         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs October 4, 2005

           STATE OF TENNESSEE v. LESTER JAMES FARRIS, JR.

                   Direct Appeal from the Circuit Court for Fayette County
                           No. 5522    J. Kerry Blackwood, Judge



                  No. W2005-01021-CCA-R3-CD - Filed November 22, 2005


This is a direct appeal as of right from jury verdict convictions for aggravated robbery, aggravated
burglary and theft of property. The Defendant, Lester James Farris, Jr., was sentenced as a Range
II, multiple offender to an effective twenty year sentence. The Defendant argues three issues on
appeal: (1) the trial court erred in denying his motion to suppress a statement he made to law
enforcement officers; (2) there is insufficient evidence to find him guilty beyond a reasonable doubt
of the three offenses for which he was convicted; and (3) his sentence is excessive. We affirm the
judgments of the trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed,
                     Remanded Solely to Correct Error on Judgment

DAVID H. WELLES, J., delivered the opinion of the court, in which JERRY L. SMITH and ALAN E.
GLENN , JJ., joined.

Shana Johnson, Assistant Public Defender, Somerville, Tennessee, for the appellant, Lester James
Farris, Jr.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; and
Elizabeth T. Rice, District Attorney General, for the appellee, State of Tennessee.


                                             OPINION

                                              FACTS
       The Defendant’s three convictions result from his involvement in a home invasion on August
2, 2001, in which he and two of his cohorts unlawfully entered a home in Fayette County, held two
victims at gunpoint, robbed them, tied them up with a telephone cord, and then fled in the victims’
automobile. As a result of this incident a Fayette County grand jury indicted the Defendant in July
of 2004 on charges of especially aggravated robbery, especially aggravated burglary, theft of property
valued at $10,000 or more but less than $60,000, and aggravated kidnapping. The Defendant
subsequently filed a motion to suppress an incriminating statement he made to Investigator Ricky
Wilson of the Fayette County Sheriff’s Department. A pre-trial hearing was conducted and the
Defendant’s motion to suppress was denied. The Defendant received a jury trial in December of
2004.

        The evidence presented at trial shows that the Defendant and two other men drove a stolen
white van from Memphis to the home of Michael and Jerelyn Alperin (the victims) in Arlington.
The Defendant walked into the victims’ garage or carport and asked Mr. Alperin for work.1 Mr.
Alperin testified that he stepped inside his house to get a pencil to write down the Defendant’s
contact information when: “I heard the door open and the next thing I saw, a gun, somebody yelling.”
Jerelyn Alperin testified that she was standing nearby in the kitchen while her husband talked to a
man at the door leading out to the garage when: “the next thing I knew, I saw a gun coming through.”
Mr. Alperin further stated that he was then forced to the floor with a gun to the back of his head; the
assailants shouted that they were going to kill him and his wife; and the gunmen demanded he tell
them where the “money and guns” were. Mrs. Alperin also testified that she was forced to the floor
at gunpoint and her life was threatened.

        After Mr. Alperin informed the two assailants where he kept some cash, they then forced him
and his wife to get up off the floor and escorted them both to a back bedroom. Mrs. Alperin was
forced to accompany one of the men to a different room for several minutes, and when she returned
both victims were forced to lay face down on the bed and their hands were bound with a telephone
cord. Mr. Alperin testified that when he raised his head to breathe, he was “hit on the side of the
head with something metal and it knocked [him] out.” Mr. Alperin could not remember how long
he was unconscious, but as he came to, he heard his wife pleading, “please don’t hurt him.”

       Mrs. Alperin testified that she was first escorted to the back bedroom by the “big man,”
whom she recognized from prior business dealings as Fred Hill. She was then forced to leave her
husband and escorted at gunpoint to the master bedroom by the “thin man,” whose face she never
saw. While there, the man took some jewelry, and then escorted Mrs. Alperin back to the room
where her husband was. After tying up the victims, the two men rummaged through the house for
several more minutes, then Fred Hill returned to the room where the victims were tied up. He
inquired about car keys he had found, and the two men left.

