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State of Tennessee v. Jason M. Justice ( 2009 )


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  •            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT JACKSON
    Assigned on Briefs March 3, 2009
    STATE OF TENNESSEE v. JASON M. JUSTICE
    Direct Appeal from the Circuit Court for Madison County
    No. 07-568    Roger A. Page, Judge
    No. W2008-01009-CCA-R3-CD - Filed June 15, 2009
    The defendant, Jason M. Justice, was convicted by a Madison County Circuit Court jury of first
    degree murder and sentenced to life imprisonment. On appeal, he challenges the sufficiency of the
    convicting evidence, the trial court’s admission of evidence concerning an alleged robbery of the
    defendant by the victim, and the trial court’s admission of text messages between the defendant’s
    girlfriend and another witness. After our review, we affirm the judgment of the trial court.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
    ALAN E. GLENN , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
    CAMILLE R. MCMULLEN , JJ., joined.
    George M. Googe, District Public Defender, and Paul E. Meyers, Assistant Public Defender, for the
    appellant, Jason M. Justice.
    Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
    General; James G. (Jerry) Woodall, District Attorney General; and James W. Thompson, Assistant
    District Attorney General, for the appellee, State of Tennessee.
    OPINION
    FACTS
    This case involves the June 13, 2007, shooting of the victim, Anthony Hartshaw, while he
    was sitting inside his car on Lincoln Street in Jackson, Tennessee. The investigation resulted in the
    defendant’s indictment on one count of first degree premeditated murder and one count of coercion
    of a witness.1 A trial was conducted on the matter in February 2008.
    1
    The coercion of a witness charge was dismissed at the end of the State’s proof.
    At trial, Oakley McKinney, special agent and forensic scientist with the Tennessee Bureau
    of Investigation (TBI), testified that he analyzed fingerprints and palm prints sent to him by the
    Jackson Police Department that were lifted from an automobile linked to this case. Neither the
    fingerprints nor the palm prints matched known prints for the defendant or the believed passenger,
    Anthony Drew Jones. On cross-examination, Agent McKinney agreed that there was no physical
    evidence linking the defendant to the car used in the murder.
    Officer Robert Faulkner with the Jackson Police Department testified that he responded to
    a shots fired call at 288 Lincoln Street on June 13, 2007. When he arrived, he found a burgundy
    Chevrolet El Camino parked in the side yard of the house, Ladenner Bond sitting in the driver’s seat,
    and the victim slumped over in the passenger’s seat. He asked a “somewhat hysterical” Bond to step
    out of the car and opened the passenger’s side door to check the victim’s vital signs. The victim
    “didn’t have any” vital signs and did not appear to be breathing. Officer Faulkner saw a pool of
    blood and a small amount of vomit on the floor of the car. When other officers arrived on the scene,
    Officer Faulkner went inside the house and took a statement from Bond. The El Camino was later
    towed to the city pound for processing.
    Officer Rochelle Staten with the Jackson Police Department testified that she responded to
    a shooting at 288 Lincoln Street on June 13, 2007, around 4:00 p.m. At the scene, she saw a man,
    who had been shot in the head, slumped over inside a “rust colored” vehicle. The victim’s girlfriend,
    Ladenner Bond, was at the scene and was very emotional, “almost hysterical.” Bond relayed to
    Officer Staten what had happened and described the car involved in the incident as “a black Pontiac
    Grand Am with dark tinted windows . . . [and] dealership tags, the red and white tags.” Based on
    Bond’s description, the police issued a “be on the lookout” (BOLO) for that vehicle.
    On cross-examination, Officer Staten recalled that Bond said the car was a Grand Prix, not
    a Grand Am. Bond also told her that the suspect looked like Newt Carter and generally described
    the suspect as “[d]ark skin, black male with a short . . . afro.” Bond relayed to Officer Staten that
    she believed the victim knew the suspect because “when [the victim] was standing by his car and the
    car pulled up into the yard, that he didn’t make any move as if he did know the person, that he kind
    of stood there.”
    Lieutenant Michael Holt with the Violent Crimes Unit of the Jackson Police Department
    testified that he responded to the scene of the shooting around 3:45 p.m. on June 13, 2007. At the
    scene, Lieutenant Holt observed a maroon El Camino sitting in the yard with what appeared to be
    a bullet hole in the driver’s door below the mirror. He noted there was no exit hole on the other side
    of the door, which suggested that the bullet did not penetrate the interior and was still lodged in the
    door. Lieutenant Holt saw the victim, with a gunshot wound to the left side of his head, lying on his
    right side across the passenger seat with his head slightly out of the ajar passenger door. There was
    blood on the victim’s head wound and arm. The location of the victim’s gunshot wound indicated
    that the shooter was on the driver’s side of the vehicle. Lieutenant Holt took photographs and
    measurements of the scene and had a diagram prepared. He also had the car towed to the evidence
    bay for further processing.
