### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE A ssi gne d onBr ie fs May

22, 200 7

STA TE OF TEN NES SEE v. JAC K N . T AY LOR

Direc t Appeal from the Cr im inal Cou rt for Loudon County

No. 10691 E. Eugene Eb len, Jud ge

No. E2006-02719-CC A-R3- CD - F iled Augu st 29, 2007

The de fenda

nt, J ack N. Taylor, was convicted of robber y , a Class C felony
, and sentenc ed to three y ear s in the community

corr ections prog ram. On a ppeal, he argues that the evidenc e wa s insufficient to s up po rt

his c on vic tio n. F oll ow ingour r e vie w, we a ff ir m th e jud g me nt o f t

he tr ia l c ourt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed

A L AN E. G L EN N , J ., delivere d the opi n i o n o f t he cour t, in which J A M ES C UR WO OD W I TT , J R . and J OHN E VE R E TT W I L L I AMS , J J ., joined.

J oe H. Walker , District Public De fende r, and Walter B. J ohnson, I I , Assistant Publ ic Def ender , for the appe llant, J ack N . Taylor.

Rob e rt E. Coo pe r, Jr., Attor

ne y Ge ne ra l and

Re po rt e r; Re ne e W. T u

r n e r , A s s i sta

nt A tto rn e y

Ge ne ra l; Sc ott Mc Clu e n, Di str ic t A tto rn e y Ge ne ra l; a

nd JohnB le ds oe , A ssi sta

nt D ist ri c t A tto rn e y

Ge ne ra l, for the a ppellee, State of

Tenne ssee.

OP IN ION

F AC TS

At the de fe nd ant’ s May 31 , 200 5, tr ia l, the vic tim , Ag ne s Hart lin e , te sti fi e d th a t sh e wa s a seventy -one- y ear -old widow and lived a lone in L enoir City . On Novembe r 7, 2002, she we nt to the bank to ca sh a che ck, boug ht some g roce ries, and the n went to B urg er King

. She returne d home at about 5:45 p.m., parke d in he r car port, and noticed a medium gr ay car with a re d stripe “g oing slow” past her dr iveway

. She saw two people in the f ront seat of

the g ray car . As she wa s unloading her purcha ses, a “ [p] retty

g ood siz e” man approa ched he r fr om the side of her house. He asked he r twice if “Christy ” lived ther e, and she told him t hat no one by that name ha d ever lived there . The man t h en s ai d
, “[ W ] el l [
, ] I ’l l j u s th av e t o h av e t h at p urs e” an d grab b edM s

. Ha rt l i n e’ s p urs e. E v en th o u gh she knew she “wa s fig hting a losing battle,” she held onto her pur se as the ma n “jer k[ed] and pull[ed]-2-

it.” He succee ded in taking the purse from her afte r scratching and bruising her arms unti l they bled

and the n r an a c ro ss h e r yard and g ot int o the g ra y c ar sh e ha d s e e n p a ss h e r h ou se . M s. Ha rt lin e sa id he r p ur se c on ta ine d o ve r $ 10 0 in c a sh , c re dit

c ard s, he r d

ri ve r’ s li c e ns e , a

nd oth e r i te ms.

Ms. Hartline said that she went inside her house and c all ed 9-1-1. The police ar rived a nd subsequently

took her to look at a g ray car that had been stopped near by . She identified the c ar a s the on e in whic h the ro bb e r h a d f le d. Af te r t he po lic e too k h e r h ome , th e y br ou g ht t hr e e su sp e c ts to her house, a

nd she identified the defe ndant as her robber. She also identified the de fenda nt from a photog raphic lineup of six persons she vie wed in her home a we ek af

ter the r obbery

. At trial, she

once a g ain identified the de fenda n t as t h e man who took her purse . On cr oss-examination, she confirme d that even thoug h the police f ound the g ray car “about a mile or so” from her house and

sear ched the defe ndant and the c ar, he r purse was not re cover ed.

