        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs July 16, 2013

            STATE OF TENNESSEE v. JAWARAS BEAUREGARD

                Appeal from the Criminal Court for Davidson County
              Nos. 2010-A-2, 2010-B-1588  J. Randall Wyatt, Jr., Judge


              No. M2012-02312-CCA-R3-CD - Filed November 14, 2013


The Defendant-Appellant, Jawaras Beauregard, was indicted by the Davidson County grand
jury for attempted especially aggravated robbery and attempted first degree premeditated
murder. He was convicted by a jury of the charged offense of attempted especially
aggravated robbery and the lesser included offense of attempted voluntary manslaughter. He
was sentenced as a Range I, standard offender to nine years for the attempted especially
aggravated robbery conviction and as a Range II, multiple offender to a concurrent sentence
of five years for the attempted voluntary manslaughter conviction. On appeal, he argues:
(1) the trial court erred in denying his motion to suppress the victim’s identification of him
in a photographic lineup; and (2) the evidence is insufficient to sustain his convictions. Upon
review, we affirm the judgments of the trial court.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which and R OGER A. P AGE,
J., joined. D. K ELLY T HOMAS, J R., J., not participating.

Dawn Deaner, District Public Defender; Jeffrey A. DeVasher, Assistant District Public
Defender (on appeal); and Kristin Stangl and Katie Weiss, Assistant District Public
Defenders (at trial), for the Defendant-Appellant, Jawaras Beauregard.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Senior Counsel; Victor
S. (Torry) Johnson, III, District Attorney General; and Rachel Thomas-Spain, Assistant
District Attorney General, for the Appellee, State of Tennessee.
                                          OPINION

                                           FACTS

       Suppression Hearing. Scott Sulfridge, a retired detective with the Metropolitan
Nashville Police Department, testified that on March 16, 2009, he investigated an incident
involving the victim, Lamin Darboe, that occurred at 11:30 p.m. near the intersection of
Thompson Lane and Nolensville Road. Upon arriving at the scene, he saw a taxi cab van that
appeared to have “veered off” Nolensville Road before hitting one or more cars in a nearby
Nissan dealership parking lot. Detective Sulfridge was informed by other officers that the
victim, who had been driving the cab prior to the collision, had already been transported to
the hospital. He was also told that the victim had jumped from his cab, which was traveling
at a speed of approximately forty miles per hour, onto Nolensville Road because he was
being robbed.

        When Detective Sulfridge interviewed the victim at the hospital, the victim told him
that two African-American males between the ages of twenty-five and thirty-five had tried
to rob him. In addition, the victim stated that one of his assailants was between five feet, ten
inches and six feet tall and the other man was shorter.

        Approximately two hours after the incident involving the victim, Detective Sulfridge
drove down Nolensville Road and turned onto Thompson Lane where he saw a man, whom
he later identified as the Defendant, walking a few hundred yards from the Nissan dealership
toward Briley Parkway. Detective Sulfridge stated that the Defendant was “in obvious pain”
because he paused for fifteen to twenty seconds between steps. Because of the Defendant’s
injuries and his proximity to the incident, Detective Sulfridge suspected that the Defendant
was likely involved in the recent crimes against the victim. Detective Sulfridge immediately
called for a patrol car, and when the officer arrived, they approached the Defendant.
Detective Sulfridge immediately observed that the Defendant had glass in his hair and on his
face, which was consistent with a recent car wreck. The Defendant also had a scratch on his
head and a leg injury. When Detective Sulfridge asked about his injuries, the Defendant
replied that he had fallen.

       After talking with the Defendant, Detective Sulfridge returned to the police station
and prepared a photographic lineup that included a picture of the Defendant. He immediately
took the lineup to the hospital to show it to the victim. Detective Sulfridge used a standard
police department form to explain to the victim that the perpetrator of the crimes against him
may or may not be included in the photographic lineup and that the photographs of the
individuals in the lineup could be old or the individuals’ hairstyles could have changed. He
informed the victim that he should not feel pressure to choose anyone from the lineup and

                                              -2-
that he should focus on the individuals’ facial features. When Detective Sulfridge presented
the photographic lineup, the victim “[v]ery quickly” identified the Defendant in the lineup
in a matter of seconds. He said the victim was “[a]bsolutely positive” that the Defendant
was the person who pointed the gun at him. Detective Sulfridge stated that the victim
identified the Defendant in photograph number six of the lineup on March 18, 2009, just a
few hours after the offenses occurred.

        Detective Sulfridge testified that when he prepared photographic lineups, he typically
chose photographs of individuals who were in the same age group and had the same physical
attributes as the alleged perpetrator. He stated that although age was important, an
individual’s appearance was more important in determining whether the individual should
be placed in the lineup. Detective Sulfridge stated that when he prepared the photographic
lineup in this case, he looked for African-American men with similar hair and eye color to
the Defendant. He acknowledged that he did not include a search term for the category for
age in this case but asserted that he usually evaluated the photographs himself. He also stated
that he never included height in the search terms because the photographs were not full-
length pictures. Detective Sulfridge said that it would not surprise him that three of the
individuals in this lineup were in their forties and one of the individuals in the lineup was
eighteen. He asserted that some of the men in their forties did not look that old and that the
man who was approximately eighteen looked like he was in his twenties. Detective Sulfridge
acknowledged that only two men, including the Defendant, were within the age range given
by the victim.

