### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE A ssi gne d on Br ie fs N ove mb er 18, 200 8

STATE OF TENNESS EE v . ROBERT E DWARD BOL ING

Appeal from t he Criminal Court for Sul livan Cou nty No. S52,723 Robert H. M ontgomer y, Jr., Judge

No. E2008-00351-CC A-R3- CD - Filed Fe bruary 26, 2009

The defenda nt, Robert Edward B oling, was convicted by a S ullivan County C riminal Court jury of aggra vated r obbery, see T.C.A. § 39-13-402 ( 2006). He challenge s the sufficie ncy of the convicting

e vid e nc e a nd the a dmi ssi on of te sti mon y that he a lle ge s wa s “ fr uit of the po iso no us tr e e .” Be c aus e the def endant’ s motion for new tria l was untimely, we hold that he ha s waived our consideration of

a ny iss ue e xc e pt f

or su ff ic ie nc y o f the e vid e nc e . H old ing that th e jury w a s w ith in i ts p ro vin c e in

c on vic tin g th e de fe nd a nt, we a ff ir m th e jud gme nt o f the tr ia l c ou rt

. Tenn. R. App . P. 3; Judgment of the C riminal Court Aff irme d

J A M ES C UR W OOD W I TT , J R ., J., delivere d the opinion of the court, in which T H O M A S T. W OOD ALL and R OBER T W. W EDEMEYER , JJ., joined.

William A. Kenne dy, Blountvi lle, Tenne ssee, f or the a ppellant, Robert Edwa

rd Boling.

Robert E. Cooper, Jr., Attorney Gene ral and Reporter ; E lizabeth T. Ryan, Assistan t At t o rn ey Gene ral; H. Gr eele y Wells, Jr., District Attorne y Gene ral; and W illiam Harper , Assistant D i s trict Attorney Ge nera l, for the a ppellee, State of

Tenne ssee.

OP IN ION

On Octobe r 5, 2006, the victim, Sarah McMurr ay, wa s shopping at a Kroge r groc ery store in Kingsport, Tenne ssee, with her husband whe n a man “

jerke d” her pocketbook f

rom her. A s
a re sult, she fell to the ground and br oke her arm. A bystande r identified the d ef en d ant as the assailant. On Ja nuary 10, 2007, a Sulli van County Grand Jury indicted the def endant on one count of aggr avate d robbery and, af ter a two-day jury trial, the def endant wa s convicted a s char ged. The
tr ia l c ou rt se nte nc e d the de fe nd a nt to 30 ye ars ’ imp ri so nme nt a s a c are e r o ff e nd e r w ith c are e r r e le a se eligibilit y (6 0 p e r c e n t)
, a n d th e ju r y imp o s e d a $ 2 5
, 0 0 0 f in e

. T h e f

in a l ju d g me n t w a s e n te r e d on October 12, 2007.

On Novembe r 14, 2007, the de fendant fil ed a m o t i on for ne w trial. De spite the untimeliness of the motion, the trial court held a hearing on the motion for new tria l on January 24,The c l er k ent er ed t he t r i al cour t ’ s j udgm ent on O ct ober 12, 2007. Thus
, t he begi nni ng of t he 30- day per i od 1

b e g a n o n O c to b e r 1 3 , 2 0 0 7

. See Tenn. R. Cr i m

. P. 45( a) ( 1)

. The t hi r t i et h day fe l l on N ovem ber 11, 2007, a Sunda y. The St at e of

Tenne s s ee obs er ved V et er an’ s D ay as a l ega l hol i day on M onday, N ovem ber 12, 2007. The l as t day of

a filin g p e rio d c a n n o t fa ll o n a S a tu rd a y , S u n d a y , o r le g a l h o lid a y , s ee T en n . R . C rim

. P

. 4 5 (a)(2 )(A ); t h ere fo re, t h e last day fo r t h e d efenda nt t o fi l e hi s m ot i on f or ne w t r i al w as Tues day, N ovem ber 13, 2007. The cl er k fi l e- s t am ped t he defenda nt ’ s m ot i on on W edne s day, N ovem ber 14, 2007, one da y out s i de t he 30- day j ur i s di ct i onal pe r i od.

-2- 2008, and denied the motion in a minute e ntry order on the same day. Because the motion for ne w trial was time-ba

rre d, the trial court had no jurisdiction to either conduc t a hearing or make a r uling

on the de fe nd a nt’ s mo tio n f or ne w t ri a l. Se e Sta te v . M

artin
, 940 S.W.2d 567, 569 (T en n

. 1997) 1 (expla ining that when thirty days elapse following the e ntry of the judgments and no tolling motion is tim ely filed, the tria l court loses jurisdiction to vacate the convic tions).

