### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE December 12,

2000 Session STATE OF TENNESSEE v. CHARLIE M. GARDNER Direct Appeal from the Criminal Court for Davidson County No. 97-D-2814 Cheryl Blackburn, Judge

No. M1999-02214-CCA-R3-CD - Filed March 30, 2001

The Defendant, Charlie M. Gardner, was found guilty by a Davidson County jury of o ne cou nt of first degree premeditated murder and two counts of reckless agg ravated assault. The jury sentenced the Defendant to life without the possibility of parole for the first degree murder conviction, and the trial court sentenced

the Defendant to

four year s for each reck

less aggrava

ted assault convic

tion, all sentences to be served cons ecutively. In this appea

l, the Defendant

challenges (1 ) the admissibility of hearsay statements as falling within the excited utterance exception, (2) the suf fi ciency of the evidence as to all three convictions and (3) the fatal variance between the allegations in count two of the indictment and the proof offered at trial. Based upon our review, we affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
T HOMAS T. W OODALL , J., delivered the opinion of the court, in which J OSEPH M. T IPTON and J ERRY L. S MITH , JJ., joined.
C. Edwar d Fowl kes an d Thom as L. Whiteside, Nashville, Tennessee, for the appellant, Charli

e M. Gardner. Paul G. Summers, Attorney General and Reporter; Russell S. Baldwin, Assistant Attorney Ge

neral; Victor S. Johnson, II

I, District Att

orn ey General; Roger D. Moore, Assistant District Attorney Gen eral; and Sharon L. Brox, Assistant District Attorney General, for the a ppellee , State o f Tennessee. OPINION The Defendant, Charlie M. Gardner, was indicted by the Dav id son County Grand Jury for one count of first deg

ree premeditate

d murder and two c

ounts of aggra

vated assault.The first trial of the Defendant resulted in a hung jury. After a sec ond, four-day

trial, Defendant was found guilty of first degre e pre meditated murder and two counts of reckless aggravated assault. The jury sentenced Defendant to life without the possibility of parole for the first degree murder conviction,-2-

and the trial court se

ntenced Defend

ant to four years

for each reckless aggravated assault conviction, withthe four-year sentences to be served consec utively as to each other and as to the life sentence. In this appeal as of right, Defendant presents three issues for our r eview:
I. Whether

statements made by

a witness t

o police shortly after the shooting we re a dmissible as falling within the excited utt eran ce ex cept ion to e vid ent iar y rule s pro hib iti ng he ars ay; II. Whether

the allegations

in count two of the in

dict ment, chargingthe defendant wi th the aggrav

ated assault of Sa

id Awad, fatally varied from the State’s proof; and
III. Whether

the evidencewas sufficient for a rational trier of fact to find the de fenda nt guilty of each count beyond a reasonable doub

t. After a review of the entire re

cord, we conclu

de that the trial c

ourt did not abuse its discretion in admitting the testimony of Officer Mackovis Peep les concerning statements made to him by Chaka Moore after the shooting under the excited utterance exception to the hearsay rule. We further conclude that no fatal variance between the State’s proof at trial and the allegations in count two of the indict me nt occurred. Finally, the evidence was sufficient for a rational trier of fact to find Defendant guilty of each count. The judgment of the trial court is therefore affirmed. FACTS
The events of this case took place in the early morning hours of Saturday, October 18, 1997, at a popular night spot called Club Yesterdays located on the Clarksville Highway in Davidson County. The club operated from 1995 until December of 1998. For

approximately

a year pri

or to the crime date, the club had been leasing its facility to a private group of individuals who sponsored an event each mont

h called Third Friday. This private gr oup of individuals us

ed radio advertis ements, flye rs, and mai ler s to pub lic ize the Thi rd Fr ida y even t wh ere p eop le, pri mar ily a young business crowd, came in dressy attire for dancing to rec ordedmusic, food, and drink. Third Friday was apparently a highly

successful and

popular event, drawing close to 1,000 patrons at times, a number in excess o

f the 530 capaci

ty number fo

r Club Yesterday

s. During its years of operation, security at Clu b Ye ste rdays was managed by Don Brown and included unarmed guards hire d b y him who wore T-shirt uniforms, sometimes bright yellow, sometimes black, w

ith lettering to indic

ate that they

were part of the

security force. These guards workedthe entrance/exit of the club and the inside area. Because of the increased number of patrons for Thi rd Fr ida y, ex tra secu rit y p ersonnel was hired, including armed guards who were posted outside in the parking area.-3-

