        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs August 14, 2013

           STATE OF TENNESSEE v. TIMOTHY SHANE HIXSON

                Appeal from the Criminal Court for Davidson County
                  No. 2010-B-1676    Cheryl A. Blackburn, Judge


                No. M2012-02357-CCA-R3-CD - Filed August 14, 2013


The defendant, Timothy Shane Hixson, appeals his Davidson County Criminal Court jury
conviction of aggravated robbery, challenging the sufficiency of the convicting evidence and
the exclusion of certain evidence. Discerning no error, we affirm.

            Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

J AMES C URWOOD W ITT, JR., J., delivered the opinion of the Court, in which J ERRY L. S MITH
and R OBERT W. W EDEMEYER, JJ., joined.

Chelsea Nicholson (on appeal); and Jack Byrd (at trial), Nashville, Tennessee, for the
appellant, Timothy Shane Hixson.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney
General; Victor S. Johnson III, District Attorney General; and Jeff Burks, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

               On June 15, 2010, the Davidson County grand jury charged the defendant,
James Kevin Rogers, and Mollie Elizabeth Pasquini with one count of aggravated robbery.
The trial court conducted a jury trial in April 2012.

               At trial, Shamal Harley, the victim, testified that, in February 2010, he was a
student at Nashville Auto Diesel College. On the evening of February 20, he attended a
graduation party on campus, and between 10:00 p.m. and midnight, he began walking to his
residence, which he estimated to be approximately one block from the school. En route to
his residence, Mr. Harley encountered a Chevrolet Avalanche on the side of the road, and he
noticed three persons inside the vehicle. Mr. Harley had never seen any of them prior to that
night. The driver of the vehicle and the front-seat passenger were engaged in an argument,
and the driver asked Mr. Harley “could he have [Mr. Harley’s] opinion on it.” Mr. Harley
briefly spoke with the driver. During this brief conversation, the front-seat passenger exited
the vehicle; Mr. Harley presumed that the passenger was urinating.

                After Mr. Harley had answered the driver’s question, he turned and began to
walk away. He had walked approximately five steps when the front-seat passenger grabbed
him from behind and demanded his “F’ing wallet.” Mr. Harley testified that he “started to
tussle with” the assailant, and in the process, he “reached up and touched the knife” that the
perpetrator was holding to Mr. Harley’s neck. Mr. Harley testified that it was a real knife,
but he was unable to describe the knife. Once he realized the assailant was holding a knife,
Mr. Harley quit struggling and gave the robber his wallet. He stated that the wallet contained
no cash, but it did contain his identification, social security number, bank cards, and various
other cards.

               Mr. Harley stated that the driver never left the car, but the back-seat passenger
exited the vehicle and “said something” although Mr. Harley did not recall what she said or
whether she was speaking to him or to the robber. After taking Mr. Harley’s wallet, the
robber told Mr. Harley to walk toward the school. The robber and the back-seat passenger
returned to the vehicle, and the Avalanche left the area. At that point, Mr. Harley returned
to his residence and called the police to report the robbery. A uniformed patrol officer
arrived shortly thereafter, and Mr. Harley gave a full report to the officer, describing the
occupants of the vehicle and the vehicle itself. Mr. Harley also mentioned that he had
noticed a wheelchair in the back seat of the vehicle. After speaking with the officer for
“maybe five or ten minutes,” the officer informed him that he might “have the suspects.” Mr.
Harley rode with the police officer to a spot approximately one to two miles away, where a
Chevrolet Avalanche was parked. A person was in handcuffs, and other police officers were
present. Mr. Harley recognized the Avalanche as the same vehicle in which the robber was
riding, noting that the vehicle was distinguishable by its after-market rims. Mr. Harley also
recognized all three of the vehicle’s occupants. The officers on the scene had recovered Mr.
Harley’s wallet, but his social security card and his Regions bank card were missing.

               Mr. Harley stated that, when he arrived at the scene, he recognized the driver,
the front-seat passenger, and the back-seat passenger. Mr. Harley positively identified the
defendant as the front-seat passenger and as the man who robbed him. He also positively
identified the driver, James Rogers, and the back-seat passenger, Mollie Pasquini.

                On cross-examination, Mr. Harley admitted that the robbery might have taken
place at a later time, estimating that it occurred between 10:00 p.m. and 2:00 a.m. Mr. Harley
denied that he had been drinking or “doing anything else” while at the graduation party. Mr.

