         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs January 8, 2002

                 STATE OF TENNESSEE v. JERRY MCPEAK, IV

                  Direct Appeal from the Circuit Court for Madison County
                          No. 98-160    Roy B. Morgan, Jr., Judge



                  No. W2001-00764-CCA-R3-CD - Filed February 14, 2002



The Appellant, Jerry McPeak, IV, was convicted by a Madison County jury of aggravated robbery.
On appeal, McPeak raises the following issues for our review: (1) Whether the evidence was
sufficient to establish that the victim suffered serious bodily injury; (2) whether the evidence was
sufficient to establish that the assault occurred during the act of robbery; and (3) whether McPeak
was convicted solely upon the uncorroborated testimony of an accomplice. After review, we find
the issues raised to be without merit and affirm the judgment of the trial court.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which JOE G. RILEY and JOHN EVERETT
WILLIAMS, JJ., joined.

Mike Mosier, Jackson, Tennessee, for the Appellant, Jerry McPeak, IV.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Mark E.
Davidson, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and
Jody Pickens, Assistant District Attorney General, for the Appellee, State of Tennessee.


                                            OPINION

                                      Factual Background

        The victim, Davis Teague, worked as a truck driver for T & T Inland Container of Nesbit,
Mississippi. On September 16, 1997, Teague was in Jackson, Tennessee, picking up a load from
Procter & Gamble. At approximately 9:30 p.m., Teague stopped at an Amoco station and used the
pay phone outside to call home.
       As Teague was conversing with his wife, a dark-colored vehicle driven by the Appellant
parked next to the payphone. Teague described what happened next as follows:

       Well, one of them come up, and I told him I’d be off the phone in just a minute. He
       said he didn’t want to use the phone, he wanted my money . . . and the one standing
       over here, he was hollering he was going to shoot me, so I turned to look at him, and
       when I turned back, the other one hit me [in the nose] and knocked me into the
       bushes . . . they pulled me out of the bushes and got my billfold [and] $29 . . . I asked
       them for my wallet back, and they brought me my wallet back and then started
       kicking me . . . in the neck and head [and] jaw.

Leslie Flowers, a customer who was leaving the Amoco store, overheard “yelling” and first assumed
that it was “just a bunch of kids.” As she was driving away, however, she noticed “a guy sitting on
top of another person on the ground.” Flowers witnessed the man striking the person on the ground
and also remembered two other men being present at the scene. Flowers heard someone scream,
“give me your wallet” and testified that:

       I went down the street a little bit, and then I hit my brakes and I just turned around
       and went back on the opposite side of the store. When I did that, then the two people
       that I saw that were outside of the car jumped in the car and they took off.

Flowers motioned to the cashier inside the station to call for emergency assistance as she ran to help
the victim. When Flowers reached the victim, she noticed that he was not moving and was bleeding
from “his nose, mouth, ears, just cuts all over his face.” Flowers was unable to acquire a license
plate number from the vehicle because “a sheet or something had been draped out of the trunk, and
then the trunk shut so that you couldn’t see the license plate.”

        Brad Pusser, the cashier and night stocker at the Amoco store, also testified that he saw
“three individuals jump on an old man at the pay phone.” Pusser explained that he was too far away
to identify any of the three and by the time he got out of the cashier’s bullet proof security “box,”
the robbers had fled. Pusser testified that he found the victim conscious but incoherent after the
attack. He described the victim as “severely beaten” with “blood coming out of his nose . . . right
eye and out of his chin.” Pusser was able to describe the vehicle to police as a “two-tone LTD,
[with] a blue rag top, light blue on the middle and dark blue on the top and bottom.”

