        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                  March 5, 2013 Session

            STATE OF TENNESSEE v. JACOB ANDREW BROWN

                     Appeal from the Circuit Court for Tipton County
                          No. 6861    Joseph H. Walker, Judge

                   No. W2012-01297-CCA-R3-CD - Filed August 7, 2013

On January 18, 2011, Ed and Bertha Walker were found beaten to death in their home. In
March 2011, Appellant, Jacob Andrew Brown, was indicted by the Tipton County Grand
Jury for two counts of premeditated first degree murder, two counts of felony murder, and
two counts of especially aggravated burglary. Appellant was sixteen at the time the crimes
were committed. The juvenile court held a transfer hearing and determined that Appellant
should be tried as an adult in the circuit court. At the conclusion of a jury trial, Appellant
was found guilty of each count. The trial court merged the two felony murder convictions
into the two premeditated first degree murder convictions and merged one especially
aggravated burglary charge into the other. Appellant was sentenced to life without parole
for the two murder convictions and eight years to be served at 100% for the especially
aggravated burglary conviction. The trial court ordered that all the sentences were to be
served consecutively. On appeal, Appellant argues that the juvenile court improperly
determined that his case should be transferred to the circuit court and that the evidence was
insufficient to support his convictions. After a thorough review of the record, we conclude
that Appellant cannot succeed on these issues. However, because the death of the victim is
the serious bodily injury upon which his especially aggravated burglary convictions are
based, we remand to the trial court for entry of a judgment reflecting a modified conviction
of aggravated burglary and for re-sentencing.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Trial Court are Affirmed in
                      Part, Modified in Part, and Remanded.

J ERRY L. S MITH, J., delivered the opinion of the court, in which JOSEPH M. T IPTON, P.J., and
R OGER A. P AGE, J., joined.

Gary Antrican, District Public Defender and Davis S. Stockton, Assistant District Public
Defender, for the appellant, Jacob Andrew Brown.
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney
General; Michael Dunavant, District Attorney General, and James Walter Freeland, Jr., for
the appellee, State of Tennessee.

                                         OPINION

                                    Factual Background

        In March 2011, the Tipton County Grand Jury indicted Appellant for two counts of
premeditated first degree murder, two counts of felony murder, and two counts of especially
aggravated burglary. The State filed a petition on January 24, 2011, to transfer Appellant
from juvenile court to circuit court. The juvenile court held a hearing on March 3, 2011 and
concluded that Appellant should be tried in circuit court. On January 17, 2012, Appellant’s
jury trial began in circuit court.

        On January 18, 2011, Jeremy Walker went to visit his grandparents, Ed and Bertha
Walker, who were 80 and 75 years old respectively. He arrived around 2:00 p.m. to get the
laundry that his grandmother had washed for him. However, when he arrived, he discovered
that the door was locked. This was very unusual. Jeremy told his aunt, Myra Millican, that
he had gone by his grandparents’ house and the door was locked. Ms. Millican had spoken
with Ms. Walker early that morning and again at 11:30 a.m. when the Walkers returned from
a doctor’s appointment. Ms. Millican called her parents, and they did not answer either their
landline or cellphone. At 5:00 p.m., Ms. Millican went to the Walker residence and opened
the door with her key. She found her mother on the floor and ran out of the house. A
neighbor, Randall Scott Locke, Sr., known as Randy, went into the house and reported that
“[s]omebody blew their heads off.” The police were called.

       William Blake Archer left school early on the date in question. He saw Appellant in
the school parking lot when he left between 10:30 and 11:00. Mr. Archer agreed to take
Appellant to the Locke house. On the way, they stopped at a “smoke shop” that sold drug
paraphernalia as well as tobacco products and “synthetic stuff.” Appellant gave Mr. Archer
money to purchase two packets of Charge, a substance labeled as “bath salts.” Appellant
snorted the Charge at the skate park, and Mr. Archer took him to the Locke house.

        Anita Hance is a mail carrier. On January 18, 2011, she delivered a certified letter to
Randall Scott Locke, Sr. The letter required a signature for delivery. When she got to the
Locke house, she found a sixteen- or seventeen-year-old boy in the backyard. He signed for
the letter. She said that her interaction with him was “normal.”

                                              -2-
       Brandon James Wilburn is a cable contractor for Millington Cable. On January 18,
2011, he was at Mr. Smith’s house to install internet service. While he was outside, he saw
Mr. Walker walk to his mailbox. He saw Mr. Walker speak to someone across the street, but
he could not see who it was or hear what he said. Mr. Wilburn saw Appellant at the Locke
house and saw him pacing on the front porch and walking around the backyard for thirty
minutes. He saw Appellant sitting with his head between his legs and grabbing his head.
Mr. Wilburn attempted to speak to Appellant, but Appellant did not answer.

       Earlier that day, Gary Smith, a neighbor of the victims, saw the victims when they
came home from the doctor’s office. He was home because the cable company was installing
some wiring for his computer. He saw Appellant in the Locke’s backyard. He did not know
Appellant’s name, but Mr. Smith recognized Appellant because he had seen him at the Locke
house on other occasions. Mr. Smith went over in the afternoon to see how the doctor’s
appointment went for the victims. No one answered the door. Mr. Smith also called their
landline and cellphone and no one answered. Around 5:30, he heard Ms. Millican screaming.
Mr. Smith ran into the victims’ house behind Mr. Locke and saw Mrs. Walker lying in the
dining room and Mr. Walker lying in the living room. Mr. Smith said they were very bloody
and thought that they had been shot.

       At trial, Mr. Smith testified that there had been conflicts between him and the Lockes
about their parking in the street and how they needed to rake their leaves. He said that he
believed they considered him “nosy.”

       Special Agent Mark Reynolds with the Tennessee Bureau of Investigation (“TBI”)
responded to a request by the district attorney’s office to help with the murder investigation
of the Walkers. When he arrived at the Walker house, he saw Mrs. Walker on the floor in
the breakfast area of the kitchen and Mr. Walker in the living room floor. He said Mr.
Walker was face down and that the back of his head was “busted open.” Agent Reynolds
saw a great deal of blood spatter around both of the bodies. He called the TBI’s violent
crime response team.

       As part of his investigation, Agent Reynolds spoke with Mr. Wilburn and Ms. Hance.
They told him about the young man at the Locke house. Agent Reynolds checked the school
records and discovered that Appellant had left school early that day. Appellant’s teachers
told Agent Reynolds that Appellant was good friends with Randall Scott Locke, Jr., known
as Scott.

        Scott Locke testified that he had been friends with Appellant for four years. A few
times he had complained about his “nosy neighbor” to Appellant, and Appellant said, “Let’s
go kill them.” Scott assumed that this was a joke. Appellant had spent the night with Scott

                                             -3-
the night before the day in question. Scott had taken Appellant to school. Appellant sent
Scott a text message informing Scott that he had found a ride from school. Appellant sent
Scott a text message later that said, “You wanted your nosy neighbors dead, right?” Scott
did not respond.

       Scott came home from school at 2:45. He found Appellant walking around his
backyard. Scott testified that Appellant was acting normally. They ran errands with Scott’s
mother and returned to the house. At some point that afternoon, Appellant told Scott that he
had killed the Walkers. Scott did not believe him. Appellant showed Scott the baseball bat
which had several “very heavy dents” in it, but he still did not believe him.

       After Scott’s father, Randy, came home, they heard a horrible scream outside. The
Walkers’ relatives were standing in the street screaming. Randy ran to the Walker house, and
when he returned, he said they were dead. Randy told Scott, Appellant and Appellant’s
brother, Lucas, that they needed to leave with their friend, Zach Douglass. They went to a
friend’s house and smoked marijuana and played video games. Appellant’s mother picked
them up and drove them to the Admiralty Inn in Millington. The following day, Randy
Locke informed Agent Reynolds that he had rented a motel room for Appellant, Lucas, and
Scott.

       Agent Reynolds, along with other law enforcement officers went to the hotel. They
found the three teenagers and Zach Douglass in one room, and Appellant’s mother in an
adjoining room. While in the hotel rooms, the officers saw a pair of shoes that appeared to
have blood on them. Appellant told the officers that the shoes were his. The officers also
took a pair of blue jeans that had a prescription for Appellant in the pocket.

       The occupants of the hotel rooms were taken to the Munford Police Department and
interviewed. Agent Reynolds and Munford Police Captain Randall Baskin interviewed
Appellant. Appellant waived his Miranda rights prior to the interview. Initially, Appellant
denied any involvement with the victims. Shortly after the Appellant’s initial statement,
Agent Reynolds received a phone call informing him that Appellant’s shoes, blue jeans and
jacket from the motel room tested positive for blood.

       When Agent Reynolds told Appellant that the forensics team would be collecting
evidence connecting him to the murders, he noticed a shift in Appellant’s demeanor. He
gave the following statement to Agent Reynolds:

             I left school between 12:30 p.m. and 1:00 p.m. I walked around the
       neighborhood near the ball fields. I walked through the graveyard and to the

                                            -4-
skate board park. I walked to Scott Locke’s house on Wiley. I don’t really
recall what time I got there. I sat at Scott’s house and played with the dogs and
walked around his porch. The house was locked, and I wasn’t able to get in.

       The mailman came up, and I signed for a package for Mr. Randy. I put
the package on the porch on the ledge. It wasn’t a package. It was just mail
you had to sign for.

       A little bit after I signed for the mail I walked over to the Walkers. I
went over to ask to use the restroom. I knocked on the door, and Mr. Walker
came to the door. I asked him if I could use his restroom. He let me in and
asked me if I was locked out of the house. I told him I was, and he said to
come on in, and he pointed to the direction of the restroom. I went and used
the restroom. I came out of the restroom and went to the living room and
talked to Mr. Walker. I told him he had a nice house. He was sitting in a
chair. I was standing.

