State of Tennessee v. Joseph Bernette Driver

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs December 7, 2011

STATE OF TENNESSEE v. JOSEPH BERNETTE DRIVER

Direct Appeal from the Criminal Court for Davidson County
No. 2010-A-498 J. Randall Wyatt, Jr., Judge

No. M2011-00536-CCA-R3-CD - Filed August 31, 2012

A Davidson County jury convicted the Defendant, Joseph Bernette Driver, of facilitation of
aggravated robbery and evading arrest. The trial court sentenced the Defendant, a Range I
standard offender, to six years for the facilitation of aggravated robbery conviction and a
concurrent term of eleven months and twenty-nine days for the evading arrest conviction.
On appeal, the Defendant contends that: (1) the trial court erred in denying his motion to
suppress the show-up identification; (2) the evidence is insufficient to support his conviction
for facilitation of aggravated robbery; and (3) the trial court erred by imposing the maximum
sentence for the conviction of facilitation of aggravated robbery. After a thorough review
of the record and relevant authorities, we affirm the judgments of the trial court.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL and D. K ELLY T HOMAS, J R., JJ., joined.

Jeffrey A. DeVasher (on appeal) and Jonathan F. Wing and Tyler Chance Yarbro (at trial),
Nashville, Tennessee, for the appellant, Joseph Bernette Driver.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; Ben Ford and Allen Grant,
Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

I. Facts
A. Suppression Hearing
 A Davidson County Grand Jury indicted the Defendant for aggravated robbery and
evading arrest. The Defendant filed a motion to suppress the testimony from Jonathan
Colvin, regarding an identification he made of the Defendant during a show-up identification
procedure on November 17, 2009, at the scene of a crime committed earlier on the same day.
At the motion hearing, the parties presented the following proof:

Detective Byron Agoston, a detective with the Metro Nashville Police Department,
testified he conducted general surveillance on Gallatin Road in the Madison area on
November 17, 2009. At approximately 2:00 a.m., he observed the Defendant standing
outside a Mapco convenience store located at the corner of Gallatin Pike and Due West
Avenue. Detective Agoston noticed the Defendant because it had started to rain and the
Defendant was standing on the side of the building that was not covered. Detective Agoston
“set up across the street in the parking lot and just kind of watched the business for a little
while to see if anything happened.” The detective did not see the Defendant come around
the side of the building, so he decided to pull around the building to see if the Defendant was
still standing on the side of the building.

As the detective drove toward the Mapco, he noticed the Defendant run out of the
store and around the side of the building toward the parking lot of a dentist’s office located
on Due West Avenue. Detective Agoston followed the Defendant, and he radioed dispatch
to find out if any calls had been received from the Mapco. He testified that dispatch
informed him that a call had just been received from the Mapco, stating that a robbery
occurred at the store. Detective Agoston saw the Defendant hop into the driver’s seat of a
white car, drive into another business’s parking lot, and enter Due West Avenue. The
detective followed the car and initiated a traffic stop.

The detective testified that the Defendant “pulled about halfway up [a] driveway and
jumped out and started running through front yards.” Detective Agoston chased the
Defendant, followed him behind a house, and found him sitting next to a metal shed. The
detective took the Defendant into custody and turned him over to another officer, Officer
Andrew Ivey, to be transported back to the scene. Detective Agoston then retraced the steps
of the foot pursuit to determine whether the Defendant dropped any evidence along the way.
When the detective got back to Due West Avenue, he noticed that the Defendant’s car was
gone. A patrol officer later found the vehicle in a nearby parking lot.

After Detective Agoston retraced the pursuit route, he returned to the Mapco
convenience store and learned that police officers had conducted a show-up identification.
The detective interviewed the clerk working at the Mapco convenience store during the
robbery, and the clerk confirmed that the Defendant was the robber. The clerk stated that the
only difference was that the robber had long hair at the time of the robbery and the Defendant

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now did not. Detective Agoston testified that a wig with a knit toboggan attached to it was
found in the back seat of the vehicle the Defendant drove before being stopped by police.

At the hearing, Detective Agoston testified that he was familiar with the procedural
order issued by his department regarding the guidelines for investigating a case, including
the proper procedures for conducting a show-up identification. The order includes a
guideline stating that a show-up identification should not be conducted if an officer has
probable cause for an arrest.

