### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs Jul y 13, 200 4

STATE OF TENNESS EE v . CORNELI US D. HICK S, ak a “ HOL LYWO OD,”

and TR OY LEE S PR INGF IELD

Direc t Appeal from the Circ uit Court for Laud erdale County

No. 7408 Joseph H. Walk er, III, Judge

No. W2003-03035-C CA-R 3-CD - F iled Septem ber 14, 2004

The de fenda nts, Cornelius D. Hicks and Tr oy L ee Spring field, and two c odefe ndants, Bry an T. Oldham and Ke ny ale M. Pirtle, wer e cha rg ed with ag g ravated assault, a Class C fe lony , for f iring

a g un a t th e vic tim , K e ist on Ca mpb e ll, a s h e dr ov e hi s car do wn a He nn ing str e e t. P irtle

su bs e qu e ntl y

ple d g uil ty

to a g g ra va te d a ssa

ult , a nda fi fth in div idu a l in vo lve d in the inc ide nt h a d h is

c a se ha nd le d in juv e ni le court . T he thr e e re ma ini ng de fe nd a nts , Sp ri ng fi e ld, Hi c ks , a ndOl dh a m,

wer e tried joint l y b ef

o re a L auder dale County Circuit Court jury , which ac quitted Oldham but convicted both Hic ks and Spring field of the le sser-inc luded offe nse of f acilitation of ag g ravated assault, a Class D fe lony . The trial c ourt sentenc ed Hicks as a Rang e I
, standard of fende r to three
y ear s i n the Depa

rtment of Corre ction, with the sentenc e suspende d and the de fenda nt placed on supervised pr obation following service of 250 day s, to be serve d consec utively to a sentenc e for a n offe nse for

which he w as on probation at the time of the instant offe nse. Spring field wa s sentence d as a Rang e I , standard of

fende r t o t h re e y ear s in the Depa rtment of Corre ction, with the sentenc e order ed to be served consecutively to his sentence f or violation of par ole. The sole issue H icks raise s on appea l is whether the evidenc e was sufficie nt to sustain his conviction. Springf ield challeng es the trial court’s denial of his motions to sever his trial and for judg ment of ac quittal. Following our revie w, we a ffirm the judg ments of the trial c ourt.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Circ uit Court Aff

irm ed

A L AN E. G L EN N , J

. , delivere d the opinion of the court, in which J OHN E VE R E TT W I L L I AMS and N OR MA M C G EE O G LE , J J ., joined.

D. Mic ha e l D un a va nt, Rip le y , T e nn e sse e , f or the app e lla nt, Corn e liu s D . H ic ks ; a ndDa vidM. L ivingston, B rownsville, Tenne ssee, f or the a ppellant, Troy

L ee Spring field.

Pa ul G . Su mme rs , Atto rn e y Ge ne ra l and Re po rt e r; Re ne e W. Turne r, As sis tant A tto rn e y Ge ne ra l; Eliz abe thT

. Ri c e , D is tric t A tt o r n e y G e n e r a l; a n d T r a c e y

A

. B r e w e r , A s s is tan t D is tric t A ttor ney Gene ral, for

the appe llee, State of Te nnessee

.-2- OP IN ION

F AC TS

State’ s P roof

The incide nt at issue in this case occur red shortly

afte r 10:00 p.m. on Dec ember 4, 2002, near the intersec tion of Church and Moor e Stree ts in Henning

. The victim testified he had just left the home of his frie nd, J ames Bar bee, and was on his way in his mother’s brown 1977 Buic k to pick up Ke lly Cur ri e to take her to the Mid way Ma rk e t w he n h e pa sse d a

br ow n, fo ur -d oo r O lds mob ile C u t l as s i n fr o n to f t h e H en n i n g P o l i ce De p ar t m e n t

. As h e p ro ce ed ed t o t h e H en n i n g Vi l l age Apartments where Currie lived, he saw in his rea rview mirr or that the Cu t l as s , wi t h five Af rica nAm e ri c a n ma le s in sid e , w a s tr a ve lin g be hin d h im. Th e me n tr a ve lin g in the Cut lass pu lle d in to Henning Villag e, turne d off their lights, and parke d, but the victim did not s ee any one g et out of the vehicle at that time. The victim said he thoug ht he re cog nized the rims on the Cutl ass as one s which had bee n on a c ar th a t h a d b e e n s to le n f r o m “ M r

