IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs June 24, 2014

STATE OF TENNESSEE v. JAN MICHELLE ELL

Appeal from the Circuit Court for Blount County

No. C-21225 Tammy Harrington, Judge

No. E2013-01624-CCA-R3-CD - Filed June 25, 2014

The Defendant, Jan Michelle Ell, was convicted by a Blount County Circuit Court jury of

especially aggravated robbery, a Class A felony, and conspiracy to commit especially

aggravated robbery, a Class B felony. See T.C.A. §§ 39-13-403, 39-12-103 (2010). The trial

court sentenced the Defendant as a Range I, standard offender to concurrent sentences of

twenty-two years for the especially aggravated robbery conviction and twelve years for the

conspiracy conviction. On appeal, the Defendant contends that the evidence is insufficient

to support her convictions. We affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

JOSEPH M. TIPTON, P.J., delivered the opinion of the court, in which ROBERT W.

WEDEMEYER and D. KELLY THOMAS, JR., JJ., joined.

J. Liddell Kirk (on appeal), Knoxville, Tennessee, and Mack Garner, District Public

Defender (at trial), for the appellant, Jan Michelle Ell.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Senior Counsel;

Michael L. Flynn, District Attorney General; and Kenlyn Foster, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

This case relates to the robbery of James Anthony Tripplett. At the trial, Blount

County Sheriff’s Deputy Billy Madore testified that on May 9, 2012, he was dispatched to

Williams Mill Road and that he found the victim lying on the ground near a shed where the

victim had been sawing wood. He said the victim was lying in a pool of blood and had an

injury to his arm. He said the victim complained of a broken arm and a head injury. The
victim told him that he was standing with his back to the road when a “male came up and

attacked him.”

Deputy Madore testified that the person who called 9-1-1 was at the scene when he

arrived, although he did not recall who the person was. He said his supervisor arrived at the

scene and called for a K-9 unit to look for suspects. He said the victim stated that the man

who attacked him was eighteen or nineteen years old but that he did not know him. He said

the victim told him that he fell after he was struck and that he saw “them” run behind the

building. The victim told him that he thought a woman was there.

On cross-examination, Deputy Madore testified that from where he found the victim,

a picnic table was within the victim’s reach. He said wood and a “power saw” were on the

table. He did not know if the saw was still plugged in but said it was not on when he arrived.

He did not investigate whether the saw had a trigger or worked continuously.

The victim testified that he rented property on Williams Mill Road where he and his

friends visited. He knew the Defendant as Janet Hurst and had known her for about one and

one-half years. He said he first met the Defendant when she stopped by the shop and claimed

she was out of baby formula and diapers for her child or grandchild. He said he gave the

Defendant $15 or $20 for the items she needed. He said he saw the Defendant once a month

thereafter.

The victim testified that he purchased wood, junk, and old scrap iron from the

Defendant. He said that on one occasion he paid the Defendant $80 for a truckload of wood,

but the Defendant failed to deliver it. He said that he purchased two additional truckloads

of wood and that the Defendant delivered it the day he was attacked. He said he paid Tiffany

Dalton, the Defendant’s daughter, for the wood. He said Ms. Dalton and “a boy,” whom he

did not know, came with the Defendant to deliver the wood. He said he paid $100 for the

wood and pulled the money from his wallet when the wood was delivered. He said he carried

$600 or $700 most of the time.

The victim testified that on the day he was injured, the Defendant and two other

people arrived with the wood and unloaded it, which took about thirty minutes. He said they

left, returned with the second load of wood sometime later, which also took about thirty

minutes to unload, and left again. He said that a friend stopped at the shop, that they talked

for about thirty minutes, and that his friend left. He denied seeing the Defendant use the

telephone when she was there. He said he was struck in the head with a metal pipe about

thirty minutes after the Defendant and the other people left.

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The victim testified that he was cutting wood with his back toward the road when he

was struck in the head and fell to the ground. He said he saw a shadow of a tall, slim man.

He said the man struck him four or five times from his “shoulder though []his elbow.”

Although the man did not speak, the victim asked the man to stop striking him. The man

took his wallet and left, and the victim called for help. He said that after he fell to the

ground, the man disconnected the chain from his wallet to his belt, took his wallet containing

his credit cards and other things, and went around the corner of the building.

The victim testified that he was in pain and bled from his injuries, although he did not

lose consciousness. He denied he was able to stand and said he was transported to the

hospital on a gurney. He said he learned later that his arm was broken in two places.

Regarding his head injury, he said, “They . . . felt just like I had blacked out just for a

second.” He said he thought the saw electrocuted him after the first strike to his head. He

stayed overnight at Blount Memorial Hospital. He said he received five stitches, and he was

required to wear a sling for his arm. He said his arm continued to hurt, and he thought it had

arthritis. He said that he could no longer use his arm but that he had broken his shoulder

previously, which never healed right and developed arthritis. The victim’s medical records

were received as an exhibit.

