                                                                                             08/03/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                November 8, 2016 Session

         STATE OF TENNESSEE v. JAVONTA MARQUIS PERKINS

                Appeal from the Criminal Court for Davidson County
                  No. 2012-C-2144 J. Randall Wyatt, Jr., Judge
                     ___________________________________

                            No. M2015-02423-CCA-R3-CD
                        ___________________________________


Defendant, Javonta Marquis Perkins, was indicted by the Davidson County Grand Jury
for aggravated robbery, carjacking, and possession of a weapon during the commission of
a dangerous felony. Defendant was convicted as charged by a jury and sentenced by the
trial court to ten years each for his aggravated robbery and carjacking convictions and six
years for the possession of a weapon conviction. By operation of law, the trial court
ordered Defendant’s six-year sentence consecutive to his concurrent ten-year sentences,
for an effective sentence of 16 years. In this appeal as of right, Defendant contends that:
1) the trial court erred by denying his motion to suppress the victim’s pretrial
identification; 2) the trial court erred by instructing the jury on criminal responsibility; 3)
the evidence was insufficient to support his convictions; and 4) his sentences are
excessive. Having reviewed the entire record and the briefs of the parties, we find no
error and affirm the judgments of the trial court.

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

THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which ALAN E. GLENN
and ROBERT W. WEDEMEYER, JJ., joined.

Richard C. Strong, Nashville, Tennessee, for the appellant, Javonta Marquis Perkins.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Glenn R. Funk, District Attorney General; and Jude Santana, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                         OPINION

Suppression hearing

        On March 3, 2012, at approximately 1:45 a.m., Maurice Hegwood parked in the
driveway of his parents’ residence. When he got out of his car, two men approached him,
and one of the men held a gun to his head and ordered him to get on the ground. He
asked Mr. Hegwood whether anyone was in the house, and he replied that his parents
were inside. The gunman grabbed Mr. Hegwood’s keys from him and gave them to the
other man. The other man was trying to back Mr. Hegwood’s car out of the driveway,
and “he kept hitting the house back and forth.” The gunman yelled at the other man,
“You don’t know how to f***ing drive.” Mr. Hegwood’s vehicle was a 2009 Pontiac G6
that he had purchased three days prior to the incident. After the other man backed the car
out of the driveway, the gunman got into the driver’s seat, fired a shot into the air, and the
two men drove away. Mr. Hegwood testified that the incident lasted 10-15 minutes.

       Mr. Hegwood testified that he gave a detailed description of the gunman to the
police. He told the officer who responded that the gunman was wearing a white t-shirt
and blue jeans and that he had dreadlocks in his hair. He told the officer that the other
man wore a blue shirt and jeans and that the gunman was taller and older than the other
man. He told police that he believed the weapon was a semi-automatic.

       Mr. Hegwood testified that the police contacted him to tell him that his car had
been located. He testified,

        I remember getting a call to tell me he said, “He had good news and bad
        news, what do I want first?” And I said, “It doesn’t matter.” He said,
        “Okay, I will give you the bad news. We got him. He tried to run. The
        car was wrecked and the car is totaled[,]” and he told me where it was[,]
        and that is where I went.

        Mr. Hegwood drove his father’s vehicle to the scene of the crash and identified his
car as it was being searched and towed from the scene. Mr. Hegwood was then told to go
to the hospital. When he arrived at the hospital, he saw someone in a room connected to
the emergency room waiting area, and he recognized the person as the gunman. Mr.
Hegwood told the police, “that’s him.” Mr. Hegwood did not recall whether Defendant
was handcuffed. He did not see any shackles. Mr. Hegwood saw Davidson County
Sheriff’s Office officers patrolling the area. He testified that it was approximately two
hours after the incident when he identified Defendant at the hospital.



                                            -2-
       Mr. Hegwood denied that a police officer advised him at the hospital that they had
a suspect. He testified that he was advised by an officer at the hospital about a “four-hour
rule” regarding show-up identifications, but he “didn’t have a real understanding [of]
what they w[ere] talking about at the time.”

