### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs J une 3, 2003 STATE OF TENNESSEE v. RONALD B. FINCH Appeal from the Criminal Court for Davidson County No. 2001-A-252 Cheryl Blackburn, Judge

No. M2002-01050-CCA-R3-CD - F iled August 22, 2003
The Appellant, Ronald B. Finch, was convicted by a Davidson County jury of aggravated r

obbery and attempte d agg

ravate d rape. A s a resul

t of these convicti ons, Finch was sentenced to concurrent thirty-y ear sentences in the Department of Correction. On a ppeal, F inch raises two issues for our review: (1) whe

ther the evid ence wa s sufficient to support his convictions and (2) whether the sentences imposed were excessive. After review of the recor d, we find no error. Accordingly , the judgment is affirmed.

Tenn. R. App.P. 3; Judg ment of t he Crim inal Court

Affirme d.
D AV ID G. H AYES , J., deliv ered the opi nion of the court, in which J OSEPH M. T IPTON and J AMES C URWOOD W ITT , J R ., JJ., joined. John E. Rodgers, Jr., Nashville, Tennessee, for the Appellant, Ronald B. Finch. Paul G. Summers, Attorney Gene ral and Reporter; Michael Moore, Solicitor General; J. Ross Dy er, AssistantAttorney Gene

ral; Victor S. (Torry ) Johnson III , District Attorney Gene ral; and Roger D. Moore, Assistant District Attorney Ge neral, for the Appellee, State of Tennessee

.

OPINION
Factua l Background On December 7, 2000, the victim, Kennia Pe

rkins, wa s working

the drive -thru window at a Mrs. Winner’s restaurant in Nas hvi lle, when the Appellant approached the window and a sked for change for the bus. Acco

rding to Perkins, t he Appellant claimed to be new in town and was unsure of how to return

to his apa rtment. Perkins explained that the buses had stopped running for the day and offered to assist him in directions after she got off work. Shortly after Perkins’ shift

ended, the two left the restaurant together. After w alking some distance, the Appellant stopped, produced a g un and police ba

dge, a nd demand

ed Perkin s’ money . The App ellant re moved “a hundred dollars in-2-

small money” from the

victim’s p ocket. Whi le still pointing the gun at her, theAppellant ordered Perkins to perform or al sex on him. Perkins refused, and a second demand was made. Howe ver, when the Appellant turned to put the stolen money in his pocket, Perkins ran. The victim proceeded to her mother’s house, located nea rby, and re

lated what had happened. The two left and, while walking, encountered a patrol car, which

they flagge d down. Perkins explained that

she had been robbed and provided the office r with an account of the events, including the fact that the Appellant po ssessed a po lice badge and gun. She fur nished the officer with a description of the ro

bber, sta ting that he was a black male, wearing a dark jacket with a Nissan emblem

. S he further desc ribed the perpetr ator as h aving a

“two inch

afro” with white p atches. Becau se the victim feared for her safety , the patrolman offered to take her home. While stopped at a traffic light, Perkins spotted the Appellant and pointed him out to the officer. The Appellant was arrested at this point, and a search of his person yielded a r

etired policeman’s badge. Howeve r, no money or gun was found during the sear ch of the App ellant’s person or upon a later search of the Appellant’s apartment.
On February

9, 2001, a Davidson County g rand jury re

turned a two-cou nt indictme

nt against the Appellan

t charging him wi

th aggravated robbe

ry and attempted a

ggravated rape

. After a January 29, 2002 trial, a jury convicted the Appellant as charged. A sente ncing hearing was held on March 20, 2002, and the trial court sentenced the Appe ll ant to concurrent thirty -year terms in the Department

of Correction for each class B f elony conviction. The Appellant’s motion for new trial was denied, and this appeal followed. Analysis 1. Sufficiency of the Evidence On appeal, the Appellant

argues that the evidence wa s insufficient to support his convictions for aggravated robbe

ry and attempted a

ggravated rape

. Alt

hough no specific challenge is articulated, the Appellant appears to suggest that, bec ause the victim tes tified the tak ing of her money was accomplishe d by t

h e use of a gun and because no gun or money

was ever recovered, the jury ’s verdict cannot stand.
In considering this issue, we apply the rule tha twhere sufficiency

