### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs Ma rc h 6, 200 7

STATE OF TENNESS EE v . DEDDRICK PARKER, TAURUS DRIVE R,

and TR EMA INE R OBER SON

Direc t Appeal from the Cr im inal Cou rt for Shelby Coun ty No. 04-02632 John P. C olton, Jr., Judge

No. W2006-00876-C CA-R 3-CD - F iled Jul y 30, 2007

The de fenda

nts, Deddrick Par

ker, Ta uru s Dr i ver, a

nd Trema ine Roberson, we re indicte d for two

c ounts of a g gravate d r ob be ry , a

Cla ss B fe lony , a

nd fi ve c ounts of

a g g ra vate d a ssa

ult , a Cla ss C fe lony . E a c h d e fe nd ant w a s c on vic te d o f b oth c ounts of a g g ra vate d rob be ry , an d Robe rs on wa s a lso

c on vic te d o f a ll f

ive c ounts of

a g g ra vate d a ssa

ult , Park er o f t

wo c ou nts , a nd Dr ive r o f t

wo c ounts of the lesse r-include d o ff ense of fac ilitation of ag g ravated assault. Roberson, Par ker, a nd Driver

w e r e s e n t e n c e d

a s R an g e I, s t an d ar d

o f f e n d e r s t o c o n s e c u t i v e s e n t e n c e s t o t a l i n g t h i rt y- f i v e , t w e n t yfour, a nd twenty

y ear s, respe ctively . I n this consolidated appea l, they raise thr ee issue s : (1) the

e vid e nc e is i ns uf

fi c ie nt; (2 ) t

he tr ia l c ourt

e rr e d in its a pp lic a tio n o f e nh anc e me nt f a cto rs and

in imp o s ing c onsecutive se ntencing ; and (3) the trial court e rre d by not timely

disclosing its prior

re la tio ns hip wi th a

n a ssa ult vic tim . F oll ow ingour r e vie w, we re mand fo r r e se nte nc inga s to tho se
se nte nc e s imp os e d on e a c h de fe nd ant wh ic h e xce e d the min imum, a ff ir m the re ma ini ngjud g me nts
, and re mand to the trial cour t for a de term i n at i o n as to whethe r the sente nces should be se rved

c o n c u r r e n t l y o r c o n s e c u t i v e l y.
Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Cr im inal Cou rt A ff irm ed in Par t, Reve rsed in Par t

A L AN E. G L EN N , J ., delivere d the opinio n o f t h e court, in which D AVI D G. H AYES and J ER R Y L. S MI TH , J J ., joined.

Paul K. Guibao, Memphis, Tenne ssee, f or the a ppellant, Deddr ick Parke r; Charles Edg ar Waldman, Memphis, Tennesse e, for

the appe llant, Taurus Dr iv e r ; a n d G r e g ory Thomas Carman ( on appea l) and Matthew John (at trial), Memphis, Tenne ssee, f or the a ppellant, Tre maine Roberson.

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

ne y Ge ne ra l and Re po rt e r; B re nt C. Che rr y , A ssi sta nt A tto rn e y

Ge ne ra l; Wil liam L

. Gibbons, District Attorney Gene ral; and De nnis J ohnson and Muriel Conner , Assistant District Attorney s Gene ral, for the appe llee, State of Te nnessee

.

OP IN ION

F AC TS

The defend an ts w e r e tr ie d jo in tl y f o r th e Jan u ar

y 1 7

, 2 0 0 4

, a g g r a v a te d

r o b b e r y o f J ohn Carruthe rs, an e mploy ee of the Cash Amer ica Pawnshop in South Memphis, and of one of the pawnshop’s c ustomers, I ng re Calvin; for the ag g ravated assault of two pe rsons in the pawnshop, Dar rick B owden, a

cashie r, and e ight- y ear -old customer Jeffr ey Calvin; a n d fo r t h e agg ravated-2-

a ssa ult s o f mot or ist Stanle y Kl ine ; his wif e , San dr a Kl ine ; and the ir a du lt, ha nd ic a pp e d s on , L ou is Kline.

State’ s P roof

A t th e d e f

e n d an ts ’ tr ia l, D ar

r ic k B o w d e n te s ti f

ie d th a t h e w a s w o r

k in g b e h in d th e counter of the pa wnshop on J anuar

y 17, 2004. Be tween noon a nd 1:00 p.m., two men with guns, we aring masks, g loves, and da

rk clothing

, enter ed the store and y elled for ever y one to “g et down.” B owden laid down on the floor be hind the counter and hea rd the me n ru n n i n g p ast him, the cash r eg isters b ei n g “p o p p ed

, ” t h e st o re ’s gl as s j ew el ry -d i s p l ay ca s es b ei n g b ro k en , an d o n e o f t h e r o b b er s y el l i n g, “Where ’s the saf

e? Where’s the safe ? ” When the ala rms on the display

case s went off

, the robbe rs fled. Bowden describe d one of the robbers as a “hea vy -set guy ” and the other a s “slim.” He sa id that

mon e y and je we lr y we re take n d

ur ingthe ro bb e ry . B ow de n s a id t hat du ri ngthe ro bb e ry , h e wa s “

jus t ho pin g , y ou

kn owno bo dy

g e t a g itate d [si c ] an d th ing s go wr on g ,” say ingthat he wa s a fr a id “someb o d y [ wo u l d] get shot” a nd that “it could have been” him. Another of the vic tims, J ohn Carruthe rs, was w o rking with Bow den that day and oper ating a ca sh reg ister when the robber y
occur red.

Shaun Br idge forth, also a n employ ee of Cash Americ a Pawnshop, testified that he sa w one of the robbe rs enter the store c arr y ing a g un and we aringa blac k mask and de scribed the robber as being of “r eg ular he ight” and a “little chubby .” He knew ther e wa s more than one robber in the store bu t r e ma ine d f

a c e -d ow n o n th e fl oo r u

nti l th e y le ft

.

