### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Bri efs November 20, 2002 STAT E OF T ENNES SEE v. TI MOTHY MAURI CE REY NOLDS

Direct Appeal from the Circuit Court for Giles County No. 8369 Jim T. Hamilton, Judge

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

A Giles County jury

convicted the def

end an t, Ti mo th y Ma ur ic e R eyn ol ds , o f a ggr av at ed ro bb er y, and th e t ri al co ur t s en te nc ed th e d ef en da nt to tw en ty ye a rs as a Range I I multiple offender. On direct appeal, the defendant raises the f ollowing issues: (1) whether the evidence was sufficient to support the conviction for aggrav ated robbery ; (2) whether the trial court erred in prohibiting defense counsel, during cross-ex ami nation and closing arguments, from ref erring to the United States Attorney

Genera l’s comme

nts o n eyewitne ss identification; and (3) whether the trial court erred in finding

the defe ndant to be

a Range II multiple of

fender . We affir

m t he conviction; however, because essential exhibits relating to sentencing ar e missing from

the rec ord withou

t fault of the parti es, we r emand for res enten cing. Tenn. R. App.P. 3 Appe al as of Right ; Convict ion of the Cir

cuit Cour

t Affirme d; Remande

d for Resentencing
J OE G. R ILEY , J., delive red the opinion of the court, in which D AVID H. W ELLES and A LAN E. G LENN , JJ., joined. Gregory D. Smith, Clarksville, Tennessee (on appeal); Cla udia S. Jack, District Public Defender; and Robert H. Stovall, Jr., Assistant District Pu

blic Def ender, f or the ap pellant, Timothy Maurice Reynolds. Paul G. Summers , Attorne y General and Report er; Elizab eth B. Ma rney , Assistan

t Attorne y General ; Mike Bottoms, District Attorney Gene ral; andRichard H. Dunavant and Patrick S. Butler, Assistant District Attorneys Gene

ral, for the appellee, State of Tennessee

.

OPINION
On August 31, 1998, a Giles County jury convicted the defendant of agg ravated robbery , and the trial court imposed a Range I sentence of twelve y

ears. On direct appeal, this court reversed the conviction based upon a violation of the defendant’s right to counsel a nd failure to charge the jury on lesser- in cluded of

fense s, and the defendant was grante d a new trial. See State v. Timothy M. Reynolds , No. M1998-00059-CCA-R3-CD, 2000 Tenn. Cri m. App . LEX IS 15, at *1 (Tenn. Crim. App. Jan. 7, 2000, at Nashville).-2-

During the retrial, the victim, H oward E dward Roberts, testified that on June 22, 1997, at approxima

tely 9:00 p.m., he stopped to get fuel at Scot Market, a convenienc e store in Pulaski, Tennessee. Several young people werein the parking lot. When Roberts got out of his vehicle and began to pump fuel, he saw the defendant leave the area w here the y oung people were standing and approach the far side of hi s vehicle . The def endant a pproach ed Rober ts and off ered to w ash his windshield. Roberts declined his offer, and the defendant wa lked away

. Roberts testified the defendant then approached his vehicle from the opposite side and looke d insid e the veh

icle. The defenda nt approa ched Robe

rts and sa id, “Hey man, I need some money.” Roberts ignored the defendant, and the defendant started walking toward Rober ts and said, “H and over your w allet or I’m going to kill you.” The defe

ndant then exposed an object in hi s pocket, which Roberts thought was the handle of a pistol. Roberts described the objectas metallic with a pla stic decor similar to those found on .38 specials. Roberts stated he had previously seen hand les on bo th pistols and knives resembling the object in the defendant’s pocket. Roberts g ave the defendant his wallet, and the defendant rejoined the group of y oung people. Roberts w ent into the store and called the police. At trial, Roberts identifi ed the def endant 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 ca rd, which had $2,400 charged ag ainst it a few days afte r Roberts reported it stolen. Officer Kyle Helton of the Pulaski Police De partment testified he took Roberts to the police station where Roberts reviewed mug books. Even t hough one of the books contained a photograph of the defendant, Roberts was unable to make an identifica tion.
Two to three days a

fter the incid ent, Officer Helton and I

nvestigator John Dickey c onstructed 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 I nvestigator Dickey

