IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs November 22, 2000

STATE OF TENNESSEE v. RICKY EUGENE 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 found him guilty of the

lesser offense of simple robbery, a Class C felony. The trial court sentenced him to six years as a

Range II, multiple offender, to be served consecutively to a prior Anderson County sentence. In this

appeal, defendant makes the following allegations: (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. Upon our review of the record, we

affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

JOE G. RILEY, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and THOMAS T.

WOODALL, J., joined.

Joe H. Walker, District Public Defender; Roland E. Cowden and Walter B. Johnson II, Assistant

District Public Defenders, Harriman, Tennessee, for the appellant, Ricky Eugene Cofer.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; J. Scott

McCluen, District Attorney General; and Frank A. Harvey, Assistant District Attorney General, for

the appellee, State of Tennessee.

OPINION

Although indicted for aggravated robbery, defendant was found guilty by a jury of simple

robbery. The trial court sentenced him to six years as a Range II, multiple offender, to be served

consecutively 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 sentenceswere not warranted.

We affirm the judgment of the trial court in all respects.
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FACTS

The state's proof revealed that on September 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 $3,000 in 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. 

The only proof presented by the defendant consisted of testimony by the defendant's

girlfriend, who 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 claims that the state 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 weapon, and there were no

threats made by the perpetrator. Therefore, he contends the state failed to prove a critical element

of the crime of robbery.

In Tennessee, great weight is given 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.; State v. Cabbage,

571 S.W.2d 832, 835 (Tenn. 1978). Moreover, 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 overcoming this

presumption of guilt. Id.

Where sufficiency of the evidence is challenged, the relevant question for an appellate 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 crimes beyond a reasonable doubt.

Tenn. R. App. P. 13(e); Jackson v. Virginia, 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 jury as the triers 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
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affirmatively to the prosecutor’s question regarding whether she gave the defendant the money

because she was "afraid,” but she also testified that she was still “terrified” when the police arrived.

Furthermore, she testified that the defendant stated he had a gun. Even though she never saw the

weapon, the clerk stated that she believed the defendant had a weapon concealed under his

sweatshirt. Thus, we conclude the jury could have reasonably found that the defendant "intentionally

or knowingly" took the money from the clerk by "putting the [clerk] in fear." See Tenn. Code Ann.

§ 39-13-401(a).

 

This issue is without merit.

JURY MISCONDUCT

The defendant contends the jury foreman, a former warden with the Tennessee Department

of Correction, improperly provided the jury with "extraneous” and “prejudicial” information in an

effort to force the jury to compromise and reach a verdict. See Tenn. R. Evid. 606(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 trial, the defendant introduced an affidavit by his attorney averring that

the jury foreman stated to the attorney that the foreman told the jurors that they must continue

deliberations until a verdict was 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 jury of his past position with the Tennessee Department of Correction and that they must

continue deliberations until a verdict was reached. The state objected to the introduction of this

evidence arguing that the statements made by the foreman were not "extraneous prejudicial

information" as anticipated by Tenn. R. Evid. 606(b). The state further argued that even if this

information fell under 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 trial based on alleged jury misconduct must at the outset satisfy the

court that they have admissible evidence on the issue. When the evidence comes from the jurors

themselves, its admissibility is governed by Tenn. R. Evid. 606(b). The rule precludes inquiries into

the jury’s deliberative process while allowing juror evidence concerning objective incidents or

events that constitute external or extraneous influences on the jury. The rule permits jurors to testify

only concerning (1) extraneous prejudicial information, (2) outside influence, or (3) antecedent

agreements 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 “extraneous information” is information from a source

outside the jury. State v. Coker, 746 S.W.2d 167, 171 (Tenn. 1987). Specifically, this court has held

that a juror’s testimony concerning pressure or intimidation exerted by other jurors is an internal 
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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 deliberate until

they could reach a verdict was not external information as contemplated by Tenn. R. Evid. 606(b).

Thus, we conclude that even if an affidavit had been presented from one of the jurors relating the

events described in counsel’s affidavit, such evidence would not have been admissible under Tenn.

R. Evid. 606(b). The trial court did not 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 failed to make proper findings with regard to consecutive

sentencing. Specifically, he contends the trial court erred in running this six-year sentence

consecutively to a prior fifteen-year sentence for aggravated robbery in Anderson County.

The trial court failed to make any findings on the record with regard to consecutive

sentencing. Thus, 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 offender

whose record of criminal activity is extensive." See Tenn. Code Ann. § 40-35-115(b)(2). The

defendant has prior felony convictions for aggravated robbery, aggravated burglary, third degree

burglary, theft of property over $1,000, and petit larceny. In addition, defendant has a 1990

conviction for driving under the influence. 

Additionally, 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. 1999) (citing Tenn. Code Ann. §§ 40-35-102(1) and 103(2)).

Therefore, we conclude the trial court did not err in ordering this sentence to be served consecutively

to the Anderson County sentence. 

CONCLUSION

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

___________________________________ 

JOE G. RILEY, JUDGE