### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs A pr il 19, 200 5
STA TE OF TEN NES SEE v. CA RLO S WEEK S
Appeal f romthe Cr im inal Cou rt for Shelby Coun ty No. 03-03068 Car olyn Wad e Blackett , Judge

No. W2004-02235-C CA-R 3-CD - F iled Jun e 23, 2005

The de fenda nt, Carlos Weeks, was indicted in Shelby Countyfor f

our counts of a g g ravated robbery
. Two of the four counts wer e alternative charg es. The defe ndant was convicted of a ll four counts and the tria l court merg ed the a lternative c ounts into two convictions. The tria l court imposed
a c on c ur re nt, Ra ng e I

se nte nc e of

te n y e ars fo r e a c h of the tw o o ff e ns e s. I n th is a

pp e a l a s o f rig ht, the def endant a s s erts that there is a material varia nce be tween the indictment and the evide nce pr e se nte d a t tr ia l a ndthat th e e vid e nc e is i ns uffici ent t o s up po rt e ith e r c on vic tio n. Th e jud g me nts of the trial c ourt are aff

irmed. Tenn. R. App . P . 3; Judgme nts of the Trial Court Affi rm ed

G AR Y R. W ADE , P.J ., delivere d the opinion of the court, in which J OS EP H M. T I PTON and A L AN E. G L EN N , J J . joined.

Robert Wil son J ones, District Public De fende r (of counsel); a nd Tony

N. B rayton (on appe al) a nd R. T re nt H a ll ( a t tr ia l) , A ssi sta nt P ub lic De fe nd e rs , f or the app e lla nt, Carl os Wee ks

. Paul G. Summers, Attorney Gene ral & R eporte r; J ohn H. B ledsoe, Assistant Attorney Gene ral; and Michae l Davis, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

OP IN ION

On the eve ning of

Aug ust 21, 2002, Otha B roome, the ow ner of L ee’ s Groce ry

located at 583 South P arkw ay

East in Memphis, was on duty with Ang ela J ones, his f

iance e and the cashie r for

the g roce ry . At approximately 9:00 p.m., the defe ndant enter ed the g roce ry , asked what time the store clos e d , a n d s h o p p e d f

o r s o ap
. H e le f

t s h o r tl y th e r e a f

te r
. Se v e r a l mi n u te s late r , tw o armed men
wea ring masks enter ed the g roce ry and dema nded money . One of the g unmen sear ched B roome a nd took his wallet and the ni ne mi llimeter g un that was in his possession. The other g unman held a gun
on Ms. Jone s and ha d he r empty the c a sh re g ist e r. Th e re we re tw o cu sto me rs in the sto re a t th e tim e o f t h e r o b b e r y.-2-

At trial, Br oome, who had know n the def endant for approximately seven y ear s, testified that the def endant was a reg ular customer at his store

. He stated that when the g unmen enter ed his store, he immediately

rec og nized the defe ndant as the shorter of the two, even thoug h the def endant wa s wea ring a diffe rent shirt than whe n he had been in the store a few minutes earlier . He e x plained that while the taller

g unman sea

rche d him, he was staring at the defendant, who was no more than thre e to four fe et away
. Br oome testified that af

ter the g unmen left his store, he took a nine millimeter g un from be ne a th the c a sh re g ist e r, fo llo we d th e m ou tsi de , a ndsa w b oth me n w a lki ng aro un d th e sid e of his store with their ha ts and masks remove d. Br oome maintained that he was able to c lear ly see both of their fa ces at this point, as they wer e standing beneath a brig ht light af fix ed to the side of the store. He state d that he fire d sever al shots in their direction and tha t they fled the sc ene.
Acc ording to Broome , the police arrived at the store shortly afte r he f ired his wea

pon, and he identified the defe ndant as one of the g unmen, providing his name and f ormer pla ce of

work. He stated that he pr ovided t he police w ith a description of the g un used in the robbe ry and identified the
wea pon at trial. He also confir med that he later p o s itively identified the de fenda nt as one of the g unmen in a photo sprea d prese nted to him by the police.