       All of a sudden I became very angry. I don’t think he said anything that
would cause me to get angry. I said thanks and left. We did not argue or he
did not know I was angry. I walked across to Scott’s and got an aluminum
baseball bat. I walked back over to the Walkers with the bat. I put the bat
behind me under my coat. I was hiding it.

        I walked back and knocked again, and Mr. Walker came to the door
again. I don’t recall saying anything. He opened the door. There is probably
more, but I don’t remember. Some of the things are blank to me. I went to the
front door on the porch, not the door at the driveway. We were both standing
in the living room. I did not say anything to him. I just pulled the bat from
behind my back, swung and hit him in the forehead in the front. He did not
fall, so I kept hitting him. He eventually fell face down.

        His wife was screaming and came into the room. I pushed her, and she
fell into the dining room. She was on the ground and I started swinging and
hitting her. I really don’t know where I was hitting her. I don’t know how
many times I hit her or Mr. Walker. I didn’t stop until they were not moving
anymore.

       I then left out the same door I came in. I think I locked the door behind
me, but I really can’t remember. I walked back over to Scott’s and threw the
bat beside the house in some trash. I just sat down on a basket thing in the

                                       -5-
       back yard and didn’t move. I sat there until Scott came home. After I put the
       bat down and before I sat down, I washed my hands in a puddle of water in the
       back yard. I think I also washed my face with the water in the puddle. When
       Scott came home, his mom and sister were in the truck with him.

              The story picks up and is exactly like I told you in the first statement
       from this point. As I sat in the back yard I was still angry and confused. I just
       couldn’t stop. I didn’t say anything while I was hitting them.

      Officers located the baseball bat in the location that Appellant described. The bat was
shown to Appellant, and he identified it as the murder weapon. A DNA sample was taken
from Appellant.

        TBI Special Agent David Harmon was with the violent crime response team involved
with the investigation of the murder of the victims. He collected items from the hotel room
including several pairs of shoes and Appellant’s cellphone. TBI Special Agent John Sullivan
collected blood samples from the victims. Special Agent Joel Franklin Wade is a forensics
specialist in computers and mobile phones. He found a text message from Appellant to Scott
stating, “Yo, dude, I got a ride, oh yeah, and you said you wanted your nosy neighbors dead,
right?”

        TBI Special Agent Laurence James with the violent crime response team processed
the victim’s house. He made note of the position of the victims’ bodies and the blood spatter
present at the scene. He concluded that Mrs. Walker had been moved after the beating.
Agent James based this conclusion on blood spatter on a piece of furniture, a pool of blood
a fair distance from the body, and a transfer bloodstain on her ankle. Agent James opined
that the blood spatter surrounding Mr. Walker indicated the brutality of the attack. He said
that he found blood spatter with hair attached in the hallway that was thirteen feet away from
the body. He also collected blood samples for DNA analysis from the victims.

       Agent James testified that the blood on Mrs. Walker was tested, and it contained a
mixture of DNA from both her and Mr. Walker. The blue jeans, shoes, and jacket collected
at the hotel tested positive for the presence of blood. The blood from these items were
compared to the DNA samples from the victims and Appellant. The blue jeans contained a
mixture of DNA matching both victims and a third unidentified person. The shoes contained
a mixture of DNA matching both of the victims. On the jacket, the DNA found belonged
mostly to Mrs. Walker, but Mr. Walker’s DNA was also found as a minor contributor. Agent
James testified that the blood stains on the jacket were “consistent with a baseball bat

                                              -6-
swinging backwards and depositing blood on the rear shoulder area.” The baseball bat
contained DNA matching Mrs. Walker.

        Dr. Karen Chancellor is the Chief Medical Examiner for Shelby County. She
performed the autopsies on the two victims. She testified that the cause of death for Mr.
Walker was blunt force injuries. She stated that he suffered at least fifteen blows to the head
and that any one of them could have been fatal. Dr. Chancellor also concluded that blunt
force injury was the cause of Mrs. Walker’s death. Dr. Chancellor stated that Mrs. Walker
sustained at least sixteen blows to her head, as well as additional blows to her body. She
stated that “one of the large lacerations on her head would result in enough bleeding that
could cause death.”

       The jury returned a verdict convicting Appellant on all six counts on January 19, 2012.
After additional proof, the jury determined that Appellant should be sentenced to life without
parole for the murder convictions. On April 3, 2012, the trial court held a sentencing hearing
and sentenced Appellant to eight years at 100% for the especially aggravated burglary
conviction. In addition, the trial court merged the two felony murder counts into the
premeditated first degree counts and one especially aggravated burglary count into the other.
The trial court ordered that all the sentences were to be served consecutively.

       Appellant filed a timely notice of appeal.

                                         ANALYSIS

                                 Transfer to Circuit Court

        Appellant argues that the juvenile court erred in transferring his case to circuit court.
He argues that: the juvenile court erred in its “process of assessing committability”; the
juvenile court’s denial of funding for an independent psychological evaluation precluded a
fair and impartial determination regarding committability; the juvenile court erred in holding
Appellant without bond; and the decision to transfer Appellant failed to follow the minimum
requirements set out in Tennessee Code Annotated section 37-1-128 and the process was
inherently flawed.

       A juvenile court may transfer a child, who is sixteen at the time the alleged crime was
committed, to the criminal court to be tried as an adult if the child is alleged delinquent and
charged with one of several listed crimes, including first degree murder. T.C.A. § 37-1-
134(a)(1). Before such transfer can occur, the juvenile must be provided with notice and a
hearing on the transfer. T.C.A. § 37-1-134(a)(2), (3). During the hearing, the juvenile court
must find “reasonable grounds to believe” that the juvenile committed the delinquent act as

                                               -7-
alleged, that the juvenile “is not committable to an institution for the developmentally
disabled or mentally ill,” and that the community’s interests require legal restraint or
discipline of the juvenile. T.C.A. § 37-1-134(a)(4)(A)-(C). In considering whether to
transfer the juvenile to criminal court, the juvenile court shall consider the following factors:

       (1) [t]he extent and nature of the child’s prior delinquency records;

       (2) [t]he nature of past treatment efforts and the nature of the child’s response
       thereto;

       (3) [w]hether the offense was against person or property, with greater weight
       in favor of transfer given to offenses against the person;

       (4) [w]hether the offense was committed in an aggressive and premeditated
       manner;

       (5) [t]he possible rehabilitation of the child by use of procedures, services and
       facilities currently available to the court in this state; and

       (6) [w]hether the child’s conduct would be a criminal gang offense, as defined
       in § 40-35-121, if committed by an adult.

T.C.A. § 37-1-134(b)(1)-(6).

       On appeal of an order of transfer from juvenile court, we do not decide where the
preponderance of the evidence lies, but whether there were reasonable grounds for the
juvenile court judge to believe that the three criteria of section 37-1-134(a)(4)(A)-(C)
mentioned above were present. See State v. Strickland, 532 S.W.2d 912, 920 (Tenn. 1975);
State v. Layne, 546 S.W.2d 220, 224 (Tenn. Ct. App. 1976). A juvenile court judge’s
discretionary decision to allow a juvenile to be treated as an adult should not be disturbed on
appeal, if there was probable cause to believe that the juvenile committed the crime and the
evidence at the hearing showed that the juvenile was not mentally impaired and should be
legally restrained. See State v. Mario A. Reed, No. M2009-00887-CCA-R3-CD, 2010 WL
3432663, at *6 (Tenn. Crim. App., at Nashville, Aug. 31, 2010), perm. app. denied, (Tenn.
Jan. 13, 2011); State v. Cecil L. Groomes, et al, No. M1998-00122-CCA-R3-CD, 2000 WL
1133542, at *7 (Tenn. Crim. App., at Nashville, Aug.10, 2000) (citing State v. Orange, 543
S.W.2d 344, 346-47 (Tenn. Ct. App. 1976)).

                                               -8-
       On March 3, 2011, the juvenile court held a transfer hearing to determine if
Appellant’s case should be transferred to circuit court. Agent Reynolds and Scott Locke
were the first two witnesses. They testified about the facts and the investigation relating to
the murders of the victims. Their testimony essentially laid out the same facts as related
above.
       The next witness was Dr. Wyatt Nichols with West Tennessee Forensic Services. Dr.
Nichols is a clinical psychologist specializing in forensic psychology. The juvenile court
requested that Dr. Nichols evaluate Appellant for purposes of the transfer hearing. Dr.
Nichols stated that the trial court’s request was for him to determine the following:

       [W]hether the child has a mental illness or mental retardation; whether the
       child is subject to voluntary admission or involuntary commitment; the type of
       care, training, and treatment required to address any mental illness or mental
       retardation found; any resources available to provide such services, included
       but not limited to those provided by Tennessee Department of Children’s
       Services; and the specific forensic issue, competency to proceed.

        Dr. Nichols testified that he reviewed records from Lakeside Hospital where
Appellant had in-patient treatment in September 2010. He reviewed records from out-patient
treatment that happened after Appellant’s discharge from Lakeside. Dr. Nichols further
reviewed notes from Appellant’s therapist, by whom he was treated when he was ten years
old. Dr. Nichols discussed Appellant’s treatment at Lakeside with Appellant’s psychiatrist,
Dr. Hoehn. Dr. Nichols stated that Appellant was tested for the doctor’s evaluation and he
was interviewed for about three hours over a two day period. Dr. Nichols submitted his
report to the juvenile court.

        Dr. Nichols concluded that Appellant was competent to proceed to trial and that he
was not mentally retarded. He stated that Appellant was of at least average intelligence. Dr.
Nichols stated that Appellant could benefit from hospitalization but that it was not absolutely
necessary. Dr. Nichols testified that Appellant did have a mental illness, and Dr. Nichols was
of the opinion that Appellant was developing schizophrenia. He said Appellant had the early
symptoms of paranoid schizophrenia.

