# FILED
January 30, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JANUA RY 1998 SESSION

STATE OF TENN ESSEE, ) ) NO. 02C01-9610-CR-00350 Appellee, ) ) SHELBY COUNTY VS. ) ) HON. JOSEPH B. DAILEY, TORRANCE JOHNSON, ) JUDGE ) Appellant. ) (Aggravate d Robbery)

FOR THE APPELLANT : A.C. WHARTON, JR. (Of Cou nsel) Shelby County Public

Defender RONALD S. JOH NSON (Trial) Assistant Public Defender 201 Poplar Avenue, Suite 201 Memphis, TN 38103-1947 EDWARD G. TH OMPSON (App eal) Assistant Public Defender 212 Adams Avenue Memphis, TN 38103 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter KENNETH W. RUCKER Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 WILLIAM L. GIBBONS District Attorney General PHILLIP GERAL D HARRIS TERRELL L. HARRIS DAVID C. HENRY Asst. District Attor

neys General 201 Poplar Avenue, Suite 301 Memphis, TN 38103-1947

OPINION FI LED:

AFFIRMED

JOE G. RILEY, JUDGE1 Smith had marriedbetweenthe time of the cri me and the trial. H

er married name was “Morgan.” For purposes of clarity, we will refer to the victim as “Smith.” 2 OPINION

T he defendant, Torrance Johnson, appeals as of right his convicti on for aggravatedrobbery. He was sentencedas a Range I , Standa rd Offe nder, to twelve (12) years incarceration. On appeal, he presen ts five (5) issues for ou r consideration: (1) whether the evi dence is sufficient to support the verdict; (2) whether th e trial co urt erred in ruling that, if defendant chose to testify, the state could impeach him by inquiring on cros

s-examination if he had been con victed of an unnam ed felon y; (3) whether the trial court erred in admitting into evidence a sketch of the susp ect made in the cou rse of inve stigating the robbe ry; (4) whether the trial co urt erred in fail ing to charge the jury on voice identification; and (5) whethe r the trial court err ed in charging the jur y that the law presumes that every w itness is “sworn t

o the truth.” After a thorough review of the record , we find noerror. Therefore, the judgment of the trial court is affirmed.

FACTS

At approximately 8:20 p.m. on January 20, 1994, Nedra Smith 1 pulled her car into the parking lot

of Boatman’s Bank on Elvis Pr esley Boulevard in M emphis. She left her car running while she went inside the ATM build ing. As she was approaching th e ATM, she s aw two men running. One man told the other one to get in the car, and Smith turned to see what car th ey were referring to. When she turned, she saw one man getting into her car and the other approaching her i n the ATM building. The man in the ATM w as wearing jeans, a b lack jacket and a sweatshirt with the hood pulle d over hi s head. His face was not c overed. Smith identified this man at trial a s the defendant. Defendant brandished a weapon and said,“[g]ive m e t wo hundred dollars,2 Smith had a child’s car seat in the back seat of her car. Fortunately, her child was not in the car at the time.

3 Pinnow testified at trial that he questioned defendant after he noticed that defendant resembled the ske

tch drawing of t

he suspect.

3 or I’ll kill the baby .” 2 Smith attempted to retriev e $200 from the machine, but wa s unsuccessful. She then turned around and told defendant that she could not get that much out of her account. Defendant answered, “[y ]ou look at me again, I’ll kill you.” Smith was ulti mate ly able to retriev e $50, which she gav

e to defendant. Defendant then jumped in the backseat of Smith’s car and th e two men d rove away. Smith’s car was located the next day approximately one and one- half miles from the Boatman’s Bank ATM. Sever al items were missing

from her car including
a coat, the child car

seat, a purse, a wallet, shoes and credit cards. The police were not able to obtain any finger prints from the vehicle. Subseque ntly, Smith assisted the police in drawing

