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

Briefs F ebruary 5 , 2002
STATE OF TENN ESSEE v. EDDIE LEE T AYLOR
Appeal from the Circuit Court for Madison County No. 00-192 Roy B. Morgan, Jr., Judge

No. W2001-01077-CCA-R3-CD - Filed April 4, 2002

The Defendant, Eddie Lee Taylor, was convicted by a jury of aggravated robbery. He w as subseque ntly sentenc ed as a Ra

nge II multiple off

ender to sixteen y ears i n the Dep artment of Correction. In this appeal as of right, the Defend ant conte

nds that the eviden

ce is not s ufficie

nt to support hi s convict

ion. We a

ffirm the judgment o f the tria

l court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

D AVID H. W ELLES , J., delivered the opinion of the court, in which D AVID G. H AYES and R OBERT W. W EDEMEYER , JJ., joined. Clayton F. Mayo, Jackson, Tennessee, for the appellant, Eddie Lee Taylor.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney Genera l; Jerry Woodall, District Attorney General; and Jody S. Pickens, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION

Ms. Carolyn Curtis Brand testified that she was the manager of the Star Beauty Supply store in Jackson, Tennessee. She opened the store at about 9 o’ clock on the morning of August 16, 1999. At about 9:30, a man Ms. Brand had never seen before entere d the store and began looking around. When she asked him if she could help him, he replied that he had forgotten what he had come in for. A few minutes later, the man returned and asked to use the phone, explaining that he had car trouble. Ms. Brand allowed t

he man to u se the pho ne, and h e then left. A shor

t time later, the man returned to the store. Ms. Brand identified the man as the Defendant, and stated that he had been wearing a blue ball cap, a b lue t-shir

t, and blue

jeans. Upon his third trip into the store, Ms. Brand testified, the Defendant selected an item from
a shel f and laid it on the counter. She rang up the purchase on the ca sh register and told him the price. At that point, she stated, the Defendant produced a gun and said, “Che ck this out.” Ms. Brand1 Th e D efen dan t’s pres enten ce rep ort ind icates th at the D efen dan t is five fee t five in che s tall.
-2- described the gun asa

black au tomatic. T

he Defe ndant the n came around th

e counte r and told Ms. Brand to lock

the door, which Ms. Brand did. The Defendant then ordere d Ms. Brand to the back of the store into the storage room, and followed her there.

The Def endant to ld Ms. Brand to stay in the back, and he returned to the front of the store. He the n re turned to the storage room and ordered Ms. Brand to take off her clothes. Ms. Brand refused, and the Defendant aga in went to the front

of the store. Ms. Brand heard the cash register drawer open. Ms. Brand tes tified tha t there w as appro ximately $250 in the cash register. The Defendant

again ca me to the stor

age room , and aga

in order ed Ms. Bra

nd to undress. When she

again refused, the Defendant became nervous and le ft the store. Ms. Brand then returned to the front counter, pushed the silent alarm button, and went up the stree t to the dru g store to call the police. As she left the store, she saw the D efenda nt’s back as he wa s headed toward th

e TNE Mer

chandise store. Loye Costner testified that he was the pharmacist in the drug s tore from which Ms. Brand called the police. He stated that the Defenda nthad been in his store earlier that morning, and that Mr. Costne r had no t recognized him. Mr. Costner spoke with the Defendant, and stated that the Defendant

was vague about what he wanted. The De fendant then left and Mr. Costner saw him walking in the directio n of Star Be auty Supply. Mr. Costner testified that the Defendant had been wearing blue jea

ns, and that he was shor

t. 1 Mr. Costner testified that Ms. Brand came into his store to call the police about ten to fifteen minutes after the Defe ndant left his store.

Mr. Steve Sherrod testified on behalf of the Defendant, e xplai nin g that he owned and operated a store across the street from Star Beauty Supply. Mr. Sherrod testified that he did not see the Defend ant enter the Star Beauty Supply store, and did not notice anything out of the ordinar y until the police arrived. Mr. Sherrod admitted on cross-examination that he did not keep a watch on the Beauty Supply store, and that he would not necessarily have seen people entering and/or leaving the store.

Mr. William Roan testified as the latent fingerprint examiner for the Jac kson Police Departm ent. He explained that he had obtained two fingerprints which were suitable for comparison purposes from the it em that the Defendant placed on the Beauty Supply store counter. He stated that neither of

these prints matched the Defendant’s. He stated on cross-examination that the item appear ed to have

other fingerprin

ts on it, but t

hat they w ere not s uitable f or compa rison pur poses.
The Defend ant testif

ied, stating that he

had “ne ver bee

n in Star Be auty Supply before in [his] life.” The Def

endant te stified th at he had been in th

e Jackso n unemployment off ice that day, and counsel entered proof that the Defendant had checked into the unemployment office at 12:34 that afternoon.2 We note that the tri al court properly instructed the jury as required under State v . Dy le , 899 S.W.2d 607, 612

(Tenn. 1995), where eyewitnes s ident ifi cati on test imony is at i ssue.