I ng re Calvin testified that she and her y oung son and daug hter we re at the chec kout counter of the pawnshop when a man approa ched her from behind and said, “Ge t dow n.” She descr ibed the man as “ kind of stocky ” and sa id he was w ear ing a tan lumber jac ket, a b l u e “skull ca p,” and “ a g ree n, homemade f

ace mask.” Ms. Calvin said she wa s scar ed and “ thought [ she] was g oing to g et shot or something.” Her

purse, whic h had been on the counter, was missing a fter the robber y . She said she had a

pproxi mately

$1500 cash, he r che ckbook, and two c redit ca rds in her pur se.

I ng re Calvin’s son, Jeffre y Calvin, a fifth g rade r, testified that he was at the counter in the pawnshop whe n three men came in and told him to “ge t down.” He complied but “pee ked a little” and saw one of the m en pull up his black mask and use a hammer to “bust the glass” in the jewe lry

case s. Calvin saw the robbe r’s fa ce a nd looked up at him until the alarm sounded a nd the robbe rs left. He later viewed photogr aphic lineups at the police station a nd identified Roberson as the man he sawbrea

king the g lass. Asked how he felt during the robber y , Calvin sa id that he “thoug ht they [were] g oing to hur

t somebody ” bec ause the y had a “ hammer a

nd all that.” He said that he wa s
scar ed and that his sis ter wa s cry ing a fter the robber s left.

L ie ute na nt T e rr y L y on s o f t

he Me mph is Po lic e De par tme nt t e sti fi e d th a t a

pp ro xima te ly $1,550.23 was stolen fr om the pawnshop a nd $1,588.00 from I ng re Calvin. He sa id that the robber s
wre cked the ir g etawa

y vehicle, a

white Chevrolet Caprice, at the i ntersec tion of South Third S tree t and Ea st Mitchell Roa d

, ap p ro x i m at ely 100 y ards f

rom the paw nshop. I nside the ca r, the police discovere d felt j ewe lry display s, loose piece s of jewe lry , and ca sh. The police a lso recove red a pistol and a ba g containing $520 on the sidewa lk of Meadow brook Road.

L ieutenant Ly ons said that a witness, Mr. Hug hes, t old police he followed a man who fled from the sc ene of

the automobile acc ident to a near by house located at 49 West B elle Haven Road. L y ons said that he and three other office rs went to the house whe re the y found three males, whom he ide n ti f ie d a s th e d e f

e n d an ts
, matc h in g th e p h y s ic a l d e s c r ip ti o n s o f th e r o b b e r

y s u s p e c ts

. T h ey
wer e taken into custody and transported t o the police station whe re L ieutenant Ly ons watche d the pawnshop’s sur

veillance videotape of the robber y and noted that, like the perpe trators shown on the-3-

tape, Par ker w as we aringwhite t ennis shoes, Driver was wea ring black tennis shoes, and Rober son
wa s w e ari ngblu e te nn is s ho e s. L ie ute na nt L y on s sa id t

hat he sh ow e d a ph oto sp re a d to Mr . H ug he s, wh o identified Drive r as one of the men he saw g et out of the ba ckseat of the Capric e at the int e rs e c tio n o f T hir d a

nd Mit c he ll.

The pa wnshop’s m arke t manag er, J ohn L ouis Griff in, testified t hat the jewe lry display s and jewelr y found in the wre cked, w hite Chevrolet had be en take n from the pa wnshop.

Ronald McKinney testified that on J anuar y 17, 2004, he was trave ling south on Thir d Street when a four- door, white Chevrolet hit his vehicle and spun it out of control at the intersec ti o n of Mitchell Road. Three men got out of t he C hevrole t and st arte d walking down Mitchell Road. When McKinney

approa ched the driver of the Chevrolet, wh o m h e descr ibed as “ heavie r than the othe r two,” the man “ raised up his shirt to le t [him] know he had a gun.” McK inney immediately

stopped following them. On Fe bruar y 20, 2004, McKinney viewed photogr aphic lineups at the police station and identified Par

ker a s the man who fla shed the gun. At trial, he testified that there w as “no doubt in my mind was the hea

vy set g uy that had the gun [si c].”

Claudell Hug hes testified that he witnesse d the automobile ac cident at Third Stre et and Mitchell Road involving an olde r model white c ar a nd a sports utility

vehicle. Three y oung men g ot out of the w h i t e ca r an d wa l ked over to the sidewalk. Two of the men re turned to the c ar a nd retrie ved some plastic ba g s. All three then sta rted wa lking we st on Mitchell R o ad

, an d Hug hes followed them in his car

beca use they were l ea v i ng the sce ne of the acc ident. At one point, as he passed the thr ee me n, one of the m approa ched him with a gun in hand. Hug hes then sped up, drove around the block, and “ca me bac k up behind them” so they would not know he wa s still following them. He obse rved the men split up and continued f ollowing one of them who wa s “g oing dow n be tw e e n th e ho us e s. ” He watc he d the man sto p a t a ho us e on Wes t B e lle Ha

ve n Ro a d a

nd ta lk t o another m an

. L at er , h e showed a police off

icer the house whe re the man had stopped. H ug hes viewed a photogr aphic lineup a

nd identified Drive r as the ba ckseat passeng er wh o go t o u t o f the white ca r. Howeve r, Driver was not the one whom Hug hes ultimately followed. Hug hes wa s not able to identify

any of the de fenda

nts in the courtroom.

Stanle y J. Kl ine , a Me mph is atto rn e y , te sti fi e d th a t he wa s in his c ar w ithhis wi fe and

a du lt, ha nd ic a pped son, sto pp e d b e hin d a bu s o n T hir d Stre e t, w he n h e he ard a “ [v]e ry lou d, vio le nt” automobile collision a

nd saw an older

model, white ca

r roll to a stop on Mitchell Road. Thre e blac k males g ot out of the ca

r and be g an runningwestbound down Mitchell Road. Kline ca lled 9-1-1 a nd then followed the men at a distanc e. When he turned northbound on Mea dowbrook, the me n had stopped running and Kline slowly came to a stop next to one of them. The other two men were standing near

his car, a nd one of the m “had a

silver pistol in hi s rig ht ha nd and whirled a

round and fired a shot” direc tly

at Kline’s c ar. The bullet struck the hood, ric ochet ed o ff , and missed the windshield.

