IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs April 18, 2012

STATE OF TENNESSEE v. ANTONIO JAMARC WARFIELD

Appeal from the Circuit Court for Maury County

No. 19409 Robert L. Jones, Judge

No. M2011-01235-CCA-R3-CD - Filed October 5, 2012

A Maury County jury convicted appellant, Antonio Jamarc Warfield, of especially

aggravated robbery, a Class A felony, and especially aggravated burglary, a Class B felony.

The trial court sentenced him to serve an effective sentence of twenty-one years in the

Tennessee Department of Correction. On appeal, appellant argues that the evidence was

insufficient to support his convictions. After reviewing the record, the parties’ briefs, and

applicable law, we affirm the conviction of especially aggravated robbery, modify the

conviction of especially aggravated burglary to aggravated burglary, and remand for entry

of a judgment on the aggravated burglary conviction consistent with this opinion.

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

Modified and Remanded.

ROGER A. PAGE, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and

ALAN E. GLENN, JJ., joined.

Ronald G. Freemon, Columbia, Tennessee, for the appellant, Antonio Jamarc Warfield.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel;

Mike Bottoms, District Attorney General; and Daniel J. Runde, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

I. Facts

A Maury County grand jury indicted appellant for attempted first degree murder,

especially aggravated burglary, and especially aggravated robbery. The Maury County
Circuit Court held a jury trial January 24-26, 2011, at which the parties presented the

following evidence:

Officer Keith Falls of the Columbia Police Department testified that he was the first

officer to arrive at the scene of this incident. He waited until the next officer, Officer Stoker,

arrived at the scene before going inside the residence. Officer Falls said he waited for

Officer Stoker because of “the nature of the call” and what he observed as he approached the

residence. As he entered the residence, Officer Falls noticed that the door was ajar and saw

a spent shotgun casing in the doorway. He also heard footsteps coming from inside the

residence. Officer Falls eventually collected the shotgun shell and placed it in an evidence

bag.

Officers Falls and Stoker entered the residence and conducted a protective sweep,

looking for suspects and victims. Officer Falls did not see anyone as he walked through the

residence. The door to the first bedroom was closed, but the officers heard noise come from

inside that bedroom. They opened the door and saw the victim on the bed with “red liquid”

on his face. He was leaning over and holding his hands to his face. The officers attempted

to speak with him, but he was unable to respond. Officer Falls said the victim arose, walked

out of the room and into the hallway, where he sat down. Using the diagram, Officer Falls

testified that the victim sat where the diagram indicated a pool of blood in the hallway.

Officer Falls testified that he thought the victim had been shot with a shotgun based

on the shell casing he saw and the victim’s injuries. He said the victim had “quite a traumatic

opening around the right jaw and a bunch of red dot wounds.” Officer Falls looked inside

the bathroom of the residence and saw it was “covered with [a] red liquid substance.” He

also observed what he believed to be shotgun holes in the wall above the shower. He

collected three shotgun pellets from the holes and logged them as evidence. Officer Falls did

not find pellets in any other room in the home. After he collected the pellets, Officer Falls

swabbed the red substance and put the swabs in an evidence box. Officer Falls stated that

emergency medical services (“EMS”) arrived and transported the victim to the hospital

approximately five minutes after he and Officer Stoker discovered the victim.

On cross-examination, Officer Falls testified that the evidence the State entered

through him was already marked because he testified at another defendant’s trial for this

shooting. He stated that he did not request a fingerprint analysis of the shell casing. He

further stated that he did not attempt to find any fingerprints in the residence. To his

knowledge, law enforcement never found the shotgun. Officer Falls did not know how many

weapons the perpetrators used in this shooting and said he did not find any evidence to

indicate that the perpetrators used any other weapon besides a shotgun.

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Officer Bryon Stoker with the Columbia Police Department testified that he was

working during the early morning hours of September 29, 2009, when a dispatch officer

directed him to go to 1117A Comstock Street. He arrived at the scene around 2:30 a.m.

Officer Falls was already at the scene when Officer Stoker arrived, and Officer Paul

McCormick arrived shortly after Officer Stoker. Officer Stoker observed a spent shotgun

casing next to the door. Officer Stoker identified a photograph he took of the spent casing.

Officer Stoker said the officers searched the residence to ensure that no one else was

inside. He stated that as they “entered the residence, [they] cleared the living room and . . .

noticed in the hallway there was an enormous amount of blood.” The officers went farther

into the residence and heard noises coming from the first bedroom. The door was closed, and

the officers opened the door so they could secure the room. When they opened the door, they

saw the victim, who was bleeding, on the bed. The victim then arose and walked out of the

bedroom and into the hallway. When he reached the hallway, he “went to the ground.” EMS

arrived and transported the victim to the hospital. Using a diagram of the home, Officer

Stoker identified where the victim was lying in the hallway and where the victim’s blood had

pooled in the hallway. He further identified and described photographs he had taken of the

crime scene.

