IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs September 21, 2005

STATE OF TENNESSEE v. JEROME MAYO

 Appeal from the Circuit Court for Montgomery County

No. 40300086 Michael Jones, Judge

No. M2004-03061-CCA-R3-CD - Filed September 14, 2007

This is an appeal as of right from a conviction on a jury verdict of aggravated robbery, and an appeal

by the State from the sentencing decision. The Defendant originally received an enhanced sentence

of eighteen years as a Range II, multiple offender, but his sentence was subsequently reduced to

fifteen years by the trial court based upon Blakely v. Washington, 124 S.Ct. 2531 (2004). On appeal,

the Defendant argues there is insufficient evidence to support his conviction for aggravated robbery.

The State appeals the modified sentence, arguing the trial court erred in reducing the Defendant’s

sentence. We affirm the judgment of the trial court as to the conviction, but remand for resentencing in accordance with this opinion. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in Part;

Reversed in Part; Remanded

DAVID H. WELLES, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and J.C.

MCLIN, JJ., joined.

Russell Church (at trial) and Roger E. Nell (on appeal), Assistant Public Defenders, Clarksville,

Tennessee, for the appellant, Jerome Mayo.

Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General;

John Carney, District Attorney General; and Dan Brollier, Assistant District Attorney General, for

the appellee, State of Tennessee.

OPINION

FACTS

The Defendant’s aggravated robbery conviction stems from an incident in which he and three

co-defendants robbed the victim at gunpoint in Clarksville on Christmas Eve of 2002. The

Defendant, Jerome Mayo, and three of his friends witnessed the victim crash his pickup truck into
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a utility pole. Instead of assisting the injured victim, the Defendant stole items from the wrecked

vehicle while others in the group held the victim at gunpoint. The victim was “pistol-whipped,” and

the four perpetrators of the crime fled in a car, but were quickly apprehended by police only a short

distance from the crime scene. Several of the items stolen from the victim were discovered on the

Defendant’s person and in the car in which he was apprehended. 

The Defendant was indicted on one count of especially aggravated robbery, see Tenn. Code

Ann. § 39-13-403, by a Montgomery County grand jury in February of 2003. The indictment was

later amended to charge the Defendant with only the offense of aggravated robbery accomplished

with a deadly weapon. See Tenn Code Ann. § 39-13-402(a)(1). While his three co-defendants

entered guilty pleas to various offenses related to this incident, the Defendant elected to go to trial.

The Defendant received a jury trial in September of 2003. 

The victim testified that he was driving home when someone darted out in front of him, and

when he swerved to miss this person, he hit a telephone pole. The victim admitted he had consumed

one beer, but denied that he was intoxicated. In the accident the victim hit his head against the

steering wheel, and was bleeding from the injuries to his face. According to the victim, “four black

males” approached him shortly after the accident. The victim first thought they came to render aid,

but soon learned they were intent on robbing him. The victim said one of the men pulled a gun,

although he was not sure which one, and the others stole items from his truck. Also, one demanded

his wallet. The victim testified that he first faced the gunman, then looked away for a moment, and

when he turned back towards the gunman he was “pistol whipped,” or struck across his forehead

with the gun. The victim then stumbled along the street until a local resident allowed him the use

of a phone. The victim first called his girlfriend, and then called the police. 

The victim testified that he recognized the Defendant as one of the four individuals who

robbed him, and specifically remembered that the Defendant was carrying a small flashlight during

the robbery. The items stolen in the robbery consisted of an in-dash CD player, several CDs, and,

according to the victim, his cell phone. The victim described his injuries as a result of the incident

as a “slight concussion and a broke (sic) nose, a busted lip and of course, my scar that I have now

for the rest of my life.” However, on cross-examination, the victim stated that the injuries to his

nose and mouth were possibly due to the automobile accident. He also admitted that while he was

“not sure” which of the four men held the gun, he was sure it was not the Defendant. 

While the Defendant admitted his involvement in the incident, including his theft of the

victim’s property, his version of the events differed from the victim’s testimony. The Defendant

testified that he was sitting in a car with three of his friends when they “heard a squeak, like tires

screaming on their brakes and then we heard a loud crash, boom! . . . [A]nd then we seen a car that

was wrapped around a pole.” The Defendant and his friends went to investigate. When the

Defendant saw the victim, he immediately observed that he was drunk, and told the victim this. The

victim confirmed his intoxicated state by stating “I’m full of it.” The victim asked the Defendant

if he could use his phone, but the Defendant refused because the victim was bloody. The Defendant
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and his friends then returned to the car in which they were previously seated, and remained there for

about five minutes. 

