### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs F

ebruary 6, 2001
STATE OF TENNESSEE v. LAWRENC E WYATT
Appeal from the Circuit Court for Madison County No. 99-172 Roger A. Page, Judge

No. W2000-01672-CCA-R3-CD - Filed March 19, 2001

The defen dan t ap peal s fr om h is c onv ict ion s fo r con spi racy t o co mmi t agg rava ted rob bery a n d facilitation of aggravat

ed robbery . He contends that the evidence is in

sufficient to

support his convictions and tha

t his sentences ar

e excessive. We af

firm the judgmen

ts of the trial cour

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

J OSEPH M. T IPTON , J., delivered the opinion of the court, in which J ERRY L. S MITH , and J OE G. R ILEY , JJ., joined.

Pamela J. Drewery (on app eal) and Ra msdale O’DeNeal (at trial), Jackson, Tennessee, for the appellant, La

wrence Wya

tt.
Paul G. Summers, Attorney General and Reporter; Laura E. McMullen, Assistant Attorney Ge

neral; James G. Woodall

, District Attorney General ; and James

W. Thompson, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

The defendant, Lawrence Wyatt, appe als as of right from hi s conviction s by a Madison County Circuit Court jury for conspiracy to commit ag gravated robbery and facilitation of ag gravated rob bery, Class C felonies. The trial court sentenced the defendant to f ive yea rs on the conspiracy count and four ye

ars on the facilit

ation count a

nd order ed the sentences to run concurrently. The defendant argues that (1) the evidence is insufficient to support his conv iction s because the accomplices’ testimony was not corroborated and (2) his sentences are excessive because the trial court erred in its application of enhancement and mitigating factors and in its denial of alternative sentencing.

At trial, Ronald James testified as follows: On November 20, 1998, he was workin g as a clerk at the Econo Lodge on the Highway 45 By pass in Madison County. The motel’s doors were locked, buta window with a tray enabled the clerks to wait on customers who were outside. He was-2-

ending his shift just before midnight when a black male and b lack female approached the motel’s window. The male was aro und six feet tall, slim, and wearing a stocking over his head. The female, who also had something ove r her h ead, said, “This is a robbery. We want y our money,” and they placed a small pistol on the window’s tray. He left the window and told Jerry Replogle, a co-worker, about the robbers. They wal

ked into another office and told the owner about the robbers, and the
owne r then ca lled the police. The robbers did not take anything from the Econo L odge and were gone before the police arrived. Jerry Replogle testified as follows: On November 20 and 21, 199 8, he wa s working at the Econo Lodge on t

he Highway

45 Bypass. He was relieving Ronald James from his shift around midnight when a b lack female and black male, who were wearing hoods, approached the motel’s window. Mr. James went to the window, and the female said, “L et us in. We’ve got a gun.” At first, he thought t he people at the window were playing a prank, but then Mr. James left the window
area and told him that the people had a gun. He then saw that the man was pointing a small .22 or .25 caliber

automatic gunat the security camera. He and

Mr. James went into a

back room and told the manager

about the robber

s, and the manager called the police. The robbers did not take any thing and left before the police arrived.

Mr. Replogle identif

ied the defenda

nt as the perpetr

ator by the d

efendant’ s eyes , but he admitted that the defendant looked smaller than the man who had attempted to rob the motel. He stated tha t du rin g the att emp ted rob bery, he only saw the defendant for three or four seconds, that the defendant had on a heavy coat, and that he was not able to de termine the defendant’s build at that time. Marquay

Wi lliamson t estified as follow s: On November 21,

1998, she was work

ing as a cashier at Jerry’s Oil Citgo on Hollywood Avenue. Around 1:00 a.m., when a co-worker was outside and nob ody was in the store, a black female and black male came into the store. The fe male wa s short, and the male was “really big and had a lot of hair.” The man pointed a small, black .22 or .25 caliber gun at her, and the woman demanded the money from the cash register. She gave the woman the cash register’s drawer, which contained over five hundred dollars. The r obbers left

in a maroon, four-door car that had “rails.” She could see that there were other people in the car but could not see them well enough to describe them.

