### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs O ctober 16, 2002

STATE OF TENN ESSEE v. ANTHONY D. FORSTER

Direct Appeal from the Criminal Court for Davidson County

No. 2000-B-1181 Seth Norman, Judge

No. M2002-00008-CCA-R3-CD - F iled April 1, 2003

The def endant, a fter be ing allo wed to repres ent himself at the se ntencing hearing , proceeds pro se in appeali ng his e specially ag gravated robbery conviction and sentence of twenty -two year s imprison ment. The defendant argues his rig ht to a speedy trial wa s violated and argues he wa s subject to an unreasonable delay in sentencing. The def

endant a rgues t he trial c ourt impro

perly deniedthe defe

ndant’s m otion to sever the offen ses. The def endant a rgues t he trial j udge a

bused his discretion in failing to recuse himself and contends the trial court er roneousl y allowed a

witness to testify to inju ries she sustained as a result of the robbery . The defendant argues the tria l court improper ly ruled the defendant was not entitled to be present dur ing jury deliberations. The def endant argues the trial court frustrated his rig ht to appeal by re

lieving his trial couns el prior t o sente ncing. The defendant argues he is the victim of

a malicious prosecution. We conclude the trial court did noterr and evidence

su pp or ts th e d ef

en da nt ’s co nv ic ti on of

es pe ci al ly a ggr av at ed ro bb er y. Theref ore, we affirm t he judg ments of th

e trial c ourt.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

J OHN E VERE TT W IL LI AMS , J., delivered the opinion of the cou rt, in which D AVID G. H AYES and J ERRY L. S MITH , JJ., joined.

Anthony D. Forster, Tiptonville, Tennessee, Pro Se (on appeal ), and J ohn G. Oliva, Nashville, Tennessee (at trial).

Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbr ough, Assistant

Attorney Genera l; Victor S. (

Torry ) Johnson, I

II , Distric t Attorne

y General ; Pamela Anderson and Jason Lawless, Assistant District Attorney s General, for the appellee, State of Te nnessee.

OPINION

On June 27, 2000, t

he defe ndant, Anthony

D. Forst er, was indicted

by a Davidson

County GrandJury for one

count of aggravate d robbery, two c ounts of aggravated assa ult, and one count of especia lly aggravated robbe

ry. For cr imes occ urring at West Meade Cleaners and Arby ’s, the-2-

def endant was acq uitted on a

ll charg es, except the cha

rge fo r espec ially

aggr avate d robbery occurr

in g at Arby’s. The

defendant was sentenced as a Rang e I violent offende r to twent y-two y

ears in the Tennessee Department of Correction. The defendant appeals, pro se, his conviction and sentence. The def endant pr esents the followi ng issue s: (1) whether the trial court violated his right to a speedy trial and sentencing hearin g; (2) whether

the trial court fr ustr ated his r

ight to appeal by

relieving his trial

couns el pri or to s enten cing; (3) whe ther the trial judg e erroneously

denied hi s Motion fo

r Recusa l; (4) whether the trial court erred in deny ing his Motion for

Acquittal and New

Trial; (5) whe ther the trial cou rt erron eously denied hi s motion to se

ver the o ffense s; (6) whether the trial

c ourt erroneously

ruled that the defendant not be entitled to be pre sent duri ng jury

deliber ations. (7) whe ther the trial cou rt imprope

rly sentenc ed the defendant ; (8) whether the defendant is a victim of a malicious prosec ution.

I. Facts

Before giving our anal

ysi s of the in stant ca se, we wi ll recite the facts leading to this appeal for the purposes of addressing the defenda nt’s issues regarding severa nce of the offense s and as it

re lates to the sufficiency of evidence. We will only c onsider facts developed rel ating toth e especially a

ggravated robber

y occurr ing at Arby ’s.

Judy Dotson, employee of the West Meade Cleaners, testified she was robbed at seven o’clock on the morning of June 18, 1997. She stated thatwhile helping a customer, she saw a very large black

man come through the door and put his arm around the customer’s shoulder. She stated that she thought the men were friends but realized that she was wrong when the man pulled a gun from a pouch and pointed at her. She said she knew that they were being robbed, so she bac ked away a nd started to run. She said the manwas say ing some thing to the customer, but she couldn’t understand what he was say ing. She said the man told her to stop, but she ran out the side door.

Dotson testifie d that a

fterrunning to the front of the building, she saw a blac k man sitting in an older

model blue

car. She sa id she ask

ed him to call “911” because the cleaner was being robbed. She said he reached for the door knob as if he was going to open the door, but he blew the horn. She said she realized the man in the car was the “other person,” and she ran to a bagel shop and asked them to call “911.” She state d the man i n the blue c ar was o f an ave rage build, with c

urly hair and long shaved-like sideburns.

Dotson testified she saw the defendant leave the cleaners and get into the blue car that she had approached for help. She said that after the defendant

got into the car, the car quickly backed up to the highway

and drove toward Charlotte Pike with the trunk of his car open.-3-

On cross-examination, Dotson testified that her super visor opened the cleaners on the day of the robbery a

nd she waited on customers. She state d the man w ho robbe d the cle aners w ore some kind of uniform. She said she was not sure but thought the man wore a shirt wi th th e n am e, “T on y” on one side on a patch. She stated that she had not

told anyone about the na me, “Tony,” be

ing on

a patch prior to trial. She said she remembered the name be ing on the man’s shirt because hersonin-law’s name is Tony. She said th at after leaving from the s ide door, she ran into the side a lley to the front of the building. Dotson testified that she picked out the picture of the man who robbed the cleaners from

a bunch o f photog

raphs. She said tha

t the polic e did not in dicate she had picked the right person. On redirect, Dotson testified that the front of the clea ners is all glass and the blue car was parked in front of the cleaners.

