# FILED
March 31, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE

STATE OF TENN ESSEE, ) ) No. 03C01-9403-CR-00124 Appellee ) ) SULLIVAN COUNTY vs. ) ) Hon. ARDEN L. HILL, Judge SCOTT E. FAIN, ) (Sitting by Designation) ) Appellant ) (Esp . Aggr avat ed Ro bber y)
For the Appellant : For the Appellee : Raymond C. C

onkin, Jr. Charles W. Burson Attorney at Law Attorney General and Repor ter 152 Broad Street, Suite 207 Kingsport, TN 37660 Clinton J. Morgan Assistant Attorney Gener al Criminal Justice Div

ision 450 James Robertson Parkwa y Nashville, TN 37243-0493 H. Greeley Wells, Jr. District Attorney General Phyllis Miller an d David Overb ay Asst. District Attor

neys General Blountville, TN 37617

OPINION FILED: AFFIRMED

PER CURIAM1 The a ppellant an d a co-d efenda nt, Clint Jen nings, we re jointly indicted fo r this offen se. Prior to the appell ant’s t rial, the co-defendant pled guil

ty to the offense of

especiall

y aggravat

ed robb ery. 2 OPINION
The appellant, Scott E. Fain, was indicted by the Sullivan County Grand Jury
on one co unt of e speciall y aggravated robbery, a class A fe lony. 1 The appellant was convicted by a jury

of the lesser offense of robbery, a cl ass C felony, and receiv ed a sentence of nine years confinement as a range II offender. In this appeal as of right, the appellant challenges ( 1) the sufficiency of the convi cting evidence and (2) whether the trial court erred by failing to instruct the jury on the offense of accessory after the fact.

After a review of the rec ord, we affirm the judgment of the tr ial court.

Background
Around 7:00 p.m. on the evening of January 25, 1993, Gene Hammonds, a cab driver for Gilli am Cab Company in Kingspor t, was dispatched to 232 Gal e Street which is located in the Bloomingdale area of Kingsp ort. The cab was dispatched at the request of Clint Jennings who, at the time, was residing at the Gale Str eet address. Also prese nt was the a ppellan t who was visit ing with Jen nings. Th e two had spent mos t of the afte rnoon consum ing alcohol. At som e point, Jennin gs decided to visit a former g irlfriend and reclaim a r ing which he had prev

iously given to her. The Gilliam Cab Company was then called. Before the cab arrived, Jennings obtained a claw hammer from his bedroom and a butcher k nife from the kitchen. Both weapons w ere concealed under his clothing. Jennings testifie d that the appellant was unawar e that he possessed these weapon s. Upon arrival of the cab, Hammond was instructed to drive to Fletcher

’s Pool Hall on Dale Str eet. The3

appellant sat in the front passenger seat; Jennings sat in the back se at directly behind the driver. After bo th entered the cab, Hammond related that, “I knew something wasn’t right because he [the appellant] wouldn’t look at me.” Shortly after leaving the Gale Street address, Jennings began beating the driver in the back of his head with the hammer. As a result of the blows, Hammond sustained four one-inch lacerations to his head which required medical attention. Frightened and in pain, Hammond quickly s topped the car and jumped out with the motor still running

. As he was fleeing from the cab, Hammond heard Jennin gs say “kill the SOB.” Although Hammond conceded that the appel lant never hit or touched him during the course of the robbery, he tes tified that the appellant “sli d over on the driver ’s side when [Jennings] start

ed hitting me.” At tria l, Jennings testified that the appellant had no knowledge of nor did he participate in the robbery. Moreover, he stated th at the appellant repeatedly r equested to be let out of the cab. H ammond contradicted Jennings’ testimony in this regard. He stated that he never heard the appellant tell Jennings to stop the attack nor ask to be let out of the cab.