Among the security guards hired by Don Brown to w ork the T hird Friday event at Club Yes ter days was the victim, Demetrius Laquan Wright, a twenty-thr

ee-year -old junior at Austin Peay StateUniversity majoring in criminal justice. Wright was a full-time

student who had g

rown up in a military family and had experience as a part-time security guard. Nathan Bell, a friend of Wright’s and his roommate, recommended Wright to Brown. Bell also worked part-time for Brown. The Defend ant and Wright knew each other. On the immediately previous Third Friday even t, held at Club Yesterdays in September, the Defendant had to be thrown out of the club. Apparently he was engaged in an argument with a

female patron a

nd was about to inap

propriately touch her. Wright was one of the first security guards to respond to the situation. Brian Coleman, a security guard who had

worked at the clu

b for nine months an

d knew the Defen

dant, also responded. The Defendant was separated from the female and told to leave. I nstead, he got into a physical struggle with Wright. The Defendant bit Wright’s ear, and Wright hit the Defendant in the face. Robert Utley, general manager of the club who also knew the Defendant as a regular patron, arrived on the scene, and he and

Coleman restrained the Defendant. The Defendant was forcefully escorted out the back door of the club. Don Brown arrived in time to witness the removal of the Defendant

from the club. The Defendant did not go quietly, but loudly threatened Wright, scr eaming that he was “going

to kill him.” Once outside, the Defendant continued his angry tirade, threatening to “go get a gun” and clai

ming that he had n

ot done anyt

hing and did not ap

preciate being

hit in the mouth. The Defendant was apparently not seen agai n at Clu b Ye ste rdays unt il t he n ext Thi rd Fr ida y, held on October 17, 1997.
Don Brown and

Nathan Bell were work

ing in the parking

lot on the Third Fr

iday event h

eld October 17, 1997. Brian Coleman was working inside the club. The victim was working at the front entrancewhere identifications were checked and patrons were searched f or weapons an d bottles. A crowd of between 800 and 1,000 people attended this Third Friday

event. The crowd inside the club was described as being packed shoulder to shoulder. At approximately 1:15 a.m. on October 18, a large crowd was still lined up to enter the club when Brown spotted the Defendant and a group of other males getting out of a car and walking toward the club. Brown decided to move Wright off the front door and station him inside the club as a precautionary step to avoid any replay of the altercationthat had occurred in September between Wright and the Defendant. Bell was told to go to the front entrance a

nd replace Wright. Brown watched the Defendant for some ten or fifteen minutes until a fight in the parking lot distr

acted him, so

he did not see the Defendant approach the club entrance. Bell, nowworking the front door, was not used to handling such large crowds at the entranceand admitted that he did not hand frisk every

single individual

who came throug

h. Bell did not know the Defendant and was not able to positively identify him as having entered the club. Coleman, who did know the Defendant, was moving to a new assignment at the front door when he s aw t he D efen dan t co me i n th e cl ub. Col ema n kn ew t he cl ub p oli cy was not to allow a patron who had b een in a fight at the club to be readmitted, so he went to find Utley, the gene ral manager. Before he could locate Utley , he heard shots being fired.-4-

Utley, who wasinside the club at the time, had also seen the Defendant enter the club and, shortly thereafter, heard gunshots. He turned back toward the front door and saw the Defendan t running out of the club. Utley chased the Defe

ndant into

the parking lot. B ell also heard the shots and steppedto the side to avoid t he first wave of panicke

d patrons who ran o

ut the front. When B ell saw Utley runnin

g out into the park

ing lot after some

one, he followed t

o assist him, but the c

hase ended when the Defendant vanished. Back inside the club, the

victim, Demetrius Laquan Wright, lay on the floor between the bar and one of the two raised dance floors. He had been shot twice in the back. Wright was transported to Vanderbilt University Medical Center where he died, s ho rtly after

arriving in the e

mergency room. Two other victims, bystanders in the crowd at the club, received guns

hot wounds to the leg

s. These victims were identified as Said Awad and Omari Neal in counts two and three, respectively, of the indictment. ANALYSIS

I. Admissibility of Hearsay Testimony As Excited Utterance The Defendant argu es first that the trial court erred in allowing Officer Peeples to testify concerning statements

made t o him by Chaka Moore shortly after the shooting . Specifically, the Defendant

alleges that the

trial court erre

d in admitting testi

mony, over d

efense objection, by Officer Peeples in which Peeples stated that Moore told him she saw the shooting at the club and named the Defendant. Because

identity was the critical issue in the case against the Defendant, he argues that this hearsay testimony, allowed in as an excited utterance exception to the hearsay rule, was fatally prejudicial to him. According to Chaka Moore’s t estimony, she

was at Club Yesterdays at the time of the shooting. Moore testified that she was a regular patron of the club and had known the Defendant for two years. She was at the club with friends and was standing near the bar at the time of the shooting. Moore testified that when she heard the sou nd of shots being f

ired, she droppe

d to the floor. Peop

le were ru nning to get away. When she looked around, she saw the body of the victim on the floor