-3- The only iss ue raised i n this appeal is the sufficiency of the evidence. Specific ally, the Defendant

contends that, “[b]ecause no dire ct physical evidence against [the Defenda nt] was discovered

or presented at trial, and because the only e yewit ness testimony presented at trial was impeached

and contained inaccuracies, incons ist encies, and contr adiction s that are

highly improbab le and unsatisfactory, reasonable doubt of [the Defendant’s] guilt exists as a matter of law and the verdict should be overturned.”

Tennessee Rule of Appellate Procedure 13(e) presc ribes that “[f] indi ngs of guilt in criminal actions whether by the

trial court or jury sha

ll be set aside if the evidence is insufficient to support the findings by the trie

r of fact of guilt bey

ond a reasona ble doubt. ” Eviden ce is sufficient if, after reviewing the evide

nce in the light most

favorable to the prosecution, any rationa l trier of fact could have found the essential elements of the crime bey ond a reasonable doubt. See Jackson v. V irginia , 443 U.S. 307, 319 (1979 ); State v. Smith , 24 S.W.3d 274, 278 (Ten n. 2000). In a

ddition, because conviction by a trier of

fact destroy s the presumption o f innocence and imposes a presumption of guilt, a convicted criminal defendant bears the burden of showing that the evidenc e was insuffic ient. See McBee

v. State , 372 S.W.2d 173, 176 ( Tenn. 196 3); see also Stat e v. Buggs , 995 S.W.2d 102, 105-06 (T enn. 199 9); State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992); State v. Tu ggle , 639 S.W.2d 913, 914 (Tenn. 1982).

In its review of the e

vidence , an appe

llate cou rt must af ford the State “the strong est leg itimate view of the evidence as well as all reasonable and legitimate infe rences th at may be dra wn therefrom.” Tuggl e , 639 S.W.2d at 914; see also Smith , 24 S.W.3d at 279. The court may not “re

weigh or re-evaluate the evidence” in the record below. Evans , 838 S.W.2d at 191; see also Buggs , 995 S.W.2d at 105. Likewise, sho uld the reviewing court find particular conf licts in the trial te st im on y, the court must resolve them in favor of the jury

verdict or trial court judgment. Tuggl e , 639 S.W.2d at 914. All questions involving the credibility of w itnesses, the weight and value to be given the evidence, and all factual issues are r es olved by

the trier of fact , not the a

ppellate courts. See State v. Mo

rris , 24 S.W.3d 788, 7 95 (Tenn . 2000); State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). Aggr ava tedrobbery is the intentional or knowing theft of property from the person of a nother by violence

or putting

the pers on infear, accomplished with a deadly weapon. See Tenn. Code Ann. § 39-13-40 2(a)(1 ). The De fendant does n ot conten d that Ms. Brand was not the victim of an aggravated

robbery, but conten ds onl y that the proof of his identity as the perpetrator is not sufficie nt. 2 We respectfully disagree. Ms. Brand identified the Defendant at

trial as the man who entered the Star Beauty Supply store, produced a gun, and ordered her to remain in the bac k room of the store while he opened the cash register. She descri bed the perpetrator at trial as “[h]is fa ce was round. He h ad a promine nt nose. The eyes was kind of squinty. He had full lips. Face was clear and no hair on his face.” The jury was able to compare this description with the Defendant’s-4-

actual appearance as he sat in the cou rtroom. On cross -examin ation, defense c ounsel wa s able to establish that Ms. Br

and had ma

de some pr

ior incon sistent sta

tements a bout t he circu mstances of the robbery . These d

id not invol ve, howe

ver, the Defend ant’s ide

ntity or description. Mr. Costner also identifie d the Def

endant a t trial as the man who was in hisdrug store a few minutes before Ms. Brand came in to report the robbery, and the jury was a lso able to determine whether Mr. Costner’s description of the Defendant as “short” was a ccurate.

