### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs N

ovember 22, 2000 STATE OF TENNESSEE v. RICKY EU GENE COFER Direct Appeal from the Criminal Court for Roane County

No. 11738 E. Eugene Eblen, Judge

No. E2000-00532-CCA-R3-CD December 15, 2000
Defendant

was indicted for aggravated robbery, and a Roane County jury fo und him guilty of the lesser offense of simple robbery, a Class C felony. The trial court se ntenced him to six ye

ars as a Range II, multiple offender, to be served consecutively to a prior Anderson County sentence. In this appeal, defendant make

s the following alle

gations: (1) the evidence wa s insufficient to su

pport his convictio n; (2) th e jury foreman impermissibly interjected extraneous information into the jury deliberations;

and (3) consecutive

sentences were not

warranted. Upon our review of the record, we affirm the judgme

nt of the trial cour

t. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J OE G. R ILEY , J., delivered the opinion of the cour

t, in which G ARY R. W ADE , P.J., and T HOMAS T. W OODALL , J., joined.
Joe H. Walker, District Public Defender; Roland E. Cowden and Walter B. Johnson II, Assis tant District Public Defenders, Harriman, Tennessee, for the appellant, Ricky Eugene Cofer.
Paul G. Summers, Attorney General and Rep orter; J. Ross Dyer

, Assistant Attorne

y General; J. Scot

t McCluen, District Attorney General; and Frank A. Harvey, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION Although indicted for aggravated robb ery, defendant was found guilty by a

jury of simple robbery. The trial c our t sentenced him to six years as a Range II, multiple offender, to be served c onsecutive ly to a prior Anderson County sentence. In this appeal, defendant alleges: (1) the evidence was insufficient to support his conviction; (2) the jury foreman impermissibly interjected extraneous information into the jury deliberations; and (3) consecutive sentences were not warranted. We affirm the jud

gment of the trial c

ourt in all respec

ts.-2- FACTS
The state's proof revealed that on Sep tember 28 , 1997, at approximately 9:45 p.m., defendant entered the Spur Station convenience store in Harriman, Tennessee. The store clerk testified

that the defendant said he had a gun, put

his hand underneath his sweatshirt, pointed something at her, and stated, "give me the money." She testified that she subsequently gave him over $3,000in cash from the cash register because she was "afraid." She testified that she was still "terrified" when the police arrived. The store clerk later identified the defendant in a photo lineup and again identified him at trial.
T he only proof presented by the defendant consisted of testimony by the defenda nt' s girlfriend, wh o stated the defendant had a moustache throughout the last fifteen years. This was contradictory to the store clerk's original description of the suspect as having no facial hair.

SUFFICIENCY OF THE EVIDENCE
The defendant claim

s that the sta

te failed to prove the money was taken by violence or by placing the clerk in fear as required by Tenn. Code Ann. § 39-13-401(a). Specifically, the defendant contends the clerk's testimony revealed that she did not actually see a we apon, and there were no threats made by the perpetrator. Therefore,he contends the sta te failed to

prove a critical element of the crime of robbery.
In Tennessee, gr

eat weight is g

iven to the result reached by the jury in a criminal trial. A jury verdict accredits the state's witnesses and resolves all conflicts in favor of the state. State v. Bigbee , 885 S.W.2d 797, 803 (Tenn. 1994). On appeal, the state is entitled to the strongest legitimate view of the evidence and all reasonable inferences which may be drawn therefrom. Id. ; Statev. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Mor eov er, a guilty verdict removes the presumption of innocence which the appellant enjoyed at trial and raises a presumption of guilt on appeal. State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). The appellant has the burden of ove rcoming this presumption of guilt. Id.
Where sufficiency of the evidence is challenged, the relevant questio

n for an appellat

e court is whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime or crim

es beyond a

reasonable doub

t. Tenn. R. App. P. 13(e); Jackson v. Virgini a , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Abrams , 935 S.W.2d 399, 401 (Tenn. 1996). The weight and credibility of the witnesses' testimony are matters entrusted exclusively to the j ury as the tri ers of fact. State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984); State v. Brewer , 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996).
We disagree with the defendant's assessment of the evidence and find that the evidence was sufficient to support the defendant's conviction for simple robbery. The clerk not only responded-3-

affirmatively

to the prosecutor’s question regarding whether she gave the def endant the money because she was "afraid,” but she also testified that she was still “terrified” when thepolice arrived. Furthermore, she testified that the defendant stated he had a gun. Eve n though s he never saw the weapon, the clerk stated that she believed t he de fendant had a we

apon concealed

under his sweatshirt. Thus, we conclude the jury could hav e reasonably found that the def

endant "intentiona

lly or knowingly" took the m

oney from the cle

rk by "putting the [c

lerk] in fear." See Tenn. Code Ann. § 39-13-401(a).
This issue is without m

erit.