of the convicting evidence is challenged, the relevant question of the reviewing cour t is “whether, after viewing the evide nce in the light most favorable to the prosecution, any rational trier of fact could have found the e ssential elementsof the crime bey ond a reasonable doubt.” Jackson v. Virgini

a , 443 U.S. 307, 3 19, 99 S. Ct. 2781, 2789(1979); see also Tenn. R. App. P. 13(e). Moreover, t he State is entitled to the stronge st legitima te view of the evidence and all reasonable infe rences which may

be drawn theref rom. State v. H

arris , 839 S.W.2d 54, 75 (Tenn. 1992). All questions involving the cre dibility of witnesses, the weight and value to be given the e vidence, and all factual issues are resolved by the trier of fact. State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty ve rdict by the jury, approve d by the trial judge , accredits the testimony of the witnesses for the State and-3-

resolves all conf

licts in favor of the theory

of the State.” State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). A jury conviction remove s the presumption of innocencewith whic h a defe ndant is in

itially cloaked and replaces it with one of guilt, so that on appeal, a convicted defendant has the bur den of demonstrating that

the evidence is insufficient. State v Tug gle , 639 S.W.2d 913, 914 (Tenn. 1982). These rules are applicable to findings of g uilt predicat ed upon dir ect evidence, circumstantial evidence, or a comb inati on of both

. State v. M atthews , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).
In Count 1, the Appellant was charged with ag gravated robbery

. As indicted , aggravated robbery is defined as robbery

accomplished with a deadly weapon or by

display of any

article used or fashioned to lead thevictim to reasonably believe it to be a deadly we apon. Tenn Code Ann. § 39-13-402(a)(1) (1997). Robbery is defined a s “the intentional or knowing theft of property from the person of another by

violence or putting the person in fear.” Tenn. Code Ann. § 39-13-401(a ) (1997). In Count 2, the Appellant was charged with attempted ag gravated rape. As cha rged in the indictmen t, aggr avated r ape is defined asthe “unla wful sexua

l pene tration of a victim by the defendant” accompanied by the following circumstance: (1) Force or coercion is used to acc omplish the act and the defendant is armedwith a weapon or any article used or

fashioned in a manner to lead the victim reasonably to believe it to be a weapon[.] Tenn. Code Ann. § 39-13-502(a)(1) (1997). Pertinent to this c ase, criminal attempt is de fined a s follows: (2) Acts with intent to cause a result that is an element of the offense,

and believe s the cond

uct will cause th e result without further conduct on the person’s part[.] Tenn. Code Ann. § 39-12-101(a)(2) (1997). Viewing the evidence presented at trial in the light

most favorable to the State, we conclude that the proof is more than sufficient to support the Appellant’s convictions for aggravated robbe

ry and attempte d agg

ravate d rape. T

he victim t

estified that the A ppellant , armed with a small black gun and possessing a p ol ice badg e, held he r at gun point, took

$100 from

her pock et, and r epeate dly ordered her to pe rform or al sex upon h

im. The victim gave

a detailed descri

ption of the Appella

nt, and he was arrested with a policeman’s badge in his possession. At trial, the victim again identified the Appellant as her assailant. Testify ing in his own behalf, the Appellant admitted that he met the victim at Mrs. Winner’s and the two left the restaurant together wa lking tow ards his a partmen t. According to the Appellant, the victim produced a bag of marijuana , at which t ime he ident ified himself as a police officer and ordered that she “hand me over the marijuana. And then at that time I stated to h er - and I did stated (sic ) that, well, if you per form oral sex with me, we can drop thi s here.” Although, the Appellant denied that he possessed a wea pon or that he took any money

from the victim, the jury is not obligated to ac cept the Appellant’s account of the events. As the exclusive1 Th e reco rd cle arly estab lishes that the App ellant’s sen tence s were ord ered to run c onc urren tly. -4- judges of the cr

edibility of the wit nesses, itis the jury ’s duty to resolv e the con

flicts in th e t es ti mo ny. Obviously

the jury acc

redited the testimony of the victim. B ecause we find th e eviden ce leg ally sufficie nt, this issu e is withou

