# FILED
March 09, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JANUA RY 1999 SESSION

STATE OF TENN ESSEE, ) ) NO. 02C01-9806-CC-00189 Appellee, ) ) DYER COUNTY VS. ) ) HON. LEE MOORE, FRANCESCA TURNER and ) JUDGE CHARLES EDWARD TA YLOR, )

) Appellants. ) (Aggravate d Robbery)

FOR APPELLA

NT TURNER : WILLIAM K. R

ANDOLPH P. O. Box 611 Dyersburg, TN 38025-0611 (Tri al On ly) MARCUS REA

VES 313 East Lafayette, Ste. 313 P. O. Box 2062 Jackson, TN 38302-2062 (Appe al On ly) RAMS DALE O’D E NE AL 118 Baltimore Street Jackson, TN 38301 (Appe al On ly) FOR APPELLA

NT TAYLOR : G. STEPHEN DA

VIS District Public Defender H. TOD TAYLOR Assistant District P ublic Defender 208 North Mill Avenue P. O. Box 742 Dyersburg, TN 38025-07 42
OPINION FILED:

AFFIRMED

JOE G. RILEY, JUDGE FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter PET ER M . CO UGH LAN Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 C. PHILLIP BIVENS District Attorney General P. O. Drawer E Dyersburg, TN 38025-20 051 Turner’s brief is not in compliancewith T enn. R. App. P. 27 in that it contains no

statement of the issues or statement of the case. There are also i n adequate citations to the reco rd. Under the “Relie f Sought” sectio

n of the original

brief, she petitio

ns this Court t

o reverse the trial court’s denial of the motion to suppress evidence and the motion for severance of defendants.

There is no reference to the record nor any citation of authority. I n Turner’s supplemental brief, the identical statement is made with an argument in support of the motion to sever defendants. This argument doesnot contain appropriate references to the record. We consider these issues waived. Tenn. Crim. App. Rule 10(b). As to the motion t o seve r, we further reject Turner’s argument that a severance was necessar yto promote a fair determina tion of her guilt o

r innocence. Whe

ther to grant a severance of defendants is l

eft to the sound discretion of the trial court and will not be disturbedunless the defendant is unfairly or unduly pre judiced. Statev. Maddox , 957 S.W.2d 547, 556 (Tenn. Crim. App. 1997). We see no reason to disturb the trial court’s ruling. 2 O P I N I O N Defendants, Francesca Turner (herein after “Turner”) and C h arles Edward Taylor (hereinafter “Taylor”) , appeal as of right their conviction by

a Dyer County

jury of the offense of aggravated robbery

. Turner received a sentence of eight years as a Range I standard offender, and Taylor received

a sentence of fifteen years as a Range II multiple offender. On appeal, both de fendants raise the following issues:
(1) whether the trial cour t erred in refusing to allow counsel for bo th defenda nts to confer d uring voir dire ; (2) whether the trial c ourt improperly limited th e defendants’ cross-examination of state witnesses; and (3) whether the evidence i s sufficient to support the guilty verdic

t.

In addition, Turner contends the tr ial court erred in ref using to give an alibi jury instruction. 1 Taylor also raises three additional issues:

(1) whether the trial court err ed in determining the admissibility of his pr

ior convictions if he t

estified; (2) whether a proper chain of custody was established for the admission of a cap into ev idence; and (3) whether an enhancement factor was p ro perly applied to him.2 According to the proof, Vandy Taylor and de fendant, Charles Edward Taylor, are not related. 3 After a careful review of the r ecord, we find no error

warrantingrelief; therefore, the judgment of the trial court is AFFIRMED.