testified Roberts immediately identified the def endant. Defens e witness Donna Willingham stated she was with the defendant on the night of June 22, 1997, at th

e Victor ia Apart ments, ap

proximatel

y tw o blocks a

way from Scot

Market. Willingham conceded

the defendant may

have left the apar tments ar ound 9:00 p .m. or 10:0 0 p.m. Shelia Smith and Jennifer R

eynolds testi fied the

y sa w the def

endant a t the Vict

oria Apartments at approximately 7:00 p.m. The defendant drank for several hours and left with them around 9 :30 p.m. Smith , Rey nolds, and

the defe ndant the n went to L

isa 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, w hich was locatedthree to four blocks from Scot Market. When the de fendant asked to b orrow mon

ey , Daly gavehim $10, and he left after fifteen to twen ty mi nutes. Reynolds testified that when they left Daly’s house, they re

turned to the Victoria Apartments; she stated the defendant neve r left her sight between 7:30 p.m. and midnight.-3-

The jur y convicted the de fendant of aggra

vated robbery . The trial court sentenced the defendant to twenty y

ears in the Tennessee Department of C orrect ion as a Ra nge I I mult iple offender. The trial court also ordered the sentence to r un consecut i vely to an unrela ted federal sentence. This appeal ensued. SUFFICIENCY OF THE EVIDENCE
The defenda

nt contends the evi dence w as insuff ic ient t o support his conviction for aggravated robbe

ry. We disag

ree. In Tennes see, gre at wei gh t is given to t he result reached by the jury in a cr

iminal trial. A jury verdict accre dits the sta

te's wit nesses a nd resolves all conflicts in favor of the state. State v. Bigbe e , 885 S.W.2d 79 7, 803 (Te nn. 1994) . On appe al, the sta te is entit led to the

stronge st legitimate view of

the evidence and all reasonable infer ences which may

be drawn therefrom. Id. ; Statev. Cab bage , 571 S.W.2d 832, 835 (Tenn. 1978). Moreover, a guilty verdict re m oves the presumption of innocence which the appellant enjoyed at trial andraises a presumption of guilt on appeal. State v. Grace , 493 S.W.2d 474 , 476 (Tenn. 197 3). The appellant has the burden of overcoming this presumption of guilt. Id. Where sufficiency

of the evidence is challenged, the releva nt questio n for an a

ppellate court is whether, after viewing the evidenc e in the light most favorable to the prosecution, any rational trier of fact could hav e found th

e essent ial eleme nts of the crime or crimes be

yond a reas onable doubt. Tenn. R. App. P. 13( e); Jackson v. V irginia , 443 U.S. 3 07, 319, 99S. Ct. 278 1, 2 789 , 61 L. Ed. 2d 560 (1979); State v. A brams , 935 S.W.2d 399, 401 (Ten n. 1996). The weig

ht and cr edibility of the witne sses' te stimony

are matt er s entrusted exclusively to the jury as the triers of fact. State v. Sheffield , 676 S.W.2d 542, 54 7 (Ten n. 1984); State v. Brewer , 932 S.W.2d 1 , 19 (Ten n. Crim. App. 1996). Aggravated

ro bb er y, as applicable to the case at bar, is defined as r obbery “[a]ccomplished witha deadly

weapon or by

display of any

article used or fashioned to lead the victim to r

easonab ly believe it to be a deadly

weapon. . . .” Tenn. Code Ann. § 39-13-402(a)(1) . Robbery is defined a s “the intentional or knowing theft of property from the person of

another by violenc e or putting the person in fear.” Id. § 39-13-401(a). The defendant contends there was no evide nce that the perpetrator used a g un or any other weapon to accom

plish the r

obbery . Howeve

r, the actual use o f a dead ly w eapon is not a requ

ir e d element of aggravated r

obbery. See id. § 39-13-402(a)(1) . Rath er, a defendant may be convicted of aggravated r

obbery whe

n he or she accomplishes a robbery by display

ing anobject in a fashion that “lead[s] the victim to reasonably believe it to be a deadly we apon.” 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 d emanded h is wallet and threatened