       The victim testified that on the night of March 17, 2009, he was working as a taxi
driver and picked up two men from the Wal-Mart parking lot at Nolensville Road and
Harding Place. The victim stated that one of the men, whom he later identified as the
Defendant, approached his cab to talk to him. The victim closely observed the Defendant
before he got into his cab because he was “concern[ed]” about his intentions. Both of the
men got into the back seat of the cab and asked to go downtown. The victim said the
Defendant sat in the back passenger’s side seat and the other man sat directly behind him in
the back driver’s side seat.

        When the victim started driving in the direction of downtown, the men “pulled guns”
on him and demanded his money. The victim told the men that he did not have any money
because he had just come from class and had not collected any cab fares that night. The
victim said the men did not believe that he did not have any money, so the victim offered to
stop the cab so that they could search him, but they told him to continue driving. He stated
that he was able to get a good look at both of the men in the backseat of his cab. The victim
said he was “really scared” during the robbery and tried to comply with the men’s requests.



                                              -3-
        As he was driving, the victim saw a police car and began following it. He blew his
horn and flashed his lights in an attempt to get the officer’s attention. When his assailants
saw what he was doing, they tried to grab the steering wheel and began struggling with him.
The victim said that he tried to keep the car on the road during this struggle. The man sitting
in the back driver’s side seat fired his gun, shattering a backseat window, and then the
Defendant attempted to jump out of the cab through that broken window. The man sitting
directly behind him continued to struggle with him to gain control of the steering wheel and
then fired a second shot “that kind of hit [the victim] on [his] head.” At that point, the victim
jumped out of the cab.

       The victim stated that he was transported to the hospital for his injuries. He later met
with Detective Sulfridge, who showed him a photographic lineup while he was still at the
hospital. The victim stated that Detective Sulfridge did not highlight or point to any of the
photographs in the lineup. The victim identified the individual in photograph six as the
Defendant, the man sitting in the back passenger’s side seat “right away.” He stated that both
men were in his cab for five to ten minutes and that he was able to closely look at them.

       Trial. The victim, a native of Gambia, West Africa, testified that on March 17, 2009,
he was working as a taxi driver for Yellow Cab. He stated that he started working at 10:00
p.m., after his physics class, and drove straight to the Wal-Mart at Harding Place and
Nolensville Road in Nashville to wait for paying customers.

        After he parked in the Wal-Mart lot, a man, whom he later identified at trial as the
Defendant, approached his cab and knocked on his window. The victim rolled down his
window, and the Defendant asked him if he was the driver of the cab he had called. The
victim said that he had not been called but could drive him wherever he wanted to go. The
Defendant asked the victim to stay there while he got his friend from inside Wal-Mart. The
victim stated he was in a well-lit area because he had parked his cab under one of the street
lights in the parking lot. Because there was plenty of light, he was able to closely look at the
Defendant when he knocked on his window and talked to him.

       The Defendant returned to the victim’s cab approximately five minutes later with
another man. The victim opened the door to the backseat, and the men told him they wanted
to go downtown. He stated that the Defendant sat in the back passenger’s side seat and the
other man sat directly behind him in the back driver’s side seat.

       The victim drove out of the parking lot and headed downtown. A couple of minutes
after pulling out onto Nolensville Road, the victim felt “something on [his] side[,]” and the
Defendant said something like, “Hey, man, this is a stick up.” When the victim told him that
he did not understand what a “stick up” was, the Defendant pointed his gun at the victim’s

                                               -4-
face and said, “You see this?” Then the Defendant said, “This is a gun. Keep driving.”
When the Defendant asked for his wallet, the victim responded that he had just begun
working after his class and did not have any money. The victim slowed his cab, and the
Defendant told him to keep driving. The victim stated that the Defendant and the other man
both had guns.

        The Defendant told the victim to turn down a street, but just before he got to that
street, the victim saw a police car and decided to follow it. The victim began blowing his
horn, speeding, and flashing his headlights at the police car with the hope of getting the
officer’s attention, but the officer did not appear to notice. When the victim’s assailants saw
what he was doing, the man in the back driver’s side seat started grabbing the steering wheel
in an attempt to get the car off the road. At the same time, the Defendant fired his gun at the
backseat passenger window, shattering it, and then attempted to jump out of this window.
The man in the back driver’s side seat continued to grab at the steering wheel, which caused
the vehicle to weave on the road. Because the car was unsteady, the Defendant was unable
to jump out the window and fell back in the car.

        Then the Defendant, with the gun in his left hand, reached between the front driver’s
seat and the front passenger seat. The victim grabbed the Defendant’s hand, pulled the gun
away from him, and aimed the gun at the other man who was trying to grab the steering
wheel. The victim pulled the trigger, but the gun did not fire. Then the Defendant snatched
the gun out of the victim’s hand and fired a second shot, and the victim felt “a heavy blow
[to his] head” as the bullet grazed him.

        After the Defendant’s second shot, the man sitting behind the victim continued to grab
at the steering wheel, causing the car to weave. The victim fell in the direction of the front
passenger seat but held onto the driver’s side door handle in order to stay in his seat, which
caused the driver’s door to open. As the cab turned, the victim was pushed into the driver’s
side door. When the victim realized that the man’s arms were between him and the steering
wheel, he decided to jump out of the cab.

