1 Th e defe nda nt’s name is spe ll ed “ Cla uzel le” on s ome pleadings. Pursuant t o our policy, we use the s pelling

set forth in th e indic tment. 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON Assigned on

Briefs D ecem

ber 3, 2002 STATE OF TENN ESSEE v. CLAZ ELLE JENNINGS Direct Appeal from the Criminal Court for Shelby County Nos. 00-12920, 98-12024, 25 John P. Colton, Jr., Judge

No. W2001-01022-CCA-R3-CD - Filed January 29, 2003
A Shelby County

jury convicted the defenda

nt, Clazelle

Jennings, 1 of aggravated r obbery and two counts of aggravated a ssault. The trial court sentenced him to concurrent sentences of ten y ears for aggravated

ro bb er y an d f ou r ye ars for ea ch of the aggrava ted assaults. On appeal, the defendant present s the following issues: (1) whether the trial court erred in deny ing his mo tion to supp

ress his statemen ts to police; (2) whether the evidence was suff icient to support the convictions; (3) whether the convictions for aggrava ted robbery

and aggravated a ssault upon the same victim viol ate doubl e je op ar dy; and (4) w

hether t he sente nce is excessive. Upon review of the record and the a pplicabl e law, we reverse and dismiss on e of the aggravate d assault convictions due to a double jeopardy violation. We remand for a clerica l corre ction of th

e remain ing ag grava

ted assa ult judg ment. We affirm in all othe

r respe cts. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed in Part; Reversed in Part; Rem

anded J OE G. R ILEY , J., delivered the opinion of the court, in which T HOM AS T. W OODA LL and A LAN E. G LENN , JJ., joined. Robert B . Gaia, M emphis, Te nnessee , for the

appella nt, Clazelle

Jennings. Paul G. Summers , Attorne y General

and Repor

ter; J . Ross Dyer , Assistan t Attorne y General ; William L. Gibbons , District Attorney General; and Stephen Patrick Hall, Assistant District Attorney General, for the appellee, State of Te nnessee. OPINION Charles Yi, the owner of Sang’s Express, a convenience store, testified that on April 28, 1998, at appro ximately

11:00 a.m. , a custom

er walked into the s tore and exited the s tore a short time-2-

later. The customer then returned “three or four seconds later” and walked to the kitchen a rea, which was five to ten feet from

the cash register

where Yi was standing. Two men wea ring masks followed the customer into the store. One of the men stood in front of the cash register, and the other went to the kitchen where Yi’s mother and L ovey Evans, a

n employee, we

re cooking. Yi recognized the masked man at the cash register as Edward Tomlinson, w ho had be en to the store “many times.” Yi stated Tomlinson pointed a gun in Yi’s face and demanded money . Yi identified a gun recovered af ter the robbery

as resembling the weapon used by Tomlinson. Tomlinson handed the customer a bag and told him to pu

t the mone

y f rom the c ashregister in the bag; the customer did so. Tomlinson also told the customer to check Yi’s pock

ets; the customer d

id so, but Yi did no t have any c ash. After the customer gave the ba g to Tomlinson, the two masked men ran, and the second masked gunman, whom Yi described as taller and

slimmer than Tomlinson, pointed his gun at Yi while running out of the store. Yi testified that after the gunmen escaped, the customer stayed in the store f

or a short time. Yi stated that when he told the customer he knew the identity of one of the g

unmen, the customer became nervous and left bef ore the police arrived. Yi estimate d the gunmen took a pproxim atel y $4 00 in cash and food stamps fr om the ca sh register. Although Yi could not identify the defe

ndant as the second gunman, he testified they were similar in height. Lovey Evans testified that a man wearinga mask and holding a gun walked into the kitchen where she and Yi’s mother were cooking. He demanded money , and Evans lifted her apron to show him that she did not have any poc kets to carry

cash. Evans stated she was “scared to de ath.” Evans further stated she could hear s omeone else i n the store demanding money . A short time later, the gunmanran from the store. Evans described the gunman as tall and skinny ; howeve

