IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs July 16, 2013 

STATE OF TENNESSEE v. JAWARAS BEAUREGARD

Appeal from the Criminal Court for Davidson County

Nos. 2010-A-2, 2010-B-1588 J. Randall Wyatt, Jr., Judge

No. M2012-02312-CCA-R3-CD - Filed November 14, 2013

The Defendant-Appellant, Jawaras Beauregard, was indicted by the Davidson County grand

jury for attempted especially aggravated robbery and attempted first degree premeditated

murder. He was convicted by a jury of the charged offense of attempted especially

aggravated robbery and the lesser included offense of attempted voluntary manslaughter. He

was sentenced as a Range I, standard offender to nine years for the attempted especially

aggravated robbery conviction and as a Range II, multiple offender to a concurrent sentence

of five years for the attempted voluntary manslaughter conviction. On appeal, he argues:

(1) the trial court erred in denying his motion to suppress the victim’s identification of him

in a photographic lineup; and (2) the evidence is insufficient to sustain his convictions. Upon

review, we affirm the judgments of the trial court.

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

CAMILLER.MCMULLEN,J., delivered the opinion of the court, in which and ROGER A. PAGE,

J., joined. D. KELLY THOMAS, JR., J., not participating.

Dawn Deaner, District Public Defender; Jeffrey A. DeVasher, Assistant District Public

Defender (on appeal); and Kristin Stangl and Katie Weiss, Assistant District Public

Defenders (at trial), for the Defendant-Appellant, Jawaras Beauregard.

Robert E. Cooper,Jr., Attorney General and Reporter; Leslie E. Price, Senior Counsel; Victor

S. (Torry) Johnson, III, District Attorney General; and Rachel Thomas-Spain, Assistant

District Attorney General, for the Appellee, State of Tennessee.
OPINION

FACTS

Suppression Hearing. Scott Sulfridge, a retired detective with the Metropolitan

Nashville Police Department, testified that on March 16, 2009, he investigated an incident

involving the victim, Lamin Darboe, that occurred at 11:30 p.m. near the intersection of

Thompson Lane and Nolensville Road. Upon arriving at the scene, he saw a taxi cab van that

appeared to have “veered off” Nolensville Road before hitting one or more cars in a nearby

Nissan dealership parking lot. Detective Sulfridge was informed by other officers that the

victim, who had been driving the cab prior to the collision, had already been transported to

the hospital. He was also told that the victim had jumped from his cab, which was traveling

at a speed of approximately forty miles per hour, onto Nolensville Road because he was

being robbed.

When Detective Sulfridge interviewed the victim at the hospital, the victim told him

that two African-American males between the ages of twenty-five and thirty-five had tried

to rob him. In addition, the victim stated that one of his assailants was between five feet, ten

inches and six feet tall and the other man was shorter.

Approximately two hours after the incident involving the victim, Detective Sulfridge

drove down Nolensville Road and turned onto Thompson Lane where he saw a man, whom

he later identified as the Defendant, walking a few hundred yards from the Nissan dealership

toward Briley Parkway. Detective Sulfridge stated that the Defendant was “in obvious pain”

because he paused for fifteen to twenty seconds between steps. Because of the Defendant’s

injuries and his proximity to the incident, Detective Sulfridge suspected that the Defendant

was likely involved in the recent crimes against the victim. Detective Sulfridge immediately

called for a patrol car, and when the officer arrived, they approached the Defendant.

Detective Sulfridge immediately observed that the Defendant had glass in his hair and on his

face, which was consistent with a recent car wreck. The Defendant also had a scratch on his

head and a leg injury. When Detective Sulfridge asked about his injuries, the Defendant

replied that he had fallen.

After talking with the Defendant, Detective Sulfridge returned to the police station

and prepared a photographic lineup that included a picture of the Defendant. He immediately

took the lineup to the hospital to show it to the victim. Detective Sulfridge used a standard

police department form to explain to the victim that the perpetrator of the crimes against him

may or may not be included in the photographic lineup and that the photographs of the

individuals in the lineup could be old or the individuals’ hairstyles could have changed. He

informed the victim that he should not feel pressure to choose anyone from the lineup and

-2-
that he should focus on the individuals’ facial features. When Detective Sulfridge presented

the photographic lineup, the victim “[v]ery quickly” identified the Defendant in the lineup

in a matter of seconds. He said the victim was “[a]bsolutely positive” that the Defendant

was the person who pointed the gun at him. Detective Sulfridge stated that the victim

identified the Defendant in photograph number six of the lineup on March 18, 2009, just a

few hours after the offenses occurred.

Detective Sulfridge testified that when he prepared photographic lineups, he typically

chose photographs of individuals who were in the same age group and had the same physical

attributes as the alleged perpetrator. He stated that although age was important, an

individual’s appearance was more important in determining whether the individual should

be placed in the lineup. Detective Sulfridge stated that when he prepared the photographic

lineup in this case, he looked for African-American men with similar hair and eye color to

the Defendant. He acknowledged that he did not include a search term for the category for

age in this case but asserted that he usually evaluated the photographs himself. He also stated

that he never included height in the search terms because the photographs were not fulllength pictures. Detective Sulfridge said that it would not surprise him that three of the

individuals in this lineup were in their forties and one of the individuals in the lineup was

eighteen. He asserted that some of the men in their forties did not look that old and that the

man who was approximately eighteen looked like he was in histwenties. Detective Sulfridge

acknowledged that only two men, including the Defendant, were within the age range given

by the victim.