After being shot at, Kline retr ieved his own ha ndg un from his g lov e compar tment and g ot out of his car . Kline was “ about to shoot” the man c losest to him, whom he described a s “over weig ht,” but did not because the m an dropped the bag he was c arr y ing a nd “a lot of c ash flew out and a pistol.” The other two men ran, but, w hen the larg er man tried to run, he “ hit some mud

or we t stuff on the y ard a

nd fell flat on his fa ce spr ead- eag led.” Weapon levele d, Kline stood one foot behind the man and told him not to g et up, but the man pushed himself up, l o o k ed at Kline, g rinned, a nd “ra n off.” Kline testified that the man had “cr ossed” front teeth and identified him as Parker afte r looking at his teeth in the cour troom.

Kl ine vie we d ph oto g ra

ph ic lin e up s a t the po lic e statio n th e da y a ft e r t he inc ide nt b ut w ou ld not identify any one because he wanted t o see them “live.” Howeve r, Kli ne testi fied that he g ot “a-4-

g oo d lo ok ” a t a ll thr e e me n, and , ac c or din g to him , the de fe nd ants we re se a te d in th e c ourt ro om i n the same or der a s they

had been s t anding on the sidewa lk when the shot wa s fired. H e identified Roberson as the shoote r. Ac cordingto Kline, the d ef en d an t s had alter ed their a ppear ance “conside rably” since the day of the incide nt, espec ially Parker , who appe are d to have los t fi fty or
mor e po un ds

.
Kline’s wife , Sandra K line, testified that, af ter be i n g s h o t at, she wa s “scr eamingat [her hu sb and ] to g e t out of the re .” She sa id that af te r he e xite d the ir c ar, sh e wa s “ loo kin g str a ig ht i nto the fa ce o f the he avy set g uy with a g un and a ba g .” The day afte r the incide nt, review ing photogr aphic lineups at the police station, Mrs. Kline i dentified Driver as the m an standing on the

corne r, Roberson a s the man who shot at them, and Parker as the he avy set man. Mrs. Kline confirme d that the same me n wer e the de fenda nts on trial in the courtroom.

Serg e an t Ro b e rt Sc o g g in s o f th e M e mp h is Po li c e D e p artm e n t te s ti f ie d th a t th e r e wer e no positive results when f

inge rprint ana ly sis was conduc ted on the ca r or the pistol rec overe d from the sidewalk on Meadow

brook Road. On the night of the offe nse, he executed a sear ch war rant at the house whe re the defe ndants wer e appr ehende d, but no eviden ce relevant to the robber y was discovere d. He a lso took statements from the defendants who identified alibi witnesses, but none of tho se name d c oo pe rate d wh e n he re qu e ste d the m to c ome to t he po lic e statio n to g ive state me nts

. Serg eant James T. Max of the Memphis Pol ice De partment testified that he interview ed Roberson on the da

y of the robbe ry

. Roberson told him that he and Parke r wa lked from the V alley For g e Apa

rtments to the Corner Foo d s S t ore ne ar Mitche ll Road and Third Street, pur chase d two beer s and a bag of potato chips, walked to a friend’ s house “on Rollins and then fr om there the y went t o h i s a u n t ’ s h o u s e w h e r e t h e y w e r e ar r e s t e d

. ” R o b e r s o nd e n i e d a n y i n v o l v e m e n ti nt h e r o b b e r y. Serg eant Ma x later spoke with the Corner F oods Store employ ee who was working the af ternoon of the robbe ry , and she c ould not confirm that Roberson or Par ker ha d been in the store that day

.
Defense P roof

Rox ie L ewis testified that she was working as a cook at the Corner Foods Store on January 17, 2004, and that Parke r, whom she kne w as “ L asag na Man,” came to the store at “lunchtime.” She could not reme mber if a

ny one else was with Parke r that day

.
Antonio Smi th testified that all three defe ndants are his cousins and that on J anuar y 17, 2004, he picke d up Driver

and another cousin, Cory Parker , at about 12:30 p.m. and they went to the Sou thl and Ma ll. He sa id t

he y we nt t o thre e sto re s b e fo re le a vin g the ma ll aro un d 1:0 0 p. m. S mith said that, on their wa

y home, they

passed the pawnshop, saw “a whole bunch of police ,” and w ere la ug hin g be c a

us e the y tho ug ht “ so me bo dy mus t have ro bb e d the pa wn sh op or so me thi ng .” Smith then took Driver

to his aunt’s house at 49 West Be lle Have n.
Cory Parker testified that Smit h picked up him a nd Driver at about 12:40 p.m. on the day of the crime and took them to the mall. Afterwa rds, at about 1:30 p.m., they dropped D river of

f at 49 West Belle Ha

ven so he c ould watch a

basketba ll ga

me. Parker

said that, later that day , he re turned to the mall and viewe d a surveillance videotape at one of the stores they had visited and identified Driver o n t h e videotape. O n cross-e x amination, he ac knowledg ed that he is De fenda nt Parker’ s brother a nd the cousin of Dr iver a

nd Roberson.

Def endant Dr iver testified that, on J anuar y 17, 2004, h e we n t t o the Southland Mall at approximately

1:00 p.m. with C ory Parker and Antonio Smith. After war ds, they dropped him off at his g randmother ’s house at 49 West B elle Have n wher e he was arr ested by detec tives ten minutes l a t e r

. D r i v e r

d e n i e d an y i n v o l v e m e n ti nt h e r o b b e r y.-5-

Ros e Park e r t e sti fi e d th a t sh e liv e d at 49 Wes t B e lle Ha ve n a nd that Ro be rs on

is h e r c ou sin and the other

two defe ndants are her ne phews. She said that, on January 1 7

, 2 0 0 4

, P ar ker a nd Roberson ar

rived at her house at about 12:45 p.m. and Driver arr ived at about 1:40 p.m. The defe ndants wer e at he r house until the pol ice came at approxim ately 2:00 p.m. Earlier that day , she had seen two men run acr oss he r front y ard, one wea ring a brig ht y ellow jacke t a nd the other a

black, hooded pullover.