       The juvenile court held the following at the conclusion of the hearing:

       The evidence today has shown that the child is 16 years or more of age and
       that he is charged with an offense that allows the State to petition the Court for

                                              -9-
transfer, that being first-degree murder, and there are other offenses delineated
in the statute. Only the most serious crimes allow the State to make this
request of the Juvenile Court.

       Once the request is made, of course, there are various elements that the
Court has to look at, but particularly that the child is 16 years or more of age
at the time of the alleged conduct, that he is charged with a transferable
offense.

        And then at the hearing the Court is to follow certain rules as set out by
State law, which the Court has followed. Reasonable notice was given to the
parents as required by statute.

       And then the Court is required to look at three grounds; that is, whether
or not there are reasonable grounds to believe that the child committed the
delinquent act that he is alleged to have committed, which the Court finds
certainly the State has shown reasonable grounds.

        The second test is whether or not he is committable to an institution for
the mentally ill. And, [defense counsel], certainly [Appellant] has significant
mental issues. I’m not finding guilt or innocence. I just deal with a probable
cause, reasonable grounds issue today. But the Court will believe that anyone
that is charged with committing a double murder with a baseball bat certainly
has significant mental issues. No one that is normal would commit such an
act.

       But that’s not the test that the Court is required to look at. The test is
whether or not he is committable into a mental institution. And some General
Sessions judges do a lot of commitments with adults. This Court in this
particular county doesn’t have that jurisdiction. But I do have the jurisdiction
to commit juveniles, and I’ve had some of these.

        And the question would be if the State tried to involuntarily commit
[Appellant] and he fought it and his parents fought it, would -- it would take
the testimony of two doctors to testify that he is dangerous to himself or others
and ask for a Court Order forcing him against his will to be placed into a
mental health institution. And I think Dr. Nichols was clear in his testimony,
he did not rise to that level.

                                       -10-
              Now, the Court had the evaluation done. It’s about three weeks, maybe
       30 days old or whatever. And I don’t think that the law requires someone to
       continue to be tested right up to the day that they come to court.

              The Court has -- we have exercised considerable resources in having
       this evaluation done, and Dr. Nichols indicated, yes, [Appellant] does have
       significant problems. But the Court does not believe it rises to the level where
       he could be involuntarily committed into a mental institution because he is
       mentally ill, which is what the test is.

       The juvenile court concluded that all requirements were met to transfer Appellant to
the custody of the circuit court.

                                        Committability

       Appellant first argues that the juvenile court erred because it used the wrong analytical
process to determine whether or not Appellant was “committable.” In his brief, Appellant
argues that the juvenile court “confuse[d] the legal obligations regarding burden of proof and
the Court appears to have placed no burden at all upon the State to affirmatively prove that
the appellant was noncommittable to a psychiatric hospital.” The State disagrees.

        As set out above, three witnesses testified at the transfer hearing, Agent Reynolds,
Scott Locke, and Dr. Nichols. Dr. Nichols testified extensively about his review of
Appellant’s records, Appellant’s testing in his office, and his interview of Appellant. Dr.
Nichols stated that while Appellant was mentally ill he was not committable to a psychiatric
institution. At the conclusion of the hearing, the juvenile court went through all the statutory
factors. Although the juvenile judge mentioned the use of two doctors in an involuntary
committment hearing and various requirements in an adult commitment hearing, the juvenile
court clearly stated that the test to be applied in Appellant’s case was “whether or not he is
committable into a mental institution.”

       We conclude that the juvenile court neither applied an incorrect analysis nor shifted
the burden of proof. Dr. Nichols testimony regarding his evaluation of Appellant. This
testimony was reasonable grounds upon which the juvenile court could rely to find that the
second criteria for transfer was met, namely, that Appellant was not committable. After a
review of the record, we conclude that there was probable cause to support the juvenile
court’s decision.

                                              -11-
                                           Funding

       Appellant also argues that the juvenile court’s denial of funding for the procurement
of his own psychological evaluation predetermined that he would be transferred and this
violated his right to due process and effective assistance of counsel.

       Appellant filed an ex parte motion requesting funds to hire a forensic criminal
psychologist to conduct a mental health evaluation. The juvenile court denied the motion in
a written order that stated the following, in part, “The Court previously ordered it’s own
independent psychiatric evaluation of the Defendant which has been completed and filed
with the Court. The Court finds that at the stage of proceedings presently before the Court,
a Transfer Hearing, that the independent psychological evaluation already conducted by the
Court is sufficient for the issues to be decided.”

       Appellant puts forth a confusing argument that Dr. Nichols stated that Appellant was
not committable because he was incarcerated. The following exchange occurred during the
cross-examination of Dr. Nichols which is pertinent to this issue on appeal:

       Q.     And your report says he’s not committable because he’s, I think you
       used the word incarcerated?
       A.     Well, I didn’t mean to word it that way, if I did. As long as he is
       incarcerated he is not committable at this time.
              Basically there are two reasons a person would be committable in
       [Appellant’s] situation. One would be they would be so psychotic that they
       couldn’t control themselves and there was a management problem for the jail
       or they may hurt themselves due to their psychosis or somebody else would
       hurt them, or they’re suicidal or homicidal. He’s neither to that point.

Dr. Nichols clarified later in his testimony that Appellant was not committable whether he
was incarcerated or not. He specifically stated, “he would not be committable if he were out
of jail.” Therefore, Appellant’s argument regarding this line of testimony is meritless.

       Appellant also argues that his right to due process was violated because the denial of
his request for funding for a psychological examination prevented him from confronting and
effectively cross-examining witnesses. Appellant cites to no authority that specifically states
that funding for a psychiatric evaluation for the defense is required under either the United
States or Tennessee Constitutions. Appellant relies upon the Advisory Commission
Comments to Rule 24 of the Tennessee Rules of Juvenile Procedure which states:

                                             -12-
       Regarding § 37-1-134, and subsection (b)(4) of Rule 24, it has been held by
       both the Tennessee Court of Appeals and Court of Criminal Appeals that,
       although the burden of proof is on the prosecution on such issue, there is a
       presumption of non-committability similar to that relating to sanity in criminal
       trials. Such presumption can be rebutted by evidence introduced by the
       defendant, and in such event the burden would shift back to the prosecution to
       persuade the court the child is not committable. See Boyd v. State, Tenn. Crim.
       App. (December 30, 1979); State v. Miller, Tenn. App., Middle Section (June
       25, 1976). The committee suggests, however, that it is good practice in any
       case for the court to arrange for testing and evaluation, evidence of which may
       be introduced by either side of the parties or the court on the issue of
       committability.

(emphasis added).

        Although Appellant cites this comment to support his argument, it actually does the
opposite. The Advisory Commission suggests that the best practice is for the court to order
testing and evaluation. In the case at hand, the juvenile court followed this suggestion. On
January 24, 2011, the juvenile court ordered an outpatient evaluation of Appellant by West
Tennessee Forensic Services. Furthermore, the juvenile court did not restrict Appellant’s
cross-examination of Dr. Nichols. Because the juvenile court acted precisely as directed in
the Advisory Commission Comments to Rule 24 and was allowed to fully cross-examine Dr.
Nichols, we conclude Appellant’s due process rights were not violated.

       Appellant also argues that he was afforded ineffective assistance of counsel based
upon this issue. Under the Sixth Amendment to the United States Constitution, when a claim
of ineffective assistance of counsel is made, the defendant bears the burden of showing that
(a) the services rendered by trial counsel were deficient and (b) that the deficient
performance was prejudicial. See Powers v. State, 942 S.W.2d 551, 558 (Tenn. Crim. App.
1996). In order to demonstrate deficient performance, the petitioner must show that the
services rendered or the advice given was below “the range of competence demanded of
attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). In order
to demonstrate prejudice, the petitioner must show that there is a reasonable probability that,
but for counsel’s deficient performance, the result of the proceeding would have been
different. See Strickland v. Washington, 466 U.S. 668, 694 (1984). “Because a petitioner
must establish both prongs of the test to prevail on a claim of ineffective assistance of
counsel, failure to prove either deficient performance or resulting prejudice provides a
sufficient basis to deny relief on the claim.” Henley v. State, 960 S.W.2d 572, 580 (Tenn.
1997).

                                             -13-
       Appellant relies upon Howell v. State, 185 S.W.3d 319 (Tenn. 2006) to support his
argument. In Howell, our supreme court held that trial counsel’s representation of the
defendant was deficient because trial counsel failed to offer evidence at the defendant’s
juvenile transfer hearing concerning his mental health. 185 S.W.3d at 327. The supreme
court based this decision on the fact that trial counsel’s statement that he was waiting until
the criminal trial to present mental health evidence was not supported by the record and trial
counsel did not adequately prepare and investigate even if the record had supported his
strategy. Appellant argues that this supports the conclusion that the failure of defense
counsel to secure a mental evaluation is de facto deficient representation.

        However, the facts in the case at hand are very different. In this case, trial counsel
filed a motion requesting funding to pay for his own evaluation of Appellant’s mental health.
The trial court denied the motion. We cannot find any fault on the part of trial counsel. He
filed a motion which was denied by the trial court. There was no deficiency in counsel’s
representation of Appellant in this regard. Therefore, Appellant cannot meet both prongs of
the test set out in Strickland v. Washington, 466 U.S. 668, 694 (1984), and he cannot prevail.

       Therefore, this issue is without merit.

                                             Bond

      Appellant also argues that the juvenile court erred when it failed to set bond when the
case was transferred from juvenile court. The State concedes that the juvenile court erred
when it did not set bond. However, the State also argues that the error was harmless.