    -2-
    Assistant Coroner Eric Echtenkamp of the Madison County Medical Examiner’s Office
    testified that he responded to the scene on Lincoln Street on June 13, 2007, where he found the
    deceased victim “partially in, partially out of a vehicle” with a wound to the left side of his head
    consistent with a gunshot wound. The victim’s body was transported to the hospital where
    Echtenkamp examined the body again and an x-ray suggested that a bullet was lodged in the cranial
    cavity of the victim’s head. Echtenkamp said that the victim’s body was subsequently transported
    to Nashville for an autopsy.
    Investigator Michael Parson with the Jackson Police Department testified that he assisted
    Lieutenant Holt in investigating the crime scene on Lincoln Street on June 13, 2007. Investigator
    Parson took measurements and drew a sketch of the scene, then went to the hospital to photograph
    the victim’s body. He later retrieved a bullet or bullet fragment from the medical examiner’s office
    in Nashville that was removed during the victim’s autopsy and transported it back to the Jackson
    Police Department.
    TBI Special Agent/Forensic Scientist James Russell Davis, II, testified that he performed a
    gunshot residue test on a sample from the vehicle suspected to have been involved in the shooting
    and a sample from that vehicle’s steering wheel cover and that both results were negative. Agent
    Davis noted that a negative result, however, does not conclusively indicate that a gun was not fired
    from that car.
    TBI Special Agent/Forensic Scientist Bradley Everett testified that he tested the steering
    wheel cover from the suspected vehicle for the presence of blood but did not find any. He also
    performed a DNA test on skin cells found on the steering wheel cover, but due to the limited profile
    he could only determine that the DNA was from a male. Agent Everett explained that his finding
    did not mean that a female had never touched the wheel cover – that it was “very possible” for
    someone to be in a car and not leave DNA evidence. On cross-examination, Agent Everett
    acknowledged that he could not tell who had or had not been in the car.
    Ladenner Bond, the victim’s girlfriend, testified that she and the victim were at her mother’s
    house on Lincoln Street on June 13, 2007, having a conversation on the porch. The victim walked
    to his El Camino that was parked in the field next to her mother’s house and had just sat down in the
    driver’s seat, when “a black car pulled up to the curb and fired a couple of shots at him” and drove
    off. Bond elaborated that the black car pulled up next to the victim’s car from the “[o]pposite
    direction, driver to driver.” She stated that more than one shot was fired. She was able to see the
    driver-gunman from the side but did not recognize him. Bond saw a second person in the front
    passenger seat and thought she saw a third person in the backseat but was not certain.
    Bond testified that after the shots were fired, she went to the victim’s car and found the
    victim slumped over toward the passenger door with blood coming out of his mouth. Bond got into
    the car and held the victim while her nephew telephoned for help, but the victim died before the
    police arrived. Bond gave a description of the gunman’s vehicle to the police and described it as a
    black Grand Am or Grand Prix with red dealer’s tags. She said the car was similar to the car
    -3-
    belonging to the girlfriend of the victim’s friend, “Mighty,”2 and that she had seen “Mighty” driving
    it. After reviewing the statement she gave to Investigator Miller after the incident, Bond also
    recalled that the suspect car had tinted windows, a fin on the back, and a sunroof. Bond identified
    photographs of the car used in the shooting for the police. However, she was unable to positively
    identify the gunman from photographic lineups, and she did not see the passenger well enough to
    be able to identify him or her. Bond said that she knew Anthony Drew Jones and was sure he was
    not the gunman.
    On cross-examination, Bond testified that after the shooting she told the police that the
    gunman was a dark-skinned black male. She said that she told the police the gunman’s hair
    resembled Newt Carter’s hair, “like he had it braided and had just taken it down or something,” but
    she did not say the gunman looked like Newt Carter. Bond stated that Investigator Miller “got it
    mixed up” by putting in her statement that, on a scale of one to ten, she was a seven sure the gunman
    was “Mighty.” She elaborated that she told him “it resembled [‘Mighty’] . . . by the car[, but she]
    . . . knew it was not him.” She noted that “Mighty” is bald. Bond pointed out that the only
    difference between the car she had seen “Mighty” drive and the car the shooter drove was that the
    car from the shooting had a red license tag and a plate on the front. She identified “Mighty” from
    a photographic array for the police. She said that the victim knew “Mighty,” but she did not know
    if he knew Newt Carter, Anthony Jones, or the defendant.
    On redirect examination, Bond testified that she never indicated “Mighty” was the gunman;
    she said the gunman resembled “Mighty” but could not have been him because “Mighty” did not
    have any hair. She said that she only referred to “Mighty” because she had seen him in a car similar
    to that driven by the gunman. Bond said that she was unable to identify the gunman in a
    photographic lineup, but elaborated that when the defendant turned to the side in court that morning,
    “it struck [her] that that was him.” On recross examination, Bond reiterated that she never got a
    frontal view of the gunman during the shooting. Bond acknowledged that, to some extent, she would
    not have closure if she could not identify the gunman but denied that her judgment was cloudy.