Jonathan Colvin testified that he worked at the Mapco convenience store as a clerk
on November 17, 2009. He noticed a man enter the store and act suspiciously. Colvin
described the man as “waiting around, you know, sort of meandering in the store a little bit,
waiting for a group of customers to leave.” Once the group of customers left, the man came
up to the register and demanded money. Colvin stated that, when the cash register jammed,
the man became impatient, and he lifted up his shirt and exposed what appeared to be a .38
caliber handgun tucked into his pants. Colvin testified that the man then threatened him,
saying “something to the [e]ffect of . . . do not make me use this or . . . hurry up do not make
me use this.” After the register opened, Colvin placed the money into a bag and handed it
to the robber. The robber ran out of the store toward the side of the building along Due West
Avenue. Colvin immediately called 911 and reported the robbery. Colvin described the
robber as wearing a “dark hoodie” pulled over his head and covering his hair line, “mirrored
chromed silver type glasses,” and having long hair.

Colvin testified that, within 10-20 minutes of the robbery, police brought the
Defendant to the Mapco convenience store in a marked police vehicle. Officers brought the
Defendant to the edge of the backseat of the patrol car and asked Colvin to identify him.
Colvin identified the Defendant as the man who had robbed him, “although his appearance
had changed.” Colvin described that the Defendant had “short cropped hair” when he
identified him as the robber, and, at the time of the robbery, the robber had long, “braided
sort of type” hair. Colvin, however, stated that he had “no doubt” that the Defendant was the
robber. After Colvin’s identification, officers confirmed to Colvin that the Defendant was
the man they pursued and captured.

Officer Andrew Ivey, an officer with the Metro Nashville Police Department, testified
he worked on November 17, 2009, and, during his shift, he transported the Defendant in his
police car after the Defendant’s arrest. He, however, could not recall conducting the show-
up identification with Colvin at the Mapco convenience store.

After hearing the proof and considering the relevant authorities, the trial court ruled
that the show-up identification was proper; therefore, it denied the Defendant’s motion to

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suppress the identification evidence. In denying the Defendant’s motion to suppress the
identification, the trial court made the following finding:

I realize that there is a danger sometimes for a show-up to lead
to [an] . . . irreparable misidentification, but I think that the case law
would permit[,] even the cases cited by the [D]efendant[,] show-ups in
certain circumstances . . . .

[Detective Agoston] observes the [D]efendant at Mapco. It is
raining. Apparently, he saw him come running out [of] the store after
observing him a little earlier[.] [B]efore that[, he ran] toward the
parking lot [on] Due West and he jumps into the car and takes off[.]
[T]here is a call regarding a robbery and [Detective Agoston] chases
this man. He gets out of the car and runs and he catches him near a
shed, transported him back to the scene[,] which was within moments
after this all happened[,] and apparently the man was identified in the
police car.

I recognize that if there was suggestiveness about it . . . then that
would be an obvious problem, but I think in this case based on what I
can hear about it from the testimony, the [Defendant] was there. Mr.
Colvin has testified here that he was asked [if] this suspect was
someone that you can identify without being told about all the details
of it until after he identified him.

. . . in this particular case[,] under the circumstances[,] the
[D]efendant will be able to be viewed here in court and the
identification of him at the scene by Mr. Colvin will be admitted . . . .

B. At Trial

At the Defendant’s trial, the following evidence was presented: Jonathan Colvin
testified that he worked the night shift at the Mapco station and convenience store at the
corner of Gallatin Pike and Due West Avenue. Colvin repeated much of the testimony given
at the suppression hearing, stating that, in the early morning hours of November 17, 2009,
he noticed a man enter the convenience store at the same time as a group of customers. The
man “was kind of staying by himself and in an area where most customers would not
gravitate and look at things for a long period of time.” After the customers checked out, the
man “promptly walked up to the cash register and ask[ed] for the money out of the cash
register.” When Colvin tried to open the cash register, it jammed and the man got a “little

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more agitated.” He lifted the left side of his shirt, exposing the handle of a gun and said, “Do
not make me use this.” Colvin testified that he recognized the gun as a .38 caliber handgun
because he grew up in a military family and “knew a lot about personal firearms and things
like that.” Colvin testified that the robber wore dark pants, a “faded black kind of hoodie
with his hood drawn over his face,” glasses with a reflective silver finish, and his “hair was
coming out of the bottom of the hoodie.” After Colvin handed the robber the bag of money,
the robber ran out of the store and around the building toward Due West Avenue. Colvin
stated that he looked at the robber’s face for between forty-five seconds and a minute before
the robber left the store. Colvin immediately reported the robbery, and the police dispatcher
informed him that police were already in pursuit of a suspect.