The victim’s medical records showed that he was eighty-six at the time of the attack.

The victim’s injuries were classified as “Level 3 - Urgent,” and he suffered a broken distal

humerus fracture, an elbow laceration with suture repair, a fractured wrist, a closed head

injury, and multiple contusions. The injury to his left arm was considered “significant.” He

reported no loss of consciousness but said he had head and neck pain. The victim had a

hematoma to the head, a mild headache, and mild dyspnea. He received a splint/cast for his

left arm and wrist. He received wound care to his left elbow, including dressings and

neosporin. The nuerovascular exam was normal before and after the victim received

treatment. He developed “significant” bruising and swelling in his left hand and arm and

complained of moderate pain. The records show that before the assault, the victim had a

history of asbestosis, hypertension, diabetes, atrial fibrillation, congestive heart failure, a

shoulder fracture, chronic back pain, coronary artery disease, chronic renal insufficiency,

benign prostatic hypertrophy, and renal calculi.

The victim testified that when he paid the Defendant, Ms. Dalton, and the boy for the

wood, he pulled the money from his three-fold wallet, which contained about $800. He said

the three-fold wallet was his second wallet and separate from the wallet containing his cards.

He agreed the Defendant watched him pull out his wallet. Regarding the previous times he

paid the Defendant, he said he paid her with money from the same wallet.

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The victim testified that the Defendant promised to deliver a truck containing cedar

wood and old junk air conditioners but that the Defendant never delivered the things,

although he paid her for them. He said he paid her $128 for a radiator and $90 for a busted

tire he never received.

On cross-examination, the victim testified that his wallet holding his credit cards was

larger than a regular wallet. He said the three-fold wallet was beige and the other wallet,

which was taken, brown. He said that he always kept his money in and paid the Defendant

with money from the three-fold wallet.

The victim testified that he paid the Defendant about eight times during the length of

time he knew her. He said he was expecting the Defendant on the day of the attack because

she called him that morning. He said his friend, Johnny Dossett, arrived before the

Defendant, Ms. Dalton, and the boy finished unloading the wood. He said Mr. Dossett left

immediately after they left. He said that after Mr. Dossett left, he began using the saw and

was struck on the head.

The victim testified that the saw was electric and stopped working automatically for

safety when the trigger was not pressed. He said that he was in the process of sawing a piece

of wood when he was struck in the head. He denied seeing who hit him but said he saw the

man after he fell to the ground. He knew it was a man who hit him, not a woman, and said

he did not see anything in the man’s hands. He did not know with what the man struck him.

The victim testified that the man cut the wallet chain from his pants but that he did not

know if the man had a knife. He said that the loop in his pants had been cut when he looked

at his pants afterward. He said he saw the man reach toward his wallet. He denied seeing

Ms. Dalton but said he thought he saw a woman, although he did not know who she was. He

said that his current health was similar to his health before the attack, except for the arthritis.

He agreed he had “recovered pretty well.” He said he did not lose any money from the

incident because his three-fold wallet was not taken.

On redirect examination, the victim testified that although he did not recall the time

the Defendant delivered the wood, it was early afternoon. He said the Defendant called him

a “poor specimen of a man” because he did not help them unload the wood. He said he was

not capable of unloading it because of a back injury. He said he kept his wallets in opposite

sides of his pants.

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The victim testified that Mr. Dossett was seventy-six years old, 6' tall, and whiteheaded. He denied Mr. Dossett looked like the person who struck him. Although he did not

see what struck him, he thought it was a stick. He said that the attack happened quickly and

that he was dizzy afterward. He denied he was injured by his saw.

Lester Caughorn testified that he knew the victim and that his farm was across the

road from where the victim was attacked. He said that on May 9, 2012, he was planting a

garden on his farm and that he saw the Defendant talking to the victim and the Defendant’s

daughter inside their PT Cruiser when he left to buy more potting soil. He said the

Defendant waved at him.

Mr. Caughorn testified that the greenhouse where he bought potting soil was about

four minutes away by car and that he was inside the store for about three minutes. He said

that when he returned home, he heard on his police scanner that officers were being

dispatched to Williams Mill Road. He thought his cows might have escaped but said he saw

police cars and an ambulance at the victim’s shop. He estimated twenty minutes elapsed

between the time he saw the Defendant talking to the victim and the time he saw the police

cars and the ambulance. He said it was about noon when he saw the emergency responders.

