# FILED January 8, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON SEPTEMBE R SESSION, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9707- CR-00286 ) Appellee, ) ) ) SHELBY COUNTY VS. ) ) HON. ARTHUR T. BENNETT CRAIG BRYANT, ) JUDGE ) Appe llant. ) (Attempted Mur der & ) Aggra vated A ssault)
ON APPEA L 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 Generaland Reporter WA LKER GW INN DOUGLAS D. HIMES Assistant Public Defender Assistant Attorney General 201 Poplar Avenue 425 Fifth Avenu e North Memphis, TN 38103 Nashvill e, TN 37243-0493 WILLIAM GI BBONS Distri ct Attorney General LEE V. COFFEE Assistant Distri ct Attorney General Criminal Just ice Complex, Sui te 301 201 Poplar Avenue Memphis, TN 38103
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES , JUD GE1 For purpose s of clarity

and brevi

ty, we hav

e consolidated some

of the issues presented. -2- 

# OPINION

The Defendant, Crai g Bryant, appe als as of right fr om a Shelb y Coun ty jury verdictconvicting him of ag gravated assau lt and att empted second degree murder. The trial court se ntence d him a s a Ran ge I stand ard offen der to
consecu tive sentences of t hree years for aggravated assault and ten year s for attempted second degree murd er. Th e Def enda nt now appe als pu rsuan t to Ru le 3 of the Tennessee Rules of Appellate Pro cedure. W e affirm the judgment of the trial court.

The Defen dant pre sents six iss ues on appea l: (1) whether the criminal attemptstatute is applic able to the cri me of second degree murder; (2) whether the tri al court erred byfaili ng to charge t he jury t hat the Defendant could notbe found guilty

of attempted second degree murder unles s he acted wit h the inte nt to kill Casondra B ryant; (3) whether the evi dence is suffic ient to s upport the Defe ndan t’s convicti on for aggravated assault on Jenitra

Stone; (4) whether the trialcourt err

ed by ins tructi ng the jury on the doctr ine of tr

ansferred i ntent; (5) whetherthe trialcourt erred by all owing Stacy Munce y, a wi tness for t he prosecution , to testify about statements made to her b y Casondra Bryant concerning the De fenda nt’s previous abusive behavior towards Bryant; and (6) whetherthe t ria l cou rt e rredby or deri ng th e De fendan t’ s sentences for aggravated assault and a ttempted se cond deg ree murd er to run conse cutively. 1

The Defendant and Casondra Bry ant, one of

the twovicti ms in this cas e, were ma rried i n 1993 in Memphis, Tennessee. The Defendant began worki ng2 For the remainder of this opinion, Casondra Bryant will be referred to as “Bryant,” and Craig Bryan

t will be referred to as

“the Defendant.”

-3- as a tru ck driver for M.S. Carriers i n 1994, and his wife bega n work ing as an ad ult entertai ner atTiffany’s C abaret in 1996. Bryant 2 testified that d uring the month of Marc h in 1996, she moved in wi th a fri end for about t wo weeks and also took up reside nce a t The Mem phis Inn, a hotel. Sh e stated th at she w as “[t]rying to get away fr om [th e Def enda nt]” bec ause he wa s “stalk in g” her an d had been abusing her for some ti me. She testif ied th at she was forc ed to move appro ximate ly once a week during March in order to avoid t he Defendant. She reported that t he Defen dant follow ed her e verywhe re and w as alwa ys able to discove r where s he mo ved, des pite her effo rts at secre cy.

At trial, Bryant recal led severalencounters wi th the Defendant leading up to the inci dent which gave rise to the Defendant’ s present convicti ons. The first
encoun terthat Bryant reported occur red on March 11, 1996 at approximat el y 3:30 a.m. when she arri ved at The Me mphis Inn parki ng lot after work. She testif ied that as she wa s getting out of her c ar, she saw a man running towar d her wi th something in hi s hand. Reali zing that it was t he Defendant, she g ot bac k into the ca r, but, ac cordin g to her t estimony, the D efendant “bu sted [her] window ,” jumped in he r car , and str uck he r on t he bac k wit h a crowbar . He then tookthe ca r and d rove it to Nor th Ca rolina, where his parent s lived. Following this incident , Bryant f iled for divorce f rom the Defendant on March 15, 1996 and reques ted a res training ord er again st him.
Bryantalso testified that o n April 1, 1996, around one o’ clock in t he afternoon, she was sitt ing in her car in the parking lot of MegaMarket, wait ing for-4-

a friend to run an erran d inside th e store. She testif ied that t he 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 on ly way I
can talk to you.” She reported t hat she then f led the car and ran i nto the store for help.
According to Bryant, her next confrontat ion with t he Defendant took place on April 3, 1996. Between noon and two o’c lock in the afternoon, Bryant a nd a friend, Stacy Muncey, wer e entering Ti ffany’ s Caber et t o eat lunch at a buffet insidethe club. Bryant testified that wh en she an d Munce y got out of the car, the Defendant pulled into the parking l ot behind them. Bry ant stated that she yel led, “Stacy, run,” and the t wo girls r

an inside t he club to cal l the pol ice.
Stacy Muncey verif ied thi s story . Muncey also testifi ed that she hel ped Bryantmove a number of ti mes to get away fr om the D efenda nt and that the Defendant contin ually called her to d eterm ine Bry ant’s whereabouts. She f urther testif ied t hat Brya nt was a fraid of the D efenda nt and “fe ared for h er life.” In addition, she rep orted s eeing a large bruise on Bryant’s back af ter the i ncident on March 11, 1996, wh en Bryant claim ed to have be en hit with a crowb ar.

