IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MARCH 1999 SESSION FILED
STATE OF TENNESSEE, * C.C.A. # 02C01-9804-CR-00106
Appellee, * SHELBY COUNTY
July 16, 1999
VS. * Hon. James C. Beasley, Jr., Judge
LESTER WILLIAMS, * (Aggravated Robbery)
Cecil Crowson, Jr.
Appellant. *
Appellate Court Clerk
For Appellant: For Appellee:
Tony N. Brayton Paul G. Summers
Assistant Public Defender Attorney General and Reporter
201 Poplar Avenue, Suite 2-01
Memphis, TN 38103 Georgia Blythe Felner
(on appeal) Counsel for the State
Criminal Justice Division
Of counsel: 425 Fifth Avenue North
Nashville, TN 37243-0493
A.C. Wharton, Jr.
Shelby County Public Defender David C. Henry
Assistant District Attorney General
K. Leslie Mozingo Shelby County District
Assistant Public Defender Criminal Justice Complex
201 Poplar Avenue, Second Floor 201 Poplar Avenue, Suite 301
Memphis, TN 38103 Memphis, TN 38103
(at trial)
OPINION FILED:__________________________
AFFIRMED
GARY R. WADE, PRESIDING JUDGE
OPINION
The defendant, Lester Wililams, was convicted of aggravated robbery.
The trial court imposed a Range II, twenty-year sentence. In this appeal of right, the
defendant challenges the sufficiency of the identity evidence and argues that the
sentence is excessive.
We affirm the judgment of the trial court.
On March 12, 1997, real estate agent Mary Ella Thornton parked in the
driveway of one of her listed residences in Memphis in order to check the door lock.
When she returned to her vehicle, the defendant stepped out of a car that had
followed her into the driveway. The defendant walked towards Ms. Thornton, who
initially believed that he was a prospective buyer, displayed a gun, ordered her from
her vehicle, and took her purse and car keys. The defendant then left driving Ms.
Thornton's car. The driver of the other vehicle also drove away. Although unable to
identify the driver of the vehicle in which the defendant had arrived, Ms. Thornton
described her assailant to officers as a black male, approximately six feet, three
inches tall, and weighing 160 pounds. She was able to identify the defendant in a
photographic lineup at both the preliminary hearing and at trial.
When questioned by the police, the defendant admitted that he had
been in the victim's vehicle for approximately one hour and forty minutes after it was
stolen. He stated that Milton Logan, who he identified as Junior, had offered him a
ride in the vehicle and driven him to Ace Check Cashing. The defendant claimed
that he was unaware that the car had been stolen but admitted that he had never
seen Logan in possession of the vehicle at any time before the date of the robbery.
2
Initially, the defendant complains that the identification evidence was
insufficient to justify a guilty verdict. The victim had acknowledged that her primary
focus was on the weapon during the course of the robbery and she also conceded
that she was unable to remember whether the gun had one or two barrels. The
defendant contends that the victim's identifications during the photographic lineup
and at the preliminary hearing were uncertain and that any eyewitness identification
is inherently untrustworthy:
The vagaries of eyewitness identification are well-known;
the annals of criminal law are rife with instances of
mistaken identification. Mr. Justice Frankfurter once
said, "What is the worth of identification testimony even
when uncontradicted? The identification of strangers is
proverbially untrustworthy. The hazards of such
testimony are established by a formidable number of
instances...."
United States v. Wade, 388 U.S. 218, 228-29 (1967). The defendant does not
allege that the trial court failed to provide accurate instructions on the question of
identity.
When there is a challenge to the sufficiency of the evidence, well-
established guidelines apply limiting the scope of appellate review. The state, of
course, is entitled to the strongest legitimate view of the evidence and all reasonable
inferences which might be drawn therefrom. State v. Cabbage, 571 S.W.2d 832
(Tenn. 1978). This court may neither reweigh nor reevaluate the evidence. Id. at
836. Nor may a court substitute its inference for those drawn by the trier of fact from
the evidence. Liakas v. State, 286 S.W.2d 856 (Tenn. 1956). When the sufficiency
of the evidence is challenged, the relevant question is whether, after reviewing the
evidence in the light most favorable to the state, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. State v.
Williams, 657 S.W.2d 405 (Tenn. 1983); Tenn. R. App. P. 13(e).
3
In this instance, the victim, when shown a photograph of Logan
acknowledged that she was unable to make a positive identification. When,
however, shown a variety of other photographs, she was immediately able to identify
the defendant as her robber. The defendant concedes that she did so again at the
preliminary hearing and a final time at trial. Because there was a positive
identification by the victim and the defendant does not quarrel with the instructions
provided by the trial court in that regard, the evidence is clearly sufficient to establish
that a rational trier of fact could conclude guilt on the part of the defendant. Jackson
v. Virginia, 443 U.S. 307 (1979).