On cross-examination, Officer Stoker testified that he was the only police officer who

photographed the crime scene. He stated he photographed the bathroom door “[b]ecause of

the damage to the door.” He said at the time he took the photograph, he did not have any

reason to believe the damage to the door had anything to do with the incident. One

photograph depicted shotgun pellets lodged in the bathroom wall. Officer Stoker estimated

the pellets were “pretty high” because they were “a little bit over his head.” However, he

said he could not tell whether the victim was standing or lying down when the shotgun blast

occurred. Officer Stoker stated that the lower portion of the bathtub “[p]robably” did not

have any shotgun damage. The officers searched the home for further evidence of a shotgun

blast but did not find any.

On redirect examination, Officer Stoker testified that “something red” was in the tub.

To his knowledge, the officers did not recover the shotgun used in this incident. On recrossexamination, Officer Stoker testified that he did not know how many guns were involved in

this incident or what other types of weapons the perpetrators may have used. He said the

bathroom contained evidence of at least one shotgun blast, and he did not discover evidence

of a shotgun blast in any other room.

Officer Paul McCormick of the Columbia Police Department testified he was working

the “midnight shift patrol” on September 29, 2009, when a dispatch officer requested that he

back up Officers Keith Falls and Bryon Stoker at 1117A Comstock Street. Officer

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McCormick said he had an officer in training with him, and they arrived at the scene around

2:30 a.m. As Officer McCormick entered the residence, he observed a shotgun shell casing

lying near the front door. As he went farther into the home, he observed the victim, Thomas

Edward Jones, in the hallway, appearing to have been shot in the face. Officer McCormick

attempted to talk with the victim, but he could not discern what the victim was saying.

Officer McCormick further testified that he assisted in supervising and securing the

crime scene and that he drew a diagram of the crime scene. He identified the diagram he

drew, which depicted the layout of the residence. Officer McCormick marked several areas

on the diagram where officers found a substance that appeared to be blood. He also noted

on the diagram that officers found teeth in the first bedroom. The officers also found shotgun

pellets in the upper corner of the shower in the bathroom.

On cross-examination, Officer McCormick testified that as he entered the residence

and turned into the hallway, the victim exited the first bedroom and lay in the hallway. He

said the victim attempted to rise several times but was unsuccessful. Officer McCormick

stated he did not see the victim go into the bathroom while he was there.

Officer McCormick further testified that the pellets the officers found in the shower

were at the “average height of a shower.” He could not say whether they would have gone

above the victim’s head. He explained that the pellets came from a shotgun and “were

spread.” Officer McCormick did not find any evidence of a shotgun “blast” in the bedroom.

The diagram of the crime scene showed areas Officer McCormick called “blood pools.”

Although he had not yet tested the substance, Officer McCormick labeled the areas as “blood

pools” because, based on his experience, that is what he believed them to be. Officer

McCormick witnessed the victim bleeding in the hallway causing a pool of blood. He did

not know in which room the victim had been shot but stated that most of the blood was

between the bathroom and bedroom.

Amanda Thompson identified the appellant and testified that she had known him for

approximately one year. She said his nickname was “K-Sneaky.” She had also known David

Buckhanon, who was also charged and tried separately for this incident, for about a year and

his nickname was “Lay-lo.” Thompson testified that at the time of the incident, she had

known the victim, whom she called “Peanut,” for more than a year. She stated that she used

to date the victim’s former roommate. According to Thompson, in September 2009, the

victim was living on Comstock Street with Chastity Price and Sarah Williams. She said the

victim was dating Price. Thompson said she, Buckhanon, and Christopher Davis visited the

victim’s home “when it first got dark outside” on September 28th. She said the victim was

“[s]itting on the couch smoking meth” and drinking “[s]ome kind of liquor with a red lid”

when they arrived. She later testified that the victim finished smoking his methamphetamine

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shortly after she arrived at his house. According to Thompson, the victim “finished floating

the boat that he had, he crumbled it up, he threw it way, he rolled a blunt[,] and he gave [her]

a Xanax.” The group stayed at the victim’s home for approximately thirty minutes, “[l]ong

enough for an argument to occur and [for her to] say, if y’all are riding with me, get in this

car, let’s go.” She said the argument was between the victim and Davis.

Thompson stated she, Davis, and Buckhanon left the victim’s home and went to the

Woodland Trailer Park. Thompson stayed there “for a second” before leaving to go to a

friend’s home. When she returned to the Woodland Trailer Park, she spoke with appellant

and Buckhanon. Thompson and appellant discussed appellant’s borrowing her vehicle, and

she ultimately allowed appellant and Buckhanon to borrow her vehicle. Appellant did not

tell Thompson where he was going with her vehicle. She said she did not actually see who

drove her vehicle because she left it parked in the driveway with the keys in the ignition and

walked to a friend’s home on the next street. Although she did not see them leave, someone

told Thompson that appellant and Buckhanon left the trailer park together. After Thompson

left her friend’s home, she found her car parked in Davis’s driveway. She did not know who

returned her vehicle. Thompson testified that she did not have any weapons in her car when

she allowed appellant to borrow it and did not see any weapons in it when she recovered it

from Davis’s driveway.

On cross-examination, Thompson testified thatshe and Buckhanon had drunk alcohol

and “smoked weed” before and after they went to visit the victim. She stated that Buckhanon

was not involved in the argument between the victim and Davis until Buckhanon tried to tell

Davis to leave the victim’s home. Thompson said when Buckhanon got involved, the victim

called him a “crab.” She explained that “crab” was “a disrespect[ful] word to . . . Crips.”