. She recognized him

as an employee of the

club. She looked up and saw the Defendant, whom she knew as “Chewie,” sta

nding over the vi

ctim, approximately

four feet from h

is body. Moor

e could notrecall what the Defendant was wearing. After she saw the Defendant turn and run from the club, she called 9-1-1 on a

cellular phone. M

oore did not wait f

or th e police but left the club with her friends and went immediately to a nearby Waffle House on Trinity Lane. MackovisPeeples, a master patrol officer with the Nashville Metro Police Department, was working an extra job in uniform at the Waffle House when Moore and her friends arrived. It was unclear from

testimony of P

eeples and Moore

which one approa

ched the other fi

rst. Moore stated that she was not looking for an officer. According to Moore’s testimony, she told Peeples “what happened at the club.” She testified on cross-examination that Officer Peeples did not ask for her name or telephone number and, as far as she knew, had no way of contacting her.-5-

Officer Peeples testified that he recognized Moore from having seen her in court on a prior occasion and remembered her unusual first name, Chaka. Officer Peep les further testified to the following on direct examination:

Q. After you spoke wit

h the woman y

ou knew to be Chaka

, what did you do with that information?
A. Well, she came in. She was a bit terrified, scared, you know, like a little bit paranoid, you know, nervous, extremely scar ed I guess you would say, and she told me she had just come - -
MR. F OWLKES: Object, Your Honor, to what she said. She ha s testified. A. (WITNESS) She advised me - - MR. FOWLKES: Same objection, Your Honor.
GENERAL

BROX: J

u dge, I th ink certainly he can testify as to the excited utterance, and let me talk with him a little bit more abou

t that. THE COURT: All rig

ht. Q. (GENERAL BROX) Officer, describe Chaka’s deme anor. A. (WITNES S) V ery scared and afraid and looked to be a tad paranoid. Q. Okay, an

d did you ask h

er any que

stions? A. Yes, I did. Q. Okay. What did you ask her?
A. Well, I, y

ou know, I cou

ld tell she was afr

aid of something, you know, and I tho ught som ebo dy maybe was bothering her or something, but she had just come from Club Yester days where a shooting had just occurred. Q. And as she told you this story, what was her demea nor? A. Scared and nervous, afraid, very much afr aid.-6- Q. And how close in time to her telling you about this did the shooting occur? A. Not more than 10 or 15 minutes ago. MR. FOWLKES: Objection, Your Honor, there is no way he would know that, plus she has been here and testified.
THE CO U RT: Overruled. I will allow it, excited utterance. Go ahead, G eneral B rox. Q. (GENERAL BROX) Tell me, Officer Peeples, what information did she tell you?
A. (WITNESS) She o

bserved the sh

oot ing that occurred inside of Club Yesterday

s. The suspect wa

s standin g close to her or not far from her, and I asked her did she know his name, and she gave me the name o f Charlie Gardner, and at that time, I went to my radio to a county-wide

channel and trie

d to raise a homicid

e detectiv e to ask him if a shooting had occurred, and no one had go tten back with me because I guess they were all in route to that scene at the time,

but I left a name with the disp

atc her, and had them notify a homicide detective of what I had found out as far as the suspect information. Here, there is no argument that the statements of Moore as offered by Officer Peeples were hear say. They were out-of-court statements “offered in e vidence to prove the truth of the matter asserted,” Tenn. R. Evid. 801(c), and were, therefore, inadmissible except as otherwise provided by law. See id. 802. A statement, otherwise hearsay in nature, is, neve

rtheless, admissib

le as an excited utterance if it relates “to a startling event or condition made whi

le the declarant w

as under the stre

ss of excitement caused by the event or condition.” Id. 803(2) . The firs t two requirements are met here: there was a startling event and the statements related to that event. The issue is whether the evidence in this record shows that the declarant, Moore, was making the statements while under the stress of excitement caused by the event. Among the relevant con sideration s in making this determination are the following: (1) the time interval between the making of the sta

tements and the startling event; (2) the nature and seriousness of the event; (3) the appearance, behavior, outlook, and circumstances of the declarant, including characteristics such as age, phy sical condition, and mental condition; and (4) the contents of the statements, which may indicate the presence or absence of stress. See State v. Gordon , 952 S.W.2d 817, 820 (Tenn. 1997). These considerations support the rationale behind the excited utterance exception, which is that such statements are admissible as reliable because they

are made where

tim e for reflection and possible fabrication is lacking and memory of the event is still fresh. See id. at 819-20 (quoting Neil P. Cohen et al., Tennessee Law of Evidence § 803(2).1, at 532 (3d ed. 1995)).-7-