r, she wa s unable to make an i dentific ation bec ause the gunman was wearing a mask. She identified a gun recovered after the robbery

as the one held on her by the masked perpetrator. To ya Bernard, a neighborhood r esident, testified that

as she was enteringthe store, the two gunmenpushed her out of the way and ran toward the railroad tracks located approximately ten feet from the store. When they rea

chedthe railroad tracks, both gunmen pulled off their masks, a nd one of t he gunmen threw his mask on the ground. B ernard stated they both looked back and then continued to run toward the Tupelo Apartme nts . A short time later, police officers brought the defendant to the store, and Bernar d identified him as one of the gunmen. Benny Walls testified that while he was at a beauty shop speaking to the owner, a lady ran in and said someone was robbing Sang’s Express, located across the street. Walls stated he drove his car to the store approximately 500 f eet across the street, and when he ar rived, he saw two men run out of the store. Walls followed them in his car to the Tupelo Apartments and saw the two men enter an apar tment. He

contact ed the pol

ice and w atched t

he apar tme nt until they arrived. He testifie d he did

not see anyone

else enter or leave the

apartment during this time. When an officer arrived, Walls identified the apartment he saw the two men enter.-3-

Officer Michael Hamblin, w

ho responded to the

callat Tupelo Apartments, testified he and other police of

ficers e ntered t h e apart me nt and found the defendant and another male. Af ter arresting the defendant, the officers searched the apartment. Captain Bar ry L ane testified the officers recovered a black skull cap with the face cut out and two .22 caliber pistols from the attic. The guns were the same

two weap ons identi fied by Yi and Eva

ns at tria l. They further found $33 8.66 in ca sh hidden inside a bag of toilet paper and seventeen food stamps in the bedroom. Sergeant Reginald Moore testified he conducted an oral interviewwiththe defendant after the defendant signed a waiver of rights form. During the interview, the def endant admittedhe was responsi ble for the robbery . Sergeant Moore stated he also took a forma l typewritten statement fr

om the defe ndant af ter ag ain making him aw are of h is Miranda rights.
T he defendant told the officer that the robbery was Octavious Gillum’s idea , who, th e defendant said, walked into the store to determine how many

people were in the store. Gillum then exited the store, told the defendant and Tomlinson w

hat to do, a

nd reent ered the store. Gi llum told To mlinson to ensure Yi did not do anything and to instruct Gillum to put the money into the bag

. Gillum told the defendant to prevent the others in the store from doing a nythi ng, and he gave the defendant and Tomlinson each a black skull cap with the ey es cut out to use as masks. The defendant stat ed Tom linson hel d up the ca shier whi le he hel d up two fe males. To mlinson told Gi llum to put the money from the c ash register in a bag, a nd when Gillum handed Tomlinson the bag, both Tomlinson and the defendant ran out of the store. The defendant offered no proof at trial. A jury convicte d the defendant of aggravated r

obbery of Yi, aggravated assa

ult of Yi, and aggravated a ssault of Evans. The t rial courtsentenced the defendant to ten years f

or aggravated r

obbery and four ye ars eac h for the two count s of aggravated assault, to run concurrently with the aggravated robbe ry conviction. I. DEFEN

DANT’S STA TEMENTS The defendant contends thetrial cou rt erre d in deny

ing his mo tion to supp

ress his statem

ents to the police. He submits the police of ficers c oerced

him into mak

ing the s tatement s. We disagree. A. Standard of Review The findings of fact

made by the trial c ourt at the hearing on a motion to suppress are binding upon this court unless the evidence contained in the record pre ponderates against them. State v. Ross , 49 S.W.3d 833, 839 (Tenn. 2001). Th e trial court, as the trier of fact, is able to assess the credibi lity

