IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE August 19, 2015 Session STATE OF TENNESSEE v. DEVONTE BONDS, THOMAS BISHOP, JASON SULLIVAN, AND BRIANNA ROBINSON Appeal from the Criminal Court for Knox County Nos. 100194A-D Bobby R. McGee, Judge No. E2014-00495-CCA-R3-CD – Filed April 7, 2016 _____________________________ Defendants Devonte Bonds, Thomas Bishop, Jason Sullivan, and Brianna Robinson were tried jointly and convicted of attempted second degree murder, aggravated assault, and possession of a firearm during the commission of a dangerous felony. The jury found that the underlying offenses committed by Defendants Bonds, Bishop, and Sullivan constituted criminal gang offenses, and they received enhanced punishment under Tennessee Code Annotated section 40-35-121. All of the defendants raise multiple procedural and evidentiary issues with regard to the guilt phase of the trial on the underlying offenses. Defendants Bonds, Bishop, and Sullivan also raise several issues regarding their criminal gang enhancements. Defendants Bishop and Sullivan each raise an issue with regard to their sentencing. After an exhaustive review of the record, we ascertain no error in the guilt phase of the trial on the underlying offenses. Accordingly, the  trial  court’s  judgment  as  to  Defendant  Robinson  is  affirmed.     However, because the subsection of the criminal gang enhancement statute employed by the State violates the Due Process Clause of the Fourteenth Amendment and is facially unconstitutional, we reverse the judgments of the trial court as to Defendants Bonds, Bishop, and Sullivan, vacate the criminal gang enhancements, and remand for modification of the judgments and a new sentencing hearing on the underlying offenses of attempted second degree murder, aggravated assault, and possession of a firearm during the commission of a dangerous felony. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed in Part, Reversed in Part, and Remanded TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which JAMES CURWOOD WITT, JR., and CAMILLE R. MCMULLEN, JJ., joined. John M. Boucher, Jr., Knoxville, Tennessee, for the appellant, Devonte Bonds. Wesley D. Stone (on appeal and at trial), Timothy Jones (on appeal), and Joseph A. Fanduzz (pre-trial), Knoxville, Tennessee, for the appellant, Thomas Bishop. Leslie M. Jeffress, Knoxville, Tennessee, for the appellant, Jason Lamont Sullivan. J. Liddell Kirk (on appeal) and Susan E. Shipley (at trial), Knoxville, Tennessee, for the appellant, Brianna Michelle Robinson. Herbert H. Slatery III, Attorney General and Reporter; John H. Bledsoe, Senior Counsel; Randall E. Nichols, District Attorney General; and Ta’Kisha   Fitzgerald and Philip Morton, Assistant District Attorneys General, for the appellee, State of Tennessee. OPINION This is a direct appeal by the four defendants who were convicted by a Knox County jury of various serious crimes of violence involving firearms and gang enhancement that  resulted  from  a  “beating  out”  of  a  fellow  gang  member. Because of the nature of the charges, the defendants were tried jointly in a trifurcated proceeding. I. Procedural History and Factual Summary All of the defendants were indicted for attempted first degree murder, aggravated assault, possession of a firearm during the commission of a dangerous felony, and employing a firearm during the commission of a dangerous felony. A jury convicted them of attempted second degree murder, aggravated assault, and possession of a firearm during the commission of a dangerous felony; they were acquitted of employing a firearm during the commission of a dangerous felony. Defendants Bishop and Sullivan were each found to have committed the underlying firearm offense while having previously been convicted of dangerous felonies. Defendants Bonds, Bishop, and Sullivan were found to have committed criminal gang offenses and received enhanced punishment pursuant to Tennessee Code Annotated section 40-35-121. The following facts were adduced during the guilt phase on the underlying offenses.1 1 Relevant facts from the pre-trial proceedings and the other guilt phases for the enhancements will be provided during the analysis section of this opinion. -2- On May 30, 2012, Jonathan Dyer was living with his girlfriend, Carnisha Dibrell, in Arbor Place Apartments on Townview Drive. Katherine White lived upstairs from the couple in the same apartment complex. That morning, Ms. White asked Mr. Dyer to take out his trash because she could smell it at her apartment, and she gave him a trash bag to do so. Mr. Dyer removed the trash and cleaned off his porch. Afterward, around 11:00 a.m., he went inside to brush his teeth and to prepare for a job interview. He also woke up Ms. Dibrell so that she could get ready to go to work. Ms. White was sitting on the stairs outside of her apartment and smoking a cigarette when she saw a group of people approach and knock on Mr. Dyer and Ms. Dibrell’s   front   door. Mr. Dyer and Ms. Dibrell heard the knock on the door, and Mr. Dyer shut the bedroom door before going to answer the front door. When Mr. Dyer opened the door, the defendants immediately entered the apartment. Ms. White saw Mr. Dyer let the group inside the apartment. Mr. Dyer and the defendants were members of a street gang known as the Five Deuce Hoover Crips. Mr. Dyer knew the defendants, primarily, by their gang monikers: Defendant Bonds was known as “Lil  Doozie”;;  Defendant  Bishop  was  known as “Hoova T”;; Defendant Sullivan was known as “Crank   Deuce”;;   and   Defendant   Robinson   was   known as “Yella Deuce.” Mr.   Dyer’s   gang   moniker   was   “J   Hoover.” Mr. Dyer knew Defendant Bonds the best of all the defendants because they grew up together, and Defendant   Bonds’s legal name was the only one of which Mr. Dyer was aware at that time. Mr. Dyer had only met Defendant Sullivan recently. After entering the apartment, Defendants Bishop and Sullivan told Mr. Dyer that he needed “to  put  some  money  on  [his]  big  homey,  L.G.’s,  books.”    Mr. Dyer refused this demand on the basis that fellow gang member L.G. was not his big homey; Mr.  Dyer’s   big homey was another individual.2 Mr. Dyer explained that a “big   homey”   is   a   gang   member who “calls  the  shots.”    A  gang  member  under  the authority  of  a  “big  homey”  is   2 Gang expert Detective Thomas Walker later testified that Lamar Griffin was affiliated with the Five Deuce Hoover Crips. According to Detective Walker, his   street   name   is   “L.G.,” and he was incarcerated on May 30, 2012, which was a Wednesday. That day was Mr.  Griffin’s  designated  day  of   the   week   to   use   money   from   his   account   to   place   an   order   for   amenities   from   the   jail’s   commissary.     People  on  the  outside  can  deposit  money  into  an  inmate’s  account.    An  order  for  the  commissary  would   have to be placed by around noon on the same day. It is processed overnight, and the goods are delivered the next day. If there are insufficient funds in the account, the order is not filled. -3- called   a   “little   homey,”   and   a   little   homey   must   get   the   big   homey’s   permission   “to   do   something.” Defendant Bishop then accused Mr. Dyer of abandoning Defendant Robinson during a previous incident when someone fired a gun at her. Defendant Bishop indicated that Mr.  Dyer’s  conduct  was  unacceptable because he had “left  the  home  girl  on  stuck,”   meaning that Mr. Dyer “didn’t  defend  her.”    Mr. Dyer maintained to the group that such an event had never happened and told them that Defendant Robinson was lying. Defendant Robinson “swore  up  and  down  that  it  did  happen”  and  insisted,  “Yeah,  it  did.     You  left  me  on  stuck.”    Defendant Bishop reprimanded Mr. Dyer, chiding “these are the most precious things to   us.     You’re   supposed   to   hold   it   down,   cuz.     That’s   bogus.” In making mention of “the   most   precious   things,”   Defendant Bishop was talking about all female Crips. Mr.  Dyer  explained  that,  as  a  gang  member,  he  was  expected  to  “step  up”   and defend a fellow gang member if being threatened. Thus, if Defendant Robinson had been attacked, he would have had an obligation to protect her. While in the bedroom during the confrontation, Ms. Dibrell heard a familiar male voice say,  “These  are  the  most  precious  B’s  in  the  world.  .  .  .  You  ain’t supposed to leave them  like  that.    [They]  are  supposed  to  be  protected.”    She  then heard Mr. Dyer deny the accusations  by  responding,  “No,  that  ain’t  what  happened.    That  ain’t  what  happened.” According to Mr. Dyer, failing to provide money for an incarcerated inmate and failing to protect a fellow female gang member could be potential grounds for a gang member to be expelled from the gang. The group surrounded Mr. Dyer against the wall leading into the kitchen of his apartment, and all of them “ganged”  him,  which  meant  that   Mr. Dyer was “getting  hands  and  feet  put  to”  him. Mr. Dyer explained that receiving a gang beating or a fight is both the manner of initiation into the gang and expulsion from the gang. These   rituals   are   known   as   “ganged   in”   and   “ganged   out.”     Mr. Dyer was ganged in to the gang when he was seventeen years old. During his initiation, Mr. Dyer was only ganged with fists, not feet, and he fought back against the gang members who were   “jumping”   him. There were no weapons during the initiation. Mr. Dyer did not need medical attention after he was ganged in. For this particular gang, the beating or fight is supposed to last for two minutes. However, on this occasion, Mr. Dyer did not remember  having  “too  much  of  a  chance to fight  back.” Mr. Dyer acknowledged that the beating  he  received  was  him  being  “ganged  out”  of  the  Five Deuce Hoover Crips and that he is no longer a member of the gang. Mr. Dyer testified that a gang member is also expected to fight back when he is ganged out. He was unaware of any gang member sustaining injuries as serious as he did while being ganged out. -4- Mr. Dyer remembered that Defendant Sullivan had a pistol “inside   his   front   pocket,” which Mr. Dyer described   as   a   “little   .22.”     Mr.   Dyer   could   see   the   handle   “hanging   out,”   and   he   recognized   the   gun   as   belonging   to   Defendant   Robinson.     However, Mr. Dyer did not see Defendant Sullivan remove the weapon from his pocket, and as far as he knew, he had not been  “pistol-whipped” with the gun. From the bedroom, Ms. Dibrell heard  a  man  “screaming”  at  Mr.  Dyer,  followed  by   loud yelling. The voice was so loud that  Ms.  Dibrell  was  “scared  .  .  .  a  little  bit.”    After “no  longer  than  five  seconds”  of  “scuffling”  and  “commotion,”  Ms.  Dibrell went into the living room and saw Mr. Dyer on the floor. At that point, he was no longer being beaten. When Ms. Dibrell entered the room, four individuals were looking at her, and she began to  “fear  for  [her]  life.” The attackers walked out of the apartment, but Defendant Bonds turned around and pushed his way back into the apartment as Ms. Dibrell tried to shut the front door. He retrieved a bottle of Sprite from the kitchen and left. Ms. Dibrell did not observe any of the attackers carrying a weapon of any type. Out of the group, Ms. Dibrell recognized Defendant Bonds because she knew him well. She had seen Defendant Bishop at their apartment on previous occasions, but only knew him by his moniker. Ms. Dibrell gathered that the familiar voice she had heard in the bedroom was that of Defendant Bishop because she knew it was not Defendant Bonds’s   voice   and   because she did not know the other male in the group. The first person who walked out of the front door did not appear to be someone Ms. Dibrell knew, but she did not see that  person’s face. Mr. Dyer was face down on the floor and would not respond to her. There was “so  much  blood  on  his  face.”    His toothbrush was on the floor in the living room. Afraid that the attackers might still be outside, Ms. Dibrell said a prayer before she went outside and began screaming. She ran upstairs to get help from Ms. White and the other neighbors.     Ms.   Dibrell   was   “so   scared”   about   Mr.   Dyer’s   condition   because   he was unconscious and could not be roused. Ms. screaming. entered the went down the floor. White was still outside when Ms. Dibrell came out of the apartment Ms. White estimated that less than a minute had elapsed since the group apartment. However, Ms. White did not notice the group leave. Ms. White to the apartment, looked inside through the front door, and saw Mr. Dyer on -5- After alerting Ms. White, Ms. Dibrell returned to her apartment and observed Mr. Dyer   begin   “shaking.”     She   then   called 911 from her apartment. Paramedic David Blanton responded to the emergency call. After entering the apartment, he observed Mr. Dyer unconscious on the floor and bleeding from his head. Mr. Dyer would not respond to attempts to revive him. Paramedic Blanton and his partner immobilized Mr. Dyer and carried him on a stretcher to their ambulance. They took him to the emergency room for trauma patients in critical condition. The beating rendered Mr. Dyer unconscious and caused him to have body seizures. He remained in a medically-induced coma for nine weeks. A tracheotomy tube was   inserted   into   Mr.   Dyer’s   throat   because   he   could   not   breathe   without   mechanical   assistance. He needed rehabilitation to learn how to talk and walk again and to learn how to control his excretory functions. Mr.   Dyer   said   that   he   was   not   in   his   “right   state   of   mind”   immediately   after   awaking   from   the   coma.     He   began   “hitting   people”   after   he   regained consciousness. Ms. Dibrell admitted that there were moments  when  Mr.  Dyer’s   memory   was   “spotty”   after   he   regained   consciousness.     At   times,   he   did   not   recognize   her. Mr. Dyer eventually normalized, but there are still some things that he does not remember. Mr. Dyer agreed that there are gaps in his memory about what happened to him after he awoke from the coma. At the time of trial, Mr. Dyer was twenty-one years old. Michael Washam of the Knoxville Police Department was an investigator in the Violent   Crime   Unit.     When   he   arrived   at   Mr.   Dyer’s   apartment,   Mr.   Dyer   had   already   been taken to the hospital. Inside the apartment, Investigator Washam observed puddles of blood near and inside of the kitchen area. Investigator Washam interviewed Ms. White about the incident and spoke to the apartment manager. Based on his conversations, Investigator Washam began looking for four black males and a black female. Ms. White testified that the men entered first, followed by the woman. The woman wore her hair in a ponytail. One of the other men had   a   short   “fade”   haircut. They did not appear to be carrying anything. Investigator Washam quickly identified Defendants Bonds and Robinson as potential suspects; Defendant Bishop became a suspect not long after the first two were identified as suspects. On July 20, 2012, Investigator Washam went to the hospital and showed Ms. Dibrell a six photograph lineup. She identified Defendant Bishop. He showed her another six photograph lineup, and she identified Defendant Bonds. At the time she made those identifications, she had not discussed the incident with Mr. Dyer. -6- During this hospital visit,  Mr.  Dyer  was  “up  and  moving  around  .  .  .  [but]  he  did   not know who he was nor who [Investigator Washam] was and could not even name his girlfriend’s  name  .  .  .  .” Because  of  Mr.  Dyer’s   mental  state,  Investigator Washam did not ask Mr. Dyer to identify his attackers. On August 20, 2012, Investigator Washam returned to the hospital and presented Mr. Dyer with several six photograph lineups. Investigator Washam instructed Ms. Dibrell to leave the room while he asked Mr. Dyer about the lineups. Mr. Dyer identified Defendants Bonds, Robinson, and Bishop, respectively. Mr. Dyer did not make an identification in two additional lineups, neither of which contained a photograph of any of the defendants. He told Investigator Washam that Crank Deuce participated in the beating and that one of the men in the two lineups looked like Crank Deuce. However, because Mr. Dyer had only met Crank Deuce once or twice a few weeks before the beating   occurred,   Mr.   Dyer   said   that   he   was   “not   a   hundred   percent   sure”   that   Crank   Deuce was in the lineups. Mr. Dyer asked Investigator Washam to bring additional lineups for him to review. Separately, Ms. Dibrell also identified Defendant Robinson in a lineup. On August 25, 2012, after Mr. Dyer had been released from the hospital, Investigator Washam showed Mr. Dyer a different lineup. This time, Mr. Dyer affirmatively identified Defendant Sullivan as Crank Deuce. On October 22, 2012, Investigator Washam showed Ms. White a six photograph lineup, and she identified Defendant Robinson. He showed her another lineup, and she identified Defendant Bishop. She could not identify anyone else in the group. Detective Thomas Walker of the Knox County  Sheriff’s  Office testified that Five Deuce Hoover Crips is a gang that operates in Knox County. The Hoover Groovers was the original gang name during the 1960s in California. The gang members commonly refer  to  the  gang  as  “Groovin’”  or  “Groovers.” Detective Walker confirmed that, in gang culture,   a   member   known   as   “a   big   homey”   is   one   who   recruits   members   to   the   gang.     The  recruits  are  mentored  or  trained  on  gang  life  by  the  “big  homey.”    The  more  recruits   a  “big  homey”  has,  the  more  status  he  has within the gang. Aside  from  death,  “beat  outs”   are a common way for gangs to expel or release members who want to leave. It is a “very   violent”   experience   that   “will   result   in   some   kind   of   major   trauma”   to   the   exmember. Permanent injury serves as an enduring reminder of what happens if someone offends or forsakes the gang. The   Sheriff’s   Office   keeps   a   log   of   all   ingoing   and   outgoing   mail   to   inmates   in   their custody. On December 14, 2012, at 4:50 a.m., a letter written by Defendant -7- Sullivan was mailed to a Knoxville address. Defendant Sullivan signed the letter identifying himself   as   “Crank   Deuce   52.” Previously, on January 22, 2010, Defendant Sullivan sent another letter to the same individual. The bottom of the letter displays the word  “groovin”  and  the  letters  “MxHxL.”   