# FILED
March 24, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE DECEMBER SESSION, 1997

STATE OF TENN ESSEE, ) ) No. 03C01-9701-CR-00013 Appellee ) ) HAMILTON COUNTY vs. ) ) Hon. STEPHEN M. BEVIL, Judge JAMIE LEE PITTMAN, ) ) (Aggr avat ed Ro bber y; Rob bery; Appellant ) Carrying a dangerous weapon)
For the Appellant : For the Appellee : Johnny D. Ho uston, Jr. Charles W. Burson 717 Georgia Avenue Attorney General and Repor ter Chattanooga, TN 37402 Clinton J. Morgan Assistant Attorney Gener al Criminal Justice Div

ision 450 James Robertson Parkwa y Nashville, TN 37243-0493
William H. Cox III District Attorney General Rebecca J. Stern Asst. District Attor

ney General Suite 300, Courts Building 600 Market Street Chattanooga, TN 37402

OPINION FILED: AFFIRMED
David G. Hay

es Judge1 Young describ ed Frea knik as a “little black M ardi Gra s aroun d April . . . .” 2 OPINION
The appellant, Jamie Lee Pittman, was foun d guilty by a Hamilton County jury of aggravated robbery, robbery, and carrying a dangerous weapon. The trial court subsequently imposed an effectiv e sentence of twelve y

ears in the Department of Correction. In this appeal as of right, the appellant raises the following issues: I. Whether the trial court erred in deny ing the appellant’s Moti on to Suppress; and II. Whether the evidence is suff icient to sustain the appellant’s convictio n for aggra vated rob bery.
After a review of the rec ord before us, we affirm the judg ments entered by the trial court.

Background
On April 23, 1994, Bryant Young and Dereke Silvers, life-long friends, were preparing to travel

from their home in Chattanooga to Atlanta, Georgia to attend “Freaknik,” a week

long gathering of student s from African-American colleges in the southeast. 1 Young packed several new outfits, “a lot” of compac t discs, and his nine millimeter Ruger, w

hich had been disassembled and plac ed in his luggage for the journey to Atlanta. Yo ung then left his home in his 1989 Nissan pickup truck to meet Silvers.
Before the two young men le ft Chattanooga, Young stopped at a convenience store to get a beer and some snack food for their t rip. As Young pulled into the parking lot, he no ticed a taxi cab enteri ng the lot. The driver of the cab knew both Young and Sil vers and called out to the two men. Young noticed that3

three passengers were inside the cab. He then observed two of the passengers enter the store. While Silvers r emained in the truck, Young entered the store and selected his purchases. Soo n thereafter, Silvers, l eaving the truck unattend ed, went into the store. Silver

s and Young then proceeded to pa y for their purchases. A s Young was leavi ng the store he observed two individuals, l ater identified as Brewer and Jennings, walking away with two of his bags containing personal items which had been placed in the bed of his truc k. In an attempt to regain hi s possessions, he chased after the two. One of the fleeing thieves, Cornelius “Red Bone ” Jennings, had a sawed off pump shotgun with a shirt wrapped arou nd the barrel. Je nnings pointed the weapon towards Young and forced him to lay upon the ground. The appellant approached Young, picked him up off the ground, and demanded Young’s jewelry and wallet. Meanwhile, Greg “BooBoo” Brewer was taking Young’s compact discs and telephone out of the cab of the tr uck. When Silvers finally emerg ed from the store, he was gre eted by Jennings a nd his sawed off shotgun. Like You ng,Silvers was robbed of his jewelry and wallet. The perpetrators, clutching their illgotten gains, fled the scene. Young and Silvers located a police officer nearby and reported the incident.
Detective Randy Pol and obtained descriptions of the r obbers from both Silvers and Young. He then prepared photo-lineups which he separately

showed to both victims. Young identified both Pittman and Brewer as the perpetrators; Silvers was only able to identify Brewer from the lin eup.
On April 29, 1994, at approximately 2:00 p.m., Dereke Silvers again contact ed the Ch attanoo ga Police D epartme nt. He rep orted th at three men drove by his house in a red v ehicle and pointed weapons at him. He described these men as the three men who had robbed him earlier that month; “one by the name of Jamie Pittman and the other one was “BooBoo.” Silvers described the clothing his assailants were wearing, the vehicle in which the men were traveling, and also4