        Mr. Hegwood identified Defendant at the suppression hearing as the person who
robbed him at gunpoint and testified that he was “one-hundred percent” certain of his
identification.

       Mr. Hegwood testified that he is an employee of the Davidson County Sheriff’s
Office, and his duties include the management of legal mail. He had seen Defendant
several times since Defendant came into custody. After Mr. Hegwood realized who
Defendant was, he informed his supervisor, who took steps to ensure that Mr. Hegwood
did not have further contact with Defendant.

        Officer Nicholas Carter, of the Metro Nashville Police Department (“MNPD”),
responded to the aggravated robbery call on March 3, 2012. He arrived at Mr.
Hegwood’s residence between 1:50 and 2:00 a.m. He testified that Mr. Hegwood gave
“[v]ery good” descriptions of the two perpetrators. Mr. Hegwood indicated that he
believed he could identify the gunman, but that he did not believe he could identify the
other man. Officer Carter testified that the area where the robbery occurred was “fairly
well-lit.” Mr. Hegwood also gave a description of his vehicle. At 2:55 a.m., Officer
Carter saw the vehicle with two people inside. He followed the car for approximately
five minutes. When a backup officer arrived, Officer Carter and the other officer
attempted to stop the vehicle, and the vehicle fled. The officers pursued the vehicle, and
it crashed into a wooded area. Officer Carter did not see the occupants of the vehicle exit
the vehicle. Two other K-9 officers apprehended two suspects approximately 30 minutes
after the crash, and they were taken to the hospital for injuries sustained in the crash, and
both suspects had been bitten by the K-9.

        Officer Carter called Mr. Hegwood and told him that his car had been located and
that it had been “totaled.” Officer Carter met Mr. Hegwood at the entrance of the
hospital, and they “spoke for a minute.” Officer Carter testified that Mr. Hegwood
looked in “room 9” where suspects are usually transported and “immediately identified
the defendant.” Officer Carter denied that he told Mr. Hegwood that suspects are taken
to that room. Officer Carter testified that Mr. Hegwood seemed “[v]ery confident” in his
identification. Officer Carter testified that Defendant’s description of the gunman was
consistent with Defendant’s appearance.

        Officer Carter testified on cross-examination that he “specifically remember[ed]”
telling Mr. Hegwood that the police had found his vehicle and that it was “totaled.” He
                                            -3-
did not recall whether he told Mr. Hegwood that the suspects had been detained or
whether he told him to come to the hospital to identify them. Officer Carter testified that
there were three to five officers present in “room 9” for security and not related to the
incident involving Mr. Hegwood. Officer Carter did not recall whether he discussed the
“four[-]hour rule” with Mr. Hegwood. Officer Carter testified that Defendant was
handcuffed to the gurney.

        At the conclusion of the hearing, the trial court found that Mr. Hegwood’s
opportunity to view the Defendant during the aggravated robbery “was pretty good[;]”
that Mr. Hegwood’s description of Defendant was consistent with Defendant’s
appearance; and that Mr. Hegwood’s level of certainty in his identification of Defendant
as the gunman was “100 percent[.]” The trial court also concluded that Mr. Hegwood’s
identification of Defendant was not the result of police suggestion. The trial court denied
Defendant’s motion to suppress.

Trial

        Mr. Hegwood and Officer Carter’s testimony at trial was substantially the same as
their testimony at the suppression hearing. Mr. Hegwood, an employee of the Davidson
County Sheriff’s Office, testified that on March 3, 2012, at 1:40 a.m., he was robbed at
gunpoint in the driveway of his parents’ home by two men. The men stole his Pontiac G-
6 that he purchased the day before for $13,500. His wallet, a laser pointer, and several
compact discs were inside his car.

