                                                                                       12/16/2019
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                 Assigned on Briefs October 29, 2019, at Knoxville

      STATE OF TENNESSEE v. MICHAEL WAYNE ROBINSON, JR.

                 Appeal from the Circuit Court for Madison County
                      No. 18-90 Roy B. Morgan, Jr., Judge
                     ___________________________________

                          No. W2019-00216-CCA-R3-CD
                      ___________________________________


A Madison County jury convicted the defendant, Michael Wayne Robinson, Jr., of three
counts of aggravated assault, one count of reckless endangerment with a deadly weapon,
and one count of unlawful possession of a firearm by a convicted felon. Following a
sentencing hearing, the trial court imposed an effective sentence of eighteen years in
confinement. On appeal, the defendant challenges the sufficiency of the evidence to
support his convictions and the trial court’s imposition of consecutive sentencing. After
reviewing the record and considering the applicable law, we affirm the judgments of the
trial court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

J. ROSS DYER, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS,
P.J. and D. KELLY THOMAS, JR., J., joined.

George Morton Googe, District Public Defender; Jeremy B. Epperson, Assistant Public
Defender, for the appellant, Michael Wayne Robinson, Jr..

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant
Attorney General; Jody Pickens, District Attorney General; and Bradley Champine,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                             Facts and Procedural History

      On the evening of August 30, 2017, Jameka Jackson was speaking with her father,
Melvin Owens, outside his home on Dupree Street. Ms. Jackson was sitting inside her
car while Mr. Owens stood just outside her window. Also in the vehicle were Ms.
Jackson’s three children and Cameron Riley, Ms. Jackson’s fifteen-year-old nephew.
Several other people, including Sedarian Douglas, were in the yard outside Mr. Owens’
residence.

       While Ms. Jackson was speaking with Mr. Owens, a red Altima parked on the
street several car lengths behind her. The defendant and Jerry Hennings exited the
vehicle, and the defendant, who was holding a handgun and “talking crazy” “like he was
on some type of drugs,” began fighting with Mr. Douglas. Mr. Owens told the two men
to quit fighting and “disrespecting [his] house.” A few seconds later, someone said “he
[has] a gun,” and the defendant began firing. When the shooting started, Ms. Jackson,
Mr. Riley, and Mr. Owens ran toward the house. Because Mr. Owens dropped Ms.
Jackson’s six-month-old daughter on the ground as he tried to get to safety, he was forced
to hide behind his truck during the shooting, and, as he hid, his truck windows were “shot
out.”

        Once inside her father’s house, Ms. Jackson called 911 and described the shooter
as black male with braids wearing a white shirt. After the defendant stopped shooting, he
threated to “come back on Dupree and shoot and kill [everyone that was there].” The
defendant and Mr. Hennings then returned to the red Altima and drove toward Lincoln
Circle.

       Officer Daniel Scott Melson with the Jackson City Police Department was
working a call when he heard gunshots. As he followed the sound of the gunshots,
dispatch directed Officer Melson to Mr. Owens’ residence. Once at the scene of the
shooting, Officer Melson spoke with Ms. Jackson, Mr. Riley, and Mr. Owens. He also
collected four .45 caliber shell casings found “in the middle of the street.” The shell
casings consisted of two different brands, RNP and PMC.

       Officer Princeton Hardin was working an assault case on Lincoln Circle when he
received information about a shots fired call, including a description of two black males
driving a maroon car with rear-end damage. A short time later, a vehicle matching this
description passed Officer Hardin on Lincoln Circle, and two men matching the
description of the suspects walked from the direction of the red Altima at “a fast pace”
and entered the residence at 221B Lincoln Circle.

       Officer Hardin called for backup. Once his backup arrived, Officer Hardin
knocked on the door of the residence. Officers could hear voices inside, and, after
several minutes, Lakesha Demoss opened the door to speak with Officer Hardin.
Meanwhile, Officer Barton Braly was watching the back door of the residence when the
defendant, who was wearing a white shirt, opened the door, saw Officer Braly, and went
back inside. Officer Braly informed the other officers that someone tried to exit the
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residence from the back door. A few seconds later, Mr. Hennings walked out of the front
door and was detained. Because Officer Braly believed both individuals had gone into
the front yard, he walked to the front of the house. However, when he noticed Mr.
Hennings was wearing a black shirt, Officer Braly returned to the back door. As he did,
Officer Braly saw the defendant running “in a sneaky fashion” toward Labelle Street.
The defendant refused Officer’s Braly’s commands to stop, and several officers gave
chase. After a brief foot chase, officers were able to cut off the defendant’s route, and he
was ultimately detained.