Chi marc o F a

ulk ne r t e sti fi e d th a t Park e r a nd Dr ive r a re his ne ph e ws and

Rob e rs on

is his cousin. On t he day of t he robbery

, Fa ulkner and Charles Glover were with Parker and Roberson f or “a couple of hours” at Glover’ s house before dropping them off in front of the Corner F oods Store “a littl e afte r 1:00” p.m. Gaisha F aulkner testified that she wa s at 49 West Belle H aven w hen her nephew s, Driver

and Parke r, and he r cousin, Roberson, w ere arr ested.

De f e n d an tP ar

k e r t e s t i f i e d t h a t
, o nJan u ar

y 1 7

, 2 0 0 4

, h e l e f

tt h e V a l l e y

F o r g e A pa rt me nts with Roberson at appr ox imately 11:25 a.m. and walked t o Charles Glover’s house wher e they stay ed until “probably about 12:50” p.m. L ater
, while riding in G lover’s car , he saw the w oman who lived at the cor ner of Be lle Haven and Mea dowbrook a nd stopped to talk to her and he r daug hter. Af te rw ard s, Gl ov e r t oo k Pa

rk e r a nd Rob e rs on to the Cor

ne r F oo ds Sto re wh e re Park e r b ou g ht s ome be e r. Park e r and Rob e rs on the n w a lke d b a c k to Gl ov e r’ s h ou se and the n to his g ra

ndmot he r’ s h ou se at 49 West Belle H aven, arriving at about 1:30 or 1:45 p.m. Parker testified that Drive r ar

rived at the hou s e a

p p r o xim a te ly tw e n ty

- f

iv e mi n u te s late r

. Pa

r k e r d e n ie d r o b b in g th e p aw n s h o p

. He

a c kn ow le dg e d he ha d lost so me we ig ht in the y e ar p re c e din g his tr ia l be c a us e he fo un d th e fo od

in jail disa g ree able, saying that he weig hed approximately 210 pounds on J anuar y 17, 2004, and wa s heavie r than Rober son and Drive r at that time.

D e f e n d an tR o b e r s o nd i d

n o tt e s t i f y.

Donell Powell t est ified that, at a pproxi mately

12:45 p.m. on J anuar

y 17, 2004, as he w as sittin g in h is c ar o n Wes t Dunb ar Roa d, he sa w, fr om his re arv ie w mir

ro r, thr e e me n r

un be hin d h is

car . The fir st two men were wea ri n g h o o ds and looked like they wer e runningfrom someone

. Powel l e s ti mate d th e th ir d ma n ’ s w e ig h t a t “ a

b o u t 3 0 0 p o u n d s ” an d s a id h e w a s c ar r y in g a long

scre wd ri ver a

nd lag g ing be hind the other two men. A t the time, Powell was not awa re of the pawnshop robbe ry

and had not hear d any g unshots but thoug ht that the three men had be en trying to steal a c ar or

“ca rjac k” someone . Shortly

afte r see ing the th re e m en ru n by , he sawParker and R o b e r s o n , w h o m h e kn e w f r o m n e i g hb o r

h o o d b ar b e c u e s a s “ P o o h M an ” an d “ H u c k

, ” r e s p e c t i v e l y,
wa lki ngdo wn

Ea st Dunb ar Roa d. Ac c or din g to Pow e ll, Park e r a nd Rob e rs on a pp e are d to have “

jus t come f rom the store be cause they had a ba g with the m.” Powell te stified that he was cer tain that the three men who had r

un by him earlier

wer e not the def

endants.

AN AL YSI S

I. Su ff iciency of the Evid ence

As s et o u tp re v i o u s l y , t h e d ef en d an t s ea ch we re i n d i ct edfo r t wo co u n t s o f a ggra v at edrobber y and five counts of ag g ravated assault, wit h J o h n Carruthe rs, an e mploy ee of Cash Americ a Pawnshop, as one of

the ag g rava

ted robbe ry

victims, and I ng re Calvin as the other. Da rrick B owden, J eff rey Calvin, Stanley Kline, Sandra Kline, and L ouis K line wer e the victims i n t h e a g g ravated

a ssaul t c h ar g e s

. W h i l e t h e j u r y c o n v i c t e d e a c h d e f

e n d an t o f b o t h a g g r a v a t e d r o b b e r i e s, on ly Roberson wa s convicted of all fi v e co u n t s of ag g ravated assault. Parke r wa s convicted of two ag g ravated assaults, one a g ainst Darr ick B owden a nd one ag ainst J ef

fr ey Calvin, and Driver

was
c on vic te d o f t

wo c ounts of

the le sse r- inc lud e d off

e ns e of fa c ili ta tio n o f a g g ra va te d a ssa ult a g a ins t-6-

B ow de n a

nd Jef fr e y Ca lvi n. Th e de fe ndant s argue that th e e vid e nc e wa s in su ff ic ie nt a s to the ir

re sp e c tiv e c on vic tio ns

.

I n consideringthis iss ue, we apply the rule that wher e sufficie ncy of the c onvicting e vidence is challeng ed, the r eleva

nt question of the reviewing court is “whe ther, a fter vie wing the evidenc e in the l ight most favor able to the pr osecution, any rational trier of fa ct could have found the e ssential

e le me nts of

the c ri me be y on d a

re a so na ble do ub t.” J ack so n v . V ir g ini a , 4 43 U. S. 3 07 , 3 19 , 9 9 S. Ct. 27 8 1

, 2 7 8 9 ( 1 9 7 9 ) ; s e e a ls o T e n n

. R. A p p

. P. 1 3 ( e ) ; S tate v

. E v an s , 8 3 8 S. W. 2 d 1 8 5

, 1 9 0

- 92 (Tenn. 1992) ; State v. Anderson, 835 S.W.2d 600, 604 ( Tenn. Crim. App. 1992). This rule applies when the de termination of g uilt is based upon dire ct evide n ce , ci rcumstantial evidence, or a combination of bot h direc t and cir cumstantial evidenc e. State v. Pender g rass, 13 S.W.3d 389, 392- 93 (Tenn. Crim. App. 1999) (c iting State v. Dy kes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990)).