Soon after he reported the robbery, Colvin testified that a police officer brought the
Defendant to the Mapco station parking lot in a marked police car. An officer had the
Defendant move to the edge of the back seat of the car and asked Colvin to identify him.
Colvin stated that he was “[p]ositive” that the Defendant was the same person who
committed the robbery. He testified that the differences were that the Defendant “was in
handcuffs . . .[,] and the . . . glasses were missing, the hoodie was pulled down, his hair was
different[,] it was short and short cropped hair, so the longer hair . . . was the only thing
different[,] but the facial features here were so strongly similar that I was . . . positive that
was him.”

Detective Byron Agoston testified that in the early morning hours of November 17,
2009, he conducted “general surveillance in the areas where we have burglaries of businesses
and the like, particularly at this time on Gallatin [Pike].” Detective Agoston testified to the
same information he provided at the motion hearing, stating that he noticed the Defendant
standing on the uncovered side of the building as it started to rain. He watched the
Defendant for a few minutes and testified that he had “just decided [to] drive by and if [the
Defendant] was still standing on the side of the building, [he] would just stop and talk to him
and see what he was up to and if need be get him to move along.” At that time, the detective
noticed the Defendant run out of the convenience store and into an adjacent dentist’s office
parking lot. He saw the Defendant jump into the driver’s side of a car and drive onto the
road. Detective Agoston confirmed with police dispatch that a call had been received from
the Mapco store reporting a robbery and then activated his blue lights to initiate a traffic stop
of the car. The car then pulled into a driveway, and the Defendant exited the vehicle and fled
on foot through the front yards of houses on Due West Avenue. The detective remained in
his vehicle and “drove parallel to him in the yards on the street.” When the Defendant turned
and ran into the backyards of the houses, the detective pulled into a driveway, jumped out of
the vehicle, and pursued the Defendant through the backyards. Detective Agoston testified
that he found the Defendant “leaning up against a metal shed in the backyard.” He took the
Defendant into custody and transferred custody of the Defendant to Officer Ivey, who took

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the Defendant back to the Mapco.

After transferring custody of the Defendant, Detective Agoston noticed that the car
used by the Defendant was gone from the location where the Defendant abandoned it. He
realized that there must have been a second subject, and he “put out a description of the
vehicle so that the other officers that were responding to the area could keep an eye out for
it.” Detective Agoston stated that, a few minutes later, Officer Waltz reported finding the
car unoccupied and parked behind a bar on Due West Avenue. In the back seat of the car,
officers found a wig attached to a knit toboggan and “a black plastic handle from [some] sort
of tool” that had black electrical tape wrapped around it. Officers did not collect that
evidence at that time because “it did not appear to have any relevance to the case.” Detective
Agoston did, however, recover the wig when the car was searched at the tow-in lot. The
officers never recovered the money, the bag that held the money, sunglasses, or the gun.
Although Detective Agoston retraced the pursuit route, he did not find any other evidence.
Officers never apprehended the Defendant’s accomplice.

Detective Agoston testified that he took the Defendant before a judicial commissioner,
who explained the charge of aggravated robbery to the Defendant. In response to the judicial
commissioner’s statements, the Defendant said, “But I did not have a gun.”

Officer George Bouton, an officer with the Metro Nashville Police Department,
testified at trial that he responded to a robbery scene located at a Mapco Express at Gallatin
Pike and Due West Avenue. He testified that he processed fingerprints from various areas
of the store, including fingerprints from the main entrance and counter at the convenience
store. Officer Bouton also recovered the black plastic handle found in the Defendant’s
escape car and turned it over to the property section of the police department.

Officer Andrew Ivey, an officer with the Metro Nashville Police Department, testified
at trial that he responded to the robbery report at the Mapco Express on Gallatin Pike on
November 17, 2009. When he arrived at the scene, he secured the station and convenience
store for the investigation. He testified that no customers were allowed to enter the parking
lot or store. He also testified that his recollection of the incident was a little vague because
he was not the detective that handled the case. He recalled Detective Agoston transferred
custody of the Defendant to him while Detective Agoston returned to the scene of the pursuit
to search for evidence.