. T r e a d w a y ’ s s o n

. ” T h e r e f o r e , w h e n h e s a w the Cutlass ag ain at the Midwa y Marke t he telephone d Ba rbee and told him h e h ad j ust seen Mr. Trea dway ’s rims on another vehicle. Shortly

afte r both he a nd the men in the Cutlass had pulled out of the mark e t, B arb e e me t him in the are a a nd he po int e d the ve hic le ou t to him

. B arb e e pu lle d in behind the Cutlass to ge t its t ag number while the victim took C urrie home

.

The victim testified he w as re turning to meet B arbe e whe n he saw the Cutlass drop off two passeng ers who w alked to the door of a va cant house on Moore Stree t. When he came back a round to Moore af

ter c ircling the block, the sa me two men wer e walking up the stree t. One of the two, who

was we aring a tobog g an hat that tied under his chin a nd had his hands in his pockets, nodded to the victim as if to say , “What’s up? ” but kept wa lking, while the seco n d man, who wa s wea ring a ski

m a s k p u l l e d d o w n o v e r

h i s f a c e a n d c arr yi n g a p i s t o l
, ap p r o a c h e d t h e v i c t i m ’ s c ar , s a yi n g , “ H e y, h e y, stop.” The man f

ired a s the victim acc eler ated f rom the ar ea, w ith the bul let striking the tr unk of the victim’s c ar, ricoc heting
, and shattering the rea r windshield. Approxim ately two to three minutes later, the victim reported the shooting to He nning Police O ffice r Rhea at the Midway Marke t.

Th e vic tim

te sti fi e d th e sk i- ma sk e d s ho ote r wa s we ari ng a da rk , hoo de d swe a te r an d p os sib ly an Or lando Mag ic or Da llas Cowboy s jacke t, did not have a lot of hair on his head, a nd had a lig hter complexion, s imilar to the victim’s. He tentatively identified the masked man a s Oldham, testify ing that “fr om what [he was] thinki ng

. . . Mr. Odom [si c]” was the one who had been w earing the ski mask and who ha d shot at him. The victim posit ively identified Hick s as t h e s ec ond man in the tobogg an hat, stating he had be en ableto ge t a clea r view of his face

.

The victim testified he saw all four adult defe ndants when they g ot out of t he C utlass at the Midway Marke t. None wa s wea

ring a ski mask at that time, and he did not eng ag e in conver sation with eithe r

th e m o r th e ju v e n il e , w h o r e main e d in s id e th e v e h ic le

. H e d idn o t kn o w a n y o f the

occ u p a n ts o f th e Cu tl a s s a n d te le p h o n e d B ar b e e , in p ar t, b e c a u s e b e in g tr a il e d b y me n he did not kn ow c a us e d h im f

e ar. At on e po int du ri ng his te sti mon y , th e vic tim su g g e ste d th a t th e de fe nd a nts-3-

might have been a fter the rims on his mot her’ s car . He c once d ed
, h oweve r, that the Cutlass was turning into the Henning Villag e Apartments a s he was exit ing the complex and he did not see the men trailing him as he drove to the Midway Marke t. H e acknow ledg ed Hicks made no threa tening or violent moves towar d him, and he neve r saw H icks with a g un.

Jame s B arb e e te sti fi e d th e vic tim te le ph on e d h im s ho rt ly

a ft e r le a vin g his ho us e to t e ll h im that some men we re f

ollowing him in a brown Cutlass. When he located the car , he pulled in behind it in his small, white Hyundai, watc hing a s it pull ed up, droppe d off two men from the ba ckseat who walked “ up by

the chur ch,” and then pulled off a g ain. He the n followed the c ar, r ec o rd i n g i t s tag number a nd observi ng that, by the time it had “made [t he] block,” the two men w ho had bee n dropped of

f we re w alking up the s tree t. At that point, the Cutl ass continued stra ight a nd he turne d le ft fo r C ity Ha ll. En ro ute , h e e nc ou nte re d th e vic tim , w ho tol d him that the me n ha d s ho t ou t hi s window. When they

wer e unable to find any one at CityHall, he a nd the victim separated to sear ch for Of fice r Rhea. A short while later , he saw the victim talking to the office r, pul led up, and r eporte d the t ag number which he had rec orded on his ce ll phone. Ba rbee acknow ledg ed he ne ither hea rd nor

sa w the g un sh ots fi re d a t th e vic tim ’s ve hic le . H e te sti fi e d, ho we ve r, that th e g un sh ot d a ma g e to the vehicle had not bee n prese nt ear lier in the eve ning.