Patricia Greer, a manager

of West Meade Cleaners, testified that she was in the back of the cleaners on the day the robbe ry occur red. She stated she could see the parking lot and noticed a car parked beside her car . She saw a black man come into the cleaners and put his ar m around a customer that Judy Dotson wa s waiting

on. She sa

id the man

was ta ll, heav yse

t, with lar ge cur ly hair. She said the man wore a blue uniform shirt, blue shorts, and a fanny pack.

Greer stated she began walking toward the front of the store and saw the man point the gun at the customer and push him down between the counters and the floor. She said she saw the man’s gun and saw that Judy then backe d up and ran. She said the man grabbed her by the arm

, pulled her from where she was standing behind the reg ister, and pushed her into the wall. She said the man then hit her arm with the gun, then turned around and held the gun back

on the customer’s head and said, “I said give

me your damn money

now.” She said she opened the register, and he began to grab the money himself when she w as not moving fast enough. She said that she heard a horn blow as the man finished emptying the drawer , whic h he th rew to the fl oor be fore l eavin g. She said the man got into the blu e car w ith the dri ver and d rove out o nto Davidson Drive and eventua lly t o Inte rstate 40. She stated she slid down behind the register and called 911 once the man left the cleaners. She said the man took one hundred dollars in cash and a bad chec k.

On cross-examination, Greer testified she did not know the defendant. She said police asked her to pick the picture of the man who robbed the cleane rs from a lineup o f six pictur

es. She sa

id she did not pick the defendant’s picture out of the lineup the police gave her. She said the ma

n did not hide hi s face w

hen he ro bbed the c leaner s. She said she could see out the front of the cleaners throu gh the gla ss windows . She said she did not know there was any thing wrong until she saw the

man with a gun. She said that when the police first arrived at the crime scene she told them the man hit her arm with his gun. She said she did not go to the doctor about the bruise on her arm.

Teresa Obispado, an employee

of Arby’s on Done

lson Pike, testified that she was working on June 18, 1997, when Arby’ s was robbed. She said she was robbed between 9:30 a.m. and 9:40

a.m. She said sh

e had just come out of the bakery

when another employ ee stopped her and told her they were be ing robb ed. She sa

id she hit th

e panic button and then saw the man who was robbing the restaurant. She stated that as she stood in theback, she saw the man come from the back door, aroundto the corner, and to the front by the cash registers. She said the man was blac k, more than-4-

six feet tall, and two- hundred pounds. She

said the man came around the corner with the mana ger and screamed, “Hurry

up, you stupid bitch, I

want the money.”She said she notice d the manager had blood on the side of her face. She said the man told her manager to turn around and lay down

on the ground. She s aid police showed her a photographic lineup, a nd she chose a picture of the defendant as the man who robbed the restaurant. The prosecution asked Obi spado i f she saw the individual who robbed Arby’ s, and she identified the defendant as the perpetra tor.

On cross-examination, Obispado testified that approximately an hour after

the robbery , she pickedout a picture of the man who robbed the restaurant. She said the man picked up a fry basket, butdid not swing it at her manager and followe d the manager toward the phone. She said she never saw the man hit her manager.

Betty Kidwell, an employ

ee of Ar by’ s, testif

ied that she was working on the day of the

ro bb er y, al ong with three other employ ees. She said another employee was outside and the back door was left open when she noticed a commotion in the office. She said she saw a large black man withlots of hair in the manager’s office. She sa id she looked into the manager’s office throug h the g lass window and saw the man look back at her and point for her not to leave. She said sh e continued with her work and then saw her mana ger come out of

her office, followed by

the man. She said the man jerked up a mop bucket with a met

al ring er on it, b ut she did n ot see him h it her manager. She said she ran to the back door as so on as she s aw the ma n and her manage r walk pa st her. She said she saw another man standing outside, between the back door and the corner

where the cars were parked. She stated the other man was black and

taller than herself and

got into a dark blue car and

the man who robbed

her res taurant

drove. She said she

wrote down the license p late number. She sa id sh e late r noti ced her manager had a cu t on h er cheek bone t hat wa s blee ding. She said she had a chance to use the telephone in the manag er’s office on occasion. She said the phone

was a cordless, heavy

phone. She said she was shown a series o f photog

raphs, but could not identify the man who robbed the restaurant.

On cross-examination, Kidwell stated that she never saw the man coming into the re stauran t,

never saw him carry

a weapon, and never saw the man hit he

r manag er with a

ny o bject. She said she saw the other person who was outside for only a second.

William Merrell, an officer wi th the Metropolitan Police Department of Nashville and Davidson County, testified that he investiga ted a robbery

at West Meade Cleaners on June 18, 1997. He stated he dusted for fingerprints, but none we re identifiable.

On cross -examinat

ion, Offi cer Mer

rell test ified ab out his tra

ining and backg

round. He

said he did not dra

w sketches of Arb y’ s or of the dry cleane rs and did not photog

raph eit her of the crime

scenes. He stated that he did not collect hair samples, fiber sa

mples, or tread ma rks. He s aid

he did not develop any fing erprints at the dry cleaners.