The  acronym  stands  for  “much  Hoover  love.” It  is  signed  by  “Crank  Deuce.” Defendant  Bishop  signed  a  letter  as  Hoova  T,  “Hoova”   being short for Hoover. Defendant Sullivan has a tattoo on his arm. It depicts four playing cards fanned out, each bearing the numeral two with one of the suits in a standard deck of playing cards; such a hand is known as a four of a kind. The tattoo reads  “Deuce  is  Wild.”    The gang members  also  commonly  refer  to  themselves  as  “The  Deuces.” Defendant Bishop has  the  phrase  “Criminal  Minded”  on  his  forearms  as  well  as  a  five  on  one  forearm  and  a two on the other. Defendant  Bonds  has  a  tattoo  on  his  neck  that  says  “Five  Two.”    The numbers   allude   to   their   gang’s   name   which   contains   those   numbers. Defendant Bonds also has a tattoo of a star, which in gang culture identifies that a gang member is with a particular  “nation.” Defendant  Robinson  has  “Yella  Girl,”  tattooed  on  her  neck. Lieutenant Stephen Patrick of   the   Knox   County   Sheriff’s   Office   testified   that   he   was the keeper of records for the jail. He explained that Knox County contracts with a private company to record and store all inmate telephone calls. Every inmate receives a twelve-digit pin number, which is required for the inmate to place a phone call. The phone   pin   number   is   associated   with   the   inmate’s   identification number. The State played portions of numerous recorded phone calls made by the defendants while incarcerated.3 On August 20, 2012, at 9:13 a.m., Defendant Bonds made a phone call to an unidentified recipient, during which he said: [“Tone”]   keep   telling   everybody   I’m   locked   up   for   attempted   murder   like   he want[s] me to be locked up for attempted murder. I said to myself like, “Dude,  you  just  don’t  know.    Lil’  Jonathan  done  woke  up.”   . . . . If he were to   press   charges   it   would   be   aggravated   assault   and   battery.     Ain’t   no   attempted murder. . . . Only thing is it would be extremely aggravated assault. 3 For the sake of brevity, we have only summarized the most probative of these phone calls for purposes this opinion. -8- On February 28, 2013, at 6:40 p.m., Defendant Bonds made a phone call to an unidentified recipient, during which the following conversation transpired: Defendant Bonds: Listen. Listen. I need you all to make sure cuz is not coming. [Redacted] Defendant Bonds: You got to make sure everything is everything, man. ‘Cause   if   not,   dude,   I’m   gone.     I’m   gone.     I’m   just   gonna  be  gone  for  six  years,  but  that’s  still  a  long  time, man. .... Defendant Bonds: .  .  .  .    If  he  show[s]  up,  I’m  gone  for  six  years. Other: (Inaudible) Defendant Bonds: You hear me? Other: Yeah. [Redacted] said  he  wasn’t. Defendant Bonds: . . . . I  need  to  know.    I  can’t  say   too   much  over  the   phone, you hear me? Other: I know, okay. So you need to talk to your daddy. Defendant Bonds: I’m  telling—Look. Listen. Other: I[]  know  what  you’re  sayin’,  okay? Defendant Bonds: All  right,  I’m  just making sure. Because if everything go good, I will be walking. I will be walking out [of] this jail on April 23rd. Other: Right. Defendant Bonds: Yeah, got to get this politicking the right way. Got to get   this   stuff   right,   ASAP.     ‘Cause   if   everything go -9- good,   I’m   walking   out   that   courtroom.     My   lawyer   said,   if   cuz   don’t   show   up   to   court,   I’m   walking   out   that   courtroom   [on]   April   23rd.     I’m   walking   out   of   this jail [on] April 23rd. . . . .... Defendant Bonds: Yeah, my lawyer says, [if] Jonathan don’t  show  up  to   court,  I’m  walking  out  of  this  court,  I’m  walking  out  of   this jail [on] April 23rd. Other: Oh, okay. .... Defendant Bonds: Hey, you coming to court, right? Other: .  .  .  .    I’m  gonna  try.    Yeah,  I’m  gonna tell my manager to approve it. Defendant Bonds: He  need  to  approve  it  ‘cause  I  need  you  there.    ‘Cause   when I walk into the courtroom, I need you to nod your  head  yeah  if  he  there,  you  know  what  I’m  saying?     You hear me? Other: Uh huh. Defendant Bonds: ‘Cause   you   coming   in   from   the   outside,   and   you   can   see,  you  get  what  I’m  saying? Other: Uh huh. Defendant Bonds: All right. And if he not there, you know, nod your head  no  ‘cause  I  can’t  talk  to   you.    But  don’t  make  it   obvious.    I’m  gonna  look  at you. On February 28, 2013, at 6:53 p.m., Defendant Bonds made a phone call to an unidentified recipient, during which the following conversation transpired: Defendant Bonds: I been calling your phone. Is my daddy there? -10- Other: No, he left. . . . Defendant Bonds: Ahh, damn. I just missed him. .... Defendant Bonds: .  .  .  .  I  need  him  to  make  sure  cuz  don’t  show  up. .... Defendant Bonds: .  .  .  .  If  cuz  don’t  show,  man,  it’s  good.    But  if  he  show,   I’m   gone   for   six   for   aggravated   assault and then they gonna charge me six for another gun, which is at a hundred.     I’m   gonna   end   up   doing   at   least   eight,   nine   years. . . . On March 4, 2013, at 9:45 a.m., Defendant Bonds made a phone call to his father, known  to  Mr.  Dyer  as  “Big  Doozie,” during which the following conversation transpired: Defendant Bonds: . . . . I was telling you to let you know and make sure cuz   doesn’t   show   up   to   court.     ‘Cause   if   [he]   do,   I’m   gone for twenty years, man. . . . .... Defendant Bonds: . . . . See, n[*****] is gonna  talk.    See,  he’s  gonna  talk.   ... Other: .   .   .   .   You   dude   ain’t   coming   to   court,   know   what   I   mean? Defendant Bonds: Dude  ain’t  coming  to  court,  and  I’m  good,  man.    I  go   to trial next month on April 23rd. Other: Well,  he  ain’t showed  up  when  he’s  supposed  to. On January 5, 2013, at 7:46 p.m., Defendant Bishop made a phone call to an unidentified recipient, during which the following conversation transpired: -11- Defendant Bishop: Hey, you get your letter from the homey? Other: Yeah, I been trying to look for that n[*****], man. I couldn’t  even  find  that  little  n[*****]. Defendant Bishop: You got that letter though? Other: Yeah. .... Other: .   .   .   .   I’ve   been   trying   to   get   in   to   little   dude.   .   .   .   I   mean, he was on Facebook. He was on Facebook so I was his friend on—I got into his friend on Facebook, and   he’s   telling   somebody   he   trying   to   heal   or   some   s*** you   know   what   I’m   saying?     He’s   trying   to   recover or something. Defendant Bishop: All right, all right. Well, you got him on the issue? Other: I  ain’t  want  to  do  it  on  Facebook,  man. Defendant Bishop: All right. . . . So, you on it then? Other: I’m  on  it.  .  .  . .... Other: Yeah,   I’m   trying   to   see   where   he   is,   see   where   he   located at or not, so I can go just go to his crib. Defendant Bishop: Yeah,  that’s  what’s  up. On March 23, 2013, at 3:34 p.m., Defendant Bishop made a phone call to the same phone number, during which the following conversation transpired: Defendant Bishop: Hey,  hey,  what’s  up,  man?   Yeah, you still be acting on that little situation? Other: Yeah. Lil Cuz, J Hoover. -12- .... Defendant Bishop: What’s  up  with  them,  homey? Other: I  don’t  know.    Motherf[*****],  said  he  wouldn’t  [be] coming though.     Said   he   wouldn’t   [be] coming[, that is] what’s   up.     And   I   talked   to   K   Groove,   and   K   Groove   said   he   wasn’t   coming too though. In a phone call on January 23, 2013, at 1:27 p.m. to the same number, Defendant Sullivan was addressed as Crank Deuce, and the following conversation occurred: Defendant Sullivan: . . . . You know what you were talking about the last time when he called you, right? Other: Ahhh. Defendant Sullivan: Just stay up on that and see what Lil Buddy talking about on the LC. You feel me? Other: I’ve  been  hitting  him  up and s*** you  know  what  I’m   saying?     I’ve   been   hitting   him   up.     I’ve   been   telling   him I f[***] with. I have been telling him I f[***] with some more Groovers and s*** Defendant Sullivan: Yeah,  that’s  what’s  up.  .  .  . Other: He wanted me to come over. I had to get my car fixed. He wanted me to come over and chill with him. So me and G are going to go over there and kick it with him and s*** and holler at that n[*****] about that s*** Defendant Sullivan: That’s  what’s  up.    I  see  you.    That’s  what’s  up  because   everything  [is]  lookin’  goochy  poochy.  .  .  .  We’ve  got   to  make  sure  Lil  Buddy  don’t  come  and  don’t  do  s*** like—he like—like word is. But then, you know Lil Buddy. -13- On February 20, 2013, at 7:29 p.m., Defendant Sullivan made another phone call to the same phone number, during which the following conversation transpired: Defendant Sullivan: . . . . Hey, but you know that business that we—that cuz  we’ve  been  hitting  that  groove on, right? Other: Yeah, yeah, yeah. Defendant Sullivan: Need  to  take  care  of,  you  know  what  I’m  saying? Other: Yeah,  but  you  all  hanging  out.    What  you  feelin’? Defendant Sullivan: It’s  like,  you  know  what I’m  saying,  it  will  be  a  no  go   if  everything  on  that  end  don’t show, you dig? In a phone call on September 18, 2012, at 9:26 a.m., Defendant Sullivan identified himself  as  “Crank.”    During  the  conversation,  he  instructed  the  other  participant,  “It  ain’t   Crank Deuce no more—it’s  Deuce  Man.    They  call  me  Deuce  Man.”    Defendant Sullivan also  declared  his  intention  to  “back[]  all  the  way  out  [of]  the  gang  .  .  .  completely,”  going   so  far  as  to  say  that  he  would  no  longer  wear  the  gang’s  colors  of  orange  and  blue. On February 23, 2013, at 4:22 p.m., Defendant Robinson made a phone call to Mr. Dyer’s   “big   homey,”   who   goes   by   the   moniker   “Bucc-it4,” during which the following conversation transpired: Defendant Robinson: Yeah. You know I go to court in April? Other: I  know,  and  I’m  on  top  of  that  too. Defendant Robinson: Yeah. Other: I  can’t  find  that  n[*]gga. Defendant Robinson: Who? 4 This is the spelling used by Mr. Dyer. Detective Walker testified that members of the Crips do not  spell  any  words  using  the  letter  combination  of  “ck”  because  those  letters  are  an  abbreviation  for  an   offensive phrase—“Crip  Killer”—used by their rivals, the Bloods. -14- Other: I  can’t  find  him. Defendant Robinson: Who? Oh yeah, yeah, yeah. Other: Dude. Defendant Robinson: Yeah.    Ahh,  he  ain’t  coming. Other: Oh, all right. Defendant Robinson: Yeah, everything is good on that. . . . After  the  conclusion  of  the  State’s  case-in-chief, none of the defendants presented any proof. The jury convicted all of the defendants of attempted second degree murder, aggravated assault, and possession of a firearm during the commission of a dangerous felony. The defendants were acquitted of employing a firearm during the commission of a dangerous felony. During the second phase of the trial, the jury found that Defendants Bishop and Sullivan had prior drug-related felony convictions, which would enhance their sentences for the underlying offense of possession of a firearm during the commission of a dangerous felony. Those enhancements are not challenged on appeal. During the third phase of the trial, the jury found that the underlying offenses committed by Defendants Bonds, Bishop, and Sullivan were criminal gang offenses pursuant to Tennessee Code Annotated section 40-35-121 and subject to enhanced punishment. For clarity, the relevant facts of this proceeding will be set forth below as each legal issue is analyzed. At the sentencing hearing, the trial court enhanced Defendants Bonds, Bishop, and Sullivan to one classification higher for their convictions of attempted second degree murder and aggravated assault pursuant to subsection (b) of T.C.A. §40-35-121. Defendant Bonds received an effective sentence of twenty-three years as a standard offender. Defendant Bishop received an effective sentence of thirty-seven years as a multiple offender. Defendant Sullivan received an effective sentence of forty years as a multiple offender. Defendant Robinson received an effective sentence of eleven years as a standard offender. After the trial court denied their respective motions for new trial, the defendants filed timely notices of appeal. -15- II. Analysis On appeal, the defendants raise the following issues with regard to the guilt phase of the trial: (1) the trial court erred by allowing continued direct examination of the victim after the State announced that its examination of the witness was concluded; (2) the trial court erred by not suppressing the pre-trial identifications of the defendants made to Investigator Washam; (3) the trial court erred in admitting expert testimony from an emergency   room   nurse   about   the   victim’s   injuries;;   (4)   the   trial   court   erred   in   admitting   testimony from Detective Walker as a gang expert; (5) the trial court erred in admitting out-of-court statements made by each of the codefendants in their joint trial; and (6) the evidence is insufficient to support their convictions. Defendants Bonds, Bishop, and Sullivan raise the following issues with regard to their criminal gang enhancements: (1) the trial court erred by failing to dismiss the charges due to defects in the presentment to the grand jury; (2) the statute violates the Confrontation Clause of the Sixth Amendment; (3) the statute violates the Due Process Clause of the Fourteenth Amendment; (4) the statute imposes cruel and unusual punishment in violation of the Eighth Amendment; (5) the trial court erred by admitting hearsay testimony from Detective Walker as a gang expert; (6) the trial court erred by denying the defendants an opportunity for closing argument; and (7) the evidence is insufficient to support their gang enhancements. Individually, Defendant Bishop argues that the trial court erred in sentencing him as a multiple offender, and Defendant Sullivan argues that the trial court abused its discretion by imposing an excessive sentence.5 A. Guilt Phase 1. Continued Direct Examination of Victim The defendants argue that the trial court erred in permitting the State to continue its direct examination of the victim after tendering the witness for cross-examination. The State concluded its direct examination of the victim at the end of the first day of the presentation of proof during the trial. The prosecutor announced that the State had no further questions for the witness and passed the witness to the defense. Crossexamination was to commence on the beginning of the second day of the trial. However, 5 We have synthesized this list of issues based on the appellate briefs of all defendants. -16- the following morning, the State requested permission from the trial court to ask the victim  additional  questions.    Over  the  defendants’  objections,  the trial court granted this request, and the State proceeded to elicit testimony from the victim about the presence of a firearm during the crime. The victim did not testify about a firearm during the first day. A   trial   court’s   decision   to   permit  the   State   to   recall a witness is reviewed for an abuse of discretion. See State v. McAlister, 751 S.W.2d 436, 438 (Tenn. Crim. App. 1987). The defendants did not identify any prejudice from the  trial  court’s  decision aside from the inherent prejudice that exists in any incriminating testimony. There was no reason for the trial court to deny the State an opportunity to continue its direct examination. The defendants are not entitled to relief on this issue. 2. Pre-Trial Identification The defendants argue that the trial court erred during the suppression hearing by permitting Investigator Washam to testify about the pre-trial identifications without testimony from the identifying witnesses. The defendants also argue that the trial court erred by not suppressing the identifications because they were conducted in an impermissibly suggestive manner and were unreliable. At the suppression hearing, Investigator Washam’s  testimony  was  consistent  with   his subsequent trial testimony. Investigator Washam showed various six-photograph lineups to three different witnesses: Ms. Dibrell, Mr. Dyer, and Ms. White. On July 20, 2012, Investigator Washam showed Ms. Dibrell two lineups, and she identified Defendant Bishop and Defendant Bonds. On August 20, 2012, Investigator Washam presented Ms. Dibrell with a new lineup, and she identified Defendant Robinson. On the same day, Investigator Washam presented the lineups of Defendants Bonds, Robinson, and Bishop to Mr. Dyer. Mr. Dyer identified each of them, respectively. Investigator Washam also showed Mr. Dyer a lineup containing a photograph of Blake Kirk, who was a  “running  buddy”  of  Defendant  Bonds, because Investigator Washam thought it possible that Mr. Kirk had also been involved in the crime. However, Mr. Dyer did not identify Mr. Kirk as one of his attackers. Similarly, Mr. Dyer also did not identify Antonio Williams, who was Defendant  Bonds’s  cousin  and  a fellow gang member, as one of his attackers. On August 25, 2012, Investigator Washam showed Mr. Dyer a new lineup, which included a photograph of Defendant Sullivan. Mr. Dyer identified Defendant Sullivan. On October 22, 2012, Investigator Washam showed Ms. White the photo lineups of each defendant. Ms. White identified Defendants Robinson and Bishop, but she was unable to identify Defendants Bonds and Sullivan. -17- According to Investigator Washam, he usually prefaces showing a lineup to a witness by telling the witness: I’m   going   to   show   you   a   photo   lineup   of   six   people.     The   person   may   or   may not be in there. Please don’t  pay  attention  to  .  .  .  facial  hair  or  regular   hair—that can change overnight—and just look at their features. If you recognize someone, I need you to tell me. Investigator Washam denied giving instructions or making suggestions to any of the witnesses in this case about which photographs he wanted them to select. To  create  the  lineups  in  this  case,  Investigator  Washam  placed  a  driver’s  license  of   each   defendant   among   five   other   driver’s   license   photographs   of   individuals   who   possessed similar physical features and characteristics of the defendant, such as gender, hair style, facial hair style, and skin color. The photographs in the lineup of Defendant Bishop shown to Ms. Dibrell and Mr. Dyer were in black and white, rather than color, because that made the skin color of all six individuals more similar.6 In the lineup of Defendant Bonds, Investigator Washam utilized colored photos because black and white “faded  out  several  of  the  pictures.”    