Ms. Williamson testified that she knew Carmella Pool

e, a co-defend

ant, and that Ms.Poole
came into the store around 11:00 p.m. that evening. She stated that Ms. Poole bought a beer and then left and that she did not see Ms. Poole again that night.

O fficer Edward McMullen o

f the Jackson Police

Department testif

ied as f ollows: O n November

21, 1998, at 12:05 a.m., he was dispatched to the Econo Lodge. Two clerks gave him a vaguedescription of the robbers but a good description of the car the robbers used. He then placed
a be-on-the-looko

ut (BOLO) c

all. About one hour

later, a BOL

O call from J

erry’s Oil

C itgo described the same car, a maroon Grand Am with a luggage rac k on the trunk. About five minutes later, he spotted a car that matched the description. He followed the car until backup arrived and-3-

then stopped the car. Four people were in the car – a black female in the driver’s seat, a black male in the front passenger seat, a black female in the driver-side backs eat, and a

black male in the passenger-side backseat.

Officer McMulle

n identified the de

fendant as the ma

le in the backsea

t and said that a ca

sh drawer was on the rear floorboar d between the def

endant’s feet.

About five hundred forty dollars anda w ig were recovered from the drawer. Also, a small, gray ish .25 caliber gun was recovered from underneath the drawer. A stocking cap was recovered from Sharon Chism, the female driver, and a stocking was recovered at booking from the defendant.

On cross-examination, Officer McMullen admitted that the clerks from Econo Lodge were unable to give a good physical description of the robbers. He also stated that the male in the front seat of the car was la

rge framed an d that one of the males had on a heavy coat, but he could not remember

which one. He admitted that he touched the gun and the cash drawer with his bare hands and that fingerprint analysis was not ordered on either piece of evidence. Sergeant Belinda Coleman of the Jackson Police Department testified as follows: On November

21, 1998, she was dispatched as the crime scene technician for the defendant’s case. A cash register drawer, which contained about five hundred dollars and a wig, was recovered from the pa s senger-side

rear floorboar

d of the burgundy

, Pontiac Grand AM, and a .25 calibe r automatic pistol was found undern eath th e drawer. On cross-examination, she testified that she did not remember what the suspects were wearing that night.

Sharon Chi sm t est ifi ed as fol low s: S he p led guil ty to the Nov ember 21, 1998 attempted aggravated robbery

of the Econo Lodge and the aggrava ted robbery of

Jerry’s Oil and was serving
an eight-year sentence,

which the state had recommended in return for her cooperation and truthful tes tim ony. On the night in question, she was with Xavier Ch ism, who was her br

other, Carmella Poole, and the defend ant. Earlier in th e evening, she a

nd the defendant

discussed robbing

some stores, and the defendant said that he was willing. She drove thedefendant’s burgundy Grand AM to the Econo Lod ge, where she and the defendant, wearing stocking caps, approac hed the motel’s window. The defendant

had a small .25 automatic pistol, which she had given to him earlier in the evening, and he

demanded

money from t

he clerks. The c

lerks ran to a bac

k room, at which poi

nt, they left, fearing

the police would be

there soon. Ms.Poole and Mr. Chism sta yed in the ca

r and did not know wh at she and th e defendant w ere doing.

Ms. Chism testified thatshe then drove to Jerry’s Oil on Hollywood to determine whether they could rob it. Ms. Poole knew thatthey were going to rob the

store but did not ag

ree to participate, except to go into the store to see if

anybody was inside. When Ms. Poole returned to the car, another customer arrived, resulting in their leaving . They drove to another Jerry’s Oil tosee if they could rob it but dete

rmined that the emp

loyees wer

e watching th

em too closely. They then returned to the Jerry’ s Oil o n Hollywood, and she and the defendant went into the store wearing stockings over

their heads. While she demanded the money, the defendant pointed the .25 automatic pistol at the cashier. The cashier ga ve her the drawe

r, and they

left. When they were in the car, she-4-

gavethe drawer

to the defendant, who was in the passenger-side backseat, and told him to count the money. Shortly thereafter, the police stopped them and arrested them.