        Mr. Alperin testified that after he was able to get his hands free he untied his wife. He then
called his son on a cell phone to warn him that robbers may be looking for him while his wife called
the police. Mr. Alperin further stated that the two men stole cash, jewelry, and their new car, which
they had purchased for $23,000 only three to six months earlier. Rebecca Alperin, the victims’
daughter, testified that after she learned of the burglary she flew in from Los Angeles the next day
to be with her parents. She observed that her mother’s wrists were bruised and her father’s face was
severely bruised. Mr. Alperin testified that he still had an indention in the side of his head where he
was hit, and Mrs. Alperin testified that she suffered emotional difficulties due to the home invasion,


       1
           The record on appeal describes the area of the Defendant’s entrance as alternately a garage and a carport.

                                                          -2-
and was forced to seek medical treatment. At the time of the trial, Mrs. Alperin was still taking anti-
depressant medication as a result of the incident.

        Investigator Ricky Wilson testified at trial that he interviewed the victims and investigated
the crime scene the day of the crime, but found few leads at the time. Ten days after the robbery the
victims’ car was recovered in Memphis, but the driver, James Dallas Jones, said he obtained the car
from Fred Hill and a man he called “Chucky.”2 There was no evidence at the time to connect Mr.
Jones with the burglary and robbery of the Alperins. He was never charged with any crimes
connected to the incident at issue in this case. Mr. Jones, described as a thin man, died of a heart
attack not long after speaking to Investigator Wilson.

        Investigator Wilson also testified that he attempted to contact Fred Hill for quite some time,
but Mr. Hill moved frequently and was difficult to find. The same day that the Investigator was able
to track him down, Mr. Hill was shot and killed over a gambling debt before the Investigator could
interview him. Little progress was made on the case until Mr. Alperin called Investigator Wilson
in July of 2004, with a tip on the identity of one of the men involved in his 2001 home invasion.
This tip led Investigator Wilson to the Defendant, who was being held by the Shelby County
Sheriff’s Department on unrelated charges. Investigator Wilson interviewed the Defendant, who
waived his rights and volunteered a statement that described his involvement in the incident.

        In this statement, presented to the jury and included in the record on appeal, the Defendant
stated that he, Fred Hill and James Jones cased the Alperins’ home the day before they robbed it.
He said that the day of the robbery he “stayed outside as a lookout” while Fred Hill and James Jones
went inside. His duty was to stay out in the white van so he could “honk the horn if someone was
coming.” He further stated that when Mr. Hill and Mr. James left the victims’ house, they picked
the Defendant up and they all drove back to Memphis in the victims’ car, abandoning the van. The
Defendant further stated he was paid $150.00 for acting as the lookout.

        Investigator Wilson testified that he “Mirandized” the Defendant prior to taking his
statement; the Defendant signed a written waiver of his rights; the Defendant initialed every answer
he provided and signed each page of the written statement; the Defendant’s testimony was not
coerced; and that the Defendant was both “coherent” and free to leave the interview room at any
time. On cross-examination, Investigator Wilson admitted that the Defendant had recently been shot
by Memphis Police in an unrelated altercation; he was initially “upset with law enforcement”; and
while the Defendant was free to leave the interview, he was still in the custody of the Shelby County
Sheriff’s Department and not free to leave the building.

       The Defendant elected not to testify or put forward any evidence at trial.




       2
           The record reveals that “Chucky” was an alias used by the Defendant on occasion.

                                                        -3-
         At the conclusion of the trial the jury convicted the Defendant of aggravated robbery,
aggravated burglary, and theft of property valued at $10,000 or more but less than $60,000.3 The
Defendant was found not guilty of the offense of aggravated kidnapping. The Defendant was
subsequently sentenced as a Range II, multiple offender to twenty years for the Class B felony
aggravated robbery conviction, and seven years each for his Class C felony aggravated burglary and
theft of property convictions. The sentences were ordered to be served concurrently for an effective
twenty year sentence.4 The Defendant filed a motion for judgment of acquittal, or in the alternative
a new trial, both of which were denied by the trial court in April of 2005. This appeal followed.

                                             ANALYSIS
        The Defendant asserts on appeal that his motion to suppress the statement he made to
Investigator Wilson “should have been granted,” that the “evidence is not sufficient to establish
proof of guilt beyond a reasonable doubt,” and that his “sentence is excessive.” We conclude that
the Defendant is not entitled to relief on any of the three claims.