of the witnesses, determine theweight and value to be afforded the evidence and re solve any conflicts in the evidence. State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996). The prevailing party is entitled to the strongest legitimate view of the evidenc e and all reasonable inference s drawn from that evidence. State v. Hicks , 55 S.W.3d 515, 521 (Tenn. 2001). However, this court is not bound by the trial court’s conclusions of law. State v. Randolph , 74 S.W.3d 330, 333 (Tenn. 2002). The application of the law to the facts found by the trial court are questions of law that this court

reviews-4-

de nov o . State v. Dani el , 12 S.W.3d 420, 423 (Tenn. 2000). The defendant has the burden of establishing that the e

vidence contained in the record preponderates ag ainst the findings of fact made by the trial court. Braziel v. State , 529 S.W.2d 501, 506 (Tenn. Crim. App. 1975). B. Suppressio n Hearing At the sup pr ession hearing, Sergeant Morg an testified the defendant was arrested a t approxima

tely 11:30 a.m. on April 28, andhe gav e a formal ty pewritte n stateme nt at appr oximately 6:00 p.m. Sergeant Morgan could not rec all whether the defendant requested an yt hing to eat or drink, but testified that they alway s offered them. He further stated tha t the def endant di d not requ est to speak to a family membe r or an attorney

. Sergeant Morgan testifie d that prio

r to making a

statemen t, the defendant signed a waiver of rights f orm. The off

icer then conducted an oral interview with the def endant. After the oral interview, the defendant gave a formal typewr

itten statemen

t, in which

he aga in waived his Miranda rights. Sergeant Morgan tes tified he did not promise or threaten the defendant. The def endant appeared to unders tand wha

t was occurring , indicat

ed he fr eely and volun

tarily gave thestatemen

t, and signed the last page of the f ormal statement. The defendant testified that when he was arre sted, the police officers took him to the police station and placed him in a small interview room where he remained until he was booked. He stated the officers did not offer him food or beverag es, but he never asked for either. He fur ther statedhe was not allowed to use the restroom facilities, but he did not need to do so. The defendant admitted the police officers did not make him any promises in exchange for his testimony

. The defendant testified

he requested to speak to an attorney prior to giving the state ments, butSergeant Morgan told him he would be provided with an attorney at a later time. He stated that after he reques ted an attorn ey, he signed the waiver form, but he did not remember the offic ers reading him the Miranda warning s again prior to g iving the formal ty pewritte n stateme nt. In denying

the defendant’s motionto suppress, the trial court examined the waiver form and the typewritten statement, whic h were both signed by

the defendant. The trial court stated there was no evidence that the defendant could not read or had trouble reading the document s. It f

ound both the oral statement and the ty pewritten statemen t were freely , knowingly, a nd voluntarily given by the defendant without duress. C. Voluntariness of th e Statem ent The defendant contends thepolice officers coerced him into giving the statements, and that under the totality

of the ci rcumstan ces, his s tatement

should hav e been su

ppresse d by

the trial court. When det ermini ng whet

her an a ccused h as volunta

rily , knowingly a

nd intellig ently

waived h

is Miranda rights, this court mus t c onsider the totality of the circ umstances which existed when the accused waived these rights. State v. Middlebrooks , 840 S.W.2d 317, 326 (T enn. 1992); St ate v.-5-

Benton , 759 S.W.2 d 427, 431 ( Tenn. Crim. App. 198 8). The totality of the ci rcumstan ces must reveal an uncoerced choice and the r equired level of comprehension. State v. Blackstock , 19 S.W.3d 200, 2 08 (Te nn. 20 00) (q uoti ng State v. Stephenson , 878 S.W.2d 530, 545 (Tenn. 1994)). Confessions that are involuntary , i.e., the product of c oercio n, whether it be physic al or psy cholog ical, are not admissible. Rogers v. Richmond , 365 U. S. 534, 540, 81 S. Ct. 735, 739, 5 L. Ed. 2d 760 (1961). The test of voluntariness under the Tennessee Constitution is bro ader and more protective of individu al right s than the test of voluntariness under the United States Constitution. Stephenson , 878 S.W.2d at 544. The crucial question is whether the behavior of the state’s officials was “such as to overbear petitioner’s will to resist and bring about conf essions not free lyself-dete rmined.” State v. K elly , 603 S .W.2 d 726, 728 (T enn. 1 980) ( quot ing Rogers , 365 U.S. at 544, 81 S. Ct. at 741). The question must be answered with “complete disregard” of whe ther or not the accused was truthful in the statement. Rogers , 365 U.S. at 544, 81 S. Ct. at 741. In the case at bar, the defendant testified the police office rs did not provide him with food, bevera ges, or the use of