       Following the detention of Mr. Hennings and the defendant, Ms. Demoss gave
officers written consent to search her residence. Officer Zachary Brown located a .45
caliber Hi-Point semi-automatic pistol in an upstairs bedroom. The pistol had an
extended magazine containing two rounds, and another round was “halfway lodged into
the chamber.” The brands of ammunition found in the pistol were RNP and PMC.

       Shortly after the shooting, Ms. Jackson’s sister provided her with a picture of the
defendant.1 The following day, Ms. Jackson provided Sergeant Nick Donald the picture
of the defendant. She then identified the defendant as the shooter from a separate photo
array prepared by Sergeant Donald. Additionally, Sergeant Donald showed a six-person
photo lineup to Mr. Riley and Mr. Owens. Mr. Riley identified the defendant as someone
who “look[ed] like the guy who was shooting,” and Mr. Owens identified Mr. Hennings
as a person who was “present at the scene” but not the shooter. Mr. Douglas, on the other
hand, refused to cooperate or provide police officers with a statement.

       Sergeant Donald and Investigator Darrell Listenbee interviewed the defendant
following his arrest. During the interview, the defendant initially denied being on Dupree
Street at the time of the shooting. Although he later admitted to being at the scene, the
defendant claimed Mr. Hennings was the person who was fighting with Mr. Douglas.
The defendant also stated several people at the scene were shooting guns. When asked
about the house on Lincoln Circle, the defendant denied being in the residence but later
told Sergeant Donald he knew officers found a gun inside the home. Although the
defendant requested Sergeant Donald perform ballistics testing on the gun, Sergeant
Donald did not feel it was necessary.

       At trial, the State called Jameka Jackson, Cameron Riley, Melvin Owens, Officer
Daniel Scott Melson, Officer Princeton Hardin, Investigator Darrell Listenbee, Officer
Zachary Brown, Officer Barton Braly, and Sergeant Nick Donald as witnesses, and all
rendered testimony consistent with the foregoing. On cross-examination, Ms. Jackson

       1
         It is unclear from the record exactly how and from where Ms. Jackson procured a picture of the
defendant.
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agreed she described the shooter as having braids during the 911 call. However, she
testified that Mr. Hennings was the individual with braids. She also acknowledged the
defendant did not have braids in the picture Sergeant Donald showed her. However, she
stated she was panicked at the time of the 911 call and was focused on keeping her
children safe. Additionally, Mr. Riley testified he could no longer recall what the shooter
looked like, and Mr. Owens testified he did not see whether the defendant or Mr.
Hennings was the shooter.

       Sergeant Donald testified Ms. Jackson, Mr. Riley, and Mr. Owens were
cooperative following the shooting. However, he agreed they were “not so cooperative”
during their trial testimony. Sergeant Donald explained it is common for victims in this
type of investigation to become less cooperative over time due to concerns of retaliation.
In this case, the three victims specifically expressed their concern of retaliation to
Sergeant Donald. Additionally, during the testimony of Ms. Jackson, Sergeant Donald
observed the defendant “making faces” at Ms. Jackson, and the defendant “flipp[ed
Sergeant Donald] off and mouth[ed] something to him.”

       The defendant called Lanonda Jernigan, who testified she was the director of
Jackson Central Dispatch Police and Fire. After listening to the 911 call made by Ms.
Jackson during the shooting, Ms. Jernigan agreed the suspect was described as a black
male with dreads or braids. In addition, per a stipulation, a photograph of the defendant
taken following his arrest was entered into evidence.

        Following deliberations, the jury found the defendant guilty of all counts. The
trial court imposed a sentence of eight years to be served at 35 percent for Count one,
aggravated assault of Melvin Owens; eight years to be served at 35 percent for Count
two, aggravated assault of Jameka Jackson; eight years to be served at 35 percent for
Count three, aggravated assault of Cameron Riley; three years at 35 percent for Count
four, reckless endangerment with a deadly weapon; and ten years at 30 percent for Count
five, unlawful possession of a firearm by a convicted felon. Counts one through four
were to be served concurrently with each other but consecutive to Count five, for an
effective sentence of eighteen years.

       The defendant filed a timely motion for new trial, arguing the evidence was
insufficient to support the defendant’s convictions and the trial court erred in sentencing
the defendant. The trial court denied the motion, and this timely appeal followed.

                                         Analysis

       On appeal, the defendant argues the evidence at trial was insufficient to support
his convictions. The defendant also argues the trial court erred in imposing consecutive
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sentences. The State contends the evidence is sufficient to sustain the defendant’s
convictions, and the trial court properly sentenced the defendant. We agree with the
State.

