IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs November 20, 2013

STATE OF TENNESSEE v. CHARLES CLEVENGER

Appeal from the Criminal Court for Knox County

No. 94791 Jon Kerry Blackwood, Judge

No. E2013-00770-CCA-R3-CD - Filed January 13, 2014

The defendant, Charles Clevenger, appeals from his Knox County Criminal Court jury

conviction of aggravated robbery, claiming that the evidence was insufficient to support his

conviction, that the trial court erred by ruling that the State would be permitted to utilize his

prior convictions to impeach his testimony, that the testimony of a State witness violated the

Confrontation Clause, and that the trial court erred by ordering the 30-year sentence imposed

in this case to be served consecutively to the 30-year sentence imposed in an unrelated case.

Discerning no error, we affirm.

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

JAMES CURWOOD WITT,JR.,J., delivered the opinion of the Court, in which JERRY L. SMITH

and D. KELLY THOMAS, JR., JJ., joined.

Bruce Poston, Knoxville, Tennessee, for the appellant, Charles Clevenger.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney

General; Randall E. Nichols, District Attorney General; and TaKisha Fitzgerald, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

The convictions in this case relate to the February 17, 2010 robbery of the

Walgreen’s on Oak Ridge Highway. At trial, Michael Aaron Bell testified that he went to

the Walgreen’s to purchase medication, and as he knelt down in the aisle to examine the

medications, “a gentleman walked behind [him] with a mask over his face, and kind of

startled” him. Mr. Bell selected his medication and went to the front of the store to pay, and,

while there, he “asked the cashiers if they had noticed the gentleman with a mask over his
head. And they said that they had.” When Mr. Bell and the cashiers “kind of figured out that

the place was getting robbed,” he and another person walked to an aisle to get a better view

of the pharmacy area. At that point, “one of the managers ducked into the office,” and Mr.

Bell “ran around to the other aisle” to warn another customer about the robbery. When the

man with the mask passed by Mr. Bell, Mr. Bell “crept up behind [him] and followed [him]

into the parking lot and started taking pictures.” He noticed that the masked man was

carrying a “[b]ag of drugs.” Mr. Bell saw the man get into a “gold, tan, gray” 1990s era

Buick LeSabre “and put everything in the passenger seat” before taking off his mask and

putting on a pair of black-framed bifocal glasses. The man then started the car and drove

away.

Mr. Bell identified the photographs he took outside the Walgreen’s on February

17, 2010. Mr. Bell testified that he identified the defendant from a photographic lineup on

March 8, 2010. He also identified the defendant at trial and noted that the defendant

appeared “more clean cut” and that the defendant wore glasses different from those he wore

on the night of the offense.

During cross-examination, Mr. Bell acknowledged that he did not see the

defendant in possession of any weapon. He admitted that he initially described the

perpetrator as “six-foot tall, about 240 with a gut, 40 to 45 years old.” After being shown the

photograph of an individual that he agreed looked similar to the defendant, Mr. Bell said that

he did not believe that individual committed the robbery.

Lina Robinson testified that she was working the evening shift at the

Walgreen’s on Oak Ridge Highway on February 17, 2010, as the pharmacist and pharmacy

manager. At approximately 9:00 p.m., a man wearing “pantyhose over his face” handed her

a note that said, “[G]ive me all your Oxycodone.” She said that she “just went and . . . got

some drugs” and, as she tried to hand them to the man, he asked for a bag. She put the drugs

into a bag, and the man asked if she had included any Valium. She replied that she had not,

then went and got some Valium and put it into the bag. She then put the note into the bag

and handed the bag to the man. When the man asked if she had put any money in the bag,

she “yelled and . . . said, no, I don’t have any money.” At that point, the man looked into the

bag, shook its contents, and then walked away. She said that in addition to the pantyhose,

the man wore clear vinyl gloves.

Ms. Robinson said that the man, who “was kind of thick through the middle,”

had his hands in his pockets and that, as she set about gathering the drugs, he told her to

hurry because “it was going to go off.” She said that he repeated this statement. Ms.

Robinson testified that the defendant’s statement coupled with his keeping his hands in his

pockets led her to believe that “[h]e either had a bomb strapped through to him or he had a

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gun in his hand in his pocket.” She said that she was scared throughout the transaction but

tried to remain calm.

