IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs November 20, 2002

STATE OF TENNESSEE v. TIMOTHY MAURICE REYNOLDS

Direct Appeal from the Circuit Court for Giles County

No. 8369 Jim T. Hamilton, Judge

No. M2001-00900-CCA-R3-CD - Filed December 6, 2002

A Giles County jury convicted the defendant, Timothy Maurice Reynolds, of aggravated robbery,

and the trial court sentenced the defendant to twenty years as a Range II multiple offender. On

direct appeal, the defendant raises the following issues: (1) whether the evidence was sufficient to

support the conviction for aggravated robbery; (2) whether the trial court erred in prohibiting

defense counsel, during cross-examination and closing arguments, from referring to the United

States Attorney General’s comments on eyewitness identification; and (3) whether the trial court

erred in finding the defendant to be a Range II multiple offender. We affirm the conviction;

however, because essential exhibits relating to sentencing are missing from the record without fault

of the parties, we remand for resentencing.

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

Remanded for Resentencing

JOE G. RILEY, J., delivered the opinion of the court, in which DAVID H. WELLES and ALAN E.

GLENN, JJ., joined.

Gregory D. Smith, Clarksville, Tennessee (on appeal); Claudia S. Jack, District Public Defender;

and Robert H. Stovall, Jr., Assistant District Public Defender, for the appellant, Timothy Maurice

Reynolds.

Paul G. Summers, Attorney General andReporter; Elizabeth B. Marney, Assistant Attorney General;

Mike Bottoms, District Attorney General; and Richard H. Dunavant and Patrick S. Butler, Assistant

District Attorneys General, for the appellee, State of Tennessee.

OPINION

On August 31, 1998, a Giles County jury convicted the defendant of aggravated robbery, and

the trial court imposed a Range I sentence of twelve years. On direct appeal, this court reversed the

conviction based upon a violation of the defendant’s right to counsel and failure to charge the jury

on lesser-included offenses, and the defendant was granted a new trial. See State v. Timothy M.

Reynolds, No. M1998-00059-CCA-R3-CD, 2000 Tenn. Crim. App. LEXIS 15, at *1 (Tenn. Crim.

App. Jan. 7, 2000, at Nashville).
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During the retrial, the victim, Howard Edward Roberts, testified that on June 22, 1997, at

approximately 9:00 p.m., he stopped to get fuel at Scot Market, a convenience store in Pulaski,

Tennessee. Several young people were in the parking lot. When Roberts got out of his vehicle and

began to pump fuel, he saw the defendant leave the area where the young people were standing and

approach the far side of his vehicle. The defendant approached Roberts and offered to wash his

windshield. Roberts declined his offer, and the defendant walked away. 

Roberts testified the defendant then approached his vehicle from the opposite side and

looked inside the vehicle. The defendant approached Roberts and said, “Hey man, I need some

money.” Roberts ignored the defendant, and the defendant started walking toward Roberts and said,

“Hand over your wallet or I’m going to kill you.” The defendant then exposed an object in his

pocket, which Roberts thought was the handle of a pistol. Roberts described the object as metallic

with a plastic decor similar to those found on .38 specials. Roberts stated he had previously seen

handles on both pistols and knives resembling the object in the defendant’s pocket. Roberts gave

the defendant his wallet, and the defendant rejoined the group of young people. Roberts went into

the store and called the police. At trial, Roberts identified the defendant as the perpetrator of the

offense. 

Roberts testified the wallet contained a $650 check, a $200 check, a $100 check, and $700

to $800 in cash. The wallet also contained a credit card, which had $2,400 charged against it a few

days after Roberts reported it stolen. 

Officer Kyle Helton of the Pulaski Police Department testified he took Roberts to the police

station where Roberts reviewed mug books. Even though one of the books contained a photograph

of the defendant, Roberts was unable to make an identification. 

Two to three days after the incident, Officer Helton and Investigator John Dickey constructed

another line-up using digital photographs from the Giles County Sheriff’s Department. The line-up

consisted of photographs of eight individuals. Both Officer Helton and Investigator Dickey testified

Roberts immediately identified the defendant. 