I.     Sufficiency

       The defendant argues the evidence at trial is insufficient to support his
convictions. Although the defendant does not dispute the offenses were committed, he
argues the State failed to establish his identity as the perpetrator of the offenses.
Specifically, the defendant points to the victims’ inconsistent testimony regarding the
identity of the shooter. The State contends the evidence was sufficient to support each of
the defendant’s convictions.

        When the sufficiency of the evidence is challenged, the relevant question of the
reviewing court is “whether, after viewing 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.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also
Tenn. R. App. P. 13(e) (“Findings 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.”); State v. Evans, 838 S.W.2d 185, 190-92
(Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). All
questions involving the credibility of witnesses, the weight and value to be given the
evidence, and all factual issues are resolved by the trier of fact. State v. Pappas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by
the trial judge, accredits the testimony of the witnesses for the State and resolves all
conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn.
1973). Our Supreme Court has stated the following rationale for this rule:

       This well-settled rule rests on a sound foundation. The trial judge and the
       jury see the witnesses face to face, hear their testimony and observe their
       demeanor on the stand. Thus, the trial judge and jury are the primary
       instrumentality of justice to determine the weight and credibility to be
       given to the testimony of witnesses. In the trial forum alone is there human
       atmosphere, and the totality of the evidence cannot be reproduced with a
       written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d
523 (Tenn. 1963)). “A jury conviction removes the presumption of innocence with
which a defendant is initially cloaked and replaces it with one of guilt, so that on appeal a
convicted defendant has the burden of demonstrating that the evidence is insufficient.”
State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
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       “The identity of the perpetrator is an essential element of any crime.” State v.
Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (citing State v. Thompson, 519 S.W.2d 789, 793
(Tenn. 1975)). The burden is on the State to prove the identity of the defendant as the
perpetrator beyond a reasonable doubt. State v. Cribbs, 967 S.W.2d 773, 779 (Tenn.
1998). The identification of the defendant as the perpetrator is “a question of fact for the
jury upon its consideration of all competent proof.” State v. Bell, 512 S.W.3d 167, 198
(Tenn. 2015) (citing State v. Thomas, 158 S.W.3d 361, 388 (Tenn. 2005)).

       As charged in this case, aggravated assault occurs when a person intentionally or
knowingly causes another to reasonably fear imminent bodily injury by using or
displaying a deadly weapon. Tenn. Code Ann. §§ 39-13-101(a)(2), -102(a)(1)(A)(iii). A
person commits reckless endangerment who “recklessly engages in conduct that places or
may place another person in imminent danger of death or serious bodily injury” and does
so with a deadly weapon. Tenn. Code Ann. § 39-13-103(a), (b)(2). Unlawful possession
of a firearm by a convicted felon occurs when any person who has previously been
convicted of a felony involving the use of or attempted use of force, violence, or a deadly
weapon subsequently unlawfully possesses a firearm. Tenn. Code Ann. § 39-17-
1307(b)(1)(A). On appeal, the defendant concedes he was previously convicted of
aggravated burglary as alleged in the indictment for this charge.

       Here, the proof adduced at trial established that Ms. Jackson was sitting in her car
outside her father’s house and speaking with her father, Mr. Owens, when a red Altima
parked some distance behind her. The defendant and Mr. Hennings exited the Altima,
and the defendant began fighting with Mr. Douglas, who was in Mr. Owens’ yard. Ms.
Jackson saw a gun in the defendant’s hand and stated he was “talking crazy.” She then
heard someone say that “he” had a gun, and gunfire immediately erupted. During the
shooting, Mr. Owens and his six-month-old granddaughter were forced to take refuge
behind his truck. Ms. Jackson, Mr. Riley, and Ms. Jackson’s other children were able to
run into Mr. Owens’ house and call 911. During the 911 call, Ms. Jackson described the
shooter as a black male with braids wearing a white shirt. Officer Hardin received
information about a shots fired call containing a description of two black males driving a
maroon car with rear-end damage, and, a short time later, a maroon Altima drove past
him on Lincoln Circle. Two black males matching the description of the shooting
suspects Officer Hardin received from dispatch walked from the direction of the Altima
and entered a residence. Officer Hardin also noted that the Altima had damage to the rear
as described in the report from dispatch. When officers approached the residence, the
defendant fled and was apprehended following a brief foot chase. A .45 caliber Hi-point
semi-automatic pistol was recovered from the residence, and the rounds remaining in the
gun were the same two brands as the shell casings recovered from the scene. Although

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the defendant denied he was the shooter, he admitted to being present at the scene of the
shooting.