The victim testified that on the night of March 17, 2009, he was working as a taxi

driver and picked up two men from the Wal-Mart parking lot at Nolensville Road and

Harding Place. The victim stated that one of the men, whom he later identified as the

Defendant, approached his cab to talk to him. The victim closely observed the Defendant

before he got into his cab because he was “concern[ed]” about his intentions. Both of the

men got into the back seat of the cab and asked to go downtown. The victim said the

Defendant sat in the back passenger’s side seat and the other man sat directly behind him in

the back driver’s side seat.

When the victim started driving in the direction of downtown, the men “pulled guns”

on him and demanded his money. The victim told the men that he did not have any money

because he had just come from class and had not collected any cab fares that night. The

victim said the men did not believe that he did not have any money, so the victim offered to

stop the cab so that they could search him, but they told him to continue driving. He stated

that he was able to get a good look at both of the men in the backseat of his cab. The victim

said he was “really scared” during the robbery and tried to comply with the men’s requests.

-3-
As he was driving, the victim saw a police car and began following it. He blew his

horn and flashed his lights in an attempt to get the officer’s attention. When his assailants

saw what he was doing, they tried to grab the steering wheel and began struggling with him.

The victim said that he tried to keep the car on the road during this struggle. The man sitting

in the back driver’s side seat fired his gun, shattering a backseat window, and then the

Defendant attempted to jump out of the cab through that broken window. The man sitting

directly behind him continued to struggle with him to gain control of the steering wheel and

then fired a second shot “that kind of hit [the victim] on [his] head.” At that point, the victim

jumped out of the cab.

The victim stated that he was transported to the hospital for his injuries. He later met

with Detective Sulfridge, who showed him a photographic lineup while he was still at the

hospital. The victim stated that Detective Sulfridge did not highlight or point to any of the

photographs in the lineup. The victim identified the individual in photograph six as the

Defendant, the man sitting in the back passenger’s side seat “right away.” He stated that both

men were in his cab for five to ten minutes and that he was able to closely look at them.

Trial. The victim, a native of Gambia, West Africa, testified that on March 17, 2009,

he was working as a taxi driver for Yellow Cab. He stated that he started working at 10:00

p.m., after his physics class, and drove straight to the Wal-Mart at Harding Place and

Nolensville Road in Nashville to wait for paying customers.

After he parked in the Wal-Mart lot, a man, whom he later identified at trial as the

Defendant, approached his cab and knocked on his window. The victim rolled down his

window, and the Defendant asked him if he was the driver of the cab he had called. The

victim said that he had not been called but could drive him wherever he wanted to go. The

Defendant asked the victim to stay there while he got his friend from inside Wal-Mart. The

victim stated he was in a well-lit area because he had parked his cab under one of the street

lights in the parking lot. Because there was plenty of light, he was able to closely look at the

Defendant when he knocked on his window and talked to him.

The Defendant returned to the victim’s cab approximately five minutes later with

another man. The victim opened the door to the backseat, and the men told him they wanted

to go downtown. He stated that the Defendant sat in the back passenger’s side seat and the

other man sat directly behind him in the back driver’s side seat.

The victim drove out of the parking lot and headed downtown. A couple of minutes

after pulling out onto Nolensville Road, the victim felt “something on [his] side[,]” and the

Defendant said something like, “Hey, man, this is a stick up.” When the victim told him that

he did not understand what a “stick up” was, the Defendant pointed his gun at the victim’s

-4-
face and said, “You see this?” Then the Defendant said, “This is a gun. Keep driving.”

When the Defendant asked for his wallet, the victim responded that he had just begun

working after his class and did not have any money. The victim slowed his cab, and the

Defendant told him to keep driving. The victim stated that the Defendant and the other man

both had guns.

The Defendant told the victim to turn down a street, but just before he got to that

street, the victim saw a police car and decided to follow it. The victim began blowing his

horn, speeding, and flashing his headlights at the police car with the hope of getting the

officer’s attention, but the officer did not appear to notice. When the victim’s assailants saw

what he was doing, the man in the back driver’s side seat started grabbing the steering wheel

in an attempt to get the car off the road. At the same time, the Defendant fired his gun at the

backseat passenger window, shattering it, and then attempted to jump out of this window.

The man in the back driver’s side seat continued to grab at the steering wheel, which caused

the vehicle to weave on the road. Because the car was unsteady, the Defendant was unable

to jump out the window and fell back in the car.

Then the Defendant, with the gun in his left hand, reached between the front driver’s

seat and the front passenger seat. The victim grabbed the Defendant’s hand, pulled the gun

away from him, and aimed the gun at the other man who was trying to grab the steering

wheel. The victim pulled the trigger, but the gun did not fire. Then the Defendant snatched

the gun out of the victim’s hand and fired a second shot, and the victim felt “a heavy blow

[to his] head” as the bullet grazed him.

After the Defendant’s second shot, the man sitting behind the victim continued to grab

at the steering wheel, causing the car to weave. The victim fell in the direction of the front

passenger seat but held onto the driver’s side door handle in order to stay in his seat, which

caused the driver’s door to open. As the cab turned, the victim was pushed into the driver’s

side door. When the victim realized that the man’s arms were between him and the steering

wheel, he decided to jump out of the cab.