described the weapons the men w ere carrying, i.e. , “semi-automatic,” “li ke a .9 millimet er.” This informa tion was di spatche d over the p olice rad io and Det ective John Carter responded to the c all. Detective Car

ter was acquainted w

ith “BooBoo” Brewer and the appellant.
Ten minutes after receiving this information, Detectiv e Carter stopped at a convenience store to purc hase something to drink. While inside the store, he recognized the appellant and Brewer as they ent ered the store. He also noti ced a red vehicle, matching the description provid ed by Silvers, par ked outside. Carter advised the two men to st op and, although familiar with them by name, asked them to identify themselves. The appellant responded truthfully while Brewer pr

ovided a false name. Carter called for bac kup and detained the appellant and Br ewer inside the store. After backup arri ved, Carter went out

side to the vehicle and l ooked through the windows . At this point, the detecti ve observed what appe ared to be the barrel of a gun protruding from beneath the front passenger seat.Carter opened the door and retrieved the gun, a .38 Rossi revo lver. Believing that the weapon provided probable cause for a more detailed search of the car,Carter looked in the glove compartment wher e he discovered a nine mil limeter Ruger. Both w eapons were loade d. At this point, th e appella nt and Bre wer were take n into cus tody.

I. Search of Appellant’s Vehicle
The appellant first argues that the trial court erred i n denying his motion to suppress, thereby, permitting introduction of the two pistols found in th e automobile driven by the appellant. In support of this contention, the appe llant asserts the wellestablished principle that , “warrantless sear ches and seizures are pr esumed to be unreasonable unless they fall within one of the excepti ons to the warrant requirement.” He contends that the search of the vehicl e was executed without the benefit of a valid exception t o the warrant requir

ement. We disagree.5 On a motion to suppress, deference i s given to the trial court to assess the credibility of the witnesses and determine issues of fact, and th e prevailing party is entitled to the strongest l egitimate view of the e vidence. State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996). Moreover, the trial court’s findi ngs will not be dis turbed on appeal unless the evidence pr eponderates otherwise. Id . At the conclusion of the motion to suppress, the trial court upheld the validity of the search based upon the presence of exigent circumstances plus probable cause to justify the warrantless search. In arrivin g at this conclusion, th e trial court found, in rel evant part, as follows: . . . the line of cases since Chambers and Carroll basically said that if the officer has probable cause to such that he could go get a search warrant, in light of the fact that this is a movable object and it is subject to be moved and in light of the exigent circumstances , that it would be sort of an exercise in futility to require him to go back and get a search warrant, if he has probable cause to search it. . . . . . .I feel like that it is

a valid search, it’ s a justifiable search as an exception to the search warrant requirement, and that is an automobile search under Carroll and Chambers v. Maroney and those other cases. . . .
Additionally, the court concluded that the possible presence of an unidentified third person at the scene, who coul d have driven the v ehicle away or shot

the officer with the weapon, justified the officer’s “approaching the car to glance insid e.” Accordingly, the tr

ial court opined that, once C arter observed the barr el of the weapon protruding from beneath the front seat of the car, he had probabl e cause to expand his search to the r emainder of the vehicle, incl uding the glove compar tment.
Any warrant less sear ch is presu mptively per se unreasonable under the Fourth Amendment. Minnesota v. Dicker son , 508 U.S. 366, 372, 113 S.Ct. 2130, 2135 (1993). Since warr antless searches are pres umed to be unreasonable, the prosecution has the burden of establ ishing by a preponderanc e of the evidence that the search and resulting seizure were jus tified pursuant to one of the recogn ized exceptions to the war

rant requirement. State v. Watkins , 827 S.W.2d 293, 2952 Probable cause i s defined as “a reasonable gr

ound for suspicion, supported by circumstances indicative of an ill egal act.” State v. Johnson , 854 S.W .2d 8 97, 8 99 (T enn . Crim