In essence, the Defendant is asking this Court to overturn the jury’s deter mination that

Ms. Brand’s testimony was more credible than the Defendant’s. This, we c annot do. As this Court has previous ly noted: The credibl e testim ony of one ident

ificatio n witness i s sufficient to su p port a conviction if the witness viewed the accused under such circumstances as would per mit a positiv e identif

ication to be made. See State v. Strickland , 885 S.W.2d 85, 87-88 (Tenn. Cr im. App. 1993)

. Inconsistency , i naccur acy a nd omissions in the description of a def

endant by a witn ess wh o is other

wise able to positively identify the

defendant are questions for the jury to consider in determin

ing the w eight to b e given the testimony

. See ge nerally State v . Matthews , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990)

. Fu rth er, although inconsistencies or inaccuracies ma y make the witness a less credible witness, the jury ’s verdict will not be disturbed unless the inaccuracies or inconsistencies are so improbable or unsatisfactory

as to create a

reasona ble doubt o f the app ellant’sguilt. State v. Radley , 29 S.W.3d 532, 537 (Tenn. Crim. App. 1999).

The State’s witnesses were firm and unwavering in their id entifica tion of the Defend ant. The lack of physical evidence, and the minor inconsistencies in Ms. Brand’s testimony about matters not involving the Defendant’s identity, do not create a reaso nable dou

bt as to the

Defend ant’s gui lt so as to req uire this C ourt to ove

rturn the jury’s ve rdict. Th is issue is t

herefo re withou t merit. Although not raised by either party in this appeal, we take this opportunity to note the trial court’s failure

to instruc t the jury o n the less er-inc luded off ense of robbery. Prior to the trial judge issuing his char

ge, he sp oke to the

prosecu tor and de fense counsel about the necessity of charging robbery. Both attorneys agreed that this was an “all or nothing” case, given the State’s undisputed proof that a gun was involved, and given the Defendant’s theory that he was not the perpe trator, regard less of the cr

ime committ

ed. Acc ordingly, the trial court, to gether w ith both law yers, determined that a charge on the lesser-inc luded offense of robbery was not nece ssary.
Our supreme court ha s recen

tly stated that, “[a]s a general rule, e vidence sufficient to warrant an instruction on the greater offense also will support an instruction on a lesser o ffense

under part (a) of the Burns test.” State v. Allen , __ S.W.3d __, __, 2002 Tenn. LEXIS 76, *11-12 (Tenn. 2002). Robbery is a lesser-included o ffense under part (a) of the Burns test because all of its statutory-5-

elementsare inc luded wit hin the statutory elements of aggravated robbery. See State v. Burns , 6 S.W.3d 453, 466 (Tenn. 199 9); T enn. Code Ann. §§ 39-13-401(a), 39-13-402(a)( 1). Thus, “[i]n proving the greater offense the State nece ssarily has pr oven the l e sser offense because all of the statutory elements of the lesser offense are included in the greater.” Allen , __ S.W.3d at __, 2002 Tenn. LEXIS 76, at *12. Moreover, the Allen court admonished that “[t]he trial court must provide
an instructi on on a les ser-inc luded off ense supp orted by t

he evide nce eve n if such instr

uction is not consistent with the theory of the State or of the defense. The evid

ence, n ot the the ories of

the part ies, controls whether aninstruction is required.” Id. , __ S.W.3d at __, 200 2 Tenn. Cr

im. App. LEXIS 76 , at *11. We must conclude, then, that the trial court erred in fa iling to instruct the jury on the lesser-included offense of robbery.
However, reversal of the Defe ndant’s conviction and remand of this matter for a new trial is not required where “it appears beyond a reaso nable

doubt that

the err or did not a

ffect th e outcome of the trial.” Allen , __S.W.3d at __, 2002 Tenn. LEXIS 76, at *22. In making this determination, this Court must “conduct a thorough examination of the record, including the evidence presented at trial, the defendant’s theory of defense, a nd the verdict returned by the jury.” Id. If this Court finds at the conclusion of this examination that the proof of the element distinguishing the greate

r offen se from the lesse r w as uncontested and supported by overwhelming and uncontroverte d evidence, a determination that the error in failing to give an instr uction on the lesser-included offense was harmlessbeyond a reasonable doubt is appropriate. See Allen , __ S.W.3d at __, 2002 Tenn. LEXIS 76, at *17-18. In this case, the proof at trial that the perpetrator of the aggravated robbery was arme d with
a gun was uncontes ted and un controve rted, an d supporte d by the ey ewitnesstestimony o f the vic tim. The Defendant’s theory of defense wa s misidentification: not that he committed the offense without
a deadly weapon. In essence, the Def endant conceded

that the p erpetr

ator of th e offen se was armed. Accordingly, we find that the trial court’s error in failing to instruct the jury on the lesser-included offense of robbe ry was ha rmless be yond a re asonable

doubt. The judgment of the trial court is affirmed.

___________________________________ DAVID H. WELLES, JUDGE