# FILED
March 26, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON FEBRUARY 1998 SESSION

STATE OF TENNESSEE, ) ) No. 02-C-01-9701-CR-0 0033 APPELLEE, )

) Shelby County v. ) ) Honorable Jose ph B. Dailey, Judge CTJUAN D. JAMES, ) ) (Aggravate d Robbery) APPELLANT. )

FOR THE APPE LLANT: FOR THE APPELLEE: Joseph S. Ozment John Knox Walkup Attorney at Law Attorney General & Repor ter 217 Exchange Avenue 425 Fifth Avenue, North Memphis, TN 38105 Nashville, TN 37243-0493 Deborah A. Tullis Assistant Attorney Gener al 425 Fifth Avenue, North Nashville, TN 37243-0493 William L. Gibbons District Attorney General 201 Poplar Avenue, Suite 3-01 Memphis, TN 38103 Terrell L. Harris Assistant District A

ttorney General 201 Poplar Avenue, Suite 3-01 Memphis, TN 38103

OPINION FILED: ____________________________

___ AFFIRMED Joe B. Jones, Pre siding Judge 

### O P I N I O N2 The appellant, Ctj uan D. J ames (de fe ndan t), was convicted of three counts of aggravatedrobbery, a Class B felony, by a jury of his peers. The trial court , finding the defendant to be a standard offender, imposed a Range I sentence consisting of confinementfor ten (10) years in the Department of Correction for eac h count. The court ordered the three sentences to be served conc urrently, but

consecutive to a prior sentence of fifteen (15) years for an especially aggravated ro bbery con viction. The defendant presents two issues for revi ew. He contends the evi dence contai ned in the record is insufficient, as a matter of law, to support a finding by a rational trier of fact that he w as guilty of three aggravated offenses bey ond a reasonable doubt. He also contends the trial court erred by ordering the sente nces in th ese three convictions t o be served consecutivelyto the sentence in the prior convic tion. After a thorough rev iew of the record, the briefs of the parties, and the law governing the

is sues presented for review, it is the opinion of this court that the j udgment of the trial court shoul d be affirmed. Bryant J. Ward (Ward), Brandon Eason (Eason), an d Derri ck Johnson (Johnson) were seniors at Booker T. Wash i ngton High School in M emphis. On the morning of February5, 1994, they went to LeMoyne-Owen College to take the ACT college entrance examination. The test ended shor tly before noon. Ward, Eason, and Johnson began walking to Eason’s home. They planned to stop at a record shop before arriving at their destination. When they reached the intersec tion of Mississippi Boulev

ard and Edith Street, a blue N issan S t anza stopped, the defendant and another man exited the vehi cle, and the two men approached the v ictims. T he defendant was armed with a saw ed-off shotgun. He pointed the gun at Ward’s chest and told him to “drop it off ,” meaning take his coat off and g ive him any personal p roperty of value. Ward removed his Orlando Mag ic jacket and placed it on the sidewalk, along w ith his pager and headset. Eason removed his Los Angeles Raider s jacket and placed it on the sidewalk. Eighty dollars w as taken from Johnson. The defendant’s cohort collected the itemsof personal property, put th em in the vehicle, and the defendant and his cohort left in the Nissan Stanza. The victims went to Eas on’s home and called the police. On February 18, 1994, the v ictims attended a lineup. All three victims made a3

positive identification of the defendant as the person who had the gun. Johnson made a courtroom identif ic ation of the defendant. Ward testified the defendant resembled the gunman, but not his features. At the time of trial, the defendant was w earing glasses, he did not have a full beard, his hair was lighter and it

was not braided. Johnson and Eason also identified the defendant in the cour troom, butsaid his appearance had changed. A police officer testified the features of the d efendan t had changed. A photograph tak en shortlyafter the robberies was introduced to illustrate some of the facial and hair changes.

I. The defendant contends the evidence containe d in the record is insufficient, as a matter of law, to support a

finding by a rational t rier of fact that he is guilty of three counts of aggravatedrobbery beyond a reasonable doubt. He bases this contenti on upon (a) the tentati ve identification of the defendant by the victims during the trial and (b) the testimony of his mother. The defendant’s mother reb utted the testimony of the vi ctims regarding the defendant’s facial features, clot hing, and hairstyle. This co urt concludes the defendant seeks to have this court reweigh the trial

evidence. When an accused challenges the suffici ency of the convicting evidence, this court must review the

record to determine if the ev idence adduced at trial is sufficient "to support the finding by