the restroom facilities. However, he further sta ted he never asked for food or beverages, and t hat he did not need to use the restroom facilities. The defenda nt also admitted the officers did not make any promises or threats in order to compelhim to give the statements. The evidence does n ot pre ponde rate aga inst the tri al court’s findings. Therefore, we conclude the defendant was not coerced into making the admissions to the police. During the suppression hearing , the def endant te stified he

request ed an att orney prior to the interrogat ion, a nd Sergeant Morgan denied his re quest. However, in its findings, the trial court implicitly accredited the testimony

of Sergeant Morgan, who stated the defendant did not request an at to rn ey, was made

aware of his Miranda rights, and vo lu nt ar il y w aived his rights prior to giving boththe oral and type

written statements. Therefore, we co nclude the defendant knowingly and voluntar ily waived h is Miranda rights and made the statements to the police. The trial cou

rt prope rly denied th e defendant’s motion to supp ress. II. SUFFICIENCY The defendant contends the evidence was insuff icient to support his convictions for aggravated robbe

ry and ag gravated assault. We disagree

. In determining the sufficiency of the evidence, this court does not reweigh or reevaluate the evidence. Stat e v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978). On appea l, the stat e is entitl ed to the strongest legitimate view of the evidence and all legitimate or reasonable infere nces which may be drawn therefrom. State v. Bigbee , 885 S.W.2d 797, 803 ( Tenn. 199 4). This c ourt will not disturb a verdict of

guilt due to the sufficiency of the evidence unless the defendant demonstrates that the facts contained

in the re cord and

the infe renceswhich may

be draw n theref

rom are insuffic ient, as a matter of law, for a rational trier of fact to f ind the ac cused g

uilty beyond a re asonable doubt. State v. Brewer , 932 S.W.2d 1 , 19 (Ten n. Crim. Ap

p. 1996). Accord

ingly , it is the appella

te court 's duty to affirm t he conviction if the

evidenc e, viewe d under th ese standards, was sufficient for any rational2 Th e officer s did n ot testif y as to the i dentit y of t he other male. However, we ass ume the ot her male w as Tomlins on from the test imony of other witnesses. Bernard testi fied she saw t wo masked men run out of the st ore and take off t heir mas ks whi le they were runni ng. Walls test ifi ed he fol lowed the m to the ap artme nt, and no on e ent ered or exit ed th e a partm en t b ef or e the pol ic e a rr iv ed. Yi testified “the custom er,” wh o, acc ord ing to the defen dan t’s stateme nt, was G illum, stayed in the stor e after the two m asked men le ft. -6- trier of fact to have f ound the e ssential e

lements of

the offe nse bey ond a rea sonable d oubt. Ten n. R. Ap p. P. 13(e); Ja ckson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994). A. Aggravated Robbery As ap pl ic ab le to th e c as e a t b ar , “ ag gr av at ed ro bb er y” i s r ob be ry “[a]cco mplished with a deadly weapon or by display

of any ar ticle used or fashioned to lead the victim to reasonably be lieve it to be a deadly

weapon.” Tenn. Code Ann. § 39-13-402(a)(1) (1997). “Robbery ” is defined as “the intentional or knowing theft of property fr

om the person of another by violence or putting the person in fear.” Id. § 39-13-401(a) (1997). As viewed in

a light mo st favor

able to the state, the evidence shows that the defendant and Tomlinson entere d Sang’ s Express w earing masks and

holding g

uns. Tomlinson held a gun onYi and demanded the money from the cash register, while the defenda nt held a gun on Evans and Yi’s mother in the kitchen. After retrieving the money and f ood stamps, they ran out of the store

