### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs Ma y 4, 200 4

STA TE OF TEN NES SEE v. JEFF WILKES
Appeal f romthe Circ uit Court for DyerCounty No. C02-448 Lee Moore , Judge

No. W2003-01763-C CA-R 3-CD - F iled Jun e 9, 2004

A D ye r C o u n t y C i r c u i t C o u r t j u r y c o n v i c t e d t h e d e f e n d a n t , J e f

f W i l k e s , o f

r o b b e r y, a

C l a s s C f e l o n y, and the tria l court sentenc ed him as a Rang e I , standard of fende r to six y ear s in the Depa rtment of Correc tion (DOC). The de fenda nt appea ls, claiming ( 1) that the e vidence is insufficient to support his c on vic tio n a nd(2 ) tha t hi s se nte nc e is e xce ssi ve . We a ff ir m th e jud g me nt o f the tr ia l c ou rt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

J OS EP H M. T I PTON , J ., delivere d the opinion of the court, in which J ER R Y L. S MI TH and J AM ES C UR WO OD W I TT , J R ., J J ., joined.

No e l H . Ri le y , I I , D y e rs bu rg , T e nn e sse e , f or the app e lla nt, Jef

f Wi lke s. Paul G. Summers, Attorney Gene ral a nd R ep o rt er ; Michelle R. Chapman, Assistant Attorney Gene ral; C. Phill ips Bivens, District Attorne y Gene ral; and Kare n Waddell Burns, A ssistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

This case rela tes to the robbery of J erry ’s M arke t on May 4, 2002. Gre g Ba rr, a n investigator for the N ewbe rn Police De partment, testified that on May 4, 2002, at 11:09 p.m., the police re ceive d

a ca ll reporting that J erry ’s Marke t ha d been robbed. He sa id his investigation re veale d that $710 had bee n taken f

rom the store’ s cash r eg ister. He s ai d C h ar l es P owell, J erome Bla ckwe ll, and Thomas Will iams, J r., all juveniles, we re taken into custody near the store shortly

afte r the robbe ry and admitted their involveme nt in the r o b b er y

. He said that he found the defe ndant with Cameo Edwar ds and De wana J ones at the Comfort I nn in Dy ersbur g . I nvestig ator B arr rec overe d a pair

of blue jeans, bla ck shoes, a g ray shirt with writing o n i t , a white shirt, and an orang e shirt from the motel room. He also confiscated the defe ndant’s wallet, which c ontained thirty -eig ht dollars. He said that forty

dollars was f

ound on the side of the road wher e the three juveniles wer e appr ehende d and that Mr. B lackwe ll had $ 2 6 8

. He s ai d t h at he trie d to interview the de fenda nt but that all the-2-

defe ndant said wa s “no fac e, no case .” He said he ha d not give n the def endant a ny

details about the

ro bb e ry wh e n h e ma de thi s st a te me nt.

Monica Pirtle te stified that she lived three streets from Jerry ’s Marke t. She said that on the evening of May 4, 2002, she saw the defendant as she was leaving her house and that he asked her for a ride. She said that she ag ree d to give the def endant a nd another man a ride but that she did not drive them a ll the way

to Dy ersbur g beca

use she smelled be er w hen they g ot in the car

.
J udith Com bs testified that she and Pat Dodd worked at J erry ’s M arke t on May 4, 2002. She said that around 11:00 p.m., t hree juveniles enter ed the store and that one answere d his cellular telephone w hile the other two pur chase d an item that g lowed in the dar k. A fe w minutes after

the j u v en i l es left, a ma n with a re d bandana covering his fa ce e ntere d the store a nd jumped over the

c ou nte r, g ra

bb ing he r. She sa id h e tol d h e r n ot t o s a y a nythi ng a ndno t to touch a ny bu tto ns

. An oth e r m a n e nte re d the sto re wi th a T- sh irt aro un d his he a d to c ov e r his fa c e , a nd he g ra bb e d M s. Dodd. She said the man who held her drag g ed her to the cash reg ister and told her to open it . The defe ndant held her

with one arm while taking money from the r eg ister with the other. She sa id the defe ndant told her he h ad a g un and would shoot her if she moved or punc hed any buttons. S he looked outside and saw the t hree juveniles that had be en in the store just bef ore the robbery . After the ro bb e r h a d the mon e y fr om the re g ist e r, he jumpe d ba c k ove r the c ou nte r, sto le a bo x of c ig ars , and fle d with the man who had a T-shirt cove ring his head.

