State of Tennessee v. Lawrence Key

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs October 2, 2012

STATE OF TENNESSEE v. LAWRENCE KEY

Appeal from the Criminal Court of Shelby County
No. 10-07654 Carolyn Wade Blackett, Judge

No. W2012-00145-CCA-R3-CD - Filed November 15, 2012

Lawrence Key (“the Defendant”) appeals his jury convictions for two counts of aggravated
robbery. In his appeal, he asserts that the evidence presented at trial was insufficient to
support his convictions. After a thorough review of the record and the applicable law, we
affirm the Defendant’s convictions.

Tenn. R. App. P. 3 Appeal as of Right; Judgments
of the Criminal Court Affirmed

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which J AMES C URWOOD W ITT,
J R., and R OGER A. P AGE, JJ., joined.

Steven C. Bush, Public Defender; Barry W. Kuhn, Assistant Public Defender (on appeal);
and James Hale, Assistant Public Defender (at trial), Memphis, Tennessee, for the appellant,
Lawrence Key.

Robert E. Cooper, Jr., Attorney General & Reporter; Clark B. Thornton, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Pam Fleming, Assistant District
Attorney General, for the appellee, State of Tennessee.

OPINION

Factual and Procedural Background

A Shelby County Grand Jury indicted the Defendant and Andrea Key, the Defendant’s
cousin, on two counts of aggravated robbery. Prior to the Defendant’s trial, the State filed
a notice of intent to seek an enhanced punishment for the Defendant pursuant to Tennessee
Code Annotated section 40-25-120. The Defendant was tried before a jury on October 24-
27, 2011. The Defendant’s trial was bifurcated into two parts: the first to establish the
Defendant’s guilt as to the two counts of aggravated robbery; and the second to determine
whether the Defendant had at least two prior convictions of aggravated robbery in order to
be sentenced as a repeat violent offender under Tennessee Code Annotated section 40-35-
120.

Devin Terry testified at trial that at approximately 1:45 or 2:00 a.m. on May 31, 2010,
he had just finished playing basketball. He drove to pick up his friend, Nicolette Henderson,
and they went together to a park in Shelby County. Terry was driving a 2001 Ford Focus.
Shortly after arriving at the park and while still in the car, Terry looked down at his phone.
“[T]he next thing [he knew],” someone shattered both windows on the driver’s side.
Someone said to him, “Give me everything . . . you got.” Terry noticed three individuals
surrounding the car – two men standing on the driver’s side and one female standing on the
passenger’s side.

Terry stated that these three individuals took his phone, the key to his car, and his
shorts. He believed that the individuals also took Henderson’s pants. During this incident,
Terry noticed that each man had something in his hand – the man standing closer to the front
of the car had “something black,” and the other had “something brown.” Terry could not
discern what the black item was, but he described the brown item as “a log or a four by four.”
Terry estimated that the man standing closer to the front of the car was in his thirties and that
the man farther back looked like a teenager. He could not discern the age of the female or
whether she had something in her hand. The three individuals involved in the robbery
continued “rummaging” through Terry’s vehicle until a Chevrolet Tahoe arrived. At that
point, those three individuals immediately left in the Tahoe. Terry identified pictures of his
vehicle that showed glass in the driver’s seat where he was sitting, as well as compact discs
(“CDs”) and paper strewn from the car.

On cross-examination, Terry acknowledged that the passenger side of the car also had
broken glass. He denied seeing who broke the windows or who said, “Give us what you
got.” Terry confirmed that the three individuals involved in the robbery did not have
anything in their hands as they rummaged through Terry’s car. Terry stated that he was
sitting still during this ordeal, which lasted for approximately five minutes.

Nicolette Henderson testified that on May 31, 2010, she was with Terry at a park in
Shelby County. They were sitting in Terry’s aunt’s vehicle, and she was sitting in the front
passenger seat. She stated,

When we first pulled into the park, I saw a woman, but I didn’t think
nothing [sic] of it. We sat in the park, and we began to talk; and then two men
approached [Terry’s] side of the vehicle and a lady came on mine. The guys

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 broke the glass on [Terry’s] vehicle and kind of pushed him over into my lap.
After that, we were told to close our eyes while the guy began to search [Terry]
and the girl began to search me.