    Latoyia Anderson testified that she previously owned a 1999 four-door, black Grand Am GT,
    which she identified from photographs. Anderson was contacted by investigators because her car
    looked similar to the car used in the shooting. Anderson said that she had a white, regular tag on her
    car and that she was dating “Mighty” at the time she owned the car.
    Sergeant Mike Turner, evidence custodian and crime scene investigator with the Jackson
    Police Department, testified that he and Aimee Oxley processed a maroon El Camino involved in
    the homicide of the victim. He discovered a bullet hole in the exterior of the driver’s side door near
    the rearview mirror and found a spent bullet inside the door panel. The bullet was sent to the TBI
    crime lab. During the course of the investigation, Sergeant Turner also processed a 2000 black
    2
    “Mighty” was also referred to interchangeably as “T-Mighty” at trial. Latoyia Anderson testified that his real
    name is Jameon Tipler.
    -4-
    Pontiac Grand Am, from which he recovered fingerprints and palm prints that were also sent to the
    lab.
    Aimee Oxley, an evidence technician and gun crimes analyst with the Jackson Police
    Department, testified that she assisted Sergeant Turner in processing a burgundy Chevrolet El
    Camino. She found a bullet hole underneath the mirror on the driver’s side door and located a spent
    projectile in the door panel.
    Dr. Thomas Deering testified that he performed an autopsy on the victim on June 14, 2007.
    The autopsy revealed a gunshot wound to the left side of the victim’s head, matching internal
    injuries, and external injuries associated with the gunshot wound. A bullet was recovered from the
    right side of the victim’s head where it struck the other side of the skull and was sent to the Jackson
    Police Department. Dr. Deering noted a graze wound on the victim’s left arm that appeared to have
    been caused by a bullet. Dr. Deering surmised that the graze wound and the gunshot wound to the
    head could have either been caused by two separate bullets or only one bullet. Dr. Deering ruled that
    the victim’s cause of death was a gunshot wound to the head, and the manner of death was homicide.
    On cross-examination, Dr. Deering said that the victim’s toxicology report revealed the presence of
    marijuana and cocaine, but on redirect he said that the presence of those drugs did not “contribute
    anything to the fact that he died of the gunshot wound.”
    Aisha Kyles testified that the defendant is her boyfriend and father of two of her children.
    She said that on June 13, 2007, she was at her apartment with Taquila Deloach, Ashlee Akins, Elisa
    Miller, the defendant, and Anthony Drew Jones. At some point, the defendant asked if he could
    borrow someone’s car and asked specifically for a car with tinted windows. Kyles noted that her car
    was at the apartment and available for the defendant, but he did not ask. Her car did not have tinted
    windows. Deloach loaned the defendant her car, which was either a black Grand Prix or Grand Am
    with tinted windows. Kyles recalled that Deloach’s car had red dealer tags on the back and a plate
    on the front with “Taquila” on it. Kyles stated that the defendant left the apartment twice, but she
    was not sure if Jones was with him the first time. However, she was sure Jones was with the
    defendant when he left the second time. The defendant did not indicate where they were going and
    was gone less than an hour.
    When the defendant arrived back to the apartment, he instructed Kyles to get clothes for
    herself and the children. The defendant was sweating, “[h]yper and rushing.” She saw the defendant
    in the kitchen putting bullets in a gun. While the defendant was loading the gun, Kyles’ twelve-year-
    old sister arrived at the apartment and Kyles instructed the defendant to put the gun away. Kyles
    gathered necessities, left the apartment with her children and Jones, and went to her grandmother’s
    house. Ashlee Akins and Taquila Deloach left in their vehicles, and the defendant left with Elisa
    Miller.
    -5-
    Kyles testified that the next morning, she received a call from Deloach who was hysterical
    and said that her car was in the newspaper. Later that day, Kyles3 sent Deloach text messages from
    her phone. The first text message was: “When I’m done with these twists I’ll be out there about six.
    If you need to go somewhere in between time call me and I’ll bring you my car.” Kyles said that
    Deloach still had her car at the time, but she offered to take Deloach anywhere she needed to go so
    she would not have to take her car. The second text message was: “I feel you. I’m mad as hell, too.