Thompson stated that, as far as she knew, Buckhanon was not affiliated with any gang and

did not get mad when the victim called him a crab.

During the argument between the victim and Davis, Thompson told Buckhanon and

Davis that it was time to leave, and they all went outside. According to Thompson, the

victim went outside as well and began digging in the bushes. Thompson thought the victim

was upset with Davis and was going to get a gun, so she, Buckhanon, and Davis left. They

did not discuss the victim’s digging in the bushes after they left. She stated that the only

subject they discussed in the car was Price’s getting the victim’s name tattooed on herself and

Davis’s smacking her in the face for doing so.

Thompson later testified she did not see a gun by the bushes and agreed that the victim

could have gone to the bushes for many reasons. She stated she had never before seen the

victim hide a gun or any other type of weapon around the bushes. She further said she knew

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“it was a good idea to leave” when the victim was digging in the bushes because she had seen

the victim with a gun on several prior occasions.

Thompson testified that appellant did not seem angry when he asked to borrow her

vehicle because “he wasn’t there for the argument to be mad over anything.” She did not ask

appellant where he was going with her vehicle because they “had a little fling going on, [and]

if he wanted to use [her] vehicle, he could use it.” She also had a “fling” with Buckhanon

sometime before the incident. Thompson said she would usually see Buckhanon whenever

he was in Columbia, Tennessee, but after the incident, she did not see him anymore.

However, Thompson had his telephone number and could contact him if needed. Thompson

spoke with appellant the day after the shooting and said he did not mention anything about

the previous night and did not appear to be nervous.

Sarah Williams testified that at the time of the incident, she had known Buckhanon

for approximately four to six years. She also knew appellant, whom she called “K-Sneaky,”

and identified him in the courtroom. On September 29, 2009, Williams lived at 1117

Comstock Street, Apartment A, with the victim and Price. The victim and Price slept in

“[b]edroom 2, the small bedroom[,]” together and Williams slept in “bedroom 1.” She

identified photographs of her apartment. Williams viewed the diagram of the apartment,

which showed her couch in the middle of the living room, and said it was incorrect because

the couch was against the wall on September 29th. She also viewed the photograph of her

bathtub taken by Officer Stoker. She stated that when she left her home on September 29th,

her bathtub had a shower curtain hanging on a shower rod, but in the picture it did not.

Williams stated that she was “in and out” of the apartment all day on September 28,

2009. She remembered that many people were at her home that day. However, she could

not specifically remember the exact individuals who were there. She said Buckhanon

frequently came to her apartment, but appellant had only been there once. Williams and

Price left the apartment between 9:30 and 10:00 p.m. Williams said Tiffany Barnett, Jessica

Dexter, and Thomas Edward Jones were at the apartment when she left.

Williams testified that she returned to her apartment after 12:00 a.m. She went inside

the apartment before Price, who was retrieving something from the backseat of a vehicle.

When Williams entered the living room the lights were off, but the television provided a little

light. She noticed a bottle tipped over by a chair in front of the television where the victim

usually sat. She said she saw something red on the floor and assumed the victim had vomited

because he had started drinking a new type of alcohol that came in different colors. She

stated that “[i]t never came to [her] mind that it was blood[.]” Williams yelled, “Bra, are you

okay?,” to the victim, but he did not answer. She went into the hallway and saw “someone

laying [sic] in [her] bathtub with half their face missing.” Williams did not immediately

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recognize the victim because she could notsee his face and “because of the incidents that had

occurred earlier in the day.” When she saw him in the bathtub, she thought the victim was

dead. She told Price to get back inside the car, and they left to call 9-1-1. The 9-1-1

dispatcher advised Williams to remain where she was and not return to the scene. According

to Williams, before the shooting, the victim could see and did not have any vision problems.

On cross-examination, Williams testified that everyone was high before she left her

apartment. They had been “smoking meth and crack,snorting cocaine, taking Xanaxes, [and]

smoking weed.” She described the victim as “just as high as a bird could be” but later said

she could not remember his condition because she was “so messed up.” Williams was asleep

in her bedroom when the argument between the victim and Davis about Price’s having the

victim’s name tattooed on her wrist occurred; however, she said she was aware of the

argument. According to Williams, Davis “thought that [the victim] had [her and Price]

smoking meth, when in reality, [they] were the ones that got [the victim] smoking meth.”

She said Price was in her own room with a couple of people during the argument. Price

yelled for Williams and told her that Davis had hit her. Williams and the victim went into

Price’s room. Williams stated that she then left Price’s room and let the victim handle the

situation. She further stated the victim handled it by telling everyone “to get the hell out of

the house.” Williams recalled that Buckhanon was at her apartment the day Davis hit Price,

but she did not know whether that was the day of the incident. Williams also recalled that

on the day the victim was shot, the victim was involved in a “[v]ery heated” argument over

the telephone. She stated that each person was “on speakers screaming at each other.”

Detective Joey Gideon with the Columbia Police Department testified that he

investigated the shooting in this case. At approximately 3:15 a.m. on September 29, 2009,

his patrol officer contacted him and advised him of the incident. Upon his arrival at the

scene, Detective Gideon spoke with the police officers who were already there. Officer Falls

briefed him and walked him through the scene.