On cross-examination

, Ms. Chism stated tha

t her brother wa

s about six feet, two i

nches tall. She denied that

her brother, not

the defendant, w

ent with her to rob t

he Econo Lodg

e and Jerry’ s Oil.

Carmella Poole, who was a

co-defendant at the

beginning of the trial but pled guilty before her testim ony, testified as follows: She pled guilty to facilitating a ggravated robbery and was sentenced to seven ye

ars on in tensive prob ation. She had agreed to cooperate with the state and testify tru thf ull y. On November 21, 1998, she went to the Econo Lodge with Sharon Chism, Xavier Chism, and the defendant. Ms. Chism and the defendant went into the motel, and she and Mr. Chism stayed in the car. Ms. Chism wore a stocking over her face and had a small handgun, although she admitted that in a prior statement, she had said that Ms. Chism gave the gun to the defendant. One to two minutes later, Ms. Chism and the defendant returned. They drove to Jerry ’s Oil, where she went inside and bought a beer. They left Jerry’s Oil but returned a

bout an hour and a h

alf later. Ms. Chism, who was wearing a hat, and the defendant went into the store and returned to the car with a cash register draw er. Ms. Chism drove and the defendant sat in the passenger-side backseat. On cross-examination, Ms. Poole stated tha t Xavier Chism,

who was weari ng a large, black le ather coat, did not get out of the car at either the Econo Lodge or Jerry ’s Oil.

Inves tigator

Jerald Golden of the Jackson Police Department testified that during hi s investigation of

the attempted rob

bery and r

obbery, the

defendant made

the following sta

tement:
On 11/20/98, I went o ver to Xavier Chis m’s house on North H

ayes acro ss from the Super Valu Store. This was ten-thirty p.m. or eleven p.m. When I got there

Xavier Chism, Shar

on Chism, andsome other black f emale was there. We all got into my mother’s 1991 Grand AM and went riding around. Shar on was driving the car and she drove to the Econo Lodge on t he 4 5 Bypass. Sharon and me go

t out of the car, w

ent to the motel. I had a hood over my faceand Sh aron h ad som e type o f mask over h er face . I had a pist ol and when we went in Sharon had gave the pistol to me. The re was two white male s in the office ar

ea. Sharon tried

to put t he gu n under the window but it wouldn’t go under it. The men then ran into the back room andwe ran out of the m

otel to the car an

d left. We didn’t g

et anythin

g from the motel. We went to Jerry’s Oil Company on Hollywood. Sharon was driving. I got outwith Sharon and went into a store. I waswearing blue jeans, a black shirt, a black velvet coat. Sharon was wearing some type of mask. When we got into the store, Sharon said something to the black female that
was behind the counter. I had a g un i n my hand. The

lady gave

Sharon the cash regist er drawer and we left the store and got back into my mother’ s Pontiac G ran d AM and left.-5- Sharon was driving. Xavier and another black female was in the car looking outfor us. It was

Sharon’s idea to d

o these robberie

s. The police sto

pp ed us on Hollywood near the gravey ard. The gun belonged to Sharon. Investigator

Golden said that

he reduced the statement to writing after the defendant told him what hadhappened. The de

fendant then rea

d th e statem ent, initialed each paragraph, and signed at the bottom.

The defendant testified that he had pl anned to go out with Xavier Chism but that when he went to get him, Sharon

Chism asked if she a

nd one of her frie

nds could join

them. He said that he let Ms. Chism drive because he had taken cold med ication. He st

ated that he fell asleep and that when he awoke, Ms. Chism andMr. Chism were coming out of the Econo Lodge. He said that he got out of the car, and Ms. Chism handed him a gun, but he dropped it. He sai d that Ms. Ch ism pickedup the gun and they left. He testified that they went to Jerry’s Oil on Highway 70 but left and went to Jerry’s Oil on Hollywood, where Ms. Chism’s friend boug ht a beer. He said that they left that store and drove around for about an hour, during which time he fell asleep. He stated that when he awoke, they

were at Jerry’s Oil on

Hollywood and he went inside the store. He said that he saw Ms. Chism in the store with a gun and Mr. Chism standing at the door. He testified that he returned to the car and that w

hen Ms. Chism got in th

e car, she hande

d him a cash

register draw

er and a pistol, both of which he threw under the seat.