       The victim said that he was terrified during the incident because he thought he was
going to die. He also stated that he jumped out of the cab because he thought it was the only
way to escape. After he jumped out of the cab, it collided with a car in the Nissan
dealership’s parking lot at the intersection of Nolensville Road and Thompson Lane. The
victim rolled onto the road, and a woman in an SUV asked him if he needed help. She then
drove the victim to a nearby hospital.

      During the incident, the victim received a large laceration to his head from the
Defendant’s bullet that required five staples. He stated that his head laceration resulted in

                                              -5-
a scar. He also had a large cut on his lip that required stitches, which resulted in a scar. In
addition, he underwent surgery to fix his broken elbow, which resulted in a scar. The victim
displayed these three scars to the jury during trial. The victim stated that he also sustained
a severe bruise on his left hand as well as several bruises and scrapes on his body from the
incident. The victim stated that he informed hospital staff and the police that he had been
shot. He acknowledged that he was at the hospital for approximately two hours before he
was discharged.

        The victim told the police that the Defendant and the other assailant were African-
American men between the ages of twenty-five and thirty-five. He also stated that the
Defendant was wearing blue jeans and a black or gray sweatshirt with blue on it. The victim
later viewed a photographic lineup containing six pictures and identified the individual in
photograph number six as the Defendant. He stated that the Defendant was the individual
who had originally approached his cab, had sat in the back passenger’s side seat, had stuck
the gun in his ribs, and had shot the bullet that grazed his head.

        James Reese, a patrol officer with the Metropolitan Nashville Police Department,
testified that on March 17, 2009, he responded to a call at the intersection of Nolensville Pike
and Thompson Lane. Upon his arrival, Officer Reese saw a Yellow Cab minivan that had
collided with two other vehicles in the parking lot of the Nissan dealership. He examined
the cab and noticed that the entire front end of the vehicle was “smashed.” In addition, the
front windshield and the two front windows were damaged, the airbags had been deployed,
and the rear passenger window was shattered. He noted that other than the broken rear
passenger window, most of the damage to the cab was in the front of the vehicle. Officer
Reese said that the victim had already been taken to the hospital by the time he arrived on the
scene.

       Officer Reese later went to the hospital to talk to the victim about the incident. He
noticed that the victim had a “severe laceration” to the crown of his head and “road rash”
from jumping out of the moving cab. The victim stated that his assailants were two African-
American males between the ages of twenty-five and thirty-five. Officer Reese
acknowledged that his police report did not mention that the victim had been shot, that shots
had been fired in the cab, or that the men had pulled a gun on the victim; however, he
asserted that he noted the victim’s severe head laceration in his report.

       Officer Reese stated that approximately an hour after the incident involving the
victim, Detective Sulfridge was driving in the area near where the incident occurred and saw
a man, later identified as the Defendant, “hobbling” down the road. Officer Reese drove to
the area, which was two to three tenths of a mile from the Nissan dealership, and saw the
Defendant limping from an apparent leg injury along the side of the road. He said the

                                              -6-
Defendant was African-American, approximately six feet tall with an average build, and had
a medium complexion. Officer Reese stated that he observed shattered glass in the
Defendant’s hair but did not mention this in his police report because he had already
completed his report by the time Detective Sulfridge found the Defendant near the Nissan
dealership. He stated that he did not do a supplemental police report because he allowed
Detective Sulfridge to handle the case from that point forward. He remembered that the
Defendant was wearing a black shirt when he saw him walking along the road, but he did not
remember if the Defendant was wearing blue jeans or pants at the time.

        Jacqueline Carter testified that some time after 11:00 p.m. on March 17, 2009, she saw
a man jump from a cab and roll onto the road while she was at a fast-food drive-thru on
Nolensville Road. She said the cab turned right at the red light before hitting a car at the
Nissan dealership. After the collision, Carter saw two African-American men jump out of
the cab and run around the side of the dealership. She stated that one of these men appeared
to be at least five feet, eight inches tall and wore a black jacket and blue jeans. She said the
other man was wearing a dark-colored shirt. Carter said she got out of her car, called 9-1-1,
and walked across the street to the wrecked cab.

       Charles Linville, a crime scene investigator for the Metropolitan Nashville Police
Department, testified that around 5:30 a.m. on March 18, 2009, he responded to the police
impound lot to process a Yellow Cab van. He observed that the front of the van was heavily
damaged and looked as if it had been wrecked. Investigator Linville was unable to obtain
any fingerprint evidence from the van because the inside and outside of the vehicle was wet.
He photographed the van and collected a black skull cap from inside.

        Detective Scott Sulfridge testified that on March 17, 2009, he responded to a call
regarding a robbery at the intersection of Thompson Lane and Nolensville Road. Detective
Sulfridge said he first went to the hospital to talk with the victim. He immediately observed
that the victim “was in pretty bad shape” and was “in a lot of pain.” He stated that the victim
had received a head injury during the incident. The victim told him that his assailants were
two African-American men wearing dark clothes between the ages of twenty-five and thirty-
five. Detective Sulfridge did not remember whether the victim told him that shots had been
fired, but he acknowledged that he did not mention that shots had been fired or that the
victim had been shot in his police report. Instead, he recalled the victim telling him that he
had been “pistol-whipped” with a gun during the incident.

       Detective Sulfridge stated that two or three hours after the incident, he drove down
Nolensville Road and turned onto Thompson Lane going east. Shortly thereafter, he noticed
a African-American man, later identified as the Defendant, limping along Thompson Lane
near Nolensville Road. He stated that it was obvious that the Defendant was in pain.