to kill him. Upon seeing the object and hearing the defenda nt’s thre ats, Robe

rts gav e him the wallet.-4-

Roberts further

testifie d that on pr

ior occa sio n s, he had observed handles on pistols and knives which resembled the object in the defendant’s pocke t. He statedthe object was meta llic with a plastic decor similar to a .38 special. Roberts co u ld have r easonab ly b elieved

the object was a deadly weapon. Whether th

e object in the defe

ndant’s p ocket wa s, in fac t, a dead ly weapon is not dispositive of the issue.
We conclude that it

was within the jury' s prerogative to reject defe ndant's alibi defense. See Statev. 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 ev idence w as sufficient to support the aggrava ted robbery c onviction. EVIDENCE OF IDENTIF ICATION During the cross-examination of Investigator John Dickey of the Pulaski Police Departm ent, defense counsel questioned him regarding the sec ond lin eup in which Roberts identified the defe ndant. Defens e counse l attempte d to questi on In vestiga tor Dicke y r egard ing the s tandard s o n photogr aphic lineup identifi cation procedures promulgated by the United States Department of Justice. Specifically, defense counsel requested thetrial court permit him to read the introduction by then United State s Attorney Gene ral Janet Reno during both cross-examination and closing arguments. In her in trodu ction , Att orney Gene ral Re no st ated t he fol lowi ng: Recent cases in which DNA e v idence h as been u sed to exone rate individua ls convicte d primari ly

on the basis of eye

witness testimony have shown us that eyewitness e vidence is not infallible. Even th e most honest and objecti ve people can make mistakes in recalling and interpreting a witness ed even t. It is th e n at ur e o f h um an me mo ry. This issue has been at the heart of a growing body

of research in the field of eye

witness identification in the past decade.
The trial court denied defense counsel’s reque st, stating that def ense cou nsel coul d argue

ey ewitness identification is not infallible, but could not quote Attorney Gener al Reno. The defendant contends the trial court erred in deny ing the request. We disagree.
The pr op ri et y, scope, manner and control of the examination of witnesses is within the sound discretion of the trial court. St at e v . H um ph re ys , 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. H arris , 839 S.W.2d 54, 72 (Tenn. 1992). Experttestimony reg ar din g the reliability of eyewitness testimony , which does not specific ally

address the testimony of the witne ss at issue, is inadmissible per se under Tennessee Rule of Evidence 702 because this ty pe 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-5-

regarding eyewitness identifica

tion “‘solicits the danger of undue prejudice or c onfusing the issues or misleading the jury . . . .’” Id . at 83 5 (quo ting State v. Bal lard , 855 S.W.2d 557, 561 (Tenn. 1993)).
In the case at bar, defense counse l did not attemptto introduce an expert witness to testify to the unreliability of ey ewitness testimony . Instead, defense counsel attempted to introduce a general and unparticularized s tat ement made by the n Attorney Gene

ral Reno concerning the lack of reliability of ey

ewitness identifications. Even if the statement qualifies as an exception to the hearsay rule, this statement

is not specific to either Roberts’ testimony r egarding his identification of the defendant or Inve stigator Dickey ’s testimony reg arding the particular procedures employ ed in constructing the second photographic lineup. L ike expert testimony on

eyewitness identifica

tion, th is st at em en t s ol ic it s t he da ng er of mi sl ea di ng th e j ur y, who must make its own determination of credibility. See Coley , 32 S.W.3d at 835.
The trial cou

rt permit ted defe nse coun sel to arg

ue in his c losing th a t ey ewitness identifica t ion is not infallible. In addition, defense counsel questioned I nvestigator Dickey extensively

during cross-examination concerning the flaws in the second photo gra phiclineu p. We conclude that the trial court did not err in deny ing defense counsel’s request to re ad Attorney Ge ne ra l R en o’ s s ta te me nt to th e j ur y. SENTENCING
T he defenda

nt contends the tria

l court e rred in f inding him to be a Ra

nge I I mult ip l e offender. As applic able

to the case at bar, a “multiple offender” is a defendant

who has received “[a] minimum of two (2) but not mor e than four (4) pr

ior felon y c onviction s within the

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

- 106(a)(1). The trial cour t must find t he defe ndant to be

a multiple

offende r beyond a rea sonable doubt. Id. at (c). The defenda

nt was co nvicted o f agg

ravate d robber

y, 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 pr ior 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 sentence d the defendant to twenty y