Ms. Robinson testified that she initially believed that she would be unable to

identify the defendant because of the pantyhose and because she was so upset over the

encounter. She said, however, that she recognized the defendant immediately when he was

brought in with other prisoners for the preliminary hearing in this case. She identified the

defendant at trial but noted that the defendant appeared to have lost weight and that he

appeared more “clean shaven.”

Ms. Robinson identified notebook paper that appeared to be the same as paper

that the defendant used when drafting his demand note, and she also identified vinyl gloves

and a stocking cap that appeared to be the ones worn by the defendant during the offense.

During cross-examination, Ms. Robinson admitted that she described the

perpetrator as having sandy-colored hair but explained that the “tan colored hose” made the

defendant’s hair appear lighter. She acknowledged that she did not see the defendant with

a weapon and that he did not display to her any article that led her to believe it was a weapon.

Walgreen’s cashier Charles Jerry Brentz testified that on February 17, 2010,

he saw the defendant come into the store wearing a stocking cap on his head and walk to the

back of the store. Mr. Brentz said that after Mr. Bell told him that the defendant had pulled

the stocking cap over his face, Mr. Brentz and Mr. Bell “walked right up behind him, taking

pictures.” He said that they followed the defendant out of the store, and the defendant “got

into his car and took off.” Mr. Brentz, who had identified the defendant from a photographic

array on March 8, 2010, also identified the defendant in court but noted that the defendant

appeared “more clean cut” in court than he did on the night of the robbery.

During cross-examination, Mr. Brentz acknowledged that he described the

perpetrator as being approximately six feet one inch tall and weighing 240 pounds. He said

that he saw the defendant put on glasses that appeared “gold with the light.”

Knoxville Police Department (“KPD”) evidence technician Beth Goodman

testified that she responded to a car accident on March 5, 2010, involving the defendant and

his gold-colored Buick Century. Inside the defendant’s car, Ms. Goodman discovered

notebook paper, a stocking cap, and latex gloves.

Knox County Sheriff’s Office (“KCSO”) Detective Krystal Gibson testified

that she investigated the robbery of the Walgreen’s on February 17, 2010. During her

investigation, she learned that items used during the robbery were located in the defendant’s

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car following the March 5, 2010 car accident and that the jacket and shoes worn by the

defendant when interviewed following the accident matched the description of those worn

by the robbery perpetrator. Based on this information, she created a photographic lineup

containing the defendant’s photograph to show to witnesses.

During her investigation, she learned through her perusal of various law

enforcement databases that an individual named Steven Cannon owned a vehicle that

matched the description provided by witnesses. No other evidence, however, suggested that

he perpetrated the robbery. She acknowledged during cross-examination that she did not

include Mr. Cannon’s photograph in the array displayed to witnesses. Detective Gibson said

that during her investigation, another person provided a possible license tag number for the

getaway vehicle: “953 Victor Baker John or 963 Victor Baker John.” The license tag

number for the defendant’s Buick Century was “953 Victor Baker John.”

Following this testimony, the State rested. The defendant chose not to testify,

and he did not offer any proof. Based upon the foregoing proof, the jury convicted the

defendant as charged of aggravated robbery.

The defendant filed a timely but unsuccessful motion for new trial followed by

a timely notice of appeal. In this appeal, the defendant challenges the sufficiency of the

convicting evidence, the admission of certain evidence, the trial court’s ruling on the use of

his prior convictions as impeachment evidence, and the propriety of the alignment to the

sentence in this case with the sentence imposed in an unrelated case. We consider each claim

in turn.

I. Sufficiency

The defendant contends that the evidence was insufficient to support his

conviction because the State failed to establish his identity as the perpetrator and failed to

establish that he displayed any article that led the victim to believe that he was armed with

a deadly weapon. The State asserts that the evidence was sufficient to support the conviction.

We review the defendant’s claim mindful that our standard of review is

whether, after considering 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. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324 (1979); State v.

Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). “[D]irect and circumstantial

evidence should be treated the same when weighing the sufficiency of such evidence.” State

v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011).

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When examining the sufficiency of the evidence, this court should neither

re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact.

Winters, 137 S.W.3d at 655. Questions concerning the credibility of the witnesses, the

weight and value of the evidence, as well as all factual issues raised by the evidence are

resolved by the trier of fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

Significantly, this court must afford the State the strongest legitimate view of the evidence

contained in the record as well as all reasonable and legitimate inferences which may be

drawn from the evidence. Id.