       At the conclusion of the transfer hearing, the juvenile court stated that it could not set
bond because Appellant’s case was a capital case and that the juvenile court lost jurisdiction
upon transfer. Under Rule 24(b)(7) of the Tennessee Rules of Juvenile Procedure, the
juvenile court must set bond in the order of transfer so long as the offense is bailable.
Tennessee Code Annotated section 40-11-102 states that “[b]efore trial, all defendants shall
be bailable by sufficient sureties, except for capital offenses where the proof is evident or the
presumption great.” Appellant was a juvenile when he committed the crime, therefore, the
death penalty was not applicable to his case. T.C.A. § 37-1-134(a)(1).

        Pursuant to the rules and statutes in this State, the juvenile court should have set bond
at the conclusion of the transfer hearing. The proper remedy for a juvenile to pursue when
bail is denied upon transfer is to appeal to the circuit court. T.C.A. § 40-11-144(b). In this
case, Appellant did so when he filed a motion to set bond on April 1, 2011, and the circuit
court set bond at $750,000.

                                              -14-
         We agree with Appellant that the juvenile court erred, but we also agree with the State
that, in view of the eventual setting of bond, the error was harmless. The circuit court set bail
upon receiving Appellant’s case. In addition we note that a court’s failure to grant a
defendant bond does not necessarily lead to dismissal of the indictment. State v. Johnson,
980 S.W.2d 414, 421 (Tenn. Crim. App. 1998).

       Therefore, Appellant is not entitled to relief on this issue.

                Tennessee Code Annotated section 37-1-128 Requirements

        Appellant also argues that the juvenile court did not follow the requirements of
Tennessee Code Annotated section 37-1-128 because there was no report from the
Department of Children’s Service (“DCS”). The State argues that Appellant failed to object
to the fact that there was no DCS report and cannot now claim error.

        Appellant does not cite any authority that states that a report from DCS is mandatory
before transfer. Tennessee Code Annotated section 37-1-128(c)(1) addresses the
adjudication of a child as delinquent, unruly, or dependent and neglected. That statute states,
in part, “the court may order that the department make an assessment of the child and report
the findings and recommendations to the court.” T.C.A. § 37-1-128(c)(1) (emphasis added).

        Furthermore, there is no evidence in the record that Appellant lodged any objection
to the fact that there was no DCS report before or during the transfer hearing. Typically, a
defendant’s failure to make a contemporaneous objection during trial constitutes a waiver of
an issue. Tenn. R. Evid. 103(a)(1); Tenn. R. App. P. 36(a) (stating that “Nothing in this rule
shall be construed as requiring relief be granted to a party responsible for an error or who
failed to take whatever action was reasonably available to prevent or nullify the harmful
effect of an error.”); State v. Cravens, 764 S.W.2d 754, 757 (Tenn. 1989). After a review of
the record, we agree with the State. Appellant made no objection to fact that there was no
DCS report. Therefore, he cannot successfully raise this issue on appeal.

                                 Sufficiency of the Evidence

       Appellant argues that the evidence was not sufficient to support his convictions of first
degree premeditated murder, first degree murder or especially aggravated burglary because
Appellant had a “clearly psychotic and impaired mind.” The State argues that the evidence
was sufficient to support the convictions.

      To begin our analysis, we note that when a defendant challenges the sufficiency of the
evidence, this Court is obliged to review that claim according to certain well-settled

                                              -15-
principles. A verdict of guilty, rendered by a jury and “approved by the trial judge, accredits
the testimony of the” State’s witnesses and resolves all conflicts in the testimony in favor of
the State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994); State v. Harris, 839 S.W.2d
54, 75 (Tenn. 1992). Thus, although the accused is originally deemed with a presumption
of innocence, the verdict of guilty removes this presumption and replaces it with one of guilt.
State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). Hence, on appeal, the burden of proof rests with the defendant to demonstrate
the insufficiency of the convicting evidence. Id.

       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. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 318-19 (1979).
In making this decision, we are to accord the State “the strongest legitimate view of the
evidence as well as all reasonable and legitimate inferences that may be drawn therefrom.”
See Tuggle, 639 S.W.2d at 914. As such, this Court is precluded from re-weighing or
reconsidering the evidence when evaluating the convicting proof. State v. Morgan, 929
S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn.
Crim. App. 1990). Moreover, we may not substitute our own “inferences for those drawn
by the trier of fact from circumstantial evidence.” Matthews, 805 S.W.2d at 779. Further,
questions concerning the credibility of the witnesses and the weight and value to be given
to evidence, as well as all factual issues raised by such evidence, are resolved by the trier of
fact and not the appellate courts. State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).

       The guilt of a defendant, including any fact required to be proved, may be predicated
upon direct evidence, circumstantial evidence, or a combination of both direct and
circumstantial evidence. See State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim.
App. 1999). Even though convictions may be established by different forms of evidence, the
standard of review for the sufficiency of that evidence is the same whether the conviction is
based upon direct or circumstantial evidence. See State v. Dorantes, 331 S.W.3d 370, 379
(Tenn. 2011). As such, all reasonable inferences from evidence are to be drawn in favor of
the State. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978); see Tuggle, 639 S.W.2d at
914.

        Appellant’s argument on appeal consists of an assertion that Appellant “was psychotic
months before this event took place” and a recitation of the facts presented at trial, with no
citations to the record. He also argues that there are no available studies as to the effects of
“bath salts” to explain Appellant’s actions as a reaction to the drug used the afternoon of the
murders.

                                              -16-
        Appellant was allowed to present his own witnesses and present proof as to his mental
condition at trial. Dr. Fred Steinberg testified regarding his training as a forensic and clinical
psychologist and his practice. He completed an evaluation of Appellant and testified at trial
about his findings. The jury heard the evidence presented and found in favor of the State.
As stated above, it is not this Court’s role to resolve witness credibility and resolve questions
of fact. Pruett, 788 S.W.2d at 561.

       Furthermore, in the case at hand, Appellant confessed to the crimes. Our supreme
court has stated that “the state needs ‘only slight evidence . . . to corroborate a confession and
sustain a conviction.’” State v. Housler, 193 S.W.3d 476, 490 (Tenn.2006) (quoting State
v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000)). In addition, circumstantial evidence is
sufficient to corroborate such a statement. State v. Jones, 15 S.W.3d 880, 891 (Tenn. Crim.
App. 1999).

        There was ample evidence to corroborate Appellant’s statement. Mr. Archer stated
that he dropped Appellant off at the Locke house on the day in question. Appellant was seen
walking into the Walker house by Mr. Wilburn, the cableman. Ms. Hance, the postal carrier
also placed Appellant at the Locke house across the street from the Walker house. DNA
from the victims was discovered on Appellant’s shoes, blue jeans, and jacket. The position
of the bodies matched the description given by Appellant to the police. Appellant said he
used a baseball bat which was located by police. The bat had several large dents in it and the
medical examiner testified that the victims died from blunt force injury to the head.

        We conclude that there was sufficient evidence to support the conviction of Appellant
for all charges.

                                         Modification

       The State states in its brief that Appellant’s convictions for first degree murder and
especially aggravated burglary cannot stand where the serious bodily injury suffered by the
victims is death.

        Tennessee Code Annotated section 39-14-404 sets out the offense of especially
aggravated burglary, which is the burglary of a habitation where the victim suffers serious
bodily injury. The statute provides, “Acts which constitute an offense under this section may
be prosecuted under this section or any other applicable section, but not both.” T.C.A. §
39-14-404(d). This Court has held that a conviction for both especially aggravated burglary
and murder cannot stand because the killing of another is “serious bodily injury” under this
statute. See State v. Oller, 851 S.W.2d 841, 843 (Tenn. Crim. App. 1992). When such an

                                               -17-
event has occurred, the “proper remedy” is to modify the sentence for especially aggravated
burglary to aggravated burglary as a lesser included offense. See State v. Holland, 860
S.W.2d 53, 60 (Tenn. Crim. App. 1993); Oller, 851 S.W.2d at 843.

      Therefore, we remand to the trial court for entry of a judgment reflecting a modified
conviction of aggravated burglary and for re-sentencing.

                                      CONCLUSION

       For the foregoing reasons, we affirm the transfer from the juvenile court to the circuit
court and Appellant’s convictions for murder. However, we remand to the trial court for
entry of a judgment reflecting a modified conviction of aggravated burglary and for re-
sentencing.

                                           ___________________________________
                                           JERRY L. SMITH, JUDGE

                                             -18-


928 So.2d 643 (2006)
Diane LABORDE
v.
ST. JAMES PLACE APARTMENTS, Money Hill Plantation, LLC and United National Group Insurance Company.
No. 2005-CA-0007.
Court of Appeal of Louisiana, First Circuit.
February 15, 2006.
*645 Marti Tessier, Mandeville, Counsel for Plaintiff/Appellant Diane Laborde.
Robert A. Redwine, New Orleans, Counsel for Defendants/Appellees St. James Place Apartments, Money Hill Plantation, LLC and United National Insurance Co.
Before: CARTER, C.J., DOWNING, and GAIDRY, JJ.
GAIDRY, J.
In this action for damages sustained by a tenant in a fall at an apartment complex, the trial court rendered judgment in favor of the plaintiff and awarded damages, but found plaintiff to be fifty percent at fault. Plaintiff appealed, and defendants answered the appeal. For the following reasons, we affirm.