All questions involvi ng the cr edibility of witnesses, the weig ht and value to be g iven the evidenc e, and a ll factua l issues are r esolved by the trier of

fac t. See S tate v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987) . Our supre me cour t stated the rationale for this rule:

This well -s et t l ed rule re sts on a sound foundation. The tria l judge and the jury see the witnesses face to face , hear their testimony

and obser

ve their de meanor on the stand. Thus t he 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 t an d c r e d i b i l i t y 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 t n e s s e s

. In the tr ia l f o r u m a lo n e is th e r e h u ma

na tm o s p h e r e an d

th e to ta li ty

o f th e evidenc e 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. 1963) )

. 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 w it h which a defe ndant is initi ally

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

.
A. Ag gr av at e d Ro bbe r y C onv ic ti ons

Eac h defe ndant was c onvicted of two c ounts of ag g ravated r o b b ery , and we first will consider tho se c on vic tio ns :
Ag g ravated robbe ry

is robbery

as def ined in § 39-13-401:

(1) Ac complished with a dea dly wea pon or by display of any article used or fashioned to lea d the victim to reasona bly believe it to be a

deadly wea pon; or
( 2 ) W h e r e t h e v i c t i m s u f

f e r s s e r i o u s b o d i l y i n

j u r y.
Tenn. Code Ann. § 39- 13-402(a ) (2003); see also Tenn. Code Ann. § 39-13-401( a) ( defining robber y as “the intentional or knowing theft of pr operty from the pe rson of a

nother by violence or putting the person in fe ar” ).

“ De a dly we a po n” is a lso de fi ne d b y

statut e a s:
(A) A fir e ar

m or any thing manif

estly desig ned, made o r ad ap t ed for the purpose of

inflicting de ath or ser ious bodily injury ; or-7- (B ) Any thing that in the manne r of its use or inte nded use is ca pable of causingdeath or

serious bodily

injury

. Tenn. Code Ann. § 39- 11-106(a )(5) (2003) ( emphasis adde d).

As we w ill explain, w e conclude that the evidenc e is sufficie nt as to the ag g ravated robbe ry convictions of ea ch def

endant. Jeffre y

Calvin identified Roberson as one of t hree men who ente red the pa wn sh op we ari ngma sk s and sa id t hat he us e d a hamme r t o b re a k o pe n je we lr y -d isp lay c a se s. Dar rick B owden testified tha t J o h n Carruthe rs was ope rating a ca sh reg ister on the day of the

ro bb e ry , th a t mo ne y

and je we lr y we re take n, and

that the tw o rob be rs he sa w w e re arm e d w ithg un s. I ng re Ca lvi n te sti fi e d th a t sh e wa s ord e re d at g un po int to g e t dow n on the fl oo r an d th a t he r p ur se
wa s g on e a ft e r t

he ro bbers lef

t. F our a dd iti on a l w itn e sse s, Ron a ld M c Ki nn e y , Cl a ud e ll H ug he s, Stanley Kline, and Sandra Kline, made positive ide ntifications of the thre e def endants a nd testified that th e y ha d h and g un s and wr e c ke d the ir “ g e tawa y ” c ar at T hir d a

nd Mit c he ll b e fo re a tte mpt ingto

run on foot. J ohn L ouis G riffin c onfirmed that jew elry rec overe d from the wr ecke d car came from the pawnshop. The Klines also saw Parker drop a bag containing cash and a pistol that wa s l ater

rec overe d by police. Finally

, all three defe ndants wer e discove red at the house whe re H ug hes saw one of the men run.

Viewe d in a li g ht most favora ble to the prosec ution, jurors rea sonably could conc lude that the def endants used de adly

wea pons to intentionally

steal prope rty

from J ohn Carruthe rs and Ing re Ca lvi n. Se e Te nn . Code Ann. § 39- 13 -4 02 (a )( 1) (2 00 3)

. Ac c or din g ly , the pr oo f i s su ff ic ie nt a s to the tw o a g g ra

vate d r ob be ry

c on vic tio ns of

e a c h d e fe nd ant.

B. A gg r av at e d As sa ultCo nvi c ti ons

Ne xt, w e wi ll c on sid e r t

he c on vic tio ns fo r a g g ra

vate d a ssa

ult

. A per son commits agg ravated assault who:

(1) Intentionally or knowingly commits an assault as def ined in § 39-13-101 and:

(A) Ca

uses serious bodily

injury to another; or

(B ) Uses or

display s a dea dly

wea pon[.]

Tenn. Code Ann. § 39-13-102(a )(1) (2003); see also Tenn. Code A nn. § 39-13-101( a)( 2) (pr oviding in r e le va nt p art that a pe rs on c omm its a ssa ult by “ [i]nte nti on a lly or kn ow ing ly c a us [ing ] an oth e r t o
rea sonably

fea r imminent bodily

injury ”).

1. Defendan t Rober son

Roberson ar g ues that the e vidence is insufficient to support his c o nv ic ti o n s f or the a g g ravated assaults of Da

rrick B owden, Jeffre y

Calvin, St anley

Kline, Sandra

Kline, and L ouis Kline.

Dar rick B owden testified that the two men he saw enter the pawnshop wer e ar med with g uns and, whe n order ed to the floor, he feare d he would be shot. J eff rey Calvin identified Roberson as one of the robber s. He said that Rober son had a ha mmer and that he thought the me n wer e “g oing to hurt somebody .” Stanley and Sandra

Kline testified that L ouis was in the ca r with them, and, as they followed the three defe ndants, Roberson quickly turned and fired his ha ndg un at them, striking the hood of their c ar.-8-

Viewe d in a l ight most favor able to the S tate, thi s evidenc e is sufficie nt for a r easona ble juror to c onclude that Roberson intentionally or knowing ly

used or display ed a de adly wea pon to make all fi ve v ict im s re aso nab ly fear im mi nen t bod il y in

ju ry . S ee Ten n. Co de A nn . § 39 -13 -10 2(a) (1) (B) (2003).