The victim said that he was terrified during the incident because he thought he was

going to die. He also stated that he jumped out of the cab because he thought it was the only

way to escape. After he jumped out of the cab, it collided with a car in the Nissan

dealership’s parking lot at the intersection of Nolensville Road and Thompson Lane. The

victim rolled onto the road, and a woman in an SUV asked him if he needed help. She then

drove the victim to a nearby hospital.

During the incident, the victim received a large laceration to his head from the

Defendant’s bullet that required five staples. He stated that his head laceration resulted in

-5-
a scar. He also had a large cut on his lip that required stitches, which resulted in a scar. In

addition, he underwent surgery to fix his broken elbow, which resulted in a scar. The victim

displayed these three scars to the jury during trial. The victim stated that he also sustained

a severe bruise on his left hand as well as several bruises and scrapes on his body from the

incident. The victim stated that he informed hospital staff and the police that he had been

shot. He acknowledged that he was at the hospital for approximately two hours before he

was discharged.

The victim told the police that the Defendant and the other assailant were AfricanAmerican men between the ages of twenty-five and thirty-five. He also stated that the

Defendant was wearing blue jeans and a black or gray sweatshirt with blue on it. The victim

later viewed a photographic lineup containing six pictures and identified the individual in

photograph number six as the Defendant. He stated that the Defendant was the individual

who had originally approached his cab, had sat in the back passenger’s side seat, had stuck

the gun in his ribs, and had shot the bullet that grazed his head.

James Reese, a patrol officer with the Metropolitan Nashville Police Department,

testified that on March 17, 2009, he responded to a call at the intersection of Nolensville Pike

and Thompson Lane. Upon his arrival, Officer Reese saw a Yellow Cab minivan that had

collided with two other vehicles in the parking lot of the Nissan dealership. He examined

the cab and noticed that the entire front end of the vehicle was “smashed.” In addition, the

front windshield and the two front windows were damaged, the airbags had been deployed,

and the rear passenger window was shattered. He noted that other than the broken rear

passenger window, most of the damage to the cab was in the front of the vehicle. Officer

Reese said that the victim had already been taken to the hospital by the time he arrived on the

scene.

Officer Reese later went to the hospital to talk to the victim about the incident. He

noticed that the victim had a “severe laceration” to the crown of his head and “road rash”

from jumping out of the moving cab. The victim stated that his assailants were two AfricanAmerican males between the ages of twenty-five and thirty-five. Officer Reese

acknowledged that his police report did not mention that the victim had been shot, that shots

had been fired in the cab, or that the men had pulled a gun on the victim; however, he

asserted that he noted the victim’s severe head laceration in his report.

Officer Reese stated that approximately an hour after the incident involving the

victim, Detective Sulfridge was driving in the area near where the incident occurred and saw

a man, later identified as the Defendant, “hobbling” down the road. Officer Reese drove to

the area, which was two to three tenths of a mile from the Nissan dealership, and saw the

Defendant limping from an apparent leg injury along the side of the road. He said the

-6-
Defendant was African-American, approximately six feet tall with an average build, and had

a medium complexion. Officer Reese stated that he observed shattered glass in the

Defendant’s hair but did not mention this in his police report because he had already

completed his report by the time Detective Sulfridge found the Defendant near the Nissan

dealership. He stated that he did not do a supplemental police report because he allowed

Detective Sulfridge to handle the case from that point forward. He remembered that the

Defendant was wearing a black shirt when he saw him walking along the road, but he did not

remember if the Defendant was wearing blue jeans or pants at the time.

Jacqueline Carter testified thatsome time after 11:00 p.m. on March 17, 2009,she saw

a man jump from a cab and roll onto the road while she was at a fast-food drive-thru on

Nolensville Road. She said the cab turned right at the red light before hitting a car at the

Nissan dealership. After the collision, Carter saw two African-American men jump out of

the cab and run around the side of the dealership. She stated that one of these men appeared

to be at least five feet, eight inches tall and wore a black jacket and blue jeans. She said the

other man was wearing a dark-colored shirt. Carter said she got out of her car, called 9-1-1,

and walked across the street to the wrecked cab.

Charles Linville, a crime scene investigator for the Metropolitan Nashville Police

Department, testified that around 5:30 a.m. on March 18, 2009, he responded to the police

impound lot to process a Yellow Cab van. He observed that the front of the van was heavily

damaged and looked as if it had been wrecked. Investigator Linville was unable to obtain

any fingerprint evidence from the van because the inside and outside of the vehicle was wet.

He photographed the van and collected a black skull cap from inside.

Detective Scott Sulfridge testified that on March 17, 2009, he responded to a call

regarding a robbery at the intersection of Thompson Lane and Nolensville Road. Detective

Sulfridge said he first went to the hospital to talk with the victim. He immediately observed

that the victim “was in pretty bad shape” and was “in a lot of pain.” He stated that the victim

had received a head injury during the incident. The victim told him that his assailants were

two African-American men wearing dark clothes between the ages of twenty-five and thirtyfive. Detective Sulfridge did not remember whether the victim told him that shots had been

fired, but he acknowledged that he did not mention that shots had been fired or that the

victim had been shot in his police report. Instead, he recalled the victim telling him that he

had been “pistol-whipped” with a gun during the incident.

Detective Sulfridge stated that two or three hours after the incident, he drove down

Nolensville Road and turned onto Thompson Lane going east. Shortly thereafter, he noticed

a African-American man, later identified as the Defendant, limping along Thompson Lane

near Nolensville Road. He stated that it was obvious that the Defendant was in pain.