Next, the defendant complains that the trial court imposed an
excessive sentence by erroneously determining that the defendant was a leader in
the commission of an offense involving two or more criminal actors. Tenn. Code
Ann. § 40-35-114(2). He argues that the "simple fact that another person drove
[the defendant] to the scene ... does not suggest that [he] was a leader in the
commission of this offense." See State v. Buckmeir, 902 S.W.2d 418, 423 (Tenn.
Crim. App. 1995). Furthermore, the defendant asserts that the trial court should
have concluded that because the defendant assisted authorities in uncovering an
unrelated offense by another person, a mitigating factor was present. See Tenn.
Code Ann. § 40-35-113(9). He argues that he is entitled to the application of
mitigating circumstances if he cooperated with the investigating officers even if the
state acquired the identity of the other perpetrator through other sources.
When there is a challenge to the length, range, or manner of service of
a sentence, it is the duty of this court to conduct a de novo review with a
presumption that the determinations made by the trial court are correct. Tenn. Code
Ann. § 40-35-401(d). This presumption is "conditioned upon the affirmative showing
4
in the record that the trial court considered the sentencing principles and all relevant
facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). "If
the trial court applies inappropriate factors or otherwise fails to follow the 1989
Sentencing Act, the presumption of correctness falls." State v. Shelton, 854 S.W.2d
116, 123 (Tenn. Crim. App. 1992). The Sentencing Commission Comments provide
that the burden is on the defendant to show the impropriety of the sentence.
Our review requires an analysis of (1) the evidence, if any, received at
the trial and sentencing hearing; (2) the presentence report; (3) the principles of
sentencing and the arguments of counsel relative to sentencing alternatives; (4) the
nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)
any statements made by the defendant in his own behalf; and (7) the defendant's
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and
-210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).
At the time of this offense, the presumptive sentence was the
minimum in the range if there were no enhancement and mitigating factors. Tenn.
Code Ann. § 40-35-210(c). Should the trial court find mitigating and enhancement
factors, it must start at the minimum sentence in the range and enhance the
sentence based upon any applicable enhancement factors, and then reduce the
sentence based upon any appropriate mitigating factors. Tenn. Code Ann. § 40-35-
210(e). The weight given to each factor is within the trial court's discretion provided
that the record supports its findings and it complies with the 1989 Act. See Ashby,
823 S.W.2d at 169. The trial court should, however, make specific findings on the
record which indicate its application of the sentencing principles. Tenn. Code Ann.
§ 40-35-209, -210.
5
A Range II sentence for a Class B felony must be within twelve to
twenty years. Tenn. Code Ann. § 40-35-112(b)(2). The trial court imposed the
maximum sentence. The trial court found six enhancement factors applicable. The
trial court did not give any weight to three of the factors because they were elements
of the offense but it weighed heavily the defendant's previous history of criminal
convictions and his previous unwillingness to comply with conditions of a sentence
involving release. See Tenn. Code Ann. § 40-35-114(1), (8).
Because the proof established that there were two actors involved in
the robbery and that the defendant confronted the victim, stole her purse, and drove
away in her vehicle, the defendant's participation was sufficient to establish a role of
leadership in the crime. In State v. Hicks, 868 S.W.2d 729, 731 (Tenn. Crim. App.
1993), this court observed that more than one criminal can be a leader in the
commission of the offense. That another perpetrator drove the defendant to the
scene or was a leader in the commission of the crime would not disqualify the
defendant as a leader. In our view, the trial court properly applied this enhancement
factor.
Moreover, the defendant has not established that the sentence should
be reduced just because he assisted authorities regarding an unrelated offense.
Tenn. Code Ann. § 40-35-113(9). As the trial court observed, the defendant
provided no assistance in solving the case in which he was convicted; he denied
knowing that the vehicle had been stolen and provided no information about the
robbery of the victim. While the defendant may have been entitled to some
consideration for the limited information supplied pursuant to Tenn. Code Ann. § 40-
35-113(13), the trial court would have been justified in assigning little weight to that
mitigation factor. See State v. Michael Hurt, No. 01C01-9306-CC-00189 (Tenn.
6
Crim. App., at Nashville, Dec. 9, 1993). In context, the Range II, twenty-year
sentence is entirely appropriate.
Accordingly, the judgment is affirmed.
________________________________
Gary R. Wade, Presiding Judge
CONCUR:
_____________________________
Joseph M. Tipton, Judge
_____________________________
Thomas T. Woodall, Judge
7
State v. Lester Williams
Combined Opinion