The inciden t f rom which the Defendant’s present convict ions arose occurred on April 4, 1996. Bryant reported t hat five minutes after arri ving at her hotel room that afternoon, she rece ived a telephone cal l from the Defendant, who told her that he wanted to talk to her . Sh e stated t hat she had not given the Defendant the name of her hotel or her phone number. Upon realizi ng that the call w as from the Defendant , she immediately hung up the phone and cal led3 Bryant testified that she believed the Defend ant got into her locked vehicle by using

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

-5- Muncey, who advised her to leave the hotel room. Brya nt quickl y showered and left approximatel y fif

teen minutes l ater, fearful t hat the Def enda nt woul d co me to the hotel. She then got int o her car and d rove to a nea rby Mc Don ald’s restaura nt.
Bryantdescribed the incident as f ollows: While ordering food at the speakerfor the “drive-t hru” li ne at McDonald’s, she heard a noise. When she turned, she reali zed that t he Defenda nt was in her car holdi ng a gun. 3 The Defendant told her if she said an ything, he “would b low [her] f__ king hea d off.” A police of

ficer who i ntervi ewed Bryant after the i ncident testifi ed that Bryant reported to him that

the Defendant

also to ld her “if

he couldn’t

have her nobody else could.” In respon se, Brya nt dr ove forward t o avoid the drive-t hru speaker bloc king her do or, unlo cked her do or, and turned aroun d to retr ie ve he r pocketbook. During the t ime thatshe was tryi ng to get out of the car, the Defendant was grabb ing her, pulli ng her hair, and strik ing her with hi s fist . When she grabbed her

pocke tbook, the Defen dant sh ot her an d then b egan to try to pull her out of the car wh ile she hel d onto the steering wheel. She later r ecounted thatshe de veloped a bruise o n her ch est and shoulde r from trying to hold on to the wheel. At this poi nt, someone said, “Police, ” and the Defendant r an, dropping the keys to the car. B ryant then put the ca r into gear a nd drove onto the street. She spotted a pol ice offi cer, stopped the car on th e median, and got out . Other witnesse s presen t at McD onald’s o n April 4, 19 96 ess entially verified B ryant’ s version of

the shooti ng. However, no on e actuall y saw who fir ed the gun.-6- Jenitra Stone, theseco nd victim in thi s case, was worki ng as a cashier on April 4, 1996 at th e drive-t hru li ne at McDonal d’s. Sh e testified t hat she saw a car, later identified as that be longing to Bryant, pull u p to thewindow. Inside t he car, she saw a woman with blood al l over her face screaming for help as a man in the car beat

her, hit her, and pulled her

hair, par

ts ofher bod y and cl othes. At trial, Jenitra i dentifi ed the woman as Bryant and the man as t he Defendant. She stated that the Defe ndan t appe ared to be trying to pull B ryant o ut of the car wh ile Bryant, who was holding onto the driver’s-si de door, appeared to be tryi ng to get out of the car. Upon seeing this strugg le, Jenitra testified that s he turned to get her manager, and as she d id so, she heard a loud noi se and the shattering of glass, an d she d ucked . It was later d etermin ed that w hen Br yant was shot, the bullet e ntered the left side of Bryant’s head and ex ited her headabove her e ye near her left eyebrow, about an inch away f rom its pl ace of entrance. The bullet then traveled o utside B ryant’ s c ar, sha ttered th e drive -thru w indow , and h it Stone ’s cap, knocking it off of her head. Stone was treated for cuts and abrasio ns on h er face ca used b y glass from the shatte red wind ow.

At trial , Stone stated, “[A] t the time, I didn’t know that the cap was knocked off my head. I wasmore a fraid whe n the glas s shattere d.” She further testified, “I was shocked. At t he time I di dn’t real ly thi nk anything. I was sti ll wonderi ng what wa s going on. ” On cross-exami nation, i n response to whet her she was afraid at the tim e of the shooti ng, she stated she was not afr aid because she “didn’t know what was going on.” However, on redi rect, Stone admitted t hat she was afra id when she he ard the b ullet com e throug h the wind ow.4 Hospital records indicated that Bryant was sched uled for surgery at the Regional Medical Center, but she was nev er admitted t