As charged in this case, “[a]ggravated robbery is robbery as defined in §

39-13-401 . . . [a]ccomplished with a deadly weapon or by display of any article used or

fashioned to lead the victim to reasonably believe it to be a deadly weapon.” T.C.A. § 39-13-

402(a)(1) (2006). Robbery, as charged in this case, “is the intentional or knowing theft of

property from the person of another by violence.” Id. § 39-13-401(a). “A person commits

theft of property if, with intent to deprive the owner of property, the person knowingly

obtains or exercises control over the property without the owner’s effective consent.” Id. §

39-14-103(a).

A. Identity

The defendant claims that the State failed to establish his identity as the

perpetrator of the robbery because “two witnesses at trial identified the picture of a different

man as the robber.”

We need not tarry long over the defendant’s claim because it is based upon a

misrepresentation of the events at trial. At trial, defense counsel displayed to Mr. Brentz and

Mr. Bell the photograph of Mr. Cannon and asked if the man in the photograph appeared to

be the same one that robbed the Walgreen’s. Although both men agreed, after much cajoling,

that the man in the photograph was similar in appearance to the robber, neither man

identified Mr. Cannon as the man who robbed the Walgreen’s. Instead, both men, who had

identified the defendant from a photographic array on March 8, 2010, clearly identified the

defendant as the perpetrator in court. Moreover, other evidence established that the

defendant drove a gold-colored Buick, as did the robber, and that officers discovered gloves

and a stocking cap that matched those worn by the perpetrator in the defendant’s car on

March 5, 2010. This evidence established the defendant’s identity as the perpetrator.

B. Display of Any Articles Used or Fashioned to Lead the Victim

to Reasonably Believe It to Be a Deadly Weapon

The aggravated robbery statute clearly contemplates the scenario in which a

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robbery is accomplished not by the brandishing of an actual deadly weapon but by some

action on the part of the defendant to lead the victim to reasonably believe that the defendant

is armed with a deadly weapon. This court has affirmed convictions of aggravated robbery

when the defendant’s demand for money coupled with his maintaining a hand in his pocket,

even when the hand was not positioned to evoke the image of a gun or any other weapon, led

the victim to reasonably believe the defendant was armed, often by verbally threatening to

harm the victim. See, e.g., State v. Aaron Cooper, No. 01C01-9708-CR-00368, slip op. at

7 (Tenn. Crim. App., Nashville, Sept. 29, 1998) (defendant “held his hand in the waistband

of his pants ‘as if he had a weapon,’ and said . . . ‘Don’t make me have to hurt you’”); State

v. Frederick Corlew, No. M2001-00842-CCA-R3-CD, slip op. at 4 (Tenn. Crim. App.,

Nashville, Nov. 1, 2002) (defendant kept “his right hand . . . in his right pants pocket as he

came in and [it] remained there as he walked past the cash register and even after he came

around the counter and was standing with the victim, demanding her to ‘open the register’”).

We have observed that the “common threads” in those cases where no actual deadly weapon

was displayed “are: 1) a hand concealed in an article of clothing; and 2) a threat – express

or implied – that caused the victim to ‘reasonably believe’ the offender had a deadly weapon

and was not opposed to using it.” State v. Monoleto D. Green, No. M2003-02774-

CCA-R3-CD, slip op. at 10 (Tenn. Crim. App., Nashville, May 5, 2005).

In this case, the evidence established that the defendant kept his hands in his

pockets, that his jacket appeared “thicker in the middle,” and that he twice warned Ms.

Robinson to hurry or “it was going to go off.” In our view, this evidence was sufficient to

support the jury’s finding that the defendant displayed an article in a manner fashioned to

lead Ms. Robinson to reasonably believe that he possessed a deadly weapon.

II. Rule 609

The defendant next contends that the trial court erred by ruling that the State

would be permitted to impeach the defendant’s testimony with his 2005 conviction of

aggravated robbery and his 1983 conviction of burglary. He claims that the trial court’s

erroneous ruling prevented him from exercising his right to testify at trial. The State alleges

that although the defendant moved the court prior to trial to exclude the defendant’s prior

convictions for impeachment purposes, the defendant did not ask that the motion be heard

prior to the trial and made no mention of the issue until after the defendant had indicated that

he would not testify and after the conclusion of the Momon colloquy. Therefore, the State

asserts, the defendant failed to preserve the issue for appellate review.