Ms. Combs t estified that the man who had robbed the store was muscular and wa s wea

ring a g ray shirt with an emblem on it, jeans, and muddy tennis shoes. She said that the man wa s Afric anAmeric an and that she could see his fac e from the nos e and above. She ide ntified the g ray T-shirt t h at I n v es t i gat o r B ar r f

o u n d i n t h e d ef

en d an t ’s m o t el ro o mas t h e s am e s h i rt t h e ro b b erwa s we ar i n g. She said the voice of t h e m an who had he ld her sounded like the defe ndant’s voice . She said she knew the defe ndant’s voice beca use, before the robbery , they had let the defenda nt wash ca rs at the store. Howe ver, at the time of t he robbery , she di d not rec og nize the defendant as the robber . After

watc hin g a

vid e ota pe , M s. Combs ide nti fi e d it a s a n a c c ur a te re c or din g of the ro bb e ry . O n c ro ssexamination, Ms. C ombs acknowle dg ed that she was not positive the gra y T-shirt s he identified w as the one worn by

the man that robbe d the store.

Pat Dodd testified that she was the manag er at J erry ’s Marke t and that she wa s at the store during the robbe ry

on May 4, 2002. She said she wa s in the back of the store whe n she saw a man with a T-shirt wra

pped around his head. She said the ma n g rabbe d her a nd pulled her to the f ront of the store . She said she saw another man at the cash reg ister holding Ms. Combs and taking money from the r eg ister. She said the man at the reg ister then jumped over the counter , g rabbe d a box of cig ars, and ran out the door. She said the man who stole the mone y was Af rica n-American a nd was

we ari ng a wh ite T- sh irt w ith a n e mbl e m on it, je a ns , a nd a re d b a nd a na

aro un d h is f

a c e . Sh e sa id $710 was stolen from the store’s cash r eg ister during the robbe ry . On cr oss-examination, Ms. Dodd acknow ledg ed that she did not re cogni z e t h e def endant during therobbery even thoug h she wa s
awa re that he had pr eviously

washe d car s at the store.-3-

Charles Powell testified that he had known the de fenda nt his entire life a nd that on the nig ht of May 4, 2002, the defe ndant approa ched him about robbing J erry ’s Marke t. He said the de fenda nt told him t hat they

neede d one per son to rob the cler k, one per son to steal t h e v i d eo t ap e, and two pe op le to a c t a s lo ok ou ts. He sa id tha t he a g re e d to be a loo ko ut a ndthat Mr . B la c kw e ll a g re e d to g o with the defe ndant. He said that either the defe ndant or Mr. B lackwe ll wore a red ba ndana a

round his face while the other wra pped a T-shirt around his hea d. He sa id that during the robbe ry , he wa s located at the telephone outside the store. He sa id that after the robbe ry , he wa s caug ht by the police while running throug h apartments located behind the store. He said he c onfesse d to every thing that had occur re d, including the defe ndant’s involvement in the robbe ry . On cr oss-examination, he te sti fi e d th a t he re c e ive d th irty da y s o f h ou se arr e st, c ommun ity se rv ic e a ndpr ob a tio n f or his involvement in the robbery

. He said that when the police interviewe d him, they told him t hat if he told them the truth, they

would g o easy

on him and let him go home to slee p in his own bed.