William E. M erryma

n, an officer with the Metropolitan Police Department of Nashville, testified he was c alled to

Arby’s on June 18, 1997, to investigate a robbery. H e stated he attempted-5-

to dust for

prints, bu

t did not obt

ain any prints. He

said it ca n be diff icult to obt

ain fing erprintsin restaurants because surface s are often covered with a skim of oil or gr ease.

On cross-examination, Officer Merry man testified that it is not customary for the polic e to take photographs of the crime scene on robbe ries and bre a k-ins. He stated that he did not take pictures of the Arby’ s crime scene. He said he dusted the Number Two cash drawer , the port

able phone, and the rear door for fing erprints, but none were recovere d.

James Micheal Chastain, an officer of the Metropolitan Police Department, testified he was leaving for work

on the mor

ning of Jun

e 18, 1997 , when he

heard on his radio ab ou t a ro bb er y at West Meade Cleaners. He said he hear d that a small blac k or blue car, possibly a Suburu, wa s invo lved in the robbery. He stated he arrived at work sometime after 9:00 a .m. and heard on the county-wide

radio channel that another robbery ha

d occurred at an Arby ’s restaurant. He said the dispatch descri bed the ve hic le involve d in the Ar

by’ s robber

y, a nd it close

ly ma tched the vehicle involved in the West Meade Cleaners robbery. He said someone at the Arby ’s robbery obtained a tag number from the vehicle. He stated he wrote the tag numb er down a s it was dis patched , ran it throu gh the registrationcomputer program, and found that the tag number belonged to a 1984 blue, four-door Subaru, registered

to an Anthony D. For ster of Nashville. He state d he and D etective Jim Reed arrived

at Arby ’s with a photogra phic line -up to show

to the employees. He

said each Arby ’s employee was shown the lineup pictures. He stated two Arby’s employ

ees, Christian and Obispado, were able to pick the defendant from the photog raphic lineup. He said he and Detective Reed left Arby’s and went to police he a dquarte rs, wher e they obtained a robber y w arrant for the d efenda nt. He said they

attempted to find the defendant and the vehicle by going to his residence, but did not find him that day. He sa

id they took

the lineup by the West Meade Clea ners, but neither one of the employees could positively identify the defe

ndant.

Officer Chastain testified he found the defendant the following morning at the defendant’s apartment and transported him to police headquarters. He stat e d that at the headquarters, the defend ant was read his Miranda rights, but waived his rig hts and spoke to police. He said th e defendant’s interview was videotaped. He said that he and Detective Reed took the defendant to the side street off of Twenty -eighth Avenue and Clifton to look for the bad check

that was taken in the

ro bb er y. He said the defendant directed him to White Bridge Road, Da vidson Road, and

Charlotte Pike and pointed at the West Meade Cleaners as the place he had been theday befor e. He said he helpedthe defendant draw a sketch of the a reas, including West Meade Cleaners and Arby’s, whe

re he had been on the day

of the robberies. He said the defendant showed him whe re he parked in the parking lot of the cleaners. He said the defend ant’s car a ppeared blue and black because of the oxidation of the paint job.

The defendant’s videotaped statement was shown to the jury . The defendant said he needed money because hewas “in a predicament” and had “no pla ce to stay.” The de

fendant stated that on the day befor

e the robberies, he had gone to court on a vandalism charge, and his girlfr iend gavehim money for his bond. He said he needed additional money to repay the bond because he us ed th e money for drugs. He stated he picked up his accomplice at a par k between 6:00 a.m. and 7:00 a.m.,-6-

“got high,” and star

ted driving arou nd Nashville. He said his accomplice did not take part in the robberies and was not aware of what he was doing. He said he did remember w earing a Gatlinburg t-shirtand a na

vy b lue towel

around h is waist with a hair

brush wr apped in it to look like a gun. He said he re membered t elling a man to get down on the floor and see ing a woman run out of the business. He said he only g ot around two hundred dollars in cash from the robberies. He stated he did not r emember much else about the robberies and that it was a blur until 3:00 p.m., when he visited his sister at work to tell her what he had done.

On cross-examination, Officer Chastain testified to his background in law enforcement a nd procedures fo r investigating a robbery . Officer Chastain testified the defendant was c ooperative and, after signing a consent form, allowed the police to sea rch th rough his home. O fficer Chastain s aid he found a pair of blue shorts and a purple shirt, but he did not find any money or weapons at the defendant’s h ome. He stated the defendant had a sever e drug problem that he discussed on the videotape. He said that on the videotape, t he defe ndant could not remember if he robbed the dry cleane rs, but seemed to recollect the Arby ’s robbery . He said the defendant admitted robbing Arby ’s. He stated that al though the defendant had the biggest Af ro hairdo, no one at the cleaners could pick him out of th

e lineup. He said he did

not take a picture of the portable phone from the cleaners and didnot recall seeing any blood on the phone. On redirect, Officer Chastain testified the portable phone, which was one of the o lder-type phone s with a huge base, is enormous when compared to today ’s modern portable phones.

