### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs Jul y 1, 200 8

STA TE OF TEN NES SEE v. CO RD AR O HU GHES

Direc t Appeal from the Cr iminal Cou rt f or Shelby Coun ty No. 05-01013 Chris Cr aft, Judge

No. W2007-00955-C CA-R 3-CD - Filed Augu st 21, 2008

Th e de fe nd a nt, Cor da

ro Hu gh e s, wa s c on vic te d b y a She lby Cou nty Cr imi na l Co urt j ury o f f ir st deg re e fe lon y mu rd e r; e sp e c ia lly a gg ra vate d r ob be ry , a Cla ss Afe lon y; anda tte mpt e d e sp e c ia lly aggra vated r obbery, a

Class B felony. He wa s sent en ce d t o life imprisonment for the f irst degre e murder c onviction, fifteen ye ars at 100% for the especially aggra vated robbery c onviction, and eight year s at 30% for

the attempted r obbery c onviction, with the trial court orde ring that the sentenc es be ser ved conc urre ntly, for an e ffe ctive sente nce of life imprisonment. The def endant r aises four iss ue s o n a

pp e a l: (1 ) wh e the r thi s c ou rt sh ou ld w a ive his un tim e ly n oti c e of app e a l in the int e re sts of justice; (2) whether the t rial court err ed in denying hi s motion to suppress his statements t o police; (3) whe ther the e vidence was suff icient to sustain his convictions; and (4) whet h er the trial court

err ed in gra nting the S t at e’ s motion i n limine to suppress evidence that he initially denied any involvement in the crimes. Following our revie w, we a ffirm the judgments of the trial court.
Tenn. R. App . P. 3 Appeal as of Right; Judgments of the Cr iminal Cou rt A ffirm ed

A LA N E. G LE NN , J., delivere d the opi nion of the court, in which J OHN E VERET T W I L L I AMS a ndJ. C. M C L IN , JJ., joined.

Robert Jon es , S h el b y C o u n t y P u b l i c D ef en d er ; P h y l l i s Al u k o , As s i s t an tP u b l i c De fender (on a ppeal) ;
a ndW ill ia m Ro bil io andSa nje e v M e mul a , A ssi stant P ub lic De fe nd e rs (at tria l) , f or the app e lla nt, Cor da ro Hu gh e s.
Robert E. Cooper, Jr ., Attorney Ge ner al and R eporte r; Cameron L. H yder, A ssistant Attorney Ge ne ra l; W ill ia m L . G ibb on s, Distric t A tto rn e y G e ne ra l; a ndGr e g G ilb e rt a ndMic he lle Park s, Assistant District Attorneys Gene ral, for the appe llee, State of Te nnessee

.

OP IN ION

FA CT SI n t he t ape- r ecor di ng of t he i nt er vi ew , t he def endan t i dent i f i ed hi s f am i l y m em bers pre s ent as A ng el a Par ker 1
and M ar gare t Crocket t , hi s aunt

. Ser geant M er r i t t i dent i f i ed t he Y ou t h V i l l ages st af f m em ber pres ent at t he i nt er vi ew as A u st i n O ’ D el l
, a co u n sel o r.

-2- This case arises out of the defe ndant’s participation in an armed robbe ry that re sulted in the de a th o f o ne vic tim

a ndthe inj ury o f a

se c on d. OnMa y 1 4, 20 04 , th e de fendan t w e nt w ith Starbrough Jones a nd C an t re ll Taylor to a tire shop in Memphis, wher e they r obbed and shot two

e mpl oy e e s, Ric ard o G ue va ra a ndAn tho ny W oo df

or k. Th e de fe nd a nt a ndJo ne s w e re su bs e qu e ntl y indicted for the first degre e fe lony murder of Woodfor k, the espe cially aggr avate d ro b b ery of Gueva ra, and the attempted e specia lly aggravated robbe ry of W oodfork. Jone s’s ca se wa s later

sever ed fro m t h e def

endant’ s, and on Janua

ry 23, 2007, the de fendant proce eded to tria l on the char ges.