The record shows that

Moore went immediately from the scene of

the shooting to the

Waffle House. Moore had been physically close to a deadly shooting in a crowded night club and reacted initially to the sound of gunfire by throwing herself to the floor as a me ans of protection while other panicked p atrons r an from the scene. Testimony indicated that she appeared shake n when she arrived at the Waffle House, so much so that she either drew the attention of an experienced police officer or else she sought out an officer to relay what had oc curred. In either case, Officer Peeples described her as appearin

g scared and a

gitated. Her sta

tements related t

he stressof seei ng the Defendant,

a man she knew, standing close to the body

of the victim. This

is sufficient evid

ence to support the trial court’s determination that Moore’s statements to Officer Peeples were admissible as excited utteran

ces. The Defendant further argues that the word “observed” in Officer Peeples’ testimony implies that Moore saw the actual shooting a nd identified the D

efendant to

Officer Peeples as the shooter. The State counters that Moore had already testified that she only “heard” shots and subsequently sa w the Defendant standing over the body of the victim. We agree w ith the State that there is no difference

of any consequenc e bet ween the testimony of Moore concerning the shooting and the testimonyof Officer Pee ples concerning

statements made by

Moore to him about th

e shooti n g. Thus, Defendant is not entitled to relief on this issue. II. Variance The Defendant ar gues next t hat the proo f offered by the S tate and th e allega tions of the indictmentin count two varied fatally, and the Defendant is entitled to an acquittal as to count two. The allegation

s in count two are a

s follows:
THE GRAND JURORS of Davidson Cou n ty, Tenness ee, duly impaneled and swo

rn, upon their oath

, present that: CHARLIE M.

GARDNER o n the 18th day

of October, 1997 , in Davidson County , Tennesse

e and before the finding of this indictment, intentionally

or knowingly didcause bodily

injury to Said Awad by the use or display of a deadly weapon, to wit: a handgun, in violation of Tennessee Code Annotated § 39-13-102, and against the peace and dignity of the State of Tennessee.
At the close of proof in this case, the State read the following statement from a document, which was not inclu

ded in the record

on appeal: The State elects that Count 2 of the indictment refers to the individual who was observed in th

e area of the pool tables. The person was described as being unable

to speak English and had received an injury to his leg, and I will file this with the Clerk.-8-

The Defendant does not arguethat no one in the area of the pool tables received a gunshot wound to the leg. Rather, the Defendant argues that the allegations in count two specifically named Said Awad as the victim

, and the State’s pr

oof fatally

varied from the a

llegations by

failing to identify suc

h an individual as th

e victim. The Defendant is cor

rect in noting, g

enerally, that a variance occurs when

the proof offered at trial does not conform to the allegations made in the indictment. In such a case, the Defendant is entitled to have the conviction reversed because an accused cannot be charged with one offense and convictedof

a completely different offense. See State v. Keel , 882 S.W.2d 410, 416 (Tenn. Crim. App. 1994). The Defendant was charged w

ith aggravat

ed assault of Said

Awad. Evidence at trial showedthat an individual was seenby three witnesses sitting in the area of the pool tables after the shooting. This individual had received a bullet wound to the leg. He was una

ble to communicate effectively

in English. His nam

e, relaye d by poli ce to one witn

ess at the club, was “strange.” Evidence showed further that this individual sought treatment at Bapt ist Hospital and was interviewed

by Sergeant Hullet who testified that the individual was Said Awad, a Somalian refugee. Awadhad sustained a thr ough-and-thro

ugh bullet wound to

the leg. Based on this evidence, we conclude that no variance occurred. Even if we were to find a variance in this case, it would not be mater ial. While

common law tradition held that strict conformity wasrequired between proof and allegations, even in “minor and immaterial respects,” State v. Moss , 662 S.W.2d 590, 592 (Tenn. 19 84), o ur supreme court has adopteda less restrictive approach, known as the Berger standard, for determining when a variance betweenallegations in an indictment and evidence pr esented at trial is material and constitutes reversible error. The Unite

d States Supreme Cou

rt, in Berger v. United States , 295 U.S. 78, 82, 55 S. Ct. 629, 629, 79 L. Ed. 1314 (1935), concluded that a variance is not fatal if the de fendant is sufficiently

informed of the c

harges agai

nst him so that he can a

dequately prepare for trial and so that he is protected against any subsequent prosecution for the same off ense. See id. at 79-82, 55 S. Ct. at 630. In Moss , our supreme cou rt announced the

following test: Unless substantial rights of the defendant are affected by a variance, he has suffered no harm, and a variance does not prejudice the defendant’s substantial rig ht s (1) if the indictm

ent sufficiently informs the defendant of the charges against him so that he may prepare his defense and