-7-
Detective Sulfridge stated that the Defendant was a half mile to a mile away from the Nissan

dealership where the collision had occurred.

Detective Sulfridge stated that he immediately became suspiciousthat the Defendant’s

injuries were from the incident involving the victim and called a patrol unit to meet him at

that location. When the other officer arrived, they approached the Defendant. Detective

Sulfridge immediately noticed that the Defendant had glass fragments in his hair, cuts on his

head, and an apparent injury to his leg. He asked the Defendant how he had been injured,

and the Defendant replied that he had fallen but never explained why he had glass in his hair.

Detective Sulfridge stated that the Defendant did not have a gun on his person at the time of

his arrest and that no guns were found in connection with this case. He acknowledged that

he did not mention the glass in the Defendant’s hair in his police report. However, in the

affidavit supporting the arrest warrant, Detective Sulfridge wrote that the Defendant had a

cut around his eye, an apparent broken leg, and small particles of glass in his hair. He stated

that the Defendant was transported to the hospital for his injuries and was arrested later that

night.

Detective Sulfridge prepared a photographic lineup that included a photograph of the

Defendant. He stated that when he prepared the lineup, he looked for individuals who “fit

the same general description” given by the victim. Detective Sulfridge said he wanted the

people in the lineup to be similar to one another but not identical. He generated the lineup

by entering certain identifiers and then evaluated the photographs to find individuals with

similar characteristics to those of the Defendant. Although he searched for individuals

between the ages of twenty-five and thirty-five, he focused on the individuals’ appearance

rather than their age in choosing them for the lineup. He stated that he was surprised to learn

that the individual in photograph one was forty-five years old but asserted that the individual

could be thirty-five years old based on his appearance. He acknowledged that the individual

in photograph number two was eighteen. He agreed that the individual in photograph three

was forty-three years old and the individual in photograph five was forty-eight years old.

Detective Sulfridge acknowledged that the individual in photograph number four was heavier

than the other individuals in the lineup and that he might have removed that individual from

the lineup if he were to do it over again. However, he stated that the remaining five

individuals in the lineup were “similar enough.” He stated that the fact that photographs one

and two were father and son did not affect the lineup because they did not look like one

another. Detective Sulfridge acknowledged that he did not collect the clothing that the

Defendant was wearing as evidence. He also admitted that neither he nor the other officers

looked for shell casings at the scene because no one knew that the victim had been shot.

Detective Sulfridge went to the hospital and presented the lineup to the victim. Using

a standard form provided by the police department, Detective Sulfridge informed the victim

-8-
that his perpetrators might or might not be in the lineup. He also told the victim that the

individuals’ hairstyles could have changed and that he should focus on the facial features of

each of the individuals in the lineup. He stressed that the victim should only choose a

photograph if he recognized the individual from the incident. Detective Sulfridge said that

in a matter of seconds, the victim identified photograph number six, the Defendant, as one

of the men who tried to rob him. Detective Sulfridge stated that the victim was “positive”

about his identification of the Defendant.

ANALYSIS

I. Motion to Suppress. The Defendant argues that the trial court erred in denying his

motion to suppress the victim’s identification of him in the photographic lineup. He asserts

that the identification procedures used by the police deprived him of his right to a fair trial

and his right to due process of law. The Defendant claims that although the victim asserted

that his assailants were between the ages of twenty-five and thirty-five, only two of the six

men in the photographic lineup, including the Defendant, were within this age range. The

State responds by arguing that the Defendant failed to establish that the pre-trial photographic

lineup was unnecessarily suggestive. We agree with the State.

On November 14, 2011, the Defendant filed a motion to suppress, wherein he claimed

that the photographic lineup was so unduly suggestive that it gave rise to an irreparable risk

of misidentification and that the victim’s identification was unreliable. Specifically, he

claimed that the photographic lineup was unnecessarily suggestive because the men in the

lineup were not similar in age or appearance to him.

At the conclusion of the suppression hearing, the trial court noted that while some of

the individuals in the lineup appeared to be older than the Defendant and one of the

individuals appeared to be younger than the Defendant, there was nothing obviously

suggestive about the lineup that would lead to irreparable misidentification by the victim.

The court noted that the victim was able to look at the Defendant before he got into his cab

and was able to look at him while inside the cab, which increased the reliability of his

identification.

In its order denying the motion to suppress, the trial court found that there was no

evidence that Detective Sulfridge prompted or coached the victim to pick the Defendant out

of the lineup. In evaluating whether the Defendant stood out from the other photographs, the

court found that the other individuals in the lineup were “not so grossly dissimilar as to

immediately project [the Defendant’s] picture into the mind of the observer.” The court

found that Detective Sulfridge had not included an age range based on the victim’s

description of his assailants in lineup “but simply included individuals that appeared

-9-
generally similar to [the Defendant].” The court noted some discrepancies between the

individuals in the lineup but held that these discrepancies did not cause the lineup to be

unduly suggestive:

The Court finds that suspects numbered 1, 3, and 5, do appear older than [the

Defendant], who is suspect number 6. The Court finds, however, that this

appearance of an age discrepancy does not rise to the level of suggestiveness

or a gross dissimilarity. The Court further finds, in analyzing the other

physical traits, that all of the individuals, including [the Defendant], were

African-American males, with similar skin tones, fairly similar weight,similar

facial hair, and all had relatively short hair. The Court, therefore, finds, after

analyzing the totality of the physical traits of the individuals, that [the

Defendant’s] picture does not contrast significantly with [the] other

individuals’ picture[s] as to rise to a level of suggestiveness.