2. Defendan t P arker

Parker argues that the e vi d en ce is insufficient to support his convictions for ag g ravated assault ag ains t Darr ick B owden a nd J eff rey Calvin, asserting that beca use there was “ no direc t singul ar thr e a t” ma d e a g a in s t Je f f r e y Ca lv in

, w h o w a s a

w it n e s s to th e r o b b e r

y , th is c o nviction cannot stand.

Dar rick B owden a

nd Shaun Br idge forth both desc ribed one of the robbe rs as he avy set and t e s t i f i e d h e h a d a g u n

. T h r e e o t h e r w i t n e s s e s , S t an l e y K l i n e , S an dr a K l i n e , an d

R o n a l d M c K i n n e y, iden ti f ie d Pa r k e r a s o n e o f th e me n f

le e in g th e w r e c k e d c ar , te s ti f ie d th a t h e h a d a

pistol, and descr ibed him as heavy set. J eff rey Calvin testified that he saw all three robber s and was afr aid they

wer e g oing to hur

t someone.

Vi e we d in

the lig ht m os t f

a vo ra ble to t he State , this e vid e nc e is suf fi c ie nt fo r a r e a so na

ble juror to conclude that Parker knowing ly

display ed a de adly

wea pon to make those in the pa wnshop, including Jeffr ey

Calvin and Dar

rick B owden, fear imminent bodily injury

. See Tenn. Code Ann. § 39-13-102( a)( 1)(B ) (2003)

.

3. De fend antDr ive r ’s F ac ili ta ti on o f Ag gr av at e d As sa ultCo nvi c ti ons

Driver argues that the e vidence does not support his convictions for facilitation of ag g ravated assault ag ainst Darr ick B owden a nd J eff rey Calvin.

Fa cilitation of a fe lony

is defined a s follows: “A per son is criminally respons i b l e for

the fac ilitation of a

felony , if, knowing that another intends to commit a specific f elony , but without the intent require d for c riminal responsibility under § 39 -1 1 -4 02(2), the pe rson knowing ly furnishes substantial a ssistance in the commission of the fe lony .” Te nn. Code Ann. § 39-11- 403(a) (2003).

As previously

set out, we have conc luded that the evide nce w as suffic ient to support Driver’ s
c on vic tio ns fo r a g g ra

vate d r ob be ry

of JohnCarr

uth e rs and

I ng re Ca lvin. Acc or din g ly , it is a lso

su ff ic ie nt t o s up po rt

his c on vic tio ns fo r f

a c ili ta tio n o f t

he a g g ra vated ass aul ts c omm itt e d b y his codef endants duringthe robbe ry . A re asonabl e j u ro r could conclude that Dr iver, if not ar med himself, knew that Parker and Roberson we re a rmed with handg

uns which they

brandished dur ing the robbe ry

and that, by

joining them, he pr o v ided substantial assistance in placing Bow den and J e f f r e y C a l v i ni nf

e ar o f i m m i n e n tb o d i l y i n

j u r y.

II. Se nt e nc ing

At the defe ndants’ sentenc ing hear ing, no proof wa s prese nted by the def endants a nd eac h was sente nced a s a Rang e I , standard of fende r.O n J u n e 7, 2005, t h e G en er al As s embl y a men ded T en n es s ee Code An n ot at ed s ec t i on s 40- 35- 102( 6)

, - 210, 1

an d - 4 0 1

. S ee 2 0 0 5 T en n. P ub

. A cts ch. 3 5 3

, § § 1

, 6

, 8

. T he am en d ed co d e se cti o ns, ho w ev er, d o no t ap p l y i n thi s ca se bec au s e t h e def

en dan t s ’ of

f en s es w er e commi t t ed pr i or t o t h e en ac t men t of t h e s t at u t e an d t h ey di d n o t e l ec t t o be

se n te n c e d un d e r th e 2 0 0 5 a m e n d m e n t.

Ingr e C al vi n t est i f

i ed t hat her s o n, Jef

f rey , wo ul d t urn t en y ears o l d i n A ugust 2 0 0 5

. A cco rdingl y , he was ei ght 2

ye a rs o ld a t t h e ti m e o f t h e ro b b e ry a n d nin e ye a rs o ld a t t h e ti m e o f t h e d e fen d a n ts’ Ju ly 2 0 0 5 trial.

-9- Be fore sentenc i n g, t he trial c ourt discussed, appa rently as to all three defe ndants, which enhanc ement and mitig ating fac tors wer e applica ble: 1

[Th e ] C ourt fi nd s a ft e r r e vie w h e re tha t he c ann ot f

ind a ny mit ig a tin g c ir c ums tanc e s. I t’s been disc ussed during t he trial and so forth that certa in defe nses wer e put up, but Ihave not be en pre sented a ny thing he re in wr iti n g n o r have Ihad any proof other than statements about possible mitigation.

The Court’s re viewing the enha nceme nt f actor s and finds that there could be

se ve ra l. I ’m

g oin g to l ist so me that I ’m g oin g to i nc lud e he re . O ne be ingthe of fe ns e involved more than one victim. And [ an]other beingnumber five

, t h at a victim of the offe nse wa s particular ly vulnera ble. And the r eason f

or that is beca

use we have a y oung child of nine y ear s of ag e and also a nother pa rty in here who was a

person 2 wh o h a d a

me nta l di sa

bil ity wh o w a s a lso a

vic tim

. An d a lso that the

. . . d e fe nd ants employ ed fire arms in the commi ssion of t hese crimes, even thoug h that was pa rt of the . . . ag g ravated robbe ry char g e. And a lso that the se defe ndants seeme d to have no hesitation ab o u t co m m i tting a c rime whe n the risk of human life was hig h and people we re thre atene d and people we re in fe ar of their life. The crime a lso was

c omm itt e d und e r c ir c ums tanc e s in wh ic h th e re wa s a

po tent ia l f

or bo dil y inj ur y to

sever al of these victim s

. An d t hat would be unde r enha nceme nt number 17, I believe, unde r the 40-35- 114.