Detective Gideon stated that when he entered the residence, he saw “a red liquid

substance on the floor around the bathroom.” He also saw a red substance on the floor of the

first bedroom. Detective Gideon did not recall seeing teeth in the bedroom. EMS had

already transported the victim to the Vanderbilt University Medical Center when Detective

Gideon arrived. After the walk through, police officers informed Detective Gideon that they

were holding Williams and Price in separate locations. Detective Gideon had them

transported to his office for an interview.

Detective Gideon recalled that Detective Orlando Cox, who assisted him with the

investigation, interviewed the victim in early October 2009. Based on Detective Cox’s

interview with the victim, Detective Gideon focused his investigation on appellant and

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Buckhanon. Detective Gideon identified a photograph of appellant and stated that it

accurately depicted appellant.

On October 7, 2009, officers “pick[ed] up” appellant for questioning. Detective

Gideon advised appellant of his Miranda rights before interviewing him. Appellant assured

Detective Gideon that he understood his rights and waived them. Appellant did not initially

admit any involvement in the shooting. Appellant eventually gave a statement denying any

involvement in the crime. Detective Gideon testified that appellant remained in police

custody after he gave his statement. While appellant was in custody, authorities continued

to discuss the incident with him. Appellant eventually gave an oral statement to Detective

Cox.

Detective Gideon recalled that the victim alleged that appellant and Buckhanon took

money and marijuana from the victim’s home. He said the officers never recovered these

items. He also said officers never recovered the weapon used in the shooting.

On cross-examination, Detective Gideon testified that based on his investigation, he

believed the motive for the shooting was robbery. He stated that in addition to appellant and

Buckhanon, he suspected Thompson of being involved in the crime after speaking with

appellant. Detective Gideon attempted to interview Thompson several times but could not

obtain an interview with her. Detective Gideon stated that appellant did not initially admit

his involvement. Detective Gideon also interviewed Buckhanon.

Detective Gideon testified that he went to the scene to “take a look around.” When

he arrived at the scene, the red substance was no longer on the floor. However, he saw

evidence of a shotgun blast in the bathroom. Detective Cox believed the blast area was

“midway up the wall.” He did not see any evidence of a shotgun blast in the bedroom or

recover any shotgun pellets from the bedroom.

Columbia Police Department Detective Orlando Cox testified that he assisted in the

investigation of this case. As part of his investigation, he spoke with Price and Williams.

He also spoke with the victim on October 7, 2009. Detective Cox said the victim was in

serious condition. The victim advised Detective Cox that he was blind and had a

tracheotomy. Based on his discussion with the victim, Detective Cox developed appellant

and Buckhanon as suspects.

Detective Cox spoke with appellant at the police station in the detective’s interview

room. Detective Cox did not recall whether he was in the room when the other detective

gave appellant his Miranda warnings and did not ask whether appellant had received the

warnings because he saw the “Miranda rights warning” on the table. Detective Cox said he

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left the interview room during the interview process. His lieutenant later advised him that

appellant wanted to speak with him. Detective Cox returned to the interview room and spoke

with appellant. When he spoke with appellant, Detective Cox knew that Buckhanon was also

potentially involved. Detective Cox testified that appellant orally made his statement while

he noted what appellant said.

Appellant told Detective Cox that he was looking for a “quick lick,” which meant a

robbery. Detective Cox stated that appellant told him he knew the victim had money and

drugs, so he and “an unknown black male” devised a plan to rob the victim. Detective Cox

testified that appellant said he and the “unknown black male” “went up to about a block away

from the victim’s house on Comstock near College Hill School, then . . . [appellant and the

‘unknown black male’] got out.” Detective Cox asked appellant what kind of weapon they

used and appellant told him it was a shotgun with a long barrel. Appellant said the shotgun

was in the vehicle when he got into it. When appellant and the “unknown black male” exited

the vehicle, appellant had possession of the shotgun. Appellant told Detective Cox that he

and the “unknown black male” “walked up behind the house [and] heard the victim talking

on the porch. [T]hey walked to the front, [and] told [the victim] to . . . drop it.” The victim

dropped money and drugs, and appellant laid the shotgun down to collect the money and

drugs. Appellant said the “unknown black male” picked up the shotgun, and appellant told

him it was time to go. Detective Cox stated appellant told him that the “unknown black

male” “forced [the victim] into the house. [The victim] ran into the bathroom and [the

‘unknown black male’] followed him to the bathroom. . . . [the ‘unknown black male’] used

the shotgun to hit it against the door and kick the door in.” Appellant told Detective Cox the

“unknown black male” made the victim get into the bathtub and then shot him. Appellant

further told Detective Cox that he asked the “unknown black male” why he shot the victim,

panicked, and ran to the car. Appellant and the “unknown black male” drove to the

Woodland Trailer Park and appellant exited the vehicle. Appellant told Detective Cox that

he received $55 from the robbery, and the “unknown black male” received $45. He further

told Detective Cox that he smoked the marijuana and sold the Xanax he stole from the

victim.

