### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs N ovembe

r 7, 2001 STATE OF TENNESSEE v. DARRIN FLEMING Appeal from the Criminal Court for Shelby County Nos. 99-06817, 99-06818, 99-06819 James C. Beasley, Judge

No. W2001-00028-CCA-R3-CD - Filed December 17, 2001

The defen dant, Da

rrin Fle ming, wa s convict

ed of ag grava

ted burg lary , assault , and crimin a l responsi bility for facilitation of robbery . The trial court imposed aneffectivesentenc e of six y ears. In t his appeal of right, the defendant contends that the e vidence was insufficient to support hi s convictions for aggravated burg lary and a ssault and that the trial court erred by refusing to give a special instruction on criminal responsibility. The judg ments of the trial court are affirmed. Tenn. R. App. P. 3; Judgments of the Trial Court Affirmed G A RY R. W ADE , P.J., delivered the opinion of the court, in which J OE G. R ILEY and T HOM AS T

. W OODA LL , JJ., joined. Kevin E. Ree d, Mem phis , Tenn essee, for th e appel lant, Darrin Flemi ng. Paul G. Summers, Attorney Gene ral and Reporter; Kathy D. Aslinge r, Assista nt Attorne

y General ; and James Lammey , Assistant District Attorney Gene ral, for the appellee, the State of Tennessee

. OPINION At approximately 1:30 A.M. on Februa ry 8, 1999, two men, o ne tall and one short, robbed Sam Riley at the residenc e he shared with his uncle, Herford R il ey. The robbers kept their faces covered withtheir shir

ts during the entir e incide nt. Acco rding to the victim, he recognized the voice of the taller of the two men as that of his niece's for mer boyfrie

nd. The taller of the two robbers was later identified as the co-defendant, Prentiss Bowie. During the robbe ry , Bowie d

id all of the talking whil e the s horte r robb er sai d not hing. Sam Riley

testifie d that Fe

licia Webb

had come

to the residenceearlier in the evening and asked to b orrow so me money from his uncle. When he told her he had no money , she left. Later, however, she returned

and received

permission to use the restroom. As she attempted to leave the residence, she unlocked the front door and the two robbers rushed into the house. The taller of the two men, Bow ie, was carry ing a chrome plated .38. When the taller man demande d money, Sam-2-

Riley directed him to the pocket of a pair of pants that lay on the table. The shorter robber handled the wea pon while the talle r robber took the mo ney

from the p ants. After putt ing th e mone y into hi s pock et, th e tall er robb er forc ed the victi m thro ugh the house and into a bedroom occupied by his uncle, Herford Riley . When Herford Riley claimed he had no mo ne y, the taller robber ordered the shorter r obber to shoot

him. Sam Riley, however, was able to co nv in ce th e r ob be rs to le av e w it ho ut ha rm in g H er fo rd Ri le y. After his arrest, the defendant was interviewed by Sergeant Bowles. Office r Jeff Clark, who was present during the interrogation, testified that the de fendant admitted that he and Bowie had committed the robbery . The defendant informed police that he was unarmed, but acknowledged that Bowie carried a chrome .357 revolver into the r esidence. The defendan

t told officers that he and Bowie covered their faces with their shirts during the robbery. The

statement

provided by the defenda nt was re ad into evidence a t trial. Clarence Martin, who testified for the defense, stated that he was with Bowie , Felicia Webb, and the defendant on the night in question. H e expl ained tha t the four went to the

victim’s h ouse so that Webb could borro w some m oney to purcha se marijuana. On their way , Martin overheard Bowie say that he intended to rob the victim. According to Martin, the defendant aske d Bowie not to rob the victim due to his long-term friendship with the family . He explained that Webb, who walkedahead o f the othe

rs, went into the house

first to a sk

to borrow

money and to use

the restr oom. Martin testified that as Webb was leaving the house, Bowie went inside but the defendant remained outside. He contended that Webb ran away

from the house and he and the defendant ra n after her. He stated that, a few minutes later, Bowie ar rived and informed them that “he got him.” The defendant testified to essentially the same account as Clarence Martin. He claimed that the statemen

t Office r Clark r ead to th e jury

was not the statement he gave during his police interview. He conte

nded that before the inter view beg an, Serg eant Bo wles hit him in the face and spit on him. He

testifie d that the

police r efused t o let him re ad the sta

tement and force d him to sign it. The defendant denied any involvement in the robbery a nd insisted that Bowie acted alone. The jury convicted the d

e fendant of aggra

vated burglary , assault upon Herford Riley , and cr im in al re sp on si bi li ty f or fa ci li ta ti on of ro bb er y of

Sa m R il ey. Ini ti al ly, the defendant

contends that the evidence is insufficient to support his convictions for aggravated burg

lary and a ssaul t. On appeal, of cours e, the sta te is entit led to the stronge st legitima te view of the evidence a

nd all re asonable

inferences which might be drawn the refrom. State v. Cabba ge , 571 S.W.2d 8 32, 835 (T enn. 1978 ). The credibilit y of the wit

nesses, t he weig ht to be given th ei r t es ti mo ny, and the r econcil iation of c onflicts in the proof are matters entrusted to the jury as the trier of fact. By

rge v. State , 575 S.W.2d 292, 295 (Tenn. C rim. Ap p. 1978). When the sufficiency

of the evidence is challenged, the r elevant question is whether, after reviewing the evidence in th e l ig ht mo st fa vo ra bl e t o t he st at e, an y r ational trier of fact could have found the essential elementsof the cr ime bey ond a rea sonable d

