### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON
STATE OF TENNESSEE v. ROBER T GAMBLE
Direct Appeal from the Criminal Court for Shelby County No. 97-07519,20,21 James C. Beasley, Jr., Judge

No. W1999-01016-CCA-R3-CD - Decided June 27, 2000

The Defendant, Robert Gamble, was indicted for two c ounts of robbery, one count of the fraudulent

use of a debit card, an

d one count of thef

t of property

over $500. He wa

s subsequently tried by a jury in Shelby Cou nty and found guilty

of all charges.

The trial court sentenced him as
a career offen

der to an effec

tive sentence of

sixty-six years. In this

appeal as of right, the Defendant argues that the evidence w as insufficie nt to support his conv

ictions and that he

was improperly sentenced. We hold that the evidence p resented at trial was sufficient to support the Defendant’s convictions and that the Defe ndant was proper

ly sentenced. Accordingly, we affirm the Defendant’s convictions and his sentences. Tenn. R. App. P. 3 Appeal as of Right; Judgmen

t of the Trial Court

Affirmed.

W ELLES , J., delivered the opinion of the court, in which H AYES , J., and G LENN , J., joined. A.C. Wharton, Public Defender, Memphis, Tennessee, Garland Erguden, Assistant Public Defender, Memphis, Tennessee, for the appellant, Robert Gamble.

Paul G. Summers, Attorn ey Ge neral and Report er, Tara B. Hinkl

e, Assistant Attorn

ey General, William L. Gibbons, Distric t Attorney Gener

al, Ja mes M. Lammey, Assistant District Attorney General, for the appellee, State of Tennessee

OPINION

In May 1997, the Shelby County Grand Jury i ndicted the Defe

ndant, Robert Gamble, for two counts of aggravated robbery, one count of the fraudulent use of a debit card, and one count of theft of property over

$500. A Shelby County jury found him guilty of all charges. After a sentencing hearing, the tria

l court sentence

d the Defendant a

s a career off

ender to six years for the fraudulent
use of a debit card, six years for the ft of property, and thirty years for each count of aggravated robbery. The trial court ordered that the sentences for fraudulent use of a debit card and t heft o f p roperty be served concurrently, but consecutive to the sentences for aggravated robbe ry. I n-2-

addition, the court ordere d that t he two s entences for ag

gravated robbe

ry be served con

secutively to each other. The Defendant therefore received an eff ective sentence of sixty-six years.

Pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure, the Defenda nt now appeals. He presents the following two issues for our review: (1) whether the evidence presented at trial was sufficient to support his convictions, and (2) whether his sentence is proper. We affirm the judgment of the

trial court.

On January 10, 1997, two masked men entered a Union Planters Bank on Lamar Avenue

in Memphis at approximately noon. Marpu Moulton, who was working as a teller at the“drive-thru” window of the bank, testified that she heard one of her co-workers say, “oh my God,” and she turned to see one of the men, who was holding a handgun, jump onto the teller line counter. She testified that he told everyone to get on the floor, stating, “If you don’t get on the floor, I [will] shoot you.” Moulton stated that the man then grabbed he r by the arm and “threw” her to the other side of the counter, where she laid on the floor. She reported that the man then rifled through her teller drawer and took her purse before leaving. Later that day, she discovered that approximately $500 had been removedfrom her

bank account

by way of her Automatic Teller Machine (ATM) card, which was in her purse at the time it was stolen.

Pamela Townsend, another employee of Un ion Planters Bank, t estified that she w

as also working at the bank on the day of the robbery. She recalled that “two gentlemen enter[ed] the bank withguns, demanding, shouting obscene words that we all get on the floor.” She testified that one of the men “was holdi

ng the desk

side officials [on the floor] on one end of the bank” while the other
man “jumped the counter and be gan gett ing money from the tellers.” After the men left, they droppeda bag containing the stolen money outside the bank when a “dye pack” exploded inside the bag. Townsend explained that a dye pack is a bank security measure and described it as a fake stack of money witha detector hidden inside that releases red dye when transported through the bank door. Townsendtestified that approximately $6,5 00 stained with red dye was retrieved from the bag abandoned

by the robbers outside the b ank. Townsend also introduced bank records showing activity on Moulton’s ATM card following the robbery. She testified that Moulton’s ATM card was used f ive times the day it was stolen and that the total amount taken from Moulton’s account was $554. Marquita

Brownlee testified that she was using the ATM machine at the Union Planters Bank
on January 10, 1997 at the time of the robbery. She recalled that when she put her card in the ATM machine, she heard a “commotion” behind her. When she turned around, she faced a

man standing behind her holding a gun and a white bag, who said, “bitch, turn back around.” She complied, and he then left. She testified that the m an got into a white Chevrolet Camaro Iroc Z-28 with another person and drove away.