                                              -7-
Detective Sulfridge stated that the Defendant was a half mile to a mile away from the Nissan
dealership where the collision had occurred.

        Detective Sulfridge stated that he immediately became suspicious that the Defendant’s
injuries were from the incident involving the victim and called a patrol unit to meet him at
that location. When the other officer arrived, they approached the Defendant. Detective
Sulfridge immediately noticed that the Defendant had glass fragments in his hair, cuts on his
head, and an apparent injury to his leg. He asked the Defendant how he had been injured,
and the Defendant replied that he had fallen but never explained why he had glass in his hair.
Detective Sulfridge stated that the Defendant did not have a gun on his person at the time of
his arrest and that no guns were found in connection with this case. He acknowledged that
he did not mention the glass in the Defendant’s hair in his police report. However, in the
affidavit supporting the arrest warrant, Detective Sulfridge wrote that the Defendant had a
cut around his eye, an apparent broken leg, and small particles of glass in his hair. He stated
that the Defendant was transported to the hospital for his injuries and was arrested later that
night.

        Detective Sulfridge prepared a photographic lineup that included a photograph of the
Defendant. He stated that when he prepared the lineup, he looked for individuals who “fit
the same general description” given by the victim. Detective Sulfridge said he wanted the
people in the lineup to be similar to one another but not identical. He generated the lineup
by entering certain identifiers and then evaluated the photographs to find individuals with
similar characteristics to those of the Defendant. Although he searched for individuals
between the ages of twenty-five and thirty-five, he focused on the individuals’ appearance
rather than their age in choosing them for the lineup. He stated that he was surprised to learn
that the individual in photograph one was forty-five years old but asserted that the individual
could be thirty-five years old based on his appearance. He acknowledged that the individual
in photograph number two was eighteen. He agreed that the individual in photograph three
was forty-three years old and the individual in photograph five was forty-eight years old.
Detective Sulfridge acknowledged that the individual in photograph number four was heavier
than the other individuals in the lineup and that he might have removed that individual from
the lineup if he were to do it over again. However, he stated that the remaining five
individuals in the lineup were “similar enough.” He stated that the fact that photographs one
and two were father and son did not affect the lineup because they did not look like one
another. Detective Sulfridge acknowledged that he did not collect the clothing that the
Defendant was wearing as evidence. He also admitted that neither he nor the other officers
looked for shell casings at the scene because no one knew that the victim had been shot.

       Detective Sulfridge went to the hospital and presented the lineup to the victim. Using
a standard form provided by the police department, Detective Sulfridge informed the victim

                                              -8-
that his perpetrators might or might not be in the lineup. He also told the victim that the
individuals’ hairstyles could have changed and that he should focus on the facial features of
each of the individuals in the lineup. He stressed that the victim should only choose a
photograph if he recognized the individual from the incident. Detective Sulfridge said that
in a matter of seconds, the victim identified photograph number six, the Defendant, as one
of the men who tried to rob him. Detective Sulfridge stated that the victim was “positive”
about his identification of the Defendant.

                                         ANALYSIS

        I. Motion to Suppress. The Defendant argues that the trial court erred in denying his
motion to suppress the victim’s identification of him in the photographic lineup. He asserts
that the identification procedures used by the police deprived him of his right to a fair trial
and his right to due process of law. The Defendant claims that although the victim asserted
that his assailants were between the ages of twenty-five and thirty-five, only two of the six
men in the photographic lineup, including the Defendant, were within this age range. The
State responds by arguing that the Defendant failed to establish that the pre-trial photographic
lineup was unnecessarily suggestive. We agree with the State.

        On November 14, 2011, the Defendant filed a motion to suppress, wherein he claimed
that the photographic lineup was so unduly suggestive that it gave rise to an irreparable risk
of misidentification and that the victim’s identification was unreliable. Specifically, he
claimed that the photographic lineup was unnecessarily suggestive because the men in the
lineup were not similar in age or appearance to him.

        At the conclusion of the suppression hearing, the trial court noted that while some of
the individuals in the lineup appeared to be older than the Defendant and one of the
individuals appeared to be younger than the Defendant, there was nothing obviously
suggestive about the lineup that would lead to irreparable misidentification by the victim.
The court noted that the victim was able to look at the Defendant before he got into his cab
and was able to look at him while inside the cab, which increased the reliability of his
identification.

        In its order denying the motion to suppress, the trial court found that there was no
evidence that Detective Sulfridge prompted or coached the victim to pick the Defendant out
of the lineup. In evaluating whether the Defendant stood out from the other photographs, the
court found that the other individuals in the lineup were “not so grossly dissimilar as to
immediately project [the Defendant’s] picture into the mind of the observer.” The court
found that Detective Sulfridge had not included an age range based on the victim’s
description of his assailants in lineup “but simply included individuals that appeared

                                              -9-
generally similar to [the Defendant].” The court noted some discrepancies between the
individuals in the lineup but held that these discrepancies did not cause the lineup to be
unduly suggestive:

       The Court finds that suspects numbered 1, 3, and 5, do appear older than [the
       Defendant], who is suspect number 6. The Court finds, however, that this
       appearance of an age discrepancy does not rise to the level of suggestiveness
       or a gross dissimilarity. The Court further finds, in analyzing the other
       physical traits, that all of the individuals, including [the Defendant], were
       African-American males, with similar skin tones, fairly similar weight, similar
       facial hair, and all had relatively short hair. The Court, therefore, finds, after
       analyzing the totality of the physical traits of the individuals, that [the
       Defendant’s] picture does not contrast significantly with [the] other
       individuals’ picture[s] as to rise to a level of suggestiveness.