    I said to him that do you know how much trouble you brought on and we’re going to get through
    this. Qui, I’m here, and I am upset.” The third text message was: “Did you get my message?” And
    the last text message was: “I’m right with you. We’re going to figure something out. I know it’s
    hard but try to stay calm.”4
    Kyles testified that in February 2007, she was at her apartment when the defendant called her
    from outside to let her know that he had arrived. She heard a commotion, but thinking it was her
    neighbors, she did not find it out of the ordinary. She heard a knock on the door and saw the
    defendant’s face through the peephole. She asked who was with him, and he told her “some of his
    partners.” She unlocked the door, ran and hid in the closet, and was about to call 911 when a gun
    was put to her head and the phone taken away. She was tied up on the floor with the telephone cord
    and could hear the defendant being tied up with her belts. Her house was ransacked, and
    approximately $500 was taken from her purse. She did not see anything taken from the defendant,
    but he indicated to her that money was taken from him before he entered the apartment. After the
    robbers left, the defendant was able to free himself and then untied Kyles. They did not report the
    robbery to the police. Kyles said there were three robbers, but she was unable to identify them
    because they wore masks. The defendant later told her that he had heard that one of the robbers was
    “Amp,” the victim.
    On cross-examination, Kyles admitted that in her statement to police on June 15, she did not
    tell the officers about the defendant’s borrowing Deloach’s car or seeing the defendant with a gun.
    However, in a statement the next day, Kyles told the officers she had not been completely honest and
    informed them about those things. Kyles gave another statement on June 18, in which she told the
    officers about the prior robbery and said the victim was one of the robbers, not that she had only
    heard he was one of the robbers. In that same statement, Kyles named one of the other robbers, even
    though at trial she said she did not know who any of the three robbers were. Kyles admitted that the
    defendant did not know for a fact that the victim had been one of the robbers, but they both had
    heard it rumored. Kyles agreed that it was possible the defendant kept a gun hidden in the kitchen
    because she did not see him leave or come back to the apartment with a gun the day of the shooting.
    On redirect examination, Kyles said that she initially was not honest with the police because
    she was scared and loved the defendant. She stated that she did not tell the officers about the earlier
    3
    Kyles testified that her nickname was “Jamaican Queen,” which was how she signed her text messages.
    4
    The actual exhibits are written in text message shorthand. To aid in understanding, our recitation of the
    messages are how Kyles interpreted her shorthand at trial.
    -6-
    robbery during her second statement because they did not ask about it. She said that she understood
    it was wrong for her to have told the officers in her third statement that she knew who the robbers
    were if she did not actually know but had only heard it.
    Agent Steve Scott of the TBI Firearms Identification Unit testified that he examined two
    bullets retrieved during the investigation of this case – one retrieved from a vehicle and the other
    retrieved from the victim during autopsy. Agent Scott determined that both bullets were.38 caliber
    and noted that typically bullets of that caliber were loaded into a .38 or .357 caliber gun. The class
    characteristics on the bullets indicated that they could have been fired from the same gun, but there
    were not enough individual characteristics for him to conclusively make that determination.
    Agent Scott noted that the reason he could not make that determination was because the
    bullets were not typical .38 caliber bullets, but instead Nyclad bullets which are bullets with a “very
    thin, almost plastic-like coating.” Agent Scott’s opinion, based on manufacturers’ characteristics,
    was that the two bullets came from a revolver of some type. Agent Scott stated that he had seen a
    Nyclad bullet loaded into a .9 millimeter weapon, but based on his experience, this particular shape
    of Nyclad bullet had always been associated with a revolver. He elaborated that the Nyclad bullet
    used in a .9 millimeter weapon has more of a rounded nose, and the bullets in this case were “semi-
    wadcutter,” an inverted cup shape. On cross-examination, Agent Scott testified that Nyclad bullets
    are somewhat rare but, as far as he knew, were available in stores. He said there are a variety of
    different firearm brands that fire this particular bullet.
    Ashlee Akins testified that she was at Aisha Kyles’ apartment on June 13, 2007, with Kyles,
    the defendant, Taquila Deloach, Elisa Miller, and another man whom she did not know. At some
    point, the defendant asked to use Deloach’s car, a black Grand Am or Grand Prix, so he could go to
    the store, and he and the other man left “for a little while.” They returned and then left a second
    time. When they came back the second time, after being gone for less than an hour, the defendant
    “was kind of frantic” and told everyone to get out of the apartment. He screamed to Kyles, “Get your
    shit and let’s go.” Akins said the defendant “just seemed like he was a little nervous about
    something.”
    As she was getting ready to leave, Akins saw the defendant in the kitchen with a gun and
    “[h]e was taking some bullets out of the gun, emptying the bullets into his hands.” She said the gun
    was silver, may have had a brown handle, and looked “kind of old.” After reading her statement to
    the police, Akins recalled that she told the officers that the gun was “antique like, and [the defendant]
    was knocking bullets into his hand. The cylinder was open and it was round bullets in it.” She
    reiterated that the defendant was emptying bullets from the gun into his hand. After she saw the gun,
    Akins left the apartment with Deloach.