Brownlee stated t

hat although it

was snowing on the day of the robberyand
snow covered part of

the car’s licen

se plate, she saw part of the tag number. She identified the license plate as a Tennessee tag containing the numbers 667. Sergeant David Roleson of

the Memphis

Police Department testified that he was assigned to the Federal Bureau of Investigation (FBI) Safe Streets Task Force on January 10, 1997. He stated-3-

that the task force was created to investigate bank robberies in Memphis and reported that he was assigned to investigate

the robbery at issue in this case. During his investigation, Sergeant Roleson discovered

three shoe prints on the bank counter. He had a crime scene officer photograph the prints and then “lift[ed]” the prints from the counter. He reported tha t the prints were w

et because

of the snow outside on the day of the robbery.

Gordon Neighbours, the senior fraud investigator for Union Planters Bank, stated that he was calledto the Union Planters Bank on Lamar Avenue on January 10, 199 7. He testi fied that the money recovered by the bank from the bag abandoned by the robbers was covered with red dye and tear gas. Neighbours also testified that he put a “block” on Moulton’s ATM card, which had been stolen d uring the robbery , and began to tra

ck where the ca

rd was being used.

He stated th

at h e reviewed video surveillance tapes from the ATM machines wher e the card was used after the robbery and took photographs from the surveillance tape of the man using the card. The photographs were introduced and viewed by the jury. Ed Eanes, an emplo

yee of First Ameri

can Bank at the time

of the robbery, testified that he
was contacted by Neighbours concerning ATM activity at his bank, one of t he locati ons where Moulton’s card was used after the robbery. He verified that he provided Neighbours with a video surveillance tape of a transaction and the tape was introduced into evidence. He also verified that Neighbours photographed the transaction using the surveillance tape.

Brian Grissom, a loss

prevention officer for First Tennessee Bank, introduced records from the bank’s ATM machines pertai ning to the use of Mou

lton’s ATM card a

t a First Tennessee Bank. Grissom verified that Moulton’s ATM ca rd w as used to acces s her account at t wo separate Firs

t Tennessee Bank ATM machines on January 10, 1997. During the second transaction, which occurred at 2:32 p.m., the card was confiscated. Grissom introduced video surveillance tapes and photographs take

n of these transa

ctions. Sergeant Roleson testified that he used the ATM photographs to target the Defendant as a suspect for the crime. On cross-examination, he reported that he saw a woman in some of the ATM photographs,

whom he identifiedas Joy Rickman, one of the Defendant’s roommates. He stated that he knew of three people living with the Defendant in a duplex at the time of the crime. Gladys Marie

Dawson, the Defendant’s aunt, identified the Defendant as the person captured
on film by the ATM surveillance cameras. She testified that at the time of the crime, the Defendant
was living with his girlfr

iend, Jackie Brow

n, Brown’s m

other, Brown' s aunt, and “a lot . . . more people” at their home on Kim ball. She stated tha

t he also frequen

ted a duplex on Eas

tport C ov e where his sister, Tiffany Dawson, lived. She reported that in addition to the Defendant and his sister, a man named Carl Rickman, his sister, Joy Rickman, and often others as well lived in the duplex. Sergeant Chad Golden of the Memphis Police Department testified that he was involve

d in the Defendant’s arrest. He stated that at the time o f his arr est, the Defendant was wearing a Nike baseball cap with a “white swoosh emblem or logo on it” and a pair of

gloves with a red d

ye stain
on the palm

of one glove. Golden reported that police also searched the home where the Defendant-4-

was reportedly living

withhis girlfriend at the time of his arrest. From the home, officers recovered
a gold necklace with a “Nike swoosh” medallion, which appeared to be identical to the necklace worn by the suspect in the surveillance videos obtained from bank ATM machines.