       The following day, Ms. Jackson provided the police with a picture of the
defendant and identified the defendant as the shooter from a separate photo array. Mr.
Riley also identified the defendant from a photo array noting the defendant “look[ed] like
the guy who was shooting.” Additionally, Mr. Owens identified Mr. Hennings as person
who was “present at the scene” but not the shooter.

        At trial Ms. Jackson again identified the defendant as the shooter and identified the
vehicle the defendant was in on the night of the shooting. While she told 911 that the
shooter had braids, Ms. Jackson testified at trial the man with the defendant had braids,
not the defendant. Despite his prior identification of the defendant, Mr. Riley testified at
trial that he could no longer recall what the shooter looked like. He did, however,
corroborate other’s testimony concerning the description of the vehicle as red with
damage to the rear. Mr. Owens was consistent with his prior statement and testified he
did not see the shooter. He was, however, able to identify the defendant’s vehicle.

        From these facts, a rational trier of fact could have found the defendant guilty of
aggravated assault, reckless endangerment with a deadly weapon, and unlawful use of a
firearm by a convicted felon. Two eye-witnesses saw the defendant with a gun and
identified the defendant as the shooter within days of the shooting. While the third eye-
witness could not identify the defendant as the shooter, he did consistently testify that the
man with the defendant, Mr. Hennings, was not the shooter. Moments after the shooting,
the defendant was seen exiting a vehicle described by the eye-witnesses. The defendant
was then caught trying to flee a residence in which a gun, loaded with the same two types
of ammunition found at the scene, was discovered. Finally, the defendant, though
denying he was the shooter, admitted to being at the scene of the shooting. Although the
defendant argues the witnesses provided inconsistent descriptions of the shooter,
specifically Ms. Jackson’s initial description of the shooter as having braids, by its
finding of guilty as to the defendant’s charges, the jury resolved any inconsistencies in
testimony in favor of the State. We will not second-guess the jury in the resolution of
any conflicts in the proof. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). The
defendant is not entitled to relief on this issue.

II.    Sentencing

       The defendant also argues the trial court abused its discretion in imposing
consecutive terms. Specifically, the defendant argues the trial court failed to make the
required findings to support its conclusion that the defendant was a professional criminal

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and a dangerous offender. The State contends the trial court properly imposed an
effective sentence of eighteen years. We agree with the State.

        When determining the appropriate sentence, the trial court must consider these
factors: (1) the evidence, if any, received at the trial and the sentencing hearing; (2) the
presentence report; (3) the principles of sentencing and arguments as to sentencing
alternatives; (4) the nature and characteristics of the criminal conduct involved; (5) the
evidence and information offered by the parties on the mitigating and enhancement
factors set out in Tennessee Code Annotated sections 40-35-113 and -114; (6) any
statistical information provided by the Administrative Office of the Courts as to
sentencing practices for similar offenses in Tennessee; and (7) any statement the
defendant made on his own behalf about sentencing. See Tenn. Code Ann. § 40-35-210;
State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001). The trial court must also
consider the potential or lack of potential for rehabilitation or treatment of the defendant
when determining the sentence alternative or length of a term to be imposed. Tenn. Code
Ann. § 40-35-103.

       When the record establishes the sentence imposed by the trial court was within the
appropriate range and reflects a “proper application of the purposes and principles of our
Sentencing Act,” this Court reviews the trial court’s sentencing decision under an abuse
of discretion standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d
682, 707 (Tenn. 2012). The trial court must state on the record the factors it considered
and the reasons for the sentence imposed. Tenn. Code Ann. § 40-35-210(e); Bise, 380
S.W.3d at 706. The party challenging the sentence on appeal bears the burden of
establishing that the sentence was improper. Tenn. Code Ann. § 40-35-401, Sentencing
Comm’n Cmts.

        In State v. Pollard, 432 S.W.3d 851 (Tenn. 2013), the Tennessee Supreme Court
expanded its holding in Bise to also apply to decisions by trial courts regarding
consecutive sentencing. Id. at 859. This Court must give “deference to the trial court’s
exercise of its discretionary authority to impose consecutive sentences if it has provided
reasons on the record establishing at least one of the seven grounds listed in Tennessee
Code Annotated section 40-35-115(b).” Id. at 861. “Any one of [the] grounds [listed in
section 40-35-115(b)] is a sufficient basis for the imposition of consecutive sentences.”
Id. at 862 (citing State v. Dickson, 413 S.W.3d 735 (Tenn. 2013)).