FACTS

On January 10, 1997, Turn erand Taylor drove to the residence of Vandy Taylor (hereinafter “ Van dy”) in Turner’s w hite car and picked him up. 2 They discussed robbing a Kroger employee when the employee was to make th e night deposit. Turner had formerly been employed at Kroger. Theyproceeded to a locatio n near the bank nigh t deposit ory. Turner was to pickup Vandy and Taylor after the robbery. Taylor g ave Vandy a pistol, and Tay lor also had a pistol. Taylor and Vandy went around opposite sides of the building. At approximately 9:25 p.m., as the Kroger employ ee was about

to make the deposit, Vandy confronted her

with the pistol and took the money.Taylor stood behind the victim. Dyersburg Police Officer Ricky Ti dwell was on patrol in the vicinity of the robbery when he obse rved Vandy come from the side of the bank, go to the victim’s
car and then run back around the bank. At this time the Kroger employee flashed her lights. Ti dwell chas ed and eve ntually ca ptured V andy. Tidwell also saw another subject dressed in black wearing a toboggan. Prior to capturing Vandy, Tidwell observed Vandy run by a small w hite car lat er ide ntified as Turner’s. Upon his capture, Vandy advised the officer tha t Turner was the driver of the car. Tidwell also recovered the pist ol dropped by Vandy duri ng the chase. Officer Jim Gray responded immedi ately to the robbery dispatch which advised of a subject “dressed in dark clothes.” He observed Taylor, dressed in dark clothing, walking

on the street near

the bank. Taylor was taken into custody, and
a pistol and tobo ggan were recov ered near the location whe re Gray observed Taylor.4 Turner observed the officer chasing Vandy and left the scene in her car. A short while late r Turner, accompa nied by Vin cent Tayl or (Vandy’ s broth er), drove backto the robbery scene and w as apprehended. Upon being stopped, she asked VincentTaylor to tell the police that they had been together all day. Vi ncent Taylor declined to do so. Turner testified at trial that she had been to the “basketball house” in which college basketball players r esided. She left the house anddrove through the all ey whe re she observed an officer chasing Vandy. She stated that she l eft the area, picked up Vincent Taylor at a local n ightclub a nd drove bac k near the cr

ime scene where she was apprehended. She denie d any involv ement in the robbery. Taylor did not testify at trial. His counsel contended the gun and toboggan found did not belong to him, and he w as not involved in the

robbery.

VOIR DIRE

Turner and Taylor contend the trial court erred in prohibiting the defendants from conferring in the

exercise of their peremptor y challenges. The state concedes this to be error, but arg ues it was harmless. It is error not to allow

consultation amo ng defendants as to the exerci se of peremptory challenges. State v, Simon , 635 S.W.2d 498 , 508 (Tenn. 1982). However, the error

may be harmless. Id. Simon examined several factors in deter mining harmless error,including (1) whether there were duplicat

e challenges; (2) wh ether all peremptory chal lenges
were exhausted; (3) whether any impaneled juror w as legally disq ualified or incompetentto serve; and (4) w hether the final panel was biased or prejudiced. Id. at 508-11. Our review of this record indicates th a t there we re no duplicate challenges; neither defendant exhausted all available peremptory challen ges; no juror w as legally disq ualified or incompetent to serv e; and there is no evidence of b ias or prejudice of the panel, as final ly constituted. The erro r was, therefore, harmless. Tenn. R. App. P. 36(b)

.5 This issue is without merit.

IMPEACHMENT

OF STATE WITN ESSES

Both defe ndants contend they were improperly limited in their crossexamination of Vandy as to his plea agr eement. Prior to trial, V andy ente red a guilty plea to aggravated robbery and received an agreed mit igated offender sentence of 7.2 years at 20%. He conceded t his in his testimony; however, defendants complain the trial court improperly prohibited them from asking Vandy about his parole date, his calculation of 20% of 7.2 years, the amo unt of his bond, and whether his jail r

eport date was postponed until after trial. We agree with the defendants’ contention that a state witness may be crossexamined regarding any promises o f leni ency or any other favo rable treatment offered to the witness. See State v. Spurlock , 874 S.W.2d 602, 617 (Tenn. Crim. App. 1993). However, we find no reversibl e error. Vandy testified his sentence was 7.2 years at 20%.The jury was capable of calculating parole eligibilit y. Althoug h counse l should h ave been allowed to ask the witness whether there was leniency w ith respect to the bond and report date, this error was unquesti onably harmless. Tenn. R. A pp. P. 36(b). Defendants also complain of the trial court’s refusal to allow questioning as to prior juvenile bad ac ts of witnesses Vandy