On Februa

ry 14, 2008, the defendant filed his notice of appea l and asserted six issues for our consideration. His first three is s u es collec tively allege insuff iciency of

the convicting evidenc e. In his last three issues, he argues that the t rial court err ed by admitting testimony that was “elicited f rom a stateme n t t h at h ad agree d to be suppresse d,” by admitting a photograph that was simil arly “ elicited fr om a statement that had ag re ed to be suppressed,” and by “not conduc ting a motion to s uppress onc e the objec tion was made at trial to exclude [ t h e t es t i m o n y and the photograph].”

At trial, the victim testified that, on October 5, 2006, she and he r husband ha d been shopping at the Kroge r groce ry store on Stone D rive in Kingsport, Tennesse e. He r husband pa rked their vehic le nea

r the ba ck of the parking lot, “quite a ways fr o m Kr o g er

. ” She testified that she “looked around and saw a man” and that she f irst thought he was an e mployee collec ting shopping

carts f rom the parking lot. She said, “We ll a ll of a sudden I had a jerk and he jerke d my purse off and I said ‘He got my pocketbook,’ that’s all I seen.” Her husband ran afte r the ass ai l an t

. She testified that her

“pocke tbook” containe d her c redit ca rds, che ckbook, and $70 in c ash, and she confirme d she did not give the def endant or anyone e lse permission to take it from her

.

The victim testified that she f ell as a r esult of the robbe ry and that she was subsequently taken to I ndian P ath Hospi tal. She said, “I don’ t remembe r fa lling but I fell and when I did come to my s e lf th e r e s c u e s q u a d me n w [ e r e ] ta k in g me in

. . . I w a s r e a ll y in pain.” She
te sti fi e d tha t she su ff

e re d a con tus ion to he r he a d a nda br ok e n le ft

arm . Sh e te sti fi e d th a t sh e c ou ld not use her le ft arm f

or any pur

pose “f or a long time” and that the arm “still g[ave] [ her] trouble.”

Do c tor Ja me s H . Bu rl e so n, wh o wo rk e d a t In dian Pa th H os pit a l, t re a te d th e vic tim in the emer gency r oom after the robbe ry, and he testified at trial a s an expe rt in emerge ncy medicine

. He state d th a t th e vic tim

“ wa s c omp la ini ng wi th l e ft sh ou lde r p a in andle ft

kn e e pa in an d [he ] d id

x-rays.” He reported that “the x- ray . . . show[ ed] that she [had] a frac ture of he r proximal humorous of her le f t ar m, ” a n d h e e x p lain e d th a t “ [ t] h e lo n g b o n e o f th e le f t ar m a t th e s h o u ld e r joint wa s wher e it wa s b ro k en

. ” He testified that the victim continued to suffer from an “ overa ll decre ased

rang e of mot ion in h e r l e ft

sh ou lde r” a nd“ a sso c ia te d pain .” Doc to r Bur le so n s ta te d, “ I w ou ld believe that she would have continued arthritic type pain with that shoulder.” He further stated that-3-

the vi ctim’s injuries wer e consistent with another person gr abbing her

purse a nd knocking her

to the ground and he r landing on her left shoulder.

Trac y Lawson testified that she worke d for MR Cleane rs and de livered laundry among the compa ny’s differ ent locations in the are a. She stated that on October 5, 2006, she made a delivery t o the MR Cleaners loc ated in the sa me shopping cente r as Kr oger. Ms. La wson “saw somebody walk a

round t he corner of

the building.” She rec alled that she payed particular attention to this i n d ividual because “nobody e ver c [a] me ar ound that corne r exc ept for the employees that worke d there beca

use that’s wh er e [e mployees] pa rked.” She testified that, as she unloa ded the delivery va n, she hea

rd so m eb ody yell, “‘Stop motherf[

--- ]er .’” She the n “saw the same guy that had wa lked by [ h er ] ru nning back, he r[a ]n right bac k in front of [he r] c arrying a woman’ s pocketbook a nd then [she] saw another man chasing him and then a n elder ly man chasing him.” She testified that the man with t h e victim’s purse “ha d on an orange t-shirt, base ball cap, [ and] blue jeans” and that he “ had a little bit of a goatee.”