Sandra Christian, an Arby’s tra

ining manager, testified

that on June 18, 1997, she and three otherempl oyees we

re robbed while preparing for Arby’s to open late

r that day. She stated

tha t Danny Randolph, another employee, had the back door unlocked so he could unload the food and paper truck. She stated that she noticed something was missing from the truck. She then left Da nny outside so she could call the company from her off ice. She s aid that w

hile she was on the telephone, the defendant came into the office from behind her. She said the defendant put his arm around her, tightened his grip , and told h

er to open the safe. She said that she was still holding the phone when the defenda

nt grab bed the phone from

her and h it her, knocking her glassesfrom her face. Sh e said the phone wa s an old por table pho ne, simila

r to an ar my f ield phone , and was equipped with four “C” batteries. She said she had a hard time opening the sa fe because it is magnet

ic. She sa

id the defendant became irritated, shoved her down, and grabbed her

arm. She said she had already taken the cash dra

wers to th e front o f the stor

e, so he too k som e loos e change and bills from the safe. She said the defendant then went to the cash drawer s and took the money from the f irst drawer. She said she was not moving fast enough, so the def endant to ok a fry

basket a nd swung it at her, but missed. She said he took the money from the sec ond drawer and told her to get down on the floor be fore he left out the ba

ck way . She said t

he defe ndant took

three hu ndred do ll ars in cash. She said she suffered an open wound on the side of her face and a black ey

e inside her ey e, as a result of the defendant hitting her

with the po

rtable phone. She

said the phone hit he

r so hard that it knocked her back onto the de sk and one

of the ba tteries f ell out. She said the wound took over a y ear to heal and that she suffered

a bruise on her

arm from the defe ndant pull ing her around th e resta urant. She

said she received medical treatment for he r injuries. She said the doctors cleaned her up and applied

a butterfl y bandage to the

cut. She said her face was swollen for a week. She said her scar e xtends-7-

from the bridge of her nose down to an are a just above her lips. She said the police gave her a lineup of photos, a nd she chose a picture of the defendant a s the man who robbed her. The prosecution askedher if she recognized her assailant in the c ourtroom, and she described the defendant as the perpetrator.

On cross-examination, Christian testified that on the day of the robbery, she

was pulling files to see about replacements for items being unloaded in the delivery truck. She said she was on the telephone when the defendant came up behind her. She said the def endant drew back and hit her, then she noticed her glasses were br oken and felt blood on her face. She said the scar onher face has been fading and is not as prominent as it once wa s.

At the conclusion of the Sta te’s pro of, the de

fense c alled the

ir only witness, T

racy Woods, the defendant’s ex-girlfriend. Woods testified that she saw the defe

ndant imme diately

prior to h is arrest in June of 1997. She said she and the defendant had just broken up when he called her

to pick him up from a convenience store in the Borde aux area of Nashville. She said he was standing alone by the pay phone, w

hen she saw two black men drive up in the defendant’s Subaru around 7 :00 a.m.

or 7:30 a.m. She stated she remembered these events because th

is was the last time sh

e had re ally talked to him before he was arrested for these charges.

On cross-examination, Woods testified the defendant told her h is car was broke down, so she left to pick him up. She said she got dressed and left her two-y ear-old daughter asleep in he r bed,

so that she could pick up the defendant. She said the convenience store was in the Borde aux area near the Clarksville Highway , past Tennessee State University. She said she g ave the d

efenda nt a hundredand twen

ty- five dolla

rs for hisbond, but th

e defendant lied

to her and

used the money for drugs. She said

the defendant lied to her about his car being broken because she saw twomen drive up in his car after she arrived at the conve nience store. She stated the defendant was coherent and functioning when she found him at the store. She said she heard a bout the r obberie s and did not call the police or

tell any one within

the last three ye ars, even though she was with him during the time frame of one of the robberies. On redirect, Woods testified that she and the defendant had dated since 1987 and share a

child, but

she has be

en marr ied to some one else

for two y ears pr ior to trial.

At the conclusion of the trial, the jury found the defendant not guilty of aggravated

ro bb er y; notguilty of

Counts Two an d T hr ee , a ggr av at ed as sa ul t; an d g ui lt y of es pe ci al ly a ggr av at ed ro bb er y. The defenda

nt was sente nced as a Range I violent offender to twenty two-year s in the Tennessee Department of Correction.

II. Analysis

Before address ing the d

efenda nt’s issue s on appe al, we have thoroug hly examined the record to determine the pat

h the def endant ha s taken w ith his atto rney s, eventu ally

leadi ng to his selfrepresentation. Since his arrest, the defendant had the benef it of four appointed attorney s and one privately retained attorney

. Prior to tr ial, the d efenda nt was ap pointed a public defender who asked to be relieved from

his position a s trial counsel to the defendant. The trial cou rt gra nted the p ublic-8-

defender’s request, and the defendant retained a n attorney to re

present him at trial. At

the conclusion of his trial, the defe

ndant’s r etained attorne y a sked to be

relieve d from re

present ing the d efenda nt, and the cour

t grant ed his mo tion. The trial court appointed another attorney to represent the defendant at sentenc ing, but the attorney moved to be relieved as defendant’s counsel. The defendant also file d a motion to

dismiss his attorney and proc eed pro se. The trialcourt acquiesced, in light of each attorney

citing the defendant as uncooperative a nd argumentative. From the recor d,

we gather the

trial court properly

advised the defendant of the perils of self-repre sentation, and the defenda nt made a n intellig ent and kn owing w aiver of his right to counsel. The record reflects the defend ant’s l ast attorney a cted as elbow counsel as he proceede d pro se during his sentencing hearing.

A. Sufficiency of the Evidence

The defe ndant argues the evid ence is insufficient to support his especially aggravated robbe

ry conviction. The proper inquiry for this Court to review the defendant’s challeng e to the sufficiency of the evidence to support a conviction is whether, considering the evidence in a light most

favora ble to the prosecu tion, any

rationa l trier of fact could have f

ound the e ssential e

lements of

the crime beyond a reaso nable dou

bt. See Jackson v. Virgini a , 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. H all , 8 S.W.3d 593, 599 (Tenn. 1999).