Defense counsel provided the testimony of Dr. Jeffery Neuschatz, a professor and
associate chair of the Psychology Department at the University of Alabama in Huntsville,
who testified as an expert in the field of eyewitness identification. He testified that he
considers several factors when evaluating an eyewitness recollection, including the

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following: environmental conditions, such as lighting and view; the observer’s mental
condition, such as the stress level of the observer; the time between when the observer saw
the event and when the observer recalled the event, called “retention interval;” and the
manner and methods for the retrieval of memories. Dr. Neuschatz testified that he reviewed
the reports in this case and determined that Jonathan Colvin experienced a “high stress
situation” as a result of the robbery. According to Dr. Neuschatz, the stress of the robbery,
the tendency to focus on the weapon, the effect of the disguise worn during the robbery, and
the cross-racial identification impaired Colvin’s eyewitness identification.

Dr. Neuschatz also testified that the officers in this case failed to follow some of the
procedural guidelines for conducting proper show-up identifications. Specifically, he
testified that officers did not use “unbiased live instructions” to caution the witness that the
person may or may not be the perpetrator and they did not create a police report that
documented the description of the perpetrator prior to the show-up.

On cross-examination, Dr. Neuschatz testified that he based his opinion in this case
on studies conducted by other individuals. He also testified that he did not interview Colvin
about his identification and could not state whether Colvin’s identification of the Defendant
as the robber was right or wrong.

II. Analysis

On appeal, the Defendant contends that: (1) the trial court erred in denying the
Defendant’s motion to suppress the show-up identification; (2) the evidence is insufficient
to support the Defendant’s conviction for facilitation of aggravated robbery; and (3) the trial
court erred when it imposed the Defendant’s sentence for facilitation of aggravated robbery.

A. Suppression of the Show-Up Identification

The Defendant claims that the trial court erred when it denied his motion to suppress
the show-up identification because the identification procedure was unduly suggestive,
violating his right to due process. The State disagrees, arguing that the show-up
identification of the Defendant was proper because it occurred as part of an on-the-scene
investigation immediately after the crime occurred. We agree with the State.

A trial court’s factual findings in a motion to suppress hearing are conclusive on
appeal unless the evidence preponderates against them. State v. Odom, 928 S.W.2d 18, 23
(Tenn. 1996); State v. Jones, 802 S.W.2d 221, 223 (Tenn. Crim. App. 1990). Furthermore,
questions about the “credibility of the witnesses, the weight and value of the evidence, and
resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of

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fact.” Odom, 928 S.W.2d at 23. The application of the law to the facts as determined by the
trial court is a question of law that is reviewed de novo on appeal. State v. Yeargan, 958
S.W.2d 626, 629 (Tenn. 1997).

“It has long been recognized that show-ups are inherently suggestive and unfair to the
accused.” State v. Thomas, 780 S.W.2d 379, 381 (Tenn. Crim. App. 1989). The United
States Supreme Court has “widely condemned” the use of show-up identifications, along
with other identification procedures, because of their suggestive nature. Stovall v. Denno,
388 U.S. 304, 302 (1967), overruled on other grounds by Griffin v. Kentucky, 479 U.S. 314
(1987). As a result, this Court has “repeatedly condemned” the use of show-up
identifications unless “(a) there are imperative circumstances which necessitate a show-up,
or (b) the show-up occurs as an on-the-scene investigatory procedure shortly after the
commission of the crime.” Thomas, 780 S.W.2d at 381. The determination, however, of “a
claimed violation of due process of law in the conduct of a confrontation depends on the
totality of the circumstances.” Stovall, 388 U.S. at 302. Thus, “each case must be considered
on its own facts.” Simmons v. United States, 390 U.S. 377, 384 (1968). A conviction based
on a flawed identification procedure will be reversed only when the procedure utilized in the
defendant’s case “was so impermissibly suggestive as to give rise to a very substantial
likelihood of irreparable misidentification.” Id.