not be misled or surprisedat trial, and (2) i f the variance is not such that it will present a danger that the defendant may be prosecuted a second time for the same of fense; all other variances must be considered to be harmless error. Id.
In accordance with this stan dard, we mu st determine first whether count two in the indictmentsufficiently informed the Defendant of the charges against him so that he could prepare a defense and not be surprised at trial. Here, the indict ment informed the Defendant that he was-9-

charged with intentionally

or knowingly

causing bodily

injury to Said Awad on October 18, 1997, in Davidson County by the use of a handgun in violation of Tennessee Code Annotated Section 39- 13- 102. The indictment spe cifically d

escribed the per

son alleged to ha

ve been injured a

s, “Sai d Awad.” There isno indication in the record tha t the Defendant w

as denied acce

ss to appropriate pretrial discovery relevant to the person Said Awad or that he was misled or surprised at tria l or prevented from adequately preparing a defense against this charge. The Defendant additionally relies on State v. Cox , 644 S.W.2d 692 (Tenn. Crim. App. 1982), for the proposition that the State has imposed on itself a special burden of strict proof when a named victim is substituted f

or the word “anot

her” as set fort

h in the statute. However, a careful reading of the opinion in Cox indicates that the court was drawing a distinction between t hose earl y Tennessee cases that

followed a s trict vari ance rule and later cases f ollowing a growing judicial trend towardgreater objec

tivity, a tre

nd culminating in

the h olding in State v. Moss , 662 S.W.2d 590 (Tenn. 1984), which arti

culated the pres

ent standard app

licable to variance issues, that is, the Berger standard. Moreover, it is

also clear that th

e indictment in cou

nt two is sufficien

tly specific

to permit the Defendant

to plead double

jeopardy as a bar to any

subsequent prosecution for the same offense. The Defendant is not li

mite d to the wording in count two but may rely on the e ntire record in the event of further prosecution for the same offense. The indictment, together with the record,

would prohibit another prosecution for the aggravated assaul t of Said Awad, whose identity was established by eviden ce as the individual who suffered a through-and-through gunshot wound to the leg on October 18, 1997, at Club Yesterday s. Such a determination is consistent with State v. Mayes , 854 S.W.2d 638, 641-42 (Tenn. 1993), in which our supreme court held that a defendant was protected from reprosecution of thesame offense where an indictment specified the purchaser of illegal dru gs by name, but the proof at trial showed that another person made the actual purchase.The facts here are far less problematic than those in Mayes . The Defendant is not entitled to relief on this issue. III. Sufficiency of the Evidence
In his final issue, the Defendant challengesthe sufficiency of the evidence in each of the thre e convictio ns in this c

ase. We address first the appropriate standard of review and turn then to each conviction in order. A. Standard of Review
In a criminal trial in Tennessee, great weight is given to the result reached by the jury

. A jury verdict accredits the State’s witnesses and resolves all conflicts in favor of the State. See State v. Bigbee , 885 S.W.2d 797, 803 (Tenn. 1994). On appeal, the State is entitled to t he strongest legitimate view of the evidenceand all reasonable inferences that may be draw n from the evidence. See id. ; see also State v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978). Moreover, a guilty verdict removes the presumption of innocence that the appellant enjoyed at trial and replaces on appeal that-10-

presumption of innocence with a presumption of guilt. See State v. Grac e , 493 S.W. 2d 474, 476 (Tenn. 1973). The appellant has the burden of overcoming this presumption of guilt. See id. Where the sufficiency of the evidence is contested on appeal, the re levant question for the re viewin g court is whether any rational trier of fact could have found the accused guilty of every element of the offense beyond

a reasonable doubt. See Jackson v. Virgini a , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). In determining the sufficiency of the evidence, this court does not reweigh or reevaluate the evidence. See Cabbage , 571 S.W.2d at 8 35. The weight and credibility

of the witnesses’ testimony are matters entrusted exclusively to the jury as the trier

of fact. See State v. Sheffield

, 676 S.W.2d 542, 547 (Tenn. 1984). B. First Degre

e Premedita

ted Murder of Dem

etrius Laquan Wright The Defendant contends that the evidence was insufficient to supporthis conviction for the first degree murde

r of Demetrius L

aquan Wright.We conclude that the evidence was sufficient for a rational jury to find

beyond a re

asonable doubt tha

t the Defendant k

illed Wright intent

ionally and with premeditation. The evidence showed

that one month prior to the murder, the Defendant and the victim had been in a physica

l struggle brou

ght on by th

e Defe ndant’s actions against a female patron at Club Yesterday

s. The victim, acting within his role as security guard at the club, soug ht, with the assistance of other security personnel, to evict the Defendant from the club. The evidence was that the Defendant bit

the ear of the victim, causingit to bleed, while th e victim struck the

Defendant in the face. Evidence

showed that the De

fendant returne

d to Cl ub Yesterda ys in the early morning hours of October 18, 19

97, on the occasio

n of one of t he most popular events at the club, Third Friday. Within minutes of his having entered the club, shots were fired. Tanisha Stewart testi

fi ed as an eyewitness to the shooting. Stewart testified that she had frequented