On October 9, 2009, Detective Cox requested that appellant return to his office for

further questioning about the identity of the “unknown black male.” Appellant told Detective

Cox the same version of events that he gave during the first interview. Detective Cox

testified that he could “just tell that there was something weighing on [appellant’s] soul” and

asked him to tell the truth. Appellant advised Detective Cox that appellant’s cousin,

Demontrae Smith, could get him to tell the truth. Detective Cox called and spoke with Smith

on the telephone. Appellant spoke with Smith and a woman whom appellant identified as

his aunt. As a result of that conversation, appellant told Detective Cox that Buckhanon was

the “unknown black male” who shot the victim. Appellant also told Detective Cox that he

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“jumped in the way”of the victim and begged Buckhanon not to shoot him. According to

appellant, Buckhanon told him to get out of the way. He said the victim was grabbing

appellant’s shirt, and the victim pulled appellant into the bathroom. Appellant told Detective

Cox that Buckhanon ordered the victim into the bathtub and struck the victim with the butt

of the shotgun. Appellant stated to Detective Cox that the victim fell into the tub, released

his grasp on appellant’s shirt, and attempted to escape. Appellant further stated to Detective

Cox that he told Buckhanon, “[L]et’s go, let’s go. We got what we came for.” However,

Buckhanon stated that he was going to kill the victim. Appellant told Detective Cox he ran

out of the house, covered his ears, and heard a shot. Appellant ran toward College Hill

School, took off his shirt, and hid in some bushes. He stated that Buckhanon found him and

told him that he “better not tell anybody what happened.” Appellant told Detective Cox that

he and Buckhanon then got into the vehicle. Appellant further told Detective Cox that

Thompson was driving the car and knew what was going to happen. Appellant advised

Buckhanon to “get rid of the shotgun,” but Buckhanon refused. Appellant asked Thompson

to let him out of the vehicle. Thompson pulled over to let appellant out, but Buckhanon

pulled a shotgun on her and made her continue driving to the Woodland Trailer Park.

Detective Cox testified that appellant told him that he had also told Smith what

happened. Detective Cox said he never interviewed Buckhanon. However, police arrested

Buckhanon a couple of weeks later.

On cross-examination, Detective Cox testified that he could tell that appellant

“[w]anted to come clean” when he interviewed him. Appellant did not tell Detective Cox

where he got the information that the victim had money and drugs. Detective Cox said to his

knowledge, appellant had not been at the victim’s home the evening before the shooting. He

said Buckhanon had been at the victim’s house for “a little while” the evening before the

shooting. He said appellant did not say Thompson was driving the vehicle until the second

interview. Through his investigation, Detective Cox learned that Thompson was also at the

victim’s home the evening before the shooting.

Detective Cox stated that based on his interview with appellant, he did not believe

appellant and Buckhanon discussed going inside the victim’s home. He said appellant’s

statement caused his office to try to seek out the other offender, Buckhanon, and to try to

determine the facts surrounding the incident. Detective Cox testified that through his

investigation, he learned that Buckhanon might have gone into the victim’s home because

he and the victim “had a little feud.” He said the feud supposedly began when the victim and

Buckhanon were incarcerated together. Detective Cox furthersaid he believed that appellant

wanted “to get a quick lick, not get anything further than that,” and did not plan to kill the

victim. Detective Cox stated that appellant advised him that the victim was sitting outside

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on the porch and that was where the robbery occurred. To his knowledge, appellant and

Buckhanon did not take anything from inside the home.

The victim testified that he had known appellant and appellant’s family for a long

time. He knew appellant through appellant’s cousin, Smith. The victim further testified that

he had not known Buckhanon for long before September 29, 2009. He had “seen his face

around town, in the trailer park [in which they] used to kick it and stuff like that.”

The victim stated he had been living in an apartment with Price and Williams on

Comstock Street for approximately two weeks on September 29th. The victim said on that

day, he and Price stayed at home and watched football. Later, Buckhanon, Davis, Dexter,

Barnett, and “Maleak’s sister” visited his home. The victim stated that Buckhanon stayed

for less than an hour. The victim testified that he got into an argument with Davis because

Price had the victim’s name tattooed on her right wrist. The victim said he did not “really

say [anything] to [Buckhanon] because [Buckhanon] didn’t have [anything] to say to him[.]”

The victim denied that any “bad blood” existed between him and Buckhanon.

The victim testified that he had been “rolling blunts [and] smoking blunts” and had

taken a couple of Xanax tablets on September 28th. He denied smoking methamphetamine

and crack that day. The victim stated that during the early morning hours of September 29th

he was drinking premixed gin. He said the drink was “Red Dragon,” and it had a red color.

The victim stated he did not vomit the drink in any part of his home, and the red substance

that officers found in his home was his blood. The victim said the only money and drugs in

his possession were $101, marijuana, and couple of Xanax pills. The victim stated that the

$101 he had was in the pocket of red and black shorts that were on his bedroom floor.

The victim testified that in the early morning hours of September 29, 2009, he was

lying on the bed in his room and heard the door open. He rolled over, looked up, and saw

appellant and Buckhanon. He said he also saw Demontrae Smith run out the door. The

victim denied he was on the front porch when appellant and Buckhanon initially approached

him. The victim “knew something was funny” when the men entered his room, and he

grabbed his telephone to call his brother. Appellant snatched the telephone from the victim.