        An appellate court may consider the proof presented at the suppression hearing and
the trial when determining whether the trial court properly denied a motion to suppress. State
v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998). It is well-established that “a trial court’s
findings of fact in a suppression hearing will be upheld unless the evidence preponderates
otherwise.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The Tennessee Supreme Court
explained this standard in Odom:

               Questions of credibility of the witnesses, 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. The party prevailing in the trial court is
       entitled to the strongest legitimate view of the evidence adduced at the
       suppression hearing as well as all reasonable and legitimate inferences that
       may be drawn from that evidence. So long as the greater weight of the
       evidence supports the trial court’s findings, those findings shall be upheld.

Id. However, this court’s review of a trial court’s application of the law to the facts is de
novo with no presumption of correctness. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001);
(citing State v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999); State v. Yeargan, 958 S.W.2d
626, 629 (Tenn. 1997)). The defendant bears the burden of showing that the evidence
preponderates against the trial court’s findings. Odom, 928 S.W.2d at 23; Yeargan, 958
S.W.2d at 629.

       The Tennessee Supreme Court has held that photographic lineups are admissible
unless they are unduly suggestive:



                                              -10-
              Photographs contained in a photographic array do not have to mirror the
       accused. Instead, the law simply requires that the police refrain from
       “suggestive identification procedures.” Neil v. Biggers, 409 U.S. 188, 93 S.
       Ct. 375, 34 L. Ed. 2d 401 (1972). Thus, a photographic identification is
       admissible unless, based upon the totality of the circumstances, “the
       confrontation conducted . . . was so unnecessarily suggestive and conducive
       to irreparable mistaken identification that [the accused] was denied due
       process of law.” Stovall v. Denno, 388 U.S. 293, 301-302, 87 S. Ct. 1967,
       1972, 18 L. Ed. 2d 1199, 1206 (1967).

State v. Hall, 976 S.W.2d 121, 153 (Tenn. 1998). The risk of an eyewitness making an
incorrect identification is greater if the police show the eyewitness a lineup where a single
photograph “is in some way emphasized.” Simmons v. U.S., 390 U.S. 377, 383 (1968). In
addition, the risk of misidentification increases “if the police indicate to the witness that they
have other evidence that one of the persons pictured committed the crime.” Id. This court
has noted that “a lineup would be considered unduly suggestive only when the other
participants were grossly dissimilar.” State v. Edwards, 868 S.W.2d 682, 694 (Tenn. Crim.
App. 1993) (citing U.S. v. Wade, 388 U.S. 218, 233 (1967); Shye v. State, 506 S.W.2d 169,
173 (Tenn. Crim. App. 1973); Young v. State, 566 S.W.2d 895, 898 (Tenn. Crim. App.
1978)).

        In Neil v. Biggers, the Court established a two-part analysis that the trial court must
apply in determining the validity of a pre-trial identification. 409 U.S. 188, 198-99 (1972).
First, the trial court must determine whether the identification procedure was unduly
suggestive. Id. at 198. Next, if the trial court determines that the identification was unduly
suggestive, then it must consider whether, under the totality of the circumstances, the
identification procedure was nonetheless reliable. Id. at 199. This court must consider the
following factors in determining the reliability of an identification:

       1.      the opportunity of the witness to view the criminal at the time of the
               crime.
       2.      the witness’s degree of attention at the time of the crime.
       3.      the accuracy of the witness’s prior description of the criminal.
       4.      the level of certainty demonstrated by the witness at the confrontation.
       5.      the length of time between the crime and the confrontation.

Hall, 976 S.W.2d at 153 (quoting Biggers, 409 U.S. at 199); see State v. Philpott, 882 S.W.2d
394, 400 (Tenn. Crim. App. 1994). In Tennessee, it is unnecessary to apply the totality of
the circumstances test in Biggers to assess the reliability of the identification if the trial court
determines that the identification procedure was not unduly suggestive. See State v. Butler,

                                               -11-
795 S.W.2d 680, 686 (Tenn. Crim. App. 1990).

        After reviewing the record, we conclude that the evidence fully supports the trial
court’s denial of the motion to suppress based on its finding that there was nothing unduly
suggestive about the photographic lineup or the identification procedure. The victim testified
that the perpetrators in this case were two African-American males between twenty-five and
thirty-five years of age and that one of the perpetrators was between five feet, ten inches and
six feet tall and the other perpetrator was shorter. Once Detective Sulfridge developed the
Defendant as a suspect in this case, he included photographs of men in the lineup that had
similar physical features to those of the Defendant. Detective Sulfridge testified that in
choosing individuals for the lineup, age was important, but the individual’s appearance was
the most important factor. The photographic lineup contained color photographs of six
African-American males, with all of these men possessing fairly similar builds. In addition,
all six men had some facial hair, a fairly short hairstyle, and similar skin tones. Five out of
the six men, including the Defendant, were wearing a T-shirt with a round neck. Each
photograph was uniform in size, and the background color of all of the photographs was
nearly identical, if not identical. All of the photographs depicted the individuals from the
neck up. After reviewing the photographic lineup, we conclude that only two of the men in
the lineup appeared slightly older than the Defendant even though three of the men were in
fact older than the Defendant. We agree that one of the men in the lineup appeared slightly
younger than the Defendant. However, we agree with the State that the discrepancy in age
was not “an unusual variance, especially in light of the victim’s description giving a 10-year
range of ages for the perpetrators.” Therefore, we conclude that there was nothing about the
Defendant’s photograph that was “grossly dissimilar” to the photographs of the other
individuals included in the photographic lineup.