A guilty verdict accre dits the te stimony

of th e witness e s for the State and

resolve s all conflic ts in favor of the prosecution. State v. Bland , 958 S.W.2d 651, 6 59 (Tenn . 1997). T he State is given the strongest legitimate vi e w of the e vidence containe d in the re cord, aswell as a ll reasonable and legitimate infere nces which may be dr

awn from the evidence. State v. Tu ttle , 914 S.W.2d 926, 932 (Tenn. Crim. App. 1995). A conviction may be ba sed entirely on c ircumstantial evidence where the facts are “so clearly

interwoven and

connected that the finger of g uilt is pointed unerrin gly

at the Defendant and the Defenda nt alone.” State v. Smith , 868 S.W.2d 561, 569 (Tenn. 1993) (quot ing State v. Duncan , 698 S.W.2d 6 3, 67 (Te nn. 1985) ). Questi ons reg arding credibi lity of the witne sses, the

weight to be given theevidence, and any factual issues raised by

the evidence

are resolved by the

trier of fact. See State v. Bland , 958 S.W.2d 651, 659 (Tenn. 1997). A verdict of guilt removes the presumptionof innocence from the defendant and r eplaces it with a

presumption of guilt, and on appeal, the defendant’s burden isto demonst rate why the evide nce is ins ufficie

nt to support his guilty verdict. State v. Carruthers
, 35 S.W.3d 516, 557-58; State v. Tu ggle , 639 S.W.2d 913, 914 (Tenn. 1982).

The defendant also argues the cr edibility of

witnesses and argues the merit s of each witness’ te st im on y. The jury hea

rd witness accounts of the robberies and viewed the defendant’s videotaped statemen ts to poli ce. Th e d ef

en da nt wa s o nl y fo un d g ui lt y of es pe ci al ly a ggr av at ed ro bb er y. Therefore, we will

only review the r

ecord as it relates to the especially aggravated robbe

ry of Sandra Christian, an employee

of Arby’s. Q

uestions concerning the credibility of witnesses, the w eight and value to be given evidence, as we ll as all factual issues raised by the evidence, are resolved by the trier of fact, not this Court. State v. Cabba ge , 571 S.W.2d 832, 835 (Ten n. 1978). This Court will

no t s ub st it ut e i ts in fe re nc es fo r t ho se dr aw n b y th e j ur y.-9-

The defendant was convicted of especia lly agg ravated robbery , in violation o f Tennessee Code Annotate d se ction 39-13-402(a). Our Code defines robbery as “the intentional or knowing theft of property f

rom the person of another by violence or

putting the person in fear.” Tenn. Code Ann. § 39-13-401(a). Especially aggravated robbe

ry is defined a s robbery

“(1) ac complishe d with

a deadly we apon; and (2) where the victim suffers serious bodily injury.” Tenn. Code Ann. § 39-13- 403(a).

The defendant argues the evidenc e is in sufficient to sustain his conviction because the testimony does not

establish the necessary

elements of especially

aggravated robbe

ry. This Court will not disturb a verdict of guilt due to the sufficiency of the evidenc e unless t

he fact s containe d in the record

are insufficien

t, as a ma tter of la w, for a rati onal trier of

fact to f ind that the

accuse d is guilty beyond a re asonable doubt. State v. Tu ggle , 639 S.W.2d 913, 914 (Tenn. 19 82 ). In his videotapedstatemen

t t o police , the defendant stated he could not remember the specifics of each robbery
, but he rem embered robbing several businesses for money and flee

ing in his own car. Witness testimony clearly established the defendant as the perpetrator of the robbery

at Arby’s.

The defenda

nt also cla ims he did n ot use a de adly weapon a nd Sandra Christian didnot suffer serious bodily

injury . The jury ’s finding that the defendant committed especially aggravated robbe

ry required factual determinations that the defendant committed robbery with a deadly we apon andthat the victim suffered s erious bo dily injury. See Tenn. Code Ann. § 39-13-403 (1997). Tennessee Code Anno tated se ction 39- 11-106(a )(5)(A ) and (B ) define s the term “deadly weapon” as: (A) A firearm or

anything manifestly desig ned, made or adapted for the purpose of inflicting death or serious bodily injury; or (B) Anything that in the

manner o f its use

or intend ed use is c apable o f causin g death or serious bodily injury

.
The large po rtable phon e the def endant us ed to ga

in contro l over Sandra Chris tian would clearly fall within the definition of a “deadly weapon,” as de scribed in sub section (B). Some weapons are deadly by

their very na

ture, such as firearms or knives. Other weapons are deadly by the reason o f th e manner in which they are

used. Morgan

v. State , 415 S.W.2d 879, 882 (1967). Testimony

reveal s the def

endant br andished a porta ble phone l arge e

nough to require four “C” batterie s. The victim testified the defendant hit her so hard with the army field-type phone

that she fellback over her desk and a battery fell out of the phone. Although t he re cord does not include pictures of the phone or

the phone itself as an exhibit, we conclude the testimony substantiates the portable phone as a deadly weapon.

