          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT JACKSON
                     NOVEMBER SESSION, 1996




STATE OF TENNESSEE,        )
                           )    No. 02C01-9511-CR-00340
      Appellee             )
                           )    SHELBY COUNTY
vs.                        )
                           )    Hon. BERNIE WEINMAN, Judge
LEON B. FRANKLIN,          )
                           )    (Robbery)
      Appellant            )



For the Appellant:              For the Appellee:

A.C. WHARTON                    CHARLES W. BURSON
District Public Defender        Attorney General and Reporter

WALKER GWINN                    JANIS TURNER
Asst. Public Defender           Assistant Attorney General
201 Poplar Avenue               Criminal Justice Division
Suite 2-01                      450 James Robertson Parkway
Memphis, TN 38103               Nashville, TN 37243-0493

BARRY KUHN
Asst. Public Defender           WILLIAM GIBBONS
201 Poplar, Second Floor        District Attorney General
Memphis, TN 38103
                                LORRAINE CRAIG
                                Asst. District Attorney General
                                201 Poplar, Third Floor
                                Memphis, TN 38103




OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                     OPINION



       The appellant, Leon B. Franklin, was convicted by a Shelby County jury of

robbery, Tenn. Code Ann. § 39-13-401 (1991), and sentenced to three years

confinement in the county workhouse. On appeal, the appellant challenges the

sufficiency of the evidence supporting the jury’s verdict. Specifically, he

contends that the State failed to establish beyond a reasonable doubt the identity

of the perpetrator.



                             1. Factual Background

       The appellant’s case proceeded to trial on March 28, 1995. At trial, the

State presented the testimony of Susan King, an assistant manager at Home

Medical Equipment, located in St. Joseph’s Hospital in downtown Memphis. On

December 8, 1993, Ms. King was working at the front counter of the store. A

cash register containing approximately one hundred dollars was located at the

front counter. Four other employees, including Kelley Holmes, the billings and

collections coordinator, were present in the store. At approximately 3:00 p.m., as

Ms. King was talking with a customer, a man entered the store. He approached

Ms. King and demanded that she give him money. His hand was inserted in his

jacket pocket, and he informed Ms. King that he had a gun in his pocket. Ms.

King unlocked and opened the cash register, and the man removed the money.

Ms. King testified that, at this point, three employees left the store through a

back door. Kelley Holmes emerged from one of the offices and whispered Ms.

King’s name. She and Ms. King then exited the store through the back door.

Ms. Holmes entered a nearby office and asked that someone call the police.

Subsequently, as Ms. King and Ms. Holmes searched for a security guard, they

again observed the perpetrator crossing the hospital parking lot and entering the

hospital.




                                          2
        At trial, Ms. King identified the appellant as the person who had committed

the robbery. Ms. King testified that the store was “very well lit.” The front

counter of the store is not more than fifteen or twenty feet from the door through

which the appellant entered. Moreover, the appellant stood very close to Ms.

King as he removed the money from the cash register. Ms. King had ample

opportunity to observe the appellant’s face and his clothing. According to Ms.

King, the appellant was wearing dirty blue jeans, a light-colored shirt, a

windbreaker, and a baseball cap. The appellant was unshaven, and his facial

hair was turning gray. He appeared to be in his late thirties or early forties.1 The

appellant appeared to have been drinking heavily.



        The police arrived approximately five minutes after the robbery. Ms. King

gave the police the above description of the appellant. Approximately twenty or

thirty minutes later, the police brought the appellant to the scene of the robbery.

Ms. King identified the appellant as the perpetrator of the robbery. At this point,

the appellant was wearing the same clothes that he had worn during the robbery.

Ms. King testified at trial that there was no doubt in her mind that the appellant

was the person who had committed the robbery.



        Kelley Holmes also testified. She recounted that, on December 8, 1993,

at approximately 3:00 p.m., she heard someone enter the store. She was sitting

at her desk, which was in an area of the store partitioned from the customer

service area. As she approached the customer service area, she observed a

man talking to Ms. King. She overheard him tell Ms. King that he had a gun and

order her to give him money. She stood still for several moments and then

returned to her desk. She indicated to her fellow employees that they should

leave the store through the back door. She then once more looked into the



        1
        Officer Thomas Arnold testified that, when he detained the appellant, he ascertained that
the appellant was forty-one.

                                               3
customer service area, capturing Ms. King’s attention. The perpetrator did not

notice Ms. Holmes, as he was removing money from the cash register. Both Ms.

Holmes and Ms. King quickly exited the store. Ms. Holmes entered a nearby

office and asked someone to call the police. After leaving this office, she again

observed the robber walking across the hospital parking lot.



      At trial, Ms. Holmes identified the appellant as the person who had robbed

Home Medical Equipment. She stated that, following the robbery, on the

telephone, she gave the police the following description of the perpetrator:

      A black male; he was not a large frame, 150/160-something
      pounds -- not a large frame; had blue jeans on that were real
      grungy looking -- dirty blue jeans; had a dark-colored coat on with a
      white shirt -- a light shirt underneath it, and had a cap on. ... and
      had dark shoes on.

A few minutes after Ms. Holmes gave the police this description, the police

arrived. Thereafter, approximately thirty minutes after the offense, the police

brought the appellant to the hospital, and Ms. Holmes identified the appellant as

the person who had robbed the store. Ms. Holmes stated at trial that there was

no doubt in her mind that the appellant was the perpetrator.



       Ms. Holmes testified that, during the robbery, she stood between three

and four feet from the appellant. The store was lit with fluorescent light bulbs.

Moreover, the store had large windows and the window shades were open. Ms.

Holmes had ample opportunity to observe the appellant’s face and his clothing.



