### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs

April 11, 2001
STATE OF TENNESSEE v. TIMMY HER NDON
Direct Appeal from the Criminal Court for Shelby County No. 98-06543 James C. Beasley, Jr., Judge

No. W2000-01228-CCA-MR3-CD - Filed July 20, 2001

The defendant was convictedof aggravated robbery, a Class B felony. Tenn. Code Ann. § 39-13- 402. The defendant was sentenced to a fifteen-ye ar sentence at the Tennessee Depa rtment o f Correction as a Range II offender . The defendant challenges the suffi ciency of t

he evidence to support his conviction. After a thorough review of the record, we conclud e that the evidence presented at the defendant’s trialwas sufficient to support his conviction. The judgment of the trial court is affirmed. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

J OHN E VERETT W ILLI AMS , J., delivered the opinion of the court, in which J OE G. R ILEY and R OBERT W. W EDEMEYER , JJ., joined.

A C Wharton, Jr., District Public Defender, and Garland Ergüden, Assistant Public Defender, for the appellant, Timmy Herndon.

Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney

General; William L. Gibbons, District Attorney General; and Jennifer Nichols, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

On May 26, 1998,

a Shelby Coun

ty Grand Jury

returned a one c

ount indictment ag

ainst the defendant,

Timmy Herndon, for aggravated

robbery. T

he defendant wa

s tried by a Sh

elby County jury for the indicted offense and fou nd gu ilt y on September 16, 1999. On February 17, 2000, the defendant was sentenced

to a fifteen-y

ear sentence in

the Tennessee D

epartment of Corr

ection as a Range II offender. On

May 23, 2000, the defendant filed a notice of appeal. This appeal followed.-2- Facts

As w e are asked by the defendant to review the suffic iency of the evidence, we restate the testimonyin a light most favo rable to the State . In January 1998, the victim i

n the instant case workedfor a

charter bus service in Houston, Texas. On January 21, 1998, the victim drove a group of people to Memphis f

rom Houston. After

the group chec

ked into their

motel rooms in

Memphis, the victim drove the g

roup to a local church. After dropping the group off at the church, the driver drove back to the motel where he was staying. On his way back to the motel, the victim saw Terri Murrell standing on a street corner working as a prostitute. The victim stopped his bus, picked up Murrell, and took her back to his room where the two con su mmated their illegal business transaction. The victim then took Murrell back to the area where he picked her up.

Later the same evening, the

victim was standing outside his bus in a restaurant parking lot waiting for the group of

people in his chartered group to finish eating dinner. While out side waiti ng, the victim was approached by Murrell, who was driving a vehicle owned by the defendant. The two made arrangements to meet back at the victim’s mote

l room after the vi

ctim dropped his passengers off at their motel.

Murrell arrived at the victim’s motel r

oom at approximately

10:30 p.m. While Murr

ell went up to the victim’s ro om, the def endant and Murrell’s boyfriend, Antonio Williams, waited in the defendant’s car in the motel pa rking lot. After being let into the room by the victim, Murrell left the
roomtelling the victim that she was goingto get some sodas and ice. While outside, Murrell went to the car where the defendant and W illiams waited and had a b rief conversat

ion with Williams. Murrell t hen r eturned to the victim’s motel room and told the victim that the ice machine was broken. Shortly

after Murrell returned to the motel room, the victim went into the bathroom and prepared to take a shower i

n preparation for the upcoming sexual activities with Murrell. While the victim was in the bathroom, Murrell took her clothes off. Meanwhile, in the motel parking lot, the defendant and Williams continued to wait for Murrell to return . While waiting for Murrell, Williams got out of the car

to go up to the victim’s room, telling the defendant that “he was going to see what the man had, [and] that he was going to steal something from him.” Williams “asked” the defendant to accompany

him up to the room. Whe n the two got to the

motel room, Murrel

l opened the door and let them into the

room.
As the defendant and Williams entered the room, the vi ctim came out of the bathroom. Williams pointed a gun at the victim and demanded that he go back into the bathroom. While the victim was in the bathroom, the defendant, Murre ll , and Williams stole the victim’s luggage, clothing, wallet, watch, pager, and shoes. The three then fled from the

motel room in

the defendant’s car. The victim reported the crime immediately after the def endant, Murrell, and Williams fled.