M ot ion to Suppr e ss

Prior to trial, the defe ndant filed a motion to suppress his statements to police on the gr ounds that they wer e involuntary. The sole witness at t he June 23, 2006, he aring on that motion was Sergea nt William D. Merritt, the Memphis Police Depa rtment homicide dete ctive who inter viewed the defendant. Sergea nt Merritt testified t hat he first met with the defe ndant, who wa s acc ompanied by his grandmother, D orothy Hunt, on June 8, 2 0 0 4
, at juvenile court. He said he advised the defe ndant of his rights and the de fenda nt signed the waive r of rights form, indi cating that he wished to waive his rights and make a stateme nt. In that statement, the de fendant said he had gone to the tire shop with the intent to commit a robbery but ha d been in the ve hicle whe n t h e ro b b er y and homicide occ urre d.
Sergea nt Merritt test i fi ed t hat he a gain interview ed the de fendant on June 16, 2004, afte r
rec eiving word that the de fenda nt wanted to spea k further with him

. T h e s ec o n d interview took place in a conf

ere nce r oom at Youth Vil lages Tr eatment Cente r, whe re the defe ndant was staying, and wa s attended by f

ive or six people, inc luding Se rg ea n t Merritt, the defenda nt, Sergea nt Helldorfe r of the Me mphis P olic e De partment, a staff me mber of Y outh Villages, a woma n who identified her self as the defe ndant’s lega l guardian, and the def endant’ s sister. He r ead the 1 de fe nd a nt h is rig hts , an d the de fe nd a nt o nc e a ga in s ign e d th e waive r o f righ ts f orm be fo re ini tia lly providing the same a ccount of the crimes he had in his earlier state ment. Howeve r, af ter he made him awar e of information he had obtaine d from other witnesses, the defe ndant change d his version of e ve nts , sta tin g tha t he ha d be e n ar me d with a we apo n an d ha d fir e d a sh ot that st ru c k th e Hi sp a nic victim.

On cross-e xamination, Sergea nt Me rritt testified that it wa s a member of th e d efendant’s family, possibly his grandmother, who telephone d to tell him t hat the def enda n t wanted to speak with him again about the case. He said he would not have gone t o Youth Villages otherw ise. He state d that the de fe nd a nt’ s gu ard ia n, a n a un t, me t him a t 20 1 Pop lar a nd fo llowed h im to Youth Vi lla ge s in he r ow n ve hic le

. He wa s a wa re that the de fe nd a nt wa s a juv e nil e a nd kn e w fr om the fi rs t interview that he had completed either the ninth or tenth grade in school. He wa s also awa re that the defe ndant had thre atene d suicide at some point while he w as at j u v en i le court. He said the staf f-3-

members at Youth Villages informed him that the de fendant had pre viously been on medication but was no longer

taking anything at the time of the interview.

Trial
Latoya Fleming, sister of Anthony Woodfor k, the decease d victim, testified t hat her brother was twe nty-six year s old and working at “ S & S Tires” at the time of his death.

Ricardo Gue vara , t es t i fying through an inter prete r, said that in May 2004 he was wor king for his brother, Salvidore Gueva ra, who owned the S & S Tire Shop located at 3135 Summer Ave nue in M e mph is. At abo ut 6:2 0 p.m. on Ma y 14, 20 04 , a curly- ha ir e d man dr e sse d in a sh ort- sle e ve d tsh irt, w ho m he la te r r e fe rr e d to a s Jo ne s, c a me by the sh op wi th the de fe nd a nt t o s e ll W oo df or k s ome tennis shoes. The men le ft afte r speaking with Woodfork but r eturne d later that day ac companied by a thi rdma n. Jo ne s h a nd e d th e shoes to Woo df or k, wh o w a s se a te d inthe drive r’ s se a t of his Honda automobile, and Gueva ra, who was seated in the passenger seat of the same vehicle, be gan to try them on. As he did so, the defe ndant approa ched and place d a gun to his temple through the open window. The defe ndant opene d the ca r door and Guevara exited the vehicle, arms raised over his he a d. Th e defe nd ant d e ma nd e d G ue va ra ’s mon e y a ndtoo k h is w a lle t, w hic h c on ta ine d h is documents and $60 in cash. The defenda nt then t ook two steps backw ards, shot Gueva ra in the side, and ra n off.