o the hospi

tal.
5 The car belonged to the D efendant’s mo

ther.
6 Eric Bryant is the De fendant’s bro

ther. -7- After the shooting, B ryant was taken to the emerg ency ro om a t the Regional Medica l Center fo r treatme nt. She was released from the emergency
room on the sam e night. 4 A custodian of medical records at t he hospitaltestified at trialthat Bryant’s records indicated she was treated in the emergency room by a surgery resident f

or a gunshotwound to the l eft eye. Records from fol low-up
v isits to the hospi tal indi cated that while Bryant’s visi on in her ri ght eye was 20/20, vi sion in her

left eye deterior

ated to 20/50 by February 13, 1997.
Stacy Muncey picked up Bryant from the hos pital to take he r home
. She and Bryan t each testified that as they we re leav ing the hosp ital, theysaw the Defendant in the w aiting a rea. T hey re ported that wh en the y screa med for help from the security guard, the Defendant r an.

Of ficers Ronnie Elrodand Shann on Bowen of the Memphi s Po lic e Department were on patrolon the evening of April 8, 1996. They each test ified t ha t during thei r shift , they not iced a white Buick Regal beari ng North Caroli na tags 5 pull out

of the parki ng lotof a hotel with the he adlights off. They stopped the driver of the car f or drivi ng withou t li ghts and asked the d river, later determined to be the Defendant, foridentificatio n. When the Defendant did not produce identificatio n, the officer s asked his name and date of birth. The officers testif ied theDef enda nt toldthe m that hi s na me was Eric Bryant and that his da te of birth was Feb ruary 14, 1968. 6 The officer s then escorted the Defendant to the-8-

back of their police vehicle an d ran a c heck o n him a nd the ca r. The rep ort, whi ch was bro adcas t on the po lice radio w ithin hearin g distanc e of th e Defen dant, who remained in t he back of the pol ice vehic le, informed the officers thatthe car was t he s uspect ve hicle in a recent shoot ing. The dispatcher also reported that the suspect inv olved in the inci dent was a man b y t he na me of Cra ig Bryant. The officer

s testi fied that

up o n hearing thi s informati on, the Defendant admitted that he was Crai g Bryant and provided a dif fer en t date of birt h, which turned out to be his tr ue date ofbirth. The officer s placed the Defendant under arrest. The officer

s then searched t he Defendant’s v ehicle and found a loaded .380 semi-automati c chrome pistolunder the driver’ s seat, aswell as “three live rounds laying i n the front f loorboard” and “one liv e round in [the Defendant’s] pocke t.”

At trial, De lphia Marlow Bryant , the Defendant’s mother , testified that she owned the gun used to shoot Casondra Bryant. She recalledthat she l oaned the gun to Bryant i n 1994 becau se Bryant wanted to protect herself whi le her husband was frequently on the road driving trucks. She stated th at no one was presentat the time she ga ve the gu n to Bryantand that no one was awar e of the exchange.

The Defe ndan t als o testifi ed at trial. He stated tha t he neve r hit his wife with a crowbar, nor had he ever hit hi s wife, alt hough he admitted that he did take her car and driv

e it to North Caroli na. He explained t hat he had access to t he car because he maintained a second set of keys to the vehi cle. He cl aimed that t he car, as well as the r

est of their possessi ons, belon ged to both h im and his wife; and he claimed that

they each made payments on t he vehicle. He explained that-9-

his wife’s name alone appeared on the car tit le because they had agreed to buy their next vehi cle in his nam e. Furthermore, he testi fied that he never pull ed a gun on Bryant i n the MegaMarket parki ng lot; i n fact, heclaimed not to have even been in the ci ty of

Mem phis on A pril 1, 1996 , the date of the alleg ed incide nt. In addition, appa rently to discre dit his wife’s testimony, the Defendant testifi ed that his wife reg ularly used drugs d uring the course of their ma rriage.

With regard to t he day ofthe shooti ng, the Defendant test ified t hat he and his wife had arr

anged to meet at t heir stor age unit. He maintained that he was to page his wife on her pager when he was ready to meet . The Defendant stated thatbefore paging her, he drove to Sam’s Wholesale Warehouse, located behi nd McDonald’s, to run an errand fo r a friend. H e te stified that w hile in th e Sam ’s parking lot, he happened to noticeBryan t’s car in the McDonald’s drive-t hru line. According to t he Defendant, hewalked to her car, tapped t wice on t he window, opened the doo r, which w as not loc ked, an d got insid e. H e testif ied that they then spoke amicably and a greed to go to their storage unit t ogether after she received her food order.