A “ B OL O” or

“ be on the loo ko ut” fo r the Cut la ss w e nt o ut at app ro xima te ly 10 :28 p. m. Soo n th e re a ft e r, Rip le y Pol ic e Of fi c e rs Jimmy Dr ake a nd De bb ie Ki rk patr ic k, tr a ve lin g in s e pa

rate patrol ca rs, spotted the vehic le on Hig hland Street in Ripley and followe d it to a residence on Hamby Circle. Of

fice r Kirkpatrick testified that the two me n in the front seat g ot out on the passeng er side befor e she a nd Offic er Drake had stopped, while the three in the backse at rema ined in the vehicle

. She la te r l e arn e d th a t both the dr ive r’ s doo r an d th e re ar p a sse ng e r’ s d oo r w e re ja mme d a ndc ou ld

no t be op e ne d f

ro m th e ins ide . O ff

ic e r Kir kp a tr ic k te sti fi e d th a t th e ir se arc h o f the v e hic le

uncover ed two g uns: one on the re ar f loorboard unde rneath the front passe ng er’ s seat and a second jamme d b e tw e e n th e f

r o n t a r mr e s ts , w ith th e b arr e l p o in ti n g to w ar d th e b a c k s e a t. I n h e r o p in ion, bo th g un s we re in a pos iti on wh e re a ny on e in the ve hic le c ou ld h a ve e xer c ise d c on tr ol o ve r the m. On cr oss-examination, she testified that the ca r was reg istered to T roy

Springf ield, and her

rec ords sh ow e d it wa s Sp ri ng fi e ld a ndOl dh a m w ho e xite d th e fr on t se a t.

Offic er Jimm y

Drake, who corr oborate d Offic er Kirkpatrick’ s acc ount of the stop, identified the two small, c hrome-plated automatic handg uns that wer e found in the vehicle and ag ree d that the

we a po n s w e r e l o c a t e d w h e r e a n y o f t h e f i v e o c c u p a n t s c o u l d h a v e r e a c h e d t h e m

. O n c r os se xami n a t i o n , h e a c k n o w l e d g e d t h a ta b a c k s e a tp a s s e n g e r

c o u l d h a v e p l a c e d t h e g u n s i n t he ir respe ctive locations during the five t o ten s econds before Offic er Kirkpatrick reac hed the vehicle; that the offic ers ha d to order one of the ba ckseat passeng ers, who w as initiallymoving a round inside the vehicle, to stay still ; and that none of the five occupants of t he vehicle m ade any attempt to elude the offic ers or

avoid ar rest.

Keny ale Pirtle, who pled guilty to the agg ravated assault of t he victim on Fe bruary 24, 2003, testified he, Springf

ield, Oldham, Hicks, and the juvenile, whom he knew as “Pac -Man,” trave led from Ha y wood County

to Henning on the night of the shooting to look for g irls. Springfie ld was theT he s t at ement was r edact ed t o el i mi nat e t he names of Spri ng f i el d’ s c o d efen d ant s , an d Serg ean t Rhea, 1

acco rdingl y , s ub st i t ut ed t he wo rd “bl ank” f o r t hei r names when read i ng t he st at em ent al o ud to t he jur y

. See B rut o n v. U n ited S ta te s, 3 9 1 U .S . 1 2 3 , 8 8 S . C t. 1 6 2 0 , 2 0 L . E d . 2 d 4 7 6 (1 9 6 8 ).