Ms. J ones, who was a state wit ness, t estified that when the g unmen enter ed the store , there
was one customer a t the reg ister and one on the pay phone. She ac kn owledg ed that both g unmen looked fa miliar to her, but she did n o t re al i z e unti l after they left that one of

them “looked like a person who ha d come into the store prior to the robbery .” She claimed that she re cog nized the shorter of the two g unmen, who stood by the door a nd held a gun on the custom ers and Br oome. M s. J ones testified that af

ter the g unmen left the store with the m oney and the items t aken f rom Br oome, she ha nd e d a se c on d g un to B ro ome fr om b e hin d th e c ou nte r a nd the n tri e d to ca ll 9 11 bu t w a s u na ble to do so because the c ustomer at the pa y phone had le ft the phone of f the hook. She e x plained that when she was fina lly

able to ca ll, she learne d that the police were alre ady on their wa y to the store in r e sp on se to the g un sh ots

. Ms. J ones identified the defe ndant from a videotape of

the robbe ry

as a f reque nt customer and as the man who had c ome into the store just prior to the crime. Whil e ac knowledg ing tha t she
c ou ld n ot b e po sit ive that th e de fe nd a nt w a s o ne of theg un me n be c a us e of the ma sk a ndha t, s he did state that she thoug ht he was one of the g unmen base d on heig ht and skin color. Ms. J ones testified that she wa s no m o re t h an ten to fifteen fe et from the individual she be lieved to be the de fenda nt during the robbe ry
. J ulius S mith, who worked a t an automotive store ne ar L ee’ s g roce ry on t h e nig ht of the robbery , testified that he sa w two men standing outside the groc ery and that one of them went inside. He r emember ed that whe n the man ca me bac k out of the store, the man w aiting outside of the store handed him a ja cket, a

mask, and other items and then both went ins ide. Acc ording to Smi th, who was some f

ifty y ards a way , he could see t he reflec tion of gun m etal in the hands of eac h of the two men and c ould see that e ach w ore a mask.-3-

Maurice J ones, one of the custom ers of the groc ery at t he ti me of the robbery , testified that as he w as g etting r eady

to leave the store, a ma n place d a g un to his head and or dered him back ins ide

. Ac c or din g to Jone s, the g un me n de ma nd e d his mon e y , a ndhe c omp lie d. He re c a lle d th a t bo th men had g uns and that one w as much taller than the other, but he was unable to ide ntify either of the g unmen.
Offic er J oseph S mith of t he Memphis Police Depa rtment, who wa s two blocks awa y from the g ro c e ry

wh e n h e he ardg un shot s, test if ie d th a t he wa lke d to the ne xt blo c k in a n a tte mpt to identify the source of the shots. He r eca lled that as he did so, his partne r re ceive d notification of a 911 hang -up call from the g roce ry
. Offic er Sm ith, who esti mated that it was less than a minute from the time he hea

rd t he g unshots to the tim e he a rrived at the store, testified that he lear ned about the robbery from Br oome and beg an an investig ation while his partner initiated the report. Accor ding to Office r Smith, he found at least one spent shell casing , one un s p en t round, and a wallet, whic h
wa s later de te rm ine d to be that r ob be d f ro m B ro ome . O ff

ic e r S mith a lso re c a lle d th a t B ro ome identified a suspe ct but did not state his name.

Offic er Wy ley

Tay lor, J r., who was as s i gn ed to investig ate, testified tha t he met Charlena Davis, the d ef

endant’ s sister, who conse nted to a sea rch of her a partment on the da y

afte r the robbery . I n a kitchen cabine t, O ffice r Tay lor found a .380 L awson automatic pistol l ater identified b y B r o o m e a s t h a tu s e d i n t h e r o b b e r y.
Th e de fe nd a nt d id n ot p re se nt a ny wi tne sse s a t tria l.