The defendant argues the trial cour t erred in allowing Sandra Christian to testifyabout the injuries she susta

ined as a result of t he defendant hitting her with the phone beca use no medical reports or photograph s were introduc ed to corroborate her testimony . Christian’s testimony was vital for th e State t o prove th

e eleme nts of esp ecially

aggr avated r obbery . All rele

vant evid ence is admissible

under Tennessee Rule of Evidence 402. Becau se Christia n’s testim ony was rele vant to the issu e of whether she suffered ser ious bodily injury

in connection to the robbery , this cl aim i s without merit.-10-

To prove the defendant committed e special ly aggra vated ro bbery , the State

must demon strate bothprongs of Tennessee Code Annotated section 39-11-106(a)(5)(A) a nd (B). The State must show that the defendant

intentionally caused ser

ious bodily injury

to another. Tenn. Code Ann. §§ 39-13- 101(a)(1), 39-13-10 2(a)(1 )(A). “ Serious bo dily injury” is defined a s “bodily injury which inv olves: (A) A substantial risk of death; (B) Protracted unconsci ousnes s; (C) Extreme physical pain; (D) Protracted

or obvious disfigurement; or (E) Protracted loss or substantial impairment of a function of a bodily member, or

gan or mental faculty .” Tenn. Code Ann. § 39-11-106(a)(34).

The defendant contends the State failed to present proof that the victim suffe red “ser ious bodily injury.” Specifica

lly, he cites the Court’s dec ision in State v. Sim s , 90 9 S.W.2d 46 (Tenn. Crim. App. 1995), perm to appeal denied (Tenn. 1995), and asserts the v ict im’s injury was inadequa te to constitute serious bodily injury . In Sims , the vict imsuffered a broken nose, a bruised cheekbone, a cut across the bridge of her nose , and den tal injuri es. This Court held th at the pa in associated

witha br ok en no se wa s n ot ex tr em e e no ug h t o b e c la ss if ie d a s a se ri ou s b od il y in

ju ry. Id

.

In this case, the vi ctim’s injuri es fell within the definition of serious bodily injury . The victim stated the defenda

nt drew th e phone b ack and

hit her, c ausing h

er fac e to bleed, knocking her back, and causing one of the four “C” ba tteries inside the

“army field ty pe” phone to fall o

ut. The vi ctimte stified she did not immediately seek medica l care and the only

medical treatment she received for her injury was th e application of a butterfly bandage to the injury . However, the victim testified that a scar remains on her face , which extends from the bridge of her nose down the side of her face to the area r ight above her lip. Serious bo dily injury includesa

cut that in

volves a substantial risk of death, or protracted or obvious disfigureme nt. See Tenn. Code Ann . § 39-11- 106(a)(2), (34)(A) & (D) ( 1997). Th e eviden ce esta blishes tha

t the victim sustained a lengthy cut from her nose to just above her lip that was obvious to the jury . The di stinction be tween bo dily injury and seri ous bodily

injury is gene rally a question of fact for the jury to determine. See State

v. Barnes , 954 S.W.2d 7 60, 765-6 6 (Tenn. Cr im. App. 1997 ). The record reveals that the prosecution requested the jury be allowed

to view the victim’s scar, and the trial court allowed the victim to stand in front

of th e jury . There

are no pi ctures o f the vic tim’s injur y c ontained

in this record. We will not substitute our blind eye for the clear sight of a jury

.
B. Trial Cou rt Relie

ving Counsel

Prior to Senten cing

The defendant argues the trial cour tfrustrated his right to appeal by relieving his trial counsel prior to sen tenci ng. We conclude nothing in the record indicates the def endant’s right to appeal has been frustrat ed by the ac tion s of the trial court. If any actions have delayed or frustrated the defendant ’s right to appeal, the defendant’s own actions have resulted in any de lay. During

th e p roceed ings, the defendant has fallen out of favor with all of his attorney s and has demanded tha t he act as hi s own counsel. Prior to sentencing, the defendant’s attorney

admitted that he did not feel confident to represent the defendant, due to a lack of trust. The record

indicates the defendant has been belligerent to the court and to his own counsel. Despite the war nings and advice of the

tria l court, the defendant chose to represent himself. Because a defendant has a Sixth Amendment right-11-

to procee d without t

he assistance of counsel, the trial court could not force him to acc ept representation. See Farett a v. Calif ornia , 422 U.S. 806, 821, 95 S. Ct. 2525, 2534, 45 L. Ed. 2d 562 (1975). T herefo re, the d efenda nt cannot blame the

trial cou rt.
C. Right to a Speedy Trial

The defendan t argue s his right to a spe edy trial wa s violated . The def endant w as initial ly indicted on December 2, 1997, by a Davidson County Grand Jury , indictment number 97-D-2580, for one count of aggrava

ted robbery , two counts of aggravated assa

ult, and one count of

robbery f or the June 18, 1997, rob

beries a t West Mead

e Cleane rs and Ar by’ s. On July 20, 1997, the Attorney General dismissed indictment number 97-D-2580. On June 27, 2000, the defendant was re-indicted by a Davidson County Grand Jury , indictment number 2000-B-1181, of one c ount o f aggravated robb er y, tw o c ou nt s o f a ggr av at ed as sa ul t, an d o ne co un t o f e sp ec ia ll y ag gr av at ed ro bb er y f or th e crimes at issue. The defendant was arraigne d and pleaded not guilty on July 19, 2000. The defendant’s trial began on September 18, 2000, and the ju ry returne d its verdict on September 21, 2000. The defendant was held until his sentencing hear ing on September 26, 2001.