    On cross-examination, Akins testified that while the defendant was gone in Deloach’s car,
    she and Deloach took Kyles’ car to run errands and then returned to Kyles’ apartment. They were
    gone approximately an hour and twenty minutes. The defendant and the other man returned to the
    apartment after Akins and Deloach had been back ten or fifteen minutes, so she estimated that the
    -7-
    men were gone approximately two hours. Akins stated that as she was leaving the apartment after
    seeing the defendant with a gun, she noticed the other man standing around outside and he appeared
    calm. On redirect examination, Akins reiterated that the time frames she mentioned on cross-
    examination were estimates.
    Elisa Miller testified that she was at Kyles’ apartment with Kyles, the defendant, Akins,
    Deloach, and a man named Drew on June 13, 2007. The defendant asked to borrow Miller’s car
    because “he needed a car with tinted windows,” but she did not have much gas. The defendant then
    borrowed Deloach’s black Grand Am which had tinted windows and returned with Drew. The
    defendant left the apartment a second time, taking Drew with him, and was gone an estimated thirty
    to forty-five minutes. When the defendant came back, he was sweaty and breathing hard and told
    everyone to get their belongings and leave. Miller recalled that the defendant spoke with a calm
    voice but used profanity. Kyles left with Drew, and Miller drove the defendant to Denmark
    Headstart.
    On cross-examination, Miller stated that her recollection was somewhat hazy and that she
    first said that the defendant and Drew had borrowed Akins’ car. She admitted that she was not sure
    how many times someone came in and out of the apartment. Miller said that the only time Deloach
    and Akins left the apartment that day was when the defendant told them to leave. Miller
    acknowledged that in her statement to the police a few days after the incident, she did not say that
    the defendant used profanity when he told everyone to leave. Miller recalled that before the
    defendant left the apartment the second time, the time he took Drew with him, he first made or
    received a telephone call on the balcony outside. On redirect examination, Miller said that she did
    not remember the defendant cursing when he told them to leave the apartment. She recalled that
    when she dropped the defendant off at Denmark Headstart, he left in a car with a man she did not
    know.
    Taquila Deloach testified that in June 2007, she owned a 2000 black Grand Am with tinted
    windows and a red dealer license tag. On June 13, Deloach was at Aisha Kyles’ apartment
    discussing plans for a trip that weekend. The defendant and Elisa Miller were also at the apartment,
    and a man she did not know arrived later. At some point, the defendant asked to borrow a car with
    tinted windows, and Kyles told him that Deloach’s car had tinted windows. Deloach agreed to let
    the defendant borrow her car, and he left alone but returned with the other man. Deloach estimated
    that the defendant was gone an “hour or so.” The defendant then left in her car a second time, taking
    the other man with him, and they were gone approximately an hour.
    Deloach testified that when the defendant came back the second time, he was acting very
    nervous and scared and told everyone to get their belongings and leave. She recalled that the
    defendant “was not calm at all” and used profanity. She saw the defendant with “a gun in his hand
    and he was emptying the shells” into his hand. Deloach described the gun as an “older gun, kind of
    rusty.”
    -8-
    Deloach testified that she read the newspaper the next morning and saw that her car was
    wanted in conjunction with a murder. She called Kyles immediately and, during the course of the
    day, received text messages from her. She also received a call from the defendant soon after she
    called Kyles. The defendant told Deloach that she needed to “lay low,” not drive her car, and change
    the dealer tag on her car to a regular tag. The defendant asked Deloach to meet him so he could give
    her some money to pay for the new tag, but she never met him.
    On cross-examination, Deloach testified that Akins arrived at Kyles’ apartment that day after
    she did but was there when the defendant borrowed Deloach’s car. While the defendant was gone
    in her car the first time, Deloach and Akins left to run errands and were gone approximately an hour
    and a half. When they got back to the apartment, the defendant had already returned and had the
    other man with him. The defendant borrowed Deloach’s car again, and after approximately an hour,
    Deloach had Kyles call the defendant because she needed her car in order to leave. The defendant
    returned “right away” after Kyles called him. Deloach acknowledged that in her statement to the
    police, she “may have” said that the defendant was only gone fifteen to twenty minutes the second
    time. She also acknowledged that in her statement, she did not relate that the defendant used
    profanity when he told everyone to leave the apartment nor did she relate that the defendant told
    them to get their belongings.
    Patrick Williams, a senior draftsman with the Jackson-Madison County Planning
    Department, testified that at the request of Investigator Miller, he pulled an aerial photograph that
    included the area of Park Place Apartments and 288 Lincoln Street. The photograph was
    downloaded into the city’s system on June 19, 2007. The linear distance between building five of
    the apartment complex and 288 Lincoln Street was 4,038 feet, and approximate driving distances
    ranged from 1.37 to 1.65 miles.
