IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs March 2, 2010

STATE OF TENNESSEE v. PRESTON RUCKER 

Direct Appeal from the Criminal Court for Shelby County

No. 08-00671 James C. Beasley, Jr., Judge

No. W2009-01650-CCA-R3-CD - Filed March 29, 2010

The defendant, Preston Rucker, was convicted of especially aggravated robbery and

especially aggravated kidnapping and sentenced, respectively, to concurrent sentences of

twenty-four years and twenty years. On appeal, he argues that the evidence was insufficient

to support the convictions, that the trial court erred in concluding that a police report was not

admissible as an exception to the hearsay rule, and that the trial court imposed an excessive

sentence. Following our review, we affirm the judgments of the trial court.

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

ALAN E. GLENN,J., delivered the opinion of the Court, in which JOSEPH M. TIPTON, P.J., and

JOHN EVERETT WILLIAMS, J., joined.

Larry E. Fitzgerald, Memphis, Tennessee, for the appellant, Preston Rucker.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney

General; William L. Gibbons, District Attorney General; and Damon Griffin, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

FACTS

The victim, Keir Moore, testified that the defendant kidnapped him, forcing him to

drive his truck from a convenience store parking lot to an apartment in Memphis, where he

said he was robbed and shot by the defendant and two companions.
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The victim testified that he had lived in Meridian, Mississippi, for twenty-five years

and was a truck driver for Swift Transportation. Prior to that, he had been a combat medic

in the United States Army, a sales representative for Sisco Food Services, and a corporate

sales manager for AT&T. 

The victim said that on July 30, 2007, he came to Memphis to deliver a load at the

Georgia Pacific warehouse and pick up scrap metal at an aluminum plant. After he picked

up the load of scrap metal, he parked his trailer at the Swift terminal on Brooks Road and

went to a restaurant across from the home of Elvis Presley. Finishing lunch, he began

driving to the Swift terminal, which he believed to be about two miles away. On the way,

he became lost and pulled into the parking lot of a convenience store to ask a man in the

parking lot for directions. He said that the man, whom he identified as the defendant, “ran

around to the other side of the truck and jumped in the truck.” He told the defendant that no

one was allowed in the truck, and the defendant replied that he was going in the same

direction as the victim and would show the victim where he wanted to go. After being told

again that he was not allowed in the truck, the defendant produced a pistol, pointed it at the

victim, and said, “Shut up mother fucker and drive.” 

The victim told the defendant that he had just gotten out of the Army and had a fiveyear-old son and that the defendant could take the truck and everything else that the victim

had. The defendant responded with the same command, and the victim began driving. The

victim explained why he could not recall what direction they took from the convenience store

lot: “I tell you what, after that happened, all I can remember is like tunnel vision. I was just

scared to death, I was shaking. I really can’t remember anything besides just driving down

the road, just being scared to death.” 

The victim said that the defendant directed him to an apartment complex and that “it

looked like he was scoping out the area. He was looking out the front and looking in the

rear-view mirrors.” The victim said that he “begg[ed] for [his] life.” He testified that the

defendant made a telephone call and “basically said, I’m coming, I’m on my way.” The

defendant told the victim to open the driver’s side door, grabbed the back of the victim’s

shirt, and pushed him out of the truck. The victim said that the defendant pushed and pulled

him and said “keep walking.” They stopped at a door to one of the apartments, and the

defendant told the victim to knock on the door. The victim described what happened next:

A. I was pushed inside the apartment and when I got in, somebody came

out of a broom closet to my left with a red bandana over their face and another

weapon.
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Q. So at this point when you were walking in the apartment, how many

individuals were there?

A. Three. 

The victim said that “the guy [who] jumped out of the broom closet with a gun, put

it to my head, he pushed me and he pistol whipped me on the head.” He was told to “lay

down and stare at the floor.” The defendant still was present. The three stripped the victim,

except for his underwear and t-shirt, and “kept asking . . . where more money was.” They

went through his pockets and took $60. The victim asked the three assailants not to hurt him:

I was on the floor and I kept begging them, please not to hurt me. I kept

telling them I have a five year old child at home and I was basically just

calling, saying, “In the name of Jesus, please, please don’t shoot me, please

don’t kill me, you can have everything I have, I just want to get home to see

my child again.” 