. Bernard testified she saw the two men run out of the store, and they took off their masks as they were running . She furt

her iden tified the defenda nt as one o f the per

petrato rs. Walls testifie d he also s aw the tw o men run f rom the sto

re, followed

them to the

Tupelo Apartme nts, and then called the police. He stated he watched the apartment until the police arrived, and he did not see anyone else enter or leave the

apartment. When the polic e enter ed the ap artment, they found the

defenda nt, anothe r ma le, 2 cash, food

stamp s, two

pisto ls, and a bl ack mask. We co nc lu de th e e vi de nc e w as su ff ic ie nt to su pp or t t he co nv ic ti on fo r a ggr av at ed ro bb er y. B. Aggravated Assa

ult As applicable to the case at ba r, “aggrava

ted assault” is the intentional or knowing commission of assault through the use or display of a deadly

weapon. Tenn. Code Ann. § 39-1 3- 102(a)(1)(B) (1997). A person commits “assault” who “[i]ntentionally or knowingly ca uses another to reasonably f

ear imminent bodily injury .” Id. § 39-13-101(a)(2) (1997). Becau se the defendant’s conviction for the agg ravated assault o f Yi is reversed, we only addressthe sufficiency

of the evidence of the conviction for the ag gravated assault of Evans. During the robbery, the

defendant held a gun on Evans, who testified that she was “scared

to de ath. ” We conclude the evidence was sufficient to support the conviction for the aggra

vated assault upon Evans.3 At trial , the st ate argued the defendant was gui lty of th e aggravated assaul t upon Yi based upon h is cr iminal

respo nsibility for t

he conduct of

Tomlinson duri ng the armed rob bery. Th e state d id no t conte nd the aggra vated assault upon Yi occurred af

ter t he robbery wh en the defendant, whi le leaving t he store, p ointed the wea pon at Yi. T hus, we will not ad dress whethe r the co nviction could stand u nde r the latter the ory. -7- III. DOUBLE JEOPARDY The defendant

contends his separate convictions for the agg ravated robbery

and aggravated assault of Yi viola

te his constitutional protection against double jeopardy

. The state concedes that the dual convictions are improper. See State v. Aaron Bernard Gray , No. 02C01-9707-CC-00270, 1998 Tenn. Crim. App. LEXI S 505, at *6 (Tenn. Crim. App. May 1, 1998 ), perm. to app. denied (Tenn. 1998) (holding aggra v a ted assa

ult by causing another to reaso nably

fear imm inent bodi ly inju rythr ough the use of a deadly weapon is a lesser-included offense of a ggravated robber

y accomplishedwith adeadly we apon). Therefore, we conc lude the defendant’s convictions for both the aggravated robbe

ry and the aggravated a ssault of Y i violate h

is protection aga

inst double je op ar dy. See State v. Green , 947 S.W.2d 186, 189 (Tenn. Crim. App. 1997) (holding that under the double jeopardy c lause, a defendant may not be convicted of two offenses if one is a lesser-included off ense of the other). Therefore, the def endant’s conviction for the agg ravated assault of

Yi i s reversed and dismissed. 3 IV. SENTENCING The defendant contends his sentences are excessive. A defendant who challenges his or her sentence has the bu

rden of p roving t he sente nce impos ed by

the trial court is improper. Tenn. Code Ann. § 40-35-4 01, Sente

ncing Co mmission Comm ents; State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). It is this court’s duty to conduct a de novo review of therecord witha presumption the trial court’s determinations are correct when a de fendant appeals the length, range , or manner of service of his or her

sentenc e. Tenn. Code Ann. § 40-35-4 01(d). T he presu mption of c orrect

ness 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. Pettus , 986 S.W.2d 540, 543-44 (Tenn. 1999). Due to the misapplication of enhancement factor s in this ca se, we r

eview the sentenc es de novo without a p

resumptio n of corr

ectness

. The trial court applied enhancement factor (6) , “[t]he personal injuries inflicted upon or the amount of da mage t o property sustained by or taken from the victim was particularly great.” See Tenn. Code Ann. § 40-35-114(6) (1997). Alt hough not raised as error, we c onclude the evidence does not support this enhancement factor. The trial court al so applied enhancement factor (10), “ [t]he defendant had no hesitation about commi tting a crime when the risk to human life was high.” See id. § 40-35-114(10) (19 97)