    Investigator Tyreece Miller with the Jackson Police Department testified that Kyles lived in
    building five of the aforementioned apartment complex. Investigator Miller stated that there are two
    types of handguns, semi-automatics and revolvers. The main difference between the two is that an
    automatic is loaded with a magazine or clip inserted into the handle, and a revolver is loaded in the
    cylinder. He explained that, at a crime scene, an automatic was likely used if there were shell
    casings on the ground, and a revolver was likely used if there were no shell casings on the ground.
    Investigator Miller demonstrated that one had to empty the shell casings in his or her hand in order
    to unload a revolver. He said that no shell casings were found at the scene of the murder or in
    Deloach’s car.
    On cross-examination, Investigator Miller testified that he interviewed Ladenner Bond, and
    she identified a photograph of a black Grand Am as belonging to Latoyia Anderson and driven by
    Anderson’s boyfriend, “Mighty.” Bond said that car was the same or similar to the car driven by the
    suspects with the exception of the license plate. Investigator Miller recalled that Bond was shown
    photographic arrays that included the defendant’s photograph but was unable to make an
    identification. He acknowledged that Bond indicated to him that, on a scale of one to ten, she was
    a seven sure the driver of the suspect’s car was “Mighty.” Investigator Miller confirmed that Bond
    -9-
    said in her statement that the gunman looked like Newt Carter or “Mighty,” but he explained that
    Bond never positively identified either man as the gunman. On redirect examination, Investigator
    Miller testified that Bond indicated “right away” that the tag on the suspect’s car was red and had
    always maintained that the tag was red. He noted that the tag on the car driven by “Mighty” was a
    standard white tag, and Deloach’s car had a red dealer tag.
    The defense recalled Ladenner Bond who testified that she did not know what type of gun
    the gunman used but that the barrel appeared to be silver. After reviewing her statement, Bond
    agreed that she told the police it was a semi-automatic pistol and that it “looked like a .9.” She
    further agreed that in her statement she told the police, “I know it was an automatic because it was
    the kind that casings come out of.” However, she said that as the gunman was firing she did not see
    any casings fall out, so she assumed they fell back into the car. Asked how she could say it was a
    semi-automatic gun if she did not see casings fall out, Bond explained that she did not know the
    difference between guns. She stated that she did not know exactly what kind of gun was used.
    On redirect examination, Bond testified that she previously had seen a nine-millimeter gun
    and that the gun used in the shooting looked like the barrel of a nine-millimeter. On recross, Bond
    stated that she did not know the difference between the barrel of a semi-automatic and the barrel of
    a revolver.
    After the conclusion of the proof, the jury returned a verdict of guilty of first degree murder,
    and the defendant was sentenced to life imprisonment. He appealed.
    ANALYSIS
    I. Sufficiency of the Evidence
    The defendant first challenges the sufficiency of the convicting evidence. He argues that
    there was no physical evidence linking him to the murder, that any reliable evidence was
    circumstantial, and questions discrepancies in various witnesses’ testimonies. In considering this
    issue, we apply the rule that where sufficiency of the convicting evidence is challenged, the relevant
    question of the reviewing court is “whether, after viewing the evidence in the light most favorable
    to the prosecution, any rational trier of fact could have found the essential elements of the crime
    beyond a reasonable doubt.” Jackson v. Virginia, 
    443 U.S. 307
    , 319, 
    99 S. Ct. 2781
    , 2789 (1979);
    see also Tenn. R. App. P. 13(e) (“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 findings by the trier of fact of guilt
    beyond a reasonable doubt.”); State v. Evans, 
    838 S.W.2d 185
    , 190-92 (Tenn. 1992); State v.
    Anderson, 
    835 S.W.2d 600
    , 604 (Tenn. Crim. App. 1992). All questions involving the credibility
    of witnesses, the weight and value to be given the evidence, and all factual issues are resolved by
    the trier of fact. See State v. Pappas, 
    754 S.W.2d 620
    , 623 (Tenn. Crim. App. 1987). “A guilty
    verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses for the State
    and resolves all conflicts in favor of the theory of the State.” State v. Grace, 
    493 S.W.2d 474
    , 476
    (Tenn. 1973). Our supreme court stated the rationale for this rule:
    -10-
    This well-settled rule rests on a sound foundation. The trial judge and the
    jury see the witnesses face to face, hear their testimony and observe their demeanor
    on the stand. Thus the trial judge and jury are the primary instrumentality of justice
    to determine the weight and credibility to be given to the testimony of witnesses. In
    the trial forum alone is there human atmosphere and the totality of the evidence
    cannot be reproduced with a written record in this Court.
    Bolin v. State, 
    219 Tenn. 4
    , 11, 
    405 S.W.2d 768
    , 771 (1966) (citing Carroll v. State, 
    212 Tenn. 464
    ,
    
    370 S.W.2d 523
     (1963)). A jury conviction removes the presumption of innocence with which a
    defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a convicted
    defendant has the burden of demonstrating that the evidence is insufficient. See State v. Tuggle, 
    639 S.W.2d 913
    , 914 (Tenn. 1982).