        Tim Coffman, a co-defendant, testified that he, the Appellant, Brad Sikes, and Clifford
Benalstein went “riding around, partying, [and] whatnot” that night. They decided to purchase some
beer and drove to the Amoco station. As the Appellant drove into the Amoco parking lot, Coffman
instructed the Appellant, who was driving a Ford LTD, to drive towards the pay phone so they could
rob the victim. Coffman explained that robbery of the victim had been discussed at this point. The
Appellant complied. Coffman and Benalstein got out of the car and approached the victim. When
the victim failed to respond to their demand for money, Benalstein hit the victim in the face and
knocked him into the bushes. The Appellant then got out of the car while Coffman removed the
victim from the bushes, rolled him over, and took his wallet. Coffman testified that the Appellant

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then began kicking the victim in the head. Coffman pulled the Appellant off the victim and they fled
the scene. Coffman testified that all four agreed to use the robbery proceeds to purchase marijuana.
The Appellant immediately drove to a house where one of the accomplices went inside and
purchased marijuana with the money taken from the victim. The Appellant then drove his
accomplices to a store to purchase rolling papers.

         Brad Sikes, also indicted as a co-defendant, was called to testify as a defense witness at trial.
Sikes testified that he, the Appellant, Coffman and Benalstein drove to the Amoco to purchase beer.
Once there, the Appellant circled the parking lot until he noticed the victim using the pay phone.
According to Sikes, “that’s when we seen the guy standing at the pay phone and just decided to rob
him.” Contrary to Coffman’s testimony, Sikes denied any involvement in the discussion or planning
of the robbery of the victim. At trial, Sikes testified that the Appellant got out of the vehicle and
began kicking the victim after Coffman and Benalstein had taken the victim’s wallet and gotten back
into the car. Sikes admitted, however, that he had told police just after the incident that the
Appellant got out of the car and kicked the victim before the victim’s wallet was taken. After they
left the scene, the Appellant drove them to purchase drugs and rolling papers.

        At trial, the victim testified that he suffered a broken nose, a broken jaw, and was
hospitalized on three separate occasions following the attack. Teague subsequently lost hearing in
his left ear and underwent surgery to repair the damage to his nose and jaw. As a result of the
physical injuries sustained, Teague was forced to retire and has subsequently filed for Chapter 7
bankruptcy. Teague identified the Appellant as being one of the persons present during the attack.

                              SUFFICIENCY OF THE EVIDENCE

        A jury conviction removes the presumption of innocence with which a defendant is 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).
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). Likewise, it is not the duty of this
Court to revisit questions of witness credibility on appeal, that function being within the province
of the trier of fact. See generally State v. Adkins, 786 S.W.2d 642, 646 (Tenn. 1990); State v.
Burlison, 868 S.W.2d 713, 718-19 (Tenn. Crim. App. 1993). Instead, the defendant must establish
that the evidence presented at trial was so deficient that no reasonable trier of fact could have found
the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
319, 99 S. Ct. 2781, 2789 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994), cert. denied,
513 U.S. 1086, 115 S. Ct. 743 (1995); Tenn. R. App. P. 13(e). The State is entitled to the strongest
legitimate view of the evidence and all reasonable inferences which may be drawn therefrom. State
v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992), cert denied, 507 U.S. 954, 113 S. Ct. 1368 (1993).




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                                    A. Serious Bodily Injury
        The Appellant contends that the proof presented at trial was insufficient to support his
conviction for aggravated robbery. Specifically, he asserts that the evidence presented was
insufficient to establish that the victim suffered serious bodily injury. In order to sustain a
conviction for aggravated robbery, as charged in the indictment, the State was required to prove that
a robbery was committed and that the victim of the robbery suffered serious bodily injury. Tenn.
Code Ann. § 39-13-402.

        “Serious bodily injury” is bodily injury involving:

                (A)     A substantial risk of death;
                (B)     Protracted unconsciousness;
                (C)     Extreme physical pain;
                (D)     Protracted or obvious disfigurement; or
                (E)     Protracted loss or substantial impairment of a function
                        of a bodily member, organ or mental facility.

Tenn. Code Ann.§ 39-11-106(a)(34).