a sketch of the man who robbed her. She was also aske d to view a line-up

of men who fit the description of the suspect. However,she was not able to identi fy anyone as the perpetrator of the crime. On March 11, Memphis Police O fficer Al an J. Pinnow intervi ewed the defendant in connection with this crime. 3 When asked his whereabouts on the date and time of the robbery, de fendant r esponded that he was work ing that night. Officer Pinnow called to confirm this information, but defendant’s employ er had no record of him working onJanuary 20. Defendant then told Pinnow that hewas at
a clinic being treated for pneumonia. He also said that he was at home duri ng the time in question. Defendant wasasked to participate in a line-up. Smith initial ly noticed that two men resembled the man who robbed her. The def endant was one of these
men. However, when al l of the men in the line-up we re asked torepeat the phrase, “give me two hundred dollars, or I’ll kill the baby,” Smith recognized the defendant’s voice. She then identified defendant as the perpetrator.

When Pinnow advised defen dant tha t he was picked out of the li ne-up,4

defendant responded that he knew he w as going to be picked. The jury found defendant guilty of aggravated ro bbery . The trial court sentenced him to twelve (12) y ears incarceration as

a Range I, Standard Offender. From his conviction, defendant brings this appeal.

SUFFICIENCY OF THE EVIDENCE

In his first issue, the defendant cha llenges thesufficiency of the convicting evidence. He contends that the vic tim’s identificationof defendant is unreliable in that she had little time to see defendant’s face during the robbery and was only able to ide ntify him after hearing his voice. Therefore, he claims that the evidence i s insufficient to sustain the jur y’s finding of guilt. In determining the sufficiency of the evidence, this court does not reweigh or reevaluatethe evidence. State v. Cabbage , 57 1 S.W.2d 832, 835 (T enn. 1978). A jury verdict appr

oved by the trial j udge accredits the stat e's witness es and resolves all conflicts in favor o

f the state. State v. Bigbee , 885 S .W.2d 797, 803 (Tenn. 1994); State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992). On appeal, the state is entitled to the stron gest legitimate vi ew of the evidence and all legitimate or reasonable inferences which may be drawn ther

efrom. Id . This court will not disturb
a verdict of guilt due to the sufficiency of t he evidence unless the defendant demonstrates that the facts contained in the record and the inferences which may be drawn ther efrom a re insuf ficient , as a mat ter of la w, for a rational trier of fact to find the accused guilty

beyond a reasonable doubt. State v. Brewer , 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996). Accordingly , it is the appellate court 's duty to affirm the conviction if the

evidence, viewed under these standards, was sufficient for any rational trier of fact to have found the esse ntial elements of the offense beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia , 443 U.S. 307, 317, 99 S.Ct. 2781, 2789, 61 L. Ed.2d 560 (1979); State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994). In the case sub judice , the victim positiv ely identified defendant not only at4 Furthermore, in State v. Abraham Galmore , C.C.A. No. 02 C01 -9607-CR-00230,

Shelby County (Tenn. Crim. App. filed September 9, 1997, at Jackson), this Courtheld that in order for a defendant to be successful on appeal ba sed upon a trial court’s ruling on the admission of prior convicti ons, two prerequi

sites must be met: (1) defendant mu st establish that he did not testify

because of an unfavorable ruling on admissibility of a prior conviction, and(2) defendant must make an offer of proof as to the proposed trial te

stimony so

that the appellate court can assess the impact of the trial court ’s ruling. Defendant has established neither require

ment. 5 the physical line-up but also at trial. The

identification of a defendant as the perso n who committed the offense is a question of fact for the jury to determine. State v. Strickland , 885 S.W.2d 85, 87 (Tenn. Crim. App. 1993). The testimony of the victim identifying the defendant as the perpetrator of the cri me is suf

ficient , in and o

f itself, to support a conviction. Id . Moreover, the defendant gave differing versions of his whereaboutso n the sub ject night in an attempt to establish an alibi. This is circumstantial evidenc

e from which the jury c ould infer defendant’s guilt. This issue is without merit.