The following evening two Memphis police officers saw the defendant and a woman sitting in the defendant’s

parked car outs

ide of a Memphis nig

htclub. The offic

ers stopp ed their car, got-3-

out, and approached the defendant’s car. While at the defendant’s car, t he officers asked the defendant and the woman for identification. Thedefendant reached into his pocket and pulled out two pieces of identif

ication and gav

e them to the police officer. One of the pieces of identification
was a state identification card and the other was a bank card with t he victim’s name

on it. When the officer ran the names on the two pieces of identification, the officer was informed that the bank card withthe victim’s name on it had been stolen in a robbery the night before. Th e def endant, the
woman in the vehicle with the defendant, a

nd a th ird wom an, who came out to the car while the police were running the

defendant’s identification, were all arrested. Th

e two women arre

sted with the defendant we

re the defenda

nt’s girlfriend

and Terri Murre

ll.

The two women were later released, whi l e the defendant was held in police custody. The defendant was read his Mira

nda rights, but de

cided to waive his

rights an d talk to the detectives assigned to the case. After the defen dant signed a rig

hts waiver, detectives proceeded to question the defendant. The defendant confessed to being involved

in the robbery and signed a confession. The defendant also told police who his accomp lices were and took them to where Williams and Murrell were living. Williams and Murrell were subsequently arr este d. Police searched the dwelling Williams and Murrell shar ed and recover

ed most of the items

stolen from the victim. The defendant, Williams, and Murre

ll were all positive

ly identifie

d in a photo lineup by

the victim.

On September 14, 1999, the defendant’s trial began for aggrav ated robbery. The trial concluded

on September 16, 1999, and the defendant was convicted by a juryof his peers. A fifteenyear sentence was imposed on the defendant on Febr uary 17, 2000. Analysis

The defendant contends that the evidence introduced at trial was insufficient to support his conviction for aggravated robbery . We disagree.

A. Standard of Review

When an accused ch alleng es the sufficiency of the evidence, this court must review the record to determine if the evidence add uced during t he trial was sufficient "to support the findin gs by the trier of fact of guilt beyon d a re asonable doubt."

Tenn. R. App. P. 13(e ). This rule is applicable

to find ings of gu ilt predicated upon direct evidence, circumstantial evidence, or a combination of direct and circumstantial evidence. State v. Brewer , 932 S.W.2d 1,18 (Ten n. Crim. App.1996).

In determining the suff

iciency of the evidence, this court does not reweigh nor reevaluate the evidence. State v. Ca bbage , 571 S.W.2d 832, 835 (Tenn.1978). Nor may this court substitute its inferences for those drawn by the trier of fact from circumstantial evidence. Liakas v. State , 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956) . To the contrary, this court is required to afford the Statethe strongest legitimate viewof the evidence contained in the record as well as all reaso

nable1 During the robbery, the defendant, Murrell, and Williams stole the vict im’s luggage, clothing,

wallet, watch, pager, and shoes. The victim’s bank card was recove red from the defendan t at the time of the d efendant’s arr est, and
m ost of the other property was recovered after Murrell and Williams were arrested and the room they share d wa s searched.
-4- and legitimate inferences which may be drawn from the evidence. State v. Tuttle , 914 S.W.2d 926, 932 (Tenn. Crim. App.1995).

The trier of fact, no

t this court, resolves questions concerning the credibility

of the witnesses, the weight and value to be given the evidence, as well as all fact u al issues raised by the evidence. Id. In State v. Grace , the Tennessee Supreme Court stated, "[a] guilty verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses for the State and resolves all conf

licts in favor of the theory of the State." 493 S.W.2d 474, 476 (Tenn. 1973).

Because a verdict of guilt removes the presum ption of innocence and replaces it with a presumption of guilt, th

e ac cused has the bur

den in this court of

illustrating why

the evidence is insufficient

to support the verdict returned by the trier of fact. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982); Grace , 493 S.W.2d at 476.