Even if the identification procedure was unnecessarily suggestive, suppression of
either an out-of-court or in-court identification is only required when the totality of the
circumstances shows that the identification was unreliable, violating the due process rights
of the defendant. See Neil v. Biggers, 409 U.S. 188, 198-99 (1972); State v. Biggs, 211
S.W.3d 744, 749 (Tenn. Crim. App. 2006). In Biggers, the United States Supreme Court set
forth five factors to be considered when determining whether an identification is reliable: (1)
the opportunity of the witness to view the criminal at the time of the crime, (2) the witness’s
degree of attention, (3) the accuracy of the witness’s prior description of the criminal, (4) the
level of certainty demonstrated by the witness at the confrontation, and (5) the length of time
between the crime and the confrontation. Biggers, 409 U.S. at 199-200. Therefore, in the
event that we conclude that the identification procedure was suggestive, only then must we
determine whether, considering the totality of the circumstances, the identification was
reliable despite the fact that it was inherently suggestive. Biggers, 409 U.S. at 199; Biggs,
211 S.W.3d at 749.

Based on the evidence presented, this Court does not find that the show-up
identification conducted by the officers was unnecessarily suggestive. Therefore, analysis
of the show-up identification through the “totality of the circumstances” test outlined by the
United States Supreme Court in Biggers and this Court in Biggs is not required. The show-
up identification occurred as part of the investigation, and officers conducted the

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identification shortly after the commission of the robbery. Colvin testified at both the
suppression hearing and at trial1 that, while he worked behind the counter at the Mapco
convenience store as a clerk, a man approached him, demanded money, and threatened him
by showing him what appeared to be a gun tucked in the waistband of his pants. After
Colvin handed the man the money, he saw the man run out the doors and toward Due West
Avenue. Detective Agoston testified that he saw the Defendant run out of the Mapco
convenience store, run through an adjacent parking lot, and jump into the driver’s seat of a
white car. The detective followed the car and initiated a traffic stop when he received
confirmation that a robbery had been reported at the Mapco station. Detective Agoston then
saw the Defendant pull over, exit the car, and run through the yards of nearby houses. The
detective gave chase, caught the Defendant a few minutes later, and arrested him. The
detective transferred custody to Officer Ivey, who transported the Defendant back to the
Mapco station where Colvin identified him as the robber. Although Colvin testified that the
man who robbed him had long hair, a hooded sweatshirt, and sunglasses, he was “positive”
of his identification due to the strong similarity of the robber’s facial features as compared
to those of the Defendant. Further, Colvin testified that officers did not tell him details of
the Defendant’s capture until after Colvin made the identification.

As a result, the proof supports the trial court’s finding that the show-up identification
was not unnecessarily suggestive, and further supports the finding that it was valid because
it took place soon after the robbery as part of an on-going investigation by police at the
Mapco station. The Defendant is not entitled to relief on this issue.

B. Sufficiency of the Evidence

The Defendant argues that the State presented insufficient evidence to support his
conviction for facilitation to commit aggravated robbery as a lesser-included offense of
aggravated robbery. Specifically, the Defendant contends that “[t]here is no evidence in the
record, however, that the [D]efendant had knowledge of the robbery or that he substantially
assisted the robber.” The State argues that it presented the jury with evidence from which
it could conclude that the Defendant assisted in the robbery.

When an accused challenges the sufficiency of the evidence, this Court’s standard of
review is whether, after considering the evidence in the light most favorable to the State,

1
In its review of the issue, this Court may consider the trial testimony of witnesses as well as the
testimony of witnesses at the suppression hearing. State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998)
(“[W]e hold that in evaluating the correctness of a trial court's ruling on a pretrial motion to suppress,
appellate courts may consider the proof adduced both at the suppression hearing and at trial.”).