Golden also reported that on January 1, 1997, he discovered a s tolen, wh ite Chevrolet Camaro Iroc Z-28 parked in an apartment complex parking lot. He statedthat the car matched the description of the vehicle used in the robbery. Golden testified that the car was parked adjacent to a concrete drainage d

itc h running behind the apartment complex and reported that there were footprints in the snow leading from the car to the drainage ditch. Golden stated that the footprints led in the direction of the duplex on Eastport Cove where the Defendant of ten stayed, which was located a couple of blocks west, “down the drainage ditch,” of where the car wa s parked. Joseph N. Rinehart of the FBI, assigned to the

Memphis Safe Streets

Task Force, testified that he obtained consents to search both of the Defendant’s residences, the Eastport Cove duplex and the house that the Defendant shared with his girlfriend and her family. Sergeant Mike Kitsmiller of the Memphis Police Department, also assign ed to the Sa fe Streets Task Force, testified that he searched the Defendant’s Eastport Cove duplex. He reported that officers recovered from the apartment a pair of shoes, a

jacket with a “Ni

ke swoosh” emblem on the back, and a ski mask. Kitsmillertestif

ied t hat the jacket appeared to be the same jacket worn by the suspect in the surveillance videos from the ATM machines. In addition, Kitsmiller searc hed the Defenda

nt’s home
on Kimball, from which officers recovered a baseball cap, a flannel shirt, a gold N ike medallion necklace, and a pistol like the one carried by one of the bank robbers dur ing the robbery. Photographs that were introduced at trial revealed that one of the robbers wore a flannel shirt during the crime. Special Agent Linda Littlejohn of the Tennessee Bureau of Investigation Cr

ime Laboratory testified that she was a for ensic scientist spe

cializing in

shoe print comparison,

fiber compariso

ns, and physical comparison. She compared the three shoe prints lifted f

rom the bank count

er to the pair of shoes recovered

from the Defendant’s duplex and concluded that the right shoe made one print “to the exclusion of a

ll others.” Specia

l Agent Littlejohn e

xplained that by thi

s, she meant “that

this shoe and only this shoe could ha[ve] made [the] print based on the individual characteristic[s] . . . found in the print corre

sponding to the indivi

dual character

istic[s] on . . . [the] right s

hoe.” She also testified that the second pr int was consi stent w ith the left shoe. She explained that the lack of individual characteristics in the print precluded her from concludingwith complete certainty that the left shoe made the print; however, she maintained that either the left shoe or “

another shoe exa

ctly like it” made the print. Finally, Littlejohn testified that the third print was consistent with the size, shape, and tread design of the right shoe, but again she stated that based on the lack of individual characteristic

s in the print, she c

ould not determina

tively say that the s

hoe made the print

. Special Agent John Canale of the FBI testified that he worked as a member of t he Saf e Str eets Task Force in Memphis at the time of the robbery. He stated that he interviewe d th e Defendant

on two occasions, January 16 and 17, 1997. He reported that during the first interview, the Defendant told officers that he liv ed at both his girlfriend’s house and the duplex located on Eastport Cove. During the second interview, the Defendant admitted that he was the person captured-5-

on film by the survei llance ca meras at the ATM machines. He also admitted that he had used Moulton’s ATM card. However, he claimed to have obtained the card from his mother, whom he said obtained it from her boyfriend.

James Jones, the head of maintenance for the Cottonwood A

partments in Memphi

s, testified that he recovered a “large amount of purses, assorted papers, credit cards, billfolds and [a] handgun,” which was loaded with thr ee live rounds,

from a dumpster at the apartment complex. He reported the discovery to

police, and Offi

cer J.R. Hester o

f the Memphis Police

Department resp

onded to the call. Hester testified that among the items he found Marpu Moulton’s checkbook, her Social Security card, her “Dis

c overy” checkbo

ok, and other asso

rted papers and

receipts belongi

ng to Moulton. Hester also testified concerning the distances between certain locations within his precinct which were pertinent to the investigation of this case: He stated that the Union Planters Bank where the robbery occurred was 1.9 miles from the D efendant’s Eas

tport Cove addres s and that two of the ATM’s from which the suspect withdrew money using Moulton’s ATM card were within two and a half miles of the

Defendant’s Ea

stport Cove addre

ss. Finally, Thomas Bailey, who owned a gun shop at the time of the robbery, testified that on the evening of Dece

mber 20, 1996, his

shop was broken into, and several guns were stolen. One of the stolen guns was the loaded pistol found in the dumpster at the Cottonwood Apartments. Another of his s tole n guns was the pistol recovered by po

lice from the Def

endant’s Kimball a

ddress following the robbery.

I. SUFFICIENCY OF TH E EVIDENCE

The Defendant first contends that evidence of his ident ity as the culprit is ins

ufficient to support the verdict beyond a reasonable doubt. He argues that no one present during the robbery could identify either of the two robbers, that no witness reco gnized t he pistol used during the robbery, that no evidence or testimony connected the Defendant with the “getaway” ca r, a nd that many items of evidence introduced at trial were recovered by p olice at res idences which the Defendant shared with numerous other people.