Henderson observed that the younger male had a bat and that the female had what
Henderson described as a “shank knife” or “box cutter.” She estimated that the blade on the
knife was approximately three inches long. According to Henderson, the female pointed the
knife toward Henderson’s neck and said, “Close your eyes.” The female searched Henderson
and, in the process, removed and confiscated Henderson’s shorts and shoes. From the broken
glass, Henderson had scratches on her leg and the left side of her body.

After the incident, police arrived at the scene and spoke with Henderson. She agreed
to give a statement at the police station, where she also was shown a photographic lineup.
At trial, she recounted identifying two individuals as two of the three perpetrators. Further,
she noted that the man she identified in the lineup was the man who searched Terry’s shorts
and put his hand inside her bra to check for money. This man was the younger of the two
men engaged in the robbery. Henderson could not remember which man broke the windows.
However, she acknowledged that in her statement to police she stated that the younger man
broke the windows. She also noted that the woman she identified in the lineup was the
woman who stole her shorts and held the “shank knife.”

Sergeant Glen Barber, with the Memphis Police Department, testified that he was the
lead investigator on this case. At some point after the robbery, three suspects surfaced as the
potential offenders: the Defendant; the Defendant’s cousin, Andrea Key; and the Defendant’s
nephew, Octavius Key. Sergeant Barber had the opportunity to speak with the Defendant on
June 1, 2010, at which point Sergeant Barber advised the Defendant of his Miranda rights.
The Defendant signed an advice of rights form. During the interview, the Defendant
confirmed that he participated in the robbery at O’Brien Park on May 31, 2010. The
Defendant identified his nephew, Octavius,1 and his cousin, Andrea Key, in a photographic
lineup as the other participants in the robbery. He denied that he was armed but stated that
he had his dogs with him. Regarding the others’ weapons, the Defendant stated, “Octavius
had a stick, and I don’t know what Andrea had. I just heard her over there hollering at
[Henderson].”

1
The individuals involved in the commission of the robberies share a common surname. Therefore,
we will refer to these individuals using their given names. We intend no disrespect.

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 The Defendant, in his statement, described the details of the robbery as follows:

We were . . . sitting in the park, and I was sitting on the table, and my
dogs was [sic] under me, and . . . Andrea and Octavius walked off to the store,
and a black car pulled up in the park, and they went to the store; and when they
were coming back, I walked up toward them; and we met up not too far from
the car; and Andrea said, “Let’s get ‘em.’”

Octavius knocked the back window out, and I knocked the front
window out. And I opened the door and got in and started searching the car.
I heard Andrea tell them to give their clothes up and to get out and to run
through the park.

Once I got done searching, I seen [sic] a truck pull up, and I grabbed the
CDs and I ran.

When asked where the items were that they obtained from the robbery, the Defendant
answered, “You’ve got to ask Andrea. She had the keys and CDs. She said that she was
going to sell the phone, too.”

The Defendant described the roles that each of the perpetrators played in the robbery
as follows: “I busted the window out and searched for CDs. Octavius busted a window out
and searched the car too. Andrea was hollering and going through the glove compartment.
I know she opened the door on the other side.”

The Defendant stated that he did not keep any of the items taken in the robbery
because Andrea confiscated all the items. At the conclusion of his statement, the Defendant
stated, “I would like to say that I apologize. . . . I get put in certain situations sometimes and
don’t do no [sic] thinking. I can’t explain it, and ain’t nobody [sic] helping me to understand
it, but I am really sorry for what I did.”

On cross-examination, Sergeant Barber agreed that the Defendant originally told a
story that was not as believable, based on Sergeant Barber’s discussions with Octavius and
Henderson. Sergeant Barber told the Defendant some of the facts he had learned previously,
and the Defendant then gave the statement read at trial. Defense counsel asked Sergeant
Barber about his belief that the Defendant used a rock during the commission of the robbery.
Sergeant Barber acknowledged that he did not follow up with the Defendant when the
Defendant denied having a weapon. However, Sergeant Barber “kn[ew] there was a rock.”

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 Octavius Key testified that in May 2010, he was sixteen years old. He lived with his
mother and grandmother, and the Defendant also lived with them at that time. On May 31,
2010, Octavius heard the Defendant and Andrea talking about comitting a robbery. Although
the Defendant told Octavius to stay at home, Andrea told Octavius to come along with them.
He recalled that Andrea had a box cutter with her. They arrived at the nearby park sometime
after midnight, and they sat, waiting for a car to arrive.