Gu e va ra te sti fi e d tha t Jone s, a lso arm e d w itha gu n, wa s st

ru gg lin g w ith W oo df

or k f or his money during the time that the defe ndant was r obbing Guevar a. He said that Woodfor k had plac ed his mon e y in his mouth an d tha t the str ug gle be tw e e n the tw o men be ga n w hil e W oo df or k w a s st ill in the v eh i cl e b ut continued outside the vehic le af ter W oodfork got out. He stated that approximate ly one minute before the def endant shot him, he hea

rd a gunshot as W oodfork wa s being shot.

Gueva

ra te stified that the bullet the defe ndant fired at him e ntere d his body on the right side

a ndtr a ve le d to the le ft

sid e , w he re it r e ma ine d lo dg e d. He sa id he sp e nt “ [o ]n e nig ht a nda day” in the hospital as a r esult of his injury. He made a positive courtr oom identification of the de fenda nt as the man w ho had shot him and agre ed that he ha d also positively identified him in a juvenile court proce eding held a f

ew months afte r the robbe ry.

On cr oss-exa mination, Guevar a testif ie d
, in c ontrast to his direct examination testim ony, that the de fe nd a nt w a s n ot p re se nt w he n J on e s f ir st ca me to the sh op to t a lk t o W oo df or k a bo ut the sh oe s. He a lso agree d that it was Jones, and not the de fendant, who had the shoes when the men re turned to the sh op la te r that day. He a c kn ow le dg e d that, in his origi na l state me nt, he tol d Se rg e a nt M e rritt that “[t]he y only took out my wallet, but they didn’t take anything.” He further acknow ledged that he ha d d e s c r i b e d t h e d e f

e n d a n ta s b e i n g ab o u tf

i v e f e e t , s e v e n i n c h e s t o f

i v e f e e t , n i n e i n c h e s in he igh t.
Memphis Poli ce O ffice r Da rre l Felton, the first office r to r espond to the scene , testified that h e ar rived at approximately 8:42 p.m. to find a male H ispanic victim sitti ng behind the stee ring-4-

whee l of a pickup truc k and an unr esponsive male A frican-Ame ri ca n victim lying on hi s left side in front of one of the ga

rage doors.

Me mph is Po lic e Of

fi c e r Ricky Da vis on , a ssi gn e d to the c ri me sc e ne inv e sti gatio n u nit
, identified photographs he took of the crime scene , including o n e t h at s h owed c ash lying on the ground outside the drive r’s door of Woodfor k’s Honda a

utomobile.
Memphis Poli ce O ffice r Jef fre y Burns, Sr. testified t hat on June 3, 2004, he and his partner

wer e co n d u ct i ng off- duty security at the Re d Oak Apa rtments in Memphis, where they had he ard gunshots all night. As t h ey wer e making their r ounds through the apa rtments, they hea

rd anothe r gu ns ho t a ndsa w a n A fric a n- Am e ri c a n mal e , who m his part ne r re c og niz e d as Starb ro ug h Jon e s, wi th something in his hand. Jones tucked the object in his waistband and fle d, running up some stairs and jumping off th e en d of a building. Off icer Burns and his partne r tac kled Jones whe n he hit the ground. In the pr ocess, a loaded blac k revolve r fe ll out the bottom of Jones’s pants leg.

Me mph is Pol ice Of

fi c e r J oh n H arp e r, wh o c oll e c te d th e we apo n in to e vid e nc e that ni gh t, identified the gun a nd the four live r ounds and one spe nt round that it contained.
Dr. Feng Li, the medic al exa miner who pe rformed the autops y o f A n th ony Woodfor

k’s body, testified that he de termined that the ma nner of death was multiple gunshot wounds. He said ther e
wer e thre e gunshot wounds to the victim’s body: one to the left side of the back that damaged the left kidney, the lowe r lobe of the left lung, the interior aspec t of the liver, and the middle lobe of the right lung; one to the right side of the ba ck that dama ged the lowe r lobe of the right lung, the right lobe of the liver

an d t h e head of the pa ncre as; and one to the right elbow. Dr. L i identified two bullets that he rec overe d from the victim’s bac k and stomach.
Sergea nt Paula Har