Howeve r, the Defe ndant c laimed that instea d of waiting for her fo od, Bryan t pulled forwar d, told h im she w ould g et food later, an d sud denly slammed on her brakes when th e car sat b eside the drive-thru w indow. The Defendant test ified thathis head hit the windshi eld, and when he t urned to look at his wi fe, she was holding a gun pointed at him. He testified that she stated, “Get out,” and he asked her, “Ha ve you los t your min d?” He reported that a s he ask ed th is question, he made a fist to knock the gun away from him and hit the gun, which7 The De fe ndant testified that he was unsure w hat happened after he “hit the gun upwards” or how the bullet hi t his wife in the

head. At one point, he stated, “[w ]hen the gun hit the roof of the car, that’s w hen I heard the shot go off. S o simultan eously whenever

this gun hit the roof of the car, at some poi nt in time between the roof of the car it si multaneousl y went off hi

tting her in the side of the head.” -10- angled up towards

the roof of

the car and f ired a shot. 7 He testif ied that Br yant then told him, “Baby, I think I’m shot, ” and he began to scan he r body for bl ood. Desp it e testimony f rom witnesses pr esent at McDonald’ s at the t ime of th e shooting t hat “ther

e was quite abit of blood” a nd that B ryant was “covered with blood,” the Defendant test ifiedthat he notice d only o ne dro p of blo od on his wife ’s left shoulder. He state d that he th en beg an to try to he lp her into the pa ssen ger’s seat so that he could drive her to the ho spital. However, she became hysterical and began screaming, “Just leave,” so he got out of the c ar, taking th e gun w ith him so that sh e would not s hoot he rself or hi m, and went back to his car. He denied everhitti ng Bryant whil e in the drive-thru l ine. He also denied goi ng to the Regional Medica l Center la ter that eve ning, c laiming i nstead that he w ent to anoth er Me mph is area hospital to l ook for his wife but l eft when he wa s una ble to find her.

The Defenda nt also presen ted a different vers io n of h is ar rest . He admitted that he was not carry ing ident ificat ion on the evening of April8, 1996, but he denied ever havingtold the police t hat his name was Eri c. In fact, he recalledthat a p olic e office r asked, “You’ re Eric Bryant?” and when he deni ed this, the offi cer “kept

saying, ‘Ye s, you are .’” In additio n, the Defendant insisted thatthe officers did not f ind the pi stol used i n Bryant’s shooting on the floorboa rd under his seat , but rat her in a bri efcase in t he trunk of his car . He claimed t hat the gun wa s not load ed. Finally , he reported that the headlights on his car

were not off at

the time he was st

opped.-11- I. A TTEMPTED SECOND DEGREE MU RDER A. Validi

ty of the Crime Charged The Defendant first

contends that

the Tennessee criminal attempt statute, codifi ed at Tennessee Cod e Ann otated § 39-12- 101, should not apply to t he crim e of second degree murder , codifi ed at § 39-13-210. He points to the fac t t hat the att empt statute requires one to act with a specifi c intent to cause the result of the cri me attempted; stated diff erently , he a r gues that an attem pt is
mere ly a fail ure to do what one intended . He argues that this statute therefore may not be reco nciled with the seco nd deg ree mu rder statu te because intent to kill is not an element of t he offense of second degree murder; r ather, t he second degree murder stat ute simply requires a knowing kill ing.

As a pr eliminary matter, w e note fro m a rea ding of the record th at th e Defendant has failed to incl ude this i ssue in his mot ion for new trial. T he State contends that this issu e is therefo re waived . H owever, “[i]ssue s whic h, if meritorious, would mandate a dismi ssal may sti ll be consi dered, even t hough not listedin the motion for a n ew trial.” State v. Sowder , 826 S.W.2d 924, 926 (Tenn. Cri m. App. 19 91); see also Tenn
. R. App. P. 3( e). Beca use we believe tha t a successful disposit ion of thi s arg ument would resul t in di smissal of t he charge against the D ef endant for at tempted second degree murder , rather than a new trial, we will proc eed to a ddress this issue o n the m erits.8 Tennessee C ode Annotat

ed § 39-13-2 10(a)(2) als o presents

a second type

of second degree murder which is not at issue in the case at b

ar. Tenn. Code Ann. §

39-13-210(a

)(2). -12- Our legislature has defined second degr ee murder as “[a]knowing kil ling of another. ” Tenn. Co de Ann. § 3 9-13-210(a )(1). 8 Knowing, in t urn, is defined as referr ing to
a person who ac ts know ingly with res pect to the condu ct or to circumstancessurroun ding t he condu ct when the p erson is awa re of the natur e of the co nduct o r that the cir cums tances exist. A person acts kn owing ly wi th resp ect to a result o f the pe rson’s conduct when the person i s awa re that th e con duct is reaso nably certain to c ause th e result. Id. § 39-11 -302(b). “A person commits an attempted second -de gree murder when he know ingly acts with th e intent t o kill his targ et and his actio ns co nstitute ‘a substanti al step to wa rd the com mission’ of the m urder.” State v. Frede ric k R. Porter , No. 03C01-9606 -CC-00238, 199 7 WL 661419, at *3 (Tenn . Crim. A pp., Knoxvill e, Oct. 24, 1 997) (citi n g Tenn. Code Ann. 39-12-101(a)(3)). “Conduct does not cons titute a sub stanti al s tep . . . unless the per son’s enti re course of action is corrobo rative of the in tent to com mit the offe nse.” Tenn . Code Ann. § 39-12-1 01(b).