The defendant s aid that Xav ier Chism w as a little taller than he and weigh ed abo ut two hundredfifteen pounds. He stated that Mr. Chism was wearing black jeans, a dress

shirt, a sweater, anda long fluffy

scarf . He said th

at he was wearin

g blue jeans and

a black shirt but no

t a coat. He testified that he never discussed and did not know that Ms. Chism planned to rob stores that n

ight. He said that the statement read by Investigator Golden was not what he had said nor was it what he had read and signed. He admitted that the initials and signature on the statement were his. Investigator

Golden was recalled and testified that the statement which he read into evidence was not forged and that he watched the defendant initial and sign the statement. He admitted that no other officers were present during the interview and that he did not record the intervie w.
Based upon the foregoing evidence, the jury convicte d the defendant of

conspiracy

to commit aggravated

robbery of Jerry’s

Oil and of facilitating the aggravated robbery of Jerry’s Oil. The jury found the defendant not guilty on the counts for attempted aggravated robbery

of the Econo Lodge and for conspiracy to commit aggravated r obbery of the Econo Lodge.
I. SUFFICIENCY OF THE EVIDENCE

The defendant contends that the evidence is insufficient to support his convictions, arguing that his convictions we

re based upon the

uncorroborate

d testim ony of hi s accomplices. Th e state argues that the accomplices’ testimony was sufficiently corroborated. We agree.-6-

Our standard of r eview when the su fficiency of the evidence

is questioned on ap

peal is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could hav

e found the essen

tial elements of th

e crime beyond a re

asonable doubt.” Jackson
v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). We do not reweigh the evidence but presume that the jury has resolved all conflicts in the testimony and drawn all reaso

nable inferences from the evidence in favor of the state. See State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984); Statev. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978 ). Question s about witness credibility were resolved by the jury. See State v. Bland , 958 S.W.2d 651, 659 (Tenn. 1997).

The robbery in t

his case was aggrava

ted because it wa

s accomplished wit

h a deadly weapon. See Tenn. Code An n. § 39-13-402(1). 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). Conspiracy is committed “if two (2) or more people, each having the

culpable mental state required f

or the offense w

hich is the object of the conspiracy and each acting

for the purpose of promoting or facilitating commission of an offense, a gree that one (1) or more o f them will engage in conduct which constitutes suchoffense.” Tenn. Code Ann. § 39-12-103(a). Finally, “[a] person is cri min all y respon sible for facilitation of a f elony if, kno

wing that anothe

r intends to commit a specific felony, but without the intent required for criminal responsibility under § 39-11-402(2), the p erson knowingly f

urnishes substanti

al assistance in th

e commission of the f

elony.” Te

nn. Co d e Ann. § 39-11-403(a).

It is well settle

d in Tennessee tha

t a conviction may not be based upon the uncorroborated testimonyof an accomplice. See State v. Bigbee , 885 S.W.2d 797, 803 (Tenn. 199 4) (citations omitted). To corroborate the testimony of an accomplice,

there must be some fact te stifie d to, entirely indep endent of th e accomplic e's tes tim ony, which, taken by itself, leads t

o the inferen ce, not only that a crime has been committed, but also that the defendant is implicated in

it; and this independent corroborativetestimo ny m ust also i nclude som e fact establ ishing the d efendant's ide nti ty. This corroborati ve evidence may

be direct or enti

rely circumstantial, and it need not be adequate, in an d of itself, to support a convicti on; it is sufficient t

o meet the requirements of the rule if it fairly and legitimately tends to connect the defendant with the commi ssion of

the crime charged. It is not necessary that the corroborationextend to every part of the accomplice's evidence. The corroboration neednot be conclusive

, but it is sufficien

t if this evidence, of

itself, tends to connect the defendant with the commission of the offense, although the evidence is slight and entitled, when standing alone, to but little consideration.