. App. 1993). I n the present case, Detective Carter had been informed by Si lvers, the vict im of the aggravated rob bery, that the perpetrators of the robber y (who had prev iously been identi

fied as the appell ant, Brewer,and Jennings) dr ove by hi s home in a red car poi nting “semi- automatic” weapons at him. Carter then observ ed the appell ant and Brewer pul l int o the parking lot of the conve nience s tore in a red vehicle. Ca rter was ju stified in relying up on Silvers ’ informa tion. W here the information is received from a citizen informant, the information is presumed reliable and the offi cer is not under any obl igati on to establ ish that the source i s credibl e or that the inform ation is reliable. See State v. Cauley , 863 S.W .2d 411, 4 17 (Te nn. 1993 ); State v. Melson , 638 S.W .2d 342, 3 54-55 (T enn. 198 2), cert. deni ed , 459 U.S.1137, 103 S.Ct. 770 (1983) . “An ordinary citi zen who report

s a crime which has been committed i n his presence . . . stan ds on much different ground than a police informer.” State v. Sm ith , 867 S.W .2d 3 43, 3 47 (T enn . Crim

. App. 1993) (citationomitted). This dist incti on is appli cable to t he present case. Detectiv e Carter had no re aso n to q ues tion th e cre dibility of Silver s, wh o had been the vic tim o f a vio lent c rim e comm itted previously by the perpetrators. Silvers was an eyewitness to the offense. More over, the circumstances which developed subse quent to Carter’s arrival at the convenience store corrob orated S ilvers repo rt. Thus , sufficient p robable cause existed fo r the ens uing sea rch. 6 (Tenn. 1992) (citing Coolidge v. New Hampshire , 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2032 (1971); Hughes v. State , 588 S.W.2d 296, 301 (Tenn. 1979)). The Supreme Court of the United States has continually carv ed out exceptions to the warrant requirement based on the level of intrusi veness involved i n the search, the expectation of privacy

of the individual, and the ci rcumstances surrounding the search. State v. White , No. 03C01-9408-CR-00277 ( Tenn. Crim. App. at Knoxvi lle, June 7, 1995).
The law is well established that, “if a car is readily mobile, [an exigency sufficient to excuse the failure to obtain a search warr ant] and probable cause exis ts to believe it contains contraband, the Fourth Amendme nt permits police to search the vehicle without more.” 2 Pennsylvania v. LaB ron , -- U.S. --, 116 S.Ct . 2485, 2487 (1996). See also California v. Carney, 471 U.S. 386, 105 S.Ct. 2066 (198 5); Carroll v. United States , 267 U.S. 132, 155-56, 45 S.Ct. 280, 286 (1925); State v. L eveye , 796 S.W.2d 948, 953 (Tenn. 1990); State v. Julian , No. 03C01-9511-CV-00371 (Tenn. Crim. App. at Knoxv ille, Jul. 24, 1997); State v. Mason , No. 01C01-9509-CC00288 (Tenn. Crim. App. at Nashv ille, Apr. 30, 1997); State v. Parrish , No. 01C01- 9309-CC-00292 (Tenn. Crim. Ap p. at Nashville, Nov. 16, 1995), perm. to appeal denied , (Tenn. Apr. 1, 19 96). Once an offi cer has pr obable c ause to b elieve contraband is contained in the vehicle, he may searc h the automobile and the containers within it

. California v. Acevedo , 500 U.S. 565, 580, 111 S.Ct. 1982, 19917

(1991). Thus, Carter’s i nitial search of the vehic le and subsequent search of the glove compartment was proper.
Another exception to the w arrant requirement also is applicable under the facts of the present case, i.e. , when the seized items are in “plain view

” from a lawful vantage point of the searchi ng officer. See Harris v. United S tates , 390 U.S. 234, 236, 88 S.Ct. 992, 993 (1968); Armour v. Totty , 486 S.W.2d 537, 540 (Tenn. 1972). The “plain view” doctrine requires proof that: (1) the objects seized were in plain view; (2) the v

iewer had a right to

be in position for the vie w; and (3) the incriminating nature of the o bject was immediately apparent. Horton v. California , 496 U.S. 128, 136-141, 110 S.Ct. 2301 , 2308-2310 (1990), overruling in part , Coolidge v. New Hampshire , 403 U.S. at 443, 91 S.Ct. at 2022; see also Minnesota v. Dickerson , 5 08

U. S. at 37 5, 11 3 S .Ct. at

21 36 -3 7 ( ci ta

ti on s o mi tt ed ). We conclude that the circumstances surrounding the challenged search sat isfy the plain view exception t

o the warrant requir

ement. First, Detectiv

e Carter had a right to be in “position for the view.” The appellant’s vehicle was already parked in the store’s parking lot, subject to

observation by any

one who cared to look. See United States v. Willis , 37 F.3d 313, 316 (7th Cir. 1994). Merely by approaching the vehicl e, Carter was in a leg itimate position to look thr ough the window of the v ehicle. Id