Once out of the cab, Hammond went to a nearby house for assistance but was unsuccessful. He then proceeded to run across the s treet to another house, where the resident telepho ned the police. While Hammond was waiting for the police to arrive, he o bserved his cab coming back down the road tow ard him at a slow speed. Standing approximately within ten feet and under bright streetlights, Hammond identified the appellant as the person driving his cab as it passed by him. He observed Jennings i n the passenger side of the front s eat.
A report of the theft of the cab was dispatched to law enforcement officers patrolling in the area. Trooper Jackie Watkins of the Tennessee Highw ay Patrol observed a cab occupied by two males stopped on the sid e of the road. Watkins turned his cruiser aroun d to begin pursuit. Soon thereafter, a Sullivan Count y deputy also joined in the pursuit. At this point, W atkins stated that the cab quickly4

accelerated. He stated, “they was [sic] absol utely flying, as a mat ter of fact, they went airborne. . . .” Watkins testified that it app eared that the two men were attempting to “ditch” the car, “they would slow down, and then . . .they would take off. . . .” The suspects finally were able to “ditch” the cab. In Watkins’ attempt to strategically use

his cruiser to block the driver from exiti ng the vehicle, the cr uiser collided with the dri

ver’s side door of the cab.Despite this attempt, the tw o suspects were able to flee on foot. At thi s point, it was determi ned that Jennings, who w as apprehended at the scene by another officer, was the driver

of the cab. Despite an encounter with a canine officer and his tracking dog,the appellant managed to escape. The appellant made his w ay to the home of Clifford Brady and informed Brady that “the law”

had “told him not to be out . . . because they was [si c] hunting
someone .” The ap pellant spent th e night at Brady’s ho me and, t he next da y, accompanied Brady and his mother to the grocery store. Presumably during this excursion, the appellant informed Brady that the police were looking for Jennings. The evidence at trial establ ished that the appellant’s home w as one-half mile closer to the site of the abandoned cab than Brady ’s residence. The appellant w as not apprehended until several weeks later.

I. Sufficiency of the Evidence
The appellant contends that the evi dence was insufficient to conv ict him of the offense of robbery. Specifically, he argues that, because he had no prior knowledge of the planned attack and because he did not active ly participate in the robbery, he cannot be held c riminally responsib le for the acts of Clint Jennings. Moreover, he asserts that the inconsistencies betw een the testimony of the witnesses at trial makes it impossible for a rati onal trier of fact to have found the essential elements of the crime t o have been present beyond a r easonable doubt. Specifically, the appella nt refers to inconsistencies between the victim’s

recitation of5

the circumstances of the offense and the v ersion presented by Cl int Jennings. Although we acknowl edge the discrepancies betw een the State’s proof and the appellant’s proof at trial, the determination of the weig ht and credibility of the testimony of witnesses and reconciliation of conflicts in that testim ony are matters entrusted exclusively

to the trier of fact, and not this court. State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984). Despite the conflicts within the testimony

at trial, as the arbiters of the credibil ity of the witnesses, the jury chose to accr edit the testimony of the State’s witnesses and reject the claims of the ap pellant. This court will not re-eval uate the evidence or substitute its inferences for those dra wn by the trier of fact from the evidence. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978); Farmer v. State , 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978); State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). A conviction may only be set aside whe n the reviewing cour

t finds that the evidence is insufficient to support the finding of the trier of fact. Tenn. R. App. P. 13(e).
When there is a challenge to the verdi ct based upon the sufficiency of the evidence, this court must review the evi dence in the light most favor able to the prosecution and determine w hether “any rational tr

ier 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); State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994); Tenn. R. App. P. 13( e). A guilty v

erdict accredits the tes timony of the witnesses for the State, an d a presumption of guilt repl aces the presumption of innocence. Grace , 493 S.W.2d at 476. Moreover, the appellant bears the burden of proving that the evi dence is insufficient to support the jury verdict in his case. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1992).
Robbery is defined as the “ intentional or knowing theft of property from the person of another by viol ence or putting the person i n fear.” Tenn. Code Ann. § 39- 13-401 (1991). Again, the appellant argues that, althoug h he was present during6

the robbery, he did not acti vely participate i n the offense. Accordingly, he argues that there is insufficient ev idence to show that he posses sed the requisite intent to engage in the robbery.This argument, howeve r, ignores the prov isions of Tenn. Code Ann. § 39-11-402 which permits criminal liabi lity to be imposed based upon the conduct of another. A person i s criminally respon sible for the conduct of another if, “acting wi