On cross-examination, Mr. Caughorn testified that he did not see any young men at

the victim’s shop when he saw the Defendant there. He said he knew the Defendant’s

daughter, who waved at him. He said everyone appeared friendly and denied seeing anyone

yelling or “shaking their fists.” He said he could not see the victim because of the emergency

responders.

On redirect examination, Mr. Caughorn testified that Larry Lonas told him the victim

had been assaulted and that his first thought was seeing the Defendant and her daughter at

the victim’s shop. He said he called the police department and told Detective Davis who and

what he saw at the victim’s shop.

Tiffany Dalton, the Defendant’s daughter, testified that she was a codefendant in the

present case, that the State had not offered her leniency in exchange for her testimony, and

that she was testifying because the victim deserved justice and because she blamed her

mother for being involved in this case. She said that at 10:00 a.m. on May 9, 2012, she took

her father to work and took the Defendant to St. Mary’s Hospital at 10:30 a.m. because the

Defendant wanted to be admitted into a “detox center.” She said she picked up Christian, her

younger sister, and Chestin Johnstone, Christian’s boyfriend, at Mr. Johnstone’s house. She

said the Defendant, Mr. Johnstone, and Christian dropped her off at “UT Hospital” for an

ultrasound around 12:00 p.m. and returned about two hours later. She said that they returned

to their apartment. She said she walked into the apartment and saw the Defendant, Christian,

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and Mr. Johnstone talking. She said that the Defendant and Mr. Johnstone went outside and

that she followed. She said that they drove to the victim’s shop and that the Defendant left

the car and used her cell phone. She said she thought the Defendant “was asking like she

was using the phone” because “her phone . . . sounded strange.” She said the Defendant

returned to the car. She said that they drove to the Clayton Home parking lot, that the

Defendant said, “Okay,” and that Mr. Johnstone pulled out gloves and gave Ms. Dalton a

pair. She said that she and Mr. Johnstone got out of the car, that Mr. Johnstone picked up

a pole, and that Mr. Johnstone walked up behind the victim and struck him on the head and

back with the pole.

Ms. Dalton testified that she watched Mr. Johnstone strike the victim and that Mr.

Johnstone told the victim to roll over. She said that Mr. Johnstone stuck the victim again and

that she ran. She said Mr. Johnstone “yanked” the victim’s wallet and ran toward the car.

She said that when they got into the car, Mr. Johnstone realized no money was inside the

wallet. She said the Defendant looked at the wallet and told Mr. Johnstone he took the

wrong wallet. She said the Defendant explained the victim had two wallets in separate pants

pockets, threw the wallet at her, and told her to wipe off the fingerprints. She thought the

engine was running when she returned to the car. She said she gave the wallet to Mr.

Johnstone, who threw it out of the car. She said the Defendant stated that she wanted to

return to the victim’s shop to ensure the victim was okay, but Ms. Dalton thought the

Defendant wanted to return for the wallet containing the money. She said that someone was

already there when they returned and that they drove to their apartment. She said that she

drove the Defendant to St. Mary’s Hospital again, waited there for over an hour, left St.

Mary’s, met a man who gave them money, and “went and got a pill.” She said that a

detective called her and that she met him at the lake.

Ms. Dalton testified that Mr. Johnstone struck the victim three or four times. She said

the Defendant spoke about robbing the victim before May 9, 2012. She said the Defendant

told some of their family members and some of the Defendant’s friends three or four days

before the attack that she wanted to rob the victim. She said the Defendant also talked to her

and Mr. Johnstone about robbing the victim and assigned them roles. She said the Defendant

stated that Mr. Johnstone would strike the victim and that Ms. Dalton would grab the wallet.

She said she did not call the police because she was scared. She denied asking her mother

to call the police.

Ms. Dalton testified that when she first spoke to the police, she told the detective that

she was not involved and that her sister was with Mr. Johnstone and the Defendant. She said

she lied because she was scared and knew “the whole deal was wrong.” She said that the

following day, she went to the police station voluntarily, asked to speak to the detective, and

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told the truth about what occurred. She said she was arrested that day. She said that she put

the gloves in her pocket after Mr. Johnstone gave them to her.

Ms. Dalton testified that the Defendant offered to sell the victim wood about one

month before the attack. She said that she heard the Defendant talking about the wood, that

the Defendant told the victim that their truck was out of gas, the radiator “went out,” and the

starter broke, and that the victim “practically bought a truck that did not exist.” She did not

recall if the victim bled after the attack.

On cross-examination, Ms. Dalton testified that she told the detective two versions of

events before telling the truth. She agreed she first told the detective that the Defendant and

Ms. Dalton’s sister went to the victim’s shop, that the Defendant got out of the car, that the

Defendant made a telephone call, that the Defendant returned to the car, and that they left.

