### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs N ove m be r 15, 200 5

STATE OF TENNESS EE v . JAMES D. COOKS, J R.

Direc t Appeal from the Cr im inal Cou rt for Shelby Coun ty No. 03-04183 Ar thur T. Benn ett , Judge

No. W2005-00249-C CA-R 3-CD - F iled Novem ber 29, 2005

A S helby County Criminal Court jury convicted the appellant, J ames D. Cooks, J r., of assault and the ft of pr op e rt y val ued less tha n f ive hu nd re d d oll ars , a ndthe tr ia l c ou rt se nte nc e d h im t o
c on se c uti ve se nte nc e s o f e le ve n mo nth s, tw e nty -n ine da y s fo r e a c h of fe ns e . T he app e lla nt a

pp e a ls, claiming that the evidenc e is insufficient to support the c onvictions. Upon review of the re cord a nd the pa rt ie s’ br ie fs , w e a ff

ir m th e jud g me nts of

the tr ia l c ou rt

.
Te nn. R . A pp. P . 3 App e al a s o f Rig ht ; J udgm e nt s o f the Cr im ina l C our t a r e Affir m e d.

N OR MA M C G EE O G LE , J ., delivere d the opinion of the court, in which J A M ES C UR WO OD W I TT , J R

. AND J.C. M C L IN , J J
., joined.

Robert Wils on J ones and Tony N. Bray ton (on appe al) a nd Wil liam Robil io and J ane Sturdivant (at trial), Memphis, Tenne ssee, f or the a ppellant, J ames D. Cooks, Jr.

Pa ul G

. S u m m e r s , A t t o r n e y G e n e r a l a n d R e p o r t e r ; J. R o s s D y e r , A s s i s t a n tA t t o r n e y G e ne ra l; Wil liam L . Gibbons, District Attorn ey Ge n er al; and Stacy McEndre e, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.
OP IN ION

I. F ac tu al B ac kgr ound

Dawda J allow t estified that on Marc h 12, 2003, he wa s working as the mana g er of the Exx on Mobile convenie nce store at 1003 Union Avenue in Me mphis. The appellant came into the store,

wa lke d up to a disp la y sta nd c on ta ini ng dig ita l vide o d isc s ( DV Ds ), a ndpu t so me DV Ds in h is p a nts

. The a ppellant then starte d to walk out of t he store. Jallow asked the a ppellant if he w as g oing to pa y for the D VDs and told the a ppellant that if he did not pay for them, J allow was g oing to tele phone the police. The appellant sa id, “F****** g et out of my fac e,” pulled a knife out of his poc ket, and tried to stab J allow in the hea d or ey e. The appellant a nd J allow wre stled, and a DVD fell out of the appellant’ s pants. During the alterc ation, the appellant cut one of J allow’s fing ers. A store cashie r-2-

and a c ustomer helped Jallow subdue the appe lla n t u n t i l t h e police a rrived, a nd the police f

ound another DVD in the appellant’ s pants. J allow testified that the price of the DVDs was $12.99 eac h.

On cr oss-examination, J allow testified that while the a ppellant was standing at the DVD dis play sta nd , the app e lla nt wa s abo ut two to thr e e y ard s a way fr om h im a ndwa s tu rn e d s ide way s. He sa id that it was the store’s policy to c all the police on shoplifters, not de tain them. He sa id that the DV Ds we re wr app e d in pla sti c a ndha d a pr ic e ta g on the m.

Tr a lon da Mo or e te sti fi e d th a t on Ma rc h 1 2, 20 03 , s he was wor kin g a t th e Exxon M ob ile sto re . A ma n wa lke d up to the c ou nte r a nda sk e d if the sto re so ld P e ps i B lue in a c a n. Mo or e tol d the man that the store did not sell the product. T h e m an wa l k ed aw ay but returne d to the counter la te r a nda sk e d a

