# FILED March 15, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON DECEMB ER SESSION, 1998
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9803- CR-00096 ) Appellee, ) ) SHELBY COUNTY V. ) ) ) HON. BER NIE WEI NMAN, JUDGE GEORGE BROOKS, ) ) Appe llant. ) (AGGR AVATED ROB BERY )

FOR THE APPELLANT : FOR THE APPELLEE : A.C . WHAR TON JOHN KNOX WALKUP Distri ct Public

Defender Attorney General& Reporter WALKER GWINN PETE R M. C OUG HLAN Assistant Public Defender Assistant Attorney General Criminal Just ice Center, Suite 201 2nd Floor, Cordel l Hull Bui lding 201 Poplar Avenue 425 Fifth Avenu e North Memphis, TN 38103 Nashvill e, TN 37243 JOH N W. P IERO TTI District Attorn ey Ge neral P. T. HOOVER Assistant Distri ct Attorney General Criminal Just ice Center, Suite 301 201 Poplar Avenue Memphis, TN 38103

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION
The Defendant, George Br ooks, appeals as

of right follo wing h is conv iction in the Sh elby C ounty Crim inal Co urt. Th is was Defendant’s s econd trialsurrounding an incident

which oc curred o n Marc h 25, 19 94. Following Defendant’s f irst t rial, he was convicted of aggra vated rob bery. In an appea l to this cour t, Defendant

argued that thetrialcourt err ed in fai ling to instruct the jury on the lesser

included offense of aggravated assault. This cour t revers ed the Defendant’ s convict ion and remanded for a new trial on that ba sis. State v. George Brooks , No. 02C01-9602- CR-00050, Shelby Cou nty (Tenn. Crim. App. , at Jackson, May 14, 1997). Defendant was again convic ted of a ggrav ated ro bbery in the second tri al. He appeals now on the basis of insuff iciency of evi dence regarding pr oof ofDefendant’s i dentity as the perpetrator and th at the vic tim’s injuries constitute “serious bodily injury.” We affirm the judgm ent of the tria l court.

When an accused chall enges the suffic iency of t he convicti ng evidence, t he stand ard is w hethe r, after re viewing the evid ence in the light most favorabl e to the prosecution , any rati onal tri er of fact could have found the essenti al elements of the cri me beyond a reaso nable d oubt. Jack son v. V irginia , 443 U.S. 307, 31 9 (1979). On appeal, t he State is e ntitl ed to the st rongest legitimate vi ew of the evidence and all inference s therefro m. State v. Cabbage , 571 S .W.2d 832 , 835 (Tenn . 1978). Because a verdict

of guilt rem oves th e pres ump tion of in noce nce a nd rep laces it with a presumption of guilt, th e acc used has th e burd en in this cour t of il lustrat ing why the evidence is insufficient to support the ve rdict returned by the trier of fact. State v. Tug gle , 639 S.W .2d 913 , 914 (T enn. 19 82); State v. Grac e , 4 93 S.W.2d 474, 476 (Tenn. 19 73).-3- Questions concerning the credib ilit y of the wi tnesses, t he weight and value to be given the evidence, as wellas all factualiss ues r aised by the evide nce, are resolved by the t rier of fact, no t this court. State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. A pp.), perm . to app eal denied , id . (Tenn. 198 7). Nor ma y this court reweig h or reevalu ate the ev idence
. Cabbage , 571 S.W .2d at 835. A jury verdic t approved by the trial court accredits the State’ s witnesses andresolve s all conflicts in favor of the State. Grace , 493 S.W.2d at 476.

The Defendant and the victim, Terry Howell, were co-worker s at a pl ant , United Liquor, i n Memphis. On March 25, 1994, the Defen dant as ked the victim to borrowtwenty dollars ($2 0.00), bu t the victim re fused. Following work that day , the victim went to a friend’s ho me. Arou nd 8:00 p.m ., the vi ctim lef t hi s frien d’s

home and began to walk towards his hom e. As the most di rect route to his home was through an alley behi nd the Defendant’ s home, the vi ctim walked t hrough the all ey and was approached by the De fendan t. The D efenda nt again a sked the victim to borrowtwenty dol lars ($20. 00), but t he victi m stillref us ed. Defendant t hen hit th e victim in the fa ce with an un identifia ble bla ck ob ject. Fo llowing the atta ck, the victim noticed th at sixty dollars ($60.00 ) was m issing from his pock et.

The victim te stif ied that he was ne arly knoc ked un conscio us by the assau lt. He was a ble to “stagger ” home, where he attempted to recover. When the swelling and pain p ersiste d, the vic tim we nt to the hosp ital. The vict im had sustained t wo (2) broken bones to his low er jaw in addition to a b roken nos e. The victim ha d to have surgery at a later d ate to ins ert a metal plate under his l eft eye. The victi m was under a phys ician’s c are for appro ximate ly one (1) month. He state d th at at t he t ime-4-

of tr ialhis

teeth w eresti ll numb and h e still had pain in his eye . This testimony of the victim’s injurie s was u nrefuted by the De fendan t.