Ms. Lawson stated that, after seeing the me n pass, she “ told one of the girls . . . that worke d there . . . ‘Call 911, he’s just stole somebody’s pocketbook.’ ” She later de scribed w hat she ob se rv e d t o l a w e n f

o r c e m e n t o f

f i c e r s

. L a t e r t h a t d a y , t h e p o l i c e b r o u g h t a n i n d i v i d u a l to MR Cleaner s for the pur

pose of having Ms. L awson make an identification. She testified that, a lthough

“ [h ]e ha d ch a ng e d clo the s and too k his ha t off ,” the re wa s “no do ub t” in he r m indthat th e ma n in po lic e c us tod y w a s th e pe rp e tr a tor . Sh e ide nti fi e d th e ma n a s th e de fe nd a nt i n c ou rt

.

La rry Be c kn e r t e sti fi e d th a t, o n O c tob e r 5 , 2 00 6, he w a s ridi ng in the ba c k o f h is mother’s minivan in the Kroge r par king lot w h en h e “h ea rd . . . a ma n . . . hollering out about stopping [and] somebody grabbe d his wife’ s pocketbook.” Mr. Beckne r testified that he “dove out

o f th e v a n a n d c h a s e d th e f e ll o w ar o u n d th e b u il d in g o f th e s to r e

. ” H e c la

r if ie d th a t h e d idnot witness the ac tual robbery and that he only sa w a man r unning with a pocketbook.

Mr. Beckne r testified that he chased the ma n and tried to “ football tackle ” him, but “the only thing [he] did w as grabbe d [sic] a hold of his britches leg whic h he eve ntually got loose.” He testified that he had a brief conversation wit h the man and a sked him to throw the pocke tbook back to him. He said t h e m an “f i n ally threw dow n the pocke tbook and the old man wa s standing beside of me and I handed him the pocketbook a nd he che cked it to make sur e that eve rything was in it.” The man then r an up a hill and into a woode d are a.

Mr. Beckne r said that the man “had like a ball cap on, sun glasses, sort o f s t u b by fac ial hair, like re ddish blond, a reddish color.” He explained, “He had on a pair of blue jeans, a n orange s h i rt an d I t hink like . . . work boots or something like that.” Mr. Bec kner state d that he spoke with the police later that day

. Mr. Beckne r was una ble to identify the def

endant a s the man he had c hased. O n cross-e xamination he expla ined that he c ould not see the man well because “the sun was sort of in [his] e yes.”

Offic er D avid Johnson of the Kingsport Ci t y Police Depa rtment testified that he responde d to a ca ll that a robber y had taken place at Kroger. He arrived at the s cene and “[ s]et up a perimeter.” The fir st description he obtaine d of the man “wa s a white male , goatee , bald, wea ring-4-

blue jeans, a n orange shirt and a ba ll cap . . . blac k with a large B on it.” H e stated that “[ a] short time into the sear ch” he rec eived information that the man “may have switched into a gray t-shirt.”

Of fi c e r J oh ns on located a man that he su sp e c te d to be the pe rp e tr a tor a t a pic nic bench. T he man “ had his hea d down on the table but . .

. [wa s] wea ring a gray t-shirt and a sha ved head.” He testified, “[The man] had a long mustache matching the description and then afte r I ha d handcuf fed him for

my safety I n o t i ce d behind him a black ba ll cap matching the de scription.” Offic er Johnson stated t hat t he baseball cap was “a couple of fee t” behind the suspec t. He expla ined that the man’s mustac he “c [a] me all the way down to his chin area from all the way acr oss.” The mustache “ stayed c lose to his face and jus t ran down his face down to his chin.” He identified the

ma n at th e pic nic ta

ble a s th e de fe nd a nt.
Shirley Aston testified that she worke d as the c ashier at a J’s Food Mart conve nience
sto re on Oc tob e r 5 , 2 00 6. She te sti fi e d th a t sh e ha d k no wn the de fe nd a nt f or “ a lon g ti me ” be c aus e his mother had bee n her “ boss.” She stated that the de fe n d ant came to the conve nience store on Oc tob e r 5 to b uy lotte ry tic ke ts.

Ms. Aston testified that the conve nience store wa s equipped with a se curity ca mera syste m a n d th a t s h e h a d u s e d p h o to g r ap h s f r o m th e c a me r a s y s te m o n p r e v io u s o c c a s io n s

. She identified her self and the defendant in a pic ture take n by the ca mera system on October

5, 2006. The trial court a dmitted the photograph fr om the convenie nce store security c amer a into evidence . The ph oto gr aph sh ow e d th a t th e de fe nd a nt w or e a bla c k b a se ba ll c a

p, or a ng e te e sh irt, andblu e je a ns

.