Investigator Washam ensured that, even in color, the skin  complexion  of  every  individual  was  “very  similar.” After completing the lineups of Defendants Bishop and Bonds, Investigator Washam asked another investigator, who was not involved with this case, to confirm that neither of the lineups suggested a particular photograph. The lineup of Defendant Robinson was also in black and white to ensure that her relatively lighter skin complexion did not stand out. Most but not all of the women in the lineup of Defendant Robinson were wearing earrings like she was in her photograph. The trial court admitted into evidence all of the lineups that were presented to each witness, whether an identification was made or not, as well as a recording of the August 20th identifications made by Ms. Dibrell and Mr. Dyer.7 Investigator Washam was the only witness who testified. After hearing the proof and the arguments of counsel, the trial court denied the motion to suppress. The defendants argue that the trial court erred by admitting into evidence the pretrial identifications of the defendants. First, they contend that the trial court erred in 6 However, the lineup of Defendant Bishop shown to Ms. White was in color, rather than in black and white. This discrepancy was not addressed during the suppression hearing. 7 Investigator Washam did not make recordings of all of the interviews. -18- permitting the State to introduce the identifications of Mr. Dyer, Ms. Dibrell, and Ms. White through the testimony of Investigator Washam at the suppression hearing because his testimony was based on hearsay and the identifying witnesses were not available for cross-examination. However, the Tennessee Rules of Evidence generally do not apply in hearings to determine the admissibility of evidence. Tenn. R. Evid. 104(a). Accordingly, Investigator Washam’s hearsay testimony as to the identifications made by Mr. Dyer, Ms. Dibrell, and Ms. White was permissible at the suppression hearing. This same testimony by Investigator Washam was also permissible at trial because an exception to the hearsay rule exists   for   “[a] statement of identification of a person made after perceiving the person if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement.”     Tenn.   R.   Evid.   803(1.1).     “[W]itnesses   other   than   the   declarant   may   testify   about   the   identifying   declaration”   so   long   as   the   declarant   will   be   available for cross-examination at the suppression hearing or at trial. Tenn. R. Evid. 808(1.1), Advisory Comm’n   Comments. All of the witnesses who made the identifications testified at trial. Therefore, because the rules of evidence did not apply at the suppression hearing and because a hearsay exception applied at trial, no hearsay violation occurred at either proceeding. The Supreme Court of the United States has held  that  “the Confrontation Clause precludes the admission of ‘[t]estimonial statements of witnesses absent from trial.’” State v. Dotson, 450 S.W.3d 1, 63 (Tenn. 2014) (quoting Crawford v. Washington, 541 U.S. 36, 59 (2004)). However, this Court   has   previously   stated   that   “[t]he   right   to   confrontation is a trial right and does not apply in suppression hearings.” Norris E. Ray v. State, No. W2010-01675-CCA-R3-PC, 2011 WL 5996037, at *16 (citing State v. Bush, 942 S.W.2d 489, 511 (Tenn. 1997)) (referring to suppression hearing on a photographic array used in pre-trial identification), perm app. denied (Tenn. Apr. 12, 2012). Therefore, the defendants were not constitutionally entitled to confront the witnesses about their identifications at the suppression hearing. Furthermore, because those witnesses were available for cross-examination at trial, neither their trial testimony nor that of Investigator Washam violated the Confrontation Clause. The defendants also argue that the identification procedures used by Investigator Washam were improper. To  avoid  exclusion  from  trial,  “an  identification  must  not  have   been conducted in such an impermissibly suggestive manner as to create a substantial likelihood of irreparable  misidentification.”    State v. Cribbs, 967 S.W.2d 773, 794 (Tenn. 1998) (citing Simmons v. United States, 390 U.S. 377 (1968)). Nonetheless, an identification that is conducted in an impermissibly suggestive manner will not be excluded   if   the   witness’s   identification was otherwise reliable under the circumstances. State v. Philpott, 882 S.W.2d 394, 400 (Tenn. Crim. App. 1994). Courts use a multifactor  inquiry  to  determine  reliability,  which  includes  “the opportunity of the witness to -19- view the criminal at the time of the crime; the witness’s degree of attention at the time of the crime; the accuracy of the witness’s prior description; the level of certainty demonstrated at the confrontation; [and] the time elapsed between the crime and the confrontation.”    Id. (citing Neil v. Biggers, 409 U.S. 188, 199 (1972)) (internal numbering omitted). The trial court found that the identifications made by Mr. Dyer, Ms. Dibrell, and Ms. White were not conducted in an impermissibly suggestive manner. The record supports the findings of the trial court. Investigator Washam testified that he composed each of the six-photograph   lineups   by   inserting   the   driver’s   license   photograph   of   each defendant   among   five   other   driver’s   license   photographs   of   individuals   with   similar   appearances to that of the defendant. These similarities include gender, hair style, facial hair style, skin complexion, and jewelry. When the skin complexion of the individuals was too different, Investigator Washam used black and white images to eliminate the disparity. In this case, he had another detective evaluate several of the lineups for suggestiveness. Upon our review of the lineups, we agree with the trial court that none of them are inherently or impermissibly suggestive. We  also  acknowledge  the  defendants’  argument   that Investigator Washam could have chosen to use what is known  as  the  “double  blind”   method of conducting the lineup identifications, wherein neither the interviewer nor the interviewee knows which photograph within the lineup is that of the suspect. However, defendants have not identified any legal authority, and we are aware of none, requiring law enforcement officers to use any particular identification procedure, even if there exists a method or procedure which offers greater protection against the risk of misidentification than the one chosen by the investigating officer. The law simply prohibits use of any means of obtaining an identification that is unfairly suggestible. Investigator Washam denied suggesting to any of the witnesses in this case which photographs they should select. In fact, with respect to two suspects thought by Detective Washam to be involved, Mr. Dyer did not make identifications. Similarly, Ms. Dibrell and Ms. White were unable to identify all four of the defendants. The fact that each of the three witnesses did not make identifications in every lineup bolsters Detective Washam’s  testimony  that  he  was  not  personally making suggestions to the witnesses and that the lineups themselves were not composed in such a manner as to suggest which photograph was the suspect. Lastly, the defendants contend that the trial court did not and could not have properly applied the Biggers factors without testimony from the witnesses. However, the trial court was not required to conduct a Biggers analysis. The Biggers test for reliability is only triggered if the identification procedures were conducted in an impermissibly -20- suggestive manner. State v. Michael Love, No. W2012-00404-CCA-MR3-CD, 2013 WL 1042852, at *12 (Tenn. Crim. App. Mar. 13, 2013) (citing State v. Butler, 795 S.W.2d 680, 686 (Tenn. Crim. App. 1990)), perm. app. denied (Tenn. Apr. 1, 2014). Unlike some identification procedures, such   as   “one-on-one   station   house   showups,”   State v. Thomas, 780 S.W.2d 379, 381 (Tenn. Crim. App. 1989), use of a six-photograph lineup, is not considered to be inherently suggestive, although such a lineup can be impermissibly suggestive where the photographs included within it are   “grossly   dissimilar.” See Michael Love, 2013 WL 1042852, at *12 (citing State v. Edwards, 868 S.W.2d 682, 694 (Tenn. Crim. App. 1993)). Because neither the six-photograph lineups utilized in this case nor the circumstances under which they were presented to the witnesses were impermissibly suggestive, the trial court was not required to determine whether the identifications were nonetheless reliable under the circumstances. The defendants are not entitled to relief on this basis. 3. Nursing Expert The defendants argue that the trial court erred in allowing an emergency room nurse to  testify  about  the  nature  of  Mr.  Dyer’s  injuries  because  this  subject  exceeded  the   scope of her expertise—emergency nursing care. Rebecca Greene was a registered nurse working in the emergency room at University of Tennessee Medical Center on May 30, 2012. She testified that when Mr. Dyer arrived in the emergency room, he was nonresponsive. He was classified as a full trauma alert, requiring immediate intervention, and he received the lowest possible score on the Glasgow Coma Scale based on the extent of his nonresponsiveness. Mr. Dyer was not breathing well, so he was intubated with an endotracheal tube and  a  ventilator  to  supply  oxygen  to  his  body  and  to  avoid  “brain  death.”    There  was  an   abrasion with bruising and swelling on the right side of his head. There was an abrasion on the back side of his left shoulder and some swelling on the left side of his jaw. Nurse Greene testified that bruising results from blunt force trauma. Mr.   Dyer   was   placed   in   the   intensive   care   unit   (“ICU”)   and   diagnosed   with an intraparenchymal hemorrhage, which is “a  bleed  inside  the  tissues  of  the  brain,”  and also diagnosed with a subdural hematoma, which is “a   bleed   outside   of   the   brain,”   between   the brain and the skull. Nurse Greene testified that both of these injuries are usually caused by blunt force trauma. Nurse Greene said that the head  injury  “could  be”  caused   by  “a  carpet  burn  or  something  like  that”  or  “could  .  .  .  have  also  been  caused  by  being   beaten  with  a  weapon.”    She  also  said  that  the  injuries  could  have been caused by blows from fists. -21- Over objections by all defendants, Nurse Greene testified that it was her opinion that   Mr.   Dyer’s   injuries   were   life-threatening   because   Mr.   Dyer’s   body   was   unable   to   breathe effectively enough to sustain oxygen flow to the brain. She also testified that the bleeding   in   Mr.   Dyer’s   brain   could have caused brain damage from the accompanying swelling. Questions regarding the qualifications, admissibility, relevancy, and competency of expert testimony are matters left within the broad discretion of the trial court. See McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 263-64 (Tenn. 1997); State v. Ballard, 855  S.W.2d  557,  562  (Tenn.  1993).    On  appellate  review,  the  trial  court’s  ruling  shall  not   be overturned absent a finding that the trial court abused its discretion in admitting or excluding the expert testimony. Ballard,   855   S.W.2d   at   562.     “[A]n   appellate   court   should find an abuse of discretion when it appears that the trial court applied an incorrect legal standard, or reached a decision which is against logic or reasoning that caused an injustice  to  the  party  complaining.”    State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997). Rule 702 of the Tennessee Rules of Evidence addresses the admissibility of opinion testimony of expert witnesses. It states in pertinent part: If scientific, technical, or other specialized knowledge will substantially assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise. Additionally,   Tennessee   Rule   of   Evidence   703   requires   the   expert’s   opinion   to   be   supported  by  trustworthy  facts  or  data  “of  a  type  reasonably  relied  upon  by  experts in the particular   field   in   forming   opinions   or   inferences   upon   the   subject.”     The   determining   factor  is  “whether  the   witness’s   qualifications  authorize   him  or  her  to  give  an  informed   opinion   on   the   subject   at   issue.”     State v. Stevens, 78 S.W.3d 817, 834 (Tenn. 2002). Evidence   constitutes   “‘scientific,   technical,   or   other   specialized   knowledge,’   if   it   concerns  a  matter  that  ‘the  average  juror  would  not  know,  as  a  matter  of  course.’”    State v. Murphy, 953 S.W.2d 200, 203 (Tenn. 1997) (quoting State v. Bolin, 922 S.W.2d 870, 874  (Tenn.  1996)).    Additionally,  an  expert   witness’s  testimony   must  be  relevant  to  the   issues  at  trial.    Relevant  evidence  is  “evidence  having  any  tendency  to  make  the  existence   of any fact that is of consequence to the determination of the action more probable or less probable  than  it  would  be  without  the  evidence.”    Tenn.  R.  Evid.  401. In McDaniel, the supreme court adopted a non-exclusive list of factors that a trial court should consider when determining the reliability of expert testimony. 955 S.W.2d -22- at 265. Those include: (1) whether the scientific evidence has been tested and the accompanying methodology with which it was tested; (2) whether the evidence has been subjected to peer review or publication; (3) whether the potential rate of error is known; (4) whether the evidence is generally accepted in the scientific community; and (5) whether the expert conducted the research in the field independent of litigation. Id. The application  of  the  factors,  a  “gatekeeping  function”  of  the  trial  court,  operates  to  ensure   introduction   of   testimony   that   “‘characterizes   the   practice   of   an   expert   in   the   relevant   field.’”     Brown v. Crown Equip. Corp., 181 S.W.3d 268, 273 (Tenn. 2005) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1998)). However, the McDaniel factors are only relevant to the extent they are reasonable measures of testing the reliability of the proposed expert testimony. Id. at 277. Nurse   Greene   was   a   registered   nurse   with   an   associate’s   degree   in   nursing. She had three years of nursing experience, all of those in an emergency room. Once tendered by the State, none of the defendants objected to her expertise, and the trial court deemed her to be an expert in the field of nursing care. As state above, Nurse Greene testified about   Mr.   Dyer’s   injuries,   their   possible   causes,   and   the   medical   procedures   that   were   used  to  treat  those  injuries.    When  asked  if  these  injuries  could  have  “caused  his  death”   had he not received medical care, the defendants objected and argued that Nurse Greene was not competent to testify on this matter. The trial court overruled the objection, finding  that  “she  does  have  specialized  experience  and  training  that  enable  her  to  render   opinion testimony regarding the seriousness of injuries  .  .  .  .”    The trial court questioned “how   much   experience   has   she   had   determining   or   connecting   seriousness   of   injury   to   death,”   and   Nurse   Greene   confirmed   that   she   has   had   “occasion   to   see   a   number   of   people  injured”  and  “occasion  to  see  people  die”  in  the  emergency  room.    Nurse Greene then testified   that   Mr.   Dyer’s   injuries   were   “life-threatening”   because   his   lack   of   responsiveness   was   causing   “inability   to   breathe   appropriately   to   sustain   oxygen   to   the   brain.” To support the argument that Nurse Greene testified beyond her expertise, Defendant Bonds cites Tennessee Code Annotated section 63-7-103(b) which provides: Notwithstanding the provisions of subsection (a), the practice of professional nursing does not include acts of medical diagnosis or the development of a medical plan of care and therapeutics for a patient, except to the extent such acts may be authorized by §§ 63-1-132, 63-7-123 and 637-207. However, subsection (a) of that statute provides in relevant part: -23- (a)(1)   “Practice   of   professional   nursing”   means   the   performance   for   compensation of any act requiring substantial specialized judgment and skill based on knowledge of the natural, behavioral and nursing sciences and the humanities as the basis for application of the nursing process in wellness and illness care; and (2)  “Professional  nursing”  includes: (A) Responsible supervision of a patient requiring skill and observation of symptoms and reactions and accurate recording of the facts; (B) Promotion, restoration and maintenance of health or prevention of illness of others; (C) Counseling, managing, supervising and teaching of others; (D) Administration of medications and treatments as prescribed by a licensed physician, dentist, podiatrist, or nurse authorized to prescribe pursuant to § 63-7-123, or selected, ordered, or administered by an advanced practice nurse specializing as a certified registered nurse anesthetist (CRNA) . . . . ; (E) Application of such nursing procedures as involve understanding of cause and effect; and (F) Nursing management of illness, injury or infirmity including identification of patient problems. Therefore, under the statutory definition of the scope of the practice of professional nursing, it seems that while Nurse Greene would not be permitted to render a medical diagnosis or to develop a medical plan of care, she was qualified to render an expert opinion  as  to  “cause  and  effect”  and  “nursing  management  of  illness,  injury  or  infirmity   including   identification   of   patient   problems.”     We   find   her   testimony   about   the   “lifethreatening”  nature  of  Mr.  