# FILED
April 7, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE JANUARY 1998 SESSION
STATE OF TENNESSEE, ) ) Appellee, ) No. 03C01-9703-CC-00107

) ) Sullivan County v. ) ) Honorable D. Kelly Thomas, Jr., Judge, ) sitting by desig nation JESSEE C. GUDGER, III, ) ) (Robbery) Appellant. ) For the Appellant : For the Appellee : Jessee C. Gudger, III Pro Se John Knox Walkup Attorney General of Tennessee Stephen M. Wallace and District Public Defender Ruth A. Thompson and Assistant Attorney Gener al of Tennessee R.C. Newton 450 James Robertson Parkwa y Assistant Public Defender Nashville, TN 37243-0493 P.O. Box 839 Blountville, TN 37617 H. Greeley Wells, Jr. District Attorney General and Joseph Eugene Perrin Assistant District A

ttorney General P.O. Box 526 Blountville, TN 37617-0526

OPINION FILED:____________________
AFFIRMED Joseph M. Tipton Judge2 O P I N I O N
The defendant, Jessee C. Gudger, III, appe als as of right from his conviction by a jur

y in the Sullivan C

ounty Circuit Court

for robbery, a Class C felony. The defendant was sentenced as a Rang e I, standard offender to five year s in the custody o f the Dep artment of Correc tion. Th e trial cou rt ordere d the def endant t o serve his sentence consecutivel y to a sentence imposed in an u nrelated case. The defendant contends that:

(1) the evidence is i nsufficient to support the convi ction; ( 2) the trial court erred by denying his motion to suppress a statement given to the poli ce; (3) the tri al court erred by deny ing his special req uest to instruct the jury on v

oluntary intoxicati on; and (4) the trial court erred b y sentencing him to f ive ye ars in the Department of Correction. We disagree and affirm the trial court’s j udgment of conviction.

Detective Jerry Smeltzer testified that he i nvestigated the robbery of the Cherokee Food Mart on Volunteer Parkway on December 12, 1995. He identified a videotape of store survei llance given to him by the manager of the store. He st ated that he contacted Dana Ross and Const ance Denise Franklin, w ho was identified as hugging the defendant on the sur veillance videotape. Detective Smeltzer testified that he obtained an arrest warrant based upon the informa tion he learned during his investigation. He s

aid that the defendant was arres ted at his workplace and taken to the Johnson City Police Department where the defendant g ave a statement after being advised of his righ ts. Detective Sme ltzer testified t hat the defe ndant was wearing a Dallas Cowboys j acket at the time of his arrest and that he had a Virginia i dentification card.1 The presentenc e report reflects that Arnold was charged with perjury and acces sory after th e fact to r

obbery. She pled guil ty to the offenses and r eceived an eff

ective sent

ence of eighteen months in the custody of the Department of Correct ion.

3 The defendant’s statement was intro duced into evidence. It r eflects that the defendant told Detective Smelt zer that he and Dana Ross w ent to the Cherokee Food Mart on December 12, 1995, at approximately 12:30 a.m. T he defendant said that he bought beer and other g roceries. The defendant stated that he showed the clerk at the store his Vi rginia identification c ard to purchase the beer. He said that he saw Denise Frankli n, who hugged him, and some other friends while in the store. The defendant then left the store and later saw Erika Arnold 1 who took hi m to buy some drugs. The defendant told Detecti ve Smeltzer that w

hile at the apartments wher e he planned to purchase the drugs,he decided to obtain money. H e said that he wrote out a note to give to the cl erk and told Arnold to take hi m to the Cherokee Food Mart to buy cigarettes. The defendant claimed that Arnold did not know that he intended to rob the store. The defendant stated that he turned his coat inside out, wal ked inside the store, and gav e the not e to the clerk. H e said t hat after the cle rk gav

e him the

money, he left the store in the car driv en by Arnold, telling

her that he had robbed the store a fter they left. He stated that he told Arno ld that he robbed the store to pay off his drug debt with a drug dealer because the deal er refused to sell him any drugs until he paid the debt. The defendant told Detective Smeltz er that he got Arnold to dr ive him back to the apartments to purchase some more dr ugs. He stated that they drove around and smoked c rack coca ine and h e gave Arno ld ten do llars of t he stolen money.