Club Yesterdays and knew the victim. She had attended a fraternity banquet with Wright approximately

two weeks prior to the shooting. On the evening of the shooting, she and a group of fr iends were at Club Yeste rdays for t

he Third Friday

event. Stewart wa

s checked at the door b y Wright and then went into the club, wh ich she described as pa cked. Stewart did

not consume alcohol. She and her

friends moved around the club. At some point after midnight, Wright passed by her and then turned and stopped to speak with her. Wri ght wa s standing directly in front of Stewart, an d they were hold ing hands as they spoke. St ewart testi fied to the following:

A. I remember standing there talking to him and his left hand was holding my right hand and we were talking, and from be hind, I was pushed, it was so packed, and I was pushed by this big g uy, and I turned around and I said I’m standing here, and I remember Laquan turning around and

asking the guy

to watch where he was going, and he turned back around and started talking to me.-11- Q. When you say he turned around and sta rted talking to you - -
A. Laquan turned back around and started talking to me, and I remember

this big guy

in an orange shirt and dark colored pants walk, I seen him walk behind him, and he turned around and drew the gun and shot him. Q. When the in dividual - - was it the same individual who had bumped into you?
A. Yes. Q. And the same ind

ividual that Mr. Wrig

ht had told to watch

it?
A. Yes. Q. Oka y. When the shots were fired, I believe you told us y ou were standing facing Mr. Wright. As the shots were fired, wha

t view did you have of

the person who fir

ed the shot? A. I was stand

ing there looking

directly a t him.
Ms. Stewart testified that she could see clearly because the lights we re lit in the bar, and

she and Wright were standing in the a rea between the bar and one of the raised dance floors. Stewart identified the weapon as a small handgun. She heard five or six shots fired, one right after the other. The Defendant was standing approximately ten feet away fr om Stewart when the shots were fired. She was able

to positi vely identify him from a photographic lineup on October 27, 1997. Add iti ona lly, Stewart positively identified the Defendant in court as the man she looked in the face and saw holding a gun pointed directly at the victim’s back. Stewart testified that she had never seen the Defendant before the shooting.
Stewart testified further that

the victim

fell to the floor shortly after the first shot and was shot again. A friend grabbed her and pulled her to safety across the flat dance floor and under the small pool tables. Cha ka Moore testified th

at she was in the sa

me area of the ba

r where the victi

m was shot

. She fell to the floor when she heard shots and, when she looked up, she saw the Defendant, a man she knew, standing over the victim. Dr. John Gerber testified as an expert in forensic pathology. He conducted the autopsy on the victim’s body and concluded that the victim died of multiple gunshot wounds to

the back. One wound was to the l eft upper ba ck and invo lved a lacera tion of the left lung, heart, and the sac around the heart called the pericardium. The second wound was in the lower back and

involved the small-12-

bowel, left kidney, and soft tissue. Two bullets were collected from the victim’s body

and turned over to law enforcement officers. Dr. Gerber testified that the manner of dea th was homicide. George Bouton, an identificationofficer with the Metro Police Department, testified that he retrieved one spent bullet in the area where Wright was killed. That bullet was entered as Exhibit 10. Sergeant

Calvin Hullet testified that he retrieved one bullet, entered as Exhibit 13, from the Middle Tennessee Medical Center in Murfreesboro where it had been taken from the leg of Omari Neal, the victim in count three. Sergeant Hullet also r e trieved two bullets, entered as Exhibit 14, from the medical examiner’s of fice in Nashville where they had been taken from the body of the murder victim. Sergeant Hullet testified that he took all four bullets, (Exhibits 10, 13, and 14), to the Tennessee Bureau of Investigation (“TB I”) Crime Laboratory for examination. Special Agent Don Carman, a forensic scientist with the TBI Crime Laboratory

