          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT JACKSON            FILED
                           JANUARY 1999 SESSION          March 09, 1999

                                                       Cecil Crowson, Jr.
                                                       Appellate C ourt Clerk
STATE OF TENNESSEE,                  )
                                     )    NO. 02C01-9806-CC-00189
      Appellee,                      )
                                     )    DYER COUNTY
VS.                                  )
                                     )    HON. LEE MOORE,
FRANCESCA TURNER and                 )    JUDGE
 CHARLES EDWARD TAYLOR,              )
                                     )
      Appellants.                    )    (Aggravated Robbery)



FOR APPELLANT TURNER:                     FOR THE APPELLEE:

WILLIAM K. RANDOLPH                       JOHN KNOX WALKUP
P. O. Box 611                             Attorney General and Reporter
Dyersburg, TN 38025-0611
(Trial Only)                              PETER M. COUGHLAN
                                          Assistant Attorney General
MARCUS REAVES                             Cordell Hull Building, 2nd Floor
313 East Lafayette, Ste. 313              425 Fifth Avenue North
P. O. Box 2062                            Nashville, TN 37243-0493
Jackson, TN 38302-2062
(Appeal Only)                             C. PHILLIP BIVENS
                                          District Attorney General
RAMSDALE O’DE NEAL                        P. O. Drawer E
118 Baltimore Street                      Dyersburg, TN 38025-2005
Jackson, TN 38301
(Appeal Only)

FOR APPELLANT TAYLOR:

G. STEPHEN DAVIS
District Public Defender

H. TOD TAYLOR
Assistant District Public Defender
208 North Mill Avenue
P. O. Box 742
Dyersburg, TN 38025-0742


OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                       OPINION


       Defendants, Francesca Turner (hereinafter “Turner”) and Charles Edward

Taylor (hereinafter “Taylor”), appeal as of right their conviction by a Dyer County jury

of the offense of aggravated robbery. Turner received a sentence of eight years as

a Range I standard offender, and Taylor received a sentence of fifteen years as a

Range II multiple offender. On appeal, both defendants raise the following issues:



               (1) whether the trial court erred in refusing to allow
               counsel for both defendants to confer during voir dire;

               (2) whether the trial court improperly limited the
               defendants’ cross-examination of state witnesses; and

               (3) whether the evidence is sufficient to support the
               guilty verdict.



In addition, Turner contends the trial court erred in refusing to give an alibi jury

instruction.1 Taylor also raises three additional issues:



               (1) whether the trial court erred in determining the
               admissibility of his prior convictions if he testified;

               (2) whether a proper chain of custody was established
               for the admission of a cap into evidence; and

               (3) whether an enhancement factor was properly
               applied to him.




       1
         Turner’s brief is not in compliance with Tenn. R. App. P. 27 in that it contains no
statement of the issues or statement of the case. There are also inadequate citations to the
record. Under the “Relief Sought” section of the original brief, she petitions this Court to
reverse the trial court’s denial of the motion to suppress evidence and the motion for severance
of defendants. There is no reference to the record nor any citation of authority. In Turner’s
supplemental brief, the identical statement is made with an argument in support of the motion
to sever defendants. This argument does not contain appropriate references to the record. We
consider these issues waived. Tenn. Crim. App. Rule 10(b).

       As to the motion to sever, we further reject Turner’s argument that a severance was
necessary to promote a fair determination of her guilt or innocence. Whether to grant a
severance of defendants is left to the sound discretion of the trial court and will not be
disturbed unless the defendant is unfairly or unduly prejudiced. State v. Maddox, 957 S.W.2d
547, 556 (Tenn. Crim. App. 1997). We see no reason to disturb the trial court’s ruling.

                                              2
After a careful review of the record, we find no error warranting relief; therefore, the

judgment of the trial court is AFFIRMED.



                                               FACTS



           On January 10, 1997, Turner and Taylor drove to the residence of Vandy

Taylor (hereinafter “Vandy”) in Turner’s white car and picked him up.2 They

discussed robbing a Kroger employee when the employee was to make the night

deposit. Turner had formerly been employed at Kroger.