-4- dr ive r, Ol dh a m r od e in the fr on t pa sse ng e r se a t, andhe , H ic ks , a ndthe juv e nil e ro de in the ba c ks e a t. Whil e they

wer e riding around, someone who had be en following t h em i n a s m al l, newer model white ca r tried to hit their vehic le from the side . He a nd Hicks then g ot out of the Cutlass and Hicks fired at the victim. Pi rtle denie d he wor e a ski mask, possessed a g un, or fire d at the victim, and claimed he never

saw a ny g uns, did not know any

wer e in the ca

r, and c ould n ot rec all how many sh ots he he ardHi c ks fi re a t th e vic tim . H e fu rthe r d e nie d th e re wa s a ny ta lk a mon g the de fe nd a nts

abo ut s ho oti ng a ny on e , a nd ma int a ine d his so le pu rp os e in tr a ve lin g to He nn ing wa s to loo k f or g ir ls. He agr ee d h i s co m p l ex i o n wa s l i gh t ert h an Hi ck s ’s an d ac k n o wl ed ged Ol d h am h ad b ee n get t i n g a ride to his aunt’s house in He nning a nd had slept for most of the drive, wa

king only when they

rea ched the Midway

Marke t.

Henning Police Chief J ames Tr eadw ay identified a ski mask, seve ral “ skull caps” or tob og g a ns , a nda

pa ir of bla c k g lov e s re c ov e re d f

ro m th e Cut la ss at th e tim e of the de fe nd a nts ’ a

rr e st.

Ripley Police Serg eant Joey

Rhea testified the vi ctim approa ched him at the Midway Marke t be tw e e n 1 0:1 0 a nd10 :15 p. m. to re po rt the sh oo tin g . A s h e wa s se arc hin g fo r the ve hic le the vic tim had described
, th e v ic ti m an d B ar b e e me t h im

o n M o o r e Str e e t, w h e r e B ar b e e p r o v id e d th e tag number for

the vehicle. Serg eant Rhea testified he observe d a bullet mark on the victim’s trunk and

a sh a tte re d r e ar w ind sh ie ld w he re the bu lle t ha d ri c oc he te d of f the trun k, bu t w a s u na

ble to l oc a te any bullets or shell casing s.

At the re quest of the State, Ser g eant Rhea rea d aloud from a sta tement Spring field g ave on the nig ht o f the sh oo tin g in w hic h h e de sc ri be d d ro pp ing tw o of his pa sse ng e rs of f o n M oo re Str e e t, he ari ng g un sh ots a s h e dr ov e aro un d th e blo c k, a ndre turnin g for th e pass e ng e rs wh o h a d g un s. 1 Se rg e a nt R he a te sti fi e d that Hi c ks g a ve a n in iti a l st a te me nt d e nying that he ha d b e e n in L a ud e rd a le Cou nty , b ut a

pp ro xima te ly

on e we e k late r, he wr ote the fo llo wi ng state me nt:

Mystate me n t is th is [. ] I h a v e n ’ t c o mm it te d n o [s ic ] c r im e of the

c ha rg e s a g a ins t me ! I ’m [sic ] c a me to He nn ing or Rip le y to s e e my g irl, a conflict of i ntere st came about w[ h]ere a car tried to run us off the roa d afte r someone try to hunt us down. ___ speed out of c ontrol afte r he ha d let ___ out to holla [ sic] at some guy [.] [W ] e m ad e a blo c k so the tim e we ma de a blo c k g un sh ots we re fi re d[.]

__ _ rus h back to the sc ene and p i ck h im up! I don’t [k] no[w] the

c ir c ums ta nc e s o f the sh oo tin g wa s a bo ut[. ] [A]ll I

kn ow that he sa id

no on e wa s h it s o w e a ll p a nic , I tol d them to get me to my g ir l[’ s] ho us e be c a us e I did n’ t un de rs ta nd wh a t ha pp e n [si c ] or

the re a so ns ! ___ later told me he was a victim of something ha ppen in Ripley

later

on so I fe lt the guy s tha t w e re fo llo wi ng us we re a ft e r h im t o s ome-5- extent! I know I don’t own no [si c] pistol or I didn’t have none [si c] in [ the] car or bring none [si c] with me! So this sta[te] ment that I has [si c] give n sum [ sic] up that basically that I ’m just be ing a man a nd standing up to a cha

rg e that I didn’t commit!