. Next, Detective C

arter testified that he saw , “in plain view ,” what appeared to be the barrel of a weapon protruding from beneath the f ront passenger seat of the vehicle matching the description pr ovided by Silver

s, who had, less than thir ty minutes before, recounted the incident inv olving the appellant, B rewer, and Jennings w aving guns at him from a red car. Thus, Carter’s seizure of the Rossi revolver falls within the “plain view”

exception to the warr

ant requirement.
The evidence in the record does not preponderate against the trial court’s findings as to this issue.Accordingly, thi s issue is without mer it.8 II. Sufficiency

of Evidence
In his final issue, the appell ant limits his challenge regarding the sufficiency of the evidence to his conviction for aggravated robbery. He argues that the proof fails to establish that the victim Bryant Young was placed “in fear.” In support of his contention, h e asserts that “You ng never testified that he was in fear. Moreover, when explicitly

asked the question ‘how did this all make you feel, ’ he replied that he was angry and shock

ed, but never that he was in fear.” Thus, the appellant contends that the State failed to sati sfy an essential element of the offense of aggravated robbery. We disagree.
When a challenge is made on appeal to the sufficiency of the convicting evidence, this court must adhere to certain well-established principles. First, a jury conviction removes the presumption of innocence with which a defenda nt is initially cloaked and replaces it w ith one of guilt, so that on appeal a convicted defendant has the burden of demonstrating that the evidence is insufficient. State v. Tuggle , 639 S.W.2d 913, 91 4 (Tenn. 1982). Next, the State is entitled to the strongest legitimate view of the evidence and all reasonable or legitimate inferences which may be drawn therefrom. State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992). Moreover, this court

may not reweigh or

reevaluate the evidenc e. State v. Cabbage , 571 S.W.2d 832, 83 5 (Tenn. 1978). Viewing the evidence under these criteria, it is this court's responsibi lity to affirm the convic tion if the proof was sufficient for any rational trier of fact to hav e found the essential elements of the offense bey ond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 317, 99 S.Ct. 2781, 2789 (1979); State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994); Tenn. R. App. P. 13(e)

. This rule is applicable t o findings of guilt predic ated upon direct evidence, circumstantial evidenc

e, or a combination of both direct and circumstantial evi dence. State v. Ma tthews , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).9 In the present case, aggr avated robbery is defined as the intentional or knowing theft of property from the person of another by v iolence or putting the person in fear where the r obbery is accomplished w ith a deadly weapon. Tenn. Code. Ann. § 39-13-401, 402 (1990). As the language of th e statute plainly provides, robbery may

be accomplished through either the element of “putting the person in fear” or “by violence.” Id .; see also State v. Nunley , No. 01C01-9309-CC00316 (Tenn. Crim. App. at Nashville, Feb. 2, 1995). It is abundantly clear, in this case, that the robbery w as accomplished through v iolence. Moreover, the fact that the victim failed t o testif y that he was in fear d uring the robbery is n ot deter minative of the issue. The element of either “fear” or “violence” is

satisfied if the circumstances of the incident, within reason and common ex perience, are of such a nature as to persuade a person to part with his proper

ty against his w

ill. See generally State v. Thien Duc Le , 743 S.W.2d 199, 20 1 (Tenn. Crim. App. 1987); State v. High , No. 02C01-9312-CR-00275 ( Tenn. Crim. App. at Jackson, Oc t. 12, 1994). The fact that co-defendant Jennings pointed a sawed off shotgun in the victim’s face whil e the appellant removed the v ictim’s rings and w

allet is sufficient proof of both violence and fear. In addition , the appellant’s taking of the victim’s property is sufficient to find him criminally responsible for Jennings’ acts of violence. See Tenn. Code Ann. § 39-11-402(2) ( 1991). This issue is w ithout merit.

III. Conclusion
For the forgoing reasons , the judgment of the trial cour t is affirmed.10 ____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

______________________________________ DAVID H. W ELLES, Judge

______________________________________ THOMAS T. W OODALL, Judge