bo ut P e ps i B lue a g a in. Mo or e a g a in t oldthe ma n th a t th e sto re didno t se ll Pe ps i Blue in a ca n. M oore sa w the man “ doing some thing down his pa nts,” but a cig are tte stand was blocking her vie w. As the man w as about to leave
, Dawda J allow asked the m an if he was “g oing to pay for that.” The man r eplied, “[ P ] ay fo r wh at ? ” J allow told the man to pay for the item or J allow was g oing to call the police. The man cur sed at Jallow, pulled out som ething , and jabbe d at J allow. Another

store cle rk jumped over

the coun t er, a nd J allow and the c lerk wr estled the man outside. A store customer helped them subdue the man until the police ar rived. Moore testified that the police rec overe d two DVDs fr om the man, and she could not identify the appe llant as the man who took the DVDs. Moor e saw blood on the store floor a nd stated that Jallow had rec eived two cuts. On cr oss-examination, Moore testified that the two DV Ds ca me from the store

. Serg eant Ma

rlon Tabor

of the Memphis Police De partment testified tha t on March 12, he was
on patrol and was dispatched to 1003 Union Avenue . When he ar rived, thre e males w ere holding down the appe llant. Serg eant Ta bor did not see a ny on e p u n ch i n g, h itting, or fig hting. He patted down the appe llant and put the appe llant into a patrol ca r. Sergean t Tabor f

ound a pocke tknife handle in the a

ppellant’s pants pocket and one DVD in the back of the appe llant’s pants. A sec ond DVD wa s found in the ar ea, a nd a knife blade wa s found in a nearby flower bed. Da wda Jallow had cuts on his hand and wa s bleeding . The appellant was also injured, and Serg eant Tabor ca lled for an ambulanc e.
Serg eant Ma

rtha Aldridg e of the Memphis Police Depa rtment testified t hat on Marc h 12, she was in the Walg ree ns on Union A v en u e. W h en s h e ca me out of the store , a woman f lag g ed her d o wn an d t o l d h ert h a t s o m e o n e w as fi gh t i n g at t h e E x x o n ac ro s s t h e s t re et

. S er gea n tAl d ri d ge l o o k ed ac ro s s t h e st re et an d s aw t h at t h re e o r f o u r m al es ap p ea re d t o b e f i gh t i n g. S er gea n tAl d ri d ge called f or bac kup and drove to the Ex x on. When she arri v ed
, Da wda J allow told her that the appellant ha d stolen something f rom the st ore and had c ut him. S erg eant Aldridge handcuf fed the appellant, a nd Serg eant Ta bor arrived and frisked him. Serg eant Tabor found a knife handle in the appellant’ s back poc ket and a Wishmaster DVD in the ba ck of the appellant’ s pants. Someone found a knife blade in a flower

bed. On cross-e x amination, Serg eant Aldridg e testified that the a ppellant ha d s ome c uts a ndsc ratc he s.-3-

Kar en Schave r testified that she c o n d u ct ed videotape a naly sis for the Memphis Police De pa rt me nt. She sa id that sh e re c e ive d a nd re vie we d a vid e ota pe c oll e c te d fr om the Exxon M ob il

co n v en i en ce s t o re

. T h e t ap e w as t o o b l u rr y t o s ee an y t h i n g.

The a ppellant testi fied that he pled g uiltyto multi ple counts of thef t of property

in 1998, 2000, and 2003. He pled gu i l t y i n those ca ses bec ause he committed the crimes. On Ma rch 12, 2003, the appe llant bought a Wis hmaster DVD from a street peddler

. He put the DV D in the bac k waistband of his pa nts and went into the Exx on to buy a ca n of P epsi Blue

. He looked for the drink in the cooler

but did not find it and wa lked up t o the s tore counter. The c lerk told him that the store

car ried the pr oduct, and the a ppellant re turned to the c o o l er to look for it. He could not find a ny Pepsi Blue in a can and returne d to the counter. This time, the clerk told him that the store did not sell Pepsi Blue in a c an. The appellant turne d to leave, a nd Dawda J allow aske d, “Sir, are y ou g oing to p a y fo r w ha t y ou pu t in y ou r p oc ke t?” Th e app e lla nt tol d Jall ow that he did no t ha ve a nythi ng in his po c ke t. Ja llo w b loc ke d th e app e lla nt fr om le a vin g the sto re a ndpu t hi s h a nd s o n th e app e lla nt. The a ppellant pushed Jallow off of him, a nd J allow rea ched into his right pocke t, pulled out a knife,

a ndsw un g it at th e app e lla nt. Th e app e lla nt w e nt o uts ide , a ndJall ow a nda sto re c le rk

fo llo we d h im. J allow still had the knife in his hand, and the appellant waived his ke y s at J allow i n s el f-de fense