        The proof at trial established that the victim was violently struck in the face by Benalstein
and kicked in the head and face between ten to twenty times by the Appellant. The beating caused
the victim to bleed from the nose, the mouth and the ears. It was not disputed at trial that, as a result
of the assault, the victim sustained a broken nose, a broken jaw and was hospitalized on three
separate occasions. Surgery was required to repair his nose and jaw. Prior to the attack, Teague
utilized a hearing aid in his right ear so that he could better distinguish sounds. After the attack,
Teague testified that he lost hearing completely in his left ear, the ear which had no problems prior
to the attack.

        Permanent hearing loss constitutes a substantial impairment of a function of a bodily member
or organ. Tenn. Code Ann. § 39-11-106(a)(34)(E). The distinction between “bodily injury” and
“serious bodily injury” is generally a question of fact for the jury and not one of law. The jury, and
not this court, heard the victim’s testimony concerning the injuries he sustained from the attack.
A rational jury could have found, based upon the brutal nature and number of blows inflicted and
from the extent of the injuries, as manifested by bleeding from the nose, mouth and ears, that the
victim sustained a permanent hearing impairment. Accordingly, we find the evidence sufficient to
support a finding of serious bodily injury.

                                    B. Criminal Responsibility
        The Appellant argues the evidence presented at trial was insufficient to support his conviction
for aggravated robbery because the definition of aggravated robbery “necessarily requires that the
victim suffer serious bodily injury during the act of robbery” and “the proof in this case shows that
the only actual involvement of the [Appellant] was that he assaulted the victim after he had been
beaten and robbed.” The Appellant’s argument of criminal liability is misplaced. A person is

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criminally responsible for a crime not only by his own conduct but by the conduct of another for
which the person may be criminally responsible. Tenn. Code Ann. § 39-11-401. A person becomes
criminally responsible for an offense committed by another if “acting with the intent to promote or
assist the commission of the offense, or to 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). A defendant convicted under a theory of criminal responsibility is guilty to the
same degree as the principal who committed the crime and is considered to be a principal offender.
State v. Carson, 950 S.W.2d 951 (Tenn. 1997).

         The evidence presented at trial established that the Appellant borrowed his cousin’s car and
drove three passengers to the Amoco Station. The license plate on the car driven by the Appellant
was covered by “a sheet or something” that had been draped out of the trunk. The occupants of the
vehicle had discussed robbery of the victim. The Appellant, as instructed, drove to the pay phone
to assist in the commission of the robbery. The attackers punched the victim in the face, threw him
into the bushes, took his wallet, and then began kicking him repeatedly in the head, neck and jaw.
The Appellant then sped away from the scene and took his passengers to purchase drugs with the
money taken from the victim. We find from these facts that a rational jury could have reasonably
concluded that the Appellant and his co-defendants united with common intent to perpetrate a
robbery of the victim, that the Appellant assisted in the commission of the offense, and that the
Appellant benefitted in the proceeds. Accordingly, the Appellant was criminally responsible for
aggravated robbery of the victim based upon his own conduct and the conduct of his accomplices.

                                    C. Accomplice Testimony
        The Appellant asserts that the evidence presented at trial was insufficient to support the
verdict because he was convicted solely on the uncorroborated testimony of his two accomplices.
Specifically, he contends that, “none of the other witnesses, including the victim, can identify the
[Appellant] as one of the assailants.”

       Our analysis begins with the well-settled premise that convictions may not be based solely
upon the uncorroborated testimony of accomplices. State v. Shaw, 37 S.W.3d 900, 903 (Tenn.
2001)(citing State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994)). “An accomplice is one who
knowingly, voluntarily, and with common intent unites with the principal offender in the
commission of a crime.” State v. Allen, 976 S.W.2d 661, 666 (Tenn. Crim. App. 1997).
Accomplices cannot corroborate each other. State v. Green, 915 S.W.2d 827, 831 (Tenn. Crim. App.
1995). Notwithstanding, Tennessee law only requires a modicum of evidence in order to sufficiently
corroborate accomplice testimony. State v. Copeland, 677 S.W.2d 471, 475 (Tenn. Crim. App.
1984).