Tennessee Ruleof

Appellate Procedure 13(e) prescribes that “[f]indings of guilt in criminal actions whether by the trial court or jur y shall be set aside

if the evidence i

s insufficient to

support the find ings by the trier of fact of guilt beyond a reasonable doubt.” Tenn. R. App. P. 13(e). In addition, because conviction by a trier of fact destroys the presumption of innocence and imposes
a presumption of guilt, a convicted criminal defendant bears the burden of showing that the evidence
was insufficient. McBee v. State , 372 S.W.2d 173, 176 (Tenn. 1963); see also State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992) (citing State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1976), and State
v. Brown , 551 S.W.2d 329, 331 (Tenn. 197 7)); State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982); Holt v. State , 357 S.W.2d 57, 61 (Tenn. 1962).

In its review of the evidence, an appellate court must afford the State “the strongest legitimate view of the evidence

as well as all

reasonable and legitimate inferences that may be drawn therefrom.” Tuggle , 639 S.W.2d at 914 (citing State v. Cabbage , 571 S.W.2d 832, 835 (Tenn.-6-

1978)). The court

may not “re-weigh or re-evaluate the evidence” in the record below. Evans , 838 S.W.2d at 191 (ci tin g Cabbage , 571 S.W.2d at 836). Likewise, should the reviewing court find particular conflicts in the trial testimony, the court must resolve them in favor of the jury verdict or trial court judgment. Tuggle , 639 S.W.2d at 914. Furthermore,“[t]he question of appellant's identity
as the person who committed the offense [is] for the jury's determination, upon consideration of all the competent proof.” State v. Shelley , 628 S.W.2d 436, 438 (Tenn. Crim. App. 1981).

In this case, despite the lack of eyewitness identification of the Defendant as the perpetrator of the crime, the State presented a great deal of evidence linking the Defendant to the robbery. Not only was the Defendant captured on film using Moulton’s stolen ATM card, but he admitted to police that he used the card following t he robber y. In addition, police found the “getaway” car, which was identified by an eyewitness to the crime, in a parking lot near one of the D e fendant’s residences,

and police found f

ootprints lead ing from the car toward the Defendant’s home. From the Defendant’s two residences, police recovered a pair of gloves, one of which was stained with red dye like that used in the bank’s “dye packs”; a necklace which appeared to be the s am e necklace
worn by the suspect who used the stolen ATM card after the robbery; a baseball cap like that worn by the suspect; a flannel shirt like that worn by one of the masked robbers, who were photographed by bank surveillance cameras during the robber y; a jacket like that worn by one of the robbers; and
a pair of shoes that

matched prints lif

ted from the bank c

ounter. In additio

n, two stolen pistols

were found which had been taken from the same gun shop on the same night; police recovered one pistol from the Defendant’s home and the other pistol froma dumpster where Moulton’s stolen purse and other st olen items w ere found. We conclude that this is sufficient evidence from which the jury could have adduced the

Defendant’s gui

lt beyond a reaso

nable doubt. This is sue is without merit.

II. SENTENCING

The Defendant next argues that the trial court improperly imposed consecutive sentences in this case. He contends that the imposition of consecutive sentences does not reasonably relate to the severity of the offenses in this case or to the necessity of protecting the public. We disagree.

When an accused challenges the length, range, or manner of service of a sentence, this Court has a duty to conduct a de novo review of the sentence with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This presumption i s “conditionedupon the affirmative showing in the record tha t the trial court considered the sentencing principles and all relevant facts and circumstances.” Statev. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).

When conducting a de novo review of a sentence, this Court must consider: (a) the evidence, if any, received at the trial and sentencing hearing; (b) the presentence report; (c ) the principles of sentencing and arguments as to sentenc in g alternatives; (d) the nature and characteristics of the criminal conduct involved; (e) any statutory mitigating or enhancemen t factors; (f) any statement made by the defendant regarding sentencing; and (g) the potent ia l or lack of potential for rehabilitation or treatment. State v. Thomas , 755 S.W.2d 838, 844 (Tenn. Crim. App. 1988); Tenn. Code Ann. §§ 40-35-102, -103, -210.1 The trial judge noted that the Defendant had six prior aggravated robbery convictions, one attempted aggravated robbery c onviction, one reckless endangerment conviction, and a misdemeano r conviction for possession of a weapon. The Def

endant committed th

esecrimes as a juvenile, but was sentenced as an adult for each of the offenses. See Tenn. Code Ann. § 40-35-108(a), (b)(3).
-7- If our review reflects that the trial court followed the statutory sentencing procedure, that the court imposed a l awfu l sentence after having given due consideration and proper weight to the factors and principles set out under the sentencing law, and that the trial court’s findings of fact are adequately

supported by the r

ecord, then we ma

y not modify the se

ntence even if we would have preferred a different result. State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