Dyer’s  injuries  to  be  squarely  within  her  field  of  expertise. Defendant Bishop cites State v. Jerome Johnson, No. W2012-01754-CCA-R3-CD, 2013 WL 5488522 (Tenn. Crim. App. Sept. 30, 2013), perm. app. denied (Tenn. Feb. 11, 2014). In that case, the defendant challenged the sufficiency of the evidence for his conviction of aggravated assault. Id. at *5. This   Court   observed   that   there   was   “no   expert medical testimony . . . presented at trial to assist in determining whether the -24- victim’s  injuries  involved  a  substantial  risk  of  death,”  despite  testimony  from  the  treating   nurse  that  “the  victim’s  collapsed  lung,  rib  injuries,  and  asthma  had  ‘the  potential  to  be   life-threatening.”    However,  the  court  also  explained  that  the  nurse  “was  never  qualified   as  an  expert  at  trial.”    Contrary  to  Defendant  Bishop’s  assertion,  we  do  not  read  Jerome Johnson as providing any support for the proposition that a nurse cannot be competent to offer expert testimony on the life-threatening nature of injuries. In that case, the court merely acknowledged that such testimony could not be considered evidence of substantial risk of death where the trial court was not asked to perform its gatekeeping function by evaluating whether the nurse was qualified to offer expert testimony. That was not the case here. We have no problem resting with the uncontroverted fact  that  Mr.  Dyer’s injuries, requiring a nine-week medically-induced coma, constitute serious bodily injury. The defendants are not entitled to relief on this basis. 4. Gang Expert The defendants argue that the trial court erred in allowing Detective Walker to provide expert testimony in the field of gang identification because his entire testimony was irrelevant, cumulative, and unduly prejudicial. The State argues that his testimony was relevant and that the trial court did not abuse its discretion in admitting the evidence. Relevant  evidence  is  that  “having  any  tendency  to  make  the  existence  of  any  fact   that is of consequence to the determination of the action more probable or less probable than  it  would  be  without  the  evidence.”    Tenn.  R.  Evid.  401.    Evidence must be relevant to be admissible. Tenn. R. Evid. 402. Where the probative value of relevant evidence is substantially outweighed by the danger of unfair prejudice, waste of time, or needless presentation of cumulative evidence, it may be inadmissible. Tenn. R. Evid. 403. A trial court’s   ruling   on   the   admissibility   of   evidence   is   reviewed   for   an   abuse   of   discretion.     State v. Banks, 271 S.W.3d 90, 116 (Tenn. 2008). A trial court has abused its discretion if  it  “applied  incorrect  legal  standards,  reached  an  illogical  conclusion,  based  its  decision   on a clearly erroneous assessment of the evidence, or employed reasoning that causes an injustice to the complaining party.”    Id. (citation omitted). Detective Walker testified that he had six years of experience in the gang unit of the  Knox  County  Sheriff’s  Office.    “Since  1999,  [he  has]  received  over  five  hundred  and   twenty-nine hours of gang instruction to investigate gang crimes, identify different gang members and different gangs.” As a state instructor, he has taught about 344 classes since 2006. On numerous occasions, he testified as a gang expert in both state and federal  courts.    He  has  an  associate’s  degree  in  criminal justice from Roane State and a -25- bachelor’s  degree  from  Columbia  Southern  in  criminal  justice  administration.    He  wrote   and   developed   ten   courses   that   were   “post-certified”   by   the   State   of   Tennessee   to   be   taught to police officers and for official training credit. The trial court accepted Detective Walker as an expert in gang information and identification over the objection of the defendants. The  record  demonstrates  the  relevance  of  Detective  Walker’s  testimony.    Much  of   his testimony was offered for identification purposes to connect the defendants’ legal names with their gang monikers and for confirmation of their affiliation in the gang, which was something that the witnesses were largely unable to accomplish. The background  about  the  gang’s  history and culture provided by Detective Walker was not merely gratuitous but was used to explain symbols or abbreviations relevant to identifying the defendants. Most importantly, however, his testimony about gang hierarchy and their customs with regard to initiation and expulsion, which occurs through violence generally in the form of beatings, was particularly relevant on the issues of intent   and   motive.     Mr.   Dyer’s   testimony   about   how   the   gang   handled   their   affairs   was   piecemeal and confusing at times. Detective  Walker’s   testimony  clarified much of Mr. Dyer’s  testimony. Although this evidence was undoubtedly prejudicial to the defendants, any unfair prejudice would have been minor.     Detective   Walker’s   testimony   was   largely   didactic   and not inflammatory in nature. It did not involve extraneous evidence of violence or bad acts by the defendants or the gang in general. It was not presented in such a manner as to emphasize the unsavory characteristics of criminal street gangs that contribute to common social stigma. Moreover, as the victim himself was also a gang member, this was not a situation where the jury would have been tempted to place undue emphasis on the   defendants’   gang   affiliation   for   conduct   against   a   nonmember.     After   a   thorough   review of the record on this issue, we cannot say that the trial court abused its discretion by admitting this evidence. The defendants are not entitled to relief on this issue. 5. Statements of Codefendants The defendants argue that the trial court violated their constitutional rights by admitting incriminating statements in violation of Bruton v. United States, 391 U.S. 123 (1968), which prohibits the use of incriminating statements made by a non-testifying codefendant against another defendant. The State argues that the defendants have waived -26- this  issue,  and  we  agree.    Defendant  Bonds’s  appellate  brief8 fails to specifically identify which evidence he   deems   improper,   making   only   a   general   complaint   about   “numerous   written and audio recorded statements of co-defendants.”     “Issues   which   are   not   supported by argument, citation to authorities, or appropriate references to the record will be  treated  as  waived  in  this  court.”    Tenn.  R.  Ct.  Crim.  App.  10(b);;  State v. Thomas, 158 S.W.3d 361, 393 (Tenn. 2005). We refuse to speculate about which pieces of evidence the defendants may find objectionable. The defendants are not entitled to relief on this basis. 6. Sufficiency of Evidence – The Guilt Phase The defendants argue that the evidence is insufficient to support their convictions for attempted second degree murder, aggravated assault, and possession of a firearm during the commission of a dangerous felony. When a defendant challenges the sufficiency of the evidence, this Court is obliged to review that claim according to certain well-settled principles. The relevant question the reviewing court must answer is whether any rational trier of fact could have found the accused guilty of every element of the offense beyond a reasonable doubt. See Tenn. R. App. P. 13(e); Jackson v. Virginia,  443  U.S.  307,  319  (1979).    The  jury’s  verdict  replaces   the presumption of innocence with one of guilt; therefore, the burden is shifted onto the defendant to show that the evidence introduced at trial was insufficient to support such a verdict. State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002). The prosecution is entitled to the   “strongest   legitimate   view   of   the   evidence   and   to   all   reasonable   and   legitimate   inferences  that  may  be  drawn  therefrom.”    State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). It is not the role of this Court to reweigh or reevaluate the evidence, nor to substitute our own inferences for those drawn from the evidence by the trier of fact. Reid, 91 S.W.3d at 277. Questions concerning  the  “credibility  of  the  witnesses,  the  weight  to  be  given  their  testimony,  and   the reconciliation of conflicts in the proof are matters entrusted to the jury as the trier of fact.”    State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012) (quoting State v. Campbell, 245  S.W.3d  331,  335  (Tenn.  2008)).    “A  guilty  verdict  by  the  jury,  approved  by  the  trial   court, accredits the testimony of the witnesses for the State and resolves all conflicts in favor  of  the  prosecution’s  theory.”    Reid, 91 S.W.3d at 277 (quoting State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997)). This standard of review applies whether the conviction is based upon direct evidence, circumstantial evidence, or a combination of the two. 8 Defendant Bonds was the only defendant to brief this issue. The other defendants simply adopted his argument. -27- State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009). Second   degree   murder   is   the   “knowing   killing   of   another.”     T.C.A.   §   39-13210(a)(1).     Relevant   to   this   case,   one   who   “[a]cts   with   intent   to   cause”   the   knowing killing of another and   “believes   the   conduct   will   cause”   the   killing   of   another   “without   further   conduct   on   the   person’s   part”   has   attempted   to   commit   second   degree   murder.     See T.C.A. § 39-12-101(a)(2). Also relevant to this case, aggravated assault is intentionally or knowingly causing serious bodily injury to another. T.C.A. § 39-13102(a)(1)(A)(i). Lastly,   “[i]t is an offense to possess a firearm with the intent to go armed  during  the  commission  of  or  attempt  to  commit  a  dangerous  felony.”    T.C.A.  §  3917-1324(a). Attempted second degree murder is a dangerous felony. T.C.A. § 39-171324(i)(1)(B). The evidence presented in this case establishes that the victim and all of the defendants were members of the street gang known as the Five Deuce Hoover Crips. On May 30,  2012,  the  defendants  showed  up  at  the  victim’s  apartment  where  he  lived  with   his girlfriend. Once the victim opened the door, the defendants immediately entered the apartment and an argument ensued during which the victim was accused of shirking two obligations incumbent upon him as a fellow gang member. After a relatively brief exchange of shouting between the victim and several of the defendants, all of the defendants surrounded and attacked the victim, hitting him with their fists and kicking him with their feet. The beating rendered the victim unconscious, and he remained in a medicallyinduced coma for approximately nine weeks. The victim sustained significant internal cranial bleeding, and without medical assistance, the victim could have died because his body was unable to breathe on its own. Fortunately, the victim was stabilized at the hospital, but when he regained consciousness, he was aggressive and did not recognize the people around him. The victim needed physical therapy to regain control of his excretory functions and to relearn how to walk and talk. The victim still has some memory trouble. The defendants argue that the evidence does not support an inference that they intended to kill the victim rather than simply injure him. We disagree. “Intent, which can seldom be proven by direct evidence, may be deduced or inferred by the trier of fact from the character of the assault, the nature of the act and from all the circumstances of the case in evidence.”     State v. Inlow, 52 S.W.3d 101, 105 (Tenn. Crim. App. 2000) (citing State v. Holland, 860 S.W.2d 53, 59 (Tenn. Crim. App. 1993)). Based on the severity   of   the   victim’s   life-threatening physical injuries, a rational jury could have -28- inferred that the defendants intended to beat the victim to death as punishment for failing to meet his gang-imposed responsibilities. This conclusion is further supported by the expert testimony of Detective Walker, who explained that a gang-motivated  “beat  out”  of   an expelled gang member can be intended to cause either permanent physical impairment or   death,   both   of   which   promote   the   gang’s   status   within   the   community   by   increasing   their  threat  level  and  instilling  fear.    “Whether  the  appellant[s]  ‘knowingly’  attempted  to   kill [the] victim is a question of fact  for  the  jury,”  id. at 104-05, and we will not disturb that finding, even if we would have decided otherwise. Defendant   Bishop   argues   that   there   is   no   proof   that   he   “actually   caused   any   injuries”  to  the  victim or possessed a firearm. Defendant Robinson also argues that there is no evidence that she possessed a firearm. However, the victim specifically testified that he witnessed all of the defendants hit him, including Defendant Bishop. Nonetheless, the evidence is sufficient to hold all of the defendants criminally responsible for all crimes that occurred,  which  was  correctly  included  in  the  trial  court’s  jury  charge. Under Tennessee Code Annotated section 39-11-402, a defendant is criminally responsible for an offense committed by the  conduct  of  another  person  if,  “with  intent  to   promote or assist the commission of the offense, or to benefit in the proceeds or results of the offense, the [defendant] solicits, directs, aids, or attempts to aid another person to commit  the  offense.” Clearly,  the  defendants  went  to  the  victim’s  home  with  the  shared   purpose of confronting, intimidating, and beating him. As for possession of the firearm, the victim testified that Defendant Sullivan possessed a handgun in his pocket during the encounter, the handle of which was hanging out for all to see. The jury could have inferred that all of the other defendants, including Defendants Bishop and Robinson, were aware that Defendant Sullivan possessed the handgun and intended to benefit from his possession of the weapon with the possibility that it might be needed. See State v. William Patrick Peebles, No. M2011-01312-CCA-R3-CD, 2013 WL 2459881, at *6 (Tenn. Crim. App. June 6, 2013) (rejecting sufficiency of the evidence argument based on claim that the  appellant  “did  not  personally  possess  a  firearm”  where  the  appellant  was   criminally responsible for co-defendant’s   use   of   a   firearm),   perm. app. denied (Tenn. Nov. 13, 2013). Defendant Bishop also argues that the presentment “failed   to   allege   a   statutory crime”   because   it  did   not   include   allegations   of   simple   assault   or   include   the   allegation   that   the   assault   “involved   the   use   or display   of   a   deadly   weapon.”     This   argument is misguided. The language of the presentment contains all of the statutory elements of the offense of aggravated assault. Moreover, the State did not rely on the use of a deadly weapon to make the assault aggravated, rather it relied on the serious bodily injury sustained by the victim. -29- Defendant Sullivan argues that there is insufficient evidence that he was one of the attackers. We disagree. Although the victim acknowledged that an individual in one of Investigator  Washam’s  lineups  looked  like  the  man  he  knew  as  Crank  Deuce,  the  victim   did not make an incorrect identification. Instead, he asked Investigator Washam for additional photographs, and on the next occasion, the victim confidently identified Defendant Sullivan as Crank Deuce and as one of his attackers. The victim was quite certain that Defendant Sullivan was part of the group because the victim noticed that Defendant Sullivan possessed a handgun. Although neither of the other witnesses identified Defendant Sullivan, “the testimony of a victim, by itself, is sufficient to support a   conviction.”     Id. (citing State v. Williams, 623 S.W.2d 118, 120 (Tenn. Crim. App. 1981)). Additionally, we note that during the phone calls made by Defendant Sullivan on January 23 and February 20, he displayed consciousness of guilt about the crime when he encouraged efforts to discourage the victim from appearing in court. Defendant Bonds argues that trial court should have merged the convictions for attempted second degree murder and aggravated assault and that, because it did not, those convictions violate the principles of Double Jeopardy. However, this Court has previously determined that dual convictions for these offenses do not violate the Double Jeopardy Clause. State v. Dannaer Beard, No. W2013-00502-CCA-MR3-CD, 2014 WL 5465860, at *4 (Tenn. Crim. App. Oct. 28, 2014), perm. app. denied (Tenn. Mar. 12, 2015). The defendants are not entitled to relief on this basis. Because the evidence was sufficient to sustain each of the  defendants’  convictions,   and there was no error in the guilt phase of the trial on the underlying offenses, those convictions are affirmed. B. Gang Enhancement Phase Defendants Bonds, Bishop, and Sullivan raise several issues regarding their convictions under Tennessee Code Annotated section 40-35-121(b), which provides: A criminal gang offense committed by a defendant who was a criminal gang member at the time of the offense shall be punished one (1) classification higher than the classification established by the specific statute creating the offense committed. As applicable to this case, the statute defines  “criminal  gang  offense”  as: (A) A criminal offense committed prior to July 1, 2013 that: -30- (i) During the perpetration of which the defendant knowingly causes, or threatens to cause, death or bodily injury to another person or persons . . . ; or (ii) Results, or was intended to result, in the defendant’s receiving income, benefit, property, money or anything of value from the commission of any aggravated burglary, or from the illegal sale, delivery, or manufacture of a controlled substance, controlled substance analogue, or firearm[.] T.C.A. § 40-35-121(a)(3)(A).    The  statute  defines  a  “criminal  gang  member”  as  “a  person   who  is  a  member  of  a  criminal  gang,”  as  established  by  satisfaction of two or more of the following criteria: (A) Admits to criminal gang involvement; (B) Is identified as a criminal gang member by a parent or guardian; (C) Is identified as a criminal gang member by a documented reliable informant; (D) Resides in or frequents a particular criminal gang’s area, adopts their style or dress, their use of hand signs or their tattoos and associates with known criminal gang members; (E) Is identified as a criminal gang member by an informant of previously untested reliability and the identification is corroborated by independent information; (F) Has been arrested more than once in the company of identified criminal gang members for offenses that are consistent with usual criminal gang activity; or (G) Is identified as a criminal gang member by physical evidence such as photographs or other documentation[.] T.C.A. § 40-35-121(a)(2). The  statute  defines  a  “criminal  gang”  as  “a  formal  or  informal   ongoing organization, association or group consisting of three (3) or more persons that has . . . [a]s one (1) of its activities the commission of criminal acts; and [t]wo (2) or more members who, individually or collectively, engage in or have engaged in a pattern of criminal gang activity[.]”     