The victim asked appellant to return his telephone, and Buckhanon said, “[S]et it out, today’s

your day.” The victim said he looked at the men, reached down to put on his pants, and

looked up at the men again. When he looked up the second time, Buckhanon shot him on

the right side of his face with a sawed off shotgun. He said appellant was standing behind

Buckhanon when Buckhanon shot him. Because Buckhanon shot him, the victim lost some

of his teeth in the bedroom.

The victim went into the bathroom and slammed the door behind him. He heard

someone kicking at the bathroom door while he was in there. The victim said his skin was

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hanging from his face, and he tried to “fix it” in the mirror. He stated that he was in shock

and passed out. When he regained consciousness, he was upside-down in the tub, and

appellant was holding up his legs, which were hanging outside the tub. Buckhanon again

pointed the gun at the victim and shot him.

The victim testified that after being shot the second time, he passed out and did not

recall regaining consciousness until he was in the hospital. The victim stated that he was

completely blind as a result of being shot in the face twice. He said his sight could never be

restored because a shotgun pellet damaged his retina. He said the shooting caused some of

his teeth to come out, and he no longer had all of his teeth. He recalled speaking with

Detective Cox about this case while at the hospital.

On cross-examination, the victim testified that he began drinking around 2:00 p.m.

on September 28th. He said he only drank one bottle of the premixed gin. He estimated that

he and his friends had smoked approximately ten “blunts” that day. The victim said he took

two Xanax tablets during the evening of September 28th. He admitted he was intoxicated

but said he remembered what went on that day.

The victim denied calling Buckhanon a “crab.” He said he did not call Buckhanon

a “crab” because he and Buckhanon “didn’t get into it.” He said the argument was between

him and Davis, and Buckhanon was not involved. The victim stated “crab” was a term used

to insult members of the Crips gang. The victim did not recall Thompson being at his home.

The victim said that after the argument, he stayed inside while everyone left and denied

digging in the bushes looking for something.

The victim testified that appellant and Buckhanon were “all up on” him before

Buckhanon shot him, and he could not move. He said Buckhanon only said, “[T]oday’s your

day, set it out,” before shooting him. He further said Buckhanon shot him twice, once in the

bedroom and once in the bathroom. The victim testified that he knew he was lying in the

bathtub when Buckhanon shot him the second time because he remembered looking up at

appellant and Buckhanon. The victim stated that Smith had run out the apartment before

Buckhanon shot him. He further stated that Smith did not say anything before leaving. The

victim did not recall hearing any conversation between Buckhanon and appellant. He just

remembered a “big boom” in his ear and feeling like his whole body was on fire.

The victim stated he never had any problems with appellant before the incident, but

appellant and his friend had previously “got[ten] into it.” The victim thought he was related

to appellant when his friend and appellant had their altercation, and he tried to help resolve

it. The victim did not discover that appellant was not related to him until after this incident.

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The State rested its case-in-chief after the victim’s testimony. Appellant waived his

right to testify. After deliberating, the jury was unable to reach a unanimous verdict on count

one, attempted premeditated murder, and the trial court declared a mistrial as to that count.

The jury found appellant guilty as charged on count two, especially aggravated burglary, and

count three, especially aggravated robbery. The jury assessed fines of $25,000 for especially

aggravated burglary and $50,000 for especially aggravated robbery. The trial courtsentenced

appellant to ten years for especially aggravated burglary to be served concurrently with a

twenty-one-year sentence for especially aggravated robbery. This appeal followed.

II. Analysis

On appeal, appellant argues that the evidence was insufficient to support his

convictions. Specifically, appellant argues that the evidence was insufficient to support his

conviction for especially aggravated robbery because “the victim’s serious bodily injury did

not precede or occur contemporaneously with the aggravated robbery.” Appellant also

contendsthat the evidence wasinsufficient to support his conviction of especially aggravated

burglary because in his statement to Detective Cox, appellant stated the robbery occurred

outside of the residence while the victim was on his porch. Further, appellant argues that

pursuant to Tennessee Code Annotated section 39-14-404(d), he cannot stand convicted of

both especially aggravated robbery and especially aggravated burglary. The State responds

that the evidence was sufficient to support the convictions and agrees that this court should

modify appellant’s conviction for especially aggravated burglary to aggravated burglary.

A. Standard of Review

The standard for appellate review of a claim of insufficiency of the State’s evidence

is “whether, after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); Tenn. R. App. P. 13(e); see State v.

Davis, 354 S.W.3d 718, 729 (Tenn. 2011). To obtain relief on a claim of insufficient

evidence, appellant must demonstrate that no reasonable trier of fact could have found the

essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319.

This standard of review is identical whether the conviction is predicated on direct or

circumstantial evidence, or a combination of both. State v. Dorantes, 331 S.W.3d 370, 379

(Tenn. 2011); State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977).

On appellate review, “we afford the prosecution the strongest legitimate view of the

evidence as well as all reasonable and legitimate inferences which may be drawn therefrom.”

Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010));

State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage, 571 S.W.2d 832,

835 (Tenn. 1978). In a jury trial, questions involving the credibility of witnesses and the

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weight and value to be given the evidence, as well as all factual disputes raised by the

evidence, are resolved by the jury as trier of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn.