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“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) (emphasis in original); see
Tenn. R. App. P. 13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State
v. Reid, 91 S.W.3d 247, 276 (Tenn. 2002)). This rule applies to findings of guilt based upon
direct evidence, circumstantial evidence, or a combination of both direct and circumstantial
evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999) (citing
State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990)). In the absence of direct
evidence, a criminal offense may be established exclusively by circumstantial evidence.
Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973). “The jury decides the weight to be
given to circumstantial evidence, and ‘[t]he inferences to be drawn from such evidence, and
the extent to which the circumstances are consistent with guilt and inconsistent with
innocence, are questions primarily for the jury.’” State v. Rice, 184 S.W.3d 646, 662 (Tenn.
2006) (quoting Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958)). “The standard of
review [for sufficiency of the evidence] ‘is the same whether the conviction is based upon
direct or circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011)
(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

In determining the sufficiency of the evidence, this Court should not re-weigh or
reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).
Nor may this Court substitute its inferences for those drawn by the trier of fact from the
evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999) (citing Liakas v. State, 286
S.W.2d 856, 859 (Tenn. 1956)). “Questions concerning the credibility of the witnesses, the
weight and value to be given the evidence, as well as all factual issues raised by the evidence
are resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); Liakas,
286 S.W.2d at 859. “‘A guilty verdict by the jury, approved by the trial judge, accredits the
testimony of the witnesses for the State and resolves all conflicts in favor of the theory of the
State.’” State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978) (quoting State v. Grace, 493
S.W.2d 474, 476 (Tenn. 1973)). The Tennessee Supreme Court stated the rationale for this
rule:

This well-settled rule rests on a sound foundation. The trial judge and the jury
see the witnesses face to face, hear their testimony and observe their demeanor
on the stand. Thus the trial judge and jury are the primary instrumentality of
justice to determine the weight and credibility to be given to the testimony of
witnesses. In the trial forum alone is there human atmosphere and the totality
of the evidence cannot be reproduced with a written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523
(Tenn. 1963)). This Court must afford the State of Tennessee the “‘strongest legitimate view
of the evidence’” contained in the record, as well as “‘all reasonable and legitimate

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inferences” which may be drawn from the evidence. Goodwin, 143 S .W.3d at 775 (quoting
State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of guilt against a
defendant removes the presumption of innocence and raises a presumption of guilt, the
convicted criminal defendant bears the burden of showing that the evidence was legally
insufficient to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn.
2000).

The Tennessee Supreme Court recently reviewed the standard for sufficiency of the
evidence in the context of a conviction for a lesser-included offense. See State v. Parker, 350
S.W.3d 883 (Tenn. 2011). In Parker, the defendant was indicted for first degree felony
murder, but he was convicted of second degree murder, even though the proof in the record
did not establish an essential element of second degree murder, that the defendant acted
“knowingly” with respect to causing a fatal injury to the victim. Id. at 904. When reviewed
by this Court, we relied on State v. Mellons, 557 S.W.2d 497 (1977), and concluded that,
because the proof was sufficient to support the greater, indicted offense, the conviction for
second degree murder “survive[d] despite the deficient proof of its elements.” Id. at 905
(citation omitted); see Mellons, 557 S.W.2d at 499 (providing that “[o]n appeal, a conviction
of a lesser included offense will be upheld, even if there is no evidence in the record to
establish the technical elements of that crime, if the evidence demands a conviction of a
higher degree of homicide than that found by the verdict . . . .”). The Tennessee Supreme
Court, however, reversed the defendant’s conviction, overruling Mellons, and held that “a
court reviewing the sufficiency of the evidence must determine whether each element of the
conviction offense is supported by sufficient proof.” Parker, 350 S.W.3d at 909.

In the present case, the indictment charged the Defendant with aggravated robbery,
and the trial court instructed the jury on all lesser-included offenses of aggravated robbery,
including facilitation of aggravated robbery. Under Tennessee law, “[r]obbery is the
intentional or knowing theft of property from the person of another by violence or putting the
person in fear.” T.C.A. § 39-13-401(a) (2010). As charged in this case, aggravated robbery
is a robbery “[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; or [w]here the
victim suffers serious bodily injury.” T.C.A. § 39-13-402(a)(1)-(2) (2010). For facilitation
of aggravated robbery, the defendant must have known the other person intended to commit
the robbery; and, without intent to promote or assist in the commission of the robbery or
benefit in the proceeds, “knowingly furnish[ ] substantial assistance in the commission” of
the robbery. T.C.A. § 39-11-403(a) (2010).

Defense Counsel, on behalf of the Defendant, argues that “the jury’s finding the
[D]efendant guilty of facilitation of aggravated robbery rejected the victim’s identification
testimony, and, arguably, the detective’s testimony as well,” which demonstrated that the

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Defendant lacked the intent to commit an aggravated robbery. The Defendant continues that
no evidence exists in the record to support the jury’s finding that the Defendant had
knowledge of the robbery or that he substantially assisted the robber. The Defendant,
however, does not cite the Parker case in his brief. The State counters that the Defendant’s
argument ignores the evidence presented that showed another person was involved and the
reasonable inferences the jury could deduct from such proof. We agree with the State.