Thomas Will iams, J r. testified that he had known the de fenda nt for a long time a nd that he

a c te d a s a lo o k o u t f o r th e d e f e n d a n t in th e M a y

4 , 2 0 0 2 r o b b e r y

. H e s a idth a t h e s to o d o u ts id e n e xt to a phone during the robbery and that the robbery was the de fenda nt’s idea. He said that he ha d two red bandana s with him that night and that he gave them to the defe ndant in order that he could c over his face

. He said that althoug h the def endant pr omised him money , he neve r re ceive d any from the defe ndant. He sa id t h at the police c aug ht him shortlyafte r the robbe ry and that he told the police

e ve rythi ng , inc lud ing e ve ry on e inv olv e d in the ro bb e ry

. On c ro ss- e xami natio n, Mr. W illia ms testified that he r ece ived fifty day s of house a

rre st, 200 hour s of community service , and probation for his involvement in the robbe ry . He a cknowledg ed that he, Mr. Bla ckwe ll, and Mr. Powell had ta lke d a bo ut n e e din g mon e y be fo re the de fe nd a nt arrive d on Ma y 4. He sa id h e c ou ld n ot s e e int o the store from wher e he w as standing when the r obbery occur red. H e ac knowledg ed that I nvestig ator Ba rr told him that he could g o home if he told the police about the robbe ry

.
Rob e rt B la c kw e ll tes tif

ie d tha t he wa s invo lve d in the ro bb e ry of Jer ry ’s Ma rk e t bu t th a t it was the de fenda nt’s idea. He said he wa s talking a bout wanting money

when the defe n d ant
app ro a c he d h im f

ro m be hin d a nda sk e d if

he wa nte d to make so me re a l mo ne y . H e sa id that he tol d the defe ndant no at first but that he later ag ree d to pa rticipate in the robbery

. He sa id his role was to enter the store and g rab the “other la dy ” while the de fenda nt stole money from the c ash re g ister. He sa id that he followed the def endant’ s advice by

wra pping his shirt ar ound his head a nd that the defe ndant used a bandana to c over his f ace

. He said he enter ed the store and g rabbe d the woman, telling he r to stay

quiet. He sa id he saw the d ef en d an t jump over the counte r and the n jump back over the counter . He sa id he ra n out of the store be hind the defe ndant. He sa id the defe ndant g ave him about $273 and t old him to chang e clothes at his cousin’s house. He said they rec eived a

ride from Jerry ’s Marke t with a woman the defe ndant knew. He said he was supposed t o meet with the defe ndant later

that night but wa s arr ested by the police at his cousin’s house

. On cr oss-examination, Mr. B lackwe ll testified that before he met the defendant on May 4, he had talked about selling fa ke

cra ck co caine to make money . He sa id that he had ne ver sold fa ke cr ack c ocaine but that he had been c harg ed with two burg laries, two to thre e fe lonies, and about four misdemeanors. He de nied police told him that they

would g o easy

on him if he testified.-4-

Ca me o Edw ard s tes tif

ie d tha t she me t the de fe nd a nt a ro un d mi dn ig ht o n M a y

4, 20 02 , w hil e she and some friends were riding around Dy ersbur g

. She said she wa s not driving a nd did not know why they picked up the de fendant. She said they drove the defe ndant to Newb er n b ec ause the defe ndant s ai d h e nee ded to pick up some money . She said she hea rd seve ral pe ople tell the defe ndant that “they ’re looking f or y ou.” She said that the def endant we nt to severa l differ ent houses bu t th a t sh e didno t kn ow if he re c e ive d an y mon e y