I. Motion to Suppress
        In his first issue, the Defendant asserts that the trial court erred when it failed to suppress the
custodial statement he made to Investigator Wilson. To support this claim, the Defendant argues that
under the “circumstances” his confession was involuntary. The Defendant argues that because he
had recently been shot in the back by Memphis Police officers, was still wearing a neck brace when
interviewed, “initially did not want to speak with Officer Wilson,” and was not at liberty to leave the
building, his “free will” had been “undermined.” Thus, the Defendant argues, his confession was
involuntary, and his rights under Miranda and the Fifth Amendment were violated. Therefore, the
Defendant asserts, his statement should have been suppressed and the trial court erred in failing to
do so.

        The findings of fact made by the trial court at a hearing on a motion to suppress are
conclusive on appeal and binding upon this Court unless the evidence preponderates otherwise.
State v. Ross, 49 S.W.3d 833, 839 (Tenn. 2001); State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996).
However, this Court is not bound by the trial court’s conclusions of law, see State v. Randolph, 74
S.W.3d 330, 333 (Tenn. 2002), as the application of the law to the facts found by the trial court are
questions of law that this Court reviews de novo on appeal. State v. Daniel, 12 S.W.3d 420, 423
(Tenn. 2000); State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997). Furthermore, questions of the
“credibility of the witness, the weight and value of the evidence, and resolution of conflicts in the
evidence are matters entrusted to the trial judge as the trier of fact.” Yeargan, 958 S.W.2d at 628.
The prevailing party is entitled to the strongest legitimate view of the evidence adduced at the
suppression hearing as well as all reasonable and legitimate inferences that can be drawn from that
evidence. State v. Hicks, 55 S.W.3d 515, 521 (Tenn. 2001); Odom, 928 S.W.2d at 23. Finally, both

         3
         The jury found the Defendant guilty of lesser-included offenses within the indicted especially aggravated
robbery and especially aggravated burglary charges.

         4
         The sentencing information cited in this opinion was obtained from the judgment forms in the technical record.
The Defendant/Appellant has failed to include in the record any transcripts from the sentencing hearing.

                                                         -4-
the evidence presented at the suppression hearing and the proof adduced at trial may be considered
in reviewing the trial court’s ruling on a motion to suppress. State v. Henning, 975 S.W.2d 290, 299
(Tenn. 1998).

        The Fifth Amendment to the United States Constitution provides, in relevant part, that “no
person . . . shall be compelled in any criminal case to be a witness against himself.” U.S. Const.
amend. V. Likewise, the Tennessee Constitution guarantees that “in all criminal prosecutions, the
accused . . . shall not be compelled to give evidence against himself.” Tenn. Const. art. I, § 9. In
Miranda v. Arizona, the United States Supreme Court held that the Fifth Amendment prohibition
against self-incrimination, as applied to the states through the Fourteenth Amendment, requires
police officers to advise a defendant of his or her right to remain silent and right to counsel before
they could engage in custodial interrogation. See 384 U.S. 436, 479 (1966). “Custodial
interrogation” was defined by the Court as “questioning initiated by law enforcement officers after
a person has been taken into custody or otherwise deprived of his freedom of action in any
significant way.” Id. at 444. If these warnings are not given, any statements elicited from the
accused are not permitted to be used in the prosecution’s case-in-chief. See Stansbury v. California,
511 U.S. 318, 322 (1994). However, an accused may waive his or her right against self-
incrimination. Miranda, 384 U.S. at 444. For a waiver of the right against self-incrimination to be
held constitutional, the waiver must be made “voluntarily, knowingly, and intelligently.” Id. Our
supreme court has held that a court may conclude that a defendant has voluntarily waived his or her
rights only if, under the totality of the circumstances, the court determines that the waiver was
uncoerced and that the defendant understood the consequences of the waiver. See State v.
Stephenson, 878 S.W.2d 530, 545 (Tenn. 1994).

        In this case, the Defendant’s statement was clearly elicited through a custodial interrogation.
However, the record on appeal reflects that the Defendant was properly advised of his Miranda
rights, and that the Defendant understood those rights. The Defendant signed a written waiver of
his rights, including the right against self-incrimination. When asked at the conclusion of the
custodial interrogation if Investigator Wilson “abused [the Defendant] in any way to get this
statement,” the Defendant responded “no.” Although the Defendant was wearing a neck brace due
to an altercation with the Memphis Police on an unrelated matter, we cannot conclude that this
rendered the Defendant incapable of voluntarily and knowingly waiving his rights. Additionally,
Investigator Wilson testified that the Defendant was “coherent” at the time of the interview, and the
Defendant has presented no evidence to the contrary.