Defense witness Donna Willingham stated she was with the defendant on the night of June

22, 1997, at the Victoria Apartments, approximately two blocks away from Scot Market.

Willingham conceded the defendant may have left the apartments around 9:00 p.m. or 10:00 p.m.

Shelia Smith and Jennifer Reynolds testified they saw the defendant at the Victoria

Apartments at approximately 7:00 p.m. The defendant drank for several hours and left with them

around 9:30 p.m. Smith, Reynolds, and the defendant then went to Lisa Daly’s house because the

defendant stated he needed to borrow money. 

 Lisa Daly testified that at around 10:00 p.m., the defendant came to her house, which was

located three to four blocks from Scot Market. When the defendant asked to borrow money, Daly

gave him $10, and he left after fifteen to twenty minutes. Reynolds testified that when they left

Daly’s house, they returned to the Victoria Apartments; she stated the defendant never left her sight

between 7:30 p.m. and midnight. 
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The jury convicted the defendant of aggravated robbery. The trial court sentenced the

defendant to twenty years in the Tennessee Department of Correction as a Range II multiple

offender. The trial court also ordered the sentence to run consecutively to an unrelated federal

sentence. This appeal ensued.

SUFFICIENCY OF THE EVIDENCE

The defendant contends the evidence was insufficient to support his conviction for

aggravated robbery. We disagree.

In Tennessee, great weight is given to the result reached by the jury in a criminal trial. A

jury verdict accredits the state's witnesses and resolves all conflicts in favor of the state. State v.

Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994). On appeal, the state is entitled to the strongest

legitimate view of the evidence and all reasonable inferences which may be drawn therefrom. Id.;

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Moreover, a guilty verdict removes the

presumption of innocence which the appellant enjoyed at trial and raises a presumption of guilt on

appeal. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). The appellant has the burden of

overcoming this presumption of guilt. Id.

Where sufficiency of the evidence is challenged, the relevant question for an appellate court

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 or crimes beyond a reasonable

doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L.

Ed. 2d 560 (1979); State v. Abrams, 935 S.W.2d 399, 401 (Tenn. 1996). The weight and credibility

of the witnesses' testimony are matters entrusted exclusively to the jury as the triers of fact. State

v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim.

App. 1996).

Aggravated robbery, as applicable to the case at bar, is defined as robbery “[a]ccomplished

with a deadly weapon or by display of any article used or fashioned to lead the victim to reasonably

believe it to be a deadly weapon. . . .” Tenn. Code Ann. § 39-13-402(a)(1). Robbery is defined as

“the intentional or knowing theft of property from the person of another by violence or putting the

person in fear.” Id. § 39-13-401(a).

The defendant contends there was no evidence that the perpetrator used a gun or any other

weapon to accomplish the robbery. However, the actual use of a deadly weapon is not a required

element of aggravated robbery. See id. § 39-13-402(a)(1). Rather, a defendant may be convicted

of aggravated robbery when he or she accomplishes a robbery by displaying an object in a fashion

that “lead[s] the victim to reasonably believe it to be a deadly weapon.” Id.

Roberts testified the defendant approached him and exposed an object in his pocket, which

Roberts believed to be the handle of a pistol. The defendant then demanded his wallet and

threatened to kill him. Upon seeing the object and hearing the defendant’s threats, Roberts gave him

the wallet. 
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Roberts further testified that on prior occasions, he had observed handles on pistols and

knives which resembled the object in the defendant’s pocket. He stated the object was metallic with

a plastic decor similar to a .38 special. Roberts could have reasonably believed the object was a

deadly weapon. Whether the object in the defendant’s pocket was, in fact, a deadly weapon is not

dispositive of the issue.

We conclude that it was within the jury's prerogative to reject defendant's alibi defense. See

State v. Cate, 746 S.W.2d 727, 729 (Tenn. Crim. App. 1987) (noting the defense of alibi and the

question of identification are determinable by the jury as the exclusive judges of the credibility of

the witnesses). Accordingly, we conclude the evidence was sufficient to support the aggravated

robbery conviction.