She agreed she later told the detective that the Defendant and Christian picked her up from

a doctor’s appointment, that they went to the victim’s shop, that the Defendant got out of the

car and made a telephone call, that they left and drove to a small parking area around the

corner, that Mr. Johnstone appeared and was running toward their car, and that he had the

victim’s wallet. She agreed she also stated previously that Christian and Mr. Johnstone

robbed the victim and struck him on the head. She agreed she told the detective three or four

versions of the events.

Ms. Dalton testified that although she had been to the victim’s shop before the attack,

they did not deliver wood to the victim that day. She agreed the victim was mistaken. She

said she helped deliver wood two or three days previously. She denied knowing that she, the

Defendant, and Mr. Johnstone were going to the victim’s shop when they left the apartment.

She said she did not know the victim had two wallets until after the robbery when the

Defendant told her and Mr. Johnstone inside the car. She denied the Defendant mentioned

the two wallets before the robbery. She denied Mr. Johnstone had any weapons to cut the

wallet from the victim’s clothes during the robbery. She said that before the robbery, she

“kind of figured” the plan was to rob the victim but that she did not think Mr. Johnstone

would “really do it.” She said Mr. Johnstone obtained the metal pole or pipe from the porch

of an abandoned house next door to the victim’s shop. She said the pole was a little longer

than a walking stick.

Ms. Dalton testified that Mr. Johnstone walked up behind the victim, who was sawing

wood, and struck the victim. She said that the victim fell to the ground, that she stood still

for a few seconds, and that she ran away. She denied telling Mr. Johnstone to stop hitting

the victim. She said Mr. Johnstone took the victim’s wallet by yanking it from the victim’s

pants pocket. She denied the wallet was cut from the victim’s pants.

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On redirect examination, Ms. Dalton testified that she provided the detective with the

false versions of the events on May 9, 2012, the day of the attack. She agreed she voluntarily

went to the police station on May 10 and told the truth. She said she was afraid of her

mother. She said she thought Mr. Johnstone was only acting like he was going to rob the

victim in order to get the Defendant’s approval.

Upon questioning by the trial court based on questions submitted by the jury, Ms.

Dalton testified that the Defendant did not tell her they were going to rob the victim during

the drive to the victim’s shop. She denied knowing the victim was going to be robbed that

day. She denied asking Mr. Johnstone what he was going to do with the pipe when he picked

it up. She said she did not want to be a part of the robbery.

April Monnett testified that the Defendant was her biological mother but that she was

raised by her grandmother, Virginia Hurst. She said that in March and April 2011, she and

her husband lived with the Defendant in order for her husband to be closer to work. She said

that during that time, the Defendant asked her and her husband to help rob the victim. She

said the Defendant asked her to rob the victim on multiple occasions. She said that on one

occasion, the Defendant planned to hit the victim on the head and take his money. She said

that on another occasion, the Defendant just wanted to rob the victim. She said the

Defendant mentioned different ways of robbing the victim. She said the Defendant later said

she would have Mr. Johnstone rob the victim by threatening Christian and her unborn child.

She denied hearing the Defendant threaten Mr. Johnstone. She said the Defendant wanted

the victim’s money but wanted someone else to rob him.

On cross-examination, Ms. Monnett testified that she and her husband were the only

people present when the Defendant asked them to rob the victim. She said her father was

always at work when the Defendant mentioned it. She agreed she drove the Defendant to the

victim’s shop previously and said the Defendant went there to “scheme” the victim for

money.

David Monnett testified that the Defendant was his mother-in-law and that he had

known her about seven years. He said he and his wife lived with the Defendant for two or

three months the previous year. He said the Defendant wanted him to go to the victim’s

shop, hit him on the head, and take his money. He said the Defendant wanted him to hit the

victim with a piece of wood. He told the victim he would not rob the victim.

On cross-examination, Mr. Monnett testified that he only recalled the Defendant’s

asking him once to rob the victim. He said that if his wife testified that the Defendant asked

multiple times, he said he did not pay attention to everything and attempted to keep to

himself most of the time. He said, though, he was asked to help the Defendant “scheme” the

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victim out of his money. He agreed he thought the Defendant was taking advantage of the

victim by promising to do something or by selling him things that were of no value.

Regarding the Defendant’s asking him to rob the victim, he said the Defendant described the

victim’s wallet as having a chain.

Blount County Sheriff’s Crime Scene Investigator Jason Shudan testified that he

responded to the scene after the victim was transported to the hospital. He found a metal

pole behind the building. He said that a substance he thought was blood was on the pole and

that three swabs were obtained from the pole and sent to the Tennessee Bureau of

Investigation (TBI) Crime Laboratory for analysis.