       We also conclude that there was nothing unnecessarily suggestive regarding the
manner in which Detective Sulfridge presented the photographic lineup to the victim.
Detective Sulfridge showed the photographic lineup to the victim only a few hours after the
offense. He explained that the assailants may or may not be in the lineup and that he should
only choose an individual in the lineup if he was certain he was one of his assailants.
Detective Sulfridge cautioned the victim that the individuals’ hairstyles could have changed
and that the photographs included in the lineup could be old, and he encouraged the victim
to focus on the facial features of each individual’s photograph. The evidence at trial was
undisputed that the victim identified the Defendant in the photographic lineup “very quickly”
and that the victim was “positive” that the Defendant was one of his assailants. Accordingly,
we conclude that the record supports the trial court’s denial of the motion to suppress the
victim’s identification of the Defendant because the photographic lineup was not unduly
suggestive. Because we have determined that the identification procedure was not unduly
suggestive, we need not assess the reliability of the victim’s identification.

                                             -12-
        II. Sufficiency of the Evidence. The Defendant argues that the evidence is
insufficient to support his convictions for attempted especially aggravated robbery and
attempted voluntary manslaughter. Specifically, he claims that the State failed to prove his
identity as one of the perpetrators of the offense and that the State failed to establish that the
victim suffered serious bodily injury as required for his attempted especially aggravated
robbery conviction. The State argues that there was sufficient evidence from which a rational
jury could find that the Defendant and an accomplice entered the victim’s cab and attempted
to rob the victim and that the Defendant fired a gun at the victim before the victim jumped
out of the car. We agree with the State on this issue as well.

        The State, on appeal, is entitled to the strongest legitimate view of the evidence and
all reasonable inferences which may be drawn from that evidence. State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997). When a defendant challenges the sufficiency of the evidence,
the standard of review applied by this court is “whether, after reviewing 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, 99 S. Ct. 2781, 2789 (1979). Similarly, Rule 13(e) of the Tennessee Rules of
Appellate Procedure states, “Findings of guilt in criminal actions whether by the trial court
or jury shall be set aside if the evidence is insufficient to support a finding by the trier of fact
of guilt beyond a reasonable doubt.”

        Guilt may be found beyond a reasonable doubt in a case where there is direct
evidence, circumstantial evidence, or a combination of the two. State v. Matthews, 805
S.W.2d 776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331
(Tenn. 1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The trier of fact must
evaluate the credibility of the witnesses, determine the weight given to witnesses’ testimony,
and reconcile all conflicts in the evidence. Odom, 928 S.W.2d at 23. When reviewing issues
regarding the sufficiency of the evidence, this court shall not “reweigh or reevaluate the
evidence.” Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997). This court has often
stated that “[a] guilty verdict by the jury, approved by the trial court, accredits the testimony
of the witnesses for the State and resolves all conflicts in favor of the prosecution’s theory.”
Bland, 958 S.W.2d at 659. A guilty verdict also “removes the presumption of innocence and
replaces it with a presumption of guilt, and the defendant has the burden of illustrating why
the evidence is insufficient to support the jury’s verdict.” Id. (citing State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982)).

       “In the absence of direct evidence, a criminal offense may be established exclusively
by circumstantial evidence.” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (citing
Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973); Marable v. State, 313 S.W.2d 451, 456-
58 (Tenn. 1958)). However, “[t]he jury decides the weight to be given to circumstantial

                                               -13-
evidence, and ‘[t]he inferences to be drawn from such evidence, and the extent to which the
circumstances are consistent with guilt and inconsistent with innocence, are questions
primarily for the jury.’” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting Marable,
313 S.W.2d at 457). This court may not substitute its inferences for those drawn by the trier
of fact in cases involving circumstantial evidence. State v. Sisk, 343 S.W.3d 60, 65 (Tenn.
2011) (citing State v. Lewter, 313 S.W.3d 745, 748 (Tenn. 2010)). We note that the standard
of review “‘is the same whether the conviction is based upon direct or circumstantial
evidence.’” State v. Hanson, 279 S.W.3d 265, 275 (quoting State v. Sutton, 166 S.W.3d 686,
689 (Tenn. 2005)); State v. Carruthers, 35 S.W.3d 516, 557 (Tenn. 2000). The court in
Dorantes specifically adopted the standard for circumstantial evidence established by the
United States Supreme Court in Holland:

              “Circumstantial evidence . . . is intrinsically no different from
       testimonial evidence. Admittedly, circumstantial evidence may in some cases
       point to a wholly incorrect result. Yet this is equally true of testimonial
       evidence. In both instances, a jury is asked to weigh the chances that the
       evidence correctly points to guilt against the possibility of inaccuracy or
       ambiguous inference. In both, the jury must use its experience with people and
       events in weighing the probabilities. If the jury is convinced beyond a
       reasonable doubt, we can require no more.”

Dorantes, 331 S.W.3d at 380 (quoting Holland v. United States, 348 U.S. 121, 140 (1954)).