As an initial matter, this Court distinguishes the facts in Parker from those in this
case. In Parker, the proof did not support one of the elements required to sustain a second
degree murder conviction. Here, as outlined in detail below, the evidence is sufficient to
support the jury’s finding that the Defendant’s actions satisfied the elements of facilitation
of aggravated robbery, even if some of the proof presented is inconsistent with an element
or elements of facilitation. Inconsistent evidence, which may be rejected by a jury, is not
synonymous with insufficient, or a lack of, evidence of an element.

During the trial, Detective Agoston testified that he saw the Defendant run out of the
Mapco store, run around the side of the building toward a parking lot, and jump into the
driver’s seat of a white car. The detective followed the car and initiated a traffic stop. The
Defendant then jumped out of the car and ran through several yards. Detective Agoston gave
chase, capturing the Defendant. The detective then transferred custody of the Defendant to
another officer, and returned to the driveway where the chase began. He discovered that the
car was gone. He stated that, a few minutes later, another officer reported finding the car
unoccupied and parked behind a bar on Due West Avenue. In the back seat of the car,
officers found a wig attached to a knit toboggan and “a black plastic handle from [some] sort
of tool” that had black electrical tape wrapped around it. The detective testified that the
officers never recovered the money, the bag that held the money, sunglasses, or the gun. As
a result, this circumstantial evidence established the existence of an accomplice, who officers
never apprehended. Based on such evidence and the fact that the Defendant did not have the
stolen money, a reasonable jury could infer that the Defendant merely facilitated the robbery
by acting at the direction of another individual who was never apprehended.

Further, Colvin, the Mapco store clerk, identified the Defendant as the robber, even
though he acknowledged that his “appearance had changed.” Colvin, however, stated that
he was “[p]ositive” that the Defendant was the same person who committed the robbery. He
testified that the differences were that the Defendant “was in handcuffs . . .[,] and the . . .
glasses were missing, the hoodie was pulled down, his hair was different[,] it was short and
short cropped hair, so the longer hair . . . was the only thing different[,] but the facial features
here were so strongly similar . . . .” To counter Colvin’s identification, the Defendant
presented an expert in the field of eyewitness identification, who testified that Colvin’s
identification was compromised by the “high stress” of the situation and other factors.

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Therefore, a rational jury certainly could have determined that Colvin was mistaken in his
identification of the Defendant as the person who robbed him.

Considering the facts of this case, the jury heard proof that two people were involved
in the robbery. The jury was free to conclude that the witnesses were incorrect to identify
the Defendant as the one who entered the Mapco store. Furthermore, the jury could have
concluded that the Defendant was in the passenger seat of the white car and, subsequently,
ran from the car during the traffic stop, was caught by police, and was returned to the Mapco
store to be misidentified by Colvin. If the jury had determined that the Defendant was not
the person who entered the Mapco, but was in the small white car and later ran from that car
at the traffic stop, that evidence is sufficient to satisfy each element of facilitation of
aggravated robbery by another person who was not apprehended by police. This Court is not
in the position to re-weigh or reevaluate the evidence. See Matthews, 805 S.W.2d at 779.
Nor may this Court substitute its inferences for those drawn by the trier of fact from the
evidence, including determinations of credibility. See Buggs, 995 S.W.2d at 105 and Liakas,
286 S.W.2d at 859. Therefore, affording the State of Tennessee the strongest legitimate view
of the evidence contained in the record, we conclude that the proof satisfied the essential
elements of the convicted offense. We conclude that the evidence presented at trial was
sufficient to support the Defendant’s conviction of facilitation of aggravated robbery.

The Defendant is not entitled to relief as to this issue.

C. Sentencing

The Defendant contends that the trial court erred in imposing the maximum sentence
for both of his convictions: concurrent terms of six years for the conviction for facilitation
of aggravated robbery and eleven months and twenty-nine days for his conviction for evading
arrest. Specifically, the Defendant argues that the maximum sentence imposed is not “the
least severe measure necessary to achieve the purposes for which the sentence has been
imposed,” and it is “greater than that deserved for the offense(s) committed.” See T.C.A. §§
40-35-103(2), (4) (2010). During the sentencing hearing, the Defendant requested that the
trial court “sentence [the Defendant] to the minimum possible of the three[-]year sentence
with some sort of alternative sentence in place.”