ris of the Memphis Police Depa rtment testified that she re trieved the two bullets from the morgue and tagged them into evidenc e on May 17, 2004. On June 9, 2004, she took tho se bu lle ts, a lon g w ith the fo ur liv e ro un ds , spe nt she ll, a nd ha nd gu n re c ov e re d in c on ne c tio n w ith Jones’s ar rest, to the Te nnessee Bureau of Investigation (“ TBI”) la

boratory f or testing.
TBI Special Age nt Robert Daniel Royse, an expert in firea rms identification, testified that he dete rmined that the bullet re cover ed fr om the vi ctim’s chest ha d been f ired fr om the gun, a sixshot .38 specia l Colt revolve r, but that the bullet rec overe d from the victim’s stomach ha d been f ired from a dif fer ent wea

pon.
TBI Special Age nt Qadriyyah Debna m, an expe rt in DNA a nalysis, testified that Sergea nt Merritt subm itted a pair of Nike Air Jordan tennis shoes and a saliva standard fr om Cantrell Taylor to the laboratory for a nalysis. Based on her analysis, she determined t hat t he DNA profile obtaine d from the right shoe matched the DNA pr ofile obtained f rom Taylor’ s saliva sample.
Sergea nt William Merritt testified that afte r deve loping the defe ndant as a suspect in the ca se, he pre pare d a photo line-up with his picture, wh i ch he showed to the surviving victim, Guevar a. Gueva ra w as not, how ever , able to ide ntify the defe ndant at that time. Sergeant Merritt described his June 16, 2004, interview with the defendant and identified the def endant’ s waiver

of rights form-5-

a ndhis ta pe -r e c or de d s ta te me nt, wh ic h wa s adm itt e d into e vid e nc e a nd playe d for the jury. He sa id that the def

endant told him that Ca ntrell Taylor supplied the tennis shoes the men use d as bait in the

ro bb e ry a nd wa s pr e se nt i n th e ro bb e rs ’ v e hic le wh e n th e ro bb e ry too k p la c e . T he de fe nd a nt a lso told him t hat both he and Star brough Jones wer e armed with .38 caliber revolve rs, that he took $30 in cash fr om Guevar a bef ore shooting him, and that Jones wa s responsible for sho o t i n g Anthony Woodfor k. On cr oss-exa mination, Sergeant Mer ritt acknowle dged that $30 in cash wa s found on the ground be side the driver ’s door of W oodfork’ s vehicle. H e said that he was not ce rtain, but the cash ma y have e ventually bee n turned ove r to Woodfor k’s wife

.
The de fe n d ant elec ted not to testify and re sted his case without presenting any pr oof. Following deliberations, the jury convicte d him of the counts cha rged in the indictment and the trial court sente nced him to l ife im prisonment on the m urder count, entering the judgment on January 25, 2007. At the Marc h 9, 2007, sentenc ing hearing, the trial court imposed the State’ s rec ommended sentenc es of f

ifteen year s at 100% for the espec ially a ggravated robbery conviction and e ight years at 30% for

the attempted e specia lly a ggravated robbery conviction, with the sentenc es to be served

concur rently to ea ch other and concurre ntly to the defendant’s life sentenc e. On M arc h 16, 2007, the d e f e n d a n t f il e d a mo ti o n f o r n e w tria l, w h ic h th e tria l c o u r t o v e rru le d o n A p r il 4
, 2 0 0 7

. The defe ndant filed his notice of appea l on May 2, 2007.

AN AL YSI S

I. Tim e line ss o f N ot ic e of App e al

As his fi rs t is su e , th e de fe nd a nt a rg ue s th a t, i n th e e ve nt that th is c ou rt sh ou ld f indthat hi s notice of appea l was not timely with respe ct t o his first degre e murde r convic tion, for which he was sentenc ed on Janua

ry 25, 2007, we should waive the untimely filing in the interests of justice. The State points out t hat our supre me court has held that the ti me for f iling a motion for new trial be gins from the imposition of t he last sentenc e in a case which results in multipl e convictions, see State v. Bou gh , 1 52 S.W .3 d 4 53 , 4 61 (T e nn

. 20 04 ), a nd the re fo re arg ue s th a t bo th the mot ion fo r n e w t ri a l, filed within thirty days of t he defenda nt’s sentenc ing for the robbery convictions, and the notice of appea l, filed within thirty days of the trial court’s overr uling of that motion, were timely. We agre e with the State.