The primary case upon which the Def enda nt r eli es i n argui ng t hat

thecri me of attemp ted seco nd deg ree mu rder doe s not e x ist in Tennessee is State v. Kimbrough , 924 S.W.2d 888 ( Tenn . 1996). W e believe th at Kimbrough is disting uisha ble from the present case. In Kimbrough , theTenn ess ee Su pre me Court concluded that “one cannot i ntend to accompli sh the unintended” and therefore determined that “the offense of

attempted felony-murder does not exi st in Tennes see.” Id. at 892. H oweve r, unlike the crime o f f elony- murder, which9 Except, of cours e, the intent to commit the unde rlying felony. -13- requiresno culpa ble me ntal state, T enn. C ode Ann . § 39-13-202 (a)(2); 9 thecri me of second degree murder requi res that one act knowingly. One commits second degree murd er if one know ingly tries to kill another an d succeeds in doi ng so. Howeve r, if one d oes n ot suc ceed , and h is or her acti ons constit ute a substant ial step toward the com mission of the killing, he or she is g uilty of attempted second degree murde r. We conc lude th at Te nnes see’s attem pt statu te is applicab le to the offense of se cond deg ree murd er.

In the case at

bar, the State pre sented evide nce from w hich the jury could conclude that the Defen dant entered Casond ra Bryant’s car carry ing a gun and thathe subsequently

shot his wi fe in thehead. Furth ermo re, we b elieve th at it
was well within t he purview of the jury to c onclud e that the D efenda nt acted w ith the awareness that

this conduct

was reaso nably c ertain to cause his wife’s deat h. Howeve r, because his wife was not killed, bu t rather seriously injured, we believe thatthe jury

could reasonabl y have determi ned that the D efenda nt i s guilt y of attempted s econd de gree mu rder.
B. Jury Inst

ruction The Defendant also ar gues that t he trialcourt err ed by faili ng to charge t he jury that the Defendant could not be found guil ty of at tempted second deg re e murde r unless h e acted with an inte nt to kill Cas ondra Bryan t. W e will address the issue even t hough Defendant has fai led to i nclude this i ssue in his mot ion for
new trial . The jury was instruc ted, pursuant

to T.P.I. - Crim. 4. 01 (4th ed. 1995 ), thatthe de fenda nt mu st have “intend ed to c omm it the sp ecific offense o f Murder-14-

Second Degree ” and “d id someact intending to complete a course of act ion or
cause a result that would constitute Murder Second Degree ...” This was a proper instruct ion. See State v. Eldridge , 951 S.W .2d 775, 779 (Tenn. Crim . App. 1997 ). This issu e is withou t merit.

II. AGGRAVATED ASSAULT A. Sufficiency of the Evidence The Defe ndan t next co ntend s that th e evide nce is insuffic ient to u phold his convicti on foraggravated assault against Jenitra Stone. He argues that he had
no intent

to assault

Stone or to put

her in fear

of imminentbodily injury, nor were there any “circum stance s from w hich it can b e inferred that h e was a ware that any condu ct on his p art would be reas onably c ertain to put Stone in fear of imminen t bodily injury.” He suggests that the only per

son whom he could ha ve been found guilty of

intending to harm is h is wife, Cas ondra Bryant. Thus, he argues that he coul d be found guil ty of aggr avated a ssa ult aga inst Sto ne on ly through the doctri ne of transf erred intent. He contends that the doc trine of transfer red intent

is inappl icable to assault cases in Tennessee.

Tennessee Rule of App ellate Procedu re 13(e) presc ribes that “[ f indings] of guilt in criminal actions wh ether by the trial court or jury shall be set aside if the evidence is insuffi cient to support the finding by the tr ier of f act beyond a
reaso nable doubt.” T enn. R . App. P. 1 3(e). “Qu estions c oncern ing the cre dibility of the witn esse s, the w eight a nd valu e to be given th e evide nce a s well a s all factual issues raised by the e vid ence, ar e reso lved by the trier o f fact, no t this Court.” State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Cr im. App. 1987 ) (citi ng State v. Grace , 493 S.W .2d 474, 476 (Tenn. 197 3)). Nor may this Court re-weigh-15-

or re-evalua te the evide nce. State v. Evans , 838 S.W.2d 185, 191 (Tenn. 19 92) (citi ng State v. Cabbage , 571 S.W .2d 832, 836 (Tenn. 197 8)).

A jury verdi ct app roved by th e tri al j udge acc redi ts t he St a te’s wit nesses and resolve s all con flicts in favor of the State. State v . Wil li ams , 657 S.W.2d 405, 410 (Tenn. 1983). On appeal, the State is e ntitl ed to the stron gest legitim ate viewof t he ev ide nce and a ll inf ere nces the ref rom. State v. Tug gle , 639 S.W.2d 913, 914 (Tenn. 1982) ( citing Cabbage , 571 S.W.2d at 835). Because a verdict of guilt remo ves the presu mptio n of inn ocen ce an d repla ces it with a presu mption of guilt, the accused h as the burde n in this Court of ill ustrating why the evi dence is insuffici ent to support the verdi ct returned by the trier of fa ct. McBe e v.State , 372 S.W .2d 173 , 176 (T enn. 19 63); see also Evans , 838 S.W .2 d at 191 (ci ting Grace , 493 S.W .2d at 476 ); Tug gle , 639 S.W.2d at 914.