The three men “kept telling [the victim] to shut up. They would kick [him] in the ribs

and pistol whip [him] in the head with a pistol.” He said that, at this point, “[b]lood was

running into [his] eyes and all over [his] face.” The victim said that he believed the

defendant had his knee on the victim’s back, but he did not look up because he was told he

would be killed if he did. He said that the three men had two guns between them, and they

were “passing” them around. After one of the men left the apartment to search the victim’s

truck and then returned, the victim got up and ran toward the door, attempting to escape:

I ran and grabbed the door and tried to turn the handle, but the door was

locked. And by the time I turned the switch, the lever, or whatever you call it

to get out of the apartment, somebody came behind me and grabbed me and

then the other two came and pulled me back. 

The victim then tried to take a pistol from the assailant who had opened the door, was

grabbed by the other two, and then tried to run at the man with the pistol again. The victim

was shot in the stomach and “went outside . . . screaming for help,” as the three men ran off.

He described how he performed first-aid on himself:

Well, I took my shirt off, I was a medic, so I kind of knew somewhat,

what to do. I took my shirt off, ripped it in half. I stuffed both pieces of cloth

in the exit and entry wounds as far as I could. And then I got up in a ball and

brought my knees to my chest to try to constrict the flow of blood, to slow

down the flow, so I wouldn’t bleed to death. 
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The victim said that a man came out of one of the apartments and “held [a] towel to

[his] back and screamed at someone to call an ambulance.” He passed out in the ambulance

on the way to the hospital, where, ultimately, he had eight surgeries and remained two and

one-half months. The victim described his surgeries:

Q. When was the last surgery done?

A. About three months ago, it was stomach wall reconstruction surgery.

My organs had fallen down. I had a hiatal hernia, which was a gigantic hole

in my stomach and all my organs had come loose and they had fallen down and

were laying on top of each other and they had to go in and sew all my organs

back up.

They removed all . . . my muscles in this area here were taken out. And

they opened me up like a fish, basically, sewed everything back up and then

took a strap of muscle from somewhere else in my body and placed it over my

stomach.

Q. How many organs did the bullet strike?

A. It went through my lungs, my liver, my gall bladder, my diaphragm and

both my large and small intestines.

The victim said that, while in the hospital, he was shown a photospread and identified

the defendant as one of his assailants. 

Officer Myron Grafenreed of the Memphis Police Department testified that on July

30, 2007, he and his partner were at the Cambridge Apartments responding to another call

when several residents approached them and said that someone had been shot at the front of

the complex. As he and his partner arrived at the scene, they saw the victim “on his knees,

kind of doubled over,” and he told them he had been shot. 

Officer Thomas J. Ellis testified that he was a crime scene investigator with the

Memphis Police Department and was called to the scene where the victim had been shot. He

said that the victim’s tractor-trailer was processed for fingerprints. Officer Ellis explained

how the condition of the vehicle affected whether fingerprints might be located:

Depending on the vehicle, how clean it is, weather conditions, for

example, the vehicle if it’s very dirty then we’re not going to get any prints of

value. You may get a smudge, or where it appeared that the person was
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wearing gloves, but there wouldn’t be any ridge detail in the prints to obtain

a print of value. 

Officer Ellis testified that he did not think there were any prints of value on the

vehicle. On cross-examination, affirming that no fingerprints had been found in or on the

truck, he detailed what surfaces had been processed:

Front left side on the exterior and the front left side, the front, the left

front door, front right side, right front door and the interior is going to be the

driver’s side, the rear driver’s side and the passenger side and the rear

passenger side and the middle console and the glove box.