Jerome Smith, a supervis or to both the Defendant and t he victi m, stated t hat on Monday foll owing the incident between these employees, the Defendant ar rived early for work. When t he De fen dant camein, he said , “You all look ing for Te rry. . . Terry won’t b e in this m orning beca use I p ut this o n him . . . I ’ll bet you anyt hing he won’t be he re this morning.” When asked to describ e what th at statem ent me ant to him, Smith e xplained that me ant that D efenda nt had “w hipped [the victim] u p.” The victim did not show up f or work that

day and they l ater found out that he had been beaten. The Defendant constant ly bragged about doing it at fir st, but l ater recanted after he fou nd out h e was g oing to trial.
Billy March was wo rking with both the Defendant and the victi m in March 1994 at United Liquor. On March 28, 1994, Defendant came to work and stated that the victim would not be there because he “ messed him up.” The vi ctim did not show up for work th at day, bu t did return la ter that sam e week
.
Paul Gray, also a n employee of United Li quor, stated thaton March 28, 1994, the Defendant advi sed him that t he victi m would not be com ing in to work because he “took him ou t.” The victim did not co me to w ork that da y.

This co nclude d the Sta te’s case -in-chief.
Aquilla Sorrell testified for the defense that she was l iving wi th the Defendant and herfour (4) childre n in Ma rch 19 94. So rrell kne w of the victim because he liv ed-5-

in the sam e neigh borhoo d. On M arch 25 , 1994, S orrell recalle d that sh e was not working and was at home . Af ter wor kin g th at d ay, theDef enda nt came h ome and then returned to the store. Defendantwas g one a pprox imate ly five (5) minutes and returned home. She and Defendantstayed home the remai nder of the ev ening. The victim came over for about ten (10) minutes later that nigh t, and she re called that he had not been beaten up or anything when he was there. The next ti me that the Defen dant left the ir home was on Saturda y morn ing, Marc h 26, 19 94.

The Defendant test ified t hat he was li ving with Aq uilla So rrell in March 1994. He was working at United Liquo r as a truck driver and knew the vi c tim as a coemployee. On March 25, 1994, hegot off work around 6:30 p. m., then went home. Defendant went back out to the store, but was only gone afew mi nute s. He described that he was re ally t ired and went t o sleep after return ing home. Defendant did not recallthe vict im coming over that eveni ng. When Defendant got to work on the followi ng Monday morning, anot her employee tol d him that hehad been accused of r obbi ng t he v ict im. Def enda nt d eni ed robbi ng or beat ingthevi cti m.
Regarding the sufficien cy of the ev idence , Defend ant con tends tha t the State failedto prove hi s identi ty in t he attack upon t he victi m. In a ddition to the victim’s identif icatio n of the Defendant as the pe rpetrator of the of fense, thr

ee (3) other

coworkers of both theDefendant and t he victi m testifi ed that the Defendant bragged thatthe victim would not be at work on Monday, March 28, 1994, because Defendant had “messed up” the victi m. The Defendant argues that his denial of t hese events and the tes timon y of his fo rmer girlfriend , Aquilla Sorrell, verifying his wher eabou ts on the evening of

the attac k, do not al low for a rat ional trier of f act to have f

ound him as the perpetr

ator of the crime agai nst the vi ctim. However, given the ov erwhelming-6-

testimony

by the vi ctim and three (3) other s who heard the Defendant brag a bout committing the crime, there is m ore than sufficient evide nce where by a rationaltrier of fact coul d have found Defendant as the perpetrator beyond a reaso nable d oubt. Any questionsconcerning t he credibi lity of the wit nesses and the weight to be given the evidence are r

esolved by t he trier

of fact, and we will not reweigh the evidence on Defen dant’s be half. Pappas , 754 S.W .2d at 623 ; Cabbage , 571 S.W.2d at 835.

Defendant argues that the inj uries su stained by the Defendant do not const i tute “serious bo dily i njury. ” Aggravated r obbery requi res that a r obbery be accom plished w ith a deadly weapon or by display of any art icle used or fashioned to lead the vi ctim to reas onably beli eve it to be a deadl y weapon or that th e victim su ffer s erious bodi ly inj ury. Tenn. Code Ann. § 39-13-402. Tennessee Code Annotated section 39- 11-106(a)(34)defines“serious bo dily i njury” as “bodily injury which involves:” (A) a substanti al risk of death; (B) prot racted unconsci ousne ss; ( C) ext remephysical pain; (D) protracted or obvious di sfigurement; or (E) protracted l oss or substan tial impairm ent of a fun ction of a bodily mem ber, organ or m ental faculty.

The evidence at trial , unrefuted by the Defendant, demonstr ated the i njuries the victim suffered i ncluded permanent damage to hi s left eye requir ing the inserti on of a metal plate which still causes the vi ctim pain. In addit ion, he has a l oss of feelingin his mouth. This e viden ce su fficiently m eets th e defin ition of a victim sufferi ng “a protr

acted loss or

substanti al impairment of a func tion of a bodily mem ber, organ or mental faculty.” Te nn. Co de Ann . § 39-11-106(a)(34)(E). Fr om the evidence, t he jury coul d have rati onally conc luded that the Defendant committed aggrava ted robb ery. This iss ue is witho ut merit.-7- We affirm the ju dgme nt of the trial co urt.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ GARY R. WA DE, Presiding J udge

___________________________________ JOHN EVERET T WILLIAMS, Judge