IMPEACHMENT ON UNNAMED F ELONY

Defendant next contends that the tri al court erred in ruling that the state could impeach defen dant, if he chose to testify, by i nquiring on cross ex amination if he had ever been convicted “ of a felony

without the nature of the felony being revealed to the jury.” See State v. Summerall , 926 S.W.2d 272 (Tenn. Cr im. App. 1995). However, our review of the rec ord reveals no such rul ing. The trial court ruled that the state could impeach defendant with prior felo ny convictions for selling a counterfeit controlled substance and criminally negli gent homicide. Therefore, this issue is without meri

t. 4

ADMISSIBILITY OF SKETCH

In his next issue, defendant ass erts that he was denied his right to6

confrontation by the introduction of a poli ce sketch drawing of the robbery suspect. He argues that because the sket ch was introduced throug h the testimony of the victim, he was denied his rig ht to confront the sketch artist. He further claims that the state did not lay a pro per foundation for its introducti on into evidence. We initially note that defendant has waived this i ssue by failing to object to the introduction of the sketch at tr ial. Tenn. R. App. P. 36 (a). The issue is also waived due to defendant’s failure to includ e it in his motion for new trial. Tenn. R. App. P. 3(e); see State v. Walker , 910 S.W.2d 381, 38 6 (Tenn. 1995). Furt hermore, the issue has no merit. The prepar er of the sketch need not testify at trial as long as the exhibit is identified as being a fair and accurate representation. The victim assisted the artist in drawing the sketch of the suspect. She testified at trial th at the sketch introduced into ev idence was that whic

h was made in co njunct ion with her description. We find this situation to be closely analogous to a witness authenticati ng a photograph even thoug h he or she was not the photographer. See N. Cohen, D. Paine & Sheppeard, Ten nessee Law of Evidence , § 401.11 (3d ed. 1995). Smith had personal k nowle dge of the subject matter and authenticated the drawin g as the sketch of the suspect of therobbery. Furthermore, defe ndant was afforded the opportunity to cross-examine Smith o n th e accuracy of the sketch. See State v. Miklos Jusi no Holley , C.C.A. No. 02C01-9112- CR-00280, Shelby County (Tenn. Crim. App. filed February 3, 1993, at Jackson). We find no violation of defendant’s right of confrontati on.

VOICE IDENTIFICA

TION JURY INSTRU CTION

Defendant also argues that the trial c ourt erred in failing

to instruct the jury
on voice identification. He contends that because the victim was able to positively identify the defendant only afte r she h eard his voice, the v oice identification was crucial to the

jury’s determination. Therefore, he insists that the trial court should have instru cte d the jury on factors to consider in determining if the victim’s identification of the defendant’s voi ce was reliable.7 However, the defendant made no special request for a “voice identification” charge at trial. Moreover, defendant did not object to the identific ation instructions submitted to the jury and failed to raise this issue in his motion for new trial. Thus, th e issue is waived. State v. West , 844 S.W.2d 144, 151 (Tenn. 1992); State v

. Kendricks , 947 S.W.2d 875, 885 (Tenn. Crim. App. 1996). Further more, the general instructions giv en to the jury were adequate. Se e State v. Forbes , 918 S.W.2d 431 (Tenn . Crim. App. 1995). This issue is without merit.

PRESUMPTION OF TRUTH JURY INSTRUC TION
In his final assignment of err or, defendant urges that the tri al court erred in instructing the jury that every witness is presumed to tell the truth. He contends that this inst ruc tion deprived him of his cons titutional right to the presumption of innocence. This Court haspreviously held th at an instruction that the la w presumesthat every witness is swor

n to the truth is constituti ona l ly sound. Lundy v. State , 752 S.W.2d 98, 104 (Tenn. Crim. App. 1987); State v. Glebock , 616 S.W.2d 897, 906 (Tenn. Crim. App. 1981). This i ssue has no merit.

CONCLUSION
For the foregoing reasons , the judgment of the trial cour t is affirmed.8 JOE G. RILEY, JUDGE

CONCUR:

JOE B. JONES, PRESIDING JU DGE

PAUL G. SUMM ERS, JUDGE