Sergeant Kathleen Lanier of the Memphis Police Department testified that, through

the Crime Stoppers program, a tip regarding the shooting and robbery of the victim had been

received:

I was given a name, what we call a moniker, a nickname and after

getting the information from the tipster I went into the Memphis Police

Department data[]base and was able to, through some previous reports and

arrests, come up with the name of a possible suspect and the name of a person

who was in the system, that fit the description, that fit the information that I

got from the tipster, as far as the physical description and all[.] 

As the result of this information, Sergeant Lanier prepared a photospread from which

the victim identified the defendant. She said that officers put out a broadcast for the

defendant and were told that private security guards at the Cambridge Apartments had seen

him there following the broadcast. At the complex, the defendant was chased and detained

by private security officers. 

Testifying as the only witness for the defense, the defendant said that between 2:00

and 3:00 p.m. on July 30, 2007, he was at a market across from the apartments where he lived

when the victim, who was driving a truck, waved and “ma[de] gestures . . . like, come here.”

The defendant said that he kept walking and was waiting to cross the street when the victim

came up behind him, asking, “[D]id I know where he could score?” At first, the defendant

gave a negative response to the victim. However, he then told the victim to drive his truck

to the apartment complex. After the victim parked his truck, the defendant took him to an

apartment, “knocked on the door and a gentleman came to the door and [the defendant] was

like, ‘Hey, he’s trying to get something.’” The defendant denied going into the apartment

or beating, robbing, or shooting the victim. 
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Following this testimony, the defense rested.

ANALYSIS

On appeal, the defendant argues that the evidence was insufficient to sustain the

convictions, that the trial court erred in concluding that a crime scene report was not

admissible as a business record, and that the trial court erred in applying the defendant’s two

prior misdemeanor convictions as enhancement factors. We will consider these claims. 

I. Sufficiency of the Evidence

The defendant argues that the evidence at trial was not sufficient to sustain either his

conviction for especially aggravated kidnapping or especially aggravated robbery. In support

of this argument, the defendant notes that crime scene investigators did not find his

fingerprints inside the victim’s truck, which, in his view, tends to support the argument that

he was not inside the truck. Additionally, he notes that the State did not answer the question

as to why police officers did not check the apartment for fingerprints. Finally, he argues that

his version of the facts, that the victim was seeking drugs, was more credible than that of the

victim, that he got lost trying to find the terminal.

In considering this issue, we apply the rule that where sufficiency of the convicting

evidence is challenged, the relevant question of the reviewing court 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, 99 S. Ct. 2781, 2789 (1979); see also Tenn. R. App. P. 13(e)

(“Findings of guilt in criminal actions whether by the trial court or jury shall be set aside if

the evidence is insufficient to support the findings by the trier of fact of guilt beyond a

reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v.

Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). All questions involving the

credibility of witnesses, the weight and value to be given the evidence, and all factual issues

are resolved by the trier of fact. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim.

App. 1987). “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. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our 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
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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, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212

Tenn. 464, 370 S.W.2d 523 (1963)). A jury conviction removes the presumption of

innocence with which a defendant is initially cloaked and replaces it with one of guilt, so that

on appeal, a convicted defendant has the burden of demonstrating that the evidence is

insufficient. See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

To prove that the defendant was guilty of especially aggravated kidnapping, the State

had to prove that the defendant knowingly removed or confined the victim unlawfully so as

to interfere substantially with his liberty and that the removal or confinement was

accomplished by the use of a deadly weapon or that the victim suffered serious bodily injury.

Tenn. Code Ann. § 39-13-305(a)(1), (4).

Robbery is 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). To convict for

especially aggravated robbery, the State had to prove the defendant robbed the victim with

a deadly weapon and the victim suffered serious bodily injury. Id. § 39-13-403(a).