        Mr. Hegwood testified that the driveway was well-lit with motion detection flood
lights, a porch light near the garage and street lighting. Mr. Hegwood testified that he got
a good look at the gunman. Mr. Hegwood identified Defendant as the gunman at trial.

       Mr. Hegwood testified that Defendant pointed a gun at his head and told him “to
get on the ground.” Defendant asked Mr. Hegwood if anyone was inside the house. Mr.
Hegwood replied that no one was inside because he did not want the men to harm his
parents. Defendant took Mr. Hegwood’s keys from his pocket and threw them to the
other man. Defendant asked Mr. Hegwood again if anyone was inside the house, and Mr.
Hegwood told him that his parents were inside. Defendant told him, “‘I ought to kill ya
for lying.’” Mr. Hegwood testified that he was afraid Defendant would shoot him. Mr.
Hegwood looked up at Defendant while Defendant was standing over him, and
Defendant told him not to look at him again. The other man tried to back Mr. Hegwood’s
car out of the driveway, and he hit the corner of the house, damaging the car and the
house. Defendant fired a shot into the air and got into the car, and they two men drove
away.

                                           -4-
       Mr. Hegwood called 9-1-1 to report the incident. When Officer Carter arrived,
Mr. Hegwood gave him a description of the gunman. He told Officer Carter that he was
wearing a white t-shirt and jeans, that he had dreadlocks, and that he was taller than the
other man. After he identified his car at the scene of the crash, Mr. Hegwood went to the
hospital, where he saw and identified Defendant as the gunman. Mr. Hegwood testified
that Officer Carter walked towards him as he entered the hospital through the emergency
room area. Mr. Hegwood saw Defendant in a room approximately 10 to 15 feet away.
He told Officer Carter, “that is him in the room.”

       Mr. Hegwood acknowledged that there were several police officers standing in the
hallway. Mr. Hegwood could not recall who called him or why he was asked to come to
the hospital. He also could not recall whether he was told that the suspects had been
caught. He testified that no one suggested or invited him to identify Defendant. Mr.
Hegwood testified that he is “100 percent” certain of his identification of Defendant as
the gunman.

        Mr. Hegwood described his job at the Davidson County Sheriff’s Office and
testified that when he saw Defendant at a facility in early 2014, he told his supervisor and
took measures so that they would not have contact with each other.

       Officer Carter arrived at the scene a few minutes after Mr. Hegwood called 911.
He took a report from Mr. Hegwood in the driveway. The area was well lit from a light
on the house and a street light, and Officer Carter did not need a flashlight to write the
report. Mr. Hegwood gave descriptions of his vehicle and the two perpetrators. Mr.
Hegwood gave a more detailed description of the gunman. He described the gunman as
an African-American male with medium length dreadlocks, wearing a white shirt and
blue jeans, and he was taller than the other man. Mr. Hegwood told Officer Carter that he
believed he would be able to identify the gunman, but not the other man.

       Approximately one hour after Officer Carter left Mr. Hegwood’s parents’
residence, he observed Mr. Hegwood’s vehicle. He observed two people inside the
vehicle. Officer Carter followed the car and waited for backup officers to arrive. When
Officer Steven Spillers arrived, the two officers activated their emergency lights and siren
and attempted to stop the vehicle. The driver failed to stop. He drove through a parking
lot and over a curb, and the car went airborne and wrecked in the woods. Officer Carter
went to the crash site. He did not recall how many people exited the vehicle, but he could
hear people running through the brush. He acknowledged that he testified at a prior
hearing that he saw two people exit the car. Officer Carter testified that the area where
the wreck happened was so dense, he stayed with his vehicle. Officer Carter was not
present when Defendant and his co-defendant, Quentin McClain, were apprehended. He
saw both men after they were apprehended. He testified that Defendant was “a young
                                           -5-
black male, kind of medium length dreads, . . . fairly slim, 5’7”, 5’8”ish.” Defendant was
wearing a white shirt. Both men were transported to the hospital.