, testified as an expert witness in forensic firearms identification, or ballistics. Agent Carman testified that he received four fired lead

bullets to determine if they were fired through the same bar rel. He testified that the bullets were a

ll .38/.357 caliber

, round nose

lead bullets. Agent Carman further testified that the only weapons he could identify that produce the particular ty pes of lands and grooves found on the bullets he examined were revolvers, predominantly of Colt manufacture. Of the four bullets he examined, Agent Carman was able to determine conclusive ly that three of the bullets, the bullet found on the floor of the club, (Exhibit 10), andthe two bullets taken from the body of the murder victim, (E xhibit14), came from th e same gun. The

fourth bullet, (Exhi

bit 13), taken fro

m victim Neal, was too mutilated to make a conclusive identification, although Agent Carmen determined that the fourth bullet had similar land and groove charac ter istics as the other three he examined. No bullet was taken from the body of the victim in count two of the indictment, Said Awad.
A rational jury

could conclude f

rom the evidence

in this case

that the Defenda

nt sought to get even with the victim, Demetrius Laquan Wright, for having hit him in an altercation at Club Yes ter days that resulted in the Defendant’s being expelled from the club; that the Defendant returned to the club in the early hours of October 18, 1 997, sought out the victim, who was disti

nctively dressedin a security guard’s uniform shirt, and fired multiple shots into the crowded club; that the Defendant

intentionally and with pr eme ditation inflicted multiple gunshot wounds to Wright that caused his death; that the Defendant was pos itively identified as the person who fired the shots at Wrigh t an d as the person standing over the victim after the shooting. Thus, the evidence was sufficient to supp

ort the Defenda

nt’s conviction fo

r the first degr

ee murder of Wrig

ht. B. Reckless Aggravated Assault of Said Awad The Defendant includes both convictions for reckless aggravated assault in his statement of Issue III, but arg

ues only that the proof was in sufficient to support the murder conviction. Nevertheless,

under Issue II, the De

fendant argues at length that the proof was insufficient to convict him of the reckless aggravated assault of Said Awad because the State of fered no proof that the-13-

individual identified as Said Awad by Sergeant Hullet was the same individual observed and spoken to by the witne

sses Don Brown, B

rian Coleman, and

Robert Utley . As fatal flaws i n the State’s proof, the Defendant points to the fact that Awad never testified; that there were no medical records showing Awad had ever received treatment at Baptist Hospital; and that there was no bullet retrieved from Awad’s le g. Although we acknowledge that the State’s evidence in count two lacked this proof, the test for sufficiency of the evidence is whether any rational trier of fact could have found the accu sed guil ty of ever y elementof the offense beyond a reasonable doubt. The trial court charged the ju

ry as to rea

sonable doubt as f

ollows: Reasonable

doubt is thatdoubtengendered by an investigation of all the proof in the case and an inability, after such investigation, to let the mind re st e asi ly a s to the certainty of guilt. Reasona

ble doubtdoes not mean a captiou s, possible or imag

inary doubt. Absolute certainty of guilt is not demanded by the law to convict of any criminal charg

e, but moral cert

ainty is required, and th

is certainty is required

as to every

proposition of proo

f requisite to

constitute the offense.
A reasonable doubt is a doubt based upon reason and common sense after careful and impartial consideration of all the evidence

in this case.
A person commits

reckless agg

ravated assault

who commits an assault causing bodily injury to another and uses or displays a deadly weapon. See

T enn. Code Ann. §§ 39-13-101(a)(1) – 102(a)(2)(B). The evidence show ed that the D efendant used a deadly wea

pon. Two gunshots entered the back of the murder victim; one entered the leg of the aggravated

assault victim in count three, Neal; and a spent

bullet was found on the floor. Tests showed that the spent bullet found on the floor in the area of the murder and the two bullets taken fr om the murder victim’ s body came fr om the same handgu

n. Tests also showe

d that the bullet tak

en from Neal,

although no t conc lusively

from the same weapon, was not ruled out as having come from the same weapon

. Sufficient evidence proved the use of a deadly weapon, in this ca se, a handgun. Evidence showed that, after the shooting had ended and the Defendant had run from the club, club personnel determined that the gunshots had caused bodily

injury to two individuals other than the murder victim, one of whom was located near the pool tables.
Don Brown, head of s

ecurity at Club Yesterday

s, testified that it took him about ten minutes to get inside the club after the shooting. He testified to the following on direct examination:

A. Yes. I went

in to assist - - well, I saw o ne guy had

been shot in the leg, and

there was someone who appeared to have a flesh wound so I proceeded to go and find out if anybody was hurt real bad. And when I got

to the bar, I saw Demetrius laying on the f loor. And it was-14- two or three people around him trying to make sure that he was being stable and calm. Q. Now, let me step aside here for just a second. You said you saw someone that appeared to have a flesh wound? A. Right. Q. Where was that wound on this person?
A. He was near the

pool table. It was his leg, he was sitting in a chair by the pool table.