DISCUSSION
Plaintiff, Diane LaBorde, moved into St. James Place Apartments with her two minor children in 1996. The apartment complex consisted of multiple apartment buildings with a common area between the buildings which was grassy and wooded. According to Mark Cardella, who performed *646 lawn maintenance at the apartment complex from 1992 until March 1999, the common area contained tree roots and "quite a few" sawed-off tree stumps which protruded a few inches from holes in the ground. The same year they moved in, LaBorde's daughter told her that she had tripped and fallen in the common area due to a stump sticking out of a hole in the ground. LaBorde complained about the stump to the apartment complex's on-site manager, Margaret Kern, and assumed that it would be taken care of.
On May 27, 1999, LaBorde discovered a cat tearing into garbage bags on her porch. She had had problems with cats getting into her garbage in the past and became angry. She began chasing the cat through the common area in the hopes that it would leave her garbage alone in the future. While running after the cat, LaBorde's foot hit a stump protruding from a hole in the ground and she fell, injuring her left ankle. LaBorde crawled back to her apartment and called Kern, who brought her to the hospital. X-rays were performed, and LaBorde was diagnosed with a sprained ankle. She was put into a soft cast and instructed to follow-up with an orthopedic specialist.
LaBorde began treating with Dr. Mark Hontas, an orthopedist, in June 1999. She was put into a walking cast and given physical therapy. An MRI revealed a bone fragment in her foot, for which surgery was performed in December 2000. She was briefly confined to a wheelchair after the surgery, then placed in a cast, and eventually underwent eight more weeks of physical therapy. Dr. Hontas discharged LaBorde in July 2001 and diagnosed her with a five percent total post-surgery disability. He also indicated that she would likely develop some degree of post-traumatic degenerative arthritis of the ankle. At the time of trial, LaBorde claimed to still suffer from ankle problems, and she wears orthopedic shoes and an ankle sleeve for this reason.
LaBorde filed suit against St. James Place Apartments, its owner, Money Hill Plantation, and their insurer, United National Group Insurance Company (referred to collectively as "Defendants"). LaBorde stipulated that her damages were less than $50,000.00, and a bench trial was held. Kern, who was no longer employed by the apartment complex, was subpoenaed to testify by LaBorde, but did not appear due to health problems. When LaBorde attempted to testify at trial as to what Kern told her about the stump and hole when she complained about them in 1996, the court sustained the defendants' hearsay objection. The matter was held open for some time to allow LaBorde to depose Kern, but LaBorde's attorney eventually rested her case without Kern's testimony and instead proffered LaBorde's excluded testimony.
The court rendered judgment in favor of LaBorde, awarding $20,000.00 in general damages and $18,396.93 in special damages. The trial judge also found LaBorde to be fifty percent at fault in causing her injuries.
The trial judge gave the following oral reasons for his ruling:
The Court ... finds that the property was defective because it had a condition which caused an unreasonable risk of harm to the plaintiff[.][T]he defendant [had] been put on notice of . . . the hole by the plaintiff after her daughter tripped and fell prior to this accident.
Moreover, there are no sidewalks [through] the common areas of the apartment complex[,] so it is foreseeable by the lessor that tenants would walk through the wooded areas and grassy areas to travel through on their way to a neighbor's apartment. In fact, Ms. LaBorde *647 testified that residents commonly walked through the wooded and grassy areas and that children also played in there. Accordingly, the lessor has a duty to maintain those areas in a safe condition[,][t]he cost of which would be minimal compared to the risk of harm to its lessees[,] and it failed to do so.
. . . .
Finally, the Court finds that the defective conditions of the premises caused the injuries to the plaintiff. The court, however, would also apply the rule of law that pedestrians must face some responsibility for avoiding injury and should see that which . . . should be seen by a reasonable ... person. The Court finds that although she testified that she was watching where she was going, plaintiff established by her own testimony that she was not entirely attentive.. . . She stated that she had had it with the cat and was very angry [as] she set out to chase the cat across the wooded area.
Accordingly, the Court assigns fifty percent liability to the defendants, fifty percent liability to the plaintiff.
LaBorde appealed from the trial court's judgment, asserting that the court erred in assigning comparative fault, in awarding only $20,000.00 in general damages, and in sustaining defendants' hearsay objection. Defendants answered the appeal, and asserted that the trial court had erred in finding that they were liable for LaBorde's injuries. Specifically, the defendants alleged that LaBorde had removed herself from the scope of the duty owed to her when she left the safety of the sidewalk or path and ran through a wooded area with high grass which was obviously not intended for pedestrian use; that the tree stump and hole, located in the tall grass off of a trail in the wooded common area of the apartment complex, did not pose an unreasonable risk of harm to a person using ordinary care under the circumstances; and that LaBorde did not exercise the ordinary care expected of a reasonably prudent person under the circumstances.

DISCUSSION

Comparative Fault
Like all factual findings, the standard of review of comparative fault allocations is that of manifest error. Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967 (La.1985). The court in Watson listed a number of factors to be considered in determining the portion of fault attributable to the parties, including the level of the risk; whether the behavior was inadvertent or done with awareness of the danger; the significance of what was sought; the capacities of the parties; and any other extenuating circumstances. Watson, 469 So.2d at 974.
Considering the Watson factors in light of the particular facts of this case as outlined above, we cannot say that the trial court committed manifest error in making its allocation. LaBorde knew that there had been a sawed-off stump and hole in the common area and that it was a danger to pedestrians, as her own daughter had fallen a few years prior and she had felt it necessary to report it to the apartment manager so that the hazard could be removed. While she may have believed that the apartment manager had had the stump cut out and the hole filled, the common area was still grassy and wooded and contained both tree roots and sawed-off stumps. LaBorde was understandably angry at the cat for tearing into her garbage, but a reasonably prudent adult would surely understand that it is more important to watch where one is running than to attempt to teach a cat a lesson. There is no merit to this assignment of error.

*648 Quantum

LaBorde next complains that the general damages award of $20,000.00 is abusively low. The discretion vested in the trier of fact in fashioning an award of general damages is great, and even vast, so that an appellate court should rarely disturb an award of general damages. Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). While we might have made a higher award had we been sitting as trier of fact, after conducting a thorough review of the record we conclude that the $20,000.00 general damages award is not below that which a reasonable trier of fact could assess under the circumstances of this case.

Hearsay and the "Uncalled Witness Rule"
LaBorde alleges on appeal that the trial court erred in excluding as hearsay LaBorde's testimony regarding Kern's statements to her. The excluded testimony included statements allegedly made by Kern both before and after the accident, and several statements were made after Kern ended her employment with defendants. LaBorde claims that Kern's statements fall under one of the hearsay exceptions enumerated in La.Code Evid. art. 801(D). Specifically, she cites the following provisions of the article:
D. Statements which are not hearsay. A statement is not hearsay if:
(2) Personal, adoptive, and authorized admissions. The statement is offered against a party and is:
(a) His own statement, in either his individual or a representative capacity;
* * * *
(3) Relational and privity admissions. The statement is offered against a party, and the statement is:
(a) A statement by an agent or employee of the party against whom it is offered, concerning a matter within the scope of his agency or employment, made during the existence of the relationship;
* * * *
LaBorde also argues that the trial court erred in failing to apply the "uncalled witness rule." According to the "uncalled witness rule," when a party having control of a favorable witness fails to call them to testify, a presumption arises that the facts, as that party would have them, do not exist. Driscoll v. Stucker, 04-0589, pp. 18-19 (La.1/19/05), 893 So.2d 32, 47.
The first provision cited by LaBorde, La.Code Evid. article 801(D)(2)(a), is not applicable to this situation since Kern is not a party, and this article applies to a party's own statements which are offered against him. Furthermore, while Kern's statements made during her employment would be admissible under 801(D)(3)(a), anything she said to LaBorde during their telephone conversation after her employment was terminated would be inadmissible as hearsay. Finally, LaBorde asserts that the "uncalled witness rule" should have been applied, creating a presumption that the defendants did not call Kern to testify because her testimony would have been contrary to their version of the facts. Since Kern was no longer employed by defendants, we fail to see *649 how she was under their "control" for purposes of the "uncalled witness rule." However, regardless of the applicability of article 801(D)(3)(a) or the uncalled witness rule, there is nothing in the proffered testimony that would change the outcome of the case had it been allowed in. The trial court found that the defendants had notice of the stump and hole, that it constituted a dangerous condition, that it was foreseeable that residents of the complex would traverse the common areas of the property, and that defendants failed to fix the dangerous condition even though it would have been relatively inexpensive to do so. Kern's statements would not have any effect on the findings of the court with which LaBorde is aggrieved, i.e., the amount of general damages awarded and the issue of comparative fault. The trial judge's assignment of fifty percent fault to LaBorde is due to its finding that she failed to behave as a reasonably prudent pedestrian when she chased a cat across a wooded area. Nothing in the proffered testimony would change this. Thus, there is no merit to this assignment of error.

Defendants' Assignment of Error
The defendants assert in their answer to the appeal that because LaBorde left the safety of the sidewalk and ran through a wooded area with high grass which was obviously not intended for pedestrian use, they were not responsible for her injuries. The defendants took the position that a tree stump in a hole located in the tall grass of a wooded area does not pose an unreasonable risk of harm to a pedestrian exercising reasonable care. However, we find no error in the trial court's finding that it was reasonably foreseeable that residents of the complex would walk through the wooded or grassy area to reach their apartment or a neighboring apartment building and that a stump and hole in the ground in a grassy area such as this would present an unreasonable risk of harm. Defendants' assignment of error is likewise without merit.

DECREE
For the above reasons, the trial court judgment is affirmed, and costs of this appeal are to be shared equally by the parties.
AFFIRMED.


521 F.3d 804 (2008)
UNITED STATES of America, Plaintiff-Appellee,
v.
Mark A. SAMUELS, Defendant-Appellant.
No. 06-3713.
United States Court of Appeals, Seventh Circuit.
Argued September 11, 2007.
Decided April 10, 2008.
*805 *806 *807 *808 Angela Scott (argued), Office of the United States Attorney, Criminal Division, Fairview Heights, IL, for Plaintiff-Appellee.
David H. Hixson, Anne Wasilchuk (argued), Jenner & Block, Chicago, IL, for Defendant-Appellant.
Before RIPPLE, MANION, and WOOD, Circuit Judges.
MANION, Circuit Judge.
Mark Samuels ("Samuels") was charged in a one-count indictment with aiding and abetting a felon in possession of a firearm in violation of 18 U.S.C. §§ 2 and 922(g)(1). After a jury returned a guilty verdict, the district court sentenced Samuels to a seventy-eight-month term of imprisonment. Samuels appeals his conviction and sentence, and we affirm.