In the pre sent c ase, th e Def enda nt was charg ed with “intentio nally
comm it[t ing ] an assa ult on Jen itra D. Ston e . . . by use o f a dead ly weapo n . . . caus [in g he r] to r

easonably fear

imminent bodil y injur y.” Thus, t he following portion of the Te nness ee ass ault statu te is at issue here: “A p erson c omm its
assa ult who . . . [ i]nten tiona lly or knowingly causes another to reasonably fear imminent bodily injury . . . .” Id. § 39-13-101(a) (2). I n additi on, the fol lowing portion of our a ggrav ated a ssau lt statute is at issue: “A person comm its aggravated ass aul t wh o . . . [ i] nte nti onal ly or k nowi ngl y co mm its an assa ult as defined in § 39-13-10 1 and . . . [u]ses or displays a de adly weapo n . . . .” Id. § 39-13-1 02(a)(1) (B).-16- In making the argument that his convi ction for aggravated assa ult ma y only be upheld by a f inding of transfer red intent , the Defendant fai ls to note the mens er a of “know ing” in the s tatutes cite d above . The ag gravated assau lt statute plainly states t hat a Defendant may be f ound guilt

y of the crime of aggravated
assa ult if he acts “intentionally or know ingly .” Id. (emphasis added). Because a convicti on for aggravated assault does not requi re a findi ng of specif ic int ent, we need not address t he qu e stion o f wheth er the d octrine of trans ferred intent is applic able to the crim e of agg ravated a ssault. To sustain an aggra vated assa ult convicti on, it is

enough for a j ury to f ind that a def enda nt acted knowi ngly . As previousl y stated,

a person acts know ingly with res pect to the condu ct or to circumstancessurroun ding t he condu ct when the p erson is awa re of the nature of

the conduct or

that the cir

cums tances exist. A person acts knowi ngly wit h respect to a-17-

result of the perso n’s con duct wh en the perso n is aw are tha t the co nduc t is reason ably certa in to caus e the res ult. Id. § 39-11-30 2(b).
In this case, the State presented evidence from which th e jury coul d infer that St one re ason ably fea red im mine nt bod ily injury at the time of t he shooting. Stone herse lf testified that sh e was “shoc ked” b y the inc ident a nd afra id wh en she heard the bullet come through the w indow. More over, the State presented evidence from which the jury could infer that the Defendant knowi ngly caused Stone to fear i mminent bodily injury . The State pres ented ev id ence that t he Defendant entered his wife’s car with a l oaded gun, pointe d the g un at h is wife, and fired t he gun while t he car was beside t he drive-t hru window of a restau rant. We f ind this

evidence suf

ficien t to support

the conclusi on that the Defendant acted with the awar

eness that hi s cond uc t was reasonably certain t o cause others, including Stone, th e cash ier at th e drive-t hru window, to fear imminent bodily injury.
B. Jury Inst ruction The Defendant next argues that the judge committed plain er r or by instruct ing the jury

on the doctr ine of transferre d intent. Again , we no te that th is issue was not rais ed in the Defenda nt’s moti on for new trial, t hus waiving t he issue on appe al, see Tenn. R. App. P. 3( e); but we wi ll bri efly addr ess the Defendant’s argument. The contested instruct ion is as foll ows:

Under a doctrine kno wn as “transferre d intent” a crime may be aggravated assault when the perso n a ssaulted coul d have been kill ed and wa s not the one whom the accused intend ed to kil l or injure such as wh ere one s hooting [s ic] at another and ki lls or assaults a by

stander or t hird person coming withi n range. Howeve r, before the j ury may fi nd the defendant guilty of the offense of agg ravate d ass ault or any incl uded class of as sault, y ou must be s a tisfi ed beyond a reasonabl e doubt that the assault of-18- Jenit ra D. S tone was aggravated assault or any inclu ded class of assau lt and was comm itted by the d efenda nt. Jury instruct ions on the doct rine of t ransferred intent, such as that above, are app ropriate in case s involvin g crim es in w hich sp ecific inte nt is an elem ent. As we ha ve alre ady co nclud ed, the crime of agg ravate d ass ault does not require spec ific intent. Although in some cases, specif ic intent may be an element of the crime , the D efend ant in the present case must only have acted knowingly. For this reaso n, we find th e forego ing instruc tion unne cessar y.