An appellate court may consider the proof presented at the suppression hearing and

the trial when determining whether the trial court properly denied a motion to suppress. State

v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998). It is well-established that “a trial court’s

findings of fact in a suppression hearing will be upheld unless the evidence preponderates

otherwise.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The Tennessee Supreme Court

explained this standard in Odom:

Questions of credibility of the witnesses, the weight and value of the

evidence, and resolution of conflicts in the evidence are matters entrusted to

the trial judge as the trier of fact. The party prevailing in the trial court is

entitled to the strongest legitimate view of the evidence adduced at the

suppression hearing as well as all reasonable and legitimate inferences that

may be drawn from that evidence. So long as the greater weight of the

evidence supports the trial court’s findings, those findings shall be upheld.

Id. However, this court’s review of a trial court’s application of the law to the facts is de

novo with no presumption of correctness. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001);

(citing State v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999); State v. Yeargan, 958 S.W.2d

626, 629 (Tenn. 1997)). The defendant bears the burden of showing that the evidence

preponderates against the trial court’s findings. Odom, 928 S.W.2d at 23; Yeargan, 958

S.W.2d at 629.

The Tennessee Supreme Court has held that photographic lineups are admissible

unless they are unduly suggestive:

-10-
Photographs contained in a photographic array do not have to mirror the

accused. Instead, the law simply requires that the police refrain from

“suggestive identification procedures.” Neil v. Biggers, 409 U.S. 188, 93 S.

Ct. 375, 34 L. Ed. 2d 401 (1972). Thus, a photographic identification is

admissible unless, based upon the totality of the circumstances, “the

confrontation conducted . . . was so unnecessarily suggestive and conducive

to irreparable mistaken identification that [the accused] was denied due

process of law.” Stovall v. Denno, 388 U.S. 293, 301-302, 87 S. Ct. 1967,

1972, 18 L. Ed. 2d 1199, 1206 (1967).

State v. Hall, 976 S.W.2d 121, 153 (Tenn. 1998). The risk of an eyewitness making an

incorrect identification is greater if the police show the eyewitness a lineup where a single

photograph “is in some way emphasized.” Simmons v. U.S., 390 U.S. 377, 383 (1968). In

addition, the risk of misidentification increases “if the police indicate to the witness that they

have other evidence that one of the persons pictured committed the crime.” Id. This court

has noted that “a lineup would be considered unduly suggestive only when the other

participants were grossly dissimilar.” State v. Edwards, 868 S.W.2d 682, 694 (Tenn. Crim.

App. 1993) (citing U.S. v. Wade, 388 U.S. 218, 233 (1967); Shye v. State, 506 S.W.2d 169,

173 (Tenn. Crim. App. 1973); Young v. State, 566 S.W.2d 895, 898 (Tenn. Crim. App.

1978)).

In Neil v. Biggers, the Court established a two-part analysis that the trial court must

apply in determining the validity of a pre-trial identification. 409 U.S. 188, 198-99 (1972).

First, the trial court must determine whether the identification procedure was unduly

suggestive. Id. at 198. Next, if the trial court determines that the identification was unduly

suggestive, then it must consider whether, under the totality of the circumstances, the

identification procedure was nonetheless reliable. Id. at 199. This court must consider the

following factors in determining the reliability of an identification:

1. the opportunity of the witness to view the criminal at the time of the

crime.

2. the witness’s degree of attention at the time of the crime.

3. the accuracy of the witness’s prior description of the criminal.

4. the level of certainty demonstrated by the witness at the confrontation.

5. the length of time between the crime and the confrontation.

Hall, 976 S.W.2d at 153 (quoting Biggers, 409 U.S. at 199); see State v. Philpott, 882 S.W.2d

394, 400 (Tenn. Crim. App. 1994). In Tennessee, it is unnecessary to apply the totality of

the circumstances test in Biggers to assess the reliability of the identification if the trial court

determines that the identification procedure was not unduly suggestive. See State v. Butler,

-11-
795 S.W.2d 680, 686 (Tenn. Crim. App. 1990).

After reviewing the record, we conclude that the evidence fully supports the trial

court’s denial of the motion to suppress based on its finding that there was nothing unduly

suggestive about the photographic lineup or the identification procedure. The victim testified

that the perpetrators in this case were two African-American males between twenty-five and

thirty-five years of age and that one of the perpetrators was between five feet, ten inches and

six feet tall and the other perpetrator was shorter. Once Detective Sulfridge developed the

Defendant as a suspect in this case, he included photographs of men in the lineup that had

similar physical features to those of the Defendant. Detective Sulfridge testified that in

choosing individuals for the lineup, age was important, but the individual’s appearance was

the most important factor. The photographic lineup contained color photographs of six

African-American males, with all of these men possessing fairly similar builds. In addition,

all six men had some facial hair, a fairly short hairstyle, and similar skin tones. Five out of

the six men, including the Defendant, were wearing a T-shirt with a round neck. Each

photograph was uniform in size, and the background color of all of the photographs was

nearly identical, if not identical. All of the photographs depicted the individuals from the

neck up. After reviewing the photographic lineup, we conclude that only two of the men in

the lineup appeared slightly older than the Defendant even though three of the men were in

fact older than the Defendant. We agree that one of the men in the lineup appeared slightly

younger than the Defendant. However, we agree with the State that the discrepancy in age

was not “an unusual variance, especially in light of the victim’s description giving a 10-year

range of ages for the perpetrators.” Therefore, we conclude that there was nothing about the

Defendant’s photograph that was “grossly dissimilar” to the photographs of the other

individuals included in the photographic lineup.