       Officer Carter did not recall whether he told Mr. Hegwood to go to the hospital or
whether he told Mr. Hegwood that the two people arrested had been taken to the hospital.
Officer Carter met Defendant inside the entrance of the ER at the hospital and had “a
brief conversation with him.” Officer Carter told Mr. Hegwood that he was sorry about
his car, and “that is when he looked into the room.” Officer Carter testified that
Defendant was handcuffed to a hospital gurney. Officer Carter testified that he did not
include in his police report that Mr. Hegwood identified Defendant at the hospital as the
gunman. Officer Carter testified that it “was a mistake” not to include that information
and that he expected Detective Haney to include it in the affidavit of complaint. Officer
Carter denied that he told Mr. Hegwood that Defendant was at the ER and that he asked
Mr. Hegwood to identify anyone. Officer Carter acknowledged that he called Mr.
Hegwood and that Mr. Hegwood went to the hospital, but he testified that he “d[id]n’t
know” why Mr. Hegwood went to the hospital.

        Officer Steven Spillers of the MNPD responded to Officer Carter’s call that he had
spotted the suspect vehicle. Officer Spillers observed two men in the vehicle and damage
on the driver’s side rear door, which supported Mr. Hegwood’s statement that the car was
damaged when the suspects hit the side of the house backing out of the driveway. Officer
Spillers and Officer Carter followed the suspect vehicle, and both officers activated their
lights and sirens. The driver refused to stop and attempted to make a left turn. The driver
lost control of the vehicle, jumped a curb, and hit a concrete embankment. The vehicle
landed in a densely wooded area. Officer Spillers testified that “the whole thing was
pretty quick.”

       Officer Spillers saw only one person exit the vehicle following the crash. Officer
Spillers heard someone running through the woods. He ordered the person to stop, but
the person did not stop. Officer Spillers returned to the suspect car and waited for K9
officers to arrive. Officer Spillers testified that there were no other occupants in the car.
He found a Smith and Wesson semi-automatic handgun near the front passenger side
door of the car.

       Sergeant Corey Sanderson of the MNPD testified that he was driving towards the
suspect vehicle while Officers Carter and Spillers were in chase, and the suspect vehicle
drove into his lane of traffic at a high rate of speed and almost hit him head-on. Sergeant
Sanderson testified that he could see clearly into the car as it drove past. He saw two
occupants in the front seat. Sergeant Sanderson turned his vehicle around and saw the
suspect vehicle crash.

                                            -6-
       Sergeant Sanderson parked on the street beside the wooded area. He saw two men
leave the wooded area, and he pursued them on foot. He testified that he never lost sight
of the two men until the K9 officer arrived. Sergeant Sanderson stopped his pursuit of
the suspects when the K9 officer arrived so as not to disturb the scent. At trial, Sergeant
Sanderson identified Defendant as one of the suspects he chased.

       Officer Jerry Denton testified that he and another K9 officer responded to the
scene of the crash. When he arrived, he saw one suspect run out of the woods, and he
ordered him to stop, but the suspect ignored him. The police dog tracked the suspect, and
the suspect was apprehended. The K9 officers then tracked the other suspect and
apprehended him in the woods nearby. At trial, Officer Denton identified Defendant as
the second suspect apprehended.

        Dr. Jeffrey Neuschatz testified for the defense as an expert in eyewitness
identification. Dr. Neuschatz testified that eyewitness identification can be affected by a
number of factors, including exposure time, viewing conditions, and stress levels. Dr.
Neuschatz reviewed the police reports, witness statements, and transcripts of prior
hearings in this case. He characterized the incident in this case as “a high stress
situation.” Dr. Neuschatz testified that research shows eyewitness identifications in
stressful situations tend to be less reliable. He also testified that when a weapon is
present, it increases the stress level of the eyewitness, and “people look at the weapon
and because they are looking at the weapon they are not looking at other aspects of the
scene and their memory for those other aspects suffers.” Dr. Neuschatz testified that a
person’s confidence in his or her identification does not necessarily indicate an accurate
identification. Dr. Neuschatz testified that a “line-up” identification, with six or more
suspects, is “much more reliable” than a “show-up” identification, in which only one
suspect is presented for identification. Dr. Neuschatz acknowledged that better lighting
conditions “will increase the reliability of the identification.” He also agreed that Mr.
Hegwood and the gunman were in close proximity during the incident, and that would
increase the reliability of the identification.