The Defendant further testified that after about five minutes, he returned to the wrecked

vehicle alone and began to remove the CD player from the dash of the wrecked vehicle. The victim,

according to the Defendant, was no longer by his vehicle but had walked on down the street. The

Defendant testified that he never possessed a weapon, and never even saw a gun that night until after

the robbery was over and he was riding in a car with his three friends. The Defendant stated that as

they were in the car fleeing the scene, his co-defendant, Burt Killins, told him that he had hit the

victim with the butt of a gun. The Defendant stated that he stole a CD player, several CDs and the

faceplate ofthe victim’s cell phone from the victim’s wrecked vehicle, but the victim was not present

at the time and he had no knowledge of the use of a weapon. 

Through the testimony of four Clarksville police officers and detectives involved in the case,

evidence was presented which revealed that the Defendant and his three co-defendants were

apprehended when the car in which they were fleeing ran a stop sign and almost hit a police cruiser.

The victim had onlymoments earlier placed a call to the police, who discovered him standing in the

street with his face bleeding. He was described as “upset” and “confused,” but managed to give to

the police a description of his assailants. This description matched the occupants of the vehicle that

nearly hit the police car only a short distance away, and the four men were arrested. The Defendant

was searched when he was placed under arrest. The Defendant had on his person “several knives,”

a black flashlight, several CDs, and a cell phone. The victim’s CD player and a handgun were found

in the car in which the Defendant was apprehended. 

At the conclusion of the trial, the jury returned a verdict of guilty for the charged offense of

aggravated robbery. A sentencing hearing was conducted in November of 2003, at which the State

and defense agreed that the Defendant’s prior criminal record required that he be sentenced as a

Range II, multiple offender. The trial court found no applicable mitigating factors, but determined

that the Defendant’s previous history of criminal convictions above that necessary to establish his

range, as well as his history of unwillingness to comply with conditions of a sentence involving

release into the community, warranted enhancement above the twelve year presumptive sentence for

his Class B felony offense. The trial court imposed a sentence of eighteen years to be served in the

Tennessee Department of Correction.

The Defendant filed a motion for new trial in November of 2003, and an amended motion

in December of 2004, arguing, among other issues, that the United States Supreme Court’s Blakely

decision precluded the Defendant’s enhanced sentence. After a hearing on the new trial motion, the

trial court upheld the Defendant’s conviction, but issued an amended judgment lowering his sentence

from eighteen yearsto fifteen years. Both the Defendant and the State timely filed a notice of appeal.

ANALYSIS

The Defendant asserts that there is insufficient evidence for any rational trier of fact to find

beyond a reasonable doubt that he is guilty of the offense of aggravated robbery. In support of this
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assertion, the Defendant argues that he did not accomplish the thefts with a deadly weapon because

he never personally held the gun or injured the victim. Additionally, the Defendant argues that the

trial court did not err in reducing his sentence from eighteen to fifteen years. 

I. Sufficiency

Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings of guilt in criminal

actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support

the findings by the trier of fact of guilt beyond a reasonable doubt.” A convicted criminal defendant

who challenges the sufficiency of the evidence on appeal bears the burden of demonstrating why the

evidence is insufficient to support the verdict, because a verdict of guilt destroys the presumption

of innocence and imposes a presumption of guilt. See State v. Evans, 108 S.W.3d 231, 237 (Tenn.

2003); State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913,

914 (Tenn. 1982). This Court must reject a convicted criminal defendant’s challenge to the

sufficiency of the evidence if, after considering the evidence in a light most favorable to the

prosecution, we determine that any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v.

Hall, 8 S.W.3d 593, 599 (Tenn. 1999).

On appeal, the State is entitled to the strongest legitimate view of the evidence and all

reasonable and legitimate inferences which may be drawn therefrom. See Carruthers, 35 S.W.3d at

558; Hall, 8 S.W.3d at 599. A guilty verdict by the trier of fact accredits the testimony of the State’s

witnesses and resolves all conflicts in the evidence in favor of the prosecution’s theory. See State

v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Questions about the credibility of witnesses, the

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

the trier of fact, and this Court will not re-weigh or re-evaluate the evidence. See Evans, 108 S.W.3d

at 236; Bland, 958 S.W.2d at 659. Nor will this Court substitute its own inferences drawn from

circumstantial evidence for those drawn by the trier of fact. See Evans, 108 S.W.3d at 236-37;

Carruthers, 35 S.W.3d at 557.