        Indeed, from our reading of the record, it appears that the Defendant demonstrated little
hesitation in providing his statement, presumably because he erroneously believed that he was
subject to little or no culpability for acting merely as a “lookout” while his cohorts committed the
crimes at issue. In short, the record before us does not preponderate against the findings of the trial
court. Accordingly, we conclude that the trial court did not err in denying the Defendant’s motion
to suppress his statement. This issue is without merit.




                                                 -5-
II. Sufficiency
        The Defendant also asserts that there is insufficient evidence for any rational trier of fact to
find beyond a reasonable doubt that he was guilty of the three offenses for which he was convicted.
In support of this assertion, the Defendant argues in his appellate brief:

               The record lacks any evidence that Mr. Farris was guilty of aggravated
       robbery pursuant to TCA section 39-13-402. There was no proof before the jury that
       Mr. Farris had a weapon, inflicted bodily injury on the victims nor took property
       from the victims.
               The record is vacant of any proof that Mr. Farris entered the habitation of the
       victims without their effective consent pursuant to TCA section 39-14-403.
               The record lacks any proof that Mr. Farris exercised control over property of
       the victims pursuant to TCA section 39-14-103.

Therefore, the Defendant claims, the evidence fails to establish his guilt beyond a reasonable doubt.
We disagree.

        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.

       The Defendant was convicted of aggravated burglary, which includes the entry of a habitation
and the commission of a theft therein. See Tenn. Code Ann. §§ 39-14-402 and 39-14-403. The


                                                  -6-
Defendant was also convicted of aggravated robbery, which is defined, in relevant part, as the
intentional or knowing theft of property from the person of another by violence or fear and
accomplished with a deadly weapon. See Tenn. Code Ann. §§ 39-13-401 and 39-13-402. Finally,
the Defendant was convicted of theft of property valued at $10,000 or more but less than $60,000.
A person commits theft of property if that person: 1) “knowingly obtains or exercises control over
the property,” 2) “with intent to deprive the owner” of the property, and 3) “without the owner’s
effective consent.” Tenn. Code Ann. § 39-14-103. In addition to these three elements, the fact
finder must also determine the classification of the theft, based on the value of the property stolen.
A theft of property valued at $10,000 or more but less than $60,000 is a Class C felony. See Tenn.
Code Ann. § 39-14-105(4).

        The Defendant argues that he cannot be found guilty of the three crimes he was convicted
of because he never actually entered the victims’ home; he did not personally rob the victims at
gunpoint; he did not personally take the victims’ property through fear; nor did he possess a gun.
In short, the Defendant argues that he cannot be found guilty because he was not the principal in the
crimes committed by his two cohorts, both of whom are now deceased. The Defendant’s argument
is misplaced. Our law supports the Defendant’s convictions under the theory of criminal
responsibility.

         Tennessee statutes hold that a person is “criminally responsible for an offense committed by
the conduct of another if: [A]cting with intent to promote or assist the commission of the offense,
or to the 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). This statute
codifies the longstanding common law theories of “accessories before the fact and aiders and
abettors.” Id., Sentencing Commission Comments. However, 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). No particular act need be shown, and the defendant need not
have played a physical role in the crime in order to be held criminally responsible for the crime. See
State v. Caldwell, 80 S.W.3d 31, 38 (Tenn. Crim. App. 2002). Rather, to be held criminally
responsible for the acts of another, the 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 principle
in the first degree.’” Id. (citing State v. Maxey, 898 S.W.2d 756, 757 (Tenn. Crim. App. 1994).