       Defendant did not testify or present any other proof.

Sentencing hearing

       At the sentencing hearing, Mr. Hegwood testified that his mother had spinal
stenosis and was unable to walk. He testified that she was “really a nervous type right
now.” He testified that his father was also more nervous since the incident and avoided
leaving his house after dark. Mr. Hegwood testified that the incident had changed his
“whole mindset” and that he was more cautious of his surroundings and frequently
changed his routine.
                                           -7-
       Mr. Hegwood testified that he “just want[ed] justice served” in this case and for
Defendant “to pay for what” he had done. Mr. Hegwood testified that he had missed
three to four weeks of work as a result of the incident. He testified that he was “just
ready to get on with [his] life.”

       A presentence report was admitted into evidence. The report showed that
Defendant had prior convictions for misdemeanor theft and driving on a suspended,
cancelled, or revoked license. Defendant also had two pending cases in which he was
charged with aggravated robbery and robbery.

        Carbreathia Huddleston, Defendant’s mother, testified that Defendant was 16-
years-old at the time of sentencing. She described Defendant as a “regular teenager” who
participated in sports and was helpful around the house. She testified that she did not
have “any problems with him.” Ms. Huddleston testified that Defendant’s father had
little or no contact with Defendant. She testified that she had raised Defendant by
herself. She typically worked 50-60 hours per week, and there had been times when she
worked two jobs to support her family.

       Ms. Huddleston testified that on the night of the incident, Defendant had plans to
go to his friend’s house. She testified that she knew Defendant’s co-defendant Quentin
McClain “very well” and that he and Defendant attended the same school. Ms.
Huddleston testified that she did not “discount Mr. Hegwood’s belief that it was
[Defendant]” who robbed him at gunpoint, she “strongly fe[lt] that this is something that
[Defendant] didn’t do[.]” She testified that Defendant continued to live with her after he
was released on bond, and she acknowledged that he was subsequently charged with
aggravated robbery and robbery in separate cases.

Analysis

Motion to suppress

       Defendant contends that the trial court erred by denying his motion to suppress the
victim’s out-of-court identification of him as one of the perpetrators. Defendant argues
that the identification was unduly suggestive and unreliable. The State responds that the
victim’s identification was reliable and therefore properly admitted.

       In reviewing a trial court’s decision on a motion to suppress, we review the trial
court’s legal conclusions de novo. State v. Northern, 262 S.W.3d 741, 747 (Tenn. 2008).
In doing so, we give deference to the trial judge’s findings of fact unless the evidence
preponderates otherwise. Id.; see State v. Ross, 49 S.W.3d 833, 839 (Tenn. 2001); State
                                          -8-
v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). “‘[C]redibility 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.’” Northern, 262 S.W.3d at 747-48 (quoting
Odom, 928 S.W.2d at 23). In reviewing the findings of fact, evidence presented at trial
may “‘be considered by an appellate court in deciding the propriety of the trial court’s
ruling on the motion to suppress.’” State v. Garcia, 123 S.W.3d 335, 343 (Tenn. 2003)
(quoting State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001)). The prevailing party on the
motion to suppress is afforded the “‘strongest legitimate view of the evidence and all
reasonable and legitimate inferences that may be drawn from that evidence.’” Northern,
262 S.W.3d at 748 (quoting State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998)); see State
v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000); Odom, 928 S.W.2d at 23.