       Our supreme court has set forth the quantum of proof necessary to establish sufficient
corroboration as follows:

        [T]here must be some fact testified to, entirely independent of the accomplice’s
        testimony, which, taken by itself, leads to the inference, not only that a crime has
        been committed, but also that the defendant is implicated in it; and this independent

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         corroborative testimony must also include some fact establishing the defendant’s
         identity. This corroborative evidence may be direct or entirely circumstantial, and
         it need not be adequate, in and of itself, to support a conviction; it is sufficient to
         meet the requirements of the rule if it fairly and legitimately tends to connect the
         defendant with the commission of the crime charged. It is not necessary that the
         corroboration extend to every part of the accomplice’s evidence.

Shaw, 37 S.W.3d at 903 (quoting Bigbee, 885 S.W.2d at 803). It is generally for the jury to
determine whether sufficient corroboration exists. Shaw, 37 S.W.3d at 903.1

         Although he has no recollection of the Appellant actually striking him, we first note that Mr.
Teague identified the Appellant as being one of the three men who got out of the vehicle and
approached him at the payphone. Moreover, the Amoco cashier testified that he witnessed the victim
being attacked and was able to give police a description of the get-away car. The description of the
car matched the vehicle being driven by the Appellant when arrested shortly thereafter. Thus, the
Appellant’s conviction does not stem solely from accomplice testimony as alleged by the Appellant
in his brief. The proof established that the Appellant was aware of the planned robbery of the victim.
Additionally, Coffman testified that the Appellant assisted in the robbery by driving the car, was
involved in the beating of the victim and that the Appellant also shared in the proceeds of the
robbery. Sikes also placed the Appellant at the scene of the robbery and that the Appellant was
involved in the beating of the victim. We conclude from these facts that sufficient evidence was
introduced to corroborate the accomplice testimony regarding the Appellant’s involvement and guilt
in the robbery.


                                                   CONCLUSION


         1
          Notwithstanding the established rule of accomplice corroboration, we are constrained to note that the jury was
not instructed that the testimony of Coffman, who was an accomplice as a matter of law, was required to be
corroborated. See T.P.I.- Crim . 5 th Ed. 2000 § 42.09(a). Moreover, the jury was not instructed that the issue of whether
the witness, Sikes, was an accomplice was a question of fact to be decid ed by the jury and th at if Sike s was found to
be an accomplice, corroboration of his testimony was also required. See T.P.I. - Crim . 5 th Ed. 200 0 § 4 2.09 ; see also
State v. Anderson, 985 S.W.2d 9, 17 (Tenn. Crim. App. 1997). In Anderson, this court observed:

         A trial court has a d uty to give a com plete charg e of the law applicable to the facts of the case. . . .
         [T]he acco mp lice rule bears directly upon what evidence is deemed sufficient to allow for a rational
         trier of fact to find g uilt beyon d a reasonable doubt. . . . [O]ur supreme court has held that an
         instruc tion on the rule requiring corro boration of an acco mp lice’s testim ony is not fu nda me ntal.
         Upon the trial court’s failure to instruct the jury regarding accomplice testimony and the requirement
         of corro boration, it become s the obligation o f the defendant to make a special request for the
         instruction. In the absence of a special request, the trial court does not err by failing to instruct the
         jury about accomplice testimony even if the circumstances of the case warrant such an instruction.
         (citations om itted).

Failure to make a special request that the trial court instruct on accomplice corroboration constituted waiver of the issue
in this case.

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       After review, we find the evidence presented at trial sufficient to support the Appellant’s
conviction for aggravated robbery and affirm the judgment of the Madison County Circuit Court.




                                                     ___________________________________
                                                     DAVID G. HAYES, JUDGE




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