On cross-examination, Detective Smeltzer testified that the defen dant told him that he did not remember what he wrote on the piece of paper he gave to the clerk. He stated that the note was ne ver recovered becaus

e the defendant picked up the note as he left the store. Detectiv e Smeltzer said that he sta ted in his affidavit of complaint that the clerk told him that the note said to give him the money or he would blow her head off. Detective Smeltzer acknowledged that the st atement given by the cl erk states4

that the note said that the defendant w ould blow her ass off if she did not give him the money.
Angela Parker, a clerk at the Cherokee Food Mart, testified that shortly after 12:00 a.m. on December 12, the defendant al ong with another man came i nto the store to purchase beer. She s aid that the defendant, who was wearing a Dallas Cowboys jacket, sh owed her a Virginia identification card. Ms. Parker identified the identification card used by the defendant and the jacket worn by the defendant. She stated that the defendant then asked her about the music she was lis tening to and whether she liked to par ty. Ms. Parker stat

ed that while the defendant wa s in the store, Denise Franklin and her b oyfriend entered the store. She testified that she spoke to Ms. Franklin and observ ed her hug the defendant before they al l left the store.

Ms. Parker testified that the defendant returned to the store at approximately 3:45 a.m. w hile she was outside r

eading the gas pumps. She sai d that a car pulled into the top parking lot and the defendant got ou t of the passenger side. Ms. Parker testified that the defendant was wearing the same jacket bu t he was wearing it inside out. She stated that as s he walked back towar d the store, she passed the defendant near an ice machine. She sai d that she saw the defendant’s face clearly at that time and that she recogni zed the defendant as the person w ho had purchased beer in the store earlier. M s. Parker stated that the defendant pul led the hood of the jacket over his head. She stated that she said hello to the defendant as she walked into the store and then went behind the cash register.

Ms. Parker testified that the defendant followed her inside th e store and asked her whether he could purchase beer. She stated that she and the defendant were the only persons

in the store. She said that when she told the defendant that she could not sell beer after 3:00 a. m., the defendant, who was standi ng two to three feet5

away from the registe r, stated, “check this out ,” as he lay a note on the c ounter beside the cash register. Ms. Parker stated that the words “give me the f___ing money or I’ll blow your ass aw

ay” were wri

tten in pencil on a half of a piece of paper. She said that the defendant also told her that he w as not joking. Ms. Par

ker testified that she believed that the defendant was serious and that she was afraid f or her life. She said that she could not tell if the defendant had anything in his pock ets. She testified that she opened the register after r eading the note and offered to let the defendant get the money out of the drawer, but he told her to get it for him. She said that she handed the defendant the cash contained in the draw er. Ms. Parker said that she tried to give the defendant the food stamps as well, but the defendant told her that he did not w ant them. She stated that the defenda nt instead told her to lift the drawer to make sure there was no cash under the drawer. Ms. Parker testified that the defendant told her not to be stupid and then picked up the note from the counter and walk ed out the door. She stat ed that s he immed iately cal led the p olice and that she that she told Dete ctive Smeltzer about the robbery when he arrived.
On cross-examination, Ms. Parker conceded that she initially told Detective Smeltzer that the defendant gave her a Tennessee driver’s licens e, not a Virginia driver’s license. She stated that she told Detective Smeltzer that the note said that the defendant would blow off her ass, not her head, if she did not give him the money. She testified on redir ect examination that she w as scared and shaking w hen she gave the statement to pol ice.

Teresa Hudson, the manager of the Cher okee Food Mart, testified that she calculated the money that h ad been stolen from the store. She sa id that one hundred and fifty dollars was taken. She stated that she gave Detective Smeltzer a videotape of the surveill ance of the store. The videotape w as played for the jury.6 I. SUFFICIENCY OF THE EVIDENCE The defendant contends that the evidence i s insufficient to convict hi m of robbery. Our standard o f review when the s ufficiency of the evidence is questioned on appeal is "whether, after v iewing the evidenc

e in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements o f the crime beyond a reasonable doubt ." Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). This means that w e do not reweigh the ev idence, but presume that the jury has resolv

ed all conflicts in the test imony and drawn all r easonable inferences from the evidence in favor of the s tate. See State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978).