B. Analysis

Prior to entering into our

analysis, we turn our attention to the sections of the Tennessee Code dealing with aggravated robbery. The Te nnessee Code Annotated sets fo rth that the eleme

nts of both sections 39-13-401 and 39-13-402 must be met for a conviction of aggra vated ro bbery to stand. Tennessee Code Annotated sections 39-13-401 and 402 define aggravated robbery as “the intentional
or knowing theft of property from the person of another by violence or

putting the perso

n in fear” and when “[a]ccomplished with a deadly weapon.” Using the above definition of aggravated robbery as a

springboard

into our analysis, we turn
our attention to the evidence presented at trial which clearly established that there was a taking without the “effective consent” of the owner and, as such, a theft of property belonging to the victim occurred. 1 However, this is on ly one of the elements necessary to prove that an aggravated robbery occurred. The second fact that must be established is that the theft occurred “by violence or putting the person in fear.” During the trial, the victim testified that when the defendant and Will iams came into the motel room and Williams pointed a gun at him, he believed that Williams was going to shoot him and that he “was d

ead.” The extrem

e f ear that the victim testified to was corroborated by testimonygiven by the defendant. At trial, the defendant testified that he saw tears in the victim’s eyes before Williams

ordered the victim to go into the bathroom while continuing to point the gun at him. Evidence was

sufficient to esta

blish th at the theft occurred while the victim was in fear. Fin all y, testimony fr

om the victim, Murrell, and the d efendant establ

ished that a

gun was used during the crime. Based upon the testimony of the witnesses at trial, there was sufficient evidence for the jury to conclude that an aggravated robbe ry did occur.-5-

We address the defendant’s contention that, because he possessed no weapon, he could not be convicted of ag

gravated robb

ery. I n Tennessee, it is w

ell settle d tha t a person can be found criminally

responsible for an offense committed by another

if that person aid

ed or attempted to

aid in the commission of the offense while “[a]cting with intent to promote or assist in the commission of the offense, or to benefit in the proceeds or results of the of f ense.” Tenn. Code. Ann. § 39-11- 402(2). This cour

t has made it clear

that a culpable me

ntal state less tha

n intent will not suff

ice if
a conviction is

to be sustained under criminal responsibility. State v. Maxey , 898 S.W.2d 756, 757 (Tenn. Crim. App. 1994). Turning our attention bac

k to the facts of the instant case, the defendant testified that he knew that Williams was going to the victim’s motel room to see what he could “s teal” fro m the victim. The defendant also to

ld police in his initia

l statement after

being arreste

d that “Tony

asked me to
come up with him” and that after they got to the room “Tony asked me to get [the victim’s] bag.” Defendant

admitted at trial th

at he saw Williams pul

l a handgun and order

Booker into the ba

throom. Defendant

further admitted

at trial that he thereafter

picked up Booker’s bag and fled. The evidence justified the jury finding the defendant guilty of criminal responsibility for aggravated robber y.
Prior to ending our ana

lysis, we pa

use to briefly

address the defendant’s contention that he committed the aggravated robbery while under duress. The defendant testified at trial that he was forced to aid in the commissi

on of the crime be

cause Willi am s made threats ag ainst him and his mother. The defendant also testified that Williams commanded him to get out of the car and go up to the v ictim’s motel room, and he claimed that he was “under [the] commanding authority” of Williams w hile co mmitting the crime. As set forth above, the defendant told police officers that Williams asked him to go up to the victim’s room with him and asked him to get the victim’s bag. In the defen

dant’s signed c

onfession to

officers at the Memphis Police Department, the defendant made no mention of threats to either him or his mother or that he was under Williams’ commanding voice at the time of the crime. The weight and credibility of these two conflicting pieces of evidence
are for the jury

to decide. Obviously, the jury chose to disbeliev

e the defendant

’s defense of du

ress and to accredit the defendant’s confession to police officers. This was the jury ’s prerogative.

CONCLUSION

The judgment of the trial court is affirmed.

___________________________________ JOHN EVERETT WILLIAMS, JUDGE