EVIDENCE OF IDENTIFICATION

During the cross-examination of Investigator John Dickey of the Pulaski Police Department,

defense counsel questioned him regarding the second lineup in which Roberts identified the

defendant. Defense counsel attempted to question Investigator Dickey regarding the standards on

photographic lineup identification procedures promulgated by the United States Department of

Justice. Specifically, defense counsel requested the trial court permit him to read the introduction

by then United States Attorney General Janet Reno during both cross-examination and closing

arguments. 

In her introduction, Attorney General Reno stated the following:

Recent cases in which DNA evidence has been used to exonerate

individuals convicted primarily on the basis of eyewitness testimony

have shown us that eyewitness evidence is not infallible. Even the

most honest and objective people can make mistakes in recalling and

interpreting a witnessed event. It is the nature of human memory.

This issue has been at the heart of a growing body of research in the

field of eyewitness identification in the past decade.

The trial court denied defense counsel’s request, stating that defense counsel could argue eyewitness

identification is not infallible, but could not quote Attorney General Reno. The defendant contends

the trial court erred in denying the request. We disagree.

The propriety, scope, manner and control of the examination of witnesses is within the sound

discretion of the trial court. State v. Humphreys, 70 S.W.3d 752, 766-67 (Tenn. Crim. App. 2001).

Absent an abuse of discretion, we will not interfere with such rulings. State v. Harris, 839 S.W.2d

54, 72 (Tenn. 1992). 

Expert testimony regarding the reliability of eyewitness testimony, which does not

specifically address the testimony of the witness at issue, is inadmissible per se under Tennessee

Rule of Evidence 702 because this type of expert testimony does not substantially assist the trier of

fact. State v. Coley, 32 S.W.3d 831, 838 (Tenn. 2000); Tenn. R. Evid. 702. Expert testimony
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regarding eyewitness identification “‘solicits the danger of undue prejudice or confusing the issues

or misleading the jury. . . .’” Id. at 835 (quoting State v. Ballard, 855 S.W.2d 557, 561 (Tenn.

1993)). 

In the case at bar, defense counsel did not attempt to introduce an expert witness to testify

to the unreliability of eyewitness testimony. Instead, defense counsel attempted to introduce a

general and unparticularized statement made by then Attorney General Reno concerning the lack

of reliability of eyewitness identifications. Even if the statement qualifies as an exception to the

hearsay rule, this statement is not specific to either Roberts’ testimony regarding his identification

of the defendant or Investigator Dickey’s testimony regarding the particular procedures employed

in constructing the second photographic lineup. Like expert testimony on eyewitness identification,

this statement solicits the danger of misleading the jury, who must make its own determination of

credibility. See Coley, 32 S.W.3d at 835.

The trial court permitted defense counsel to argue in his closing that eyewitness

identification is not infallible. In addition, defense counsel questioned Investigator Dickey

extensively during cross-examination concerning the flaws in the second photographic lineup. We

conclude that the trial court did not err in denying defense counsel’s request to read Attorney

General Reno’s statement to the jury.

SENTENCING

The defendant contends the trial court erred in finding him to be a Range II multiple

offender. As applicable to the case at bar, a “multiple offender” is a defendant who has received “[a]

minimum of two (2) but not more than four (4) prior felony convictions within the conviction class,

a higher class, or within the next two (2) lower felony classes. . . .” Tenn. Code Ann. § 40-35-

106(a)(1). The trial court must find the defendant to be a multiple offender beyond a reasonable

doubt. Id. at (c).

The defendant was convicted of aggravated robbery, a Class B felony. See Tenn. Code Ann.

§ 39-13-402(b). Therefore, in order to be sentenced as a multiple offender, the defendant must have

at least two prior felony convictions falling within the range of Classes A through D. See Tenn.

Code Ann. § 40-35-106(a)(1).