. Enhancement

factor (10) may be applied where a defendant c reates a high risk to the life of someone othe r than the named victim. State v. Re id , 91 S.W.3d 247 (Tenn. 2002). The defe ndant wa s convictedfor aggravated robbery of Yi and aggravated a ssault of Evans through the use of a d eadly4 At the senten cing he aring, the t rial cour t found “the felon y resulted in the de ath or bo dily injury o f parties in these matter s.” Al though i t is unclear from th e statement whet her the tri al court applied enhancement factor (11), t he trial court indicated i n its wri tten f indings that

it applied enhancement fact or (11). -8- weapon. Yi’s mother was not a named victim in the indictments; the defendant held the loaded g un on Yi ’s mo th er . T he de fe nd an t c le ar ly c reated a high risk to the life of one other than the named victims

. Therefore, we conclude the tria l court properly a

pplied enhancement factor (10) to th e convicti ons for a

ggra vated ro bbery and ag grava

ted assa ult. The trial cou

rt alsoapplied enhancement factor (11), “ [t]he felony resulted in death o r bodily injury or involved the threat of death or bodily injury to another per son and the defendant has previous ly

been convicted of

a felony that r

esulted in death or bodily injury .” See Tenn. Code Ann. § 40-35-114(11) (1997). 4 Although not raised as error, this factor is inapplicabl e. There w as no death or bodily injury; threat of bodily

injury is inherent to both ag gravated robbery and aggravated assault with a deadly we apon; and there is no evidence of a prior felony

conviction involving death or bo di ly i nj ur y. The range of sentencing

for aRange I standa

rd offender for Class B felony aggravated r obbery is eight to twelve y ears, see Tenn. Code Ann. § 40-35-112(a)(2), and for Class C felony aggravated

assault isthree to

six years, see id. at (a)(3). The trial court found no mi

tigating factor s. The misapplication of one or more enhancement factor s does not necessarily lead to a reduced se ntence. Sta te v. Winfie ld , 23 S.W.3d 279, 284 (Tenn. 2000). The trial court’s sentence of ten yearsfor ag grava

ted robbe ry (two y ears ab ove the minimum) and four y ears fo r agg ravate d assault (one ye ar above

the minimum

) is justifi e d by

enhanc eme nt factor (10), to which we give g reat weight

. Based upon our de novo review without a presumpt ion of cor rectne ss, we co nclude th

ese two sentences are appropriate. V. CLERICA L ERROR At the sentencing hearing, the trial court stated the sentence for aggravated assault was four ye ars. However, the judg ment ref lects a se ntence o f five y

ears. Where there is a conflict between the verbatim transcript and the judgment, the transcript controls. Statev. Moore , 814 S.W.2d 381, 38 3 (Tenn. Crim. App. 1991). Accordingly , we remand for entry of a corrected judgment

of fou r ye ars reg arding

the agg ravate d assault

upon Lovey

Evans. VI. CONCL USION
In summary , we conc lude the d efenda nt’s sepa rate co nvic tions for the aggravated r obbery of Yi and the aggravated assault of Yi violate his constitutional protection ag ai ns t d ou bl e j eo pa rd y. The conviction for the aggrava ted assault of Yi is, therefore, reversed and dismissed. Because the trial court or de re d t ha t t he se nt en ce s r un co nc ur re nt ly, the dismissal has no effect on the defendant’s effectivesentenc e. The c ase is r emanded to cor

rect the sentence for the ag gravated assault upon Lovey Evans. The judgments of the trial court are other wise affirmed.-9- ___________________________________ JOE G. RILEY, JUDGE