To determine whether a n a ppellant’s right to a speedy trial has been violated, this Court must co ns id er fo ur fa ct or s: (1 ) t he le ng th of th e d el ay, (2) the reason for the delay , (3) whether the defendant asserted his right to a speedy trial, and (4) whether the defendant was pre judiced by the de la y. Barker v . Win go , 407 U.S. 5 14, 530, 92 S. Ct. 2182, 21 92, 33 L . Ed. 2d 101 (1972); State v. Vance , 888 S.W.2d 776, 778 (Tenn. Crim. App. 1994).
1. Length of Delay

The defendant

claims the

length o f the del ay

in bringing his case to trial was unwarr anted and, in its brief to this Court, the State concedes that further inquiry is needed. A delay of one year
or longer marks the point at which courts deem unrea sonable enough to trigger further inquiry. State

v. Utley , 956 S.W.2d 489, 494 (Tenn. 1997). There fore, the length of the delay in bringing the defendant to trial triggers fur ther inquiry.
2. Reason for Delay

Reasons f

or delay in bring ing a de

fendant to trial us ually

fall within four ca

tegori es: (1 ) intentional delay

to gain a

tactica l advanta ge ove r the def ense or d elay desi gne d to harass the defenda nt; (2) bureaucratic indifferenc e or negligence; (3) delay necessary

to the fair and

effective prosecution of the case; and (4) delay caused or acquiesced in, by the defense. State v. Wood , 924 S.W.2d 342, 346-47 (Tenn. 1996). The record contains seve ral motions by the

de fe nd an t’ s a tt or ne ys to be relieved as counsel for the defe nda nt. The record contains numerous refer ences to the de fendan t’s aggr

essive a ttitude tow ard his a

ttorney s and the e

xasperat ion of the

trial cou rt in contending with the defen d ant’s behavior toward his counsel. Therefore , we conclude this factor weighsagains t the def

endant’ s claim.-12-

3. Assertion of the Right to a Speedy Trial

The rec ord ref

lects the defenda nt asser ted his rig ht to a spe edy

trial for the first time in his pro se motion for a

New Tria l, filed on October 2, 2001. By this time, the defendant had been tried and sentenc ed. We con

clude the defenda nt’s fail ure to as s ert his ri ght t o a speedy tr ial weighs agains t his claim

. 4. Resulting Prejudice

Three specific areas in the inquiry to determine whether a defendant has be en prejudiced by

a delay in bringing his case to trial are as follo ws: (1) undue and oppressive incarcera tion; (2) anxiety accompany

ing public accusation; and (3) impairment of ability to prepa re a defense. Barker

v. Wingo , 407 U.S. 514, 532, 92 S. Ct. 2182, 2193 (1972). The defendant has failed to show how he has experienced any

prejudic e by

the dela y, g iven his pr

oblems de aling w ith his atto rney s. Our supreme court has held that showing prejudice is the most important part of the Barker weighing process

. See State v. Wood , 924 S.W.2d 342, 348 (Tenn. 1996). There can be no finding of prejudice to the defendant as a result of the delay

. We conclude this factor weighs heavily agains t the defendant.

In ba lancing all of the four factors, we conclude the def endant’s right to a speedy trial was not violated.

D. Unrea

sonable De

lay in Sente

ncing

The defendant contends he should not hav e experienced an unreasonable delay in bei ng sentenced. Tennessee Code Annotation section 40-35-209 requires the trial c ourt to c onduct a sentencing hearing “without unreasonable delay , but in no event more thanforty-five

(45) days”after acceptance

of the finding of g

uilt

. Tenn. Code Ann. § 40-35-209(a) (1997). Howeve r, statutory provisions which relate to the mode or timing of doing an act to which the statute applies are only directives and are not mandatory

. State v. Jones , 729 S.W.2d 6 83, 685 (T enn. Cr im. Ap p. 1986).

The defendant was convicted on September 21, 2000, and was sentenced on September 26, 2001. The record reflects the defe ndant attempted to m an ipulate th e judicia l sy stem throu gh his i n ability to maintain an appropriate relationship with counsel. As previously discussed, the defendant had the be

nefit of f ive attor ney s, with ea

ch seeking to be relieved from service due to the defendant’s hostile behavior. The defendant’s sentencing hearing was originally se t for November 1, 2000. On October 18, 2000, the defendant’s last attorney attempted to be relieved. The trial court granted the attorney ’s motion but required another attorney to aid the de

fendant as elbow counsel. The record

does not indicate th

e State a ttempted t

o gain a tacti cal adva ntage or to harass the defendant. Instead, the

defendant seems to have caused most, if not the majority , of the delay. We conclude the defendant’s right to a timely sentencing hearing wa s not violated.-13-

E. Severance of the Offenses

Becau se the offe

nses occurred in

differe nt locale s, the def

endant mo ved to sev er the c ounts of the indic tment. The

defenda nt c ontends the trial court erroneously denied his request for a

severance of the of fenses. A motion fo

r sever ance of offense s is a matter

which ad dresses itself to the sound discretion of the trial court, and this Court will not interfere with the ex ercise of th is discretion unless it appears on the face of the rec ord that the accused was prejudiced by the court’s rulin g. Stat e v. Fur lough , 797 S.W.2d 6 31, 642 (T enn. Crim. App. 1990 ); State v. Wiseman , 643 S.W.2d 354, 362 (Tenn. Crim. App . 1982). The trial court must make a determination that the evidence of one crime is relevant to a material issue in t he trial of the other. St at e v . H oyt , 928 S.W.2d 935, 944- 45 (Tenn . Crim. App . 1995). I t is permissible to join offenses under Rule 8(b) of the Tennessee Rules of Criminal Procedure “if the offe ns es consti t ute part s of a com mon schem

e
or plan or if they a

re of the same or similar character .” See Tennessee Rules of Criminal Procedure Rule 8(b). Un der Rule

14(b)(1 ), a def

endant sh all have the

right to severa nce of th e offen ses unles s the offense s are (a) part of a common scheme or plan and (b) the evidence of one would be admissible

upon the trial of the others. Ho yt , 928 S.W.2d a t 943; State v. Hallock , 875 S.W.2d 285, 289 (Tenn. Crim. App. 1993).