        Due process is violated if an identification procedure is: (1) unnecessarily or
impermissibly suggestive and (2) gives rise to a “very substantial likelihood of
irreparable misidentification.” Simmons v. U.S., 390 U.S. 377, 384 (1968). In Neil v.
Biggers, 409 U.S. 188, 199 (1972), the United States Supreme Court established a two-
part test to determine when a defendant’s due process rights have been violated by a
pretrial identification. Under this test, the court first considers whether the identification
procedure itself was unduly or unnecessarily suggestive. Id. If the identification
procedure is found to have been suggestive, the court next considers “whether under the
totality of the circumstances the identification was reliable even though the confrontation
procedure was suggestive.” Id. (internal quotations omitted); see also Stovall v. Denno,
388 U.S. 293, 302 (1967) (stating that “a claimed violation of due process of law in the
conduct of a confrontation depends on the totality of the circumstances surrounding it”),
overruled on other grounds by Griffith v. Kentucky, 479 U.S. 314, 326 (1987).

        The factors to be considered in evaluating the reliability of an identification
obtained as part of a suggestive identification procedure include: (1) the opportunity of
the witness to view the criminal at the time of the crime; (2) the witness’s degree of
attention; (3) the accuracy of the witness’s prior description of the criminal; (4) the level
of certainty demonstrated by the witness at the confrontation; and (5) the length of time
between the crime and the confrontation. See Biggers, 409 U.S. at 199-200. The
corrupting effect of the suggestive procedure is weighed against these factors. See
Manson v. Brathwaite, 432 U.S. 98, 114 (1977).

       There is, however, no need for the court to apply the totality of the circumstances
test outlined in Biggers if it first determines that the identification procedure itself was
neither unnecessarily or impermissibly suggestive nor likely to create a substantial
likelihood of irreparable misidentification. See State v. Biggs, 211 S.W.3d 744, 749
(Tenn. Crim. App. 2006) (citations omitted).

                                            -9-
        Defendant asserts that the pretrial identification procedure used by police in this
case was a “show-up.” “A ‘show-up,’ also referred to as a one-on-one confrontation,
occurs when ‘a single person is presented as a suspect to a viewing eyewitness.’” State v.
Thomas, 780 S.W.2d 379, 381, n. 1 (Tenn. Crim. App. 1989). Show-up identification
procedures have been considered to be “inherently suggestive and unfair to the accused.”
Id. at 381. Accordingly, they have been roundly condemned as a method of establishing
a perpetrator’s identity, unless “(a) there are imperative circumstances which necessitate
a showup, or (b) the showup occurs as an on-the-scene investigatory procedure shortly
after the commission of the crime.” Id.

     In denying the Defendant’s motion to suppress, the trial court found that Mr.
Hegwood’s identification of Defendant at the hospital was not inherently suggestive:

        [W]hile the victim was asked by the police to come to the hospital, there
        is no evidence that Officer Carter or any other officer arranged for the
        victim to view the Defendant in the hospital room. The Court finds that
        the victim’s viewing the Defendant occurred spontaneously, and not at
        the direction or request of any law enforcement officer. Therefore, the
        Court finds that the identification was not the product of an inherently
        suggestive showup.

        We conclude that the evidence does not preponderate against the trial court’s
finding. Mr. Hegwood and Officer Carter denied that Officer Carter or another officer
led Mr. Hegwood to the room where Defendant was being treated and asked him to
identify the perpetrator. Moreover, even if Mr. Hegwood’s viewing of Defendant was a
“show-up” or arranged by police, considering the Biggers factors, Mr. Hegwood had
ample opportunity to view the gunman, who was in close proximity to him in a well-lit
area; his attention was concentrated on the gunman because he was armed, and Mr.
Hegwood was fearful; Mr. Hegwood provided a detailed description of the gunman to the
police; Mr. Hegwood expressed his certainty in his identification of Defendant as the
gunman; and his recognition of Defendant at the hospital occurred within a short time
after the incident in his parents’ driveway.