I.
Sometime in the fall of 2004, Mark Samuels provided his cousin, Stephen Perkins ("Stephen"), with a Glock .45 caliber firearm for Stephen's protection after Stephen had been robbed. Samuels later sought to retrieve the Glock from Stephen. After unsuccessfully attempting to contact Stephen through Stephen's mother, Samuels told another cousin, Katraelyus Franklin ("Katraelyus"), that he wanted his Glock and asked if he knew where Stephen was.[1] On October 13, 2004, Katraelyus drove Samuels and Samuels's brothers, Marlon Samuels and Terry Samuels, a convicted felon, ("Marlon" and "Terry," respectively), in his van to find Stephen. In addition to bringing along his brothers, Samuels also brought a baseball bat and a gun, an FEG Model FP9 9mm semi-automatic pistol ("FEG" or "gun"), with him. Samuels later stated during a taped police interview that he brought the gun because he was afraid Stephen might fight him or that he might encounter "escalated problems" in the course of trying to retrieve the Glock from Stephen.
The group found Stephen at County Line, a liquor store and gas station located in Cahokia, Illinois. Stephen recognized his cousins and walked toward the van to talk with them. Stephen testified at trial that Samuels "turn[ed] around to give Terry the gun when I was walking towards them." Upon further questioning, Stephen clarified that he had not actually seen what Samuels handed Terry, but rather he "watched [Samuels] go into his pants and pull something out [Stephen] reflected as a gun, turn[] around and hand it to [Samuels's] brother." Although the transfer of the gun from Samuels to Terry was not clear, there was no question that Terry *809 had the gun in the encounter with Stephen that followed.
Samuels patted down Stephen and, when he did not find the Glock, went to search Stephen's car. At Samuels's direction, Marlon and Terry took Stephen around the side of the store building. When he did not find the Glock in the car, Samuels returned with the ashtray from Stephen's car and began beating Stephen in the face with it. Marlon and Terry also struck Stephen. Stephen testified that all of the men started hitting him until he passed out.
The County Line clerk heard a scuffle and yelling outside the store where he saw one person holding Stephen, one person standing next to him, and another person hitting him. The clerk also testified at trial that Stephen was bleeding and that one of the individuals was pointing a gun at him. The clerk identified the clothing of the person with the gun, a jacket hood and pair of pants, as the same clothing identified by Stephen as having been worn by Terry that day. At that point, the clerk yelled at them to take their argument somewhere else, so the group piled into Katraelyus's van and left.
From County Line, Katraelyus drove to Samuels's home. While en route, Samuels and Terry struck Stephen. Stephen told them that another cousin, Tracy Perkins ("Tracy"), had the Glock in her car and that she was working at an area nursing home. Once at Samuels's house, Samuels beat Stephen with a bat, and Marlon beat him with brass knuckles. Leaving Samuels's home, Samuels, Stephen, Terry, Katraelyus, and Marlon drove in Samuels's van to the nursing home. Stephen testified that Terry beat Stephen during that drive and that Samuels never told Terry to stop hitting Stephen.
Upon arriving at the nursing home, Samuels went inside and told Tracy that he was Stephen's cousin and that Stephen needed to get something out of her car. When she walked outside the nursing home, Tracy saw Stephen, who she testified was "beat up bad." Then Tracy and Samuels walked to Tracy's car located in a back parking lot where they searched the trunk. Again, Samuels was unable to find the Glock. While Tracy drove her car to the front lot where Samuels's van was parked so Stephen could go through the car and get whatever was his out of the car, Samuels walked back to his van.
During the time Tracy and Samuels were searching her car, Terry allowed Stephen to exit the van in order to get some fresh air. Stephen testified at trial that Terry had the FEG in his pants at that point and that he jumped on Terry's back in an attempt to wrest the FEG from him. A fight then ensued, and Stephen testified that at Terry's direction Marlon attempted to cut Stephen and that once he was able to break away from Terry he fell because he was bleeding badly. What Samuels did upon his return to the van is disputed: Samuels told Detective Becker, who had conducted his post-arrest interview, that when he returned Stephen and Terry were fighting, Stephen was bloody, and he separated Stephen and Terry from fighting. Stephen, however, testified at trial that Samuels grabbed him by the collar and struck him in the forehead with the butt of the FEG, and then the group threw Stephen back in the van. Based on Stephen's and Samuels's testimony, Samuels must have "separated" Terry and Stephen by taking the gun from Terry (who, according to Stephen's testimony, had the gun in his pants) and hitting Stephen with it. Stephen sustained facial injuries as a result of the events that occurred in the parking lot, leaving blood there as well as in the van.
Before being thrown back into the van, Stephen shouted to Tracy that one of the men had a gun. Tracy ran inside the *810 nursing home where she called 911. A tape recording of Tracy's 911 call was played for the jury. During the call, Tracy frantically told the operator that men had taken her car, were beating and killing her cousin, and had a gun. Tracy also provided a description of her car and Samuels's van. While Tracy was placing her 911 call, Katraelyus drove away with Stephen, Samuels, and Terry as passengers. Marlon left driving Tracy's car.
Responding to the 911 call, Officer Brian Dowdy of the Belleville Police Department noticed a van that fit the description relayed by dispatch, so he started to follow the van, losing sight of it for a short period of time. Seeing a police car behind his van and knowing that Terry could get in trouble if he was found in the van with a gun, Samuels stated that he tried to throw the gun out of the van, but it landed in Terry's lap, who, in turn, threw it out of the vehicle. Stephen, on the other hand, testified at trial that Samuels handed Terry the gun and told Terry to take off running, after which Terry jumped out of the slowly moving van. Either way, Belleville police officers later located the gun in a flower planter box of a nearby house, and Terry was later apprehended in the neighborhood where the van eventually was stopped.
Officer Dowdy temporarily lost sight of Samuels's van, but did confirm that it met the description relayed by dispatch. Terry apparently exited the van, along with the FEG, when Officer Dowdy lost sight of it, because when he caught up with it and pulled it over, Terry was not in it. Instead, inside the van he found Stephen bleeding from his face and head. Samuels described his gun to Officer Dowdy and told him it was thrown from the van.
On December 16, 2004, Samuels was charged in a one-count indictment with aiding and abetting a felon in possession of a firearm in violation of 18 U.S.C. §§ 2 and 922(g)(1). At his plea hearing, Samuels agreed that the government would be able to prove beyond a reasonable doubt that his brother, Terry, was a prior convicted felon who possessed a firearm that had traveled in interstate commerce. In response to the court's inquiry, Samuels also agreed that the government could prove beyond a reasonable doubt that he "knowingly aided in the commission of an offense by associating with the criminal activity, participating in the activity, and trying to make it succeed." After the government read its statement of the case, however, Samuels stated that while he did bring the FEG into the van, he did not hand Terry the gun or show him where it was. The district court declined to accept Samuels's guilty plea, concluding that Samuels only admitted to having the FEG in the van and did not admit to aiding and abetting Terry in possessing the FEG. At that same hearing, Samuels attempted to enter a plea pursuant to North Carolina v. Alford, 400 U.S. 25, 27, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), by which he would conditionally plead guilty to the crime charged, while maintaining his innocence. While the district court was amenable to accepting an Alford plea from Samuels, the government would not agree to an Alford plea, and the case was set for trial.
At trial, Stephen, Katraelyus, Tracy, Officer Dowdy, and Detective Becker of the Belleville Police Department testified. During the course of Detective Becker's testimony, the jury viewed a video recording of Samuels's post-arrest interview. In addition, Agent Dan Owens of the Bureau of Alcohol, Tobacco, and Firearms testified that the FEG had been manufactured in Hungary and imported into the United States. Bart Naugle, a DNA Analyst, also testified stating that he conducted a DNA test on the blood swabbed from the FEG and concluded that it was from Stephen Perkins. Over Samuels's objection, the *811 jury also heard extensive testimony about the beatings Stephen sustained, as well as a tape of Tracy's 911 call, and saw photographs of the blood in the nursing home parking lot and of Stephen's injuries. The jury convicted Samuels.
The United States Probation Office prepared a presentence investigation report ("PSR"). The PSR set forth a total offense level of twenty-eight and a criminal history category I resulting in a sentencing range under the United States Sentencing Guidelines of seventy-eight to ninety-seven months' imprisonment. Samuels argued that the aggravated assault cross-reference which the PSR applied was improper because the government failed to seek a special verdict for aggravated battery. In addition, he objected to the assessment of six points to his offense level for Stephen sustaining injuries that were serious to permanent. Samuels also asserted that he was entitled to a reduction in his offense level for acceptance of responsibility and concluded that his total offense level should be fourteen with a criminal history category I, resulting in a Guideline range of fifteen to twenty-one months' imprisonment. After hearing argument from both Samuels's attorney and the government, as well as testimony from Stephen, Stephen's mother, and Samuels's wife, the district court overruled Samuels's objections and sentenced him to a seventyeight-month term of imprisonment. Samuels appeals, challenging the sufficiency of the evidence supporting his conviction, the admission of the 911 tape and photographs, and the district court's application of the Guidelines.