In its sentencing order, the trial court sentenced the defendant to twenty years for aggravated

robbery as a Range II multiple offender. However, the trial court failed to list the felonies upon

which its decision was based. In order to allow meaningful appellate review, the trial court must

place its reasons for arriving at the final sentencing decision on the record. State v. Poole, 945

S.W.2d 93, 96 (Tenn. 1997).

The presentence report lists four felony convictions, while the parties addressed five felony

convictions during the sentencing hearing. Although certified copies of the convictions were

admitted, they are missing from the appellate record. Defense counsel averred in an affidavit that

his efforts to procure the copies were unsuccessful because the state’s only copies were introduced

at the hearing. We will address each felony conviction based upon the record presented to us.
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The first felony conviction listed in the presentence report is a federal conviction for bank

robbery by force or violence, in which the defendant was convicted on January 16, 1998, and

sentenced to 80 months of incarceration. For purposes of determining multiple offender status, a

“prior conviction” is defined as a “conviction that has been adjudicated prior to the commission of

the more recent offense for which sentence is to be imposed.” State v. Blouvett, 904 S.W.2d 111,

113 (Tenn. 1995); see Tenn. Code Ann. § 40-35-106(b)(1). The offense at issue, aggravated

robbery, occurred on June 22, 1997, prior to the bank robbery conviction. Therefore, the conviction

for bank robbery does not qualify as a “prior conviction” and may not be used in determining the

defendant’s status as a multiple offender.

The defendant was also convicted of burglary on August 22, 1990, in Arizona and sentenced

to eight years of incarceration. During the sentencing hearing, the defendant conceded that the

burglary conviction qualified as a prior felony conviction, which could be used in determining

multiple offender status. 

The third felony conviction listed in the presentence report is “attempt to commit felony,”

in which the defendant was convicted on July 1, 1990, in Arizona and sentenced to three years

probation. During the sentencing hearing, the prosecutor stated the defendant was convicted of

attempted third degree burglary and attempted possession of narcotic drugs. Certified copies of

these convictions are missing from the record. Based on the record before us, we are unable to

conclude these convictions qualify as Class D or higher felonies.

The last felony conviction listed in the presentence report is assault with a deadly weapon.

The defendant pled nolo contentre on November 8, 1988, in California and received a sentence of

90 days of incarceration and 24 months probation. The presentence report also states that the

defendant was convicted under the alias “Keith Bryant.” The certified copy of the conviction is

missing from the record.

During the sentencing hearing, Linda Lipham, who prepared the defendant’s presentence

report, testified she could not recall where she found the alias “Keith Bryant.” She stated she could

not remember whether the defendant provided her with the name, but that she could have gotten it

from either clerks’ offices, probation reports, or the National Crime Information Computer (NCIC).

During the sentencing hearing, the defendant testified he did not go by the name “Keith

Bryant” while he was living in California. He further denied telling Lipham that his alias was Keith

Bryant. 

In the sentencing order, the trial court found that the defendant and Keith Bryant were the

same person. However, the trial court failed to state the factual basis for its finding. Because the

exhibits are missing, we are unable to conclude whether or not the felony conviction for assault with

a deadly weapon may be used in determining multiple offender status. If we had the missing

exhibits, we might be able to resolve the issue by comparing social security numbers or other

information.
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In light of these circumstances, we are in a quandary as to the disposition of this issue.

Although the appellant has the responsibility of providing this court with an adequate record, see

State v. Taylor, 992 S.W.2d 941, 944 (Tenn. 1999), we are unable to fault him for the missing

exhibits. Likewise, we are unable to fault the state. Accordingly, we remand to the trial court for

another sentencing hearing.

CONCLUSION

In summary, we conclude that the evidence was sufficient to support the conviction for

aggravated robbery. We further conclude that the trial court did not err in refusing to allow defense

counsel to quote Attorney General Reno’s statement regarding eyewitness identification during

cross-examination and closing arguments. However, because the missing exhibits are essential to

the sentencing issue, we remand the case to the trial court for a new sentencing hearing.

___________________________________ 

JOE G. RILEY, JUDGE