On cross-examination, Investigator Shudan testified that the metal pole was not

concealed and was found quickly. He said the pole was found about 200' from the victim’s

table and saw. On redirect examination, he stated that he obtained a buccal swab from the

victim and Mr. Johnstone during his investigation.

TBI Special Agent Forensic Scientist Kim Lowe, an expert in DNA analysis and

serology, testified that she analyzed the three swabs taken from the metal pole and the buccal

swabs obtained from the victim and Mr. Johnstone. She said that the substance found on the

metal pole contained the victim’s blood and DNA. She also found the presence of Mr.

Johnstone’s DNA on the pipe and said that although it was possible Mr. Johnstone touched

the pipe, she could not conclude he did because the sample was degraded. Her report was

received as an exhibit.

On cross-examination, Special Agent Lowe testified that DNA was contained in white

blood cells and that the probability of obtaining a DNA profile from blood was much higher

than the probability of obtaining a DNA profile from an object after it had been touched. She

agreed that touch DNA might not transfer to an object if someone wore gloves. On redirect

examination, she agreed the probability of someone in the Caucasian population matching

the degraded DNA sample from Mr. Johnstone was one out of twenty-nine.

Blount County Sheriff’s Detective Douglas Davis testified that he was the lead

investigator assigned to the present case. After he arrived at the scene, he learned that the

suspects left the scene on foot and requested a K-9 unit to search for them. He said the K-9

track led to a nearby parking area, from which he concluded the suspects got into a car. He

said that along the K-9 track, a metal pipe was found. He said he left the scene and drove

to the hospital to speak with the victim. He said that the victim was wearing a neck brace

and that his arm was bandaged with a lot of blood coming through the bandages and onto the

bed. He said that the victim was conscious and “somewhat” able to communicate. He said

that the victim had welts on his side but that he could not determine the number. He said that

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the victim’s arm was broken and bleeding and that his left elbow protruded through the skin.

Photographs taken at the hospital were received as exhibits. One photograph showed

the victim wearing a neck brace. Another showed the victim lying on a hospital gurney with

his left arm wrapped in blood-soaked dressings. The bedding from the gurney also had blood

on it. A third photograph showed a bruise to the victim’s arm. Two additional photographs

showed the victim’s unbandaged arm. Although the photographs failed to show the source

of the blood, the victim’s arm bled heavily. A large pool of blood was on the gurney. The

last photograph showed the victim’s elbow, the source of the bleeding. The victim’s bloodcovered bone protruded from the skin.

Detective Davis testified that he spoke with Mr. Caughorn, who saw the Defendant’s

red PT Cruiser at the victim’s shop. He said Mr. Caughorn was adamant that no one else

could have arrived at the victim’s shop and attacked him during the time Mr. Caughorn went

to purchase potting soil. Detective Davis went to the victim’s apartment and found Christian

and Mr. Johnstone, who told him the Defendant was in a rehabilitation program. He asked

who drove the Defendant’s car, and they identified Ms. Dalton. He said he went to the

Defendant’s husband’s place of employment. He said the Defendant’s husband did not know

where Ms. Dalton was but knew the Defendant was “supposedly” in a rehabilitation program.

He asked the Defendant’s husband to have Ms. Dalton call, and Ms. Dalton called him later

that day.

Detective Davis testified that he met Ms. Dalton on May 9, 2012, and that she lied

about whether she had been to the victim’s shop earlier that day. He said that she agreed to

go to the police station for a formal interview and that her versions of the events were

inconsistent. He recalled her telling four versions of the events. He denied arresting her that

day. He said that the next day, Ms. Dalton called and asked to speak with him. He said she

returned to the police station and provided another statement. He denied she was under arrest

before giving the statement and said she voluntarily spoke to him. He said Ms. Dalton first

stated that the Defendant, Mr. Johnstone, and Christian were involved in the attack but

confessed she was present, not Christian. He said he was able to corroborate Ms. Dalton’s

last statement.

Detective Davis testified that he knew the Defendant was not in a rehabilitation

program when the attack occurred because witnesses saw her at the victim’s shop near the

time of the attack and because Ms. Dalton’s statements placed her at the scene. He agreed

the Defendant checked herself into a rehabilitation program that day and said she was

arrested when she was released. He interviewed the Defendant on May 15, 2012. The videorecorded interview was played for the jury.

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In the recording, the detective read the Defendant her Miranda rights. The Defendant

stated she understood her rights and did not have questions, and she signed the waiver of

rights form. The detective told her the victim was assaulted and robbed. She agreed she

called the victim “papaw” and asked if he was okay. The detective told her that he

anticipated the victim would survive. The detective asked why the victim was assaulted.