T.C.A. § 40-35-121(a)(1)(A)-(B). The statute defines -31- “pattern  of  criminal  gang  activity”  as  “prior  convictions  for  the  commission  or  attempted   commission  of”  the  following: (i) Two (2) or more criminal gang offenses that are classified as felonies; or (ii) Three (3) or more criminal gang offenses that are classified as misdemeanors; or (iii) One (1) or more criminal gang offenses that are classified as felonies and two (2) or more criminal gang offenses that are classified as misdemeanors; and (iv) The criminal gang offenses are committed on separate occasions; and (v) The criminal gang offenses are committed within a five-year period[.] T.C.A. § 40-35-121(a)(4)(A). The statute utilizes the same definition for the underlying criminal gang offense and the predicate offenses required to establish a pattern of criminal gang activity. See T.C.A. § 40-35-121(i). To prove that the Five Deuce Hoover Crips satisfied the statutory definition of a criminal gang, the State presented proof regarding the criminal histories of seven individuals. First, Joy McCroskey, the Knox County Criminal Court Clerk, testified and provided certified copies of convictions for those individuals. All of the convictions were felonies committed between September 8, 2005, and January 25, 2011. The convictions were entered between July 11, 2006, and May 2, 2011. Then, Detective Walker testified that each one of those individuals (and several others) was or had been a member of the Five Deuce Hoover Crips. Some of Detective Walker’s   responses   suggested that he had no personal knowledge of the facts of the underlying cases for any of those individuals. His testimony was based on a gang file compiled and maintained by the  Knox  County   Sheriff’s  Office. The information in the files on each gang member is obtained through personal interviews with arrestees, mail searches and prison records of inmates, cell phone searches, and information from informants. According to Detective Walker, all  information   is   “verif[ied]   to   make   sure   that  it  is  true  and  accurate.” Detective Walker testified about the information in the gang file upon which the   Sheriff’s   Office   relied in determining that each of the seven individuals were members of the Five Deuce Hoover Crips. Additionally, Detective Walker testified that Defendants Bonds, Bishop, and Sullivan were also members of the Five Deuce Hoover Crips. -32- Detective Walker also testified about the origin of the Five Deuce Hoover Crips as a violent criminal gang and explained that their  activities   include   “drug  dealing   mostly,   robberies,  agg[ravated]  assaults,  attempted   murder,  stuff  like  that.” The contents of the gang file relied upon by Detective Walker were admitted into evidence. 1. Defective Presentment Defendants Bonds, Bishop, and Sullivan argue that the trial court erred in refusing to dismiss this case because the criminal enhancement charges were not included in the presentment to the grand jury. Counsel for Defendant Bonds told the trial court that he had only received counts one through eight at the arraignment and did not learn of the gang enhancement charges until shortly before the hearing date. Tennessee Code Annotated section 40-35-121(g) provides: If the defendant is charged with a criminal gang offense and the district attorney general intends to seek enhancement of the punishment under subsection (b), (c) or (e), the indictment, in a separate count, shall specify, charge and give notice of the subsection under which enhancement is alleged applicable and of the required prior convictions constituting the gang’s pattern of criminal gang activity. Questions  of  law  presented  by  a  trial  court’s  ruling  on  a  motion  to  dismiss  an  allegedly   defective indictment or presentment are reviewed de novo with no presumption of correctness. See State v. Sherman, 266 S.W.3d 395, 403 (Tenn. 2008). In this case, the defendants were charged collectively by presentment. The true bill is dated August 28, 2012, and was signed by the grand jury foreperson and all of the grand jury members. The second through fifth pages of the presentment contain eight counts, constituting the underlying offenses in this case. The fifth page contains a signature block that was signed by the district attorney. The following page is topped with the case caption. The case numbers are handwritten on the upper right corner. A list of witnesses and their addresses are set forth below. The seventh page is titled “Criminal   Gang   Offense   Enhancement.”     The   seventh   through   eleventh   pages   contain   counts nine through eleven, which are the gang enhancement charges against Defendants Bonds, Bishop, and Sullivan. The eleventh page contains a signature block that was signed by the district attorney. -33- At the pre-trial hearing on the motion to dismiss the presentment, the prosecutor informed the trial court that the entire presentment, pages one through eleven, was presented to the grand jury at one time. The true bill signed by the grand jury encompassed all counts, including the gang enhancement offenses. According to the prosecutor, the reason that the gang enhancement offenses were titled separately and contained on additional pages was for physical severability of the pages in the presentment. Expecting that the presentment would be made available to the jury during their deliberations on the guilt phase of the trial and that the jury would not be aware of the gang enhancement offenses during that phase of the proceeding, the State structured the presentment in such a way that the pages containing the gang enhancement offenses could be easily separated. The prosecutor explained that, at the time of the presentment, the   district   attorney’s   office   did   not   have   a   pre-constructed   “macro”   for   the   gang   enhancement offenses in its word processing software, so those counts had to be created from scratch, which was why the format of those charges was different than the charges for the underlying offenses. Relying on the contents of the case file and the representations of the prosecutor, the trial court denied the motion. We find no error in the trial  court’s  ruling.    “Unless  a   defect in an indictment appears on the face of the indictment, the initial burden of proof is on   the   defendant   to   establish   the   grounds   of   the   motion   to   dismiss.”     W.   Mark   Ward,   Tennessee Criminal Trial Practice § 14:5 (2014-2015 ed.) (citing Shadden v. State, 488 S.W.2d 54, 60 (Tenn. Crim. App. 1972), overruled on other grounds by State v. Jones, 598 S.W.2d 209 (Tenn. 1980)). Here, there was absolutely no evidence to support the defendants’   claim   that   the   gang   enhancement   offenses were not included in the presentment before the grand jury. At the hearing, the trial court did not make a specific ruling  on  Defendant  Bonds’s   claim that he was not given notice of the gang enhancement offenses at his arraignment, although it did note that an entire copy of the presentment was included in the court file. However, even if this claim were true, it would not entitle Defendant Bonds to relief. He eventually learned of the gang enhancement before trial and did not present any evidence of prejudice from the late notice. See State v. Joshua Tyrell Cross, No. E2014-00963CCA-R3-CD, 2015 WL 477296, at *13 (Tenn. Crim. App. Feb. 4, 2015) (concluding that lack of formal arraignment did not warrant reversal where the trial court informed the defendant of the charges at the guilty plea hearing), no perm. app. filed. Defendant is not entitled to relief on this basis. 2. Confrontation Clause -34- The defendants argue that the testimony of Detective Walker during the enhancement phase violated the Confrontation Clause because it was based on testimonial hearsay. The State argues that the Confrontation Clause does not extend to sentencing proceedings. Defendant Sullivan concedes that the gang enhancement is a sentencing enhancement,   but   nonetheless   argues   that   the   Confrontation   Clause’s   prohibition on testimonial hearsay should have been applied by the trial court. As previously stated, “the   Confrontation   Clause   precludes   the   admission   of   ‘[t]estimonial   statements   of   witnesses   absent   from   trial.’”     Dotson, 450 S.W.3d at 63 (quoting Crawford, 541 U.S. at 59). This Court has repeatedly recognized that the Confrontation Clause is not applicable to sentencing hearings. See, e.g., State v. Thomas William Whited, No. E2013-02523-CCA-R3-CD, 2015 WL 2097843, at *10 (Tenn. Crim. App. May 4, 2015), perm. app. granted (Tenn. Sept. 22, 2015); State v. Arealie Boyd, No. W2009-00762-CCA-R3-CD, 2010 WL 1240720, at *7-8 (Tenn. Crim. App. Mar. 30, 2010) (citing State v. William Edwin Harris, No. M2008-01685-CCA-R3-CD, 2009 WL 1871919, at *6 (Tenn. Crim. App. June 30, 2009), perm. app. denied (Tenn. Nov. 30, 2009)), no perm. app. filed; see also State v. Stephenson, 195 S.W.3d 574, 590 (Tenn. 2006)   (observing   that   “the   federal   appellate   courts   continue to hold that the Sixth Amendment right of confrontation does not apply at sentencing, even after Crawford”),   abrogated on other grounds by State v. Watkins, 195 S.W.3d 530 (Tenn. 2012). For   purposes   of   the   Sixth   Amendment’s   right   to   a   jury   trial,   the Supreme Court has  determined  that,  “[w]hen  a  finding  of  fact  alters  the  legally  prescribed  punishment  so   as to aggravate it, the fact necessarily forms a constituent part of a new offense and must be   submitted   to   the   jury.”     Alleyne v. United States, --- U.S. ---, 133 S.Ct. 2151, 2162 (2013).    Thus,  “‘facts  that  increase  the  prescribed  range  of  penalties  to  which  a  criminal   defendant   is   exposed’   are   elements   of   the   crime”   which   must   be   proven   beyond   a   reasonable doubt to a jury, regardless of whether those facts increase the statutory maximum or mandatory minimum of the sentencing range. Id. at 2160 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)). Despite   simply   being   dubbed   by   the   General   Assembly   as   “enhanced   punishment,”   the   factual   requirements of Section 40-35-121 are elements of the underlying criminal gang offenses because the statute increases the prescribed range of penalties  applicable  to  a  defendant  by  automatically  increasing  the   underlying  offense’s   sentencing classification by at least one range, raising both the maximum and minimum ends of the range. See People v. Sengpadychith, 27 P.3d 739 (Cal. 2001) (holding that Apprendi applies to certain felonies subject to gang enhancement). We think it necessarily follows that the protections of the Confrontation Clause of the Sixth Amendment also apply to the presentation of any proof within the constitutional scope of -35- a jury trial. Accordingly,  the  “gang  enhancement”  portion  of  the  proceeding  in  this  case   was an extension of the actual guilt phase of the trial on the underlying criminal offenses; it was not a merely a sentencing hearing. In this case, Defendants Bonds, Bishop, and Sullivan raised numerous hearsay and Confrontation Clause objections to the testimony of the gang expert. The trial court noted   the   defendants’   “standing   objection”   to   the   testimony   of   the   gang   expert   and   the   introduction of the contents of the gang file on the various members of the Five Deuce Hoover   Crips.     At   one   point,  during   Defendant   Bishop’s  cross-examination of the gang expert about his specific, personal knowledge of particular information in the gang file, the trial court sustained relevance objections from the State. After cross-examination was concluded, Defendant Sullivan moved for a judgment of acquittal. The State objected, arguing  that  they  were  merely  involved  in  “sentencing  hearing.”    The  trial  court  agreed,   noting,  “This  is  an  enhancement  provision.    It’s  not  a  separate  freestanding  crime.”    The   trial court then proceeded with a jury-out  hearing  on  Defendant  Sullivan’s  motion,  which   was adopted by the other two defendants. After hearing arguments from counsel, the trial court made the following ruling, in part: This is rather unchartered territory. Your objections to the results of investigation that gave rise to the certification of your clients as gang members, certainly I can see a legitimate argument about the hearsay, but it would appear that what this legislation intends is for evidence of this sort to be compiled by the police and introduced in effect as a business record exception. They collect information and create a file. At this point, this court is going to accept the proposition that our law, especially the business record exception, is going to be . . . that that evidence is admissible in these cases. Counsel for Defendant Sullivan posed the question of whether the gang enhancement statute  was  actually  a  “status  offense,”  to  which  the  trial  court  responded: No,  this  is  an  enhancing  factor.    It’s  not  a  separate  offense.    It  doesn’t  have   separate elements that have to be proved. There are necessary findings but this is not a separate freestanding crime. . . . This is simply circumstances permitting the enhancement of an offense and they have to be found true by a jury . . . before the Court can enhance the sentence based on these findings.    It  has  to  be  submitted  to  a  jury  and  that’s  what  we’re  doing  now. Because this is a unique case of first impression, and there is no previous appellate court guidance on the substantive or procedural aspects of this statute, we have much -36- sympathy for the trial court and the attorneys involved in this proceeding. However, the trial court and the State miscomprehended the nature of the third phase of the trial. It was not a sentencing hearing. All constitutional and procedural criminal protections were applicable, including the Confrontation Clause and the Rules of Evidence. Even assuming, without deciding, that the gang file was properly admitted through one of the hearsay exceptions,9 such satisfaction alone does not mean that there was not a violation of the Confrontation Clause. State v. McCoy, 459 S.W.3d 1, 12 (Tenn. 2014). The trial court should have permitted the defendants to make specific objections to any of the material within the gang file or the expert testimony, rather than noting only a general standing objection to the evidence, and the trial court should have examined each potential piece of hearsay independently to determine whether it was testimonial or nontestimonial for purposes of the Confrontation Clause. The trial court also should have permitted the defendants to cross-examine the gang expert about the circumstances under which all of the evidence in the gang file was obtained and by whom the evidence was obtained,   rather   than   relying   only   on   the   gang   expert’s   general   description   of   how   the   gang   file   was   compiled   and   maintained   by   the   Sheriff’s   Office.     Conducting a Confrontation Clause analysis of whether a statement is testimonial hinges on factual information about the circumstances under which a hearsay statement was made. We find this record too incomplete to reach a conclusion on the resolution of the Confrontation Clause issue raised by the defendants. Once challenged, the State bears the burden of proving that its proffered evidence is constitutionally permissible. See State v. Huddleston, 924 S.W.2d 666, 675 (Tenn. 1996). It failed to carry this burden. 9 As noted above, the trial court indicated that it was admitting the gang file under the business records hearsay exception. However, we note that the trial court did not explain how the gang file satisfied the requirements of Tennessee Rule of Evidence 803(6). We also note that the State and the trial court, at times, seemed to be under the impression that the gang file might be admissible in its entirety under Tennessee Rule of Evidence 703, although the trial court did not make a ruling to that effect. Because the Confrontation Clause implications of the admission of  hearsay  “basis  evidence”  from  gang   experts is currently before the Supreme Court of California, see People v. Sanchez, 167 Cal. Rptr.3d 9, 22-24 (Cal. Ct. App. 2014), review granted, 324 P.3d 273 (Cal. May 14, 2014), we encourage the trial court to carefully consider an argument on the admissibility of this evidence on this basis, in the event that this case is ultimately remanded for a new determination on the gang enhancement. We also express our   concern   that   the   nature   of   the   gang   expert’s   testimony   may   have   been   improper   “parroting”   of   the   hearsay contents of the gang file to the jury rather than true expert opinion independently formed on the basis of that information. See, e.g., United States v. Mejia, 545 F.3d 179, 197-99 (2d Cir. 2008) (examining basis of gang expert testimony under Federal Rule of Evidence 703 and the Confrontation Clause). -37- To briefly summarize, we hold that the requirements of Section 40-35-121 are additional elements of the underlying criminal gang offenses and the portion of the trial during which proof of gang membership and activity is introduced is not merely a sentencing hearing but rather is an extension of the guilt phase of the trial to which constitutional, statutory, and procedural rules fully apply. Because the trial court treated the proceeding as a sentencing hearing, without considering the protection afforded by the Confrontation Clause, and because the State failed to prove by a preponderance of the evidence  that  the  gang  expert’s  testimony  and  the  contents  of  the  gang  file  did  not  violate   the  Confrontation  Clause,  we  reverse  the  defendants’  gang enhancement convictions and remand this case for a new trial on the gang enhancement. 