We also conclude that there was nothing unnecessarily suggestive regarding the

manner in which Detective Sulfridge presented the photographic lineup to the victim.

Detective Sulfridge showed the photographic lineup to the victim only a few hours after the

offense. He explained that the assailants may or may not be in the lineup and that he should

only choose an individual in the lineup if he was certain he was one of his assailants.

Detective Sulfridge cautioned the victim that the individuals’ hairstyles could have changed

and that the photographs included in the lineup could be old, and he encouraged the victim

to focus on the facial features of each individual’s photograph. The evidence at trial was

undisputed that the victim identified the Defendant in the photographic lineup “very quickly”

and that the victim was “positive” that the Defendant was one of his assailants. Accordingly,

we conclude that the record supports the trial court’s denial of the motion to suppress the

victim’s identification of the Defendant because the photographic lineup was not unduly

suggestive. Because we have determined that the identification procedure was not unduly

suggestive, we need not assess the reliability of the victim’s identification.

-12-
II. Sufficiency of the Evidence. The Defendant argues that the evidence is

insufficient to support his convictions for attempted especially aggravated robbery and

attempted voluntary manslaughter. Specifically, he claims that the State failed to prove his

identity as one of the perpetrators of the offense and that the State failed to establish that the

victim suffered serious bodily injury as required for his attempted especially aggravated

robbery conviction. The State arguesthat there wassufficient evidence from which a rational

jury could find that the Defendant and an accomplice entered the victim’s cab and attempted

to rob the victim and that the Defendant fired a gun at the victim before the victim jumped

out of the car. We agree with the State on this issue as well.

The State, on appeal, is entitled to the strongest legitimate view of the evidence and

all reasonable inferences which may be drawn from that evidence. State v. Bland, 958

S.W.2d 651, 659 (Tenn. 1997). When a defendant challenges the sufficiency of the evidence,

the standard of review applied by this court is “whether, after reviewing the evidence in the

light most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979). Similarly, Rule 13(e) of the Tennessee Rules of

Appellate Procedure states, “Findings of guilt in criminal actions whether by the trial court

or jury shall be set aside if the evidence is insufficient to support a finding by the trier of fact

of guilt beyond a reasonable doubt.”

Guilt may be found beyond a reasonable doubt in a case where there is direct

evidence, circumstantial evidence, or a combination of the two. State v. Matthews, 805

S.W.2d 776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331

(Tenn. 1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The trier of fact must

evaluate the credibility of the witnesses, determine the weight given to witnesses’ testimony,

and reconcile all conflicts in the evidence. Odom, 928 S.W.2d at 23. When reviewing issues

regarding the sufficiency of the evidence, this court shall not “reweigh or reevaluate the

evidence.” Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997). This court has often

stated that “[a] guilty verdict by the jury, approved by the trial court, accredits the testimony

of the witnesses for the State and resolves all conflicts in favor of the prosecution’s theory.”

Bland, 958 S.W.2d at 659. A guilty verdict also “removes the presumption of innocence and

replaces it with a presumption of guilt, and the defendant has the burden of illustrating why

the evidence is insufficient to support the jury’s verdict.” Id. (citing State v. Tuggle, 639

S.W.2d 913, 914 (Tenn. 1982)).

“In the absence of direct evidence, a criminal offense may be established exclusively

by circumstantial evidence.” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (citing

Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973); Marable v. State, 313 S.W.2d 451, 456-

58 (Tenn. 1958)). However, “[t]he jury decides the weight to be given to circumstantial

-13-
evidence, and ‘[t]he inferences to be drawn from such evidence, and the extent to which the

circumstances are consistent with guilt and inconsistent with innocence, are questions

primarily for the jury.’” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting Marable,

313 S.W.2d at 457). This court may not substitute its inferences for those drawn by the trier

of fact in cases involving circumstantial evidence. State v. Sisk, 343 S.W.3d 60, 65 (Tenn.

2011) (citing State v. Lewter, 313 S.W.3d 745, 748 (Tenn. 2010)). We note that the standard

of review “‘is the same whether the conviction is based upon direct or circumstantial

evidence.’” State v. Hanson, 279 S.W.3d 265, 275 (quoting State v. Sutton, 166 S.W.3d 686,

689 (Tenn. 2005)); State v. Carruthers, 35 S.W.3d 516, 557 (Tenn. 2000). The court in

Dorantes specifically adopted the standard for circumstantial evidence established by the

United States Supreme Court in Holland:

“Circumstantial evidence . . . is intrinsically no different from

testimonial evidence. Admittedly, circumstantial evidence may in some cases

point to a wholly incorrect result. Yet this is equally true of testimonial

evidence. In both instances, a jury is asked to weigh the chances that the

evidence correctly points to guilt against the possibility of inaccuracy or

ambiguous inference. In both, the jury must use its experience with people and

events in weighing the probabilities. If the jury is convinced beyond a

reasonable doubt, we can require no more.”

Dorantes, 331 S.W.3d at 380 (quoting Holland v. United States, 348 U.S. 121, 140 (1954)).