II.
On appeal, Samuels challenges the sufficiency of the evidence supporting the jury's verdict. We note that "[d]efendants challenging the quantum of evidence supporting a jury verdict face a daunting task." United States v. Wortman, 488 F.3d 752, 754 (7th Cir.2007) (quoting United Statesv. Luster, 480 F.3d 551, 555 (7th Cir.2007)). In reviewing a sufficiency of the evidence challenge, we "consider[] the evidence in the light most favorable to the government, defer[] to the credibility determinations of the jury, and . . . overture a verdict only when the record contains no evidence, regardless of how it is weighed, upon which a rational trier of fact could find guilt beyond a reasonable doubt." United States v. Dabney, 498 F.3d 455, 460 (7th Cir.2007) (quoting United States v. Cummings, 395 F.3d 392, 397 (7th Cir.2005)).
To be guilty of aiding and abetting, an individual must have knowledge of the underlying illegal activity and a desire to assist in the success of the activity, and provide an act of assistance. United States v. Serrano, 434 F.3d 1003, 1004 (7th Cir.2006); United States v. Stott, 245 F.3d 890, 904 (7th Cir.2001). "[M]ere presence at the time of the crime is insufficient to support a conviction for [aiding and abetting]." United States v. Bonty, 383 F.3d 575, 579 (7th Cir.2004). "Under an aiding and abetting theory,`[p]articipation may be established by circumstantial evidence, and the evidence may be of relatively slight moment.'" United States v. Folks, 236 F.3d 384, 389 (7th Cir.2001) (quoting United States v. Coleman, 179 F.3d 1056, 1061 (7th Cir.1999)). "An aider presumptively intends the natural and probable consequences of his actions. . . ." United States v. Andrews, 442 F.3d 996, 1002 (7th Cir.2006) (internal citation and quotation omitted).
Here the underlying offense was a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). The elements of a felon in possession of a firearm charge are threefold: 1) the individual was a convicted felon prior to the date in question; 2) the individual possessed a firearm; and 3) the *812 firearm traveled in interstate commerce. United States v. Ortiz, 474 F.3d 976, 982 (7th Cir.2007). Therefore, to aid and abet a felon in possession of a firearm, the defendant must know or have reason to know that the individual is a felon at the time of the aiding and abetting, and, in turn, must assist the felon in possessing a firearm.
On appeal, Samuels does not challenge the sufficiency of the evidence as it relates to Terry being a prior convicted felon who possessed a firearm that traveled in interstate commerce. Rather, Samuels only challenges the sufficiency of the evidence as it relates to whether he aided and abetted Terry in possessing the FEG. Samuels attacks Stephen's testimony about whether he saw Samuels hand Terry the gun at the County Line. Stephen initially testified that he saw Samuels hand Terry the gun when they got out of the van at the County Line, but later clarified that he saw Samuels hand Terry what Stephen "reflected" was a gun. Finally, on cross-examination, Stephen responded, "No," when asked whether he saw whatever it was that Samuels handed Terry. Stephen's testimony on the exact details of the hand-off shifted, but it was for the jury to determine which portion, if any, of this testimony is credible and what weight that testimony was to carry. See generally United States v. Duron, 407 F.3d 828, 845 (7th Cir.2005). Stephen, however, stated without question that Terry had the gun after the handoff, pointing it at Stephen and jamming it into Stephen's back. Furthermore, Stephen also testified that as the police were attempting to stop Samuels's van, Samuels handed Terry the gun and told him to get out of the vehicle. Moreover, Samuels stated in his post-arrest interview that the FEG was his and that he brought it with him because he was afraid of what might happen when he found Stephen. Samuels was also the first to strike Stephen, thereby commencing a violent chain of events that unfolded that evening, which included Terry's possession of the FEG. By bringing the gun and escalating the encounter with Stephen into a violent one, Terry's possession of the firearm was the natural consequence of Samuels's actions and one which Samuels, as his aider and abetter, was presumed to have intended. Andrews, 442 F.3d at 1002.
Samuels was the aider and abetter from the start to the finish. He recruited Terry (and Marlon and Katraelyus). The four of them set out in Katraelyus's van in search of Stephen. Samuels brought with him a baseball bat and his FEG. He admitted he brought them in case of a confrontation. When they found Stephen at the County Line, Stephen saw Samuels hand Terry what he thought might have been a gun. He quickly realized Terry had a gun when Terry held it against him as they walked behind the store. After switching vehicles and traveling to the nursing home where Tracy worked, Samuels broke up a fight between Terry and Stephen by hitting him with the FEG, which Stephen said Terry had in his pocket. They left that scene, but the police were soon in pursuit. Samuels either threw or handed the FEG to Terry, and Terry ran off and ditched the gun, which the police found in a nearby flower pot. Terry possessed the FEG in the middle of and at the end of this violent episode, and Samuels facilitated the entire possession. Therefore, there was sufficient evidence upon which a rational trier of fact could convict Samuels beyond a reasonable doubt of aiding and abetting Terry, a convicted felon, in possession of a firearm.
Samuels also challenges the propriety of the admission of evidence regarding the beatings Stephen sustained, namely testimony about the beatings, photographs of blood in Samuels's van and on the nursing *813 home parking lot, and Tracy's 911 call. Samuels contends that the bulk of the evidence the government presented was related to events other than the crime for which he was charged, namely Terry's violent conduct and the effects of that conduct.
"Evidence of a prior bad act may be admitted [] when that act is so inextricably intertwined with, or intricately related to, charged conduct that it helps the fact finder form a more complete picture of the criminal activity." United States v. Morris, 498 F.3d 634, 642.(7th Cir.2007) (internal citation and quotation omitted). Intricately related evidence is evidence that either completes the story of the crime on trial, the absence of which "would create a chronological or conceptual void in the story of the crime," or is "so blended or conpected that [it] incidentally involve[s], explain[s] the circumstances surrounding, or tend[s] to prove any element of, the charged crime." United States v. Gougis, 432 F.3d 735, 742 (7th Cir.2005) (internal quotation and citation omitted). While not subject to the constraints of Federal Rule of Evidence 404(b), inextricably intertwined evidence "must satisfy the balancing test set forth in Rule 403 to be admissible." United' States v. Griffin, 493 F.3d 856, 867 (7th Cir.2007). Rule 403 provides that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed.R.Evid. 403. We review evidence admitted over a Rule 403 objection for an abuse of discretion. The district court's admission of such evidence is "entitled to special deference. Only in an extreme case are appellate judges competent to second-guess the judgment of the person on the spot, the trial judge." United States v. Strong, 485 F.3d 985, 991 (7th Cir.2007) (quoting United States v. Gardner, 211 F.3d 1049, 1055 (7thCir.2000)).
We conclude that the testimony regarding the beatings as well as the photographs and Tracy's 911 call were inextricably intertwined in setting forth the chronology of the events that transpired the day Samuels brought Terry the FEG and aided Terry in the possession of the gun. The story of Terry's possession and Samuels's aiding could not be told without the admission of evidence regarding the beatings. This evidence, while certainly disturbing, was essential to provide a chronology of the events that ultimately led to Tracy calling 911 and the police apprehending Samuels and Terry. In addition, despite his admissions at the plea hearing and concessions on appeal, the government was tasked at trial with proving Terry was a prior convicted felon who possessed a firearm as well as Samuels's aiding and abetting. The testimony about the beatings was "so blended or connected that [it] incidentally involve[s], explain[s] the circumstances surrounding, or tend[s] to prove any element of, the charged crime," particularly Terry's possession of the FEG. Gougis, 432 F.3d at 743. That testimony presented eyewitness accounts of Terry's possession of the gun. It also presented evidence of Samuels's facilitating Terry's possession of the gun and his acquiescence, if not encouragement, of Terry's use of the gun.
Our inquiry, however, does not end here, and we must determine whether the probative value of this evidence was outweighed by its prejudicial effect. As for the testimony, we conclude that it was necessary to prove Terry's possession of a firearm, particularly as encompassed in Stephen's testimony and the County Line clerk's testimony, and the probative value of that testimony outweighed any prejudicial *814 effect. Furthermore, while this evidence is offensive, in its absence "there would be a chronological and conceptual void in the events surrounding [Samuels aiding and abetting Terry's possession of the firearm] with the result that the other evidence would appear detached and not in context with all of the existing facts." United States v. Ostrowsky, 501 F.2d 318, 322 (7th Cir. 1974). Samuels knew Terry had the gun, he encouraged the ongoing assault with and without the gun, and he directed Terry to dispose of the gun when the police caught up with them. Finally, while another judge might have reached a conclusion different from that of the district court, the district court's decision was not fundamentally wrong and therefore we conclude it did not abuse its discretion. See Hall v. Norfolk S. Railway Co., 469 F.3d 590, 594 (7th Cir.2006) (citation omitted).
Samuels points to the holding in Ostrowsky in support of his claim that too much of his trial was spent on the beatings. In Ostrowsky, we held that the evidence that a car owner had been murdered was admissible to establish the deceased's vehicle had been stolen and afterward had traveled interstate. However, evidence of the defendant's reasons for the murder as well as details regarding the disposal of the victim's body along with the tires of the car used to dispose the body were not probative of any element of the charged crime. Those additional details could only serve to inflame the jury and prejudice the defendant. Ostrowsky, 501 F.2d at 323. Unlike the details of the murder in Ostrowsky, in this case the beatings were not a singular event in time or only related to one element of the crime. Rather, they were related, ongoing occurrences tightly woven into the chronology and circumstances of acts probative of the felon in possession elements as well as the aiding and abetting element of Samuels's charged crime. To that extent, we conclude that the district court did not abuse its discretion in admitting testimony about beatings Stephen suffered because they went to the proof of Terry's possession of the gun from the time he received it to the time he got rid of it.
The admission of Tracy's 911 call and photographs of the blood in the nursing home parking lot, however, was unnecessary to prove either the felon in possession prongs or the aiding and abetting prong of Samuels's charge. The prejudicial value of the admission of that evidence outweighed its probative effect. However, we conclude that the admission of this evidence was a harmless addition. The other evidence presented at trial overwhelmingly demonstrated that Terry was a felon who possessed a firearm and that Samuels directly handed Terry the FEG and created a violent situation which facilitated and provided a rationale for the possession. He knowingly brought a gun and a convicted felon into a tense situation, which, by his own making, became violent, thus leading to the natural consequence of a felon's possession of a firearm. Andrews, 442 F.3d at 1002. In addition, the district court gave the jury a the limiting instruction in accord with the Seventh Circuit pattern instructions which directed the jury to determine the defendant's guilt of the crime charged, despite having heard evidence of other acts. In conjunction with the other evidence presented at trial, we conclude that "[t]his limiting instruction mitigated whatever unfair prejudice may have existed." United States v. Lane, 323 F.3d 568, 582 (7th Cir.2003).