. She sa id that the y we nt t o th e Com fo rt

I nn in Dy ersbur g and that on the way to the motel, the def

endant told her

that he and some other boy s had robbed a store. She said she did not believe the defe ndant at that time. She said that he told her the oth e rs we re sc are d b ut tha t he jump e d the c ou nte r an d told the wo ma n tha t he wo uldno t hu rt he r i f she g ave him the m oney . She said the def endant a lso told her that he did not have a wea pon and that he wo re a sc arf du ri ng the rob bery . She sa id s he we nt w ith the de fe nd a nt t o th e mot e l in or de r t o smoke marijuana . She said that the def endant g ave her forty dollars to sit with him at the motel and that about an hour

later, the police arrived. She said that when the police knocked on the door, the de fe nd a nt we nt int o the ba thr oo m sev e ra l time s andfl us he d s ome thi ng . O n c ro ss- e xami natio n, Ms. Edwar ds testified that on May 4, she had been to a

club bef ore she met the def

endant but that she ha d not smoked marijuana at t he club. She sa id she was a rre sted for violating her pa role whe n the police

arrive d a t th e mot e l.

Dewa na Jones testified that the defendant was her friend and that she saw him while she was driving around D y ersbur g with some friends on the e vening of May 4, 2002. She said that she let the def endant inside the c ar a nd that he wa nted to g o to Newbe rn to g et money

. She said that when they rea ched N ewbe rn, the de fenda nt asked a man if the police wer e looking for him, to which the

man re sponded that they wer e. She said that they stopped at seve ral houses a nd that at one house , a woman g ave the defe ndant money . She said the defendant tol d her tha t he and some f riends had

ro bb e d a sto re a ndthat he wa s the on ly on e wh o h a d e sc ape d th e po lic e . Sh e sa id the de fe nd a nt t old he r h e jumpe d the c ou nte r a t the sto re a nd tol d the wo ma n at th e sto re that he wo uldbr e ak h e r i n h a lf if she ca lled the police or scre amed. She said they went to the Comfort I nn to party . She said the defe ndant offe red he r $300 dollars if she would tell the police that she had bee n with the defe ndant the entire day

. She said that she ag ree d but that she neve r saw the $300. She said that afte r they had been in the motel f

or forty -five minutes to an hour, the police arrived. She said the def endant we nt into the bathroom and a fter sever al minutes, ope ned the door for the police . On cr oss-examination, sh e a c kn ow le dg e d s moking mari jua na that ni g ht.
Deputy Ly nn Waller testified that he inve stigated the rob b er y o f Jerry ’s Marke t for the Newbe rn Police De partment and that he had known the defe ndant for about two y ear s. He said that when he watche d the store’ s videotape of the robbe ry , he believe d that the per son robbing the store was the de fenda nt. He said that whe n he met with the def endant at the police st ation, the def endant said he wa s not invol v ed i n t h e robbery . He sa id, however , that when he responde d that he had viewed the videotape of

the robbe ry , the def

endant told him that if he would kee p it to him self, the defe ndant would g ive him the names of se vera l drug deale rs in the neig hborhood.

Th e de fe nd a nt tes tifie d th a t he ha d b e e n c on vic te d o f a g g ra vate d a ssa ult in 1 99 3. He sa id he wa s not involved in the robbery of Jer ry ’s M arke t. On cross-e x amination, the def endant-5-

acknow ledg ed having been c onvicted of two a g g ravated assaults, re ckless endang erme nt, and pos s es s i o n o f a weapon w ith the intent to employit in the commissi on of or the e scape from an offe nse. He acknow ledg ed wa shing c ars at J erry ’s Marke t before the robbe ry and g oing to the motel wi th M s. Ed wa

rd s a ndMs. Jone s o n M a y 4, 20 02

. He sa id, ho we ve r, that Ms. Jone s, Ms. Ed wa rd s, Mr. B lackwe ll, Mr. Wi lliams, and Mr. Powell lied about his involvement in the robbery

.
I. SUFF ICIENCY OF THE E VIDENCE

T h e d e f e n d a n tc o n t e n d s t h a tt h e e v i d e n c e i s i n s u f f i c i e n t t o s u p p o r t h i s c o n v i c t i o n f

o r r o b b e r y. The state c ontends that the evide nce is suff icient. We ag ree with the state.