The Defendant was convicted of attempted especially aggravated robbery and

attempted voluntary manslaughter. Especially aggravated robbery is a robbery

“[a]ccomplished with a deadly weapon” and “[w]here the victim suffers serious bodily

injury.” T.C.A. § 39-13-403(a). Robbery is defined as “the intentional or knowing theft of

property from the person of another by violence or putting the person in fear.” Id. §

39-13-401(a). As relevant in this case, serious bodily injury means bodily injury that

involves a substantial risk of death, protracted unconsciousness, extreme physical pain,

protracted or obvious disfigurement, or protracted loss or substantial impairment of a

function of a bodily member, organ or mental faculty. Id. § 39-11-106(a)(34). Voluntary

manslaughter is defined as “the intentional or knowing killing of another in a state of passion

produced by adequate provocation sufficient to lead a reasonable person to act in an irrational

manner.” Id. § 39-13-211(a).

The offense of criminal attempt is defined as follows:

A person commits criminal attempt who, acting with the kind of culpability

otherwise required for the offense:

-14-
(1) Intentionally engages in action or causes a result that would constitute an

offense, if the circumstances surrounding the conduct were as the person

believes them to be;

(2) Acts with intent to cause a result that is an element of the offense, and

believes the conduct will cause the result without further conduct on the

person’s part; or

(3) Acts with intent to complete a course of action or cause a result that would

constitute the offense, under the circumstances surrounding the conduct as the

person believes them to be, and the conduct constitutes a substantial step

toward the commission of the offense.

Id. § 39-12-101(a).

Identity. The Defendant argues that the evidence is insufficient to support his

convictions because the State failed to prove his identity as one of the assailants. He

challenges the admissibility of the photographic lineup and of the victim’s in-court

identification of him and argues that the remaining proof does not establish his identity as

one of the perpetrators in this case. Specifically, the Defendant asserts that although the

victim testified that he had been shot during the incident, no witnesses, police reports, or

medical records showed that the victim had been shot. He further asserts that no blood was

found in the cab, no DNA evidence was obtained, and the gun allegedly used during the

incident was never recovered. The Defendant also notes that although Detective Sulfridge

testified that he saw glass fragments in his hair when he encountered him after the incident,

he failed to mention this fact in his police report and failed to take any photographs of him

that would support this claim.

“The identity of the perpetrator is an essential element of any crime.” State v. Robert

Wayne Pryor, No. M2003-02981-CCA-R3-CD, 2005 WL 901140, at *3 (Tenn. Crim. App.,

at Nashville, Apr. 19, 2005) (citing State v. Thompson, 519 S.W.2d 789, 793 (Tenn. 1975)).

The State has the burden of proving “the identity of the defendant as the perpetrator beyond

a reasonable doubt.” Id. (citing State v. Sneed, 908 S.W.2d 408, 410 (Tenn. Crim. App.

1995)). The identity of the defendant as a perpetrator may be established by direct evidence,

circumstantial evidence, or a combination of the two. Thompson, 519 S.W.2d at 793. “The

credible testimony of one identification witness is sufficient to support a conviction if the

witness viewed the accused under such circumstances as would permit a positive

identification to be made.” State v. Radley, 29 S.W.3d 532, 537 (Tenn. Crim. App. 1999)

(citing State v. Strickland, 885 S.W.2d 85, 87-88 (Tenn. Crim. App. 1993)). The

-15-
identification of the defendant as the perpetrator is a question of fact for the jury after

considering all the relevant proof. Strickland, 885 S.W.2d at 87 (citing State v. Crawford,

635 S.W.2d 704, 705 (Tenn. Crim. App. 1982)). In addition, as relevant here, “the testimony

of a victim, by itself, is sufficient to support a conviction.” Id. (citing State v. Williams, 623

S.W.2d 118, 120 (Tenn. Crim. App. 1981)).

Just a few hours after the offense in this case occurred, the victim identified the

Defendant as one of the perpetrators in the pre-trial photographic lineup. The victim made

this identification within a matter of seconds and was certain that the Defendant was one of

his assailants. The victim also identified the Defendant at trial. In addition, within an hour

or two of the offense, the Defendant was found limping down the street less than a mile from

where the incident involving the victim occurred. The Defendant had glass in his hair, which

was consistent with a recent a car collision, and he matched the description that the victim

had given to police. Although the Defendant told police that his injuries were from a fall,

it was the jury’s prerogative to reject this explanation. Moreover, the evidence also showed

that the victim was able to closely look at the Defendant before he got into his cab, that the

victim received a severe laceration on his head when the Defendant’s bullet grazed him, that

the victim informed hospital staff and the police that he had been shot, and that the rear

passenger window of the cab had been shattered, which was consistent with the victim’s

testimony that a gun had been fired inside the cab. Officer Reese and Detective Sulfridge

testified that the Defendant had shattered glass in his hair, and Detective Sulfridge noted the

glass in the Defendant’s hair in his affidavit for the arrest warrant. Viewing the evidence in

a light most favorable to the State, we conclude that a rational trier of fact could have found

the Defendant to be the perpetrator of the offenses in this case beyond a reasonable doubt.

Serious Bodily Injury. The Defendant also argues the evidence is insufficient to

sustain his conviction for attempted especially aggravated robbery because the State failed

to establish that the victim suffered serious bodily injury. Instead, he asserts that the

evidence only supports a finding that the victim sustained “bodily injury” under Tennessee

Code Annotated section 39-11-106(a)(2) and, therefore, is guilty of attempted aggravated

robbery pursuant to Code sections 39-12-101(a)(3) and 39-13-402.