Tennessee Code Anno tated § 40-35-115 provides that if a defendant is convicted of more than one offense, the

trial court may imp

ose consecutive sentences if the court finds by a preponderance

of the evidence

that:
(1) The defendant is

a professio

nal criminal who has knowingly devoted such defendant’s life to criminal acts as a major source of livelihood; (2) The defendant is an offender whose record of criminal activity is extensive;

. . . (4) The defendant is a dangerous offender whose beha vior indic ates little or no regard for human life, and

no hesitation about committing a crime in which th e risk to human life is high;

. . . (6) The defendant is sentenced for an offense committed while on probation . . . .

Tenn. Code Ann. § 40-35-115(a), (b)(1), (2), (4), (6). Furthermore, “the imposition of consecutive sentences on an offender fou nd to be a dangerous offender requires, in addition to the application of general principles of sentencing, the finding that an extended sentence is necessary to protect the public against further criminal conduct by the def enda nt and that the cons

ecutive sentenc

es must reasonably

relate to the severity of the offenses committed.” State v. Wilkerson , 905 S.W.2d 933, 939 (Tenn. 1995).

We first note that bec

ause the trial judg

e in this case thoroughly considered all relevant facts, circumstances,

and sentencing principles, our review is de novo with a presumption o f correctness. In sentencing the Defendant, the trial judge noted that the Defendant ha

d previously rece

ived “in
excess of six Class

E or above felony con

victions” 1 and therefore determined that the Defendant was
a career offender. See Tenn. Code Ann. § 40-35-108(a), (b)(3). The trial judge also determined that the Defendant had

“an extensive history of criminal behavior and criminal convictions, in addition to t hose neces sary to make him a career offender.” Moreover, the trial court noted that the Defendant

was on parole

at the time of the present

offenses. The trial court further determined that the Defendant was a dangerous offender, stating,-8-

the [D]efendant ha

d no hesitation abou

t committing a crime

when the risk to human lif e was high. I think, normally, that in an aggravated robbery, that would b e . .
. part of the elements of

the crime of aggravated robbery. However, in this case, . . . the bank was full of customers . . . and the individual identified as Mr. Gamble . . . leaped upon the counter brandishing a gun, leaped over the counter back behind the t ellers’ cages, and peop

le were force

d to the ground. . . . T

here was also te

sti mon y t hat there w ere other individuals, customers in the bank, including a lady who had her children with her during the time all this was occurring.

. . . And couple that with the fact that [the De fendant] has numerous prior convictions for
a ggravated

robbery – he’s on

parole for aggr

avated robbery

when he commits this offense – indicates to me that he has no fear. He has no concept or apprehension about being caught, abo

ut committing a crime

where he arms

himself with apistol, and robs people. Now,

on at least seven o

r eight occasions , he has armed hims elf with a pistol to rob people. This Court finds he is a dangerous offender. Finally, the trial ju

dge determined th

at

con finement

for an extended period of time is necessary to protect society. Thi s Courtis satisfied that Mr. Gamble cannot live on the streets

of free society without committing violent offenses , as is ind icated by his record. It’s obvious that confinement,

once before for aggravated robbery for a short period o f time, i n this Court’s mind didn’t work, and society needs to be protected from Mr. Gamble.

And . . . that the aggregate length of the sentences, if consecutive sentencing is ordered, reas

onably relates to

th e sev erity of the offenses for which the [D]efendant

stands convicted. This Court feels that . . . the blazon nature of a bank robbery, the fact that the numerous individuals who were present in the bank whose lives were put in jeopardy and at risk indicates that Mr. Gamble needs to be incarcerated for a long period of time.

We must agree with the findings of the trial court

. The Defendant’s presentence report reveals a lengthy prior re

cord which is espe

cially lengthy con

sidering that the D

efendant was twen tyfive years old at the time of sentencing. His record, which dates back to 1986 when the Defendant
was twelve years old, includes five convictions for aggravated robbery as well as five other felony convictions as an adult, at lea st three “felony” adjudications as a juvenile, and other convictions and juvenile adjudications. As the State points out, his record shows “a continuous criminal history.” Moreover, by his own admission, the Defendant was on parole for armed robbery at the time he committed his present offenses. We therefore conclude that imposition of

consecutive sen

tences is more than adequately supported by the record in this case. Accordingly, the judgment of the trial court is affirmed in all respects.