On cr oss-examination, S erg eant Rhea ac knowledg ed Spring field did not state at what point he first lea

rned of the exist ence of the ha ndg uns.

Defense P roof

Oldham’s aunt, L

ula B . Phill ips, testified Oldham telephoned her on the day of the shooting to ask to borrow mone y . When she ag ree d, he t old her he would come to her house in Henning whene ver he could find a ri d e. He r nex t contact with him occur red at 1:00 or 1:30 the following morning , when he called to tell her he wa s in jail.

Bry an Oldham, who sa id he was nine teen y ear s old at the time of the shooting, te stified he went to Henning to borrow money from his aunt and his c ompanions went to ta lk to some girls. He slept in the front passe ng er se at during the dr i v e, did not see a ny g uns in the car , hear d no

conver sation about shooting a ny one, and ne ver sa w Hicks, Spring field, or Pi rtle wit h a gun. Oldham testified that a brown car

followed them fr om the Midway Marke t to the street whe re the y dropped off Pirtle and Hicks, who wer e going to a house to talk to some g irls. A whit e car “pull[ ed] . . . up on [t hem],” as if the drive r wa nted to run them off the roa d, soon afte r they dropped the men off, a nd Springf ield then turned to g o to Oldham’s aunt’s house . When they hear d g unshots a couple of seconds late r, they

returne d to Moore Stree t, where they picked up Pirtle and Hicks, who we re a lone

a ndun hu rt

. Ne ith e r w a s c arry ing a g un , a ndthe on ly

thi ng the y

sa id w a s “ le t’ s g o. ” Spring fi e ld pulled off at a normal rate of spee d, but refuse d to take Oldham to his aunt’s house, insisting instead that they drive to the home of

a woman he knew in Ripley

.

Hicks and S p ri n gfi el d elec ted not to testify and re sted their ca ses without presenting any proof.

AN AL YSI S

I. Su ff iciency of the Evid ence

Hicks ra ises as his sole issue whethe r the evidenc e was suff icient to support his conviction for f acilitation of ag g ravated assault. Springf ield also challeng es the sufficie ncy of the c onvicting

e vid e nc e , a

rg uin g that th e tr ia l c ou rt

e rr e d in de nying his mot ion fo r jud g me nt of a c qu itt a l. Th e Sta te responds by

arg uing that the evidenc e was more than sufficie nt to sustain Hicks’ s conviction and that S prin g fi e ld h a s w a ive d th e iss ue by his failu re to f

ile a tim e ly mot ion fo r a

ne w t ri a l. Notwithstanding w aiver , the State arg ues that the evidenc e ag ainst Springf ield, was, likewise, mor e tha n s uf fi c ie nt f or a ratio na l trie r o f f

a c t to fi ndhim

g uil ty of fa c ilita ti on of agg ra vate d a ssa ult bey ond a re asonable doubt.-6-

The State a sserts that Spring field’s motion for a new trial was untimely beca use it wa s filed more than thirty day s bey ond the J uly 11, 2003, date on whic h his judgment wa s entere d. Howeve r, althoug h Hi ck s ’s j u d gm ent was entere d on J uly 11, the re cord r evea ls that Springfie ld’s was not
enter ed until Aug ust 1, 2003. The re cord f urther r evea ls that Springf ield filed hi s motion for a new trial on September 2, f

ollowing the Sept em b er 1 L ab o r Da y holiday ; the trial court ove rruled the
mot ion on Se pte mbe r 1 2; a ndSpring fi e ld f ile d h is n oti c e of

app eal on Oc tob e r 8 . T hu s, bo th h is motion for a new trial and his notice of appea l were timely

. We apply the same standard when revie wing whether a trial court err ed in de ny ing a motion for judg ment of ac quittal as when re viewing whether the ev i d en ce was suff

icient to sustain a conviction. S ee State v. Ba ll, 973 S.W .2d 288, 292 (Tenn. Crim. App. 1998) ; State v. Adams, 916 S.W .2d 471, 473 (Tenn. Crim. App. 1995) . When the sufficie ncy of the e vidence is challeng ed on appea l, we must consider “w h et her, a fter vie wing the evidenc e in the lig ht most favorable to the prosec ution, any rational trier of fa ct could have found the e ssential elements of the crime be y ond

a re asonable doubt.” J ackson v. V irg inia, 443 U.S. 307, 319, 99 S. C t. 2781, 2789, 61 L . Ed. 2d 560, 573 (1979); see also Tenn. R. App. P