The trial c ourt then sentenc ed R o b erson to eight y ear s for e ach a g g ravated robbe ry
c o n v i c t i o n , t h e m i n i m u m s e n t e n c e f o r a R an g e I, s t an d ar d

o f f e n d e r c o n v i c t e d

o f a C l a s s B f e l o n y. See Te nn. Code Ann. § 40-35- 112(a) (2) ( 2003). L ikewise, the court imposed minimum sentences of three y ear s eac h for the aggra v at ed as saults ag ainst Stanley Kline, Sandra

Kline, and Da

rrick Bow den. See T enn. Code Ann. § 40- 35-112(a )(3) . Specifica lly apply ing e nhance ment fac tor (5), see Te nn. Code Ann. § 40-35- 114(5) ( 2003), the c ourt enha nced the s entenc e for

the ag g ravated assault of L ou is K li n e b e c a u s e h e w a s a

“ me n ta l[ ly ] d e f

ic ie n t p e r s o n ” an d

th a t f o r th e a g g r a v a te d assault of Jeffre y

Calvin beca

use of his y oung ag e. This was the only enhanc ement fa ctor mentioned by the court during the sentenc ing of Roberson. Howeve r, on a sente ncing chec klist, i ncluded in the

rec ord on appe al, the cour t chec ked the a dditiona l en h an ce m en t fac tors (4) a nd (11) a s being applicable

. See Te nn. Code Ann. § 40-35- 114(4), ( 11) (2003) . The State’s a naly sis on appeal assumes that the trial c ourt additionally applied enha

nceme nt fac tors (10) and (17), whic h the cour t mentioned bef

ore se ntencingany

of the de fenda

nts. A ll seven sentenc es we re or dere d to be serve d

consec utively

beca use the de fenda

nt was a “ dang erous pe rson and . . . a dang er to this society and to this area.”

Under fac tor (5), the only enhanc ement fac tor specific ally discussed by the trial court dur ing the s entenc ing of

Roberson, the c ourt ca

n enhanc e a de fenda

nt’s sentenc e whe n “a vic tim of the offe nse wa s particular ly

vulnera ble b ec au s e o f ag e or phy sical or menta l disabilit y .” Te nn. Code Ann. § 40-35-114( 5) (2003). Although it is undi sputed that J eff rey Calvin was eig ht y ear s old at the tim e of the of

fe ns e and that L ou is Kl ine ha d Do wn sy nd ro me , fa c tor (5 ) wa s no t a pp lic a ble be c a us e the State did not present pr oof that these vic tims were in fa ct “‘ particula rly vulnera ble,’ i.e.,O n ap p eal

, t he Stat e ass um es t hat enhancem ent f act o rs (10 ) a nd (17 ), m ent i o ned by t he co urt duri ng 3

i nt rod uct o ry remarks, were ap p l i ed and agrees wi t h t he d ef end ant t hat ap p l i cat i o n of t ho se f act o rs was er ror.

-10- incapa ble of re sisting, summoning help, or t estifying ag ainst the perpetrator .” State v. Adams, 864 S.W .2d 31, 35 (Tenn. 1993)

. We note that J eff rey Calvin testified during the trial, and the re is no pr oo f that he wo uld have re a c te d dif fe re ntl y duri ng the ro bb e ry ha d he be e n an a du lt. As fo r L ou is Kline, the State has ma de no re fer ence s to the rec ord to show that his condition was such that he could not testify , altho u gh h e d i d not do so. L ikewise, the State ha s not shown that L ouis Kline

wo uld have re a c te d d if

fe re ntl y to t he sh ot b e ingfi re d at th e ve hic le in w hic h h e wa s a pa sse ng e r i n the bac kseat ha d he not had Dow n s y n d ro m e. Ac cording ly , we a g ree with the defe ndant and the State and conc lude that the State did not establish a basis for application of enhanc ement fac tor (5) as to either of

these victims.

As we ha ve set out, the sentenc ing chec klist lists a dditional enhance ment fac tors (4) a nd (11) as being applicable and, in remarks made prior to sentenc ing a ny of the de fenda

nts, the court see med to s ug g e st that e nh anc e me nt f a c tor s ( 10 ) a

nd (1 7) we re a

pp lic a ble to a t le a st s ome of

the de fe nd a nts

or of fe ns e s. Th is c ourt

pr e vio us ly

ha s h e ld t

hat sen ten cin g c he c kli sts us e d b y the She lby

County Criminal Court, with check mar ks being place d beside a pplicable en hance ment and mitigating fac tors and re as o n s for c onsecutive se ntencing , do not satisfy the mandator

y require ments of Tenne ssee Rule of Criminal Procedur e 32(c)(1)

. See S tate v. Christopher C ampbell, No. W 2001- 01916-CCA-R3-CD, 2002 WL 826076, at *1 (Te nn. Crim. App. Apr. 22, 2002).

I n vie w of the fa c t th a t th e tr ia l c ourt e rr e d in a pp lyinge nh anc e me nt f

a c tor (5 ) a nd be c a us e it is unclear whic h other fa ctors, if a ny , wer e applied, w e re mand for res en t en cing of Roberson’ s convictions for the ag g ravated assaults of Jeffre y Calvin and L ouis Kline.

The c ourt sentenc ed Parke r to the minimum sente n ce s for the two a g g ravated robbe ry
c on vic tio ns a nd

the a g g ra

vate d a ssa

ult in w hic h D arr ic k B ow de n w as the v ic tim . T he on ly conviction for w hich P arke r receive d in excess of t he mi nimum sentenc e was that for the a g g ravated assault of Jeffre y Calvin, for which he was sentenc ed to five y ear s. At the sentenc ing he aring , the court did not identify

any enhanc ement fa ctors justify ing t h e in c r e a sed sentenc e, althoug h fac tors (4), (5), (10), and (11) were marke d on the s entenc ing c hecklist as beingapplicable . The c ourt order ed that all sentenc es be se rved c onsecutively but did not give r easons why this was being done.