th intent to promote or assis t the commission of the offense, or to benefit in the proceeds or res ults of the offense, the person solicits, directs, aid, or attempts to aid another perso n to commit the offense . . . .” Tenn. Code Ann. § 39-11-401; -402(2) (1991); see also State v. Carson , 950 S.W.2d 951, 953 (Tenn. 1997). Moreover, gui lt may be predicated upon dir ect evidence, circumstantial evidence, or a combination o f direct and circumstantial evidence. State v. Carey , 914 S.W.2d 93, 95 (T enn. Crim. App. 1995).
The proof in the present case establi shed that the appellant sat in the front passenger seat of the cab and “s lid over” to the dri ver’s side when J ennings began striking the vic

tim with a hammer. He remai ned silent during Jennings’ attack on Hammond, and, after Hammond fled from the cab, the appel lant was seen drivi ng the stolen vehicle away. Moreover, since the attack was initiated while the vehicle was moving, the trier of fact could reasonably infer that the appellant purp osefully sat in the front seat in order to gain control of the vehi cle during the attack. Additionally, after hav

ing several opportuni

ties to withdraw from the criminal venture, the appellant remained in joint possession of the stolen cab when it came to rest in the ditch. Finally, the appellant’s flight from the scene, including his att empt to evade confrontation with l aw enforcement officers, is a re levant circumstance from which, when considered with the other facts and circumstances in evidence, a jury can properly draw an inference of guilt. See State v. Zagorski , 701 S.W.2d 808, 813 (Tenn. 1985); State v. Hill , 875 S.W.2d 278, 28 4 (Tenn. Crim. App. 1993), perm. to appeal denied , (Tenn. 1994); Rogers v. State , 455 S.W.2d 182, 187 (Tenn. Crim. App. 1970). These facts, both circumstantial an d direct, support the jury’s2 The appellant also argues t hat he cannot be f ound guilt

y of robber

y via criminal responsibi lit

y because Jenni ngs pled gui lty to especial ly aggr

avated robbery. In ot her words, he con tend s tha t the ju ry cou ld hav e only f oun d him guilty of espe cially ag grav ated robb ery via criminal r

esponsibil ity

because that i s the offense committed by the prin cipal act

or. This ar

gument is misplaced.

In a prosecuti on in which a person’s cri minal responsi bili ty i s based upon the conduct of anot her, the per son may be convicted on proof of commission of t he offe nse and t hat th e per son was a par ty to or f acilita ted its com mis sion , and it is no defe nse tha t:

(2) T he pe rson for w hos e con duc t the d efen dan t is crim inally re spo nsib le has be en acq uitted, has not been prosec uted or c onvicted , has been convicted of a differe nt offense or different ty pe or class of offense, or is immune from prosec ution. Te nn. Cod e Ann. § 39-11-4 07(2). (em phasis a dded). 7 findings that the appellant acte d with the intent to assi st in the robbery by aiding or attempting to aid Jennings in the commission of the offense. By ai ding and assisting in the offense, the appellant becam e criminally responsible for the conduct committed by Jennings. Ac cordingly, we c

onclude, as a matter of law, that the evidence is sufficient to supp ort a finding by the jur

y that the appellant is g uilty of robbery. This issue is

without merit. 2

II. Failure to Instru ct Jury on Off ense of Accessory

After the F

act
In his final issue, the appellant contends that the trial court’s denial of his request for a jury char

ge on the offense of accessory after the fact was error. Whether or not the facts of this case would hav e constituted the crime of being an accessory after the fact is a nonissue, because that felony w as not charged in the indictment. The law is clear that a defendant cannot be convi cted of an offense that is neither charged in the indictment nor is a lesser grade or lesser included offense of the offense charged. See State v.Trusty , 919 S.W.2d 305, 31 0-14 (Tenn. 1996); State v. Hodgkinson , 778 S.W.2d 54, 63 (Tenn. Crim. App. 1989); State v. Norris , 684 S.W.2d 650, 655 (Tenn. Crim. App. 1984); State v. Hoosier , 631 S.W.2d 474, 476 (Tenn. Crim. App. 1982). This issue is without meri

t.8 III. Conclusion

After a review of the iss ues presented, we affirm the judg ment of the trial court.

PER CURIAM