           They proceeded to a location near the bank night depository. Turner was to

pick up Vandy and Taylor after the robbery. Taylor gave Vandy a pistol, and Taylor

also had a pistol. Taylor and Vandy went around opposite sides of the building. At

approximately 9:25 p.m., as the Kroger employee was about to make the deposit,

Vandy confronted her with the pistol and took the money. Taylor stood behind the

victim.

           Dyersburg Police Officer Ricky Tidwell was on patrol in the vicinity of the

robbery when he observed Vandy come from the side of the bank, go to the victim’s

car and then run back around the bank. At this time the Kroger employee flashed

her lights. Tidwell chased and eventually captured Vandy. Tidwell also saw another

subject dressed in black wearing a toboggan. Prior to capturing Vandy, Tidwell

observed Vandy run by a small white car later identified as Turner’s. Upon his

capture, Vandy advised the officer that Turner was the driver of the car. Tidwell

also recovered the pistol dropped by Vandy during the chase.

           Officer Jim Gray responded immediately to the robbery dispatch which

advised of a subject “dressed in dark clothes.” He observed Taylor, dressed in dark

clothing, walking on the street near the bank. Taylor was taken into custody, and

a pistol and toboggan were recovered near the location where Gray observed

Taylor.



           2
               According to the proof, Vandy Taylor and defendant, Charles Edward Taylor, are not
related.

                                                  3
       Turner observed the officer chasing Vandy and left the scene in her car. A

short while later Turner, accompanied by Vincent Taylor (Vandy’s brother), drove

back to the robbery scene and was apprehended. Upon being stopped, she asked

Vincent Taylor to tell the police that they had been together all day. Vincent Taylor

declined to do so.

       Turner testified at trial that she had been to the “basketball house” in which

college basketball players resided. She left the house and drove through the alley

where she observed an officer chasing Vandy. She stated that she left the area,

picked up Vincent Taylor at a local nightclub and drove back near the crime scene

where she was apprehended.         She denied any involvement in the robbery.

       Taylor did not testify at trial. His counsel contended the gun and toboggan

found did not belong to him, and he was not involved in the robbery.



                                    VOIR DIRE



       Turner and Taylor contend the trial court erred in prohibiting the defendants

from conferring in the exercise of their peremptory challenges. The state concedes

this to be error, but argues it was harmless.

       It is error not to allow consultation among defendants as to the exercise of

peremptory challenges. State v, Simon, 635 S.W.2d 498, 508 (Tenn. 1982).

However, the error may be harmless. Id.

       Simon examined several factors in determining harmless error, including (1)

whether there were duplicate challenges; (2) whether all peremptory challenges

were exhausted; (3) whether any impaneled juror was legally disqualified or

incompetent to serve; and (4) whether the final panel was biased or prejudiced. Id.

at 508-11.   Our review of this record indicates that there were no duplicate

challenges; neither defendant exhausted all available peremptory challenges; no

juror was legally disqualified or incompetent to serve; and there is no evidence of

bias or prejudice of the panel, as finally constituted. The error was, therefore,

harmless. Tenn. R. App. P. 36(b).



                                         4
       This issue is without merit.



                    IMPEACHMENT OF STATE WITNESSES



       Both defendants contend they were improperly limited in their cross-

examination of Vandy as to his plea agreement. Prior to trial, Vandy entered a

guilty plea to aggravated robbery and received an agreed mitigated offender

sentence of 7.2 years at 20%. He conceded this in his testimony; however,

defendants complain the trial court improperly prohibited them from asking Vandy

about his parole date, his calculation of 20% of 7.2 years, the amount of his bond,

and whether his jail report date was postponed until after trial.

       We agree with the defendants’ contention that a state witness may be cross-

examined regarding any promises of leniency or any other favorable treatment

offered to the witness. See State v. Spurlock, 874 S.W.2d 602, 617 (Tenn. Crim.

App. 1993). However, we find no reversible error.

       Vandy testified his sentence was 7.2 years at 20%. The jury was capable of

calculating parole eligibility. Although counsel should have been allowed to ask the

witness whether there was leniency with respect to the bond and report date, this

error was unquestionably harmless. Tenn. R. App. P. 36(b).