. . . . Q. Did you speak to that individual, find out his name?
A. He was hyste

rical. So I did

n’t get noth

ing out of him so I

just kept going, trying

to look around to see how bad it was, who was hurt the worst. Brown testified

further on cross

-examination that th

e wounded individu

al sitting in a cha

ir by the pool tables was a foreigner and that he, Brown, “couldn’t understand a wordhe was saying.” BrianColeman, a security guard, testified that after the shooting he was inside the club trying to see whether anyone had been injured. He saw Wrig ht on the floor and

saw “another gentleman back by the pool tables, and one other person had hopped outside.” Coleman had aided the victim who hopped outs ide and testified that this person had a gunshot wound to the leg. Coleman then returned to the club where he saw the individual by the pool table who

appeared to have also suffered a bullet wo und to the l eg. Robert Utley, club general manager, te stified to the following on direct examination: Q. And did you see any

other individuals there who appeared to have been injured that

night?
A. At that time, no. After the medical personnel had attended

to Mr. Wright, I was walking up toward the top bar to lock the cash re

gisters, and someone had said there was a gentleman and a young lady. The young lady was behind the bar

in the supply room

since she had been injured, and there was a young gentleman on a be nch that said he had been injured.-15- Q. Okay. Now

as far as th

e young g entleman on the be

nch, could you see by lookin

g at him or did y

ou look at him to

see if it appeared that he had been injured?
A. Yes. I went up there and asked him was he all right, and

he said he had been

shotin the leg. He did

n’t expect to die. He

was just in pain, and then the young lady, I went to see her, and she said she had strained her ankle.

. . . . Q. Just one thing, the person w ho w as sitting back on the bench injured, with the leg injury, did you happen t o g et that gentleman’s name?
A. At the time, the police officer gave me his name. He had

a funny name, a strange name, but I didn’t personally get it from him; no.
In addition to the testimony of club personnel, Ser g eant Hullet with Metro Police testified that he was in the room at Vanderbilt Hospital when Wright wa s pronounced dead. Over Defendant’s objection, Hullet further te stified that,

having learned there was a second victim being treated at Baptist Hospital, he left to find that victim. Hullet testified that he located this victim, that his name was Said Awad, and that he was a Somalian refugee. Hullet, a nearly ten-year

veteran of law enforcement, testified that the wound he observed appeared to be a gunshot wo

und with a hole on both sides of the leg, just a couple of inches below the knee. It looked as if the bullet had passed completely through the leg.
A rational jury

could reasonabl

y infer fr om the evidence th

at an individual, Sa

id Awad, who was found near the pool tables, sustained bodily injury as a r esult of being shot in the leg. A rational jury could also infer that the second victim, Awad, was the Somalian refugee who was interviewed by Sergeant Hullet at some time close to 1:59 a.m., on October 18, 1997,

at Baptist Hospita

l. Hullett te stified tha t he had been at Vanderbilt Hospital with Wright, but after Wright’s death at approximatley

1:59 a.m., he went t

o tra ck down the secon

d victim, who was re

portedly at

Baptist Hospital. Hullet testified that, upon finding the Awad, h e observed wh at he determined to be a through-and -through gunshot wound to Awad’ s le g. We conclude, therefore, that the evidence at trial was sufficient to show bodily injury by use of a deadly wea

pon to an individual, Said Awad, and thus support a conviction of reckless aggravated assault against Said Awad bey ond a reason abl e doubt. C. Reckless Aggravated Assault of Omari Neal The Defendant also a

sserts that the evi

dence was insuff

icient to convict him of the r

eckless aggravated

assault of Omari Neal, the victim in count three of the indictment. The Defendant f ails-16-

to support this asser

tion in his brief with any argu ment, citation to au

thorities, or appr

opriate references to the record. This issue is, therefore, waived. See Tenn. R. Crim. P. 10(b). Despite waiver, we find that

a rational trier fact could reasonably infer from the evidence that Omari Neal, sustained

bodily injury from a gunshot wound to his leg. At trial, Ne al testified that he was present at Club Yesterday on the night of the shooting. Neal stated that he was standing beside Wright and the two were

having a conve

rsation prior to

the shooting. Neal further testified that he was struck in the left leg by a bullet, when the shooting first started. From this evidence, a rational trier of fact could hav

e found Defenda

nt guilty of

using a deadly

weapon to reckle

ssly cause bodily injury to Neal. CONCLUSION
In conclusion, the statements made to Of ficer Peeples by Ch

aka Moore were

properly admitted as excited utterances and therefore an exception to the hearsay rule. There was no variance betweenthe allegations in count two of the indictment and the p r oof offered at trial. Finally, the evidence was s ufficient t o support convictions in count one for first degree murder of Demetrius Laquan Wrig

ht and in counts

two and three for

the reckless aggravated assaults of Said Awad and Omari Neal, respectively. The judgment of the trial court is, there fore, affirmed.

___________________________________ THOMAS T. W OODALL, Judge