    A premeditated and intentional killing of another is first degree murder. Tenn. Code Ann.
    § 39-13-202(a)(1) (2006). Premeditation means that the intent to kill must have been formed prior
    to the act itself; a premeditated act is one done after the exercise of reflection and judgment. Id. §
    39-13-202(d). The presence of premeditation is a question of fact for the jury to determine based
    upon a consideration of all the evidence. See State v. Suttles, 
    30 S.W.3d 252
    , 261 (Tenn. 2000).
    Premeditation may be inferred from circumstantial evidence surrounding the crime, including
    the manner and circumstances of the killing. See State v. Pike, 
    978 S.W.2d 904
    , 914 (Tenn. 1998);
    State v. Addison, 
    973 S.W.2d 260
    , 265 (Tenn. Crim. App. 1997). Facts from which the jury may
    infer premeditation include the use of a deadly weapon on an unarmed victim; the defendant’s
    shooting of the victim after he had turned to retreat or escape; the lack of provocation on the part of
    the victim; the defendant’s declarations of his intent to kill; the defendant’s failure to render aid to
    the victim; the establishment of a motive for the killing; the particular cruelty of the killing; the
    defendant’s procurement of a weapon, preparations to conceal the crime before the crime is
    committed, and destruction or secretion of evidence of the killing; and a defendant’s calmness
    immediately after the killing. State v. Thacker, 
    164 S.W.3d 208
    , 222 (Tenn. 2005); State v. Leach,
    
    148 S.W.3d 42
    , 54 (Tenn. 2004); State v. Lewis, 
    36 S.W.3d 88
    , 96 (Tenn. Crim. App. 2000)
    (citations omitted). The circumstantial evidence of premeditation must, however, be “so strong and
    cogent as to exclude every other reasonable hypothesis save the guilt of the defendant, and that
    beyond a reasonable doubt.” State v. Crawford, 
    225 Tenn. 478
    , 482, 
    470 S.W.2d 610
    , 612 (1971).
    In the light most favorable to the State, the proof presented at trial showed that a few months
    prior to the murder the defendant and his girlfriend, Aisha Kyles, were robbed by a group of men,
    and the defendant came to believe that the victim was one of the robbers. The afternoon of the
    shooting, several people were at Kyles’ apartment and heard the defendant request to borrow a car
    with tinted windows. Although Kyles’ car was available, it did not have tinted windows and the
    defendant borrowed Taquila Deloach’s black Pontiac Grand Am with tinted windows and a red
    dealer tag. The witness to the shooting, Ladenner Bond, the victim’s girlfriend, saw a black Pontiac
    Grand Am or Grand Prix with tinted windows and a red dealer tag pull up, driver to driver, next to
    the victim’s car. She saw the driver of that vehicle shoot the victim with a silver gun and drive away.
    -11-
    After the defendant had been gone in Deloach’s car for approximately an hour, he returned
    to Kyles’ apartment acting nervous and scared and demanding that everyone get their belongings and
    leave. Two witnesses saw the defendant removing what they described as bullets or shells from a
    gun, and one witness noted that the defendant’s gun was silver. The bullets recovered as evidence
    in this case were fired from a revolver of some type, which is loaded in a cylinder and does not eject
    the shell casings. The day after the shooting, the defendant contacted Deloach and cautioned her to
    not drive her car and offered to pay to replace her red dealer tag with a regular tag.
    We reiterate that any questions concerning the credibility of the witnesses or conflicts in the
    evidence were resolved by the jury as the trier of fact. Even though there was no forensic evidence
    tying the defendant to the murder, one forensic scientist testified that it was “very possible” for
    someone to be in a car and not leave DNA evidence. We conclude that the direct and circumstantial
    evidence was sufficient for a reasonable jury to conclude that the defendant killed the victim after
    the exercise of reflection and judgment.
    II. Past Robbery
    The defendant next argues that the trial court erred in allowing evidence of an alleged
    robbery of him and Aisha Kyles committed by the victim, when proof of the past robbery was not
    found to be clear and convincing as required by Tennessee Rule of Evidence 404(b). The State
    argues that the evidence was properly admitted to show the defendant’s belief that the victim had
    robbed him and thus provide motive for the murder.
    The admission of evidence generally lies within the sound discretion of the trial court and
    will not be reversed on appeal absent a showing of an abuse of discretion. See State v. Gilliland, 
    22 S.W.3d 266
    , 270 (Tenn. 2000); State v. Edison, 
    9 S.W.3d 75
    , 77 (Tenn. 1999); State v. Cauthern,
    
    967 S.W.2d 726
    , 743 (Tenn. 1998). As our supreme court has explained:
    Because the term “discretion” essentially “denotes the absence of a hard and fast
    rule,” we will reverse a decision to admit evidence “only when the ‘court applied an
    incorrect legal standard, or reached a decision which is against logic or reasoning that
    caused an injustice to the party complaining.’”