Samuels asserts that even if this court does not vacate his conviction, his case should be remanded for resentencing. Samuels argues that the district court improperly calculated his sentencing range under the United States Sentencing Guidelines by applying the aggravated assault *815 cross-reference and a six-level increase in his offense level for the injury sustained by Stephen being greater than serious bodily injury, but less than permanent bodily injury. Samuels also contests the district court's denial of a reduction in his offense level for acceptance of responsibility. Finally, Samuels contends that his personal characteristics warrant a sentence reduction. We will address each of these claims in turn.
In sentencing, a district court must first calculate the appropriate Guideline range by resolving disputed factual issues, determining relevant conduct by a preponderance of the evidence, and applying appropriate sentencing enhancements. United States v. Robinson, 435 F.3d 699, 700-01 (7th Cir.2006). Then, considering the factors set forth in 18 U.S.C. § 3553, the district court must decide whether to impose a sentence within or outside of the Guideline range. Id. A sentence within the Guideline range, for purposes of appellate review, is presumptively reasonable. United States v. Sachsenmaier, 491 F.3d 680, 685 (7th Cir.2007) (citing Rita v. United States, ___ U.S. ___, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)). We review a district court's application of the Guidelines de novo and findings of fact for clear error. A district court's factual findings are entitled to deference "unless we have a definite and firm conviction that a mistake has been made." United States v. Wilson, 502 F.3d 718, 721 (7th Cir.2007) (quoting United States v. Fudge, 325 F.3d 910, 920 (7th Cir.2003)).
Pursuant to U.S.S.G. § 2X2.1, the offense level for aiding and abetting is the same as the underlying offense. Thus, we look to U.S.S.G. § 2K2.1, the felon in possession of a firearm section, which provides a base offense level of twelve for a felon in possession of a firearm. Section 2K2.1(c), also provides a cross-reference
[i]f the defendant used or possessed any firearm or ammunition in connection with the commission or attempted commission of another offense, or possessed or transferred a firearm or ammunition with knowledge or intent that it would be used or possessed in connection with another offense, apply . . . § 2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to that other offense, if the. resulting offense level is greater than that determined above. . . .
U.S.S.G. § 2K2.1(c)(1)(A).
In this case the district court applied the cross-reference for aggravated assault, which is a "felonious assault that involved (1) a dangerous weapon with the intent to cause bodily injury with that weapon; (2) serious bodily injury; or (3) intent to commit another felony." U.S.S.G. § 2A2.2, cmt., n. 1. The base offense level for aggravated assault is fourteen. The district court, in turn, made additional findings of fact and applied specific offense characteristics, namely the use of a dangerous weapon, victim injury, a crime motivated by a thing of value, and physical restraint of the victim to increase Samuels's base offense level from fourteen to twenty-eight.
Samuels argues that the application of the aggravated assault cross-reference is in error because he was not charged and convicted of aggravated assault and the evidence does not establish that he possessed the requisite intent for the crossreference to apply: We conclude that the aggravated assault cross-reference was appropriate. Samuels aided and abetted Terry in possessing a firearm "in connection with the commission . . . of another offense," namely the assault of Stephen. There was evidence of the requisite intent. Samuels stated during his post-arrest interview that he brought along his FEG in anticipation of a fight while trying to regain *816 the Glock from Stephen. Stephen, in turn, testified that he thought he saw Samuels hand Terry what appeared to be a gun, Samuels directed Terry to hold Stephen, and Samuels was the first to strike Stephen in the County Line parking lot, thereby escalating the encounter which spawned a violent chain of events. Moreover, there was trial testimony that both Samuels and Terry struck Stephen with the gun. Thus, based on the evidence presented at trial, the district court did not err in applying the aggravated assault cross-reference.
Next Samuels challenges the district court's assessment of a six-level increase for injury sustained by Stephen. The Guidelines provide for a five-level increase for serious bodily injury and a seven-level increase for permanent bodily injury sustained by the victim of the crime. U.S.S.G. § 2A2.2(3). In this case, the district court imposed a six-level increase, based on its finding that the Stephen's injuries were between serious and permanent.
A serious bodily injury involves extreme physical pain, protracted impairment of a bodily member, organ, or mental function, and requires medical intervention, such as hospitalization. U.S.S.G. § 1B1.1, cmt n. 1(L). A permanent bodily injury, on the other hand, involves "substantial risk of death; loss or substantial impairment of the function of a bodily member, organ, or mental faculty that is likely to be permanent, or an obvious disfigurement that is likely to be permanent." U.S.S.G. § 1B1.1, cmt n. 1(J). In addition to his trial testimony, Stephen testified at the sentencing hearing that he was in the hospital for a week, suffered headaches, had pain from a bite mark he sustained during the fighting, and had occasional blurred vision in his left eye. Stephen also stated that he continued with counseling as a result of the trauma of the attack. Stephen's mother also testified at sentencing. She stated that she had stayed with her son for a week during his hospital stay following the altercation with his cousins and that he suffered kidney damage and a broken bone behind his eye upon which the doctors did not operate because of the proximity to Stephen's eye. Had the government submitted medical reports for the district court's consideration at sentencing, the proof for review might have been strengthened. However, as it is, based on the testimonial evidence presented at trial and sentencing of Stephen's blood loss, loss of consciousness on the date of the attacks, one-week hospital stay, renal problems, recurring blurred vision, headaches, and the continued need for counseling following the attacks, we conclude that the district court did not err in imposing a six-level increase in Samuels's offense level. The number and degree of the injuries provided a sufficient basis for the district court's determination that Stephen's injuries were greater than the extreme physical pain or protracted bodily impairment required for serious bodily injury, but less than the substantial impairment required for a permanent bodily injury. Compare United States v. Desormeaux, 4 F.3d 628, 630 (8th Cir.1993) (holding that the serious bodily injury enhancement applied where the victim had been stabbed in the kidney, lost blood, and was hospitalized for four days); United States v. Moore, 997 F.2d 30, 37 (5th Cir.1993) (affirming the serious bodily injury enhancement where the victim was shot in the leg, treated in the emergency room without a hospital stay, and suffered occasional leg pain), with United States v. Webster, 500 F.3d 606, 607-08 (7th Cir.2007) (affirming the permanent bodily injury enhancement where the victim suffered facial scarring); United States v. Miner, 345 F.3d 1004, 1006-07 (8th Cir.2003) (affirming the permanent bodily injury enhancement where the victim *817 suffered permanent scarring and the presence of a bullet inside his body).
Samuels also challenges the district court's denial of a two-level reduction in his offense level for acceptance of responsibility pursuant to U.S.S.G. § 3El.l(a). Samuels asserts that he is entitled to the acceptance of responsibility reduction because he attempted to enter a plea, including an Alford plea. Samuels further notes that he cooperated with Detective Becker after his arrest.
Because the district court's denial of a reduction in the offense level for acceptance of responsibility is a factual determination, we review it for clear error. United States v. Dong Jin Chen, 497 F.3d 718, 720 (7th Cir.2007). The district court concluded that an acceptance of responsibility reduction was not warranted because Samuels put the government to its burden of proving its case before a jury and because Samuels did not accept responsibility for his actions. We find that the district court did not err in denying Samuels a reduction for acceptance of responsibility. Not only did Samuels proceed to trial, but he put the government to the burden of proving elements to which he had agreed at his attempted plea, namely those relating to Terry's felon-in-possession charge. Moreover, Samuels's invocation of United States v. Rodriguez, 975 F.2d 999, 1008 (3d Cir. 1992), does not advance his argument because unlike Rodriquez who was later acquitted of a gun charge that he refused to admit at his plea hearing, Samuels was convicted of aiding and abetting his brother in possession of a firearm, thereby undercutting his claim for acceptance of responsibility for those elements to which he was prepared to plead guilty.
Finally, Samuels argues that his personal circumstances, namely his status as a husband and caregiver to his children, others' children, and his parents entitle him to a reduction in his Guideline sentence. We conclude that Samuels's circumstances are not so extraordinary as to rise to a level of establishing that the Guideline sentence "would have an effect on the family or family members beyond the disruption to family and parental relationships that would be present in the usual case." United States v. Canoy, 38 F.3d 893, 907 (7th Cir.1994). Accordingly, the district court did not err in declining to depart from the properly computed Guideline range in imposing Samuels's sentence. Samuels did not challenge the reasonableness of his sentence, but rather only the Guideline calculation. Accordingly, because the district court properly calculated Samuels's Guideline range, we affirm his sentence.

III.
Viewing the evidence in the light most favorable to the government, we conclude that there was sufficient evidence upon which a rational jury could convict Samuels of aiding and abetting a felon in possession of a firearm. The probative value" of the testimony regarding Stephen's beatings outweighed its prejudicial effect, and any prejudice resulting from the admission of the 911 call and photographs was harmless due to the other evidence and limiting instruction the jury received. As for Samuels's sentence, the district court did not err in applying the aggravated assault cross-reference, applying six points for Stephen's injuries being between serious and permanent, and denying a reduction for acceptance of responsibility. Finally, the district court did not err in declining to reduce Samuels's sentence based on his family circumstances, which were not extraordinary. Accordingly, we AFFIRM Samuels's conviction and sentence.
NOTES
[1]  At oral argument, Samuels's counsel relayed that Samuels tried to reclaim the Glock because he wanted to prevent his cousin or him from being tied to some criminal history that was connected with that firearm.