3. Due Process The defendants argue that Tennessee Code Annotated section 40-35-121 violates the principles of due process because it is both unconstitutionally vague and lacks language restricting its scope to underlying gang-related offenses. Generally, this Court will not address the constitutional validity of a statute when we can dispose of the case on other grounds. See Waters v. Farr, 291 S.W.3d 873, 882 (Tenn.  2009)  (“It  is  well-settled in   Tennessee   that   ‘courts   do   not   decide   constitutional   questions   unless   resolution   is   absolutely necessary to determining the issues in the case and adjudicating the rights of the  parties.’”  (quoting  State v. Taylor, 70 S.W.3d 717, 720 (Tenn. 2002))). In this case, however, our conclusion that the case must be remanded for a new trial on the gang enhancements does not fully adjudicate the rights of the parties. If the defendants prevail on their facial constitutional challenges, they would not be subject to the gang enhancement at all—a very different disposition than a remand for retrial. For this reason, we will address the constitutional due process challenges to Section 40-35-121. The defendants argue that Tennessee Code Annotated section 40-35121(a)(3)(A)(i) is unconstitutionally vague on  its  face  because  it  does  not  specify  “what is and is not a gang[-]related  offense.”    The  State  maintains  that  the  statute  is  not  vague   because it clearly defines the conduct that is prohibited. A  “vague  statute  is  vulnerable  to  a  constitutional  challenge  because  it  (1)  fails  to   provide fair notice that certain activities are unlawful; and (2) fails to establish reasonably clear guidelines for law enforcement officials and courts, which, in turn, invites arbitrary and  discriminatory  enforcement.”    State v. Pickett, 211 S.W.3d 696 702 (Tenn. 2007). In regards to the former, “[d]ue process   requires   that   a   statute   provide   ‘fair   warning’   and   prohibits holding an individual criminally liable for conduct that a person of common intelligence  would  not  have  understood  to  be  proscribed.”    State v. Burkhart, 58 S.W.3d 694, 697 (Tenn. 2001) (citing Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)). -38- To avoid constitutional infirmity, a criminal statute must be  “sufficiently  precise  to  put  an   individual  on  notice  of  prohibited  activities.”    Id. (quoting State v. Wilkins, 655 S.W.2d 914, 915 (Tenn. 1983)). As stated above, Section 40-35-121(b)   provides   that   “[a]   criminal   gang   offense   committed by a defendant who was a criminal gang member at the time of the offense shall be punished one (1) classification higher than the classification established by the specific statute creating  the  offense  committed.”    Pertinent  to  this  case,  the statute defines “criminal  gang  offense”  as  “[a]  criminal offense committed prior to July 1, 2013 that . . . [d]uring the perpetration of which the defendant knowingly causes, or threatens to cause, death or bodily injury to another person or persons .  .  .  .”    T.C.A.  §  40-35-121(a)(3)(A)(i). Although Section 40-35-121 does not contain definitions of the terms “criminal   offense”   or   “death”   or   “bodily   injury,”   those terms are either defined elsewhere within the Code or capable of ready understanding. Tennessee Code Annotated section 39-11102(a)  provides  that   “[c]onduct  does  not  constitute  an  offense  unless  it  is  defined  as  an   offense by statute, municipal ordinance, or rule authorized by and lawfully adopted under a   statute.”     Thus,   we   know   that   a   “criminal   offense”   is   an   offense   defined   as   such   “by   statute,  municipal  ordinance,  or  rule  authorized  by  and  lawfully  adopted  under  a  statute.”     Id. We further know that “the  general  principles”  regarding  offense  definition  “apply  to   offenses defined in all volumes of the Tennessee Code Annotated unless the law provides otherwise.”     T.C.A.   §   39-11-102,   Sentencing   Comm’n   Commts.     “[A]   person   acts   knowingly with respect to the conduct or to circumstances surrounding the conduct when the  person  is  aware  of  the  nature  of  the  conduct  or  that  the  circumstances  exist”  or  “with   respect  to  a  result  of  the  person’s  conduct  when  the  person  is  aware  that  the  conduct  is   reasonably certain   to   cause   the   result.”     T.C.A.   §   39-11-106(20).     “‘Bodily   injury’   includes a cut, abrasion, bruise, burn or disfigurement, and physical pain or temporary illness   or   impairment   of   the   function   of   a   bodily   member,   organ,   or   mental   faculty[.]”     T.C.A. § 39-11-106(2).     Although   the   term   “death”   is   not   defined   in   our criminal statutory scheme, that term is capable of ready understanding by a person of ordinary intelligence. Accordingly, we conclude that the statute is sufficiently precise to provide fair warning of the conduct covered by the statute. Simply put, the statute applies when a criminal gang member injures or kills someone, or threatens to do so, while committing a crime. A person of common intelligence would have no trouble understanding this plain meaning. Because the defendants have not alleged vagueness in any other language in the statute, we have not considered whether any other aspect of the statute is vague. -39- The defendants also argue that Tennessee Code Annotated section 40-35-121(b) is unconstitutional as a violation of substantive due process. Specifically, they contend that the statute lacks a nexus between gang membership and criminal conduct. As explained in  Defendant  Sullivan’s  appellate  brief: Enhancement applies regardless of  a  defendant’s  knowledge  or  control  of,   or  consent  to,  the  other  alleged  gang  members’  criminal  acts.    Conversely,   enhancement does not require that the [S]tate show that the offenses committed by others w[ere] committed for the benefit of, at the direction of, or in association with any criminal street gang. The statute does not even require that crimes committed by the other alleged gang members be gang[]related, just that the crimes be committed by alleged gang members. Assuming that a defendant is a gang member, the statute would punish a defendant not for his own acts, but because of unrelated criminal acts of persons with whom he may have been or is associated, or over whom he has no control whatsoever. This amounts to enhanced sentencing based on association, and nothing else. The State did not address this issue in its appellate brief, but it addressed the issue at oral argument. After hearing oral argument, this Court ordered supplemental briefing on this specific issue in which the State argued that the criminal gang statute was constitutional as applied to the defendants in this case. For support, the defendants rely on State v. O.C., 748 So.2d 945 (Fla. 1999). In that case, a juvenile was convicted of aggravated battery for participating in the beating of another youth after exiting a school bus. After being convicted, the defendant was then found to be a member of a criminal street gang, which caused the underlying conviction to be enhanced by one felony classification. The relevant criminal gang statute provided: (2)   “Criminal   Street   Gang   Member”   is   a   person   who   is   a   member   of   a   criminal street gang . . . and who meets two or more of the following criteria: (a) Admits to criminal street gang membership. (b) Is identified as a criminal street gang member by a parent or guardian. (c) Is identified as a criminal street gang member by a documented reliable informant. -40- (d) Resides in or frequents a particular criminal street gang’s area and adopts their style of dress, their use of hand signs, or their tattoos, and associates with known criminal street gang members. (e) Is identified as a criminal street gang member by an informant of previously untested reliability and such identification is corroborated by independent information. (f) Has been arrested more than once in the company of identified criminal street gang members for offenses which are consistent with usual criminal street gang activity. (g) Is identified as a criminal street gang member by physical evidence such as photographs or other documentation. (h) Has been stopped in the company of known criminal street gang members four or more times. Id. at 947 n.1 (citing Fla. Stat. § 874.03(2)(a)-(h) (Supp. 1996)). The statute defined a “criminal  street  gang”  as: A formal or informal ongoing organization, association, or group that has as one of its primary activities the commission of criminal or delinquent acts, and that consists of three or more persons who have a common name or common identifying signs, colors, or symbols and have two or more members who, individually or collectively, engage in or have engaged in a pattern of criminal street gang activity. Id. at 948 (citing Fla. Stat. § 874.03(1)). The  statute  defined  a  “pattern  of  criminal  street   gang  activity”  as: The commission or attempted commission of, or solicitation or conspiracy to commit, two or more felony or three or more misdemeanor offenses, or one felony and two misdemeanor offenses, or the comparable number of delinquent acts or violations of law which would be felonies or misdemeanors if committed by an adult, in separate occasions within a 3year period. Id. at 948 n.2 (citing Fla. Stat. § 874.03(3)). -41- The  Supreme  Court  of  Florida  held  that  the  gang  statute  was  “unconstitutional  as  a   violation  of  substantive  due  process.”    Id. at 950. The court explained: [S]ection 874.07 punishes mere association by providing for an enhancement of the degree of a crime based on membership in a criminal gang, even where the membership had no connection with the crime for which the defendant had been found guilty. . . . [B]ecause the statute punishes gang membership without requiring any nexus between the criminal activity and gang membership, it lacks a rational relationship to the legislative goal of reducing gang violence or activity and thus fails to have   a   ‘reasonable   and   substantial   relation’   to   a   permissible   legislative   objective. Id. The State asserts that O.C. is distinguishable from this case because the facts in this case clearly establish that the underlying crimes were gang-related—the victim was “beat  out”  of  the  gang  for  allegedly  failing  in  his  obligations  to  the  gang. The Fourteenth Amendment to the Constitution of the United States guarantees that no  “State [shall] deprive any person of life, liberty, or property, without due process of  law.”    U.S. Const. amend. XIV, § 1. The Law of the Land Clause in Article I, section 8  of  the  Tennessee  Constitution  “has  consistently  been  interpreted  as  conferring  identical   due   process   protections   as   its   federal   counterparts.”     Mansell v. Bridgestone Firestone North American Tire, LLC, 417 S.W.3d 393, 407 (Tenn. 2013) (citing Burford v. State, 845 S.W.2d 204, 207 (Tenn. 1992)). Our supreme court has acknowledged that the concept of due process entails both procedural and substantive components. Id. (citing Lynch v. City of Jellico, 205 S.W.3d 384, 391 (Tenn. 2006)). “The  most  basic  principle   underpinning procedural due process is that individuals be given an opportunity to have their  legal  claims  heard  at  a  meaningful  time  and  in  a  meaningful  manner.”    Id. (quoting Lynch, 205 S.W.3d at   391).     “In   contrast   to   procedural   due   process,   substantive   due   process bars oppressive government action regardless of the fairness of the procedures used  to  implement  the  action.”    Id. at 409 (citing Lynch, 205 S.W.3d at 391-92). “Unless   a fundamental right is involved, the test for determining whether a statute comports with substantive  due  process  is  whether  the  legislation  bears  ‘a  reasonable  relation  to  a  proper   legislative   purpose’   and   is   ‘neither   arbitrary   nor   discriminatory.’”     Newton v. Cox, 878 S.W.2d 105, 110 (Tenn. 1994) (quoting Nebbia v. New York, 291 U.S. 502, 537 (1934)). -42- “Issues   of   constitutional   interpretation   are   questions   of   law   which   we   review   de   novo without any presumption of correctness given to the legal conclusions of the courts below.”    Waters, 291 S.W.3d at 882 (citing Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 836 (Tenn. 2008)). When reviewing the constitutionality of a statute, we begin “with  the  presumption  that  an  act  of  the  General  Assembly  is  constitutional”  and   “must   indulge every presumption and resolve every doubt in favor of constitutionality.”    Riggs v. Burson, 941 S.W.2d 44, 51 (Tenn. 1997). Our research reveals that this case is the first appellate decision construing our gang enhancement statute in any way. Given the lack of guidance, we proceed with caution. The O.C. court struck down the statute before it for failing rational basis review. Our courts have previously applied this type of judicial scrutiny to state statutes under a substantive due process analysis, as have courts in other jurisdictions. See generally Wayne R. LaFave, 1 Subst. Crim. L. § 3.3 (2d ed.) (distinguishing this type of due process analysis from the due process analysis applied to laws allegedly burdening fundamental rights). Given the deference to legislative decision-making afforded by this level of scrutiny, most of those cases have concluded that the statute in question is reasonably related to a legitimate government purpose. See, e.g., Riggs v. Burson, 941 S.W.2d 44, 52 (Tenn. 1997) (upholding helicopter-related land use restrictions near a national park); State v. Smith, 48 S.W.3d 159, 169-70 (Tenn. Crim. App. 2000) (upholding application of Drug Free School Zone Act to conduct occurring outside of normal school hours); Martin v. Beer Board, 908 S.W.2d 941, 955 (Tenn. Ct. App. 1995) (upholding local restrictions on the sale of alcohol on Sundays). However, on at least one occasion, our supreme court has found government action to fall short of this basic requirement. See Doe v. Norris,   751   S.W.2d   834,   840   (Tenn.   1988)   (holding   that   “the commingling of status offenders with delinquent children in secure penal facilities operated for delinquent children was not rationally related to a legitimate government purpose”  and  therefore  was  a  “practice  [that]  violate[d]  the  principles  of  substantive due process”). Our  supreme  court  has  recognized  that  “the  Legislature  has  the  authority  to  enact   laws   for   the   public   safety,   comfort   and   welfare.”     Riggs, 941 S.W.2d at 51. Because criminal laws fall squarely within this domain, see State v. Wyrick, 62 S.W.3d 751, 792 (Tenn. Crim. App. 2001) (citing Motlow v. State, 145 S.W. 177, 183 (1912)), we have no trouble concluding (and the defendants do not contest) that proscribing harmful street gang activity is a proper legislative purpose. The material inquiry in this case is whether Section 40-35-121(b) is reasonably related to that legislative purpose. Under a meansend   review,   “specific   evidence   is   not   necessary   to   show   the   relationship   between   the   statute  and  its  purposes.”    Riggs, 941 S.W.2d at 52 (citing Newton, 878 S.W.2d at 110). The court in O.C. held that the gang statute in that case was not reasonably related to a -43- legitimate legislative purpose because it lacked a nexus between the underlying criminal activity and gang affiliation. We note that the statute struck down in that case was strikingly similar to Section 40-35-121(b). Like the statute in O.C., Section 40-35-121(b) does not contain a nexus requirement. After careful consideration, we have concluded that such an omission is constitutionally fatal. It simply cannot be maintained that a statute ostensibly intended to deter gang-related criminal conduct through enhanced sentencing is reasonably related to that purpose where the statute in question is completely devoid of language requiring that the underlying offense be somehow gangrelated before the sentencing enhancement is applied. Without a nexus requirement, Section 40-35-121(b) directly advances only the objective of harsher treatment of criminal offenders who also happen to be members of a criminal gang. Because Section 40-35-121(b) fails to even obtusely target gang-related criminal activity, it lacks a reasonable relationship to achieving the legitimate legislative purpose of deterring criminal gang activity and therefore violates the principles of substantive due process. Additionally,   we   also   agree   with   the   defendants’   guilt   by   association   argument   based on Scales v. United States, 367 U.S. 203 (1961). In that case, the Supreme Court of the United States provided an insightful discussion of the limitations imposed on governmental police power by the constitutional protections of due process. The Court declared: In our jurisprudence guilt is personal, and when the imposition of punishment on a status or on conduct can only be justified by reference to the relationship of that status or conduct to other concededly criminal activity . . ., that relationship must be sufficiently substantial to satisfy the concept of personal guilt in order to withstand attack under the Due Process Clause . . . . Id. at 224-25. Examining a federal law that criminalized knowing membership in “any   organization which advocates the overthrow of the Government of the United States by force   or   violence,”   id. at 205, the Court concluded that the requirements of the Due Process  Clause  were  satisfied  “when  the  statute  is  found  to  reach  only  ‘active’  members   having also a guilty knowledge and intent, and which therefore prevents a conviction on what otherwise might be regarded as merely an expression of sympathy with the alleged criminal enterprise, unaccompanied by any significant action in its support or any commitment   to   undertake   such   action,”   id. at 228. In reaching its decision, the Court observed: -44- It must indeed be recognized that a person who merely becomes a member of   an   illegal   organization,   by   that   ‘act’   alone   need   be   doing   nothing   more   than signifying his assent to its purposes and activities on one hand, and providing, on the other, only the sort of moral encouragement which comes from the knowledge that others believe in what the organization is doing. It may indeed be argued that such assent and encouragement do fall short of the concrete, practical impetus given to a criminal enterprise which is lent for instance by a commitment on the part of a conspirator to act in furtherance of that enterprise. A member, as distinguished from a conspirator, may indicate his approval of a criminal enterprise by the very fact of his membership without thereby necessarily committing himself to further it by any act or course of conduct whatever. Id. at 227-28. We believe that Section 40-35-121(b) runs afoul of the bounds of due process delineated in Scales because it imposes mandatory criminal punishment based on the criminal conduct of others. Without a nexus requirement that the underlying offense be gang-related, Section 40-35-121(b) is untethered to any personal criminal intent or conduct by the defendant. There is no Tennessee law prohibiting membership or affiliation with a criminal gang as defined in Section 40-35-121.     