. The a ppellant turned to run, a nd J allow and the store cler k jumped on him. The three men wre stled, anda c u s to me r h e lp e d Ja ll o w a n d th e c le rk d e ta in th e ap p e ll a n t. Wh e n th e p o li c e arr iv e d
, th ey patted down the a

ppellant and f

ound the DVD in h i s p an t s

. T h e appe llant told the police that the DVD wa s his.

On c ro ss- e xami na tio n, the app e lla nt t e sti fi e d th a t he pa id fi ve do lla rs fo r the DV D b ut d id not ge t a re ceipt. He stated that he was in the Ex x on Mobile store for about fiftee n minutes and had five dollars w hen he w ent into the store. He said that offic ers late r q u es t i o n ed him at the police de pa rt me nt a ndthat he of

fe re d to g ive a

state me nt. He a c kn ow le dged th at on a wai ve r o f rig hts form, he w rote that he did not wa nt to g ive a statement. He sa id that he did not curse at J allow and that so me on e pla nte d the DV D on him. He state d tha t J a llo w as sault e d him an d tha t the po lic e did not find part of a

knife in his pocket. The a ppellant ac knowledg ed having six teen prior misdemeanor convictions since 1 9 9 8 an d acknow ledg ed that he w as on bond for a thef t char g e whe n the police

arr ested him for the curr ent offe nses. He sta ted that he pled g uilty to the ear lier crimes because he was g uiltybut that he was not g uiltyin this case.

Vernell Cooks, the appellant’s wif e, testified that she and the appellant had bee n marrie d for nineteen y ear s but were separ ated at the time of t he crimes in question. On the af ternoon of Ma

rch 12, 2003, the appe llant came to Ms. Cooks’ house a nd asked he r for m o n ey

. T h e appellant had a Wis hmaster DVD with him, and the DVD was not w rappe d in pla stic. Ms. Cooks g ave the appellant five dollars. A fter t h e appellant’s alter cation with Daw da Jallow, Ms. C ooks learne d that the

app e lla nt h a d b e e n s ta

bb e d in his le ft

arm . Sh e sa id tha t sh e wo uldno t li e fo r the app e lla nt.

Th e Sta te c a lle d Ser g e a nt K. Parrish of the Me mph is Po lic e De pa rt me nt a s a

re bu tta l w itn e ss. Serg eant Par

rish testified that on the nig ht of Marc h 12, he re ad the appellant his rig hts and had the-4-

appellant r ead a

waiver of rig hts form. The a

ppellant told Serg eant Par rish that he was not guilty

and did not want to give a stateme nt. Serg eant Parrish did not take any money off the a ppellant’s per son.

Patricia Ha

rt testified that she supervised inmate acc ounting at the sheriff ’s depa rtment and

was res pons ibl e fo r i nmate pr op e rt y . Wh e n th e app e lla nt w a s a rr e ste d, a watc h, wa lle t, b e lt, sung l as s es , and cap wer e on his person. N o money was in the a

ppellant’s wa llet. Although the appellant had been char g ed with a g g ravated assault and two counts of misdemeanor the ft, the jury

c on vic te d h im o f the le sse r i nc lud e d o ff e ns e of a ssa ult a ndon e c ou nt o f the ft

.
II. Ana lys is

T h e ap p e l l a n tc l a i m 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 tt o s u p p o r tt h e c o n v i c t i o n s