The Defendant said that she was on probation and that she was able to get into a

rehabilitation program. She said that her daughter dropped her off at St. Mary’s Hospital at

10:30 a.m. and that she was there all day. The detective told her that he knew the Defendant

was not at St. Mary’s all day, and she admitted she went to the victim’s shop to tell him the

wood was on the way. She said the victim was cutting wood with a saw when she was there.

She said she visited the victim almost daily. She said she left and went to the hospital. When

the detective asked about her parking in a nearby parking area, she said she did not remember

that part.

The Defendant said Mr. Johnstone got mad at her but she could not recall the reason.

She said Ms. Dalton and Mr. Johnstone jumped out of the car. She said that nobody was

supposed to have been hurt and that she did not know “he” had done it until he returned to

the car. She said that when Mr. Johnstone returned, his face was red. She said that Mr.

Johnstone was bleeding, that she asked why, and that he said he did not know. Ms. Dalton

finally arrived and told the Defendant that Mr. Johnstone hit the victim on the head. The

Defendant admitted that she returned to the victim’s shop but that a woman was there. She

denied knowing what to do and said she would not hurt the victim.

The Defendant denied returning to obtain the victim’s other wallet and said she did

not have anything to do with the assault. She denied a plan existed to attack and rob the

victim. She said she was on probation and would not do anything to get into trouble. She

said that she had no right to hurt him and that it was not planned. She said all she wanted

was to bring the victim things in exchange for money. She said the plan was to deliver wood

to the victim. She said that they went to the park after leaving the victim’s shop and that the

victim was cutting wood when she was there. She said that Mr. Johnstone became angry

with her and that he wanted to pull into the parking area for him to “cool off.” She pulled

into the parking area. She said that Mr. Johnstone got out of the car and walked around the

area, that Ms. Dalton got out of the car to talk to Mr. Johnstone, and that she remained in the

car. She said a van with dogs inside was also parked there.

The Defendant denied knowing what happened to the victim’s wallet. She denied

knowing the victim had his wallet that day until her husband told her the victim had been

robbed. The detective told her that Ms. Dalton and Mr. Johnstone were telling the same

story. She said she did not recall a plan. She wanted to know what she could do to help

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herself. The detective told her he could not help someone who was unwilling to tell the truth

or who was not remorseful. She said she only drove the car.

The Defendant denied returning to obtain the victim’s wallet or to kill the victim. She

said Mr. Johnstone and Ms. Dalton might have had a plan and denied she knew what the plan

was. She said, though, that “we weren’t planning on killing him” and that “he was not

supposed to have gotten hurt.” She denied stealing from the victim. She said Ms. Dalton

“knew about it.” She said she became upset when she learned Mr. Johnstone hit the victim

and agreed she returned to check on the victim. She wanted to check on him but said a

woman was already there. She said she was scared.

The Defendant said they left the house that morning and took her husband to work.

She said she bought a pill and went to the victim’s shop to say hello. She said she went home

and that when there, she talked to Ms. Dalton. She said Mr. Johnstone told them that they

should go to the victim’s shop and “grab his billfold.” She said she thought he was “playing”

but said, “I guess he wasn’t.” She said they left and drove to the victim’s house. She said

she got out of the car and talked to the victim for about fifteen minutes. She said “this would

have never happened” if the victim had listened to her. She said she returned to her car and

left. She said Mr. Johnstone was sending a text message to someone on the phone and “blew

up.” She pulled into the parking area, and Mr. Johnstone got out and said he was going to

take the victim’s wallet. She said she thought Ms. Dalton ran after Mr. Johnstone but could

not stop him. She said Mr. Johnstone had already hit the victim when Ms. Dalton arrived.

The Defendant said that after she no longer heard the victim’s saw, she drove to turn

down the victim’s driveway. She said Mr. Johnstone and Ms. Dalton returned and jumped

into the car. The Defendant said that she asked what happened and that Ms. Dalton said Mr.

Johnstone “just ripped . . . off” the victim. She said that she told them she was going to

check on the victim, that she saw the van at the victim’s shop, and that she decided to drive

away. She said she did not know where the wallet was. She said the only thing she knew

was that Mr. Johnstone “ripped off” the victim. The detective told her that he found the

wallet, and she asked where it was found. She denied seeing Mr. Johnstone throw the wallet

out the car window or touching the wallet. She said the wallet was chained to the victim’s

pants and asked how Mr. Johnstone was able to get the wallet. She said she did not know

because she was in her car.

The Defendant said that Mr. Johnstone handed Ms. Dalton the wallet, that Ms. Dalton

opened it, and that it contained no money. She recalled seeing a photograph in the wallet but

denied touching the wallet. She said, though, she told Ms. Dalton to let her see the wallet

and touched it. She said it took her a minute to remember things because she had taken a lot

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of drugs in her life. She denied lying to the detective. She said Ms. Dalton gave the wallet

to Mr. Johnstone. She said Mr. Johnstone said he robbed the victim because the victim

always gave the Defendant money and thought the victim had a “wallet full” of money. She

said she went to rehabilitation that afternoon.