       Defendants also complain of the trial court’s refusal to allow questioning as

to prior juvenile bad acts of witnesses Vandy Taylor, Jimmy Taylor and Vincent

Taylor. Since neither defendant makes an appropriate reference to the record

where the alleged error occurred, the issue is waived. See Tenn. R. App. P.

27(a)(7)and (g); Tenn. Crim. App. Rule 10(b); State v. Schaller, 975 S.W.2d 313,

318 (Tenn. Crim. App. 1997). Nevertheless, we have examined the testimony of the

three challenged witnesses with regard to this issue. We agree with defendants’

argument that evidence of a juvenile’s prior bad acts is admissible if the conduct

relates to truthfulness or untruthfulness and is necessary for a fair determination in

the criminal proceeding. See Tenn. R. Evid. 608(b), (c). However, each witness

was impeached with one or more prior convictions or adjudications of guilt. If there


                                          5
was any error with regard to the admission of prior juvenile bad acts, it was

harmless. Tenn. R. App. P. 36(b).



                        SUFFICIENCY OF THE EVIDENCE



       Turner and Taylor contend the evidence was insufficient to support their

conviction of aggravated robbery. In determining the sufficiency of the evidence,

this Court does not reweigh or reevaluate the evidence. State v. Cabbage, 571

S.W.2d 832, 835 (Tenn. 1978). A jury verdict approved by the trial judge accredits

the state's witnesses and resolves all conflicts in favor of the state. State v. Bigbee,

885 S.W.2d 797, 803 (Tenn. 1994); State v. Harris, 839 S.W.2d 54, 75 (Tenn.

1992). On appeal, the state is entitled to the strongest legitimate view of the

evidence and all legitimate or reasonable inferences which may be drawn

therefrom. Id. This Court will not disturb a verdict of guilt due to the sufficiency of

the evidence unless the defendant demonstrates that the facts contained in the

record and the inferences which may be drawn therefrom are insufficient, as a

matter of law, for a rational trier of fact to find the accused guilty beyond a

reasonable doubt. State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996).

Accordingly, it is the appellate court's duty to affirm the conviction if the evidence,

viewed under these standards, was sufficient for any rational trier of fact to have

found the essential elements of the offense beyond a reasonable doubt. Tenn. R.

App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 317, 99 S.Ct. 2781, 2789, 61 L.

Ed.2d 560 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994).

       In Tennessee, a conviction may not be based solely upon the uncorroborated

testimony of an accomplice. State v. Bigbee, 885 S.W.2d at 803 (citing Monts v.

State, 214 Tenn. 171, 379 S.W.2d 34, 43 (1964)); State v. Allen, 976 S.W.2d 661,

666 (Tenn. Crim. App. 1997). In the case at bar, the trial court charged the jury that

Vandy Taylor was an accomplice whose testimony must be corroborated.



       Viewing the evidence in a light most favorable to the state, the evidence



                                           6
showed that Turner, Taylor, and Vandy participated in the planning of the robbery.

All knew the robbery was to be accomplished with the use of a deadly weapon.

Turner drove Vandy and Taylor to the scene and was to pick them up after the

robbery. The aggravated robbery was accomplished, and Taylor was observed

near the scene. A pistol and toboggan were found where Taylor was observed and,

by Turner’s own admission, she was near the scene of the crime at the time of the

aggravated robbery.

       Vandy was an accomplice to the crime, and his testimony requires

corroboration. His testimony was corroborated by state witnesses as well as

Turner’s admission of being near the scene of the crime.

       This was a classic case for the jury. The jury’s determination was dependent

upon the credibility of the witnesses and proper inferences to be drawn from the

evidence. The jury adopted Vandy Taylor’s explanation of Turner’s involvement and

rejected Turner’s testimony. This was the jury’s prerogative. The jury further

concluded, based upon all the evidence, that Taylor was also involved in the

robbery. Again, this was the jury’s prerogative. The evidence sufficiently supports

the verdict.

       This issue is without merit.