Hawkins v. State , 4 Tenn. Crim. App. 121, 13 3, 4 69 S.W.2d 515, 520 (1971) (citations omitted). Whether an accomplice’s testimony is sufficiently cor roborated is a matter e ntrusted to the jur y. Stanley v. Sta

te , 189 Tenn. 110, 117-18, 222 S.W.2d 384, 387 (1949).-7-

The evidence viewe

d in the light most fa

vorable to the sta

te reveals, th

rough the a ccomplices’ tes tim ony, that the defendant and Sharon Chism talked about robbing stores before they we ntout for the evening with Xa

vier Chism

and Carmella Poole

in the defendant’ s maroon, Pontiac G rand AM. The defendant and Ms. Chism went to the Econo Lodge. The defendant was wearing a stocking on his head, had a .25

caliber automati

c pis tol tha t Ms . Ch ism had give n hi m, a nd d ema nde d mo ney. After the robbery

failed, they

drove to Jerry ’s Oil on Holly wood, where Ms.

Poole entered the store to buy beer

and to see if any

body was in

the store. When another customer arrived, they left the store andwent to another Jer

ry’s Oil to se

e if they co

uld rob it. They determined that they could not, and they returned to the Jerry’s Oil on Hollywood. Then Ms. Chism and the defendant entere d the store, andMs. Chism demanded money while the defendant pointed a gunat the cashier. The cashier gave Ms. Chism the cash register drawer, and they left. Ms. Chism, who was dr iving, gave the

defendant, who was in the backseat on the passenger-side, the drawer to count the money. The police apprehended them a short time later.

This testimony

was sufficiently corroborated by the testimony of

other witnesses. F

irst, this testimonyis substantially corroborated by the defe ndant’s statement that was introduced through Investigator

Golden. Further

, Officer McMull

en and Sergea

nt Coleman testifie

d that the cash register d raw er and a .25 caliber automatic pistol were recovered from the rear passe nger-side floorboard, directly below where the defendant was sitting in the car

. Also, O fficer McMullen te stified that a stocking was recovered from the defendant’s person at booking. Fina lly, the testi mony o f Ronald James and Jerry Replogle corroborated the accomplices’ ver sion of the attemptedrobbery of

the Econo Lodge, and the testimony of Marqua y Williamson corroborated the accomplices’ version of the robbery of Jerry’ s Oil. The defendant’s contention that the accomplices’ testimony wa

s not corroborate

d is without merit.

A rational jury could have found beyond a reasonable doubt that the parties conspired to rob bu siness establishments on the night of the offenses. Likewise, it could have found t hat th e defe ndant, knowing that Ms. Ch ism intended to commi

t the aggrava

te d rob bery, knowingly furnishe d substantial assistance to that end.
II. SENTENCING

The defendant contends tha t th e trial court erred in its application of enhancement and mitigating factors and in its denial of alternative sentencing. The state argues that the tri al court properly sentenced the defendant. We agre e with the state.

At the sentencing hearing, Jane Kirby of the Department of Children’s Services testified that she served as the defendant’s case manager after the def endant was adjudicated del inquen t for aggravated

kidnapping, aggravated robbery , and aggravated burglary . She stated that the defendant
was sent to a juve nile faci lity to serve two years b

ut that he was rele

ased about six months e

arly because he earned sentence reduction credits for his good behavior.-8-

Kvochun Hou, the victim of the def endan t’s juvenile offe

nses, testified tha

t on the day in question, he answered his d oor, and the perp

etr ators, who had a weapon, fo rced him into his bathroom. He stated that he heard noises from other areas of the house and then the perp etrators took him outside, placed him in the trunk of his car, and drove to a field, where they left him. When he returned to his house, money and jewelry were missing. He said that he was seventy-nine years old when this occurred.

Marioni Lawrence, a juvenile probation office r, te stified that she was assigned the defendant’s juvenile case. She stated that the defen dant was re morseful and that the defendant seemed like a follower who could be easily influenced.

Bobbie Jean Boyd, the defendant’s mother, testified that if the defendant were released, he could live with her. Also, she stated tha t she would

make sure that the defendant complied with the terms of his probation. She admitted that the defendant’s present offenses were committed just two months after his release from the juvenile facility.