We conclude, wi thout address ing the merits of the Defendant’s ar gument concerning transferre d int ent, that any error po ssibly caused by this instruct ion
was clearly

harmless error . The instruction i s worded in very general terms and does not require that t he jury util ize the doctrine of transferred intent to convict the Defendant of aggr avated assaul t, all owing the jury to convi ct based upon the statutory definiti on of aggravated assault, whi ch requires only that t he Defendant act know ingly.
Moreover, had the jury relied upo n the foregoing i nstructi on to convic t the Defendant of aggravated assault, theresult w ould h ave be en no differen t than if the jury simply relied upon our aggrava ted assault statute to convict. The transferred intent instructi on in this case required t he jury to find specific inte nt, which is a greater state of mental culpabil ity t han the mens era of knowing. Thus, if the jury

relied on the transferred intent inst ruction, the j ury necessarily must have found that the Defendant acted at least knowingly. Th is issue is therefore without m erit.-19- III. HEARSAY OBJEC TION TO TRIAL TES TIMONY The Defen dant arg ues tha t the trial court e rred in ad mitting, over ob jectio ns by defense counsel, certain testimonyby Stacy Muncey. Specifically, Muncey testif ied that Cas ondra B ryant told he r “that Cra ig was sta lk ing her, t hat she needed to hide, that he kept finding her an d calling [her hotel] room .” She stated thatCason dra “feare d for her life.” She also testified tha t Casondra told her t he Defendant “hit her with a crowba r,” causing a “large br uise [to form ] on her b ack.” The Defendant contends that this i s h ighly prejudicialhearsay testimony which shou ld have been exclud ed at tria l.
Although it

issome w hat unclear from the recor d, it appe ars that t he trial judge allowed a t least part o f this testimo ny unde r th e “e xcited ut terance” exception to the hea rsay rule. See Tenn. R. Evid. 803(2). Fr om a reading of t he record, we agree with the D efendant tha t this testimony app ears to be hearsa y. Furthermore, it appears thatthe record do es not supp ort the State’ s contenti on thatthe testimony fits i nto one or more of the exce ptions to th e hears ay rule. See gene rally Ten n. R. E vid. 803 . How ever, in light of other testimony presented at trialand the en tire reco rd befo re us, in cludin g Cas ondra Bryan t’s testimony t o the
same effec t as tha t of Mun cey, we are sa tisfied th at adm ission of Mun cey’s testimony

was harmless err

or. Tenn. R. App . P. 36(b ); Te nn. R. Crim. P. 52(a ).

IV. SENTENCING Finally, the Defend ant argues tha t the trial court imprope rly ord ered his sentences for attempt ed se cond degree murder and aggr avated assaul t to be served consecutively. The t rial cour t ordered consec uti ve sentencin g after determ ining that th e Defe ndant is a dange rous offe nder.-20- When an accused chall enges the lengt h, range, o r mann er of service of a sentence, this Court has a duty to conduc t a de novo review

of the sen tence w ith
a presumption t hat the determinations made by the tri al court ar

e correct. Tenn. Code Ann. § 40-35-401(d). This presumption is 

### ? conditioned u pon the affirma tive showing in the record t hat the trial court consi dered the sente ncing pri nciples and all relevant facts and circumstanc es.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 19 91).

In conducting a de novo review of a senten ce, this court mu st consider: (a) the evid enc e, if any , received at the trial and sentencing heari ng; (b) t he p resent ence report; (c) the principles of senten cing and argum ents as to sentencing alternat ives; (d) the natur e and characteri stics of the crimi nal conduct involved; (e) any statutory mitigati ng or enhancement factors; (f) any statement made by the defendant regardi n g sentencing; and (g) the potential o r lack of potentialfor rehab ilitation or treatm ent. State v. S mith , 735 S.W.2d 859 , 863 (Tenn . Crim. A pp. 198 7); Ten n. Cod e Ann. §§ 40-35-102, - 103, -210.

If our revi ew reflect

s that thetrialcourt fol lowed the statutory sentencing proce dure, t hat the court imposed a lawfulsentence after having given due considerati on and proper weight to the fa ctors and pri nciples set out under the sentencing law, and that the tri al court’s f indings of fact are adequately

supported by the record, then we may not modif y the sentenceeven if we wou ld hav e preferreda different re sult. State v. Fletcher , 805 S.W.2d 785, 789 (Ten n. C ri m. App. 1991 ).-21- Tennessee Code A nnotated § 4 0-35-115(b )(5) provides that a trial cou rt “may ordersentences to run consecutively if the court finds by a preponderance of the evidence that . . . [t] he defendantis a dangerous offender whose behavior indicates litt le or no regar d forhuman life, and no hesitat ion about committ ing a cri me in which t he risk to human life i s high . . . .” Tenn. Code Ann. § 40-35- 115(b)(4). This rule, which is based upon cases decided by the Tennessee Supr eme Court prior