    Gilliland, 22 S.W.3d at 270 (quoting State v. Shirley, 
    6 S.W.3d 243
    , 247 (Tenn. 1999)).
    The defendant is not entitled to relief based on his argument that the court failed to find proof
    of the past robbery to be clear and convincing as required by Tennessee Rule of Evidence 404(b)
    because Rule 404(b) only applies to prior bad acts of the defendant, not the victim. See State v.
    Stevens, 
    78 S.W.3d 817
    , 837 (Tenn. 2002); State v. DuBose, 
    953 S.W.2d 649
    , 653 (Tenn. 1997).
    Thus, no clear and convincing evidence that the victim committed the robbery was necessary, and
    the admissibility of the evidence was governed by Tennessee Rules of Evidence 401 and 402. Here,
    the evidence was relevant because it showed the defendant’s belief that the victim robbed him and
    provided a motive and intent for the murder. The trial court did not abuse its discretion in admitting
    this evidence.
    -12-
    The defendant also mentions that the timing, the fact the trial had already started, of
    admitting the 404(b) evidence prevented him from putting on evidence of third parties with similar
    motives. The defendant is also not entitled to relief on this argument. As already determined above,
    this is not 404(b) evidence, and even if it were, there is no requirement in the rule that advance notice
    of its intended use be given to the defendant. See Neil P. Cohen et al., Tennessee Law of Evidence
    § 4.04[8][b] (5th ed. 2005).
    III. Text Messages
    The defendant lastly argues that the trial court erred in admitting into evidence four text
    messages sent by Aisha Kyles to Taquila Deloach. He argues that the text messages were hearsay
    and that two of the messages constituted improper lay witness opinion testimony. The State
    responds that the text messages were not hearsay and, with regard to the argument regarding lay
    witness opinion testimony, that the defendant did not object on that ground5 and Kyles was not
    offered as an expert on the content of the messages.
    Hearsay is defined as “a statement, other than one made by the declarant while testifying at
    the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tenn. R. Evid.
    801(c). As a general rule, hearsay is not admissible at trial unless it falls under one of the exceptions
    to the rule against hearsay. Tenn. R. Evid. 802. “The determination of whether a statement is
    hearsay and whether it is admissible through an exception to the hearsay rule is left to the sound
    discretion of the trial court.” State v. Stout, 
    46 S.W.3d 689
    , 697 (Tenn. 2001). Accordingly, we will
    not reverse the trial court’s ruling on this issue absent a clear showing of an abuse of discretion.
    The defendant contends that the four text messages were hearsay simply because they were
    made out-of-court. However, hearsay is not just an out-of-court statement; it must be offered to
    prove the truth of the matter asserted. In the first message, Kyles offered to transport Deloach if she
    needed to go anywhere. In the remaining messages, Kyles told Deloach that she was mad and said
    she told the defendant he had brought about trouble, asked if Deloach received her previous message,
    and advised Deloach they were going to “figure somethin[g] out and try [to] stay calm.”
    As asserted by the State, it is not clear that these messages were offered for the truth of the
    matter asserted. Moreover, the first, second, and fourth messages arguably fall under the state of
    mind exception to the rule against hearsay. See Tenn. R. Evid. 803(3). Regardless, even if the court
    erred in admitting the messages, due to the substantial testimonial evidence linking the defendant
    to Deloach’s car, we cannot conclude that the error more probably than not affected the judgment.
    Tenn. R. App. P. 36(b). Therefore, any error was harmless.
    The defendant also contends that two of the messages constitute lay witness opinion evidence
    that the defendant committed the murder, which is prohibited by Tennessee Rule of Evidence 701.
    Rule 701 provides that a lay witness’s testimony in the form of opinions or inferences is limited to
    those opinions or inferences which are (1) rationally based on the perception of the witness and (2)
    5
    The record shows that the defendant did state this ground in his objection.
    -13-
    helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue.
    Tenn. R. Evid. 701(a). One of the messages was: “I feel you. I’m mad as hell, too. I said to him
    that do you know how much trouble you brought on and we’re going to get through this. Qui, I’m
    here, and I am upset.” The other message was: “I’m right with you. We’re going to figure
    something out. I know it’s hard but try to stay calm.” While the defendant asserts that these
    messages somehow show that the sender believed the defendant committed the homicide, they
    appear to have little meaning other than, perhaps, to the sender and the receiver. Thus, we cannot
    conclude that they constitute an opinion on any matter, much less than that the defendant had
    committed the homicide.
    CONCLUSION
    Based on the aforementioned authorities and reasoning, we affirm the judgment of the trial
    court.
    ___________________________________
    ALAN E. GLENN, JUDGE
    -14-