# FILED
September 29, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE JULY 1998 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. No. 01C01-9708-CR-00368 Appellee, ) ) Davidson County V. ) ) Honorable Tho mas H. Shriver, Jud ge ) AARON COOPER, ) (Aggravate d Robbery) ) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: David A. Collins John Knox Walkup Attorney at Law Attorney General & Reporter 211 Printers Alley Bl dg., 4th Floor Nashville, TN 37201 Daryl Brand Assistant Attorney Gener al 425 Fifth Avenue North Nashville, TN 37243-0493 Victor S. (Torry) Johnson III District Attorney General Nicholas Bailey Assistant District A

ttorney General 222 2nd Avenue North Washington Square Building Nashville, TN 37201

OPINION FILED: ___________________
AFFIRMED PAUL G. SUMM ERS, Judge-2- O P I N I O N
In November 1996, Aaron Cooper, the appellant, was convicted by a jury of aggravated robbery in the Davidson County Criminal Court. The trial court sentenced him to eight year s in the Department of Correction as a Range I standard offender. The appellant raises the following issues for our review: (1) whether Tennessee Code Annotated § 39-13-402(a )(1) (1991) is unconstitutionally vague and (2) whether the evidence is sufficient to support his conviction. The judgment of the trial court is affirmed.
On July 20, 1995, the victim, Melony Gooch, left work at approximately 12:30 p. m. and he aded by ca r to the ba nk. She ha d been pa id the pre vious day, and had approximately $300 i n cash in her wallet un der the passenger’s seat o f her car. While she was stopped at an i ntersection, the appellant enter ed the passenger’s side of her car. The appellant demanded Ms. Gooch to “Give it to me.” Ms. Gooch responded “Gi ve you what? I don’t

have anything.” The appellant repeated his demand saying “I know you got it. Give it to me.” Ms. Gooch said that she did not hav e anything and asked him to get out of her car. The appellant told her to driv e. When she did not move, the appellant grabbed the steering wheel, pus hed on the accelerator, and drov e the car.
The appellant threatened Ms. Gooch saying “Don’t make me have to hurt you. I know you got it.” Ms. Gooch testified that the appellant had his hand in the waistband of his jogg ing pants, as if he had a we apon of some kind. She testified that she was afraid to yell for help or get out of the car for fear that the appellant would have dr awn his weapon. Ms Gooch testified that she did not know what the appellant had. She testified that she did not want to “try him to see if he did have a weapon.” She testified that she was in fear for her life. The appellant slowed the car and turned off the ignition. The appell ant searched for money, saying “I know you’ve got some money in here somewhere.” He felt Ms.-3- Gooch’s pockets and her breas ts. He then reached under the s eat and felt the wallet. The appellant “hollered jackpot” and jumped out of th e car. Ms. Gooch testified that the appellant kept hi s hand in the waistband of his pants until he jumped out of her car.
The appellant’s videotaped stat ement was played for the jur y. The appellant stated that he reached in the car and stole Ms. Goo ch’s purse. He denied that he had a weapon. He denied that he said or did anything to ma ke Ms. Gooch believe that he had a weapon. The jury found the appellant guilty of aggravated robbery . The trial court found no merit to the issues raised by the appellant in this appeal.
Tennessee Code Annotated § 39-13-402(a) (1) defines aggravate d robbery as “robbery” a ccomplis hed with a d eadly weap on or by display of any article used or fashioned to lead the victim to reasonably believe it to be a deadly weapon . (emphasis added).
The appellant contends that the unde rlined language is unconstitutionally vague because a reasonable person cannot read the statute and know what is prohibited and because the statute does not provide expli cit standards to prevent arbitrary and discr

iminatory enforcement.
It is a fundamental tenet of due proce ss that a statute is void for vagueness if the conduct which it prohibits is not clearly defined. Grayned v. City of Rockford , 408 U.S. 104, 108 (1972). To survive a challenge for vagueness , a statute must meet two criteria. First, the statute must “ give the person of ordinary intell igence a reasonable opportuni ty to know what is prohibited, so that he may act accordingly.” Id. Second, the statute “must prov ide explicit standards

” to prevent “arbitrary and discriminatory enforcement.” Id.
State v. Lakatos , 900 S.W.2d 699, 70 1 (Tenn. Crim. App. 1994).-4- The appellant challenges the l egislature’s use of the w ords “displays” and “article. ” Citing W ebster’s New Wo rld Dictio nary, the appellan t define s “display” as to unfold, spread out, or ex hibit. He defines “articl e” to mean “a separate item.” The appellant argues that he did not “display” anything and that “arti cle” should not be interpreted to mean a human hand. The vagueness doctri ne does not invalidate every statute just because the legislature must necessarily use words of general meaning . Tennessee Code Annotated § 39-13-402( a)(1) applies in a wide v

ariety of situations; g reater precision in w ording the statute would be impractical and make the statute difficult to apply