Taylor, Jimmy Taylor and Vincent Taylor. Since neither defendant makes an appr opriate r eference to the record where the alleged error occu rred, the issue is w aived. See

Tenn. R. App. P. 27(a)(7)and (g); Te nn. Cri m. App. Rule 10(b); State v. Schaller , 975 S.W.2d 313, 318 (Tenn. Crim. App. 1997). Nevertheless, we have examined the testimony of the three cha llenged witnesses w ith regard to this is

sue. We agree with defendants ’ argumentthat evidence of a juvenile’s prior bad acts is admissible if the conduct relates to truthfulness or untruthfulness and is necessary for a fair determination in the criminal proceeding. See Tenn. R. Evid. 608( b), (c). However, each witness
was impeached with one or more pr ior convictions

or adjudications of guilt . If there6

was any error with regard to the admission of prior j uvenil e bad acts, it was harmless. Tenn. R. App. P. 36(b).

SUFFICIENCY OF THE EVIDENCE

Turner and Ta yl or contend the evidence was insufficient to support their conviction of aggravated ro bb ery. In determining the sufficiency of the evidence, this Court does not reweigh or reev aluate the evidence. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). A jury verdict approved

by the trial judge accre

dits the state's witnesses

and resolves all confli cts in favor of the state. State v. Bigbee , 885 S.W.2d 797, 803 (Tenn. 1994); State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992). On appeal, the state is e ntitled to the strongest l egitimate view of the evidence and all legitimate or r easonab le infer ences whic h may be dr awn therefrom. Id. This Court will not disturb a verdict of guilt due to the sufficiency of the evidence unless the defendant demonst rates that the facts contained in the record and the in ference s which may b e drawn there from are insufficient, as a matter of law, for a rational tri er of fact to find the accused g ui lty beyond a reasonable doubt. State v. Brewer , 932 S. W.2d 1, 19 (Tenn. Crim. App. 1996). Accordingly, it i s the appellate court's duty to affirm the conviction if the ev idence, viewe d under these standards, was sufficient for any rational tr ier of fact to hav e found the essential elements of the offense beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia , 443 U.S. 307, 317, 99 S.Ct. 2781,2789, 61 L. Ed.2d 560 (1979); State v. Cazes , 875 S.W.2d 253, 25 9 (Tenn. 1994). In Tenn es see, a conviction may n ot be based solely upon the unc orroborated t estimony

of an accomplice. State v. Bigbee , 885 S.W .2d at 803 (citin g Monts v

. State , 214 Tenn. 171, 379 S.W.2d 34, 43 (1964)); State v. Allen , 976 S.W.2d 661, 666 (Tenn. Crim. App. 1997). In the case at bar, the trial court charged the jury that Vandy Taylor was an accomplice whose testimony must be corroborated.
Viewing the evidence in a l ight most favorable to the state, the evidence7

showed that Turner, Taylor, and Vandy participated in the planning of the ro bbery. All k new the robbery w as to be accomplished with the use of a deadly weapon

. T urner d rove Vandy and Taylor to the scene and was to pic k them up after the robbery. The aggravated robbery was accomplished, and Taylor w as obs erved
near the scene. A pistol and toboggan were found where Taylo r was observed and, byTurner’s own admission, she was near the scene of the crime at the time of the aggravated robbery

. Van dy was an accomplice to the crime, and his testimony r equires corroboration. His testimony was corroborated by state w itnesses as well as Turner’s admission of being near the scene of the crime. This was a classic case for the jury. The jury’s

determination was dependent upon the credibility of the w itnesses and p roper in ferences to be drawn from the evidenc e. The jury adopted Vandy Tay lor’s explanation of Turner ’s involvement and rejected Turner’s testi mony. Thi s was the jury’s prerogative. The jur

y further concluded, based upon all the evidence, that Taylor w as also involved i n the robbery. Again, this was the jury’s prerog ative. The evidence sufficie ntly supports the verdict. This issue is without merit.