In this case, the aggravated robbery charge required the State to prove beyond a reasonable

doubt that the Defendant “[a]ccomplished” his robbery of the victim “with a deadly weapon.” Tenn.

Code Ann. § 39-13-402(a)(1). Robberyin Tennessee 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). 

The Defendant argues that because the victim testified that the Defendant was not the one

who held the gun, the deadly weapon element of aggravated robbery could not be attributed to the

Defendant. Additionally, the Defendant also argues that there was insufficient evidence to convict

him of aggravated robbery based on a theory of criminal responsibility because he acted alone in the

theft, and did not even know about the gun until the event was over. The Defendant further states

that his theft and the other person’s use of a weapon were “independent of each other” and “aside

from [the victim’s] testimony, there is no evidence to suggest otherwise.” We find the Defendant’s

arguments are misplaced.
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The evidence contained in the record on appeal demonstrates that the Defendant intentionally

deprived the victim of his personal property. The Defendant admitted that he stole the items in

question. The evidence also supports the jury’s finding that the robbery was accomplished through

violence or fear and with the use of a deadly weapon. Because the Defendant was criminally

responsible for the actions of his cohorts in this crime, it does not matter for purposes of sufficiency

review whether it was the Defendant or one of his co-defendant’s who physically held the gun and

struck the victim. 

Tennessee statutes hold that “[a] person is criminally responsible for an offense committed

by the conduct of another if: Acting with intent to promote or assist the commission of the offense,

or to benefit in the proceeds or results of the offense, the person solicits, directs, aids, or attempts

to aid another person to commit the offense.” Tenn. Code Ann. § 39-11-402(2). Criminal

responsibility is not itself a separate crime; rather, it is “solely a theory by which the State may prove

the defendant’s guilt of the alleged offense. . . based upon the conduct of another person.” State v.

Lemacks, 996 S.W.2d 166, 170 (Tenn. 1999). Under a theory of criminal responsibility, a

defendant’s presence and companionship with the perpetrator of a felony before and after the

commission of the offense are circumstances from which that defendant’s participation in the crime

may be inferred. See State v. Ball, 973 S.W.2d 288, 293 (Tenn. Crim. App. 1998). To be held

criminally responsible for the acts of another, a defendant need only “‘associate himself with the

venture, act with knowledge that the offense is to be committed, and share in the criminal intent of

the principal in the first degree.’” Id. (citing State v. Maxey, 898 S.W.2d 756, 757 (Tenn. Crim.

App. 1994)).

The victim in this case testified that all four men approached him together and robbed him

in concert. The victim further stated that a gun was used to accomplish this robbery, and he was

injured when he was struck across the forehead. It is well settled law in Tennessee that “the

testimony of a victim, by itself, is sufficient to support a conviction.” State v. Strickland, 885

S.W.2d 85, 87 (Tenn. Crim. App. 1993). Moreover, as already stated, a jury’s guilty verdict

accredits the testimony of the State’s witnesses and resolves all conflicts in the evidence in favor of

the prosecution’s theory. See Bland, 958 S.W.2d at 659. The Defendant’s claim that the victim’s

testimony was unreliable because of his confusion from the accident or possible intoxication is

misplaced on appeal. Questions about the credibility of a witness and the weight and value of the

evidence presented at trial are issues that are resolved by the trier of fact, and this Court will not reweigh or re-evaluate this evidence. See Evans, 108 S.W.3d at 236. In this case, the jury obviously

accredited the testimony of the victim as to the events of the crime. 

Additionally, the evidence reveals that the Defendant and his three co-defendants were

apprehended together in the same vehicle attempting to flee from the scene of the crime. A handgun

was found in this car. Furthermore, the Defendant testified that he and his three friends were also

together before the robbery took place. Therefore, in addition to the direct evidence from the

victim’s testimony, the circumstantial evidence of Defendant’s presence and companionship with

the other perpetrators of the robbery both before and after the commission of the offense also

supports the State’s theory of criminal responsibility. See State v. Ball, 973 S.W.2d at 293.
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Accordingly, we find that the Defendant was criminally responsible for the actions of his cohorts in

the use of a deadly weapon during the robbery. 