On appe al, the State assumes that the trial court utiliz ed these four e nhance ment fac tors, as well as fa ctors (10) and (17) which were me ntioned in introductory rema rks, in setting a

five-y ear sentenc e for the defendant’s ag g ravated assault of J eff rey Calvin, ag ree ing the n with the defe nse that none of the five we re a

pplicable. We dec line to determine w hether any of t h es e fac tors wer e applicable since it is unclear what enha

nceme nt fac tors wer e applied in incr easingthis sentence. Acc ording ly , we r emand Par ker’ s conviction for the aggr av at ed assa ult of J eff

rey Calvin for

re s en t en ci n g.

As to Driver , the trial cour t imposed the minim um sentencefor e ach of his convictions except that for fac ilitation of the ag g ravated assault of Jeffre y Calvin, for which the defe ndant re ceive d a sentenc e of four y ear s, two y ear s in ex cess of the minimum. No separate explanation was g iven as to why the sentenc e was enhanc ed. Howeve r, on a sentenc ing chec klist, enha nceme nt fac tors (4), (5), ( 10), and ( 11) we re c hecke d as beingapplicable

. As to fac tor (5), t he additional explanation 3 was ha ndwritten: “y oung child - mental.” T h e co u rt order ed that all sente nces be serve d

consec utively “d u e t o t h e natur e of the crime a nd the cha

rg es beinginvolved here in the sever al incidents that we had ar ising out of one set of fa cts.” In view of the fac t that it is unclea r whichW e n ot e t h at
, at t h e h ea r i n g on t h e mot i on f or n ew t r i al

, t h e t r i al c ou r t a ck n owl edg ed k n owi n g M r

. K l i n e on 4

a pr of es s i onal bas i s but s t at ed t her e h ad been no conv er s at i on about t he cas e.

-11- enhanc ement fa ctors we re a p p lied in the sentenc ing f or fa cilitation of the ag g ravated assault of J ef fr ey C al v i n , we re m an d

t h i s co n v i ct i o nfo r r es en t en ci n g.

I n our re view of the defe ndants’ cla ims that the trial court er red in orde ring cer

tai n of the sentences to be serve d consec utively , we note that the State ag ree s with the defe ndants’ view that the trial cour

t ga ve insuffic ient rea sons for conse cutive sente ncing for a n y o f t h e defenda nts. For

rea sons which we w ill ex plain, we a g ree with the analy sis of the parties. In sentenc ing, th e cour t found that Roberson wa s “a da ng erous pe rson and . . . a

dang er to this society

and to this area ” and order ed that Dr iver’s sentenc es be serve d consec utively beca use of “the nature of the c rime and the char g es beinginvolved here in the s ever al incidents that we had ar ising out of one set of fa cts.” No

re a so n w a s g ive n f

or se nte nc ingPark e r t o c on se c uti ve se nte nc e s. At the he ari ngon

the de fe nd a nts ’ motion for a new tria l, the court off ere d a fur ther e x planation for c onsecutive se ntencing , stating that all three defe ndants “we re da ng erous pe ople and that they wer e in their c apac ity of being dang erous pe o p le s h o u ld

b e s e n te n c e d

c o n s e c u ti v e ly

[s ic ]. ” T e n n e s s e e Co d e A n n o tate d s e c ti o n4 0

- 3 5 -115 allows consec utive sentenc es to be imposed whe n the sentenc ing c ourt finds by a pre pondera nce of the evidenc e that “[t]he defenda nt is a dang erous of

fende r whose be havior indicates l i ttle or no reg ard f or human life, a

nd no hesitation about committing a c rime in which the risk to huma n life is high.” Tenn. Code Ann. § 40- 35-115(b) (4).

We ag ree with the defe ndants and the State t h at the trial cour t did not make sufficie nt finding s to justi fy

imposit ion of consec utive sentenc es. Ac cording ly , we r emand to the trial court for a deter mination as to whether the defe ndants’ sente nces sh o u l d b e served conc urre ntly or
c o n s e c u t i v e l y.

III. Whether the Trial CourtErre d by Not Time ly

Di sc los ing it s P r iorRe lat ion ship with St anl e y K line

Parker argues that his rig ht to a fair tr ial was a bridg ed bec ause the court, af ter the tria l had beg un, disclosed its prior relationship wit h witness-vi ct i m S tanley Kline, saying “ this disclosure should have be en made prior to trial in order to g ive counsel for [Parker] the ability to file or eve n consider a

motion for the judg e to have resc ued [sic] himself.” See Te nn. Ct. Crim . App. R. 10(b) 4 (20 0 6 ); State v. Maddin, 192 S.W.3d 558, 561 (Tenn. Crim. App. 2005) (stating that “[w]hen an iss ue is r a ise d f

or the fi rs t time on a

pp e a l, it is ty

pic a lly wa ive d” ). We n ote that, s inc e Mr . K lin e is an attorne y

prac ticing in Me mphis, it is not unexpected that the court was acquainted with him. No ref ere nce is made to the record as to wher e in the leng thy trial this matter was discusse d or ar g ued by counsel at the time. Accor dingly , this iss ue is waive d.

CO NC LU SION

Ba sed upon the for eg oing a uthorities and re asonin g, we r emand to the tria l court for

rese ntencingof Parke r for the ag g ravated assault of Jeffe ry Calvin; for rese ntencingof Drive r for f a c il it a ti o n o f th e a g g r a v a te d a s s a u lt o f Je f f r e y Ca lv in ; f

o r r e s e n te n c in g o f Ro b e r s o n a s to the aggr av at ed assaults of Jeffre y Calvin and L ouis Kline; and for a deter mination as to whether the de fe nd ants ’ s e nte nc e s sh ou ld be se rv e d c on c ur re ntl y or c on se c uti ve ly

and , if the la tte r, a

pp ro pr ia te fi nd ing s o f f

a c t.

___________________________________ AL AN E. GL ENN, JUDGE