1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). This court presumes that the jury

has afforded the State all reasonable inferences from the evidence and resolved all conflicts

in the testimony in favor of the State; as such, we will not substitute our own inferences

drawn from the evidence for those drawn by the jury, nor will we re-weigh or re-evaluate the

evidence. Dorantes, 331 S.W.3d at 379; Cabbage, 571 S.W.2d at 835; see State v. Sheffield,

676 S.W.2d 542, 547 (Tenn. 1984). Because a jury conviction removes the presumption of

innocence that appellant enjoyed at trial and replaces it with one of guilt at the appellate

level, the burden of proof shifts from the State to the convicted appellant, who must

demonstrate to this court that the evidence is insufficient to support the jury’s findings.

Davis, 354 S.W.3d at 729; State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011) (quoting State v.

Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

B. Sufficiency of the Evidence

1. Especially Aggravated Robbery

To sustain the conviction for especially aggravated robbery, the State had to prove that

appellant committed a robbery with a deadly weapon and that the victim suffered serious

bodily injury. Tenn. Code Ann. § 39-13-403(a) (2006). Robbery is the intentional or

knowing theft of property from the person of another by violence or putting the person in

fear. Tenn. Code Ann. § 39-13-401 (a) (2006). “Serious bodily injury” is bodily injury that

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

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

function of a bodily member, organ, or mental faculty. Tenn. Code Ann. § 39-11-106(a)(34)

(2006).

Appellant argues that his conviction for especially aggravated robbery cannot stand

“[b]ecause the victim’s serious bodily injury did not precede or occur contemporaneously

with the aggravated robbery.” In support, appellant cites our supreme court’s holding in

State v. Owens, 20 S.W.3d 634, 641 (Tenn. 2000), that “that the use of violence or fear must

precede or be contemporaneous with the taking of property from the person to constitute the

offense of robbery under Tenn. Code Ann. § 39-13-401.” However, appellant’s reliance on

Owens is misguided. The court in Owens addressed “how closely connected in time must the

taking and the violence [or fear] be” in order for a theft to constitute a robbery. Owens, 20

S.W.3d at 637 (emphasis added). The holding in Owens did not state that the bodily injury

suffered by the victim must be contemporaneous with the taking of property, only that the

use of violence or fear must precede or be contemporaneous with the taking of property.

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Turning to appellant’s argument that his conviction cannotstand because the evidence

was insufficient, we conclude that the evidence was sufficient to support the conviction.

Appellant’s version of events suggested that appellant and Buckhanon robbed the victim

outside, and Buckhanon went into the victim’s home and shot him. The victim, on the other

hand, testified that appellant and Buckhanon entered his home and went into his bedroom.

As the victim attempted to call his brother, appellant snatched the phone from his hands.

Next, Buckhanon told the victim to “set it out.” The victim stated that as he was attempting

to put on his pants, Buckhanon shot him in his face. The victim testified that the money that

appellant and Buckhanon stole from him during the robbery was in the pocket of his shorts,

which were on the floor.

Appellant asserts that the testimony of Williams and the physical evidence

contradicted the victim’s version of events. The jury heard the witnesses’ testimony

regarding the events, reviewed the evidence, and saw photographs of the crime scene. By

their guilty verdict, the jury clearly accredited the testimony of the victim and resolved all

conflicts in the testimony in favor of the State. State v. Grace, 493 S.W.2d 474, 476 (Tenn.

1973). We will not re-weigh or re-evaluate the evidence. State v. Matthews, 805 S.W.2d

776, 779 (Tenn. Crim. App. 1990). The evidence showed that the robbery was

“[a]ccomplished with a deadly weapon; and . . . the victim suffer[ed] serious bodily injury.”

Tenn. Code Ann. § 39-13-403(a) (2006). Accordingly, we conclude that the evidence was

sufficient to support appellant’s conviction for especially aggravated robbery.

2. Especially Aggravated Burglary Conviction

Initially, we note that the jury convicted appellant of especially aggravated robbery

and especially aggravated burglary. As appellant correctly notes, Tennessee Code Annotated

section 39-14-404(d) precludes using the same acts to prosecute for especially aggravated

burglary and another offense. The statute provides that “[a]cts which constitute an offense

under this section may be prosecuted under this section or any other applicable section, but

not both.” Tenn. Code Ann. § 39-14-404(d) (2006). Here, the State used the serious bodily

injury to the victim to prosecute and convict appellant of both especially aggravated robbery

and especially aggravated burglary. When such a conviction has occurred, the proper action

is to modify the sentence for especially aggravated burglary to aggravated burglary as a

lesser-included offense. See State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993);

State v. Oller, 851 S.W.2d 841, 843 (Tenn. Crim. App. 1992). Thus, the statute compels this

court to modify the especially aggravated burglary conviction to one of aggravated burglary.

See State v. Michael Dean Marlin, No. M2011-00125-CCA-R3-CD, 2011 WL 5825778, at

*14 (Tenn. Crim. App. Nov. 17, 2011) (holding that the “effect of subsection (d) is that the

Defendant cannot be convicted of especially aggravated burglary and aggravated robbery

when the serious bodily injury of [the victim] was an element of both offenses”); State v.

James Ruben Conyers, No. M002-01007-CCA-R3-CD, 2003 WL 22068098, at *8 (Tenn.

