous are involved

should be based upon the presence of aggravating circumstances and not merely

on the fact that two or more dangerous crimes were committed.” Id. At 393. In

addition, the sentencing terms imposed must be “reasonably related to the

severity of the offenses committed and [must be] necessary in order to protect

the public from further criminal acts by the offender.” Wilkerson, 905 S.W.2d at

938. The purpose of consecutive sentencing is to “protect society from those

who are unwilling to lead a productive life and resort to criminal activity in

furtherance of their anti-societal lifestyle.” Gray, 538 S.W.2d at 393. However,

our supreme court has also recognized that “‘sentencing is inescapably a human

process that neither can nor should be reduced to a set of fixed and mechanical

rules.’” Wilkerson, 905 S.W.2d at 938 (citing 3 American Bar Association

Standards for Criminal Justice, Sentencing Alternatives and Procedures 18.11

(2 ed. 1986)).

In the case before us, the trial judge made the following observations at the

sentencing hearing:
 10 The jury, by its conviction of the Defendant, accredited this version of the shooting.

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The Court notices in this case the background. Apparently,

. . . [Casondra Bryant] moved on several occasions trying to hide out

so [the Defendant] wouldn’t locate her because apparently [their]

altercations would result in violent activity. And the defendant would

find her the several times that she moved.

. . . .

And so the Court has to take that into consideration and this

continuous stalking when she was trying to stay away from him. . .

.

. . . .

The defendant has a previous history of criminal convictions

or criminal behavior in addition to that necessary to establish the

range. The defendant did have some previous criminal offenses

and some assaults that were either nol-prossed [sic] or dismissed.

And the Court has to consider the prior criminal behavior in this

situation.

. . . .

Looking at this defendant over the period of time that we have

facts concerning the defendant, the defendant denies that he did

anything that was dangerous or would be a dangerous offender. But

according to the victim, he did several things. In fact, she was

injured and had to get treatment for it. So that’s a dangerous

offender.

If you believe the victim that . . . she was struck with a tire tool

on that one occasion and a baseball bat on another, that’s certainly

a dangerous person in my opinion. And a person, also, who pulls

up a gun and fires it out in a public area trying to hurt the victim,

that’s a dangerous person. The Court will allow that to apply in

regard to consecutive sentencing. . . .

[T]he Court rejects the fact . . . that [the defense] is saying

that this is a single course of conduct that led to the injury. It was a

single course of conduct. But when you fire a gun that conduct is

not restricted to one or two individuals. A bullet is not restricted

except by physical things that will prevent a bullet from going any

further. . . .

But in this case it was fired and ended up going through a

window where it almost struck the lady and could have easily hit

someone else in that place of business because . . . that window

[was] open.

The record clearly supports the trial court’s finding that the Defendant is a

dangerous offender. He discharged a gun in a fast-food restaurant drive-thru

lane, a public place which is typically crowded, thus jeopardizing the lives of

several people, including that of his wife who he shot in the head.10 Moreover,
-23-

the bullet narrowly missed striking Jenitra Stone; and had she been hit, it is quite

possible that she could have been killed. Giving deference to the findings of the

trial court, whose sentencing determination is presumed to be correct, we agree

with the decision that the sentences should run consecutively in order to protect

the public from further serious criminal conduct by the Defendant. 

Furthermore, for his attempted second degree murder conviction, the

Defendant was sentenced to a term in the middle of the sentencing range for a

Class B felony, and for his aggravated assault conviction, he was sentenced to

the minimum term for a Class C felony. We cannot say that the aggregate length

of his sentences, which is only one year more than the maximum sentence for the

crime of attempted second degree murder standing alone, is excessive. Noting

that attempted second degree murder is among the most severe offenses that

can be committed, we find that the terms of imprisonment reasonably relate to

the severity of the offenses. We therefore conclude that the record provides

ample evidence to justify the sentences imposed in this case.

The judgment of the trial court is accordingly affirmed. 

 

____________________________________

DAVID H. WELLES, JUDGE

CONCUR:

___________________________________

PAUL G. SUMMERS, JUDGE
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___________________________________

JOE G. RILEY, JUDGE