Having carefully reviewed the record, we conclude that the evidence is sufficient to support

the jury’s verdict in this case. The jury was properly instructed on the theory of criminal

responsibility and the elements of the crime of aggravated robbery as well as the elements of several

lesser-included crimes, such as simple robbery and facilitation of aggravated robbery. The jury

elected to find the Defendant guilty of the crime of aggravated robbery. Viewed in the light most

favorable to the State, we conclude that the evidence presented at trial established that the Defendant

was guilty of the crime of aggravated robbery by taking the victim’s property through violence or

fear and with the use of a deadly weapon. Accordingly, we find the Defendant has failed to meet his

burden of demonstrating that there was insufficient evidence submitted at trial for any rational trier

of fact to conclude beyond a reasonable doubt that he was guilty of the crime for which he was

convicted. Thus, this issue is without merit.

 

II. Sentencing

The State appeals the Defendant’s modified sentence, arguing that the trial court erred “by

interpreting Blakely in a manner that forbid the application of enhancement factor (9) in calculating

the defendant’s sentence.” We agree.

In the case at hand, the trial court originally enhanced the Defendant’s sentence by six years

after finding two enhancement factors applicable: the Defendant had a previous history of criminal

convictions, and a history of unwillingness to comply with the conditions of a sentence involving

release into the community. See Tenn. Code Ann. § 40-35-114(2) and (9). The trial court, upon

reconsidering the issue at the new trial hearing, issued an amended judgment reducing the

Defendant’s sentence to fifteen years because it believed its application of enhancement factor (9)

“not appropriate under Blakely v. Washington.” 

At the time of the hearing on the Defendant’s motion for a new trial, the trial court was under

the impression that the Defendant’s Sixth Amendment right to a trial by jury was impugned when

it made determinations of fact for sentence enhancement purposes at the sentencing hearing that

were not submitted to a jury, citing to the United States Supreme Court decision of Blakely v.

Washington, 124 S.Ct. 2531 (2004). Specifically, the trial court determined on its own that the

Defendant had failed to comply with the conditions of his recent community release, and therefore

enhanced his sentence, in part, based upon enhancement factor (9). 

However, our supreme court has recently held that the enhancement component of

Tennessee’s sentencing structure does not violate a defendant’s Sixth Amendment right to a trial by

jury. See State v. Gomez, 163 S.W.3d 632, 661 (Tenn. 2005). Rather, our supreme court

determined that Tennessee’s sentencing structure “merely requires judges to consider enhancement

factors,” and unlike the sentencing guidelines struck down in Blakely, Tennessee “does not mandate

an increased sentence upon a judge’s finding of an enhancement factor.” Gomez, 163 S.W.3d at

660. Thus, relying on Blakely as clarified by United States v. Booker, __ U.S. ___, 125 S.Ct. 738
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(2005), our supreme court determined that Tennessee’s sentencing structure provides the type of

“‘indeterminate,’ non-mandatory, advisory sentencing scheme” that the United States Supreme Court

has expressly ruled acceptable, thereby permitting judges to exercise the type of sentencing

discretion applied at the sentencing hearing in the case at hand. See Gomez, 163 S.W. 3d at 660.

In his reply brief, the Defendant acknowledges the Tennessee Supreme Court’s ruling in

Gomez, but maintains that this opinion is “clearly erroneous and misapprehends that [sic] United

States Supreme Court’s decisions in Apprendi, Blakely, and Booker.” The Defendant further notes

that our highest court has also stated that defendants who are “dissatisfied” with its interpretation

of the United States Constitution “routinely raise and preserve for federal review issues [the

Tennessee Supreme Court] has previously rejected.” Gomez, 163 S.W.3d at 651. Thus, the

Defendant maintains that the trial court is precluded from applying enhancement factor (9), and

correctly reduced his sentence. 

We acknowledge the Defendant’s desire to preserve this issue for possible federal review.

Obviously, this Court is required to follow our supreme court’s decisions. Our duty, as an

intermediate appellate court, is clear: “It is a controlling principle that inferior courts must abide the

orders, decrees and precedents of higher courts. The slightest deviation from this rigid rule would

disrupt and destroy the sanctity of the judicial process.” Barger v. Brock, 535 S.W. 2d 337, 341

(Tenn. 1976). Accordingly, pursuant to the Tennessee Supreme Court’s Gomez ruling, the

Defendant’s claim of a Sixth Amendment right violation based on the trial court’s enhancement of

his sentence is without merit. We conclude the trial court erred when it reduced the Defendant’s

sentence because of a perceived Blakely violation. 

CONCLUSION

Based on the foregoing reasoning and authorities, we affirm the judgment of the trial court

as to the Defendant’s conviction for aggravated robbery, but remand for re-sentencing in accordance

with this opinion. 

___________________________________ 

DAVID H. WELLES, JUDGE