The defendant testified that on the night of the

offenses, he ha

d planned to go ou

t with some oldfriends. He said that he did not know Ms. Chism or Ms. Poole and that he did not have anything to do with the robberies. He stated that it was bad judg

ment on his part to

trust people whom h

e did notknow andthat he should not ha ve allowed Ms. Chism

to drive his mother’s car. He stated that the police officers and his accomplices lied at trial. He admitted to his pa rticipation in his ju

venile offenses. The defendant further testified that he was nineteen yea rs old, had obtained his GED, and plannedto attend college. He stated that if he were released, he would comply

with all the terms

of his probation.

The trial court found four enhancement factors applicable to the conspiracy count – that the defendant has a previous history of criminal convictions or behavior in addition to those necessary to establish the appropriate range, that the defendant possessed a firearm during the commission of the offense, that the defendant had no hesitation about committi ng a crime when the risk to human life was high, and tha

t the defendant w

as adjudicated to

have committed de

linquent acts that w

ould have been felonies if committed by an adult. See Tenn. Code Ann. § 40-35-114(1), (9), (10), (20). The trial court found that enhancement factors(1), (10), and (20) applied to the facilitation count. The trial court

found that no mitigating factors applied. The trial court then sentenced the defendant to five years on the c onspiracy count and four years on the facilitation count and ordered the sentences to run concurrently. Finally, the trial court denied probation, finding that confinement was
neces sary to avoid depreciating the seriousness of the offenses. See Tenn. Code Ann. 40-35- 103(1)(B). The trial court commented that robberies were a serious problem in the community

. When a defendant appeals the length, range, or manner of service of

a sentence imposed by the trial court, this c

ourt conducts

a de novo review of the record with a presumption that the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d). The presumption of correctness

is “conditioned upon the affirmative showing 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,-9-

169 (Tenn. 1991). The burden of showing that the sentence is improper is upon the appealing party. Tenn

. Code Ann. § 40-35-401(d), Sentencing Commission Comments. However, if the record shows that the trial cour

t failed to conside

r the sentencin

g pr inciples and all relevant facts and circumstances, then review of the sentence is purely de novo
. Ashby , 823 S.W.2d at 169.

The defendant was sentenced as a Range I, standard offender, for which the applicable range for a Class C felony is three to six years. Tenn. Code Ann. § 40-35-112(a)(3 ). The presump tive sentence for a Class C felony is the minimum in the range when no enhancement or mitigating factors are present. Tenn. Code Ann. § 40-35-210(c). Procedurally, the trial court is to increase the sentence within the ran ge base d upon the existence of enhancement factors and then reduce the sentence as appropriate for any mitigating factors. Tenn. Code Ann. § 40-35-210(e). The weight to be afforded an existing factor is left to the trial court’s discretion so long as it complies with the purposes and principles of the 1989 Sentencing Act and its findings are adequately supported by the record. Tenn. Code Ann. § 40-35-210, Sentencing Commission Comments; Ashby , 823 S.W.2d at 169.

The defendant asserts that the trial court erred in its application of en hancement and mitigating factors. H owever, the defendant does not make any argument as to how the trial court erred. It is not a function of this court to rummage through the record to glean support for a defendant’s summary assertions. SeeT.R.A.P. 27(a)(7). In any event, we cannot say from a review of the record that

the trial court abused its discretion in weighing the enhancemen t factors to incre

ase the defendant’s sentences for conspiracy to five years and for facilitation to four yea rs.
The defendant also asserts that the trial court erred in denying him prob ation. Again, the defendant does not make any argument as to how the trial court erred. However, we recognize that the trial court’s cryptic recital of its findings indicates that confinement was based upon the mere fact that a robbery occurred, an inadequate reason for denying probation. Nevertheless, probation was properly denied in light of th

e facts that t

he defen dant was adjudicated delinquent for aggravated kidnapping, aggravated robbery, and aggravated burglary and tha t the defendant committed the present offenses just two months after his release from a juvenile facility. Such does not bode well for his rehabilitation potential. Confinemen t may impress upon hi m the seriousness o

f his misconduct. We do not believe that the defend ant ha s carried his burden of showing that the sentences are improper.

Based upon the foregoin

g and the record

as a whole, we af

firm the judgments o

f th e trial court.

___________________________________ JOSEPH M. TIPTON, JUDGE