Thus,   a   defendant’s   affiliation with such a group is statutorily permissible and innocuous until it is joined with otherwise criminal conduct. However, Section 40-35-121(b) imposes mandatory punishment on an eligible defendant by imputing to him responsibility for the criminal activity   of   the   gang   as   a   collective   without   requiring   the   defendant’s   knowledge   of   and   intent to promote such activity. We simply cannot believe that the concept of personal guilt articulated in Scales tolerates such an attenuated basis for criminal punishment. Indeed, a literal reading of the statute reveals that the scope of its potential application is startling, also posing an increased risk of arbitrary application.10 10 As written on May 30, 2012, a defendant who happened to be a member of a college Greek organization with at least a three person membership, see T.C.A. § 40-35-121(a)(1), and he or she wears the  organization’s  colors  and  letters  or  appears  in  club  photos,  see T.C.A. § 40-35-121(a)(2)(D)(G), could be subject to a gang enhanced sentence if convicted of a minor criminal offense, wholly unrelated to the organization. If the organization happens to engage in activities which are criminal acts, see T.C.A. § 4035-121(a)(1)(A) (e.g., underage drinking or hazing), and unbeknown to the defendant, at least two other members of the organization have been convicted of a combination of offenses designated as a pattern of criminal gang activity, with no nexus to the organization (e.g., threatening a simple assault), see T.C.A. § 40-35-121(a)(1)(B), (a)(3)(A)(i), & (a)(4)(ii), Section 40-35-121(b) can come into play. Officers in such organizations need to be particularly alert. See T.C.A. § 40-35-121(e). The 2013 amendment did little to change this scenario. It clarified and expanded what is considered a criminal gang offense, enumerating -45- We note that Section 40-35-121(b) purportedly imposes a sentence enhancement rather than an independent criminal offense as in Scales. However, we believe that distinction to be inconsequential. Section 40-35-121(b) imposes mandatory criminal punishment wholly aside from any consideration of the nature of the underlying offense, of the previous criminal history of the offender, or of how gang affiliation increases the future threat to society posed by the offender. Cf. Dawson v. Delaware, 503 U.S. 159, 166-67 (1992) (holding that the First Amendment prohibited introduction of the fact of a convicted   defendant’s   mere   membership   in   the   Aryan   Brotherhood   without   additional   evidence that the gang affiliation was relevant to help prove an aggravating circumstance at the sentencing hearing). Instead, the statute enhances punishment solely on the mere fact   of   one’s   affiliation with a gang which makes it easily distinguishable from other discretionary sentencing enhancement factors that are relevant for reaching a personalized sentencing decision. Many states have statutes specifically targeting gang-related crimes, and many state courts have upheld their gang enhancement statutes against constitutional challenges. See, e.g., Rodriguez v. State, 671 S.E.2d 497 (Ga. 2009); People v. Gardeley, 927 P.2d 713 (Cal. 1996). However, Section 40-35-121(b), like the statute in O.C., is uniquely distinguishable from other statutes that have survived constitutional challenges because it lacks a textual basis conditioning enhanced punishment on gang-related criminal conduct by the defendant. Cf. Rodriguez, 671 S.E.2d at 503 (holding that Georgia’s   gang   statute   did   not   violate   due   process   or   the   First  Amendment   because   the   statute required participation in the commission of a criminal act and did not punishment gang membership alone); State v. Williams, 773 N.E.2d 1107, 1112 (Ohio Ct. App. 2002) (holding   that   Ohio’s   gang   statute   did   not   “impermissibly   establish   guilt   by   association   alone”   because   it   “requires that the active member with guilty knowledge has specific intent   or   purpose   to   further   the   group’s   criminal   conduct   before   they   may   be   prosecuted”);;  Klein v. State, 698 N.E.2d 296 (Ind. 1998) (upholding gang statute where “[m]embership  in  a  gang,  by  itself, does not provide the basis for prosecution for criminal gang  activity”); Gardeley,  927  P.2d  at  725  (observing  that  California’s  “STEP  Act  does   not criminalize mere gang membership; rather it imposes increased criminal penalties only when the criminal conduct  is  felonious  and  committed  not  only  ‘for  the  benefit  of,  at   the   direction   of,   or   in   association   with’   a   group   that   meets   the   specific   statutory   conditions  of  a  ‘criminal  street  gang,’  but  also  with  the  ‘specific  intent  to  promote,  further   some twenty-seven specific crimes. Interestingly, several misdemeanors remain on the list. See T.C.A. § 40-35-121(a)(3)(B). -46- or assist in   any   criminal   conduct   by   gang   members’”).11 Nearly all gang enhancement statutes in this country contain specific language limiting the reach of those statutes only to   offenses   that   possess   a   nexus   to   a   defendant’s   gang   affiliation, and therefore, a defendant’s  own  criminal  conduct. See, e.g., Cal. Penal Code § 186.22(b)(1) (enhancing a   felony   “committed   for   the   benefit   of,   at   the   direction   of,   or   in   association   with   any   criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct  by  gang  members”);;  D.C. Code § 22-951(b)(1) (making  it  a  crime  to  “knowingly   and willfully participate in any felony or violent misdemeanor committed for the benefit of, at the direction of, or in association with any other member or participant of that criminal   street   gang”);;   Ga. Code Ann. § 16-15-4(b) (enhancing punishment for enumerated   offenses   committed   “with   the   intent   to   obtain   or   earn   membership   or   maintain  or  increase  .  .  .  status  or  position  in  a  criminal  street  gang”);;  Idaho Code Ann. § 18-8503 (enhancing  punishment  for  enumerated  offenses  “committed for the benefit or at the   direction   of,   or   in   association   with,   any   criminal   street   gang   member”);;   Ind. Code Ann. § 35-50-2-15(b) (enhancing punishment for a felony committed by a gang member “at  the  direction  of  or  in  affiliation  with  a  criminal  gang[, or] with the intent to benefit, promote, or further the interests of a criminal gang, or for the purposes of increasing the person’s   own   standing   or   position   with   a   criminal   gang”);;   La. Rev. Stat. Ann. § 15:1403(B) (enhancing punishment for a felony “committed   for   the   benefit   of,   at   the   direction of, or in association with any criminal street gang, with the intent to promote, further,  or  assist  in  the  affairs  of  a  criminal  gang”);;  Mich. Comp. Laws Ann. § 750.411u (enhancing   punishment   when   a   person   “who is an associate or a member of a gang commits   a   felony   or   attempts   to   commit   a   felony   and   the   person’s   association   or   membership in the gang provides the motive, means, or opportunity to commit the felony, the  person  is  guilty   of  a  felony”);;   see also Fla. Stat. Ann. § 874.04; Iowa Code Ann. § 723A.2; Minn. Stat. Ann. § 609.229; Miss. Code Ann. § 97-44-19; Mo. Ann. Stat. § 578.425; Nev. Rev. Stat. Ann. § 193.168; Tex. Penal Code Ann. § 71.02; Utah Code Ann. § 76-3-203.1; Va. Code Ann. § 18.2-46.2. As a matter of clarification, we emphasize that the defendants have not alleged that Section 40-35-121(b) violates a fundamental right to expressive association with a criminal street gang, but we are aware that there are arguably additional First Amendment 11 See also State v. Ochoa, 943 P.2d 814 (Ariz. Ct. App. 1997); State v. Baldenegro, 932 P.2d 275 (Ariz. Ct. App. 1996); Helton v. State, 624 N.E.2d 499, 508-09 (Ind. Ct. App. 1993); State v. Woodbridge, 791 N.E.2d 1035 (Ohio Ct. App. 2003); State v. Rushton, 785 N.E.2d 654 (Ohio Ct. App. 2003); State v. Bennett, 782 N.E.2d 101 (Ohio Ct. App. 2002); State v. Stallings, 778 N.E.2d 1110 (Ohio Ct. App. 2002). -47- implications.12 Because the defendants have not approached their due process challenge from this angle, we make no decision on whether First Amendment protection exists for such  an  association.    Tenn.  R.  App.  P.  13(b)  (“Review  generally  will  extend  only  to those issues  presented  for  review.”). We   turn   now   to   the   State’s   argument   that   Section 40-35-121(b) was constitutionally applied to the defendants in this case because the evidence established that the underlying offenses were gang-related. We disagree. “In contrast to a facial challenge, which involves the constitutionality of the statute as written, an as applied challenge to the constitutionality of a statute is evaluated considering how it operates in practice against the particular litigant and under the facts of the instant case, not hypothetical   facts   in   other   situations.”     State v. Crank, 468 S.W.3d 15, 24 n.5 (Tenn. 2015) (quoting City of Memphis v. Hargett, 414 S.W.3d 88, 107 (Tenn. 2013)) (internal quotations omitted). A statute is unconstitutional   on   its   face   when   “no   set   of   circumstances   exists   under   which   the   statute,   as   written,   would   be   valid.”     Waters, 291 S.W.3d at 882. In this case, as it would be in any other case, Section 40-35-121(b) 12 The defendants did not raise a First Amendment argument to the court below and have not properly raised one in this Court either. Although some of their filings make offhand suggestions that the statute is overbroad, this argument was never developed, and the defendants have not otherwise argued that Section 40-35-121(b) infringes their right to expressive association under the First Amendment. See Tenn.  Ct.  Crim.  App.  R.  10(b)  (“Issues  which  are  not  supported  by  argument,  citation  to  authorities,  or   appropriate   references   to   the   record   will   be   treated   as   waived   in   this   court.”).     However,   we   take   this   opportunity to note that the scope of associational rights for gang members under the First Amendment is far from clear. See, e.g., Beth Bjerregaard, The Constitutionality of Anti-Gang Legislation, 21 Campbell L. Rev. 31, 36-37 (1998) (identifying disagreement among commentators and case law). Compare Scales,  367  U.S.  at  229  (commenting  that  “[i]f  there  were  a  .  .  .  blanket  prohibition  of  association  with  a group having both legal and illegal aims, there would indeed be a real danger that legitimate political expression  or  association  would  be  impaired”)  with Roberts v. United States Jaycees, 468 U.S. 609, 620 (1984) (acknowledging a constitutionally protected   freedom   of   association   for   “intimate   human   relationships”  as  “a  fundamental  element  of  personal  liberty”  and  also  “a  right  to  associate  for  the  purpose   of engaging in those activities protected by the First Amendment—speech, assembly, petition for the redress   of   grievances,   and   the   exercise   of   religion”)   and City of Chicago v. Morales, 527 U.S. 41, 53 (1999)  (plurality  opinion)  (commenting  that  the  “impact”  of  the  anti-gang  loitering  statute  before  it  “on   the social contact between gang members and others   does   not   impair   the   First   Amendment   ‘right   of   association’  that  [previous]  cases  have  recognized”  (citing  Dallas v. Stanglin, 490 U.S. 19, 23-25 (1989))) and Rumsfeld v. F.A.I.R.,   547   U.S.   47,   68   (2006)   (“We   have   recognized   a   First   Amendment   right   to   associate  for  the  purpose  of  speaking,  which  we  have  termed  a  ‘right  of  expressive  association’”  (citing   Boy Scouts of America v. Dale, 530 U.S. 640, 644 (2000)). At least one case has expressly held that the First Amendment generally does not afford associational protection to gang members. People ex rel. Gallo v. Acuna, 929 P.2d 596, 608-09 (Cal. 1997) (holding that a civil injunction forbidding gang members from publicly appearing with other gang members in a particular neighborhood did not implicate any associational protections of the First Amendment). -48- unconstitutionally imposes criminal punishment for  the  defendants’  mere  affiliation  with   the  Five  Deuce  Hoover  Crips.    Because  the  statute’s  text  lacks  a  nexus  requirement,  the   defendants’   sentences   were   not   enhanced   because   they   committed   gang-related crimes; instead, the defendants’ sentences were enhanced because other individuals with whom they have a connection have previously engaged in criminal activity and have a history of criminal convictions. Although   we   sympathize   with   the   State’s   argument   because   it   is   amply apparent that the underlying offenses in this case were gang-related, we refuse to read a nexus requirement into the statute to eliminate its constitutional shortcomings. We respect the General  Assembly’s  efforts  to  combat  the  scourge  of  criminal  gang  activity  in  our  state,   but it is not within our authority to rewrite this statute. We must now look to the question of severability of Section 40-35-121(b). New York v. United States, 505 U.S. 144, 186 (1992). “Severability  is  of  course  a   matter   of   state   law.”     Leavitt v. Jane L., 518 U.S.   137,   139   (1996).     “Under   the   doctrine of elision, a court may, under appropriate circumstances and in keeping with the expressed intent of a legislative body, elide an unconstitutional portion of a statute and find the remaining provisions to be constitutional   and   effective.”     Lowe’s   Companies,   Inc.   v.   Cardwell,   813   S.W.2d   428,   430   (Tenn.   1991).     “The   doctrine  of  elision  is  not  favored,”  Gibson Cty. Special Sch. Dist. v. Palmer, 691 S.W.2d 544, 551 (Tenn. 1985) (citing Smith v. City of Pigeon Forge, 600 S.W.2d 231 (1980)),”   and   “Tennessee   law   permits   severance   only   when   ‘it   is   made   to   appear from the face of the statute that the legislature would have enacted it with the   objectionable   features   omitted,’”   Memphis Planned Parenthood, Inc. v. Sundquist, 175 F.3d 456, 466 (6th Cir. 1999) (citing State v. Harmon, 882 S.W.2d 352,  355  (Tenn.  1994)).    “In  determining  whether  a  provision  should  be  severed,   the   proper   inquiry   is   whether   the   legislature   “would   choose,   on   the   one   hand,   having no [Code section 40-35-121] at all and, on the other, passing [Code section 40-35-121]  without”  subsection  (b).    Memphis Planned Parenthood, Inc., 175 F.3d at 466. “The inclusion of a severability clause in the statute has been held by this Court to evidence an intent on the part of the legislature to have the valid parts of the statute in force if some other portion of the statute has been declared unconstitutional.”     Gibson Cty. Special Sch. Dist., 691 S.W.2d at 551 (citing Catlett v. State, 336 S.W.2d 8 (1960)). Although Section 40-35-121 does not contain a specific severability clause, the Code does include a general severability provision: -49- It is hereby declared that the sections, clauses, sentences and parts of the Tennessee Code are severable, are not matters of mutual essential inducement, and any of them shall be exscinded if the code would otherwise be unconstitutional or ineffective. If any one (1) or more sections, clauses, sentences or parts shall for any reason be questioned in any court, and shall be adjudged unconstitutional or invalid, such judgment shall not affect, impair or invalidate the remaining provisions thereof, but shall be confined in its operation to the specific provision or provisions so held unconstitutional or invalid, and the inapplicability or invalidity of any section, clause, sentence or part in any one (1) or more instances shall not be taken to affect or prejudice in any way its applicability or validity in any other instance. T.C.A. § 1-3-110. “This  legislative  endorsement  of  elision  ‘does  not  automatically  make   it applicable to every situation; however, when a conclusion can be reached that the legislature would have enacted the act in question with the unconstitutional portion omitted, then elision  of  the  unconstitutional  portion  is  appropriate.’”    State v. Crank, 468 S.W.3d 15, 29 (Tenn. 2015) (quoting In re Swanson, 2 S.W.3d 180, 189 (Tenn. 1999)). Under the same analysis of section (b) above, Section 40-35-121(e) also fails for lack of a nexus.13 When read in conjunction with subsections (b) and (e), subsections (a)(1), (2), (3) and (4) violate the constitutional principles of due process. However, subsection (c) contains the necessary nexus language ( “.  .  .  for the purpose of and with the intent to .  .  .”) (emphasis added) and thus meets the constitutional requirement of due process.14 Furthermore, when read in conjunction with subsection (c), subsection (a) and all its subparts meet due process requirements. As near as one body can reason the collective minds of another body, we believe the legislature would choose the survival of subsection(c) and the remaining provisions of Section 40-35-121 as opposed to the death of the entire statute. The statutory scheme 13 “A  criminal  gang  offense  committed  by  a  defendant  who  was  a  criminal  gang  member  at  the   time of the offense shall be punished two (2) classifications higher than the classification established by the specific statute creating the offense committed if the criminal gang member was also a leader or organizer  of  the  criminal  gang  at  the  time  the  offense  was  committed.”    T.C.A.  §  40-35-121(e). 