oubt. Ten

n. R. App. P. 13(e); St at e v.-3-

Williams , 657 S.W.2d 405, 410 (Tenn. 1983). Questionsconcer ning the credibi lity

of the wit nesses, the weight and value of the evidenc e, as well as all factual issues raised by the evidence are resolved by the trier of fact. Liak

as v. State , 199 Tenn. 298, 286 S.W.2d 856, 859 (1956). Because a verdict of guilt removes the presumption of innocence and raises a presumption of guilt, the convicted criminal defendant bears the burden of showing that the evidence wa s legally insuff icient to sustain a guilty ve

rdict. State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992). Aggravated

burglary is defined as “burglary

of a habitation as defined in §§ 39-14-401 and 39-14-402.” Tenn. Code Ann. § 39-14-4 03( a). Tennessee Code Annotated section 39-14-401 defines “h ab itation” as “any structure, including buildings, module units, mobile homes, trailers, and tents, which is designed or adapted for the over night accommodationof persons.” Tenn. CodeAnn. § 39-14-4 01(1)(A ). Burglary is define d as follo ws: (a) A person

commit s burg lary who, without the ef fective consent of the property owne

r: * * * (3) Enters a

building and commits or attempts to commit a felony, theft or assault . . . . (b) As used in this section, “en ter” mea ns: (1) Intrusion of any

part of the body; or (2) I ntru sion of any object in phy sical contact with the body or any object controlled by re

mote control, electronic or otherwise.
Tenn. Code Ann. § 39-14-402. Thus, the state was required to prove that the defendant entered the residence and e

ither att empted to commit or c ommitted a

felony , a theft

or an ass ault. The defendant contends that the evidence was insuff icient because the state failed to prove that he actually e

ntered the residence. He points out that Sam Riley was unable to identify him as one of the ro

bbers and argu es that Cla rence M artinprovided affirmative testimony that he never entered the residence.
In our view, the evidence was sufficient to establish ag gr avated burglary . Sam Riley testified that there we re two ro bbers in the residence. Officer Clark testified that the de fendant admitted h

is involveme

nt. A confession is particularly compelling evidence. The jury chose to c redit the witnesses offered by

the state and reject the testimony offered by

the defendant and his companion Clarence Martin. That was their prerog ative.
Our analy sis is the sa

me wit h respec t to the defendant’s assault conviction upon Herford Riley . Assault i s define d as follo ws:

(a) A person commits assault who: (1) Intentionally , knowingly or r ecklessly ca

uses bodily injury

to another;-4- (2) Intentionally

or knowingly c aus es anot her to reasonably fear imminent bodily injury ; or (3) Intentionally

or knowingly c auses physical c o ntact wit h another and a reasonable person would rega rd the contact as extremely offensive or provocative.
Tenn. Code Ann. § 39-13-101(a). Sam Riley testified that the shorter robber had the gun in Herford Riley’s bedroom when the robbers asked Herford Riley if he had any

money. Moreove

r, Sam Riley testified that

the taller robber, Bowie, ordere d the shorter robber t o shoot He

rford Ril ey . Befor

e trial, the defenda

nt admitte d to poli ce that he and Bowie committed the offenses. I n our view, the evidenc e is suffi cient to su pport his c onviction

for assa ult. The defendant next contends that the trial court erred by

refusing to give

his requested jury instruction on criminal responsibility. The trial court has a duty “to give

a complete charge of the law applica

ble to the facts of a case.” State v. Harbison , 704 S.W.2d 314, 319 (Tenn. 1986); see also Tenn. R. Crim. P. 30. “[The] defendant has a constitutional right to a correct and co mplet e charge of the law.” State v. Teel , 793 S.W.2d 236, 249 (Tenn. 1990). Our law requires that al l of th e elementsof ea ch offe nse be described and defined in connec tion with that offense. See State v. Cravens , 764 S.W.2d 754, 756 (Tenn. 1989). Juryinstructions must, however, be reviewed in the conte xtof the overall charge ra ther than in isolation. See Sandstrom v. Montana , 442 U.S. 5 1 0 (1979); see also State v. Phipps , 883 S.W.2d 138, 142 (Tenn. Crim. App. 1994). A c harge is prejudicial error “if it fa ils to fairly submit the lega l issues or if it misleads the jury as to the applica ble law.” State v. Hodges , 944 S.W.2d 346, 352 (Tenn. 1997). Erroneous jury instructions require a reversalunless the error is harmless beyond a reasonable doubt. See Welch v. State , 836 S.W.2d 586 (Tenn. Crim. App. 1992). The defendant requested that the trial court add the following paragraph to Tennessee Patter n Jury I nstruction 3.01: The defendant is criminally r esponsible for offe nses committed by the c onduct of another if he associated himself with commission of the offense, acte d withknowledge that the offenses were being committed, and shared in the criminal intent of t he princ ipal. While the defendant may request special instruc tions, jury instructions are suff icient where they adequa tely state the law. See, e .g. , State v. Tyson , 603 S.W.2d 748 (Tenn. Crim. App. 1980). When a trial court 's charge to the jury is complete, it need not g ive additional special instructions requested by the defendant. See Statev. Story , 608 S.W.2d 599, 603 (Tenn. Crim. App. 1980). Because the charge givencorrectly

states the law as provid

ed in Tennessee Code Annotated § 39-11-402 (2), the trial cou rt did not err in denying

the defendant’s request. I n fact, it is our

observation that the trial court’s charg e to the ju

ry was in sub stantial c omplianc e with the special request of the defendant

. Accordingly , the judgments of the trial court are affir med.-5- ___________________________________ GARY R. WADE, PRESIDING JUDGE