       The Defendant was convicted of attempted especially aggravated robbery and
attempted voluntary manslaughter.         Especially aggravated robbery is a robbery
“[a]ccomplished with a deadly weapon” and “[w]here the victim suffers serious bodily
injury.” T.C.A. § 39-13-403(a). Robbery is defined as “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). As relevant in this case, serious bodily injury means bodily injury that
involves a substantial risk of death, protracted unconsciousness, extreme physical pain,
protracted or obvious disfigurement, or protracted loss or substantial impairment of a
function of a bodily member, organ or mental faculty. Id. § 39-11-106(a)(34). Voluntary
manslaughter is defined as “the intentional or knowing killing of another in a state of passion
produced by adequate provocation sufficient to lead a reasonable person to act in an irrational
manner.” Id. § 39-13-211(a).

       The offense of criminal attempt is defined as follows:

       A person commits criminal attempt who, acting with the kind of culpability
       otherwise required for the offense:

                                             -14-
       (1) Intentionally engages in action or causes a result that would constitute an
       offense, if the circumstances surrounding the conduct were as the person
       believes them to be;

       (2) Acts with intent to cause a result that is an element of the offense, and
       believes the conduct will cause the result without further conduct on the
       person’s part; or

       (3) Acts with intent to complete a course of action or cause a result that would
       constitute the offense, under the circumstances surrounding the conduct as the
       person believes them to be, and the conduct constitutes a substantial step
       toward the commission of the offense.

Id. § 39-12-101(a).

        Identity. The Defendant argues that the evidence is insufficient to support his
convictions because the State failed to prove his identity as one of the assailants. He
challenges the admissibility of the photographic lineup and of the victim’s in-court
identification of him and argues that the remaining proof does not establish his identity as
one of the perpetrators in this case. Specifically, the Defendant asserts that although the
victim testified that he had been shot during the incident, no witnesses, police reports, or
medical records showed that the victim had been shot. He further asserts that no blood was
found in the cab, no DNA evidence was obtained, and the gun allegedly used during the
incident was never recovered. The Defendant also notes that although Detective Sulfridge
testified that he saw glass fragments in his hair when he encountered him after the incident,
he failed to mention this fact in his police report and failed to take any photographs of him
that would support this claim.

        “The identity of the perpetrator is an essential element of any crime.” State v. Robert
Wayne Pryor, No. M2003-02981-CCA-R3-CD, 2005 WL 901140, at *3 (Tenn. Crim. App.,
at Nashville, Apr. 19, 2005) (citing State v. Thompson, 519 S.W.2d 789, 793 (Tenn. 1975)).
The State has the burden of proving “the identity of the defendant as the perpetrator beyond
a reasonable doubt.” Id. (citing State v. Sneed, 908 S.W.2d 408, 410 (Tenn. Crim. App.
1995)). The identity of the defendant as a perpetrator may be established by direct evidence,
circumstantial evidence, or a combination of the two. Thompson, 519 S.W.2d at 793. “The
credible testimony of one identification witness is sufficient to support a conviction if the
witness viewed the accused under such circumstances as would permit a positive
identification to be made.” State v. Radley, 29 S.W.3d 532, 537 (Tenn. Crim. App. 1999)
(citing State v. Strickland, 885 S.W.2d 85, 87-88 (Tenn. Crim. App. 1993)). The

                                             -15-
identification of the defendant as the perpetrator is a question of fact for the jury after
considering all the relevant proof. Strickland, 885 S.W.2d at 87 (citing State v. Crawford,
635 S.W.2d 704, 705 (Tenn. Crim. App. 1982)). In addition, as relevant here, “the testimony
of a victim, by itself, is sufficient to support a conviction.” Id. (citing State v. Williams, 623
S.W.2d 118, 120 (Tenn. Crim. App. 1981)).

        Just a few hours after the offense in this case occurred, the victim identified the
Defendant as one of the perpetrators in the pre-trial photographic lineup. The victim made
this identification within a matter of seconds and was certain that the Defendant was one of
his assailants. The victim also identified the Defendant at trial. In addition, within an hour
or two of the offense, the Defendant was found limping down the street less than a mile from
where the incident involving the victim occurred. The Defendant had glass in his hair, which
was consistent with a recent a car collision, and he matched the description that the victim
had given to police. Although the Defendant told police that his injuries were from a fall,
it was the jury’s prerogative to reject this explanation. Moreover, the evidence also showed
that the victim was able to closely look at the Defendant before he got into his cab, that the
victim received a severe laceration on his head when the Defendant’s bullet grazed him, that
the victim informed hospital staff and the police that he had been shot, and that the rear
passenger window of the cab had been shattered, which was consistent with the victim’s
testimony that a gun had been fired inside the cab. Officer Reese and Detective Sulfridge
testified that the Defendant had shattered glass in his hair, and Detective Sulfridge noted the
glass in the Defendant’s hair in his affidavit for the arrest warrant. Viewing the evidence in
a light most favorable to the State, we conclude that a rational trier of fact could have found
the Defendant to be the perpetrator of the offenses in this case beyond a reasonable doubt.

       Serious Bodily Injury. The Defendant also argues the evidence is insufficient to
sustain his conviction for attempted especially aggravated robbery because the State failed
to establish that the victim suffered serious bodily injury. Instead, he asserts that the
evidence only supports a finding that the victim sustained “bodily injury” under Tennessee
Code Annotated section 39-11-106(a)(2) and, therefore, is guilty of attempted aggravated
robbery pursuant to Code sections 39-12-101(a)(3) and 39-13-402.