the trier of fact of guilt bey ond a reasonable doubt." Tenn. R. App. P. 13(e). This rule is applicable to findi ngs of guilt based upon dir ect evidence, circumst antial evidence, or a combination of d irect and circumstantial evidence. State v. Dykes , 803 S.W.2d 250, 253 (Tenn. Crim. App.), per . app . denied (Tenn. 1990). In determining the sufficiency of the convicting evi dence, this court does n ot reweigh or reevaluatethe evidence. State v. Ma tthews , 805 S.W.2d 776, 779 (Tenn. Crim. App.), per . app . denied (Tenn. 1990). Nor may this court substitute its inferences for those drawn bythe trier

of fact from circumstantial evi dence. Liakas v. State , 199 Tenn. 298, 305, 286 S.W.2d 856, 859, cert
. denied , 352 U.S. 845, 77 S.Ct. 39, 1 L.Ed.2d 49 (1956). To the contrary, this court is requi red to afford the State of Tennessee the strongest legitimat e view of the evidence contained in the record as well as al l reasonabl e and legitimate inferences which may be dr awn from the evidence. State v. Cabbage , 571 S.W.2d 832,4

835 (Tenn. 1978). Questionsconcer

ning th e credi bility

of t he witn esses, the weight and v alue to be given the evidence, as well as all factual issues raise d by the evidence are r

esolved by

the trier of fact, not this court. Cabbage , 571 S.W.2d at 835. In State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973), our supreme court said: "A guilty v erdict by the

jury, approved by the trial judge , accredits t he testimony of the witnesses for the State and resolves all conflicts in favor of the theory of the State." Since a verdict of guilt r emoves the presumption of innocence and replac es it with a presum ption of guilt, the accused, as the appellant, has the b urden in this c ourt o f illustratingwhy the evidence i s insufficient to support the v erdicts returned by the

trier of fact. State v. Tuggl e , 639 S.W.2d 913, 914 (Tenn. 1982). This court will not disturb a verdict of guilt due to the s ufficien cy of the evidence unless the facts contained in the record are insufficient, as a matter of law, for a rational tri er of fact to find that the accused is guilty beyond a reasonable doubt. Tuggle , 639 S.W.2d at 914.

B. Before the defendant could be convicted of aggrav ated robbery in these case s, the state had to prove beyond a reas onable doubt thedefendant (a) committed an intentional or knowing theft of property from the victim’s person, (b) by putting the v ictim in fear, and (c) the theft wasaccomplished with a deadl y weapon. Tenn. Code Ann. §§ 39-13-401(a) and -402(a)(1). In this case, the state established these elements beyond a reasonable doubt. The defendant exited a motor vehicle, exhi bited a sawed-off shotgun, and tol d the victims to give him the valuable property they possessed while a second perpetrator placed the victi ms’ propert

y in the v

ehicle. Al l three vi ctimstestified they feared the loss of their respecti ve lives. This was the sole reason they readily gave their pro perty to the defendant. All three victims made a positive identificatio n of the defendant after viewing a lineup. Two of the victi ms made a courtroom identification. This court is of the opinion the evidence is s ufficien t to supp ort a fin ding by a rational trier of fact that the defendant was guilty of three counts of aggravated robbery5

beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 278, 61 L.Ed.2d 560 (1979). This issue is without merit.

II. The defendant contends the trial court erred by requiring him to serve these convictions

consecutivelyto a prior sentence for especi ally aggravat ed robbery. The

trial court imposed a Range I sentence of ten (10) years in all three counts. These sentences are to be served consecutiv ely to a fifteen (15) year sente nce in a prior case for an effect ive sentence of twenty-fiv e (25) years. He argues the trial court imp osed con secutive sentencing (a) to deter others and (b) to prevent him from having a “free case.” He also arguesthe trial court failed to make findings of fact or state reasons whic h supported the guidelines set forth in State v. Wilkerson , 905 S.W.2d 933, 93 8 (Tenn. 1995).

A. When an accused challenges the length and manner of service of a sentence, it is the duty of this court to conduc t a de novo r eview on the rec ord with a presumption that "the determinations made by the court from which the appeal is taken are correct." Tenn. Code Ann. § 40-35-4 01(d). Th is presum ption is " conditio ned upon the aff irmative showing in the record that the trial co urt considered the sentencing principles and all rel evant facts and circumstances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). Thepresumption does not apply to the legal conclusions reached by the trial court in sentencing the ac cused or to the determinations made by the trial court which are predicated upon uncontroverted facts. State v. Butler , 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v. Smith , 891 S.W.2d 922, 929 (Tenn. Crim . App. ), per . app . denied (Tenn. 1994); State v. Bonestel , 871 S.W.2d 1 63, 166 (T enn. Crim . App. 19 93). Howeve r, this cou rt is requir ed to give greatweight to the trial court's determination of contr overted f acts as the trial court's determination of these facts is predicated upon the witnesses' demeanor an d appearance
w hen t estifying. State v. Jernigan , 929 S.W.2d 391, 395 (Tenn. Crim. App.), per . app . denied (Tenn. 1996).6 In conducting a de novo review of a se ntence, this court must consi der (a) any evidence received at the trial and/or sent encing hearing, (b) the presentence report , (c) the principles