                             ALIBI JURY INSTRUCTION



       Turner contends she played no role in the planning or commission of the

crime, and her presence in the vicinity of the crime was totally unrelated to criminal

activity. She contends the trial court erred in failing to give an alibi jury instruction.

       An alibi defense is based upon “evidence which, if believed, would establish

that the defendant was not present at the scene of the alleged crime.” T.P.I. -

CRIM. 42.13 (4th ed. 1995). Since Turner admitted her presence near the scene of

the crime, an alibi jury instruction would have been inappropriate. This issue is

without merit.




                                            7
                         TAYLOR’S PRIOR CONVICTION



       Taylor contends the trial court erred in ruling that his prior felony conviction

for possession of contraband in a penal institution would be admissible in the event

he testified. See Tenn. Code Ann. § 39-16-201. The defendant eventually elected

not to testify and made no offer of proof.

       The defendant’s failure to make an offer of proof as to his proposed trial

testimony precludes effective appellate review. See State v. Baxter, 938 S.W.2d

697, 703 (Tenn. Crim. App. 1996). Furthermore, we conclude the trial court did not

err in finding that the probative value of this felony conviction outweighed its unfair

prejudicial effect. Tenn. R. Evid. 609(a); see also generally State v. Mixon, ___

S.W.2d ___ (Tenn. 1999). This issue is without merit.



                               CHAIN OF CUSTODY



       Taylor contends the trial court erred in admitting a cap into evidence, as the

chain of custody was not properly established. We respectfully disagree.

       On the night of Turner’s arrest, Officer Porter performed an inventory search

of her car. Although he noticed a black leather ball cap in the back seat, he did not

think it was significant at the time and did not seize it. Upon learning of its possible

significance, Porter subsequently requested the cap. Turner’s brother retrieved the

cap from a closet and delivered it to Porter. There was further trial testimony

indicating that the cap belonged to Taylor.

       As a condition precedent to the introduction of tangible evidence, a witness

must be able to identify the evidence or establish an unbroken chain of custody.

State v. Baldwin, 867 S.W.2d 358, 361 (Tenn. Crim. App. 1993)(citation omitted).

While the state is not required to establish facts which exclude every possibility of

tampering, the circumstances established must reasonably assure the identity of the

evidence and its integrity. Id. This issue addresses itself to the sound discretion of




                                           8
the trial court, and the court’s determination will not be disturbed in the absence of

a clearly mistaken exercise of such discretion. Id.

       The trial court did not abuse its discretion in admitting this item into evidence.

Taylor’s objection goes to the weight given this evidence as opposed to its

admissibility. This issue is without merit.



                                      SENTENCING



       Finally, Taylor contends the trial court erroneously enhanced his sentence

by finding the crime was committed under circumstances creating great potential for

bodily injury. See Tenn. Code Ann. § 40-35-114(16). 3 Specifically, Taylor contends

he cannot be assigned an enhancement factor not attributable to the actual

perpetrator, Vandy, who was sentenced as an especially mitigated offender. Taylor

contends it was only Vandy’s actions that caused the potential for bodily injury to be

great. We respectfully disagree.

       The sentence received by Vandy Taylor pursuant to a plea agreement is not

relevant to the application of enhancement factors relating to Taylor. Furthermore,

the evidence indicated that Taylor was in possession of a pistol near the car

occupied by two Kroger employees at the time of the actual aggravated robbery by

Vandy.

       This issue has no merit.



                                      CONCLUSION



       After a careful review of the record, we find no reversible error. Accordingly,

the judgment of the trial court is affirmed.




       3
        Ordinarily, this enhancement factor may not be used for aggravated robbery. See State
v. Claybrooks, 910 S.W.2d 868, 872 (Tenn. Crim. App. 1994). However, it may be applied
where individuals other than the victim are in the area and subject to injury. See State v. Sims,
909 S.W.2d 46, 50 (Tenn. Crim. App. 1995). The evidence shows that there was another
Kroger employee in the car with the victim of the aggravated robbery.

                                              9
                                      _____________________________
                                      JOE G. RILEY, JUDGE



CONCUR:



______________________________
DAVID G. HAYES, JUDGE



______________________________
JOHN EVERETT WILLIAMS, JUDGE




                                 10