t merit. 2. Sentenc

ing
As his second issue, the Appellant argues that the thirty-year sentences imposed by the trial court for each of his two convictions were excessive. When an accused challenges the leng th, range, or manner of sentence, this court has a duty to condu ct a de n ovo review of the sentence with a presumption that the determinations made by the trial court a re correct. Tenn. Code Ann. § 40-35- 401(d) (1997); State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). This pres umption is “conditioned upon the affirmative showing in the record that the trial court considered the sentencing pr inciples and all relevant facts and circumstances.” Ashby , 823 S.W.2d at 169. The Sentencing Commission Comments provide that the burden is on the defenda nt to show the impropriety of the sentenc e. Tenn. Code Ann. § 40-35-401(d), Sentencing Commission Comments. Despite the Appellant’s assertion of excessive s en tences, his brief contains no authority or argument in support of the allegation. The Appellant’s entire argument, aside fr om a recitation of the standard of review on appeal, is as follo ws: The Defend ant would

contend t hat the tr ial cour t imposed a

n excessiv e sentence, in bothits length and consecutive nature. . . . The Def endant in ins ta nt case w ould submit that the sentence imposed was excessive and should be reduced. 1
Rule 27 of

the Tennessee Rules of App ellate Pr ocedure providesin relev ant part

that: The brief of

the appe llate shall contain . . . [a]n argument, which may be preceded by a summary of ar

gument, setting forth the contentions of the appe llant with r

espect t o the is sues pre se nted, and the reasons therefor, including the reasons why the contentions require appellate relief, with citations to the authorities and appr opriate references to the recor

d (which may be

quoted verbatim) relied on.
Tenn. R. App. P. 27(a)( 7 ); see also H arvey v . State , 749 S.W.2d 478, 479-80 (Tenn. Crim. App. 1987). “Issues which are not supported by argument, citation to authorities, or appropriate ref erence to the rec ord will be

treated as waive d in this cour

t.” Tenn . Ct. Crim. App. R. 10(b). The Criminal Sentencing Act provides that a defendant may appeal from the length, rang e or manner of the sentenc e imposed

by t he sente ncing c ourt on one

or more o f the foll owing g rounds:-5-

(1) The sentence was not imposed in accorda nce with this chapter; or (2) The enhancement and mitigating fa ctors were not weighed proper l y, a nd th e sentence is excessive under the sentencing c onsiderations set out in § 40-35-103.
Tenn. Code Ann. § 40-35-4 01(b)(1 )(2). Th e Appella nt’s arg ument of e

xcessive s entence s fails to addresseither of the above grounds or offe r any other

basis in support of this assertion. As such, the Appellant has failed to comply with Rule 27(a)(7), Tennessee Rules Appellate Procedur e. Notwithstanding the Appellant’s noncompliancewith the rule, we elect to review the issue upon its merits. The range of imprisonment f

or a def endant c onvicted

of a cla ss B felo ny a s a persistent offende r is “not less than twenty (20) nor more than thirty (30) y

ears.” Tenn. Code Ann. § 40-35-112(c)(2) (1997). The weig ht to be give

n each e nhance ment or mit

igating factor is left to the discretion of the trial judge. State v. Boggs , 932 S.W.2d 467, 475-76 (Tenn. Crim. App. 1996). The trial court found only one a pplicable enhancement factor, the defendant has a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropr iaterange. Tenn. Code Ann. § 40-35-114(2) ( Supp. 2002). Because the trial court found one enhancement

and no applicable mitigating factor(s), the sentencing cour t was authorized to set

the respective sentences above the minimum. See Tenn. Code Ann. § 40-35-210(d) (Supp. 2002). The Appellant’s prior criminal history, as set f orth in the pre-sentence report, ref lects seven felony convictions including robbery , gran d la rc en y, and burgla ry convicti ons. The p

re-sen tence r eport al so notes that the Appellant is a registered sex offender in the State of Florida. We conclude, as did the trial court, that the Appellant’s criminal “history in terms of his priors and the length of time spent in custody” supports the imposition of the maximum sentences in this case. CONCLUSION Based up on the foregoing, we conc lude that the Appellant’s convictions for aggr avated robbery and attempted aggrava

ted rape are more than sufficien tly s u ppo rte d by t he e vi den ce. In addition, we conclude that the thirty -year sentences imposed for each conviction are not excessive. The judgment of the Davidson County Criminal Court is affirmed.

___________________________________ DAVID G. HAYES, JUDGE