The Defendant asked the detective to tell her what Ms. Dalton and Mr. Johnstone said

and that she could tell him if it was the truth. She said the victim should not have been hurt.

She said she was on probation because she “got lied on by a man.” She said she was

convicted of theft. She apologized to the victim.

Detective Davis testified that in the recording, the Defendant said that after she no

longer heard the “machine,” “they” jumped into the car. He said the K-9 unit did not stop

anywhere along the road. He denied finding the victim’s wallet, although he told the

Defendant it was found. He said he lied because he wanted the Defendant to think he had

her DNA to determine if she would change her story, which she did.

On cross-examination, Detective Davis testified that the Defendant was under arrest

at the time of the recorded statement. He said the purposes of the interview were to learn the

truth and to determine if the Defendant would incriminate herself. On redirect examination,

he stated that he obtained identical statements from the codefendants before the Defendant

was interviewed and that during the Defendant’s interview, he attempted to elicit the same

statement. He agreed that based on Ms. Dalton’s final statement, she knew the plan was to

rob the victim, although she did not know Mr. Johnstone was going to strike the victim. He

said Ms. Dalton’s trial testimony was consistent with her final statement, except for her

stating at the trial she did not know the plan was to rob the victim.

Upon this evidence, the jury convicted the Defendant of especially aggravated robbery

and conspiracy to commit especially aggravated robbery. The trial court sentenced the

Defendant as a Range I, standard offender to concurrent sentences of twenty-two years for

the especially aggravated robbery conviction and twelve years for the conspiracy conviction.

This appeal followed.

The Defendant contends that the evidence is insufficient to support her convictions.

Although she concedes the evidence shows that a robbery occurred and that Mr. Johnstone

and Ms. Dalton were involved in the robbery, she argues the evidence fails to show her direct

participation. She also argues the evidence fails to show that she was present when Mr.

Johnstone attacked the victim and took his wallet and fails to show that she intended or knew

Mr.Johnstone would use a weapon during the attack. Likewise,she argues the evidence fails

to show the victim suffered serious bodily injury. The State responds that the evidence is

sufficient. We agree with the State.

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Our standard of review when the sufficiency of the evidence is questioned on appeal

is “whether, after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). We do not reweigh the

evidence but presume that the trier of fact has resolved all conflicts in the testimony and

drawn all reasonable inferences from the evidence in favor of the State. See State v.

Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835

(Tenn. 1978). Questions about witness credibility are resolved by the jury. See State v.

Bland, 958 S.W.2d 651, 659 (Tenn. 1997). 

“‘A crime may be established by direct evidence, circumstantial evidence, or a

combination of the two.’” State v. Sutton, 166 S.W.3d 686, 691 (Tenn. 2005) (quoting State

v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998)). Circumstantial evidence alone may be

sufficient to support a conviction. State v. Richmond, 7 S.W.3d 90, 91 (Tenn. Crim. App.

1999); State v. Buttrey, 756 S.W.2d 718, 721 (Tenn. Crim. App. 1988). The standard of

proof is the same, whether the evidence is direct or circumstantial. State v. Dorantes, 331

S.W.3d 370, 379 (Tenn. 2011). Likewise, appellate review of the convicting evidence “‘is

the same whether the conviction is based upon direct or circumstantial evidence.’” Id.

(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

Especially aggravated robbery is the “intentional or knowing theft of property from

the person of another by violence or putting the person in fear” accomplished with a deadly

weapon and when the victim suffers serious bodily injury. T.C.A. § 39-13-403, -401 (2010).

Serious bodily injury is defined, in relevant part, as a substantial risk of death, protracted

unconsciousness, extreme physical pain, protracted or obvious disfigurement, or protracted

loss or substantial impairment of a function of a bodily member, organ, or mental faculty.

Id. § 39-11-106(a)(34)(A)-(E) (2010). “The distinction between ‘bodily injury’ and ‘serious

bodily injury’ is generally a question of fact for the jury and not one of law.” State v. Barnes,

954 S.W.2d 760, 765-66 (Tenn. Crim. App. 1997).

Conspiracy is defined as “two . . . or more people, each having the culpable mental

state required for the offense that is the object of the conspiracy, and each acting for the

purpose of promoting or facilitating commission of an offense, agree that one . . . or more

of them will engage in conduct that constitutes the offense.” T.C.A. § 39-12-103(a) (2010).