to its codifi cation, see, e.g. , State v. Wilkerson , 905 S.W.2d 933, 938 (Ten n. 1995), has been expanded thr ough case law. I n Gray v. S tate , 538 S.W.2d 391 (Tenn. 1976), our supreme court determined that “ [t]he deci sion to impose consecutive sentences when crimes inhere ntly dan gerous are inv olved shou ld be based upon the presence of aggravating circumstance s and not mer ely
on the fact tha t two or more da ngerous c rimes were comm itted.” Id. At 393. In addition, the sentenci ng terms imposed must be “r easonably rel ated to th e severity of the off

enses committed and [ mus t be] nec essary in order to protect the public from further crim inal acts by the offen der.” Wilkerson , 905 S.W.2d at 938. The pu rpose o f consec utive sente ncing is to “p rotect soc iety fr o m those who are u nwilling to lead a prod uctive life and re sort to c rimina l activity in furtherance of their anti-societal lifestyle.” Gray , 538 S.W.2d at 393. How ever, our supreme court has al so recognized t hat “‘sentencing is ines capably a human process that neithe r can no r should b e reduc ed to a set of fixed and mechani cal rules.’” Wilkerson , 905 S.W.2d at 938 (ci ting 3 American Bar Associat ion Standards for Criminal Justi ce , Sente n cing Alternat ives and Procedur es 18.11 (2 ed. 1986)).

In the case before us, t he trialjudge made the foll owing observat ions at t he sentencing hearing:10 The jury, by its convi ction o

f the Defe ndant, a

ccredit ed this version of the shooting
. -22- The Court notices in this c ase the bac kground. A pparently,

. . . [Casondr

a Bryant] moved on several occasions tr ying to hide out so [the Defe ndant] woul dn’t locate her be cause ap parently [their] altercat ions would result in violent activity. And th e defe ndan t would find her t he several t imes that she moved.

. . . . And so the C ourt has to take tha t into considerat ion and th is continuo us stalking when s he was trying to stay a way from him. . .

.

. . . . The defendanthas a previous hi story of criminal convicti ons or criminal behavior i n additi on to that n ecessary to establis h the range. The defendantdid ha ve some previous c riminal of fenses and some assaults t hat were eit her nol-prossed [sic] or dismissed. And the Court has t o con sider th e prior c rimina l beha vior in this situati on.

. . . . Looking at this defendan t over the period of tim e that we have facts conc erning the de fenda nt, the d efend ant de nies th at he d id anything that was dangero us or would bea dangerous offender. But according to the vic tim, he did se veral t hings. I n fact, s he was injured and had to get t reatment for it. So t hat’s a danger ous offender. If you believ

e the vict im that. . . s he was struck wi th a tire tool on that one occasi on and a baseball bat on anoth er, that’s certain ly a dangerous person i n my opinion. And a perso n, also , who p ulls up a gun a nd fires it out in a public a rea trying to hurt the victi m , t hat’s a dangero us person . The Cou rt will allow that to apply i n regard to conse cutive sen tencing. . . . [T]he Court rejec

ts the fac

t . . . that [t he defense] i s saying thatthis is a single c ourse o f condu ct that led to th e injury. It was a single co urse of cond uct. Bu t when you fire a gun th at con duct is not restricted to one or tw o individua ls. A bullet is not r estricted exceptby physical thi ngs t hat will p revent a bul let fr om going any further. . . . But in thi s case it was fired and ended up go ing through a window where it almos t struck the lady and could have ea sily hit someone else in tha t place of b usiness becau se . . . that wi ndow [was] open.
The record clearly

supports t he trialcourt’s findingthat the Defendant is a dangerous offender. He d ischarged a gun in a fast-food restaura nt driv e-thru lane, a pub lic place which is typica lly crowde d, t hus jeopardi zing the l ives of several people, i ncluding t ha t of his wife who he shot in the head. 10 Moreover,-23-

the bullet narrowly mi ssed striki ng Jenitra Stone; and had sh e been hit, it is quite poss ible that she c ould ha ve been killed. Giving deference to the findings of the trialcourt, whose sentenci ng deter minati on is presumed to be co rrect , we agree with the decisi on that the s entences should run consecutively in order to protect the pub lic from furth er seriou s crimina l conduc t by the De fendan t.

Furt her mo re, for his attempted second degr ee murder convict ion, the Defen dant wa s senten ced to a term in the m iddle of the senten cing range for a Class B felony , and for hi s aggravated ass ault convi ction, h e was sentenced to the minim um term for a Clas s C felon y. We canno t say that the aggreg ate length of his sen tence s, whic h is on ly one year more than t he maximum sentence for the cri me of attempted second degree murder standing alone, is excessive. Notin g that at tempted second degree murder is among the most severe offenses t ha t
can be committed, we f ind that t he terms ofimprison ment re asona bly relate to the severit

y of the of

fenses. We therefor e conclude that

the record pr

ovides ample evidence to justi fy the sentences imposed in t his case.
The jud gmen t of the trial cou rt is accord ingly affirme d.

____________________________________ DAVID H. WELLES , JUD GE

CONCUR:

___________________________________ PAUL G. SUMMERS, JUDGE-24-

___________________________________ JOE G. RILE Y, J UDGE