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Crim. App. Sept. 5, 2003) (recognizing that appellant’s convictionsfor especially aggravated

robbery and especially aggravated burglary were plain error and modifying the appellant’s

conviction for especially aggravated burglary to aggravated burglary).

We now address whether the evidence was sufficient to sustain a conviction for

aggravated burglary. “[A] person commits burglary who, without the effective consent of

the property owner . . . [e]nters a building and commits or attempts to commit a felony, theft

or assault[.]” Tenn. Code Ann. § 39-14-402(a)(3) (2006). “Aggravated burglary is burglary

of a habitation.” Tenn. Code Ann. § 39-14-403 (2006). A habitation is “any structure,

including buildings, module units, mobile homes, trailers, and tents, which is designed or

adapted for the overnight accommodation of persons[.]” Tenn. Code Ann. § 39-14-401

(2006).

Appellant challenges the sufficiency of the convicting evidence for his aggravated

burglary conviction based on his version of the incident as conveyed to Detective Cox.

According to appellant, the victim was outside on his porch when the robbery occurred, thus

no felony occurred inside the habitation to support the aggravated burglary conviction.

Appellant argues that we should discredit the victim’s testimony because he was under the

influence of several substances and was as “high as a bird could be.” However, viewed in

the light most favorable to the State, the evidence showed that appellant and Buckhanon

entered the victim’s residence, without the victim’s consent, to rob him. The victim testified

that he remembered the events of the robbery and testified consistently about what occurred.

The victim said Buckhanon shot him in his bedroom causing him to lose some of his teeth.

Detectives found the victim’s teeth in the bedroom. The victim testified that Buckhanon also

shot him in the bathroom while appellant held his legs. The detectives found evidence of a

shotgun blast in the bathroom. In addition, detectives also found a shotgun shell in the front

doorway of the residence. Moreover, the victim testified that the money stolen in the robbery

was in the pocket of his shorts that were on his bedroom floor. The jury heard both the

victim’s and appellant’s versions of events before convicting appellant. “A guilty verdict by

the jury, approved by the trial judge, accredits the testimony of the witnesses for the State and

resolves all conflicts in favor of the theory of the State.” Grace, 493 S.W.2d at 476. Again,

the jury clearly accredited the victim’s version of events as was within their province to do

so, and this court will not re-weigh or re-evaluate the evidence. Matthews, 805 S.W.2d at

779. Accordingly, we conclude that the evidence was sufficient to support appellant’s

conviction for aggravated burglary.

C. Modification of Sentence

Having modified appellant’s conviction for especially aggravated burglary to

aggravated burglary, we must also modify his sentence. The trial court sentenced appellant

to ten years for especially aggravated burglary, a Class B felony. The sentence range for a

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Range I standard offender convicted of a Class B felony is eight to twelve years. See Tenn.

Code Ann. § 40-35-112(a)(2) (2006). Thus, the trial court sentenced appellant at the exact

midpoint of the range.

Appellant’s modified conviction of aggravated burglary is a Class C felony. The

sentence range for a Range I standard offender convicted of a Class C felony is three to six

years. Id. § 40-35-112(a)(3). The transcript of the sentencing hearing reflects that the trial

court found four enhancement factors and one mitigating factor when sentencing appellant.

The transcript also reflects that the trial court applied “60 percent of the range” to appellant’s

sentence, rounded down in appellant’s favor. Using the trial court’s previous sentencing

determination as guidance, we reduce appellant’s sentence for the modified aggravated

burglary conviction to 4.5 years, concurrent with the sentence for especially aggravated

robbery, for an effective sentence of twenty-one years incarceration. We also modify the fine

from $25,000 to $10,000. See State v. Daniel O’Sicky, No. E2010-02439-CCA-R3-CD, 2011

WL 3371486, at *7 (Tenn. Crim. App. Aug. 5, 2011) (“Accordingly, we impose a sentence

of six years for the modified conviction because the trial court imposed the maximum

sentence for each of the Defendant’s other convictions.”); State v. Jonathan Lee Adams, No.

E2008-00400-CCA-R3-CD, 2009 WL 2176577, at *9 (Tenn. Crim. App. July 22, 2009)

(“Given that the trial court imposed a minimum sentence of eight years for the defendant’s

especially aggravated burglary conviction, on remand we instruct the trial court to enter a

three-year sentence for the defendant’s aggravated burglary conviction.”); State v. Larry

Darnell Pinex, No. M2007-01211-CCA-R3-CD, 2008 WL 4853077, at *17 (Tenn. Crim.

App. May 11, 2009) (imposing a modified mid-range sentence consistent with the trial

court’s other sentences). Accordingly, we remand for modification of the judgment form to

reflect a judgment and sentence of 4.5 years for aggravated burglary on count two.

CONCLUSION

Based on the foregoing, we affirm appellant’s conviction for especially aggravated

robbery. However, we remand appellant’s conviction for especially aggravated burglary to

the trial court for the amendment of the judgment of conviction to reflect this court’s

modification of the conviction to aggravated burglary. The amended judgment should also

reflect the reduction in the sentence on that conviction to 4.5 years and the reduction in the

fine to $10,000.

_________________________________

ROGER A. PAGE, JUDGE

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