ears for aggravated robbery as a Range I

I multiple offender. Howe ver, the trial court failed to list the felonies upon which its decision was based. In order to allow meaningful appellate review, the trial cou rt must plac e its reasons for arriving at the final sente ncing decision on the record. State v. Poo le , 945 S.W.2d 93, 96 (Tenn. 1997).
The presentencereport lists four felony convictions, while the pa rties addressed five felony convictions during the sentencing hearing . Although cer tifie d copies of the convictions were admitted, they are

missing from the appellate record. Defense counsel averred in an a ffidavit that his effortsto procur

e the cop ies were

unsucce ssful bec ause

the state ’s only

copies were introduced at the he aring. We will add ress ea ch felon y c onviction

based up on the re cord pre sented to us.-6-

The first felony conviction listed in the presentence report is a federal c onviction f or bank robbery by force or violence, in which the defendant was convicted on January 16, 1998, and sentenced to 80 monthsof incar

ceratio n. For pu

rposes of determin in g multiple offender status, a “prior conviction” is defined as a “conviction that has been adjudica ted prior to the commission of the more recent

offense for which sentence is to be imposed.” State v. B louvett , 904 S.W.2d 111, 113 (Tenn. 1 995); see Tenn. Code Ann. § 40-35-106(b)(1). The offens e at issue, aggravated ro bb er y, 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 d et ermining the defendant’s status as a multiple offender.
The defenda

nt was als o convicted of burglary on August 22, 1990, in Arizona and sentenced to eight y ears of incarc eration . During

the sente ncing hearin g, the def

endant conceded that the burglary conviction qualified as a prior felony conv iction, which could be used in determining multiple offender status.
The third felon y c onviction listed in the presentence report is “attempt to commit felony ,” in which the defendant was convicted on July 1, 1990, in Arizonaand s entenced to three y ears probation. During the s entencing hearing, the pr osecutor stated the defendant was convicted of att empted third degree burglar y and attempted possession of na rcotic drugs. Certified copies of these convictions are missing from the record. Ba sed on t he record be fore us, we are unable to conclude these co nvictions qualify as Class Dor highe

r felonie s. 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 incarc eratio n and 24 months probation. The presentence report also states that the defendant was convicted und

er the a lias “Keith Bry ant.” The certif ied copy of the co nviction is missing from the record. During t he se ntencing hearing, L inda Lipham, who prepare d the defendant’s presentence report, testified she could not recall where s he found

the alias“Keith B ry ant.” She stated she could notremembe

r whethe r the def endant pr ovided he r with the name, but

that she c ould have

gotten it from either clerks’ offices, probation reports, or the Na tional Crime Information

Computer (NCIC). During the sentencing hearing, the de fendant testified he did not g o by the name

“Keith Bry ant” while

he was living in California. He further denied te lling L ipham tha t his aliaswas Keit

h Brya nt.
In the se ntencing order, the trial court found that the def endant and Keith Bry ant were th e sameperson. However, the trial court failed to state the f actual basis for its finding. Because the exhibits are mi ssin g, we are unable to conclude whether or not the felony convicti on for as sault with a deadly we apon may be use d in determining multiple offender status. If we had the missing exhibits, we might be able to resolve the issue by comparing social security number s or other information.-7-

In light of these circumstances, we are in a quandary a s to the disposition of this issue. Alth ough the appellant has the respo nsibili ty of providing this cour t with an adequate record, see Statev. Taylor , 992 S.W.2d 941, 94 4 (Tenn. 1 999), we are unable to fault him for the missing exhibits. Likewise, we

are una ble to fa ult the state. Accordingly , we remand to the trial court for anoth er sent encin g hearin g. CONCLUSION
In summary, we c onclude that the evidence was sufficient to support the co nviction for aggravated

robbery. We fur

ther conclude that

the trial court did not err in refusin g to allow def

ense counsel to quote Attorney Gen eral Reno’s statement regarding eyewitness identifica

tion during cross-examination and closing argume nts. Howe

ver, bec ause

the missing

exhibits ar

e essent ial to the se ntenc ing is sue, w e reman d the c ase to the tr ial co urt fo r a new s enten cing he aring.

___________________________________ JOE G. RILEY, JUDGE