When a car arrived, Octavius approached the car and reported to the others that two
individuals were inside the car. The Defendant instructed him to throw a brick at the
window, and he obeyed. Then, Andrea approached the right side of the car, and the
Defendant approached the left side. Octavius searched the male and also searched the
female’s bra for money. The Defendant searched the car, and Andrea searched the female.
From their search, they confiscated a cell phone, some CDs, and a pair of black shorts.
Octavius stated that the Defendant kept the CDs and cell phone and that he (Octavius) did
not get anything from the robbery.

After the robbery, Octavius and the Defendant went home to sleep. The police woke
them about two hours later and arrested them. Octavius acknowledged that he gave an initial
statement to police but told them that his only involvement in the robbery was that he threw
a rock at the window. Octavius stated that the only weapon that he had was a stick that he
picked up at the park. He estimated that the stick was approximately two inches long by two
inches wide. He acknowledged telling police that the stick was two feet long by three inches
wide but insisted that the stick actually was only two inches long. Octavius stated that he
was carrying the stick for protection.

At the conclusion of the State’s proof, the Defendant moved for a judgment of
acquittal, and the trial court denied the motion. The Defendant chose not to testify and
elicited no proof.

At the close of proof, the jury deliberated and returned a verdict of guilty for both
counts of aggravated robbery. The trial court then proceeded with the second portion of the
trial to allow the jury to determine whether the Defendant had at least two prior convictions
for aggravated robbery.

Sonia Rogers, with the Shelby County Sheriff’s Department, testified as an expert in
fingerprint examination. She stated that she analyzed the fingerprints contained within the
Defendant’s records and confirmed that the fingerprints matched those of the Defendant.

Stephanie Herbin, a deputy court clerk with the Shelby County Criminal Court,
testified that she maintains records for the court. She attested to the fact that the Defendant

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pleaded guilty to three counts of aggravated robbery on March 2, 1999. For those
convictions, the Defendant served an effective sentence of nine years. She also identified
a record indicating that the Defendant pleaded guilty to one count of aggravated robbery on
March 19, 2007. For that conviction, the Defendant served eight years in incarceration at
30%. The State rested its proof, and the defense offered no proof. The jury deliberated and
determined that “the [D]efendant has at least two prior convictions for aggravated robbery.”

Based on the jury’s verdict, the trial court sentenced the Defendant to two concurrent2
terms of life without parole pursuant to Tennessee Code Annotated section 40-35-120. The
Defendant filed a motion for new trial, which the trial court subsequently denied. He now
appeals, arguing that the evidence is insufficient to support his convictions.

ANALYSIS

Sufficiency of the Evidence

Our standard of review regarding sufficiency of the evidence is “whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.” Jackson
v. Virginia, 443 U.S. 307, 319 (1979). See also Tenn. R. App. P. 13(e). After a jury finds
a defendant guilty, the presumption of innocence is removed and replaced with a presumption
of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Consequently, the defendant
has the burden on appeal of demonstrating why the evidence was insufficient to support the
jury’s verdict. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

The appellate court does not weigh the evidence anew. Rather, “a jury verdict,
approved by the trial judge, accredits the testimony of the witnesses for the State and resolves
all conflicts” in the testimony and all reasonably drawn inferences in favor of the State. State
v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, “the State is entitled to the strongest
legitimate view of the evidence and all reasonable or legitimate inferences which may be
drawn therefrom.” Id. (citation omitted). This standard of review applies to guilty verdicts
based upon direct or circumstantial evidence. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn.
2011) (citing State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). In Dorantes, our
Supreme Court adopted the United States Supreme Court standard that “direct and
circumstantial evidence should be treated the same when weighing the sufficiency of such
evidence.” Id. at 381. Accordingly, the evidence need not exclude every other reasonable

2
Both written judgments indicate that the two sentences of life without parole were to run
concurrently. However, in the transcript of the sentencing hearing, the trial court announced that it was
sentencing the Defendant to two consecutive terms of life without parole.

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hypothesis except that of the defendant’s guilt, provided the defendant’s guilt is established
beyond a reasonable doubt. Id.

In our review, we yield to the jury’s determinations regarding “[q]uestions concerning
the credibility of witnesses, the weight and value of the evidence, as well as all factual
disputes raised by the evidence.” State v. Flake, 88 S.W.3d 540, 554 (Tenn. 2002) (citing
State v. Holder, 15 S.W.3d 905, 912 (Tenn. Crim. App. 1999)). Furthermore, it is not the
role of this Court to reevaluate the evidence or substitute its own inferences for those drawn
by the jury. State v. Winters, 137 S.W.3d 641, 655 (Tenn. Crim. App. 2003) (citation
omitted).