JURY MISCONDUCT
The defendant contends the jury foreman, a former warden with the Tennessee Department of Correction, impro

perlyprovided the jury with "extraneous” and “prejudicial” information in an effort to force the jury to compromise and reach a verdict. See Tenn. R. Evid. 6 06(b). Thus, he argues the trial court should have accepted evidence in the form of an affidavit from his attorney describing the misconduct and should have further inquired into the validity of the verdict.
At the motion for new t

rial, the defend

ant introduced an

affidavit by his attorney averring that the jury foreman stated to the attorne y tha t the foreman told the jurors that they must continue deliberations until a verdict wa s reached. In his affidavit, defense counsel claimed he was approached

after trial by the jury foreman who informed him that the jury was "hung," and he told the j ury of his past posit ion with the Tennes see Department o f Correction and

that they mu s t continue de liberations until a verdict was rea

ched. The state o

bjected to the intr

oduction of this evidence argui ng t hat the statements made by the foreman were not "extraneous prejudicial information" as anticipated by Tenn. R. E vid . 606(b). The stat e further argue

d that even if this information fell u nder the Rule 606(b) exception, it was improper to introduce it through a thirdparty affidavit. The trial court overruled the defendant's motion for new trial.
Parties seeking a new tri

al based on allege

d jury misconduct mu

st at the outs et satisfy the court that they have admissible evidence on the issue. When the evidenc e comes from the jurors themselves,its admissibility is gov erned by Tenn. R. E

vid. 606(b). The r

ule precludes inq

uiries into the jury’s delibera

ti ve pro cess while allowing juror evidence concerning objective incidents or events that constitute external or extraneous influences on the jury. The ru le permits jurors to testify only concernin

g (1) e xtraneous prejudicial information, (2) outside influence, or (3) antecedent a greem ents to be bound by a quotient or majority result. Goss v. Hutchins , 751 S.W.2d 821, 828 (Tenn. 1988).
The Supreme Court has noted that “ex traneous information” is information from a source outside the jury. State v. Coker , 746 S.W.2d 167, 171 (Tenn. 1987). Spe cifically, this co

urt has held that a juror’s tes

timony concerning

pressure or intimi

dation exerted by

other jurors is an

internal-4-

matter that does not involve extraneous information or “outside influence.” See State v. Hailey , 658 S.W.2d 547, 553 (Tenn. Crim. App. 1984).
The foreman’s alleged statements that he believed the jury must continue to delibe

rate until they could reach a verdict was not external information as contemplated by Tenn. R. Evid. 606(b). Thus, we conclude that

e ven if an affidavit had been presented from one of the jurors relating the events described in cou

nsel’s affidavit

, such evidence would not have been admissible under Tenn. R. Evid. 606(b). The trial court didnot err in failing to further inquire into the validity of the verdict based upon counsel’s affidavit.
This issue is without merit.

CONSECUTIVE SENTENCING
Defendant

argues the trial court fa iled to make proper findings with regard to consecutive sentencing

. Specif

ically, he contends the trial court erred in running this six-year sentence consecutively to a prior fifteen-year sentence for aggravated robber y in Anderson County.
The trial court failed to make any findings on the record with regard to consecutive senten cing. Thu s, we review this issue de novo without any presumption of correctness. State v. Poole , 945 S.W.2d 93, 96 (Tenn. 1997). However, we find by a preponderance of the evidence that " [t]he defendant is an offend e r whose record of criminal activi ty is extensive." See Tenn. Code Ann. § 40-3 5-115(b)(2). The defendant has prior felony convictions for aggrava ted robb ery, ag gravated burglary, third deg ree bur glar y, theft of property over $1,000, and petit larceny . In addition, de fendanthas a 1990 conviction for driving under the influence.
Ad dition all y, we find that the length of sentence is “justly deserved in relation to the seriousness

of the offense” and is "no greater than that deserved for the offense committed.” State v. Lane , 3 S.W.3d 456, 460 (Tenn. 1 999) (citing Tenn. Code Ann. §§ 40-35-102(1) and 103(2)). Therefore, we conclude the t rial court did not e

rr in ordering t

his sentence to be

served consecu

tively to the Anderson County sentence.

CONCLUSION Upon our review of the record, the judgment of the trial court is affirmed.

___________________________________ JOE G. RILEY, JUDGE