II. Su ppression of S tate ments

Th e de fe nd a nt n e xt c on te nd s th a t th e tr ia l c ou rt e rr e d inde ny ing his mot ion to su pp re ss h is statements. Citing, among other things, his yout h, history of mental problems, a nd lack of education, the de fe nd a nt ar gu e s th a t hi s st a te me nts we re no t f re e ly, kn ow ing ly, a ndvo lun tari ly m a de . T he State argue s that the evidenc e d o es n o t preponde rate against the trial c ourt’s finding that the def endant voluntarily made the state ments after being appr opriately a dvised of his constitutional rights. We agre e with the State.

When this court review s a trial court’s ruling on a motion to suppress e vidence , “[q] uestions of c re dib ili ty o f the wi tne sse s, the we igh t and va lue of the e vid e nc e , a ndre so lut ion of c on fl ic ts i n the evidenc e ar e matter s entrusted to the t rial j udge as the t rier of fac t.” State v. Odom, 928 S.W.2d-6-

18 , 2 3 ( Te nn . 1 99 6) . T he pa rt y p re va ili ng a t t he su pp res sion h e ari ng is a ff or de d th e “ str on ge st legitimate view of the evidenc e and all rea sonable and legitimate infere nces that may be drawn fr om that e vid e nc e .” Sta te v. Ke ith , 9 78 S.W .2 d 8 61 , 8 64 (T e nn . 1 99 8) . T he fi nd ing s o f a tr ia l c ou rt

in

a suppression hearing a

re upheld unless the evidenc e preponde rate s against those findings. See id. Ho we ve r, the app lic a tio n o f the la w t o th e fa c ts f ou ndby the tr ia l c ou rt is a qu e sti on of

la w a ndis revie wed de novo . See State v. Ye argan, 958 S.W.2d 626, 629 (Tenn. 1997)

.
Both th e U n it e d St a te s a n d T e n n e s s e e Co n s ti tu ti o n s p r o te c t a d e f e n d a n t f r om being compelled to give evidence against himself. U.S. Const. amend. V; Tenn. Const. art. I, § 9. I n Miranda v. A rizona , 384 U.S. 436, 471-75, 86 S. Ct. 16 0 2
, 1 6 26-28 (1966) , the United States Supreme Court h el d that a def endant’ s statements made during a custodial interr ogation are ina dmi ssi ble at tr ia l un le ss the Sta te e sta bli sh e s th a t th e de fe nd a nt w a s in fo rm e d o f h is righ t to

re ma in s ile nt andhis ri gh t to c ou ns e l a ndthat he kn owingly a ndvo lun tari ly w a ive d th os e ri gh ts. Whethe r the de fenda nt made a voluntary, knowing, and int elligent waiver of those rights depe nds “‘upon the particula

r fa cts and c ircumstance s surrounding that ca se, including the background, experience , and conduc t of the ac cused.’ ” Edwa rds v. Ariz ona, 451 U.S. 477, 482, 101 S. C t. 1880, 1884 (1981) ( quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. C t. 1019, 1023 (1938)).

Tenne ssee c ourts use the fe dera l “ totality-of-the-c ircumstance s test” to determine whether

a d ef en dant has knowingly, intelligently, and voluntarily waived his Mira nda rights. State v. Callahan, 979 S.W.2d 577, 581-82 ( Tenn. 1998). W hen ana lyzi n g t h e wa iver of a juvenile under the tot a lit y- of

-the -c ir c ums ta nc e s te st, the fo llo wi ng fa c tor s sh ou ld b e c on sid e re d:

(1) co n s i deration of all circumstanc es surrounding the inter rogation including the juv e nil e ’s a ge , e xp e ri e nc e , e du c a tio n, a ndint e lli ge nc e ;
(2) the juvenile’s capac ity to understand the Miranda wa rnings and the c onsequenc es of the wa ive r;
(3 ) the juv e nil e ’s famil iari ty wi th Mir a nd a wa rn ing s or theabil ity to r e a d a ndwrite in the la ng ua ge us e d to giv e the wa rn ing s;
(4 ) any int ox ic a tio n;
(5) a ny mental disease , disorder, or reta rdation; and
(6) the pr esenc e of a

pare nt, guardian, or

interested a dult.