. 13(e) (“F indings of g uilt in criminal actions whether by the trial court or

jury shall be set aside if the evidenc e is insufficient to support the f indings by

the trier of fa ct of guilt bey ond a re asonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992) ; State v. Ander s o n , 8 3 5 S

. W.2d 600, 604 (Tenn. Crim. App. 1992). All questions involving the

cre dibilit y

of witnesses, the w eig ht and value to be g iven the evide nce, an d al l fa ct u al issues are resolved by

the trier of

fac t. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A g uiltyverdic t by

the jury , approve d by

the trial judg e, ac cre dits the t es t imony of the witnesse s for the State a nd resolves a ll co n fl i ct s i n favor of the theory

of the State.” State v. Gra ce, 493 S.W .2d 474, 476 (Tenn. 1973) . Our supre me court stated the rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge and the jury see the witnesses fa ce to f ace , hear their testimony and o b s e r v e th e ir

d e me a n o r

o n th e s tan d

. T h u s th e tria l j u d g e a nd jury are the primary

instrumentality

of justice to determine the weig ht and cr edibilityto be given to the t estimony of wit nesses. I n the trial forum alone is there human atmosphere a nd the totality of the

e vid e nc e c a nn ot b e re pr od uc e d w ith a writt e n r e c or d in thi s Co urt.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W .2d 768, 771 (1966) ( citing Ca rroll v. State, 212 Tenn. 464, 370 S.W .2d 523 (1963)) . A jury conviction re moves the pre sumpt i o n of innoce nce w ith which a defe ndant is initi ally

cloake d and re place s it wi t h one of g uilt, so t hat on appe al, a c onvicted defe ndant has the bur den of de monstrating that the evidenc e is insufficient. See State v. Tug g le, 639 S.W .2d 913, 914 (Tenn. 1982)

.

Both defe ndants wer e convicted of the lesser- included offe nse of f acilitation of ag g ravated assault. “A pe rson is criminally responsible for

the fa cilitation of a felony if, knowing that another intends to commit a specific felony
, . . . the per son knowing ly furnishes substantial assistanc e in the commission of the felony .” Te nn. Code Ann. § 39-11- 403(a) (2003). A person c ommits ag g ravated-7-

assault, int e r a lia , when the pe rso n i n t en tionally or knowing ly

cause s another to r easona bly fea r imminent bodil y

injury by the use or display

of a de adly

wea pon

. I d. §§ 39-13-101( a)( 2), -1 02 (a )( 1) (B ). A “ [d]e a dly we apo n” sp e c if

ica ll yinc lud e s “ [a] f

ir e arm or a nythi ng ma nif

e stl y desig ned, made or ada

pted for the purpose of

inflicting de ath or serious bodi ly injury .” I d. § 39-11- 106(a) (5)( A).

Hicks arg ues t he State fa iled to prove be y ond a re asonable doubt he either knew that a ny

of his codefe ndants intended to c ommit an ag g ravated assault or provided substantial a ssistance in the commission of that offense . I n support, he cites, int e r a lia : the victim’s ide ntification of the lig hterskinned, ski-masked man as the s hooter and his testimony that he did not see Hicks with a g un and Hicks did not threate n him or have a ny motive to assault him; Oldham’s testimonythat he neve r saw Hicks wit h a gun and hear d no talk about a shooting; and the vague and inconsistent nature of the testimonyprovided by

P i rtle, who, de spite pleading g uiltyto ag g ravated assault, attributed the sh oo tin g to H ic ks . Sp ri ng fi e ld a rg ue s th e re wa s no e vid e nc e to s ho w a ny “ pr e de te rm ine d d e sig n to commit the crime,” or that he had any knowledg e befor ehand that the passeng ers he dropped of f and
returne d to pick up wer e intending to commit an ag g ravated assault.