       Officer Thomas Arnold, a patrolman with the Memphis Police Department,

also testified. He stated that, on December 8, 1993, at approximately 3:00 p.m.,

the dispatcher notified him of a robbery that had occurred at Home Medical

Equipment, located inside St. Joseph’s Hospital in the downtown area. Officer

Arnold began to search the area, and, between eight and fifteen minutes later, a

short distance from St. Joseph’s hospital, he observed an individual who


                                         4
matched the description broadcast by the dispatcher. Arnold detained the

suspect, whom Arnold identified at trial as the appellant.2 Arnold testified that,

although there were other people in the vicinity, no one approached him and the

appellant or attempted to speak with him, nor did the appellant indicate that he

was accompanied by anyone. The appellant denied committing any robbery.

Arnold searched the appellant for weapons, but the appellant was unarmed.

Arnold then transported the appellant to the scene of the robbery, where Ms.

King and Ms. Holmes identified the appellant. Neither witness hesitated in

identifying the appellant as the perpetrator of the robbery. At this point, the

officer unsuccessfully searched the appellant for money. The officer testified

that, between the hospital and the location where the appellant was initially

detained, there are vacant lots that are “grown up” and littered with trash, where

someone might hide a gun or money.



        The appellant did not testify at trial. He did introduce the testimony of

Gregory Jones, his stepbrother. Mr. Jones testified that the appellant was with

him on December 8, 1993, from 10:00 a.m. until the appellant was detained by

Officer Arnold. Indeed, Jones testified that he was present when the appellant

was first detained. Jones testified that he approached and spoke with the officer.



                                            2. Analysis

        The appellant challenges the sufficiency of the identification evidence. 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). The defendant must

establish that the evidence presented at trial was so deficient that no


        2
         Arnold c onfirm ed that, wh en he ap proach ed the ap pellant, he c ould sm ell “a mo derate
odor” of alcohol. Gregory Jones, the appellant’s stepbrother, testified that he and the appellant
had be en drink ing wine o n the day o f the offen se.

                                                   5
"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); Tenn. R.

App. P. 13(e). Guilt may be predicated upon direct evidence, circumstantial

evidence, or both. State v. Carey, 914 S.W.2d 93, 95 (Tenn. Crim. App. 1995).



         An appellate court may neither reweigh nor reevaluate the evidence when

determining its sufficiency. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.

1978). Questions concerning the credibility of witnesses and the weight and

value to be given the evidence, as well as all factual issues raised by the

evidence, are resolved by the trier of fact, and not the appellate courts. State v.

Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). "A jury verdict approved by the trial

judge accredits the testimony of the witnesses for the State and resolves all

conflicts in favor of the State's theory." State v. Williams, 657 S.W.2d 405, 410

(Tenn. 1983). The State is entitled to the strongest legitimate view of the

evidence and all reasonable inferences which may be drawn therefrom. Id. See

also State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992).



         “It is well established that the identification of a defendant as the person

who committed the offense for which he is on trial is a question of fact for the

determination of the jury upon consideration of all competent proof.” State v.

Strickland, 885 S.W.2d 85, 87 (Tenn. Crim. App. 1993). See also State v.

Williams, No. 01C01-9505-CR-00146 (Tenn. Crim. App. at Jackson, November

12, 1996); State v. Rollins, No. 03C01-9308-CR-00250 (Tenn. Crim. App. at

Knoxville), perm. to appeal denied, (Tenn. 1995). 3 Moreover, this court has held


         3
           Again, the trial occurred on March 28, 1995, prior to our supreme court’s opinion in State
v. Dyle , 899 S.W.2d 607 (Tenn. 1995). That opinion was released on May 15, 1995. In Dyle , 899
S.W.2d at 612, the Supreme Court promulgated an identity instruction which must be given to the
jury by the trial cou rt when ide ntification is a m aterial issue and it is requ ested b y defens e coun sel.
In the instant case, because the trial occurred prior to the Dyle opinion, defense counsel did not
request and the trial court did not give the Dyle instruction. Rather, the trial court instructed the
jury:



                                                      6
that the identification testimony of a victim is, by itself, sufficient to support a

conviction. Id. We conclude that the evidence adduced at trial is sufficient.



        Accordingly, we affirm the judgment of the trial court.




                                           ____________________________________
                                           DAVID G. HAYES, Judge



CONCUR:



_____________________________
GARY R. WADE, Judge


_____________________________
WILLIAM M. BARKER, Judge




        The Court charges you that the identity of the defendant must be proven in the
        case o n the par t of the State to your satisf action be yond a rea sonab le doubt. In
        other words, the burden of proof is on the State to show that the defendant now
        on trial before you is the identical person who committed the crime with which he
        is charg ed. In con sidering th e identity of a pe rson, the Jury m ay take into
        consideration all the facts and circumstances in the case.

        The Court further charges you that if you are satisfied from the whole proof in the
        case, beyond a reasonable doubt, that the defendant Leon B. Franklin committed
        the crime charged against him, and you are satisfied, beyond a reasonable doubt
        that he has been identified as the person who committed the crime charged, then
        it would be your duty to convict him. On the other hand, if you are not satisfied
        with the identity from the proof, or you have a reasonable doubt as to whether he
        has been ident ified fr om the w hole b ody of the p roof in the c ase , then you sh ould
        return a ve rdict of not g uilty.

Dyle is applicable both to those cases on appeal when the opinion was released and to those
cases tried after tha t date. Id. The appellant filed his notice of appeal on May 22, 1995. Thus,
the case was not “on appeal” when the opinion in Dyle was released. Nevertheless, applying the
principles set forth in Dyle , in the context of the evidence in this case and the above instruction,
we con clude tha t any error w as harm less. Id.; Tenn. R. App. P. 36(b); Tenn. R. Crim . P. 52(a).



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