Id. at 583.

Her e, the de fenda nt, who was seve nteen ye ars old at the time, wa s advised of his Miranda ri gh ts b e fo re bo th int e rr og a tio ns a nd sig ne d a writt e n wa ive r o f tho se ri gh ts b e fo re e a c h s ta te me nt. Th e de fe nd a nt’ s gr a nd mothe r wa s pr e se nt du ri ng the int e rr og a tio n th a t to ok pla c e a t ju ve nil e c ou rt , and the de fenda nt’s aunt and a Yo u t h Vi llages counse lor wer e pre sent during the subseque nt interrogation, init iated by the defendant, which took place at Youth Villages Treatment Center . The-7-

defe ndant had c omple t ed t h e n i n t h grade of high school and, a ccor ding to the Youth Villages staffe rs, was not on medication at the time he gave his state ments. Sergeant Me rritt’s manner during the sec ond tape- rec orded state ment was c alm and matter -of- fac t, as was the def endant’ s. In sum, the

rec ord fully supports the trial court’s finding that the defe ndant made his state ments k n o wi ngly, int e lli ge ntl y, a ndvo lun tari ly. Ac c or din gly, we a ff ir m th e de nia l of

the de fe nd a nt’ s mo tio n to suppress his statements.

III. Su fficie ncy of the Evidence

Th e de fe nd a nt n e xt c on te nd s th a t th e e vid e nc e wa s in su ff ic ie nt t o s us ta in h is c onvi cti on s. He a rgues that the e vidence wa s i n s u ff icient to support his convictions for fe lony murder a nd

a tte mpt e d e sp e c ia lly a gg ra vate d r ob be ry be c a us e the re wa s insu ff ic ie nt pr oo f that he a tte mpt e d to take a nything from Woodfor k or that his actions cause d his de ath. He further argue s that there w as insufficient evidence to sustain his espec ially aggra vated r obbery c onviction because the State failed to present a ny cre dible evidenc e that anything of va lue was taken fr om Guevar a.

W h e n th e s u f

f ic ie n c y o f th e c o n v ic ti n g e v id e n c e is c h a ll e n g e d o n ap p e a l, th e re levant qu e sti on of

the re vie wi ng c ou rt

is “ wh e the r, a ft e r v ie wi ng the e vid e nc e in the lig ht m os t f a vo ra ble t o 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 beyond a r easona

ble doubt.” Jac kson v. Virginia, 443 U.S. 307, 319, 99 S. Ct . 2781, 2789 (1979);

see a lso Tenn. R. App. P. 13(e) (“Findings of gui lt in criminal actions whether by the trial court or jury s ha ll b e se t a sid e if the e vid e nc e is ins uf fi c ie nt to s up po rt

the fi nd ing s b y th e tr ie r o f f a c t of gu ilt beyon d a re asonable doubt.”); State v. Evans, 838 S.W.2d 185, 190- 92 (Tenn. 1992) ; State v. An de rs on , 8 35 S.W .2 d 600 , 604 (T e nn . Crim . A pp . 1 99 2) . A ll q ue sti on s in vo lvi ng the c re dib ili ty of w it n e s s e s , th e w e ig h t a n d v a lu e to b e g iv e n th e e v id e n c e , a n d a ll f a c tu a l is s u e s ar e r e s o lv e d by the tr ie r o f f

a c t. S e e Sta te v. Papp a s, 754 S.W .2 d 6 20 , 6 23 (T e nn . Crim. Ap p. 19 87 ). “ A g uil ty

ve rd ic t by the jury, app ro ve d by the tr ia l ju dg e , a c c re dit s th e te sti mon y o f the wi tne sse s f or the Sta te and re solves all conflicts in fa vor of the the ory of the State.” State v. Gra ce, 493 S.W.2d 474, 476 (Tenn. 1973) . Our supre me court stated the rationale for this rule:

This well-settled rule rests on a s o u n d fo undation. The trial judge and the jury see the witnesses face to fac e, hear their testimony and observe their demeanor on the stand. Thus the t rial j udge and jury are the primary instrumenta lity of justi ce to determine the weight and c redibility to be given to the testimony of witnesses. In the trial forum alone is the re human atmosphere and the totality of t h e e vidence

c a nn ot b e re pr od uc e d w ith a writt e n r e c or d inthi s Co urt. Bolin v. S tate, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212 Tenn. 464, 370 S.W.2d 523 (1963)) . A jury conviction removes the pre sumption of innocence with which a def en d an t i s i n itially cloaked and r eplac es it with one of guilt, so that on appea l, a convicte d defe ndant has the bur den of demonstrating that the evidenc e is insufficient. See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982)

.
The de fenda nt was convic ted of fir st degree felony murde r for killing Woodfork during the per p et ra t i o n of a r obbery, of the espe cially aggr avate d robbery of Gue vara , and of the attempted espec ially aggra vated r obbery of Woodfor k. First de gree felony murde r is “[a ] killing of another-8-

c omm itt e d in the pe rp e tr a tio n o f o r atte mpt to p e rp e tr a te a ny fi rs t de gr e e mur de r, a c t of te rr orism
, arson, rape , robbery, burglary, theft, kidnapping, aggra vated child abuse, a ggravated child neglec t or airc raf t piracy.” T en n

. Code Ann. § 39-13- 202(a) (2) ( 2006). The me ntal state re quired for conviction of fe lony murder is the intent to commit the underlying offe nse. Id. § 39- 13-202(b)

. Especia lly aggravated robbe ry is robbery t hat is acc omplished with a deadly we apon and wher e the victim suffe rs serious bodily injury. Id. § 39-13-403( a). Robbery is “ the intentional or knowing theft of pr operty fr om the person of another by violence or

putting the person in fea

r.” I d. 39-13-401( a).
A p e rs on c omm its c ri min a l a tte mpt when th e pe rs on , a c tin g w iththe kin d o f c ulp abil ity oth e rw ise re qu ir e d f

or the of fe ns e :
(1) I ntentionally engage s in action or cause s a re sult that would constitut e an offe nse, if the c ircumstance s surrounding the conduct were as the pe rson believe s the m to be ;
(2) Ac ts with i ntent to cause a re sult that is an element of the of fense , and believes the conduct will cause the re sult without further conduc t on the person’ s part; or
(3 ) A c ts w ith int e nt to c omp le te a c ou rs e of a c tio n o r c a us e a

re su lt that w ou ld constitute the offe nse, under the circ umstances surr ounding the conduct a s the person believes the m to be, and the co n duct constitutes a substantial step towar d the commission of the offe nse.
Id. § 39-12- 101(a)

. Finally, “[a] pe rson is criminally responsible for an off ense c o m m i t t ed by the conduc t of

a no the r, if

. . . [a ]c tin g with int e nt to pr omo te or a ssi st the c omm iss ionof the of fe ns e , o r t o b e ne fi t in the proce eds or results of the offe nse, the pe rson solicits, directs, aids, or attempts to aid another person to commit the offe nse.” I d. 39-11-402( 2).

We c onclude that the evidenc e, viewed in the light mos t favora ble to the State, was suf

ficient to sustain all three convictions. The State prese nted proof to establish that the defe ndant, Jones, and Taylor f ormulated a

plan to rob the victims using the tennis shoes as bait for the robbery. When the victims were distra cted with the shoe s, Jones, who wa s armed w ith a .38 calib er h an d gun, began str ug gli ng to t ake W oo df

or k’ s mon e y fr om him wh ile a t the sa me tim e the de fe nd a nt, arm e d w ith a similar wea

pon, was de manding and taking Gue vara ’s wallet. The de fendant then shot Guevar a in the sid e , c a us ing hi m to s uf fe r s e ri ou s b od ily inj ury, wh ile Jo ne s sh ot W oo df or k, c a us ing his death.