We c on c lud e , h ow e ve r, th a t th e e vid e nc e wa s su ff ic ie nt t o s us ta in b othde fe nd a nts ’ convictions for f

acilitation of ag g ravated assault. View ed in the light most fa vorable to the State, the proof e stablished that Springf ield dropped H icks and Pirtle off at a v ac an t h ouse, that the two

me n w a lk ed tog e the r u p th e str e e t a ndHi c ks dis tr a c te d th e vic tim by no dd ing to h im w hil e Pirtle approa ched his c ar armed with a handgun and wearing a ski mask, that Pirtle fired at the victim as he fl e d in his ve hic le
, a nd fi na lly
, that Spring fi e ld re turne d imm e diate ly fo llo wi ng the sh oo tin g to pick the men up a nd transport them fr om the town. When review ing the sufficie ncy of the

c on vic tin g e vid e nc e , w e mus t pre su me that the jury re so lve d all c on fl ic ts a nddr e w a ny re a so na ble infere nces f

rom the ev i d en ce in favor of the State. See State v. Shef field, 676 S.W.2d 542, 547 ( T e n n

. 1 9 8 4 )

. R e g ar d l e s s o f w h e t h e r t h e d e f e n d a n t s w e r e m o t i v a t e d b y “ r o a d r a g e , ” r o b b e r y,

reve ng e, or something entirely differ ent from what was sug g ested a t trial, the evidenc e her e wa s

su ff ic ie nt f or the jury to r e a so na

bly infer that bo th d e fe nd a nts , kno wi ng that Pirtle int e nd e d to commit an ag g ravated assault upon the victim, provided substantial a ssistanc e to hi m in the commission of that offense . This issue, theref ore, is without merit.

II. Trial Court’s Denial of S pringf ield’s Motion to Sever

Spring fi e ld a dd iti on a lly c on te nd s that th e tr ia l c ou rt e rr e d in de nying his mot ion to s e ve r h is trial, arg uing that he was prejudice d by being tried with Hicks, “a named pa

rticipant in the crime.” We respec tfully

disag ree

.

A trial court shall gr ant a pretrial mot ion to sever if it is “dee med appropriate to promote a fa ir de te rm inatio n o f the g uil t or inn oc e nc e of

on e or mor e de fe nd a nts .” Ten n. R. Cr im. P. 14(c) (2)( i) (2004). The decision to sever criminal defendants is wholly within the di scre tion of the trial court, St ate v. Maddox, 957 S .W.2d 547, 556 (Tenn. Crim. App. 1997), and c annot be inter fer ed wit h ab sent “c lear

abuse.” State v. Howell, 34 S.W.3d 484, 491 (Tenn. Crim. App. 2000).-8-

Moreove r, “[d]i sparity in the evidence ag ainst the def endants is not alone suff

icient to war

rant the g rant of a

sever ance .” I d. (citation omitted). This court ha s held that “[w]here a m o tion for

sever ance has been denied, the test to be applied by this court in determining whether the trial court abused its discr etion is w hether the defe ndant was ‘cle arly prejudice d’ in his defense as a r esult of being tried with his codef endant.” State v. Price, 46 S.W.3d 785, 803 (Tenn

. C ri m

. App. 2000) (quoting State v. Burton, 751 S.W .2d 440, 447 (Tenn. Crim. App. 1988) ).

We find no abuse of

discretio n b y the trial court in deny ing Spring field’s motion to sever. None of t h e defe ndants at trial pre sented a n antag onistic defense , and ther e wa s no evidenc e that Springf ield was pre

judiced by

being tried with Hicks, who wa s identified by the victim as one of the two men who appr oache d his vehicle on the s tree t. I n this reg ard, w e note that Oldha m, whom the victim tentatively

identified as the actual shooter, was acquitted by the jury . Thus, it was clea r that the jury was a ble to separ ate the proof prese nted ag ainst eac h defe ndant. We conclude , there fore
, that this iss ue is without merit.

CO NC LU SION

We conclude that the evidenc e wa s sufficient t o s u s tain both defe ndants’ convic tions for fac ilitation of ag gravated assault. W e further c onclude that the trial court did not err in deny ing Springf ield’s motion to sever. Ac cording ly , we a ffirm the judg ments of the trial c ourt.

___________________________________ ALAN E. GL

ENN, JUDGE