# FILED
October 29, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON SEPTEMBER 1997 SESSION

STATE OF TENNESSEE, ) ) APPELLEE, )

) No. 02-C-01-9608-CC-0 0278 ) ) Madison County ) v. ) ) Whit La fon, Judge ) ) (Aggravate d Robbery) DEVON EUGENE SMITH, ) ) APPELLANT. )

FOR THE APPE LLANT: FOR THE APPELLEE: Thomas T. Woo dall John Knox Walkup Attorney at Law Attorney General & Repor ter P.O. Box 1075 500 Charlotte Avenue Dickson, TN 37056-1075 Nashville, TN 37243-0497 (Appeal Only) Janis L. Turner George Morton Goo ge Assistant Attorney Gener al District Public Defender 450 James Robertson Parkwa y 227 Baltimore Street Nashville, TN 37243-0493 Jackson, TN 38301-6137 (Appeal Only) James G. Woodall District Attorney General Jeffrey J. Mueller P.O. Box 2825 Assistant Public Defender Jackson, TN 38302-2825 227 Baltimore Street Jackson, TN 38301-6137 James W. Thompson (Trial On ly) Assistant District A ttorney General P.O. Box 2825 Jackson, TN 38302-2825

OPINION FILED:____________________________
AFFIRMED Joe B. Jones, Pre siding Judge2 

## O P I N I O N

The appellant, Devon Eugene Smi th (defendant ) , was convicted of agg ravated robbery, a Class B f elony, by a jury of his peers. The trial court found tha t the defendant was a standard offender and imposed a Range I sentence c onsisting of

confinement for ten (10) years in the De partment of Correction. The d efendan t presents two issues for review. He contends the evidence is insufficient to support his conviction and the sentence imposed by thetrial court is exc essive . After a

thoroug h revi ew of the record , the bri efs submitted by

the parties, and the law governing the iss ues presented for review, it is the opinion of this court that the j udgment of the trial court shoul d be affirmed. On the afternoon of August 9, 1995 , the defendant entered the Whitehall Foods grocery. He was wearing a jacket, he had a cap on his head, he had the hood attached t o the jacket over the cap, and he was wearing either dark goggles or sunglasses. A n employee directed theassistant manager’s attention to the defendant. Both men thought the defendant was dressed oddly for the month of August as it w as hot outside. When the assistant manager confronted the defendant, the defendanttold him “[y]ou don’t have to worry about anything. I’m not going to steal anything.” As the assistant m anager walked away, the defendant called to him. When the assistant manager turned around to face the defe ndant, the defendant had a pistol in his hand. He told the assistant manager to “[c]ome here.” He then told the assistant manager to “go to the office. You ’re going to give me all the money in the safe.” The assistant manager went to the office, opened the safe, and gave all the money and food stamps to t he d efendant. Together they approached a cashier. The defendant told the assi stant manager to “[p]ut some more money in there,” referring to a s ac k he was holding. The assistant manager placed the contents of the register in the bag. The defendant then told the assistant

manager to walk tow

ard the rear of the store. The defendant then exited the store. One cashier

had seen the defendant in clubs, and the defendant, according to his
own admission, had been inside the store approximately five times. This cashier made an identification of the defenda nt from a photographic spread. She also made a courtr oom3

identification. The cashier testified the defendant’s nickname was “Milk. ” The defendant admitted this was

his nickname. A second cashier made a courtroom identification of the defendant. Officers obtained a search warrant to search the defendant’s residence. The pistol the defendant used in the robbery was seized and subsequently id e ntified by two employees of the grocery. Also seized were $225 in cash, $205 in food stamps, and bill receiptstotaling more than $300, which were paid the morningthe house was searched. Food sta mps were ta ken durin g the robb ery. The defendant presented evidence that he had purchased food stamps from other people including his aunt. He knew this was illegal and c onstituted a crime. The defendant claimed he purchased the .38 automatic pistol when he was working for a security guard service. He was interested i n continuing his wor k with the guard ser

vice and pos s ibly pursuing a career in law enforcement.He also wantedthe pistol to protect himsel f in the neighborhood. There were several sh ootings, gang activit y, and drug trafficking in the area where he lived. The defendant testified he was emplo yed on the date the robbery took place. He also made money playi ng the keyboard in a bandand serving as a dis c jockey in clubs. According to the defendant, his car was inoperable on the date in question. His girlfriend called her

cousin totake them to a Kroger stor e to shop. He stated he wante d to go to a store that closed at 4:30 p.m. Due to the length of time spent at Kroger, he knew he was late and would not be able get to the

store before it closed. He denied he robbed the Whitehall Foods on the date in question.

I.