Th e de fe nd a nt w a s c ha

rg e d w ith fo ur

c ou nts of

a g g ra vated rob bery . T he fi rs t tw o c ou nts alleg ed that Ms. J ones wa s the victim, a nd the sec ond two alleg ed that B roome wa s the victim. Each set of counts contende d in the alternative that the defe ndant committed a g g ravated robbery either by means of a

deadly wea pon or by putting the victim in fea r. After the jury

convicted the defe ndant of all four c ounts, the trial court mer g ed counts one and two and c ounts three a nd four.

On app e a l, the de fe nd a nt a rg ue s th a t th e re is a

fata l va ri a nc e be tw e e n c ou nts on e a ndtw o in the indictment and the pr oof introduced by the state a t trial. The def endant a rg ues that the money take n f ro m th e c a sh re g ist e r b e lon g e d to the ow ne r o f the sto re , Bro om e, andthat “ no pr op e rt y belong ing to [Ms. J ones] was taken during the course of this robbery .” It is his contention, therefor e, that the proof doe s not conform to the indictment.

Provisions of both the fede ral and Te nnessee constitutions guar antee the criminallyacc used k n o w l e d g e o f t h e “ n a t u r e a n d c a u s e o f t h e a c c u s a t i o n
. ” U

. S

. C o n s t

. a m e n d

. V I; T e n n
. C o n s t

. ar t

. I, § 9 . I n o rd e r t o c omp ly

wi th the se c on sti tut ion a l g uid e li nes , an ind ic tme nt o r p re se ntm e nt m us t provide notice of the off ense c harg ed, ade quate g rounds upon which a proper judgme nt may

be enter ed, and suitable protec tion ag ainst double jeopar dy . Tenn. Code Ann. § 40- 13-202; State v. By rd, 820 S.W.2d 739 (Tenn. 1991); State v. Pear ce, 7 T enn. 65, 67 (1823). A var iance betwee n an ind ic tme nt a ndthe e vid e nc e pr e se nte d a t tr ia l is no t fata l un le ss it is bo th m a te ri a l a ndpr e jud ic ia l, State v. Moss, 662 S.W .2d 590 (Tenn. 1984) , t h u s af fe ct i ng the substantial rig hts of the ac cused,-4-

State v. May es, 854 S.W.2d 638, 639-40 (Tenn. 1993) ( citing B erg er v. United States, 295 U.S. 78, 82 (1935)) . When the indictment and the proof substantially corr espond, t he defenda nt is not mi sled or surprise d at t ri al , an d there is protection ag ainst a sec ond prosec ution for the same offe nse, the varia nce is not consider ed material. Moss, 662 S.W .2d at 592. Ag g ravated robbe ry is robbery “[a]ccomplished with a deadly wea pon or by display of any article used or f

ashioned to lea d the victim to reasona bly believe it to be a

deadly we ap o n ; or . . . [w] here the victim suffer s serious bodi ly injury .” Te nn. Code Ann. § 39-13- 402(a) (1) - (2). Robbery is defined a s “the intentional or knowing theft of pr operty from the person of a nother by violence or putting the pe rson in fea

r.” Te nn. Code Ann. § 39-13- 401(a)

. He re the de fe nd a nt arg ue s that be c a us e the mon e y in the c a sh re g ist e r d id n ot b e lon g to M s. J ones, there was no “taking ” from her. A robbery , howeve r, may be ac tual or construc tive. State v. Edwar ds, 868 S.W .2d 682, 700 (Tenn. Crim. App. 1993) ; see a lso St ate v. Nix , 922 S.W .2d 894, 900-01 (Te nn. 1996). “It is actual whe n the taking is immediate ly from the pe rson; and construc tive when in the possession or in the prese nce of the party robbed.” Morg an v. State, 220 Te nn. 247, 251- 52 (1967). Additionally , in the context of a robbery conviction, “owne r” means a person, other than the de fe nd a nt, wh o h a s p os se ssi on of or a ny int e re st in pro pe rt y , ev e n thou g h th a t po sse ssi on or int e re st is unla wf u l