At trial, the victim testified that, at gunpoint, he was made to drive to the apartment

complex, forced to enter an apartment, kicked, pistol-whipped, and then shot as he tried to

take a pistol from one of the assailants. He was hospitalized for two and one-half months and

had eight surgeries for his serious injuries. He identified the defendant as the man who

kidnapped him at gunpoint and said the defendant was present and assisted throughout the

entire episode. This testimony makes out all of the elements of especially aggravated

kidnapping and especially aggravated robbery. By its verdict, it is obvious that the jury

found the victim’s testimony to be credible. From the evidence, we conclude that a

reasonable jury could have made this determination and find, therefore, that the evidence is

sufficient to sustain the convictions.

II. Police Crime Report as Business Record

The defendant argues that the trial court erred in concluding that crime scene reports

were not admissible as business records. This matter arose during the testimony of Officer

Ellis, who identified a crime scene report regarding the processing of the victim’s truck,

testifying that the results were “negative” as to fingerprints, and identified, as well, the

vehicle processing sheets, which also were “negative” for the finding of fingerprints on the

vehicle. The defendant then asked that these sheets be admitted into evidence; and the State
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objected, arguing that they were hearsay. To resolve the matter, the trial court allowed

additional questioning of Officer Ellis. He testified that, while he was required to fill out the

forms, he was not familiar with where or how they were kept and said that they were no

longer available to him after he had turned them in.

Regarding business records, Rule 803(6) of the Tennessee Rules of Evidence provides

in pertinent part:

Records of Regularly Conducted Activity. A memorandum, report,

record, or data compilation, in any form, of acts, events, conditions, opinions,

or diagnoses made at or near the time by or from information transmitted by

a person with knowledge and a business duty to record or transmit if kept in

the course of a regularly conducted business activity and if it was the regular

practice of that business activity to make the memorandum, report, record or

data compilation, all as shown by the testimony of the custodian or other

qualified witness or by certification that complies with Rule 902(11) or a

statute permitting certification, unless the source of information or the method

or circumstances of preparation indicate lack of trustworthiness.

As this court said in State v. Dean, 76 S.W.3d 352, 365 (Tenn. Crim. App. 2001):

“Rule 803(6) simply provides that the witness be the records ‘custodian

or other qualified witness.’ Typically that witness will be in charge of

maintaining records of the particular business, but other employees or officers

or appropriately informed witnesses could be used as well. The key is that the

witness have knowledge of the method of preparing and preserving the

records. If no witness is available to testify, the records cannot be

authenticated as business records, unless the parties stipulate to

authentication.”

Id. (quoting Neil P. Cohen et al., Tennessee Law of Evidence, § 8.11[11] (4th ed. 2000)).

Officer Ellis could not explain what happened to the crime scene reports after he

turned them in or where or how they were kept. Accordingly, they could not be qualified as

business records through him. 

Even if the court erred in this ruling, we conclude that the error was harmless. We

note that the record on appeal does not include these crime scene reports; and, because

Officer Ellis testified, both on direct and cross-examination, that no fingerprints were found

in the victim’s truck and the apartment was not processed for prints, it is unclear how these
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forms would have been of any evidentiary value to the defendant. Accordingly, we conclude

that this claim is without merit. 

III. Sentencing 

The defendant argues that the trial court erred in applying two misdemeanor

convictions as enhancement factors in sentencing the defendant. The State responds that this

argument is waived because the record on appeal does not include a copy of the sentencing

hearing.

We note that the record on appeal includes a notice filed by the State, informing the

defendant that enhanced punishment would be sought, arguing that the defendant’s sentences

should be enhanced because he had “a previous history of criminal convictions or criminal

behavior in addition to those necessary to establish the appropriate range” and “was a leader

in the commission of an offense involving two (2) or more criminal actors.” According to the

trial court’s Sentencing Findings of Fact, the court found these factors applicable. However,

since the record on appeal does not include copies of the presentence report or a transcript of

the sentencing hearing, it does not show the nature of the defendant’s previous convictions.

Accordingly, the record is insufficient to consider this issue on appeal, and we must presume

that the trial court ruled correctly. State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App.

1991).

CONCLUSION

Based on the foregoing authorities and reasoning, the judgments of the trial court are

affirmed.

_________________________________

ALAN E. GLENN, JUDGE