of sentencing, (d) the arg uments of counsel relative to sentencing alternatives, (e) the nature and chara cteris tics of the offense , (f) any mitigating or enh ancing factors , (g) any stateme nts made by the accu sed in his own behalf, and (h) the accused's potential or lackof potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-103 and -210; State v. Scott , 735 S.W.2d 825, 829 (Tenn. Crim. App.), per . app . denied (Tenn. 1987). The party challenging

the sentences imposed by the t rial court has the burden of establishingthat the sentences are e rroneous. Sentencing Commis sion Comments to Tenn. Code Ann. § 40-35- 401; Ashby , 823 S.W.2d at 169; Butler , 900 S.W.2d at 311. In this case, the defendant has the burde n of illustrating the sent ences imposed by the trial court are erroneous.

B. In State v. Wilkerson , 905 S.W.2d 933 (Tenn. 1995), the supreme court establ ished criteria which must be satisfied before a trial court may i mpose consecutive sentencing when the accused is a dangerous offender. The court said the trial court must find that

(a) the accused is a dangerous offender, (b) the length of the sentence reasonably relatesto the severity of

the crime committed by the accused, and (c) a lengthy sentence is required to protect the public from the accused’s future criminal conduct. Id . at 939. The trial court’s findings satisfie d the criteria. (1) A “dangerous offender” is an accused “whose behavior indicates little or no regard forhuman life, and [has] no hesitation ab out committing a crime in which the risk to human lifeis high.” Tenn. Cod e Ann . § 40-35-115(b)(4); Wilkerson , 905 S.W.2d at 937. The defe ndant’s conduct meets this definition. Consequently, the defendant is a dangerou s offender. He previously w

as convictedof especially aggr avated robbery. In that

case, he was armed with a knife. In this case, he employed a shotgun. He placed the gun in close proximity to Ward’s body. These are clearly d angerou s offenses . The ri sk to hum an life7

was extremely high. The defendant showed no hesitation about committing these crimes.
(2) The effective sentence of twenty-five (25) years reasonably relates to the severity of the crimes committed, namely , aggravated r obbe ry. This of fense is a Class B f elony. This classifica tio n indicates the Tennessee General Assembly considers ag gravated robbery to be a serious offense. The punishment range for a Class B felony is confinement in the Department of Correction for eight (8) years to thirty (30) y

ears. The actual sentence depends upon the appropriatesentencing range. Tenn. C ode Ann. § 40-35-112. Thetotal sentence imposed does not exceed th e maximum sentenc e for a Cla ss B felo ny.
(3) In this case, a lengthy sentence is required to protect the public from the defendant’s future criminal conduct.The defendant, who was twenty-three years of age when he was sent enced, h as previou sly been co nvicted of especial ly aggravate d robbery, two counts of assa ult, makin g a false report, possession of cocaine, and burglary third degree. The trial court commented during the sentencing hearing that the defendant has “gota whole stack of offenses here,” meaning pending indi ctments. T he presentence report does not list these crimes. Previousattempts to assist the defendant’s rehabi litation have beenunsuccessful. The defendant continued to engage in criminal conduct whil e on probation. His probati on was revoked. Given these facts, it is apparent from the record that the defendant is now past the rehabilitation stage of his l ife. Thus, confinement for an extended period of time is necessary“to protect so ciety f rom [his unwillingness] to lead a productive life and resort to criminal activity

in f u rtherance of [his] anti-social lifestyle.” Gray v. State , 538 S.W.2d 391, 393 (Tenn. 1976). This issue is without merit.8 CONCLUSI ON This court concludes the evidence is sufficient to support a finding by a rational trier of fact that the defendant is guilty of three counts of aggravat ed robbery beyond a reasonable do ubt. Furthermo re, the record su pports consecu tive sentencing.

____ _______________________ ____________

_ JOE B. JONES, PRESID ING JUDGE
CONCUR:

___________________________________ JOHN H. PEAY, JUDG E

___________________________________ THOMAS T. WOODALL, JUDGE