. Tenn. Code Ann. § 39- 11-106(a )(26) . Evidence of possession is ordinarily sufficie nt proof of owner ship. Testimony

at trial by

sever al wit nesses established that Ms. J ones wa s forc ed to empty the g roce ry sto re ’s ca s h reg ister at g unpoint, which is sufficient to show a “ taking ” fr om her for the pu rp os e s o f the a g g ra va te d ro bb e ry c on vic tio n o n c ou nts on e a ndtw o. F urthe rm or e , th e re c or d a lso shows a sepa

rate “taking ” of pr operty

fr o m Br o o m e, n amelyhis wallet and his g un. That, in our view, is suf

ficient for the purposes of the ag g ravated robbery conviction on counts three and four

. There is no material variance betwee n the indictment and the e vidence prese nted at trial; there fore , the de fe nd a nt’ s c on te nti on is w ith ou t me ri t.
Secondl y , th e d e f

e n d a n t ar g u e s th a t th e e v id e n c e o f h is id e n ti ty a s th e p e rp e tr a tor was insufficient to support the verdic t bey ond a re asonable doubt. He conte nds that his convictions are ba se d s ole ly

on the t est im on y

of the vic tim s, that th e re wa s n o p hy sic a l e vid e nc e pr e se nte d to
connec t him with t he robbe ry , and that the e vidence is there fore insufficient to wa rra nt a finding of g uilt bey ond a re asonable doubt.

On app e a l, the state is e nti tle d to the str on g e st l e g it im ate vi e w o f the e vid e nc e a nda ll
rea sonable infe renc es which mig ht be dra wn there from. State v. Cabba g e, 571 S.W.2d 832, 835 (Tenn. 1978). The c redibility of the witnesse s, the weig ht give n to their testimony , and the
rec onciliation of conflicts in the proof are matters entr usted to the jury

as the trier

of fa ct. B yrg e v. Sta te , 5 75 S.W. 2d29 2, 29 5 ( Te nn . Crim

. App

. 19 78). Whe n th e su ff ic ie nc y of the e vid e nc e is
c ha lle ng e d, the re le va nt q ue sti on is w he the r, a ft e r r e vie wi ng the e vid e nc e in the lig ht m os t f a vo ra ble-5-

to the state, any

rational trier

of fa ct could have found the e ssential elements of the crime bey ond a
reas o n ab l e d o u b t. Tenn. R. App. P. 13(e); State v. Williams, 657 S .W.2d 405, 410 (Tenn. 1983). Qu e sti on s c on c e rn ing the c re dib ili ty of the wi tne sse s, the we ig ht a ndva lue of the e vid e nc e , a s w e ll as all fa ctual issues ra ised by the evidence are resolved by the t rier of fac t. L iakas v. State, 199 Te nn. 298 (1956). B eca

use a ve rdict of guilt ag ainst a defenda nt remove s the pre sumption of innocence and raises a presumption of g uilt, the convicted criminal defenda nt bear s the burden of showing that the evidenc e wa s leg ally

insufficient to sustai n a gu i l t y verdic t. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992)

. The de fenda nt offer s no other re asoning for the insuf f ic ie n c y o f the evidenc e pre sented a t trial oth e r tha n d isc re dit ing the te sti mon y of the vic tim s B ro ome a ndMs. Jone s. Th ro ug h th os e wi tne sse s, the state e sta

bli sh e d e a c h a nde ve ry

e le me nt o f the of

fe ns e s. Ev e n if

th eir tes ti mony

is the on ly
e vid e nc e c on ne c tin g the de fe nd a nt to the c ri me s, the e vid e nc e is l e g a lly su ff ic ie nt. As ind ic a te d, thi s court may not resolve que stions of witness credibility on appea l. That function is solely within the province of t he trier of fact. S ee, e.g ., State v. Carey , 914 S.W .2d 93, 95 (Tenn. Crim. App. 1995)

. The jury acc redited the testimony of the state’s witnesses, as was its prer og ative, and w as authorized to m a ke re a so na

ble inf e re nc e s f ro m th e pr oo f pr e se nte d. Th e e vid e nc e wa s, the re fo re , s uf fi c ie nt t o su pp ort th e c on vic tio ns
. Acc ording ly , the judg ments of the trial c ourt areaff irmed.

___________________________________ GARY R. WADE, PRES I DI NG JUDGE