In the light most favorabl e to the state, the evidence s hows that the defendant entered the Cherokee Food Mar t on December 12, 1995, shortly after midnight. The defendant, who w as wearing a Dall as Cowboys jacket, had a conversation with M s. Parker and then showed h er a Virginia identific ation card to purchase beer. The defendant also spoke to and hugged an acquaintance of Ms. Parker before leaving the store. The proof shows that before returning to the store , the defendant wrote a note threatening to harm Ms. Parker if she di d not give him the money. The defendant returned to the stor e around 3:45 a.m., wearing the same jacket inside out and with the hood over his head, and gav e the note to Ms. Parker. After she read the note, Ms. Parker, who stated that she was in fear for her life, gave th e defendant one hundred and fifty dollars fro m the register. When the defendant was arrested the next day, he was wearing a Dallas Cowboys j acket. Ms. Parker ident ified the jacket as the one worn by the robber. The defendant also admi tted his guilt in an oral statement given to Detective Smeltzer. Under these circumstances , a rational trier of fact could find the defen dant guilty of the offense of robbery beyond a reasona ble doubt.7 II. SUPPRESSION OF STATEMENT The defendant asserts that the trial court erred by denyi ng his motion to suppress his statement given to police. The defendant concedes that he was properly arrested and advised of his Miranda rights. Howev

er, he argues that he did not knowingly, v

oluntarily and intell igently waiv e his rights. The state c ontends that the trial court properly allow

ed the statement into evidence. We agree.

Before trial, the defendant filed a motion to suppress the statement he gave to Detective Smeltzer, claiming that the statement was inadmissible because (1) it was the product of an illegal arrest, (2) the defendant was not advised of his Miranda rights, and (3) the defendant w as coerced into givi ng the statement by threats and promises.
At the suppression hearing , Detective Smeltzer testified that he saw the defendant at the Johnson City Pol ice Department after the defendant had been arrested. He stated that he i nformed the defendant of the charges agains t him. Detective Smeltzer testified that he also told the defendant about the surveillance v ideo, the statement given by Arnold, and the statements of persons identifying the defendant as the person shown on the v ideotape. He said that he asked the defendant whether he had been read his rights while at the police st ation, and the defendant stated that he had not. Detective Smeltz er stated that he then read the defendant hi s rights. Detective Smeltzer testified that the defendant told him that he understood his rights, did not need him to explain further, and did not want to ex ercise his rights. He said that the defendant also made statements indicat ing that he wanted Detect ive Smeltzer to hurry because he had heard th e rights before. The defendant also s igned a waiver of rights form. Detectiv

e Smeltzer testified that the defendant then gave an oral statement. He said that he trans cribed the defendant’s answer s and that the defendant read and signed the statement w ithout making any corr

ections. Detective Smeltzer8

denied making any threats or promises. He said that when the defendant asked whether Arnold woul d be prosecuted, he told the defendant that it was not his decis ion to make b ut rathe r was a decis ion for t he distri ct attorn ey.

On cross-examination, Detective Smeltzer testified that the defen dant told him that he was not under the i nfluence of a drug, although the defendant said that he needed a “fix.” Detectiv e Smeltzer stated that he did not believe that the defendant w as suffering from symptoms of drug w ithdrawal. He also d enied telling the defendant that he would help him get in a drug rehabilitation pr ogram if he would giv

e a statement. Detective Smeltzer testified that after the interv iew was completed and the statement was signed, the defendant told him that his motive for robbi ng the store was his drug addiction. Detective S meltzer stated that in re sponse to the defendant’s statement, he told the defendant that the defendant would obtain counseling for his dr ug problem while in prison or while on probation. He conceded that he initially told the defendant that he was charged w ith aggravated robber

y, but he explained that h e believed that the facts justified the charge. O n redirect examination, Detective Smeltzer tes tified that he did not believe that the defendant was under the inf luence of drugs or alcohol. He describe d the def endant a s rationa l. He said t hat the d efenda nt did no t appear to have trouble unders tanding the ques tioning.

The defendant testified that he dropped out of school in the tenth grade but that he obtained his GED w hen he was sixteen y

ears old. He said that w hen he saw Detective Smeltz

er at the Johnson City Pol ice Department, Detectiv e Smeltzer showed him a picture of Arnol d and told him that he had some statements against him. He said that he was show n the statements but was not g iven an opportunity to read them. He stated that Detectiv e Smeltzer told him that the best thing that the defendant could do was to cooperate. The defendant stated that he told Detecti ve Smeltzer about his problems with drugs and alcohol and even discussed the possibility of getting9

treatment, but Detective Smel tzer continued to questi on him about the robbery. The defendant said that he eventually gave a statement.
The defendant testified that he had problems r emembering everything that took place during the interview. He said that he did not remember being read his rights or signing