When a defendant challenges the length, range, or manner of service of a sentence,
this Court must conduct a de novo review on the record with a presumption that “the
determinations made by the court from which the appeal is taken are correct.” T.C.A. § 40-
35-401(d) (2010). As the Sentencing Commission Comments to this section note, the burden
is now on the appealing party to show that the sentencing is improper. T.C.A. § 40-35-401
(2010), Sentencing Comm’n Cmts. This means that if the trial court followed the statutory

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sentencing procedure, made findings of facts which are adequately supported in the record,
and gave due consideration to the factors and principles relevant to sentencing under the
1989 Sentencing Act, Tennessee Code Annotated section 40-35-103 (2010), we may not
disturb the sentence even if a different result was preferred. State v. Ross, 49 S.W.3d 833,
847 (Tenn. 2001).

In conducting a de novo review of a sentence, we must consider: (1) the evidence, if
any, received at the trial and the sentencing hearing; (2) the presentence report; (3) the
principles of sentencing and arguments as to sentencing alternatives; (4) the nature and
characteristics of the criminal conduct involved; (5) evidence and information offered by the
parties on the mitigating and enhancement factors set out in Tennessee Code Annotated
sections 40-35-113 and -114; (6) any statistical information provided by the administrative
office of the courts as to sentencing practices for similar offenses in Tennessee; and (7) any
statement the defendant made in the defendant’s own behalf about sentencing. See T.C.A.
§ 40-35-210(b) (2010); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001). We
must also consider the potential or lack of potential for rehabilitation or treatment of the
defendant in determining the sentence alternative or length of a term to be imposed. T.C.A.
§ 40-35-103(5) (2010).

In this case, neither the State nor the Defendant offered evidence at the sentencing
hearing, instead presenting only arguments. The Defendant, as a Range I standard offender,
faced a potential sentence of three to six years for the facilitation of aggravated robbery
conviction, a Class C felony. T.C.A. § 40-35-112(a)(3) (2010). The trial court sentenced the
Defendant to six years, the top of the sentencing range. Regarding the evading arrest
conviction, a Class A misdemeanor, the trial court sentenced the Defendant to eleven months
and twenty nine days, requiring that the sentences be served concurrently for an effective six-
year sentence. In its determination, the trial court found applicable enhancement factor (1),
that the Defendant had a lengthy history of criminal convictions or criminal behavior in
addition to those necessary to establish his range. See T.C.A. § 40-35-114(1) (2010). The
trial court found that the Defendant had eight misdemeanor convictions between 2002 and
2009 for drug possession, theft, and driving offenses. In addition, in 2003, the Defendant
had a conviction for grand larceny in Ft. Myers, Florida. The Defendant provided no
mitigating circumstances, and the trial court did not find any applicable mitigating
circumstances.

In its decision, the trial court stated that this “type of offense . . . is too much for this
Court to look at as just a minor little situation.” After weighing the circumstances of the case
and the Defendant’s criminal history, noting that the Defendant had a number of revoked
licenses and numerous charges of theft, the trial court decided to sentence the Defendant at
the high range of the sentencing category. The record reflects that the trial court considered

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the seriousness of the offenses and also considered the Defendant’s conduct when
determining the sentence. After reviewing the Defendant’s criminal history, the trial court
noted that “[the Defendant] has now apparently moved into an area where he is going to try
to get the money a little quicker than a theft and maybe a little more [money] than a theft.”
The trial court considered the dangerousness of the offense and expressed concern for the
potential harm it could have caused to the store clerk and others in the area. As a result, we
conclude that the trial court properly considered the sentencing principles when it sentenced
the Defendant. The record reflects the trial court appropriately applied the applicable
enhancement factor, and it did not err when it sentenced the Defendant to six years for his
offenses. The Defendant is not entitled to relief on this issue.

III. Conclusion

After a thorough review of the record and the applicable law, we affirm the judgments
of the trial court.

_________________________________
ROBERT W. WEDEMEYER, JUDGE

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