        The Defendant, citing State v. Farmer, 380 S.W.3d 96 (Tenn. 2012), claims that the
State failed to present sufficient evidence that the victim sustained serious bodily injury. He
asserts that the victim’s injuries did not involve a substantial risk of death, protracted loss of
consciousness, extreme physical pain, protracted or obvious disfigurement, or protracted loss
or substantial impairment of a function of a bodily member, organ, or mental faculty. See
T.C.A. § 39-11-106(a)(34). In Farmer, the Tennessee Supreme Court held that the State
failed to present sufficient evidence showing that the victim, who was shot in the leg,
suffered serious bodily injury. Farmer, 380 S.W.3d at 103. No evidence was presented

                                               -16-
showing that the victim sustained permanent scars from being shot or that he suffered
protracted impairment of his leg. Id. at 102. Interestingly, the victim in Farmer testified that
he did not realize he had been shot until he noticed a hole in his pants. Id. at 101. In contrast
to Farmer, the victim in this case testified that he had scars from the lacerations to his head
and lip from this offense. In addition, he stated that he had a scar from the surgery required
to fix his fractured elbow, which he sustained when he jumped out of the car to escape his
assailants.

        We agree with the State that there was sufficient evidence from which a rational jury
could have found that the victim suffered serious bodily injury based on his protracted or
obvious disfigurement based on his scars. Protracted, as relevant here, means “delayed or
prolonged in time.” State v. Derek Denton, No. 02C01-9409-CR-00186, 1996 WL 432338,
at *5 (Tenn. Crim. App. Aug. 2, 1996) (citing Merriam Webster’s Collegiate Dictionary 939
(10th ed.1994); American Heritage Dictionary 568 (1975)) (determining the meaning of
protracted unconsciousness as a basis for serious bodily injury). The record shows that the
incident causing the victim’s injuries occurred on March 17, 2009. At the trial on June 18,
2012, more than three years after the incident, the victim displayed scars on his head, lip, and
elbow to the jury. This court has consistently held that a scar is sufficient to support the
element of serious bodily injury. See State v. James Richardson Reece, No. M2011-01556-
CCA-R3-CD, 2013 WL 1089097, at *14 (Tenn. Crim. App. Mar. 14, 2013) (citing cases in
which this court held that a scar constitutes protracted or obvious disfigurement for the
purpose of establishing serious bodily injury), perm. app. denied (Tenn. June 17, 2013);
State v. Deonte Matthews, No. M2010-00647-CCA-R3-CD, 2012 WL 5378046, at *4 (Tenn.
Crim. App. Oct.31, 2012) (same); State v. Richard Dale Capps, No. M2010-02143-CCA-R3-
CD, 2012 WL 3800848, at *7 (Tenn. Crim. App. Sept.4, 2012) (holding that the victim’s
scar from a two-inch laceration on his ear was sufficient to establish serious bodily injury),
perm. app. denied (Tenn. Feb. 13, 2013); State v. Anthony D. Forster, No. M2002-0008-
CCA-R3-CD, 2011 WL 1431980, at *10 (Tenn. Crim. App. April 12, 2011) (concluding that
the victim’s scar, which began in the middle of the bridge of her nose and ended at her lip,
was sufficient to establish the element of serious bodily injury). Therefore, we conclude that
there is sufficient evidence to support serious bodily injury based on the victim’s protracted
or obvious disfigurement.

        We also agree with the State that a rational jury could have found that the victim
suffered serious bodily injury based on protracted loss or substantial impairment of the
function of a bodily member. The victim’s medical records, which were entered into
evidence at trial, show that he sustained a fractured elbow from this incident. The victim was
placed in a splint and was referred to an orthopedist for additional treatment. The victim
testified that he later underwent surgery to correct his broken elbow. The victim’s discharge
instructions noted that elbow fractures take between four and twelve weeks to heal and that

                                              -17-
they are first treated with a splint, which is followed by a long cast. See State v. John
Johnson, No. W2002-01333-CCA-R3-CD, 2003 WL 22794530, at *2 (Tenn. Crim. App.
Nov. 18, 2003) (concluding that the victim suffered serious bodily injury from substantial
impairment of a function of a bodily member when the victim used crutches and a cane after
his injury, had a severe limp for two months after the injury, and had weakness in his leg two
years after the offense). Both the victim’s testimony and his medical records lead to the
inference that his fractured elbow substantially impaired the use of his right arm during the
weeks it was immobilized. Accordingly, we conclude that there was sufficient evidence
supporting serious bodily injury based on the victim’s protracted loss or substantial
impairment of the function of his right arm.

       Because we have already concluded that there was sufficient evidence to support the
serious bodily injury element based on protracted or obvious disfigurement and protracted
loss or substantial impairment of a function of a bodily member, we need not determine
whether a rational jury could have found that the victim suffered serious bodily injury based
on extreme physical pain, a closer question in this case. Viewing the evidence in a light most
favorable to the State, we conclude that a rational trier of fact could have found the
Defendant guilty of attempted especially aggravated robbery and attempted voluntary
manslaughter beyond a reasonable doubt.

                                     CONCLUSION

       The trial court’s judgments are affirmed.

                                                    ___________________________________
                                                    CAMILLE R. McMULLEN, JUDGE




                                             -18-