the waiver of rig hts form. The defendant claimed that he did not understand the rights any way. The defendant stated that he al so did not remember what he said to Detectiv e Smeltzer. He descri bed himself as being out of control and unstable at the time that he gav e the statement. He said that he di d not know what he was doing when he g ave the statement, and he claimed that the statement was not true. The defendant also claimed that he gave the statement because of the di scussion he had with Detectiv

e Smeltzer regarding

the possibility of drug

treatment.
On cross-examination, the defendant testified that he was under the influence when he gave the statement. He said that he had us ed crack cocaine the day before his arrest and that he had smoked a marijuan a cigarette while at work just before being arrested. The defendant conc eded that he was not under the i nfluence of crack coca ine at the time he ga ve the sta tement. He also con ceded th at he gave Detective Smeltzer some of the information contained in the s tatement. The defendant admitted that his signature appears on the waiver of rights form and the stat ement. He acknowledged that Detective Smeltzer read hi m his rights, and he said that he may have told Detective S meltzer that he already knew his rights. The defendant admitted that he had previously been convicted of a felony inv olving drugs. H e also admitted that Detective Smeltze r never threatened him, but he claimed that Detective Smeltzer pressured him to give

a statement by telling him he could lose his job and b y promising him that he would get tr eatment.10 At the conclusion of the hearing, the trial court overruled the defen dant’s motion to suppress the statement. The trial court found that the defendant w as advised of his rights before he gav e a statement. It also found that the defendant stated that he understood hi s rights, and knew what he was doing. The tr ial court noted that although the defendant claimed that his mem ory was not good, the defendant was able to work and was not under the influence o f cocaine. It found that although the d efendant had smoked one marijuana cigaret te, the defendant was not under the i nfluence, stating that the defendant’s own testimony regarding things that he remembered suggested that the defendant was not intox icated.
On appeal , the tr

ial cou rt’s fi ndings

of fact at

the conclusion of a suppression hearing w ill be upheld unless the ev idence preponderates otherw ise. State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996). The defendant bears the burden of demonstrating that the evi dence preponderated against the trial court’s factual findi ngs. Id . However, the application of the law to the facts as determined by the trial court is a question of law whic

h is reviewed de novo on appeal. State v. Yeargan , 958 S.W.2d 626, 628-29 (Tenn. 1997).

In this case, the defendant failed to esta blish that the evidence preponderated against the tri al court’s factual determinati ons. The evidence shows that Detective Smeltzer testified that the defendant stated that he un derstood his rights before signing the wai

ver of rights form. He s aid that he believed the defendant w as rational and appeared to understa nd what was taking place. He said that the defendant did not appear to be under the influence of alcohol or drugs. We agree that this evidence demonstrates that the defenda nt knowingly, voluntarily and intelligently waived his rights and gave a statement. Therefore, we conclude that the defend ant’s motion to suppress the statement w as appropriately denied.11 III. INSTRUCTION ON VOLUNTARY

INTOXICATION The defendant contends that the trial cour t erred by denying

his special request for an instructio n on voluntary intox ication. He argues that an instruction was necessary given the circumstances surroundi ng the robbery and his s tatement to police. The state responds that there is no evidence to w arrant an instruction on voluntary intoxi cation. We hold that the trial court did not err by refusing to instruct the jury regarding voluntary intoxi cation.

In criminal cases, the tr ial court has a duty to c harge the jury on all

of the law that applies to the facts of the case. State v. Harris , 839 S.W.2d 54, 73 (Tenn. 1992). Anything short of a complete charge denies a defendant hi s constitutional right to trial by jury

. State v. McAfee , 737 S.W.2d 304, 30 8 (Tenn. Crim. App. 1987).

Voluntary intoxication is not a defense. T.C.A. § 39-11-503(a). However, “intoxication, wh ether voluntary or involuntary, is admi ssible in evidence if it is relevant to negate a culpable mental state.” Id . This court has stated that “ there must be evidence that the intoxication deprived the accused of the ment al capacity to form specific intent . . . . The deter minative question is not whether the accused w as intoxicated, but what was his mental capacity.” Harrell v. State , 593 S.W.2d 664, 672 (Tenn. Crim. App. 1979). If rai sed by the proof, the trial court is required to instruct the jury regarding intoxication even if a r equest for an instruction has not been made. See State v. Williamson , 919 S.W.2d 69, 80 (Tenn. Crim. App. 1995).