In support of hi s argume nt that no actua l robbery oc curr ed, the de fendant relies on Gue vara ’s

writt e n s ta te me nt t o p oli c e in wh ich he in dicate d th a t no thi ng wa s ta ke n f ro m hi s w a lle t. I n h is direc t examination testimony, however , Gueva ra te stified that the def

endant de manded money and-9-

then took his wallet, which c ontained his documents and $60 in cash. The jury obviously resolve d any discre pancie s in the evidenc e in the favor of the State, a s was within its province as the trier of fac t

. S ee P ap p as, 754 S.W.2d at 623. W e also note that some discrepancies be tween the written statement and G uevar a’s tria l te stimony may have been oc casione d by the fa ct that the stateme nt was

writt e n in En gli sh , p re su ma bly by the int e rv ie wi ng of fi c e r. At tr ia l, t he cou rt int e rp re te r h a d to interpre t the statement into Spanish f or the non-English speaking Gueva ra to unde rstand and the n translate his a nswers into English. In sum, the re was sufficie nt e vidence to sustain the def endant’ s convictions for the felony murde r and attempted espec ially a ggravated robbery of Woodfor k and the espec ially aggra vated r obbery of Gueva ra.

IV. Grant of State ’s Mot ion in Limine to Exclud e Evidence

As his final i ssue, t he defenda nt contends that the trial c ourt committed an abuse of discre tion

a ndplain e rr or

wh e n it gr a nte d th e State ’s motion in lim ine to e xc lud e e vid e nc e that he ini tia lly de nie d his inv olv e me nt in the c ri me s. Spe c if ic a lly , the de fe nd a nt ar gu e s th a t no t be ing a llo we d to prese nt evidence to the jury that he initially provided an a libi to pol ice a nd then later, when the a libi did no t c he c k ou t, tol d po lic e that he wa s pr e se nt in the ve hic le bu t di d n ot p art ic ipate in the c ri me s, “adve rsely af

fec ted his constitutional rights t o due proc ess and to a jury trial.” He further argue s that all five fa ctors esta

blishing pl ain er

ror a re satisfied in the case . The State disagr ees, arguing t hat the defe ndant has not shown that the tria l court’s de cision in this respect constitutes plain er ror.

The de fenda nt did not raise this issue in his m otion for new trial. Howeve r, “[ w]he n
nece ssary to do substantial justice, an a ppellate c ourt may consi d er an er ror that ha s aff

ecte d the substantial rights of an ac cused at any time, even though the e rror was not ra ised in the motion for

a ne w t ri a l or ass ig ned as err or

on app e a l.” Te nn . R. Cr im. P. 5 2( b) . I n o rd e r f or us to f indplain

err or, “‘ (a) the re cord must clea rly establi s h wh at o cc u rre d in the trial court; (b) a cle ar and unequivoca l rule of law must have bee n brea ched; ( c) a substantial right of the acc used must have been a dverse ly affe cted; (d) the ac cused did not wa ive the issue for tactica l re as o n s ; an d (e) consideration of the err or is nece ssary to do substantial jus t i ce.’ ” State v. Smith, 24 S .W.3d 274 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994) ).

W e a gr e e wi th the Sta te that th e pr e re qu isi te s f or a fi nd ing of plain er

ro r ar e no t satis fi e d in this case. The defe ndant asserts that his ini tial disavowals of involvement in the crimes c onstitut ed rele vant admissible evidenc e and that a clea r and unequivoca l r

ule of law wa s theref

ore br eac hed by its exclusion. We respec tfully disagree . The de cision to admit or exclude e vidence gener ally lies within the sound discretion o f t h e t ri al court. See State v. Gilliland, 22 S.W.3d 266, 270 (Tenn. 2000); State v. Edison, 9 S.W.3d 75, 77 (Tenn. 1999) . In a pr etrial he aring, the State a rgued that the oral stateme nts by the defendant, which wer e made prior to the t ime of hi s taped c onfession, we re self-se rving and inadmissible hea rsay. The trial court a gree d and ther efor e granted the State’s motion in l imine, as was within its discretion.

CO NC LU SION

Ba se d o n th e fo re go ing a uth oriti e s a ndre a so nin g, we a ff ir m th e jud gme nts of the tr ia l c ou rt

.-10- ___________________________________ ALAN E. G LENN, JUD GE