ALIBI JURY

INSTRUCTION

Turner contends she played no rol e in t he planning or commission of the crime, and her

presence in

the vicin ity of the cr

ime was totally unrel ated to criminal activity. She contends thetrial court erred in failing to give an alibi jury instr

uction. An alibi defense is based upon “evidence which, if believed, would establish that the defendant was not present at the scene of the alleged crime. ” T.P.I. - CRIM. 42.13 (4th ed. 1995). Since Turner admitted her pres ence near the scene of the crime, an alibi jury instruction would have been inappropriate. This issue is without merit.8 TAYLOR’S PR IOR CONVICTION
Taylor contends the trial court erred in ruling that his prior felony c onviction forpossession of contraband in a penal institution would beadmissible in the event he testified. See

Tenn. Code Ann. § 39-16-201. Thedefendant eventually elected not to testify and made no offer of proof. The defendant’s failu re to make an offer of proof as to his proposed tr ial testimony

p recludes effective appellate review

. See State v. Baxter , 938 S.W.2d 697, 703 (Tenn. Crim. App. 1996). Furthermore, we conclude the trial court did not
err in findin g that the probative value of this felony conviction outweighed its unfair prejudicial effect. Tenn. R. Evid. 609(a); see a lso ge nerally State v. Mixon , ___ S.W.2d ___ (Tenn. 1999). This issue is without merit.

CHAIN OF CUSTODY
Taylor contends the trial court erred in admitting a cap into evidence, as the chain of custody was not p roperly established. We respectfully disagree. On the night of Turner’s arres t, Officer Porter performed an inventory search of her car. Although he noticed a black leather

ball cap in the back seat, he did not think it was si gnificant at

the time and did not seize it. U pon learning of its possible significance, Porter

subsequently requested the cap. Turner’s brother retrieved the cap from a closet and delivered it to Porter. There was further trial testimony indicating that the cap bel onged to Taylor. As a condition precedent to the introduction of tangible evidence, a witness must be abl e to id entify th e evidenc e or estab lish an un broken ch ain of cu stody. State v. Baldwin , 867 S.W.2d 358, 36 1 (Tenn. Crim. App. 1993)(citation omitted). While the state is not required to establish facts which exclude every pos sibility of tampering, the circ umstances estab lished must reasonably as sure the identity of the evidence and its integrity. Id. This issue addresses its elf to the sound discretion of3 Ord ina ril y, this enhancement factor may not be used for agg ravated r o bbery. See State v. Claybrooks , 910 S.W.2d 868, 872 (Tenn. Crim. App. 1994). However, it may be applied whereindividuals other th an the victim are i

n the area and su

bject to injury. See State v. Sims , 909 S.W.2d 46, 50 (Tenn. Crim. App. 1995). The evidence shows that there was another Kroger employee in the car with the victim of the ag gravated robbery. 9 the trial court, and the cour t’s determination wil l not be disturbed in the absence of a clearly mistaken ex

ercise of such discretion. Id. The trial court did not abuse its discretion i n admitting this item into evidence. Taylor’s objection goes to the w eight given this e

vidence as opposed to its admissibility. This issue is without meri t.

SENTENCING
Finally, Taylor contends the trial court err oneously enhanced his sentence byfinding the crime was committed under circumstances creating great potential for bodily injury. See

Tenn. Code Ann. § 40-35-114(16). 3 Specifically, Taylor contends he cannot be assigned an enhancement factor not attributable to the actua l perpetrator, Vandy, who was sentenced as an especially mitig ated offender. Taylor contends it wasonly Vandy’s actions that caused the potential for bodil y injury to be great. We respectfully disagree. The sentence received by Vandy Taylor pursuant to a plea

agreement is not relevant to the application of

enhancement factors relating to Taylor. Furthermore, the evidence indicated that Taylor was in possessi o n of a pistol near the car occupied by

two Kroger employ

ees at the time of the actual agg ravated robbery by Vandy. This issue has no merit.

CONCLUSION

After a careful review of the r ecord, we find no reversible error. Acc ordingly, the judgment of the trial court is affirmed.10 ___________ ________________

_ _ JOE G. RILEY, JUDGE

CONCUR:

______________________________ DAVID G. HA

YES, JUDGE

______________________________ JOHN EVERETT WILLIA MS, JUDGE