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Harley denied seeing the defendant using a cane. Mr. Harley admitted that he never saw the
defendant brandish a knife, but he did “reach[] up” and “felt what [he] thought was a knife.”

             On redirect examination, Mr. Harley described the way in which the defendant
grabbed him, stating “[w]hen I touched the knife, that’s when I pretty much gave up at that
point because I noticed it was a real knife.”

               Officer Bradley Nave with the Metropolitan Nashville Police Department
(“Metro”) testified that, on February 20, 2010, he heard a call on dispatch at approximately
2:00 a.m. regarding a robbery and a description of both the vehicle involved and the
occupants of the vehicle. The dispatcher also mentioned that the robbery victim reported
seeing a wheelchair in the back of the vehicle. About one hour later, Officer Nave was
dispatched to Granada Avenue where a vehicle matching the description of the Chevrolet
Avalanche had been reported. Officer Nave and Metro Detective Jack Stanley approached
the vehicle, and they noticed a wheelchair in the backseat of the vehicle.

              Officer Nave discovered only two persons inside the vehicle, later identified
as the defendant, who was seated in the passenger’s seat, and James Rogers, the driver.
Officer Nave identified the defendant in court as the man seated in the passenger’s seat of
the vehicle. Based on his conversation with the defendant and Mr. Rogers, Officer Nave
approached the house nearest the vehicle and encountered Ms. Pasquini inside the house.

               Officer Nave explained that Metro Officer Gutrow had responded to Mr.
Harley’s 9-1-1 call and had written the offense report but that Officer Gutrow had retired and
moved to the Dominican Republic. Once Officer Nave was convinced that they had located
the suspects who had robbed Mr. Harley, Officer Nave contacted Officer Gutrow to ask him
to bring Mr. Harley to the scene to identify the suspects. Following Mr. Harley’s positive
identification of the suspects at the scene, Officer Nave and his fellow officers arrested the
defendant, Mr. Rogers, and Ms. Pasquini. Following the arrest of the suspects, Detective
Stanley conducted a search of the vehicle and pointed out to Officer Nave a knife and some
loose credit cards found inside the vehicle.

               On cross-examination, defense counsel asked Officer Nave whether he recalled
seeing the defendant with a cane, and Officer Nave responded that it “sound[ed] familiar”
but that he did not “remember the details about it.” Officer Nave also acknowledged that,
on the defendant’s arrest report on February 20, he indicated the defendant was “disabled”
and that he “would put that if that’s what [the defendant] told [him].”

            Metro Detective Jack Stanley testified that he and Officer Nave arrived on
Granada Avenue at approximately the same time on February 20. Detective Stanley stated

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that he observed a vehicle and two occupants matching the description given by the
dispatcher. Detective Stanley also noticed the wheelchair located behind the driver’s seat.
He asked the driver, Mr. Rogers, to step out of the vehicle, and Mr. Rogers explained that
he needed his wheelchair due to a disability. Once both Mr. Rogers and the defendant had
been removed from the vehicle, Detective Nave noticed a pocket knife located on the
floorboard in the front passenger’s area “almost up under the . . . seat.” Detective Nave also
noticed, in plain view, some credit cards containing the victim’s name. The victim arrived
on the scene a short time later and identified the suspects. At trial, Detective Nave identified
the defendant and Mr. Rogers as the men arrested on February 20.

             On cross-examination, Detective Nave admitted that he recalled seeing the
defendant with a cane.

                With this evidence, the State rested its case. Following the trial court’s denial
of the defendant’s motion for judgment of acquittal and a Momon colloquy, the defendant
elected to testify. See Momon v. State, 18 S.W.3d 152, 161-62 (Tenn. 1999). The defendant
testified that, on December 5, 2009, he suffered a broken leg when a car crashed into his
residence. The defendant’s prescription for pain medication had elapsed, so he contacted his
girlfriend to accompany him to an area of town where he could purchase pain pills on the
street. Because his girlfriend was too intoxicated to drive, she told the defendant to take her
vehicle, which he did, even though he did not have a driver’s license. The defendant drove
to an area near the Nashville Auto Diesel College and encountered Mr. Harley walking down
the street. The defendant asked Mr. Harley if “he know[s] where [the defendant] can get any
pills,” and, according to the defendant, Mr. Harley responded that his “buddy” had some for
$10 each. The defendant told Mr. Harley that he would like to purchase three pills, and Mr.
Harley explained that he needed the $30 up front. When the defendant was hesitant to give
him the cash, Mr. Harley offered to let the defendant hold his wallet until he returned with
the pills. The defendant acquiesced, giving Mr. Harley $30 and accepting his wallet in
return. Mr. Harley instructed the defendant to “make the block a couple of times,” and Mr.
Harley left.