We do not believe that the issue of voluntar y intoxication is

fairly raised by the proof presented at trial. V iewed in the light mos t favorable to the giv

ing of an instruction, the proof show ed that the defendant bought beer and drugs before robbing the store. However , there was no evidenc e introduced to show that the defendant consumed the beer or used the drugs before he robbed the store. Nor was there any12

proof relating to whether the defendant was deprived of the mental capacity to form the requisite specific int

ent. The defendant’s statement to Detecti ve Smeltzer that he and Arnold rode around after the robbery and smoked crack cocaine is the only evidence relating to the defendant’s drug use. However, any evidence of the defenda nt’s intoxication after

the robbery occurred do es not show that the defendant w as deprived of the capacity to form the req uisite specific intent for co mmitting the crime. Accordingly, w

e conclude that an instructi on on voluntary intox ication was not warranted.

IV. SENTENCING

The defendant challenges the length of his sentence. He acknowl edges that the trial court care

fully weighed enhancement and mitigating factors as required by T.C.A. § 40-35-210. However, the defendant argues that the trial court gave too mu ch emphasis to the applicable enhancement factors by initially increasing the defendant’s sentence to six years

before reducing the sentence to five years. He contends that a four-year sentence was more appropriate. The state responds th at the trial court followed the sentencing pr inciples and that a sentence of fiv e years is warr

anted under the circumstances of the case. We hold that the tr ial court properly sentenced the defendant to five years in the custody of the Department of Corr ection.
Significantly, the defendant does not contest the trial cour t’s application of the enhancement and mitigating fact ors. Rather, he essential ly asserts that the tr ial court should not have gi ven as much weight to

the applicable enhancement factors. However, the wei ght to be afforded an existing factor is left to the trial c ourt's discretion as long as the court compli es with the purposes and pr inciples of the 1989 Sentencing Act and its findings are adeq uately supported by the r ecord. T.C.A. § 40-35-210, Sentencing Commission Comments; State v. Moss , 727 S.W.2d 229, 23 7 (Tenn. 1986);
see State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).13 The presentence report reflects that the then twenty-five-year-old defendant has an adult criminal rec ord consisting of convi ctions for possession of cocaine with the in tent to d istribut e, driving u nder the influen ce, reckle ss driving, two counts of possession and distri bution of liquor to a person u nder twenty-one ye ars of age, and two counts of driv ing without a driv

er’s license. It states

that the defendant committed the present offense while on probation for the offense of possession of cocaine with the intent t o distribute. The report al so reflects that as a juven ile, the defendant was adjudicated guil ty of criminal trespass , grand larceny, tamper ing with a vehicle, violation of a curfew, possession of stolen property, three counts of petit larceny, and two count

s of possession of a controlled s ubstance. The defendant was placed on probation for his conduc t and was also sent to a j uvenile detention center.
At the conclusion of the sentencing hearing, the trial cour

t sentenced the defendant as a Range I, standard offender to five years in the cust ody of the Department of Correction to be served consecutively to the sentence impose d in Virginia for possession of cocaine. In sentencing the defendant, the trial court appli ed the following enhancement factor s as listed in T.C.A. § 40- 35-114: (1) The defendant has a previou s h istory of criminal convictions

or criminal behavior

in addition to

those necessary to establish the appropriate range; (13)( C) The felony w

as committed while on pr obation from a prior felony conviction; and (20) T he defendant was adjudicated to hav e committed delinquent

acts as a juveni le t hat would have constit uted felonies if committed by an adult.
In mitigation, the trial court found that the defe ndant’s criminal conduct did not cause personal injury , but it gave the factor l ittle weight gi ven the defendant’s threat of injury in robbing the victim. See T.C.A. § 40-35-113(1). The trial court also considered the defendant’s lack of prior convictions fo r violent felonies and his substance abuse problems. See T.C.A. § 40-35-113(13). The trial court noted as well14

that the defendant had suffered abuse and neglect as a child at the hands of a parent who also was an addic t. Id . The trial court concluded that the applicable enhancement factors warranted an increase in the sentence to six years, but it reduced the sentence to five years given the evidence of mitigation. The record supports the sentence imposed.
In consideration of the foregoing and the record as a whole , the judgment of the trial court is affirmed.

_________________________ Joseph M. Tipton, Judge CONCUR:

__________________________ Gary R. Wade, Judge

__________________________ William M. Barker, Judge