Offic er J oe Foster of the L enoir City Police Depa

rtment testified that “f

our or f ive” minutes afte r re ceivingthe dispatch re g ardingthe robbe ry , he stopped the vehicle in which the def endant wa s riding beca

use it matched the descr iption g iven in the dispatch. He he ld the defe ndant and the othe r two occupa

nts for investig ative purpose s until county office rs ar

rived. He said that the location wher e he stoppe d the vehicle was a bout two miles from the victim’s subdivisi on.
Serg eant B illy

Hall of the L oudon County Sheriff’ s D ep artment testified reg ardingthe

v i c t i m ’ s i d e n t i f

i c a t i o no f t h e d e f e n d an td ur i n g th e “ s h o w u

p ” a th e r h o u s e s h o rt l y a f

t e r th e r o b b e r

y. He e x plained that a “ show up” is conduc ted when a wit n es s might be a

ble to identify

a suspec t shortly afte r a crime. I n this case, the “ show up” took plac e appr ox imately twenty -nine minutes af

ter the robbe ry . The police broug ht the three men who had been stopped in the gra y car to the victim’s ho us e , a nd sh e ide nti fi e d th e de fe nd ant imm e diate ly

. Se rg e ant H a ll a lso c on du c te d th e ph oto g ra ph ic lineup and said he in t en t i o n all y waited se ven day s befor e takingthe photog raphs to the victim’s house “to g ive the bene fit of the doubt to ever y body involved.” Howe ver, a s soon as he unc overe d the photog raphic lineup of six persons, the vic tim identified the photogr aph of the defe ndant and “wa s very adama nt that that was him.”

On cr oss-examination, S er geant Ha ll said that personnel fr om L oudon County Fire and Rescue, the L enoir City

Fire Depa

rtment, and other

county and city policemen ha d sear ched the are a betwee n the victim’s house and the location wher e the defe ndant was appre hended, a distan ce of “about a mile,” but her pur se wa s not found. Additionally , no evidenc e was d i s co v er ed on the defe ndant or in the c ar.

Def ense witn e s s M ic h a e l S il v e y te s ti f ie d th a t t h e d e f e n d an t a n d tw o o th e r

f r ie n d s , “ the Se nte ll b ro the rs ,” c ame to h is h ou se a t a bo ut 5 :15 p. m. o n N ov e mbe r 7 , 2 00 2, wi th N ic k Se nte ll driving the g ray

Chevrolet C orsica they arr ived i n. The defenda nt told Silvey that his son had bee n born that day , and Silvey

g ave the men bee r to ce lebrate. The defe ndant and the Sentells stay ed for ab o u t h al f an hour bef

ore le aving , and, as the y

drove a way , Silvey

saw the police stop their car

. L ater , the police inter

viewed Sil vey reg arding the robbery and searche d the out side of his house, but-3-

no evide n ce wa s rec overe d. Acc ordingto Sil vey , Nick Sentell was in jail at the time of the de fe nd ant’ s tr ia l.

Silvey ’s wife , Shannon Silvey , testified that at about 5:30 p.m. on the day of the off ense, she saw he r husband talkingwith the defe ndant and Ala n and Nick Sente ll outsi d e their house . She looked out the window at that time bec ause he r husband wa s mowing the lawn and ha d st o p p ed mowing. She sa id that the men wer e ce lebrating the bir th of the def

endant’ s child an d “w er e out there havinga couple of bee rs,” but they did not come insi de. She conf irmed that the police had later

sear ched the perimete r of their house but did not searc h the interior e ven thoug h she g rante d them permission.

The de fenda

nt testified that, on the morning o f t h e ro b b ery , he wa s at the hospital for the birth of his son. He later left the hospital to pick up and c ash hi s paychec k befor e mee ting Ala n Sentell, a co- wor k er, f

or lunch. The y

subsequently

met Sentell’s brother, N ick Sentell, and then went to the Silvey s’ house whe re t h ey “had a fe w bee rs” a nd stay ed for

“a g ood 30-45 minutes.” Th e y we re sto pp e d b y

the po lic e imm e diate ly

a ft e r l e avin g the Silv e y s’ ho us e . T he de fe nd ant s a id that he wa s arr ested a fter be ing ta ken to the victim ’s hous e. Howeve r, he denied a ny involvement in the robber

y

.