Our standa

rd of re v i ew when the def endant que stions the sufficienc y of the e vidence on appea l is “whether , afte r viewing the evidenc e in the lig ht most fa v o ra b l e t o t he prose cution, any

ratio na l trie r o f f

a c t c ou ld h a ve fo un d th e e sse nti a l e le me nts of the c ri me be y on d a

re a so na ble d o u b t

. ” J ac k s o n v

. Vi rgi n i a, 4 4 3 U. S

. 3 0 7 , 3 1 9 , 9 9 S

. C t

. 2 7 8 1 , 2 7 8 9 (1 9 7 9 ). W e d o n o tre we i gh the e vid e nc e bu t pr e su me that th e jury ha s r e so lve d a ll c on fl ic ts i n th e te sti mon y a nddr a wn a ll

rea sonable infe renc es fr om the evidenc e in fa vor of the state. See State v. Sheff ield, 676 S.W .2d 542, 547 (Tenn. 1984) ; Stat e v . Cabbag e, 571 S.W.2d 832, 835 (Tenn. 1978). Que stions about witness cre dibilit y

wer e re solved by the jury

. See State v. Bla nd, 958 S.W .2d 651, 659 (Tenn. 1997)

. Robbery is defined a s “the intentional or knowin g t h eft of pr operty from the pe rson of a nother by violence or

putting the pe rson in fea

r.” T.C.A. § 39- 13-401(a ).

W e b e l i e v e t h a tt h e e v i d e n c e i s s u f f i c i e n t t o s u p p o r t t h e d e f

e n d a n t ’ s c o n v i c t i o n f

o r r o b b e r y. Offic er B arr

testified that the def

endant told hi m “no face , no case [,] ” eve n though O ffice r B arr had not told the defe ndant that the robber s cover ed their fac es during the robbery

. Ms. Pirtl e t est ified that she lived just three stre ets aw ay fr o m J erry ’s Marke t and g ave a ride to the de fenda nt on the night of the robbe ry . Ms. Combs t estified t h at a m an whose voice sounded like the defe ndant’s robbed he r while she was working at J erry ’s Marke t and that the g ray T-shirt conf

iscated by Offic er Ba rr looked like the shirt that the robber had worn. Ms. Dodd testified that $710 and a box of cig ars
wer e take n during the robbery

. Mr. P owell, M r. W illiams, and Mr. Bla ckwe ll eac h testified that the de fe nd a nt w a s in vo lve d in the ro bb e ry . M r. B la c kw e ll s a id that he sa w thede fe nd a nt n e ar the c a sh reg ister and that the de fenda nt ga ve him about $273 afte r the robbery . Ms. Edwards a nd Ms. J ones testified that the def

endant told them t h at he had r obbed a store and that he ha d jumped over a counter during the robbery

. Ms. J ones said the de fenda nt offer ed her $300 to tell the police that she had bee n with him the entire day

. We believe that this evidenc e is more than suf ficient to show that the def endant r obbed Jerry ’s Marke t on May 4, 2002.

II. SE NTENCING

The de fenda nt contends that the trial c ourt err ed by sentenc ing him to s ix y ear s in the Depa rtment of Correc tion. How ever , as the state points out, the def endant ha s failed to include the sentenc ing he aring transcript in the recor d on appea l. A trial court’ s sentencing determinations are entitled to a pre sumption of corre ctness upon re view. See T .C.A. § 40-35-401(d)

. The duty is now-6-

upon the defendant to show what was incorr ect a bout the sentenc ing pr ocess. In the abse nce of the sentenc ing he aring transcript, which is e s s en t i al for our revie w, we a re to pre sume that the trial court’s ruling s are corr ect, and we are prec luded from considering any sentenc ing issue in this ca se. See State v. Gibson, 973 S.W.2d 231, 244 (Tenn. Crim. App. 1997).

B a se d o n th e fo re g oin g a ndthe re c or d a s a wh ole , w e a ff

ir m th e jud g me nt o f the tr ia l c ou rt

.

___________________________________ J OSEPH M. TI PTON, J UDGE