We agree with the State that the defendant has failed to preserve this issue.

The defendant filed a pretrial motion to prohibit the State from using any of the seven

convictions listed in its Rule 609 notice to impeach his testimony should he decide to testify

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at trial. The trial court did not rule on the motion prior to trial, however, and the defendant

did not ask for a ruling before announcing his decision not to testify. Following the Momon

colloquy, defense counsel stated, “I assume that my Motion in Limine was that the Court’s

ruling would have been the same as it did in the last trial, with the addition of adding number

8, as that would impact my decision . . . .” The court responded, “Well, actually, I would

have ruled that the . . . two thefts [and] third-degree burglary would have been admissible

cause they reflect a dishonesty . . . .” Given the timing and nature of the defendant’s inquiry,

we are constrained to conclude that he failed to preserve the issue. Accordingly, the issue

has been waived.

III. Confrontation Clause

The defendant also asserts that the trial court erred by permitting Detective

Gibson to recite the license tag number relayed to the officer by a witness on the scene in

violation of the defendant’s right to confront the witnesses against him. Again, the State

contends that the defendant waived review of this issue by failing to lodge a

contemporaneous objection and by failing to raise the issue in his motion for new trial.

Although the defendant objected to the challenged testimony on grounds that

it was hearsay, he did not contend that the statement violated the Confrontation Clause. The

failure to lodge a contemporaneous Confrontation Clause challenge results in a waiver of the

issue. See Tenn. R. Evid. 103; Tenn. R. App. P. 36(b) (“Nothing in this rule shall be

construed as requiring relief be granted to a party responsible for an error or who failed to

take whatever action was reasonably available to prevent or nullify the harmful effect of an

error.”); see also State v. Killebrew, 760 S.W.2d 228, 235 (Tenn. Crim. App. 1988) (waiver

applies when the defendant failsto make a contemporaneous objection); State v. Jenkins, 733

S.W.2d 528, 532 (Tenn. Crim. App. 1987); State v. Rhoden, 739 S.W.2d 6, 11-12, 18 (Tenn.

Crim. App. 1987). The defendant also waived our consideration of his Confrontation Clause

challenge by failing to raise the issue in his motion for new trial. See Tenn. R. App. P. 3(e)

(“[I]n all cases tried by a jury, no issue presented for review shall be predicated upon error

in . . . [any] ground upon which a new trial is sought, unless the same was specifically stated

in a motion for a new trial; otherwise such issues will be treated as waived.”); see also State

v. Martin, 940 S.W.2d 567, 569 (Tenn. 1997) (holding that a defendant relinquishes the right

to argue on appeal any issues that should have been presented in a motion for new trial but

were not raised in the motion); State v. Dodson, 780 S.W.2d 778, 780 (Tenn. Crim. App.

1989). The defendant’s written motion for new trial contained no challenge to this

testimony, and, although he claimed at the hearing on his motion that the admission of the

testimony was error, he did not claim error of constitutional magnitude. This issue is waived.

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IV. Sentencing

Finally, the defendant contends that the trial court erred by ordering that he

serve the 30-year sentence imposed in this case consecutively to the 30-year sentence

imposed for a prior robbery conviction, arguing that the effective 60-year term, which must

be served at 100 percent by operation of law, is not the least severe measure necessary to

achieve the purposes of the sentencing act. The State avers that the defendant has waived

our consideration of this issue and, alternatively, that the alignment of the sentences was

appropriate.

At the May 1, 2012 sentencing hearing, the defendant waived his right to

present proof at the sentencing hearing and agreed to permit the court to utilize the

presentence report that was prepared in a previous case. That report, however, was not

exhibited to the hearing, and the defendant did not ensure that the report was made a part of

the record on appeal. The appellant bears the burden of preparing an adequate record on

appeal. See State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993). If the appellant fails to file

an adequate record, this court must presume the trial court’s rulings were correct. See State

v. Richardson, 875 S.W.2d 671, 674 (Tenn. Crim. App. 1993). Without the presentence

report relied on by the trial court, we cannot evaluate the defendant’s claim and must, instead,

presume that the trial court ruled correctly.

V. Conclusion

Because the record shows no reversible error, the judgment of the trial court

is affirmed.

_________________________________

JAMES CURWOOD WITT, JR., JUDGE

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