       In this case, the record reveals that the Defendant both acted with intent to “assist [in] the
commission of the offense[s]” and “benefit[ed] in the proceeds or results of the offense[s].” Tenn.
Code Ann. § 39-11-402(2). In addition to Mr. Alperin’s testimony that placed the Defendant in
association with his two armed cohorts, the Defendant has himself admitted, in substantial detail,


                                                    -7-
his involvement in the commission of the offenses. The Defendant stated that he “stayed outside
as a lookout,” but also admitted to aiding in the planning of the offenses by participating in casing
the house the day before the offenses were committed. In addition to assisting in the commission
of the crimes through planning and acting as a lookout, the Defendant also benefitted from the
proceeds of the offenses, stating that he received $150.00 for his role in the crimes. Moreover, the
record supports, and the Defendant does not challenge, the jury’s findings that all of the essential
elements of aggravated burglary, aggravated robbery, and theft of property were established in this
case.

       We conclude that the Defendant’s aid in the commission of the offenses, as well as his
monetary benefit, have rendered him criminally responsible for each of the three offenses for which
he was convicted. Accordingly, viewed in the light most favorable to the State, we conclude that
the Defendant has failed to meet his burden of demonstrating that there was insufficient evidence
presented at trial for a rational trier of fact to find beyond a reasonable doubt that he was guilty of
aggravated burglary,5 aggravated robbery, and theft of property over $10,000 but less than $60,000.
Thus, this issue has no merit.

III. Sentencing
        In his final issue on appeal, the Defendant asserts the trial court erred by imposing an
excessive sentence. To support this claim the Defendant argues that the trial court failed to make
“findings of fact that are adequately supported by the record,” and failed to give “due consideration
and proper weight to the factors and principles set out under the sentencing law.” A transcript of the
sentencing hearing is not contained in the record on appeal. Because the Defendant failed to prepare
an adequate record on appeal pertaining to sentencing, we are precluded from determining this issue
on its merits.

        When a party seeks appellate review, the party is charged with the “duty to prepare a record
which conveys a fair, accurate and complete account of what transpired with respect to the issues
forming the basis of the appeal.” State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993) (citing State
v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983)). See also Tenn. R. App. P. 24(b).6 It is well
established that “an appellate court is precluded from considering an issue when the record does not
contain a transcript or statement of what transpired in the trial court with respect to the issue.” State
v. Draper, 800 S.W.2d 489, 493 (Tenn. Crim. App. 1990). See also Ballard, 855 S.W.2d at 560-61.
Moreover, in the absence of a record to review “the appellate court must conclusively presume that
the ruling of the trial judge was correct, the evidence was sufficient to support the defendant’s
conviction, or the defendant received a fair and impartial trial.” Draper, 800 S.W.2d at 493. See


         5
          W e note that the judgment entered for the aggravated burglary conviction erroneously refers to the conviction
as being a violation of “T.C.A. # 39-14-401,” rather than the correct statute, “T.C.A. 39-14-403.”

         6
          “If a stenographic report or other contemporaneously recorded, substantially verbatim recital of the evidence
or proceedings is available, the appellant shall have prepared a transcript of such part of the evidence or proceedings as
is necessary to convey a fair, accurate and complete account of what transpired with respect to those issues that are the
bases of appeal.” Tenn R. App. P. 24(b).

                                                           -8-
also State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991). Accordingly, an appellant’s
failure to include a complete transcript of the proceedings forming the basis of an appeal results in
waiver of any challenge of the lower court’s ruling. See Ballard, S.W.2d at 560-61; Draper, 800
S.W.2d at 493.

        Because the Defendant failed to prepare an adequate record on appeal by omitting the
sentencing hearing transcript, this Court is prevented from properly reviewing the issue. Therefore,
any claim of error pertaining to sentencing cannot be addressed by this Court. See State v. Kathryn
Lee Adler, No. W2001-00951-CCA-R3-CD, 2002 WL 1482704, at *6-7 (Tenn. Crim. App., Jackson,
Feb. 19, 2002) (holding that the defendant waived consideration of whether sentence was excessive
by failing to provide the appellate court with a transcript of the sentencing hearing). Accordingly,
we conclude that the Defendant’s sentencing issue is waived.

                                        CONCLUSION
        Based on the foregoing reasoning and authorities, we affirm the judgments of the trial court
as to the Defendant’s convictions and sentence. This case is remanded solely for the purpose of
correcting the judgment of conviction for aggravated burglary to reflect the violation of Tennessee
Code Annotated section 39-14-403.


                                                      ___________________________________
                                                      DAVID H. WELLES, JUDGE




                                                -9-