The defenda nt chose not to testify, and defense counsel presented no proof. Based on the evidenc e as summarized above, the jury convic ted the def endant of aggra vated r obbery. O n appea l, the defe ndant cha llenges the suff iciency of the convicting evidence. H e further c hallenges the a dmi ssi on of

Ms. As ton ’s te sti mon y a ndthe se c urity c a me ra ph oto gr aph . H e arg ue s th is evidenc e wa s “fr

uit of the pois o n o u s t re e” beca use law e nforc ement only discover ed that the defe ndant visited J’s Food Ma rt through the defe ndant’s conf ession, which the pa

rties “ha d agre ed to be suppresse d.”

I. Suppression Issues

The de fe n d an t all eges thre e grounds of err or re garding the “ fruit of the poisonous
tr e e ” of e vid e nc e that the pa

rt ie s a lle ge dly “ ha d a gr e e d to be su pp re sse d. ” Th e Sta te c on te nd s th a t, be c a us e t h e d e f

e n d a n tf i l e d a n u n t i m e l y m o t i o n f o r n e w tr i a l
, h e h a s w a i v e d h i s ap p e a l o f t h e se iss ue s. W e a gr e e wi th th e S tate . A mot ionfo r n e w t ri a l mu st b e ma de in w ri tin g o r r e du c e d to writing within thi rty days of the “date the orde r o f s en t ence is entere d.” Te nn. R. Crim. P . 33(b). W e str e ss that th is p ro vis ion is m a nd a tory, a nd the tim e fo r the fi lin g c a nn ot b e e xte nd e d. Te nn . R. Cr im. P. 4 5( b) ; Ma rti n , 940 S.W.2d at 569. F u rt h er m o re , t he appe llate court is precluded f rom
c on sid e ri ng a ny iss ue raise d in a n u nti me ly m oti on fo r ne w tr ia l fo r wh ic h the re me dy is a ne w t ri a l. Te nn . R. Ap p. P. 3 (e ). In the pr e se nt c a se , th e c la im o f an u nti me ly m oti on fo r n e w t ri a l a ff e c ts o nly the suppression issues, not the issue of suff iciency of the evidenc e.
II. Sufficienc

y of the Ev idence-5- Before considering the suf ficienc y of the c onvicting evidence , we n o te that the ineffe ctual motion for new trial and the resulting order overr uling the same led to the untimely filing of the notice of appe al. See Te nn . R. Ap p. P. 4 (a ). On thi s is su e , h owe ve r, the la w i mpa rt s so me leeway in criminal ca ses. Tenne ssee Rule of A ppellate Proc edure 4(a) provides that the notice of appea l in criminal case s is not jurisdi ctional for the appellate court, whic h can waive the timely filing of the notice in the interest of justice. T he def endant e rrone ously believed that his untimely moti on for ne w trial tolled the filing date of his notice of appe al; howeve r, the intere st of justice demands that we waive the timely filing of the notice of appea l, and accor dingly, we will addre ss the i ssue of sufficie ncy of the evidenc e.

The de fenda nt challenge s the sufficie ncy of the evidenc e resulting in his conviction of aggr avate d robbery, arguing that “ identity is t he major issue.” A convicte d criminal def endant who cha llenges the suff

iciency of the evidence on appea l bear s the burden of demonstrating why the evidenc e is insufficient to support the ver dict beca use a guilty verdic t destroys the pre sumption of innocenc e and r eplac es it with a presumption of guilt. See State v . Evans
, 1 0 8 S

. W. 3 d 231, 237 (T e nn . 2 00 3) ; Sta te v . Ca rru the rs , 35 S.W .3 d 5 16 , 5 57 -5 8 ( Te nn . 2 00 0) ; Sta te v . Tu gg le , 639 S.W.2d 913, 914 (Tenn. 1982) . This court must rejec t a def endant’ s challenge to the suff i ciency of the evidenc e if, a fter c onsidering the evidenc e in a light most favora ble to the prosec ution, we determine that any rational trier of f act c ould h av e fo u n d t he esse ntial elements of the c rime beyond a

rea sonable doubt. Se e J

ac k so n v . V irg ini a , 4 43 U. S. 3 07 , 3 19 , 9 9 S. Ct. 27 81 , 2 78 9 ( 19 79 ); Sta te

v . H all , 8 S.W.3d 593, 599 (Tenn. 1999)

.