Robbery is defined as “the intentional or knowing theft of property from the person
of another by violence or putting the person in fear.” Tenn. Code Ann. § 39-13-401(a)
(2006). A robbery becomes aggravated when it is “[a]ccomplished with a deadly weapon or
by display of any article used or fashioned to lead the victim to reasonably believe it to be
a deadly weapon.” Tenn. Code Ann. § 39-13-402(a) (2006). A deadly weapon, for purposes
of this statute, is defined as “[a]nything that in the manner of its use or intended use is
capable of causing death or serious bodily injury.” Id. § 39-13-402(a)(5)(B).

The Defendant contends that the evidence is not sufficient to support his two
convictions for aggravated robbery. The State responds that the evidence is sufficient to
establish the Defendant’s guilt through his own conduct and through the “conduct of others
for which he was criminally responsible.”

The jury received an instruction as to criminal responsibility. Pursuant to Tennessee
statute, “A person is criminally responsible as a party to an offense, if the offense is
committed by the person’s own conduct, by the conduct of another for which the person is
criminally responsible, or by both.” Tenn. Code Ann. § 39-11-401 (2006). Furthermore, a
defendant is “criminally responsible for an offense committed by the conduct of another”
when, “[a]cting with intent to promote or assist the commission of the offense, or to benefit
in the proceeds or results of the offense, the person solicits, directs, aids, or attempts to aid
another person to commit the offense.” Id. § 39-11-402(2) (2006). Our supreme court has
explained that our criminal responsibility statute is premised on the view that “in addition to
the primary criminal actor, aiders and abettors should be held accountable for the criminal
harms they intentionally facilitated or helped set in motion.” State v. Hatcher, 310 S.W.3d
788, 811 (Tenn. 2010) (quoting State v. Sherman, 266 S.W.3d 395, 408 (Tenn. 2008)).
While a person’s mere presence during the commission of a crime is not sufficient to confer
criminal liability, it is not necessary that one physically commit the underlying offense;
encouragement of the principal actor will establish such liability. Sherman, 266 S.W.3d at

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408. A person convicted under a theory of criminal responsibility is considered a principal
offender as if he committed the underlying offense himself. Hatcher, 310 S.W.3d at 811.

The proof at trial established that the Defendant and Andrea discussed committing a
robbery while still at their home on the evening of May 30, 2010. Around midnight, they
decided to walk to a nearby park to commit the robbery and allowed Octavius to join them.
Terry and Henderson drove into the park sometime after approximately 1:45 or 2:00 a.m.
Within a few minutes of entering the park, someone shattered both windows on the driver’s
side, where Terry was sitting. Terry observed two men and one woman surround the car.
He stated that one man had “something brown” in his hand that Terry described as either “a
log or a four by four.” Henderson recalled that the object was a bat. Octavius later admitted
that he was carrying a stick “for protection.” Despite his prior statement that the stick was
two feet long, Octavius insisted at trial that the stick was only two inches long.

After knocking out the window, one of the individuals involved in the robbery told
Terry, “Give me everything . . . you got.” As a result of the robbery, the perpetrators took
Terry’s phone, car keys, and shorts.

Henderson testified that a woman approached the passenger side of the car holding
a “shank knife” that she estimated had a blade of approximately three inches. This female
pointed the “shank knife” at Henderson’s neck and stated, “Close your eyes.” The female
then proceeded to confiscate Henderson’s shorts and shoes.

The Defendant, in a statement to Sergeant Barber, admitted to his involvement in the
robbery of Terry and Henderson. He denied having a weapon but remembered that Octavius
had a stick. The Defendant did not remember that Andrea had a weapon. In discussing his
role, the Defendant admitted to knocking out the front, driver’s side window and searching
inside the car for valuables.

The State presented ample evidence for the jury to conclude that, at the very least, the
Defendant aided in the commission of, and, thus, was criminally responsible for, the
aggravated robberies of Terry and Henderson. Therefore, when viewed in a light most
favorable to the State, the evidence presented at trial was sufficient to support the
Defendant’s convictions for aggravated robbery. Accordingly, the Defendant is entitled to
no relief.

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 CONCLUSION

For the reasons articulated above, we affirm the Defendant’s convictions for
aggravated robbery.

_________________________________
JEFFREY S. BIVINS, JUDGE

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