The State is required to allege and prove an overt act in pursuance of the conspiracy was

committed by the defendant or by another with whom the defendant conspired. Id. § 39-12-

103(d). The State is not required to establish that a formal agreement existed between the

parties. State v. Carter, 121 S.W.3d 579, 589-90 (Tenn. 2003). The evidence must establish,

though, “‘a mutual implied understanding . . . , although not manifested by any formal words,

or by a written agreement.’” Id. at 590 (quoting Randolph v. State, 570 S.W.2d 869, 871

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(Tenn. Crim. App. 1978)). Conspiracy “‘may be established by circumstantial evidence and

the conduct of the parties in the execution of the criminal enterprise.’” Id.

Regarding the especially aggravated robbery conviction, the Defendant concedes that

a robbery occurred but argues that the victim did not suffer serious bodily injury. In the light

most favorable to the State, the record shows that although the victim had a previous

shoulder injury and arthritis in his left arm, the jury could have found beyond a reasonable

doubt that he suffered serious bodily injury as a result of the attack. The victim described

the pain he felt after he was struck multiple times with a metal pole. Although he did not

lose consciousness, he suffered two broken bones and head trauma. He received stitches and

required overnight hospital treatment. He was required to wear a sling for his broken bones.

He said that after the assault, he was no longer able to use his arm. The photographs of the

victim’s injuries show the extent of the arm injury, including large amounts of blood and a

protruding elbow. We conclude that the evidence shows that the victim suffered protracted

loss or substantial impairment of a bodily organ because of the loss of the use of his arm. See

T.C.A. § 39-11-106(a)(34)(E).

Regarding the Defendant’s participation in the robbery and assault, the evidence

shows in the light most favorable to the State that the Defendant conspired to rob the victim.

Ms. Dalton testified that after she, the Defendant, Mr. Johnstone, and Christian returned

home from her doctor’s appointment, she saw the Defendant, Christian, and Mr. Johnstone

talking. The Defendant and Mr. Johnstone went outside and got into the Defendant’s car.

Ms. Dalton followed them and got into the car. The Defendant drove them to the victim’s

shop. After they arrived, the Defendant left the car and acted “like she was using the phone.”

They left the area and drove to the Clayton Home parking lot. At that point, the Defendant

looked at Ms. Dalton and Mr. Johnstone and said, “Okay.” Mr. Johnstone pulled out gloves,

gave Ms. Dalton a pair, got out of the car, picked up a metal pole, walked up behind the

victim, struck him multiple times with the pole, and took one of the victim’s wallets. When

Ms. Dalton and Mr. Johnstone returned to the Defendant’s car, the Defendant realized that

the wrong wallet was taken. Ms. Dalton recalled that the Defendant’s car’s engine was

running when she returned. The Defendant demanded to see the wallet and told Mr.

Johnstone that he grabbed the wrong wallet. The Defendant explained that the victim had

two wallets and kept them in separate pants pockets. The Defendant threw the wallet at Ms.

Dalton and told her to wipe off the fingerprints. Although the Defendant stated that she

wanted to return to the victim’s shop to ensure he was uninjured, Ms. Dalton thought she

wanted to return for the correct wallet.

The evidence also shows that the Defendant previously discussed robbing the victim

with Ms. Dalton, Mr. Johnstone, Ms. Monnett, and Mr. Monnett. Ms. Dalton said the

Defendant discussed with her and Mr. Johnstone robbing the victim three or four days before

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the attack. Likewise, the Defendant assigned them roles for the robbery. The Defendant

wanted Mr. Johnstone to strike the victim on the head and Ms. Dalton to grab the wallet.

Although Ms. Dalton denied knowing they were going to victim’s shop when they left home

that day, she said she “kind of figured” the plan was to rob the victim.

Likewise, the Defendant discussed robbing the victim with Mr. and Ms. Monnett. Ms.

Monnett testified that when she and her husband lived with the Defendant for a short time

in 2011, the Defendant asked them to help rob the victim. Ms. Monnett said the Defendant

planned to hit the victim on the head and take his money. She said the Defendant wanted the

victim’s money but wanted someone else to take it. Mr. Monnett testified similarly about the

Defendant’s asking him to hit the victim on the head with a piece of wood and to take the

victim’s money.

We conclude thatsufficient evidence existsshowing an understanding that Ms. Dalton

and Mr. Johnstone would hit the victim and take his wallet while the Defendant waited inside

her car. Likewise, sufficient evidence exists showing that the offense was planned days in

advance and that the Defendant knew Mr. Johnstone would hit the victim with a weapon.

The Defendant is not entitled to relief on this basis.

In consideration of the foregoing and the record as a whole, we affirm the judgments

of the trial court.

____________________________________

JOSEPH M. TIPTON, PRESIDING JUDGE

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