On appe al, the State is entitled to the strongest legitimate view of the evidenc e and all rea sonable a nd legitimate infere nces w hich may be draw n there from. Se e Car ru the rs , 35 S.W.3d

a t 55 8; Ha ll , 8 S.W.3d at 599. A guilty verdict by the trie r of f act ac cr ed i t s the testimony of the State’s witnesses a nd resolves a ll conflicts in the evidence in favor of the prose cution’s theory. See State v. Bland , 958 S.W.2d 651, 659 (Tenn. 1997)

. Issues of the cr edibility of witnesses, the weight and value of the e vidence , as well as all fac tual issues raised by the evidenc e ar e re solved by the trier of fa ct, and this court will not re- weigh or r e-e valuate the evidenc e. See E vans , 108 S.W.3d at 236; Bland , 958 S.W

. 2 d at 659. This court may not substitute its own inferenc es dra wn from circ umstantial ev i d ence for those draw n by the trier of fac t. See E

vans , 108 S.W.3d at 236-37; Car ru the rs , 35 S.W.3d at 557.

Tenne ssee Code A nnotated section 39-13-401 def ines robbery as “the intentional or knowing theft of pr operty fr om the perso n o f another by violence or putting the person in fea r.” T. C.A . § 39 -1 3- 40 1( a ) ( 20 06 ). An a c t of ro bb e ry is e le vate d to a gg ra vate d ro bb e ry , a s r e le va nt t o th is c a s e , w h e n “ th e v ic ti m s u f f e r s s e r io u s b o d ily injury.” Id. § 39-13-402( a)( 2). Title 39 of our criminal code define s “serious bodily i njury” a s bodily inj ury involving “substantial risk of death,” “[p] rotrac ted unconsc iousness,” “[ e]x tre me p h y s ic al pain,” “ [p]r otrac ted or obvious disfigureme nt,” or “[ p]rotra cted loss or substantial impairment of a function of a

bodily m em b er , organ or mental fac ulty.” Id. § 39-11-106( a)( 34)(A) -(E)

.

The jury wa s prese nted with ample evide nce to c onvict the def endant of aggra vated robbery. Ms. Lawson positively identified the def endant as t h e man she saw fle eing the Kr oger-6-

pa rking lot wi th a pu rs e

. She te sti fi e d that he wa s we ari ng a n or a ng e sh irt, b lue je a ns , a nda ba se ba ll cap and that he had a

goatee . Although Mr. Beckne r could not identify the de fendant as the assailant, his description of the perpe trator’ s clothi n g matched that of Ms. Lawson. Further , the photograph fr om J’s Food Mart of the def en d an t cl ea rl y showed that he wore a blac k hat, ora nge shirt, and blue jea ns. The photogra ph also showed that the defe ndant had goatee -styled fa cial hair

. Offic er Johnson testified that he found a black hat matching the desc ription of the per petrator’s hat behind the def

endant. At that point in time the defe ndant was w earing a gre y shirt; however , when law enf o rc em ent offic ers br ought the defe ndant to Ms. Lawson, she ha d “[n] o doubt” that the defe ndant was the perpe trator. Vie wing this evidence in a light most favor able t o t he State, the evidenc e provide d sufficie n t g ro u n ds for the jury’ s finding that the defe ndant took the victim’s pocketbook.

Furthermore , all other e lements of ag g ra vated r obbery w ere satisfied through the evidenc e adduc ed at tria l. The defenda nt took the pocketbook from the victim’s person by violenc e
a ndwi tho ut h e r c on se nt. He c a us e d th e vic tim to f a ll, a nda s a

re su lt the vic tim

su ff e re d im me ns e pa in andwi ll l ike ly s uf

fe r p e rm a ne nt p a in an d impa ir me nt. W e wi ll n ot d istur b th e jury’ s v e rd ic t.

III . Conclusion

Because the defendant has waive d all issues on appea l exce pt for his claim of ins uf fi c ie nt e vid e nc e a ndthe e vid e nc e a dd uc e d at tria l wa s suf fi c ie nt t o s up po rt

the jury’ s v e rd ic t,

we a ff ir m th e jud gme nt o f t

he tr ia l c ou rt

.

___________________________________

JAMES CURWOOD WI TT, JR., JUDGE