AN AL YSI S

Th e so le iss ue the de fe nd ant r a ise s o n a ppe a l is wh e the r t

he e vid e nc e pr e se nte d at tr ia l is

su ff ic ie nt t o s up po rt

his c on vic tio n. To argue the ins uf fi c ie nc y of the e vid e nc e , th e de fe nd ant p oints

ou t th a t M ic h a e l Si lv e y te s ti f ie d th a t h e w a s a t h is h o u s e a t th e ti me o f th e r o b b e r y an d that the

v i c t i m ’ s d e s c r i p t i o no f

t h e c l o t h e s t h e r o b b e r

w o r e d i d n o te x a c t l y m a t c hw h a th e h a d o nth a td ay. The de fenda

nt further contends that his conviction should be set a s i d e b ec ause the police neve r
rec overe d the victim’s purse, a lthough they sear ched intense ly

for it.

I n consid er at i o n of this issue, we apply the rule that where sufficie ncy of the c onvicting evidenc e is cha lleng ed, the r eleva nt question of the re viewingcourt is “whe ther, a fter viewing the evidenc e in the light most favor able to the pr osecution, any rational trier of fact could have found the essential e lements of the c rime beyond a reasonable doubt.” J ackson v. V irg inia, 443 U.S. 307, 319, 99 S. Ct . 2781, 2789 (1979); see also Tenn. R

. Ap p . P. 13(e) ( 2006); State v. Evans, 838 S.W .2d 185, 190-92 (Te nn.1992); State v. Ander son, 835 S.W

. 2 d 6 0 0 , 604 (Tenn. Crim. App. 1992)

. This rule applies whe n the deter mination of g uilt is based upon dire ct evidenc e, ci rc umstantial evidenc e, or a

combination of both direc t and circ umstantial evidence . State v. Pendergrass, 13 S.W .3d 389, 392-93 (Tenn. Crim. App. 1999) (citing State v. Dy kes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990)).

All questions involvi ng the cr edibility of witn esses, the weig ht and value to be g iven the evidenc e, and al l fac tual issues are resolved by the trier of

fac t. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987) . Our supre me cour t stated the rationale for this rule:-4- Thi s we l l -s ett led rule r ests on a sound foundation. The trial judg e and the jury see the witnesses fa ce to f ace , hear their t estimony

and obser

ve their de meanor
on the stand. Thus the trial judge and jury are the primary instrumentality

of justice t o d e t e r m i n e t h e w e i g h tan d

c r e d i b i l i ty

t o b e g i v e n t o th e t e s t i m o n y o f w i tn e s s e s

. In the trial forum alone is the re human atmosphere and the totality of t h e e v i d ence cannot be repr oduced w ith a written re cord in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523 (Tenn. 1 9 6 3 ) )

. A d d it io n a ll y , a ju r y c o n v ic ti o n r e mo v e s th e p r e s u mp ti o n o f inn o c e n c e with which a defe ndant is initi ally

cloake d and re place s it with o n e of guilt, so t hat on appe al, a c onvicted defe ndant has the bur den of de monstrating that the evidenc e is insufficient. See State v. Tug g le, 639 S.W .2d 913, 914 (Tenn. 1982)

. Robbery is defined by

statute as “the intentional or knowingtheft of pr operty from the pe rson of anothe r by

violence or putting the person in fea r.” Tenn. Code Ann. § 39-13-401(a ) (2006) . The victim testified that the defe ndant appr oache d her in he r car port, g rabbe d her purse, a nd strug g led wi th h e r t o g e t it

out of he r ha

nd s, br uis inghe r a

rm s in the pr oc e ss. She po sit ive ly ide nti fi e d h im very quickly afte r t he incident and then was able to selec t him from a photogr aphic lineup a wee k later. Viewe d in a light most fa vorable to the prosec ution, this evidenc e is suf ficient to support the defe ndant’s robbe ry

conviction.

Although the defe ndant and Mr. and Mrs. Silvey testified that he wa s at the Silvey residenc e
a t t h e ti me o f th e r o b b e r

y , th e ju r y d id n o t c r e d it

th e ir te s ti mo n y

b u t, r a th e r , th a t o f

th e v ic ti m. We

c on c lud e that, b a se d u

po n th e vic tim ’s ide nti fi c a tio n o f t he de fe nd ant a s h e r a ssa ila nt, a re a so na ble j u r y c o u l d c o n c l u d e th a th e c o m m i t t e d th e r o b b e r

y.

CO NC LU SION

B a se d o n th e fo re g oin g a

uth or iti e s and re a so nin g , w e a ff ir m th e jud g me nt o f t

he tr ia l c ourt

.

___________________________________ AL AN E. GL ENN, JUDGE