. S p e c i f i c a l l y, he c on te nd s th a t th e Sta te ’s wi tne sse s g a ve c on fl ic tin g te sti mon y a ndthat “ [n]o w itn e sse s a c tua lly saw Mr. Cooks concea l either DVD i n an effort to st eal them.” The a ppellant also cla ims that the State failed to prove that the DVDs wer e the Ex x on’s property beca use the Wishmaster DVD w as not shrink-wra

pped, had no ba

rcode
, and had no price tag on it and beca use the sec ond DVD ha d a pr ic e ta g that wa s no t un iqu e to the Exxon sto re

. Th e Sta te c la ims that the e vid e nce i s s uff ici e nt. We ag ree with the State.
When an appe llant challeng es the suff iciency of the c onvicting e vi d ence , the standar d for revie w is “whe ther, a fter viewi ng the evidenc e in the lig ht most favorable to the prosec ution, 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 do ub t.” Jac ks on v. Vi rg ini a , 443 U. S. 307 , 319 , 99 S. Ct. 27 81 , 278 9 (19 79 ); se e Te nn . R. Ap p. P. 13 (e ). On app e a l, the Sta te is en tit le d to the str on g e st l e g iti ma te vie w o f the e vid e nc e a nda ll

rea sonable or le g itimate infere nces w hich may be dra wn there from. State v. Cabbag e, 571 S.W.2d 832, 835 (Tenn. 1978) . Questions conce rning the cr edibilityof witnesses and the weight and value to be af forde d the evidenc e, as w ell as all fac tual issues raised by the evidenc e, ar e re solved by the j u ry as t ri er o f fa ct

. S t at e v

. Bl an d
, 9 5 8 S

. W

. 2 d 6 5 1
, 6 5 9 (T en n

. 1 9 9 7 ). T h i s co u rt wi l l n o tre we i gh

o r r e e v a lu a te th e e v id e n c e

. I d

. B e c a u s e a ju r y c o n v ic ti o n r e mo v e s th e p r e s u mp ti o n o f innocenc e with which a de fenda nt is ini tially cloake d at trial and r eplac es it on appeal with one of g uilt, a

c on vic te d d e fe nd a nt h a s th e bu rd e n of de mon str a tin g to thi s c ou rt that th e e vid e nc e is i ns uf fi c ie nt. State v. Tug g le, 639 S.W .2d 913, 914 (Tenn. 1982). Moreove r, we note that a g uiltyverdic t can be based upon dire ct evidenc e, cir cumstantial evidenc e, or a combination of dire ct and c ircumstantial evidenc e. See State v. Pende rg rass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).

I n order to c onvict the appe llant of assault, the State wa s require d to show that the appe llant intentionally , knowing ly , or re cklessly cause d bodily injury to another. See Tenn. Code Ann. § 39- 13-101(a )(1) . Theft of

property occur s when “ [a] person . . . with intent to deprive the owner of property

. . . knowing ly

obtains or exercises c ontrol over the pr operty without the owner’ s eff

ective consent. See Tenn. Code Ann. § 39- 14-103.
Despite the a

ppellant’s cla im that no one s aw h i m t ake the DVDs, Da wda Jallow testified that he saw the appe llant put DVDs in his pants. During J allow’s alter cation with the appe llant, one-5-

of the DV Ds fell out of the a ppellant’s pants. T h e p o l i ce fo und the Wishm aster D VD still in t he appellant’ s waistband. Althoug h a photog raph of the DVDs shows that the W ishmaster DVD was
no t sh ri nk -w ra

pp e d a nd did no t ha ve a pr ic e ta g on it, Jall ow a ndTr a lon da Mo or e te sti fi e d th a t bo th of the DV Ds belong ed to the Exx on store. Taken in the lig ht most fa v o ra b l e t o t he State, the evidenc e is sufficie nt to support the appellant’s c onviction for thef t. Moreover , J allow testified that when he confr onted the appe llant, the appellant pulled out a knife, swung the kni fe at him, and cut

one o f h i s fing ers. Thus, the e vidence is also sufficient to support the a ppellant’s convic tion for

a ssa ult

.
III. Conclusi on

B a se d u po n th e re c or d a ndthe pa rt ie s’ br ie fs , w e a ff

ir m th e jud g me nts of

the tr ia l c ou rt

.

___________________________________ NORMA McGEEOGLE, J UDGE