               The defendant testified that he drove around the area for 15 to 20 minutes but
that he began to worry that he would be stopped by law enforcement officers because he was
in an area known for drug dealing. The defendant then decided to drive to Granada, where
he encountered Mr. Rogers, known as “Wheelchair,” sitting in his new Chevrolet Avalanche.
Mr. Rogers offered to take the defendant for a ride in the vehicle, and the defendant climbed
into the front passenger’s seat. At that time, Ms. Pasquini exited her residence on Granada
and climbed into the backseat of the vehicle, where she “pass[ed] out” due to intoxication.

              At the defendant’s request, Mr. Rogers drove to the area of the Nashville Auto

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Diesel College, where the defendant spotted Mr. Harley. The defendant exited the vehicle
with a buck knife “on his side,” but he testified that he never pulled the knife on Mr. Harley.
The defendant asked Mr. Harley if he had the pills, and Mr. Harley asked if the defendant
had his wallet. The defendant held out the wallet, and, according to the defendant, Mr.
Harley grabbed the wallet and attempted to run away. The defendant, however, did not
release the wallet, causing him to fall on top of Mr. Harley. At that point, Ms. Pasquini
exited the vehicle and began yelling for Mr. Harley to stop. Mr. Harley got up and ran off
down the street, leaving his wallet with the defendant. Ms. Pasquini helped the defendant
back into the vehicle. The trio returned to Granada, and Ms. Pasquini went into her
residence. The defendant and Mr. Rogers remained in the vehicle, where the defendant
examined the contents of Mr. Harley’s wallet. At that time, law enforcement officers arrived,
and the defendant was placed under arrest a short time later.

              On cross-examination, the defendant admitted that, in the past 10 years, he had
been thrice convicted of aggravated burglary, as well as burglary, burglary of an automobile,
theft of property valued over $1000, and unauthorized use of a motor vehicle.

             Based on this evidence, the jury convicted the defendant as charged of
aggravated robbery. Following a sentencing hearing, the trial court imposed a sentence of
24 years and ordered that it be served consecutively to the defendant’s parole violation
sentence.

              Following the denial of his timely but unsuccessful motion for new trial, the
defendant filed a timely notice of appeal. In this appeal, the defendant contends that the
evidence adduced at trial was insufficient to support his conviction and that the trial court
erred by excluding certain evidence at trial. We consider each claim in turn.

                                        I. Sufficiency

               The defendant contends that the evidence is insufficient to support his
conviction of aggravated robbery because he was physically unable to commit the crime. In
addition, the defendant argues that the proof failed to establish that he displayed a weapon,
as required by statute.

              We review the defendant’s claim of insufficient evidence mindful that our
standard of review is whether, after considering the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324
(1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This standard
applies to findings of guilt based upon direct evidence, circumstantial evidence, or a

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combination of direct and circumstantial evidence. State v. Dorantes, 331 S.W.3d 370, 379
(Tenn. 2011).

                When examining the sufficiency of the evidence, this court should neither re-
weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id.
Questions concerning the credibility of the 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. State v.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must afford the State
the strongest legitimate view of the evidence contained in the record as well as all reasonable
and legitimate inferences which may be drawn from the evidence. Id.

                As charged in this case, “[a]ggravated robbery is robbery as defined in § 39-13-
401 . . . [a]ccomplished with a deadly weapon or by display of any article used or fashioned
to lead the victim to reasonably believe it to be a deadly weapon.” T.C.A. § 39-13-402(a)(2).
“Robbery is the intentional or knowing theft of property from the person of another by
violence or putting the person in fear.” Id. § 39-13-401(a). “A person commits theft of
property if, with intent to deprive the owner of property, the person knowingly obtains or
exercises control over the property without the owner’s effective consent.” Id. § 39-14-103.

                Here, the proof adduced at trial established that the defendant attacked Mr.
Harley from behind, placing a knife against his neck and demanding Mr. Harley’s “[f]’ing
wallet.” Mr. Harley described his assailant and the vehicle in which he was riding, and based
on those descriptions, law enforcement officers located the defendant and his cohorts a short
time later, finding both a knife and the contents of Mr. Harley’s wallet in the vehicle in which
the defendant was a passenger. Mr. Harley positively identified the defendant as the man
who had robbed him. Although the defendant claims that he was walking with the aid of a
cane and could not have robbed the victim in the way in which the victim claimed, the jury
heard the defendant’s testimony and clearly rejected it, as was their prerogative.