The Defendant, citing State v. Farmer, 380 S.W.3d 96 (Tenn. 2012), claims that the

State failed to present sufficient evidence that the victim sustained serious bodily injury. He

asserts that the victim’s injuries did not involve a substantial risk of death, protracted loss of

consciousness, extreme physical pain, protracted or obvious disfigurement, or protracted loss

or substantial impairment of a function of a bodily member, organ, or mental faculty. See

T.C.A. § 39-11-106(a)(34). In Farmer, the Tennessee Supreme Court held that the State

failed to present sufficient evidence showing that the victim, who was shot in the leg,

suffered serious bodily injury. Farmer, 380 S.W.3d at 103. No evidence was presented

-16-
showing that the victim sustained permanent scars from being shot or that he suffered

protracted impairment of his leg. Id. at 102. Interestingly, the victim in Farmer testified that

he did not realize he had been shot until he noticed a hole in his pants. Id. at 101. In contrast

to Farmer, the victim in this case testified that he had scars from the lacerations to his head

and lip from this offense. In addition, he stated that he had a scar from the surgery required

to fix his fractured elbow, which he sustained when he jumped out of the car to escape his

assailants.

We agree with the State that there was sufficient evidence from which a rational jury

could have found that the victim suffered serious bodily injury based on his protracted or

obvious disfigurement based on his scars. Protracted, as relevant here, means “delayed or

prolonged in time.” State v. Derek Denton, No. 02C01-9409-CR-00186, 1996 WL 432338,

at *5 (Tenn. Crim. App. Aug. 2, 1996) (citing Merriam Webster’s Collegiate Dictionary 939

(10th ed.1994); American Heritage Dictionary 568 (1975)) (determining the meaning of

protracted unconsciousness as a basis for serious bodily injury). The record shows that the

incident causing the victim’s injuries occurred on March 17, 2009. At the trial on June 18,

2012, more than three years after the incident, the victim displayed scars on his head, lip, and

elbow to the jury. This court has consistently held that a scar is sufficient to support the

element of serious bodily injury. See State v. James Richardson Reece, No. M2011-01556-

CCA-R3-CD, 2013 WL 1089097, at *14 (Tenn. Crim. App. Mar. 14, 2013) (citing cases in

which this court held that a scar constitutes protracted or obvious disfigurement for the

purpose of establishing serious bodily injury), perm. app. denied (Tenn. June 17, 2013);

State v. Deonte Matthews, No. M2010-00647-CCA-R3-CD, 2012 WL 5378046, at *4 (Tenn.

Crim. App. Oct.31, 2012) (same); State v. Richard Dale Capps, No. M2010-02143-CCA-R3-

CD, 2012 WL 3800848, at *7 (Tenn. Crim. App. Sept.4, 2012) (holding that the victim’s

scar from a two-inch laceration on his ear was sufficient to establish serious bodily injury),

perm. app. denied (Tenn. Feb. 13, 2013); State v. Anthony D. Forster, No. M2002-0008-

CCA-R3-CD, 2011 WL 1431980, at *10 (Tenn. Crim. App. April 12, 2011) (concluding that

the victim’s scar, which began in the middle of the bridge of her nose and ended at her lip,

was sufficient to establish the element of serious bodily injury). Therefore, we conclude that

there is sufficient evidence to support serious bodily injury based on the victim’s protracted

or obvious disfigurement.

We also agree with the State that a rational jury could have found that the victim

suffered serious bodily injury based on protracted loss or substantial impairment of the

function of a bodily member. The victim’s medical records, which were entered into

evidence at trial, show that he sustained a fractured elbow from this incident. The victim was

placed in a splint and was referred to an orthopedist for additional treatment. The victim

testified that he later underwent surgery to correct his broken elbow. The victim’s discharge

instructions noted that elbow fractures take between four and twelve weeks to heal and that

-17-
they are first treated with a splint, which is followed by a long cast. See State v. John

Johnson, No. W2002-01333-CCA-R3-CD, 2003 WL 22794530, at *2 (Tenn. Crim. App.

Nov. 18, 2003) (concluding that the victim suffered serious bodily injury from substantial

impairment of a function of a bodily member when the victim used crutches and a cane after

his injury, had a severe limp for two months after the injury, and had weakness in his leg two

years after the offense). Both the victim’s testimony and his medical records lead to the

inference that his fractured elbow substantially impaired the use of his right arm during the

weeks it was immobilized. Accordingly, we conclude that there was sufficient evidence

supporting serious bodily injury based on the victim’s protracted loss or substantial

impairment of the function of his right arm.

Because we have already concluded that there was sufficient evidence to support the

serious bodily injury element based on protracted or obvious disfigurement and protracted

loss or substantial impairment of a function of a bodily member, we need not determine

whether a rational jury could have found that the victim suffered serious bodily injury based

on extreme physical pain, a closer question in this case. Viewing the evidence in a light most

favorable to the State, we conclude that a rational trier of fact could have found the

Defendant guilty of attempted especially aggravated robbery and attempted voluntary

manslaughter beyond a reasonable doubt.

CONCLUSION

The trial court’s judgments are affirmed.

___________________________________

CAMILLE R. McMULLEN, JUDGE

-18-