. See State v. Lyons , 802 S.W.2d 590, 592 (Tenn. 1990). “It is the duty of this Court to adopt a construction which w

ill sustain a statute and av oid constitutional conflict if its recitation permits such a construction.” Id. We have no problem in doing so in this case.
Tennessee Code Annotated § 39-14-402(a) (1) is not vague. Be fore 1989, our legislature prohi bited “robbery accompli shed with a deadly w eapon.” Tenn. Code Ann. § 39-2-501 (Supp. 1989).To be convicted under the statute, the state had to prove that the defendant actual ly possessed a deadly weapon when he or she accomplished the robbery . In 1989, the legislatur e enacted the aggravated robbery statute at issue . The new statute was i ntended, in our opinion, to include robbery committed under the pretense of being armed. The American Heritage Dictionary

of the English Language defines “display” in part to as to “manifest,” “[t]o be endowed w ith an identifiable form,” and “[t ]o express as by gestures. . . .” This de

finition covers a situation in which a defendant ges tures with his hand balled up in the waistband of his pants while saying “Don’t make me hurt you.” The same dicti onary defines “article” in part as “[a]n indiv

idual thing or element,” and a “particular object or item.” In our opinion, the legislature intended for the word artic le to include the situation where a robber fashions or conceals his hand like a g un or other weapon whi le threatening harm to the victim.-5- Furthermore, the legisl ature has placed a restric tion on the applicability of the statute by the languag e “fashioned to lead the victim to reasonably believe it to be a deadly weapon.” By using this lang uage, the legislature h as focused upon perception of the victim that he or she is in danger, and not on whether the defendant actually has a weapo n. The perception or belief of the v ictim that a defendant is armed must be reasonable. The reasonableness standard is no t arbitrary. It perv

ades our legal system and rests with the intel ligence, experience, and common sense of judges and juries.
The state argues that courts in other states have concluded that sta tutory language similar to th e language in the Tennessee sta tute was sufficiently cl ear to support convictions. See State v. Smallwood , 346 A.2d 164, 166 (Del. 1975) (displays what appear

s to be a deadly weapon); People v. Knowles , 436 N.Y.S.2d 25, 26 (N.Y. App. Div. 1981) (displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm); State v. Henderson , 664 P.2d 1291, 1293 (Wa sh. Ct. App. 1983) (displays what appears to be a firearm or other deadly weapon) ; State v. Hopson , 362 N.W.2d 166, 167 (Wis. Ct. App. 1984) (by use or threat of use of a dangerous weapon or any article used or fashioned in a manner to lead the victim to reasonably believe that it is a dangerous weapon). The analy sis in these cases is per suasive, and our holding of constitutionality accor ds with the majority

of jurisdictions that hav e either passed on the c onstitutiona lity of similar stat utes or construe d the language therein.

The appel lant cites the u nreport ed decis ion of State v. Jemison , No. 01C01-9303-CR-00107 (Tenn. Cr im. App. filed at Nashvill e, Mar. 31, 1994) to support his position. In Jemison , the appellant accomplished ag gravated robbery by keeping

a hand in his jacket and tell ing the victim to be q uiet or he would shoot her. The vi ctim testified that she believ ed that the defendant had a-6- weapon. The appellant argued that the evidence was insufficien t to establish that he had a deadly weapon or displayed an article resembling a deadly weapon. The Court held that the jury was entitled to accredit the defendan t’s threat and to infer from it and the manne r in which the defendant had his hand in his pocket that he was ar med. The Court stated, howev er, that it had reservations about a hand i n a jacket, without more, supporting a conclusion beyond a reasonable doubt that ther e was a display of an ar ticle used or fashioned to lead the victim to reasonably believe i

t to be a deadly weapon. The defendant did not challenge the constitution ality of the aggravated robbery statute. Like the appellant i n Jemison , the appellant in this case verbally threatened the victim w hile suggesting that

he had a weapon. Jemison does not persuade us to grant the appellant relief on either one of his issues.
II. Sufficiency of the Evidence The appellant argues that the evidence is insufficient to sustain his conviction. Specifical ly, he argues that he di d not display, use, or fashi on any article to lead the vi ctim to reasonably belie ve it to be a deadly w

eapon. Great weight is accorded jury verdicts i n criminal trials. A jury verdict accredits the testimony of the state's w itnesses and resolves a ll conflicts in favor of the state. State v. Willia ms , 657 S.W.2d 405, 41 0 (Tenn. 1983). On appeal, the state is entitled to both the strongest legitimate view of the evidence and all reasonable inferences to be drawn therefr om. State v. Cabbage , 571 S.W.2d 832 (Tenn. 1978). Moreover, a g uilty verdict r eplaces the presumption of innocence enjoyed at trial with the pr

esumption of guilt on appeal. State v. Grace , 493 S.W.2d 474 (Tenn. 1973). The appellant has the bur den of overcoming the presumpti on of guilt. Id.
When appellants challenge the sufficiency of the e vidence, the relevant question on appellate rev iew is whether, after

viewing the ev

idence in the light most favorable to the prosecuti on, any rational trier of fact could have found the-7- essential elements of the crime or crimes beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307 (1979); State v. Duncan , 698 S.W.2d 63 (Ten n. 1985); T.R.A.P. 13(e). The weight and credibility of witness testimony are matters entrusted exclusive ly to the jury as t riers of fact. State v. Sheffield , 676 S.W.2d 542 (Tenn. 1984); Byrge v. State , 575 S.W.2d 292 (Te nn. Crim. App. 1978).
The evidence is sufficient to sup port the appellant’s conv iction for aggravated robbery . Ms. Gooch testified that the appellant held his hand in the waistband of his pants “ as if he had a w

eapon,” and s

aid to her “ Don’t make me have to hurt you.” She demonstrated for the jury how the appellant held his hand. She furt her testifie d that she fear

ed for her life and that she did not jump out of the car because she did not w ant to find out whether the appell ant had a weapon. She testified that the appellant kept his hand in his pants during the entire confrontation until he di scovered the money with his other hand.
The judgment of the trial court i s AFFIRMED.

_____________________________ PAUL G. SUMMERS, Ju dge
CONCUR:

___________________________ DAVID G. HAYES, Jud ge-8- ___________________________ JERRY L. SMITH, Jud ge