       In imposing consecutive sentences, the trial court found the defendant “is a
professional criminal who has knowingly devoted the defendant’s life to criminal acts as
a major source of livelihood;” “is an offender whose record of criminal activity is
extensive;” and “is a dangerous offender whose behavior indicates little or no regard for
human life and no hesitation about committing a crime in which the risk to human life is
                                           -8-
high.” Tenn. Code Ann. § 40-35-115(b)(1), (2), (4). At the sentencing hearing, the trial
court articulated its reasons for imposing consecutive sentences, as follows:

               I have again reviewed what the State has set forth in their argument.
       I’ve heard argument today. I’ve heard [the] response of defense counsel. I
       do find that in this particular case, the [d]efendant is a professional criminal
       who has knowingly devoted a substantial part of his life to criminal
       conduct. He’s an offender whose record is extensive. He’s a dangerous
       offender whose behavior indicates little or no regard to human life and no
       hesitation about committing a crime with a high risk to human life, and
       specifically, the circumstances surrounding the commission of the offense
       are aggravated in this case. Because of the facts of this case and the
       aggregate length of the sentence reasonably relates to the offenses of which
       the [d]efendant stands convicted, I’m taking that into consideration making
       those specific findings which are necessary for consecutive sentencing.
       He’s not on any type of probation or parole, so that would not apply in this
       case. But I think those are discretionary factors for the [c]ourt to consider
       that are appropriate as far as a finding specifically applying to this case.
       For that reason, consecutive sentencing will be appropriate.

       In finding the defendant is a professional criminal, the defendant argues the trial
court failed to make the required determination that the defendant’s criminal acts were “a
major source of livelihood,” and the State agrees the required findings were not made in
respect to this factor. Although the record reflects an extensive criminal history, there is
no indication the defendant’s criminal acts were a major source of his livelihood.
Accordingly, this factor does not support consecutive sentencing.

        With respect to factor (4), a “dangerous offender,” the defendant argues the trial
court failed to make the required findings pursuant to State v. Wilkerson, 905 S.W.2d
933, 938 (Tenn. 1995). Before imposing consecutive sentencing based upon the
dangerous offender classification, the trial court must find “the terms reasonably relate to
the severity of the offenses committed and are necessary in order to protect the public
from further serious criminal conduct by the defendant.” Id. Here, although the trial
court stated consecutive terms reasonably relate to the defendant’s convictions, it failed
to state the specific facts it found to satisfy its conclusion. See State v. Scott M. Craig,
No. E2001-01528-CCA-R3-CD, 2002 WL 1972892, at *8 (Tenn. Crim. App. Aug. 27,
2002), no perm. app. filed (“A mere statement that confinement is necessary to protect
society and that the severity of the sentence is reasonably related to the convicted
offenses, without more, is insufficient to justify consecutive sentences.”); Wilkerson, 905
S.W.3d at 938 (holding the trial court must make “specific findings regarding the severity
of the offenses and the necessity to protect society before ordering consecutive
                                            -9-
sentencing under Tenn. Code Ann. § 40-35-115(b)(4)”) (emphasis added). Furthermore,
the trial court failed to find consecutive sentencing is necessary to “protect the public
from further serious criminal conduct by the defendant.” Because the trial court failed to
make the required findings regarding factor (4), this factor does not support consecutive
sentencing. Pollard, 432 S.W.3d at 869 (“[W]hen trial courts fail to include the two
additional findings before classifying a defendant as a dangerous offender, they have
failed to adequately provide reasons on the record to support the imposition of
consecutive sentences.”).

        Although not challenged by the defendant, our review of the record supports the
trial court’s finding that the defendant is an offender whose record of criminal activity is
extensive. The defendant’s presentence report, which was entered as an exhibit at the
sentencing hearing, lists thirty-four prior convictions beginning when the defendant was
eighteen years old, including convictions for assault, retaliation, and evading arrest. As
previously noted, the existence of only one factor is sufficient to impose consecutive
sentencing. See Tenn. Code Ann. § 40-35-115(b); Pollard, 423 S.W.3d at 862 (“Any one
of these grounds is a sufficient basis for the imposition of consecutive sentencing.”)
(citing Dickson, 413 S.W.3d at 748). Accordingly, the trial court did not abuse its
discretion by imposing consecutive sentences, and the defendant is not entitled to relief
on this issue.

                                       Conclusion

     In accordance with the aforementioned reasoning and authorities, we affirm the
judgments of the trial court.




                                              ____________________________________
                                              J. ROSS DYER, JUDGE




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