The record

reflec ts that on June

18, 1997, t

he defe ndant took

part in a crim e spree from Arby’s to the West Mead e Cl eaners. In this case , the defendant’s scheme was to steal cash f rom Arby’s and drive to West Meade Cleaners to rob the employ ees at gunp oint. The de fendant was driven by his accomplice f rom both crime scenes in the same car. The re is no i ndication in the record that the first andsecond robbery were not part of

the defendant’s overall common scheme or plan. Further

more, a link in

identifying the pe

rpetrators was established among all of the witnesses who saw the defendant escape into his car, wearin g t he same c lothes wit nesses de scribed

at both crime scenes. The defendant’s videotaped statement was shown to the jury in which the def

endant confesses to committing the ro bberies . Evidenc e of eac

h crime wa s r el ev an t t o s ho w i de nt it y, guilty knowledge, intent, or motive with respect to the other crime. See Tenn. R. E

vid. 404(b ); Ho yt , 928 S.W.2d at 9 44. The probative value of this evidence outweig hs any prejudicia

l effect on the defendant. For these reasons, the de fendant’s issue is without merit.

F. Ineffective Presentment of Issues

The defendant has presented severa l issues to this Court, but has failed to argue these issues

or support th

e issues w ith cited a

uthoritie s. The defendant alleges the trial judge e rred by failing to

recuse himself and he (the defendant) was the victim of a malicious prosecution. The defenda nt also contends he was denied the right to be present during jury delibera

tions. After a thorough review of the record, there appears to be no evidence of either impartiality or bias of the trial judge or

wrong doing by the prosec

ution. Furthermore, the secrecy underlying

jury delibera

tions is well established. Rushing v. State , 565 S.W.2d 893, 895 (Tenn. Crim. App. 1977). The defendant had no right to be present during jury

deliberations . Du e to the foregoing rea sons, we conclude the defendant has waivedthese issu es for f

ailure to adequa tely argue his issues a

nd cite a uth oriti es in suppo

rt of his arguments. See T.R.A.P. 27(a)(7).-14-

G. Sentencing

The de fe nd an t a rg ue s t he tr ia l c ou rt im pr op er ly s en te nc ed hi m t o t we nt y- tw o ye ars imprisonme

nt. When an accused challenges the le ngth and manner of service o f a sentence, our Court con ducts a

de novo review on the

record with a pre sumption tha

t the tria l court is c orrect

in its determinations. Ten n. Co de Ann. § 40-35-401(d). The presumption is conditioned upon the affirmative showing

in th e recor

d that the trial cou rt consid ered the sentenc ing principles a

nd all facts and circumstances. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1994).

In conducting a de

novo review of a sentence, we must consider ( 1) any evide nce received at the tr ial an d/or s enten cing he aring, (b) th e prese ntenc e repor t, (c) the pr incip les of sente ncing, (d) the arguments of

counsel relative to sentencing alternatives, ( e) the nature and characteristics of the offense, (f) any

mitigati ng or e

nhancing factor s, (g) an

y st atementsmade by the a

ccused in his own behalf, and (h) the accused’s potential or lack of potential for re habilitation or

treatment. Tenn. Code Ann. §§ 40-35-103 and -210.

The defendant was sentenced as a Range I standard offende r of especially

aggravated

ro bb er y, a Class A f

elony . Class A felonies are subject to a sentence range of fifteen to twenty-five ye ars. Tenn. Code Ann. § 40-35-112(a)(1). In the absence of enhancement and

mitigati ng fac tors, the presumptive length of a sentence for a Class A felony is the mid-point of the sentencing range, which is twenty y

ears. Tenn. Code Ann. § 40-35-210(c). Where both enhancement and mitig ating factors apply, the trial cour t must start at the min imum sentence, enhance the sentence within the range as a ppro priate to the enhancement factors, and then r educe the sentence within the rang e as appropr iateto the mitigating factors. Tenn. Code Ann.§ 40- 35-210(c). The weight afforded an enhanc ement or

mitigati ng fac tor is left to the discretion of the trial court so long as the trial court complies with sentencing purposes and principles and its findings are supported by the record. State

v. Hayes , 899 S.W.2d 175, 185 (Tenn. Crim. App. 19 95). The t rial court acknowledged the defendant’s vol uminous c riminal history, as evidence d by twenty-one prior offenses and that the offense involved m

ore than one victi m. We find tha t there were multiple victims involved in the instant offense. Because the defe ndant did not argue any

mitigating factors, the

trial court

did not apply mitigati ng fac tors towa

rd his sentenc e and sen

tenced h im to twenty-two y

ears. Because the especia lly aggravated robbe

ry only named Sandra Christian as a victim, weconclude the trial court erred in finding that multiple vict i ms were involved in the instant offense. Nevertheless, the defendant’s extensive criminal history justifies sentencing the defendant two years a bove the presumptive sentence of twenty years.

III. Conclusion

For the aforementioned reasons, we affirm the judgments of the trial court.

____________________________________ JOHN EVERETT WILL IAMS, JUDGE