14 “A  criminal  gang  offense  committed  by  a  defendant  who  was  not  a criminal gang member at the time of the offense but who committed the offense for the purpose of and with the intent to fulfill an initiation or other requirement for joining a criminal gang as defined in subdivision (a)(1) shall be punished one (1) classification higher than the classification established by the specific statute creating the  offense  committed.”    T.C.A.  §  40-35-121(c). -50- allows Section 40-35-121(c) to operate independently from subsections (b) and (e). Because the latter provisions are not interwoven with the statutory mechanics of subsection (c), this statute is unlike previous statutes that have been wholly invalidated where the unconstitutional portion affects the substantive nature or scope of the remaining provisions. See, e.g., State v. Tester, 879 S.W.2d 823, (Tenn. 1994) (refusing to apply the doctrine of elision where resulting statutory scheme would apply statewide rather than to only three counties); Frost v. City of Chattanooga, 488 S.W.2d 370 (Tenn. 1972) (“To   elide   the   [unconstitutional]   provisions  .   .   .   defining  the   category   of   affected   municipalities would result in an incomplete statute. Either all municipalities would be included or this Court would be faced with the problem of establishing a class of municipalities  that  accords  with  state  law.”). So, likewise, subsection (a) would survive when applied in conjunction with subsection (c) and the remaining provisions. Therefore, we conclude that Section 40-35-121(b) and Section 40-35-121(e) may be permissively elided, and the remainder of Section 40-35-121 remains effective. 4. Cruel and Unusual Punishment Defendants Bonds, Bishop, and Sullivan also argue that Section 40-35-121 violates that Eighth Amendment’s  prohibition  of  cruel  and  unusual  punishment  because  it offends the contemporary standards of decency and because it results in a sentence that is grossly disproportionate to the crime. We note that other states have rejected Eighth Amendment challenges to sentences imposed under gang enhancement statutes, see, e.g., Armstrong v. State, 22 N.E.3d 629, 639 (Ind. Ct. App. 2014) (noting that the defendant “does   not   point   to   any   authority   holding   that   a   sentence   based   upon a criminal gang enhancement  statute  is  unconstitutional  under  the  Eighth  Amendment”), and we likewise have no trouble concluding that Section 40-35-121’s   imposition   of   heightened punishment for gang-related offenses by increasing the sentencing range of the offense does not offend the proportionality requirements of the Eighth Amendment. The defendants are not entitled to relief on this basis. 6. Closing Argument Defendants Bonds, Bishop, and Sullivan argue that the trial court erred in denying them the opportunity to make closing arguments to the jury before it decided the gang enhancement charges. Because we have already concluded above that this phase of the trial was not merely a sentencing hearing, we agree that the State and the defendants should have been permitted to make closing arguments to the jury. See Tenn. R. Crim. P. 29.1. 7. Sufficiency of Evidence for the Third Phase – Gang Offense Enhancement -51- Lastly, Defendants Bonds, Bishop, and Sullivan argue that their convictions under Section 40-35-121(b) were not supported by sufficient evidence. We disagree. The State relied on the evidence presented during the first phase of the trial to prove that the underlying offenses were criminal gang offenses as defined by Section 4035-121(a)(3)(A)(i). As recounted above, the evidence clearly established that the defendants perpetrated the underlying criminal offenses of attempted second degree murder, aggravated assault, and possession of a firearm during the commission of a dangerous felony while knowingly causing bodily injury to another person. They beat the victim to within an inch of his life. This conduct satisfied the statutory definition of a criminal gang offense. The State also introduced ample evidence that Defendants Bonds, Bishop, and Sullivan were each members of a criminal gang known as the Five Deuce Hoover Crips. During the first phase of the trial, the victim, a former member of the gang, identified each of the defendants as gang members, satisfying Section 40-35-121(a)(2)(C). Detective Walker testified that Defendant Bonds was arrested as a juvenile for participating  in  a  “gang  beat  in”  of  a  gang  initiate and had also been recently arrested for reckless  endangerment  during  which  he  had  been  witnessed  shouting  “Fifty-two Hoover”   before shots were fired from a car. Both of these facts would satisfy Section 40-35121(a)(2)(F). Defendant   Bonds   also   has   “Fifty-Two   Hoover”   tattooed   on   his   right   arm   and  “Five  Two”  on  his  neck  with  a  star, which would satisfy Section 40-35-121(a)(2)(D). Detective Walker testified that Defendant Bishop had been confirmed as a gang member by  the  Sheriff’s  Office  because  “he  did  graffiti  inside  of  [the]  jail,  wearing  gang  colors,   known gang association of known gang members, felony criminal history, arrested on a violent crime, confirmed through an outside gang unit, and another weapons arrest.” Graffiti is physical evidence identifying him as a gang member which satisfies Section 40-35-121(a)(2)(G). Wearing gang colors satisfies Section 40-35-121(a)(2)(D). Detective Walker testified that Defendant Sullivan was  confirmed  by  the  Sheriff’s  Office   as   a   gang   member   because   “he   had   points   for   graffiti,   known   gang   association   with   known gang members, felony criminal history, outside jurisdictional information from a confirmed source, arrested on a violent crime, gang-specific brands or tattoos, and named as a gang member in correspondence.” Based  on  the  victim’s  testimony  and  the  testimony  of  Detective  Walker,  a  criminal   gang expert familiar with the Five Deuce Hoover Crips, it was plainly apparent that the Five Deuce Hoover Crips boasts membership of three or more people as required by Section 40-35-121(a)(1); there were four members on trial, the victim was a member at the time of the offenses, and numerous other individuals were determined by the  Sheriff’s   -52- Office to be members based on the contents of the gang file, which we will not regurgitate here. Detective Walker testified that the activities of the Five Deuce Hoover Crips has included committing crimes such as “drug   dealing   mostly,   robberies,   agg[ravated] assaults, attempted murder, stuff like that,” which satisfies the requirement of Section 40-35-121(a)(1)(A). To prove that two or more of the members of the Five Deuce Hoover Crips have engaged   in   a   “pattern   of   criminal   gang   activity”   as   required   by   Section 40-35121(a)(1)(B), the State introduced certified judgments of convictions for other gang members, for felonies such as possession of a controlled substance with intent to sell, attempted possession of a controlled substance with intent to sell, aggravated assault, facilitation to commit aggravated robbery, aggravated burglary, and attempted aggravated burglary. The requirements of the statute were satisfied because there were judgments for three drug-related felony convictions15 which occurred on different occasions within a period of five years and which were committed by at least two individuals as required by the statute.16 Section 40-35-121(a)(3)(A)(ii) defines an eligible criminal gang offense as any   crime   that   “results,   or   was   intended   to   result,   in   the   defendant’s   receiving   income,   benefit, property, money or anything of value . . . from the illegal sale . . . of a controlled substance  .  .  .  .” 15 Bekweri William Bost was convicted of possession of cocaine not over .5 grams with intent to sell, which was committed on September 24, 2005. James H. Coney was convicted of attempted possession of cocaine with intent to sell, which was committed on June 27, 2006. Adrian Dezekiel Thomas was convicted of possession of cocaine over .5 grams with intent to sell, which was committed on February 1, 2008. 16 Although  the  statute’s  definition  of  a  pattern  of  criminal  gang  activity  only  requires  a  minimum   of two different eligible felonies committed by two different gang members to satisfy its criteria, the State entered into evidence more convictions than required. We note that the judgments for at least some of the non-drug-related offenses may not have constituted legally sufficient proof under the statute. For crimes committed prior to July 1, 2013, Section 40-35-121(a)(3)(A)(i) defines a criminal gang offense as any criminal   offense   “[d]uring   the   perpetration   of   which   the   defendant   knowingly   causes,   or   threatens   to   cause,  death  or  bodily  injury  to  another  person.”    It  appears  to  us  that  a  mere  judgment  form  would  be   inadequate proof that its underlying felony was perpetrated in a manner that entailed the causing or threatening of death or bodily injury, unless the elements of the crime necessarily encompassed such conduct. For example, as currently written, one could commit aggravated assault with a reckless mens rea, but that degree of mental awareness would not support Section 40-35-121(a)(3)(A)(i)’s  requirement   that  the  crime  be  committed  knowingly.    It’s  also  quite  simple  to  conceive  of  a  hypothetical  where  one   could commit aggravated burglary, i.e., the entering of a habitation with the intent to commit a felony, without ever threatening or causing death or bodily injury and without ever intending to receive anything of value from the trespass. Such a problem would not arise however, for crimes committed after July 1, 2013, because Section 40-35-121(a)(3)(B) simply enumerates the eligible criminal offenses without any qualifying language that would require proof of the facts of the underlying crime. -53- Therefore, the evidence was sufficient for a rational jury to find beyond a reasonable doubt that the defendants were members of a criminal gang, as defined by statute, and that they committed a criminal gang offense, as defined by statute. They are not entitled to relief on this issue. C. Sentencing Defendant Bishop argues that the trial court erred by finding that his criminal history made him a multiple offender subject to Range II sentencing. Defendant Sullivan argues that the trial court abused its discretion by ordering him to serve an excessive sentence. Each of these arguments has been rendered moot by the foregoing conclusions, but we will address them anyway to facilitate additional appellate review. 1. Offender Classification Tennessee Code Annotated section 40-35-106 classifies a defendant as a multiple offender   if   he   has   a   “minimum   of   two   (2)   but   not   more   than   four   (4)   prior   felony   convictions within the conviction class, a higher class, or within the next two (2) lower felony   classes.” For purposes of this section, generally, each conviction must not have occurred during the same twenty-four-hour period. At the sentencing hearing on July 25, 2013, the State introduced the presentence investigation reports into evidence. The State also asked the trial court to take notice of the certified judgments for three federal convictions of drug-related crimes committed by Defendant Bishop, which were introduced during the second phase of the trial on the felon in possession of a firearm charge. After hearing argument from counsel, the trial court determined that Defendant Bishop was a Range II, multiple offender and sentenced him to thirty-two years for the attempted murder, to fifteen years for the aggravated assault, and to five years for the possession of a firearm. The first two sentences were run concurrently, but the third sentence was run consecutively to the attempted murder sentence by operation of statute. The State entered a single certified judgment from the District Court of the United States for the Eastern District of Tennessee. That judgment showed that Defendant Bishop pled guilty to three offenses: possession with intent to distribute five grams or more of cocaine base, carrying a firearm during and in relation to a drug trafficking crime, and possession within intent to distribute cocaine base. The same offense date of May 26, 2001, is listed for the first two convictions, and the offense date of January 19, 2001, is listed for the third conviction. Aside from the firearm conviction, the two -54- separate drug convictions are sufficient to make Defendant Bishop a multiple offender because they occurred on different days. In his appellate brief, Defendant Bishop makes a passing assertion that the trial court   “neglected   to   determine   both   whether   the   convictions   .   .   .   were   ‘within the conviction  class,  a  higher  class,  or  within  the  next  two  (2)  lower  felony  classes.’”    Section 40-35-106(b)(5)   states   that   “[i]n   the   event   that   a   felony   from   a   jurisdiction   other   than   Tennessee is not a named felony in this state, the elements of the offense shall be used by the  Tennessee  court  to  determine  what  classification  the  offense  is  given.”    Although  the   trial court did not expressly consider whether the federal convictions had Tennessee analogues, Defendant Bishop has not suggested or shown that there was any violation of the statute by utilizing those convictions to establish his offender classification. Defendant Bishop bears the burden of showing that his sentence is improper. State v. Cooper, 321 S.W.3d 501, 505 (Tenn. 2010). Accordingly, he is not entitled to relief. 2. Excessiveness When a defendant challenges the length or manner of service of a within-range sentence,   this   Court   reviews   the   trial   court’s   sentencing   decision   under   an   abuse   of   discretion standard with a presumption of reasonableness. State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012); State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). This presumption   applies   to   “within-range sentencing decisions that reflect a proper application  of  the  purposes  and  principles  of  the  Sentencing  Act.”     Bise, 380 S.W.3d at 707.    A  trial  court  abuses  its  discretion  in  sentencing  when  it  “applie[s] an incorrect legal standard, or reache[s] a decision which is against logic or reasoning that cause[s] an injustice  to  the   party  complaining.”     State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997) (citing Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996)). This deferential standard does not permit an appellate court to substitute its judgment for that of the trial court. Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn. 1998). Our  supreme  court  has  “continued  to  emphasize  the  need  for  trial  courts  to  ‘place   on the record, either orally or in writing, what enhancement or mitigating factors were considered, if any, as well as the reasons for the sentence, in order to ensure fair and consistent  sentencing.’”    State v. King, 432 S.W.3d 316, 322 (Tenn. 2014) (quoting Bise, 380 S.W.3d at 705-06 n.41). Additionally,  the  sentence  imposed  “should  be  no  greater   than   that   deserved   for   the   offense   committed”   and   also   “should   be   the   least   severe   measure  necessary  to  achieve  the  purposes  for  which  the  sentence  is  imposed.”    T.C.A. § 40-35-103(2), (4). -55- Based on his criminal history, the trial court found Defendant Sullivan to be a multiple offender. He received a thirty-five-year sentence for the attempted murder, eighteen years for the aggravated assault, and five years for the possession of a firearm. The first two sentences were run concurrently, and the last sentence and the first sentence were run consecutively. During its consideration, the trial court identified five enhancing factors. Because Defendant Sullivan had numerous misdemeanor convictions and one additional felony conviction, the trial court found that he had a previous criminal history in addition to that necessary to establish the sentencing range. See T.C.A. § 40-35-114(1). The trial court also found that the injuries inflicted upon the victim were particularly great given their life-threatening   severity   and   crippling   impact   on   the   victim’s   life. See T.C.A. § 40-35114(6). The trial court found that previous attempts at alternative sentencing involving release into the community had failed because   Defendant   Sullivan’s   criminal   record included multiple probation violations and a history of misconduct even while in custody. See T.C.A. § 40-35-114(8). The trial court noted that Defendant Sullivan possessed a firearm during the commission of the charged offense. See T.C.A. § 40-35-114(9). And lastly, the trial court found that the charged offense resulted in serious bodily injury and Defendant Sullivan already had been previously convicted of a felony that resulted in serious bodily injury. See T.C.A. § 40-35-114(11). After reviewing the record, we determine that the trial court did not abuse its discretion in sentencing Defendant Sullivan. The trial court clearly identified each enhancing factor upon which it relied and explained why each was applicable. Defendant Sullivan complains that the trial court did not explain how much weight it was placing on each factor, but nothing in the record suggests that the trial court placed undue emphasis on   an   improper   factor.     We   are   satisfied   that   Defendant   Sullivan’s   sentences   comport with the purposes and principles of our sentencing scheme and are not excessive. See T.C.A. §§ 40-35-102, -103. He is not entitled to relief on this basis. III. Conclusion Because there was no error during the guilt phase of the trial on the defendants’   underlying convictions for attempted second degree murder, aggravated assault, and possession of a firearm during the commission of a dangerous felony, those convictions are affirmed. Accordingly,   the   trial   court’s   judgments   as   to   Defendant   Robinson are affirmed. However, because Tennessee Code Annotated section 40-35-121(b) violates the Due Process Clause of the Fourteenth Amendment for lack of a nexus requirement between the underlying offenses and the gang affiliation of Defendants Bonds, Bishop, and Sullivan, their criminal gang enhancements are vacated, their judgments are reversed, -56- and the case is remanded to the trial court for modification of the judgments and a new sentencing hearing based solely on the underlying offenses. _________________________________ TIMOTHY L. EASTER, JUDGE -57-