              The defendant also alleges that the evidence was insufficient to support his
conviction because the State failed to establish that the defendant used or displayed an item
in a fashion designed to lead the victim to reasonably believe it was a deadly weapon, the
modality of aggravated robbery as charged in the present case.

               The aggravated robbery statute clearly contemplates the scenario in which a
robbery is accomplished not by the brandishing of an actual deadly weapon but by some
action on the part of the defendant to lead the victim to reasonably believe that the defendant
is armed with a deadly weapon. This court has affirmed convictions of aggravated robbery
when the defendant’s demand for money coupled with his maintaining a hand in his pocket,
even when the hand was not positioned to evoke the image of a gun or any other weapon, led

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the victim to reasonably believe the defendant was armed, often by verbally threatening to
harm the victim. See, e.g., State v. Aaron Cooper, No. 01C01-9708-CR-00368, slip op. at
7 (Tenn. Crim. App., Nashville, Sept. 29, 1998) (defendant “held his hand in the waistband
of his pants ‘as if he had a weapon,’ and said . . . ‘Don’t make me have to hurt you’”); State
v. Frederick Corlew, No. M2001-00842-CCA-R3-CD, slip op. at 4 (Tenn. Crim. App.,
Nashville, Nov. 1, 2002) (defendant kept “his right hand . . . in his right pants pocket as he
came in and [it] remained there as he walked past the cash register and even after he came
around the counter and was standing with the victim, demanding her to ‘open the register’”).
We have observed that the “common threads” in those cases where no actual deadly weapon
was displayed “are: 1) a hand concealed in an article of clothing; and 2) a threat – express
or implied – that caused the victim to ‘reasonably believe’ the offender had a deadly weapon
and was not opposed to using it.” State v. Monoleto D. Green, No. M2003-02774-
CCA-R3-CD, slip op. at 10 (Tenn. Crim. App., Nashville, May 5, 2005).

               In the instant case, although the victim never actually saw the knife, he felt it,
which is even stronger evidence of a deadly weapon than a hand concealed in clothing
accompanied by a threat. In addition, the fact that Detective Stanley located a knife on the
floorboard in the front passenger’s seat area of the Avalanche, as well as the defendant’s own
admission that he had a knife “on his side” when he approached Mr. Harley, could
reasonably lead jurors to find that the defendant used a knife to rob Mr. Harley.

               Affording the State the strongest legitimate view of the evidence and deferring
to the credibility determinations made by the jury, we conclude that the evidence supports
the defendant’s conviction of aggravated robbery.

                                  II. Exclusion of Evidence

               The defendant contends that the trial court erroneously limited his cross-
examination of Mr. Harley. Specifically, defense counsel sought to question Mr. Harley
about statements he allegedly made to Officer Gutrow and which Officer Gutrow included
in the defendant’s arrest warrant. The trial court sustained the State’s objection to this
attempt, stating “[y]ou’re cross-examining him about a statement that is not [Mr. Harley’s].”

               We are unable to review the lower court’s exclusion of this testimony because
the arrest warrant is not included in the appellate record. As our supreme court has observed,

              In order for an appellate court to review a record of excluded
              evidence, it is fundamental that such evidence be placed in the
              record in some manner. When it is a document or exhibit, this
              is done by having the exhibit marked for identification only and

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              not otherwise introduced.

State v. Goad, 707 S.W.2d 846, 853 (Tenn. 1986). Without a copy of the warrant in the
record, it is impossible to conduct a meaningful review of this issue. See State v. Hall, 958
S.W.2d 679, 691 n.10 (Tenn. 1997) (“Not only does [an offer of proof] ensure effective and
meaningful appellate review, it provides the trial court with the necessary information before
an evidentiary ruling is made. Indeed, generally, if an offer of proof is not made, the issue
is deemed waived and appellate review is precluded.”); see also Tenn. R. Evid. 103.
Accordingly, the defendant has waived this issue.

                                       III. Conclusion

               The evidence is sufficient to support the defendant’s conviction of aggravated
robbery, and we presume that the trial court correctly excluded testimony related to the arrest
warrant in light of the defendant’s failure to submit a copy of the warrant to this court. In
light of the foregoing analysis, we affirm the judgment of the trial court.




                                                    _________________________________
                                                    JAMES CURWOOD WITT, JR., JUDGE




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