The defendant contends the evidence containe d in the record is insufficient, as a matter of law, to support his con viction for aggrav

ated robbery. He arg ues the assistant manager and the stock person could not identify the defendant as the perpetr ator of the robbery. One of the cashiers could not identify the defendant while viewing a photographic spread. Furthermore, the food stamps were not marked with the store’s stamp.4 As can be seen from the foregoing statement of facts, th e evidence is clearly sufficientto support a finding by a rational trier of fact that the d efend ant was gu ilty of aggravatedrobbery beyond a reasonable d oubt. Tenn. R. App. P. 13(e); Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The defendant intentionally took the property of another and he ac complished this act by employing a deadlyweapon, a pistol. Tenn. Code Ann. §§ 39-13- 401 and -402. It must be remembered that this court d oes not reweigh or reevaluate the evidence when determining the sufficiency of the evidence. State v. Matthews , 805 S.W.2d 776, 779 (Tenn. Crim. App.), per . app . denied , (Tenn. 1990). Furthermore, this co urt ma y not substitute its inferences for those drawn by the trier of fact from circumstantial evi dence. State v. Liakas , 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 required to afford the State of Ten nesse e the strongest legitimate view of the evidence contained in the record as well as all reasonable inferences w hich may be drawn from the evidence. State v. Cabbage , 571 S.W.2d 832, 83 3 (1978). Questions concerning the cre dibility of the witn esses, the weight and v alue to be given the evidence, as

well as all factual i ssues raised 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), the supreme court said: “A g uilty verdict by the jury, approved by the trial judge, accredi ts the testimony of the witnesses for the S tate and reso lves all conflicts in favor of the theory of the State.” This issue is without merit.

II.

When an accused challenges the length of a sentence, it is the du ty of this Court to conduct a d e nov o review on the recor d with a presumption that "th e determinations made by the court from whic h the appeal is taken are correc t." Tenn. Code Ann. § 40-35- 401(d)(1990). This pres umption is "condi tioned u pon the a ffirma tive showing in the record that the trial court consider ed the s ente ncing principles and al l relevant facts and5

circumstances." Stat e v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The presumption does not apply to

the legal conclusions r

eached by

the trial court in senten cing the accused
or the determinations made by the t rial court which ar e predicated upon uncontrovert ed facts. State v. Smit h , 891 S.W.2d 922, 929 (Tenn. Crim. App.), per . app . denied (Tenn. 1994). Also, the presumptiondoes not apply when the t rial court has failed to con sider the sentencing principles, the relev ant facts, and the relevant ci rcumstances. A sh by , 823 S.W.2d at 169. In th is case, the trial court stated: “ Let the Defendant stand, please. Mr. Devon E ugene Smi th, it’s the judgment of the Court that you serve 10 years in the penitentiary forarmed robbery.” Duri ng the hearing on the moti on for a n ew trial, the follow ing occurred:
MR. THOMPSON: Your Honor, the State filed enhancement

factors and argued them during the sentencing he aring. Your Honor simply gave a sentence , b ut I submit Your Honor by implication relied upon the enhancement factors as filed by the State, and I would submit that w e had en ough enhancement factors filed where Your Honor would have be en justified in givinghim the maximum sentence. If Your Honor wants a copy of that -- THE COURT: Let

me see that to refre sh the Cou rt’s memo ry. MR. TH OMPSON: Your Honor will recall, there were severa l people in the store, and he did hav e a gun. THE COU RT: All right. Let the record show that the Court found the enhancement factors in this matter, one of which is, the offense involved more than one victim; another instance in that the D efendant possessed or employed a fir earm or dangerousweapon; and third, the Defendanthad no risk about committing a crime wher e the risk for human life was high.
Since the record does

not establish the

trial court followed the mandate set forth in Ashby , this court must conduct a de novo review without a presum ption that the findings of the trial court were correct. The de fendant h as a history of criminal convictions and crimi nal behavior. Tenn. Code Ann. § 40-35-114(1). He has been convicted of drivi ng while his lic ense was sus pended, driving without a licens e, driving while under t he influence , and violating t h e open container law. His criminal behavior enta ils criminal impersonation , c arrying a concealed weapon, and driving while his license was revoked. The defendant forfeited his6

bond on the latter three offenses. H e made a judicial admission he purchased food stamps from the recipient of the stamps knowing each purchase w as a crime. The defendant did not hesitate about com mitting a crime where the risk to human life was high. Tenn. Code Ann. § 40-35-114(10). As a general rule, this factor does not applyin aggravated robbery cases. State v. King , 905 S.W.2d 207, 213 (Tenn. Crim. App. 1995). However, this court has recognized this factor may be applicable if someone other than the victim is placed a t risk. State v. Hicks , 868 S.W.2d 729, 732 (Tenn. Crim. App. 1993). In this case, several individuals were at risk. There were two cashiers who were prese nt inside the store during the course of the robbery. The assistant manag er too k moneyfrom acash register as one of the cashiers stood in the v icinity where the

defendant
was brandishing his weapon. Given these circumstances, this enhance ment factor may be used to enhance the sentence wi thin the appropriate range. The use of the weapon was an element of the offense. Tenn. Code Ann. § 40-35- 114(9). Both of these factors, factors (1) and ( 10), are entitled to grea t weight. There were
no mitigating factors supported by the evidence. Therefore, a sentence of ten (10) years was warranted for the o ffense committed by the defendant. This issue is without merit.

___________ ______________________ __________

_ JOE B. JONES, PRESIDIN G JUDGE
CONCUR:

______________________________________ DAVID H. WELLES, JUDGE

______________________________________ JOE G. RILEY, JUDGE