       We can find no error in the trial court’s ruling. Defendant is not entitled to relief
on this issue.

Criminal responsibility jury instruction

      Defendant contends that the trial court erred by instructing the jury on criminal
responsibility because it was not the principal theory advanced by the State for the

                                           - 10 -
conviction and therefore not fairly raised by the evidence. The State responds that the
trial court properly instructed the jury on criminal responsibility.

        Defendant acknowledges that there was no contemporaneous objection to the
instruction and asserts that he is entitled to relief under plain error review. The State
submits that the issue is subject to plenary review under State v. Faulkner, 154 S.W.3d 48
(Tenn. 2005). We agree with the State. Because Defendant is challenging an erroneous
jury instruction rather than an incomplete jury instruction, Tenn. R. Crim. P. 30(b) allows
this issue to be raised for the first time in a motion for new trial. Faulkner, 154 S.W.3d at
58. Therefore, Defendant’s failure to make a contemporaneous objection to the alleged
erroneous instruction does not result in waiver of the issue. State v. Ramone Lawson, No.
W2013-00324-CCA-R3-CD, 2014 WL 1153268, at *4 (Tenn. Crim. App., Mar. 19,
2014), perm. app. denied (Tenn., Aug. 26, 2014).

       It is well-recognized that a defendant in a criminal case “has a right to a correct
and complete charge of the law, so that each issue of fact raised by the evidence will be
submitted to the jury on proper instructions.” State v. Garrison, 40 S.W.3d 426, 432
(Tenn. 2000); see State v. Leath, 461 S.W.3d 73, 105 (Tenn. Crim. App. 2013). When
reviewing jury instructions on appeal to determine whether they are erroneous, this court
must “review the charge in its entirety and read it as a whole.” State v. Hodges, 944
S.W.2d 346, 352 (Tenn. 1997). A jury instruction is considered “prejudicially erroneous”
only “if it fails to fairly submit the legal issues or if it misleads the jury as to the
applicable law.” Id. Because the propriety of jury instructions is a mixed question of law
and fact, the standard of review is de novo with no presumption of correctness.
Carpenter v. State, 126 S.W.3d 879, 892 (Tenn. 2004); State v. Smiley, 38 S.W.3d 521,
524 (Tenn. 2001).

       A trial court may commit error by instructing a jury on the theory of criminal
responsibility where the evidence presented does not support such a theory of guilt. See
State v. Hatcher, 310 S.W.3d 788, 811 (Tenn. 2010). Tennessee Code Annotated section
39-11-402(2) provides that a person is “criminally responsible for an offense committed
by the conduct of another, if . . . [a]cting with 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 . . . .” “[C]riminal
responsibility is not a distinct, separate crime” but rather “a theory by which the State
may hold the defendant liable for the principal offense committed by another.” State v.
Lemacks, 996 S.W.2d 166, 173 (Tenn. 1999).

        A jury instruction on criminal responsibility should be given only when the “‘issue
is fairly raised by the evidence.’” State v. Little, 402 S.W.3d 202, 217 (Tenn. 2013)
(quoting State v. Andrew L. Collins, No. M2005-01685-CCA-R3-CD, 2006 WL 2380610,
                                           - 11 -
at *4 (Tenn. Crim. App., Aug. 15, 2006), perm. app. denied (Tenn., Dec. 27, 2006)).
“‘[I]f the evidence is insufficient to support an alternative legal theory of liability, it
would generally be preferable for the court to give an instruction removing that theory
from the jury’s consideration.’” Hatcher, 310 S.W.3d at 812 (quoting Griffin v. U.S., 502
U.S. 46, 60 (1991)). However, “the State need not elect between prosecution as a
principal actor and prosecution for criminal responsibility[.]” State v. Hodges, 7 S.W.3d
609, 625 (Tenn. Crim. App. 1998); State v. Charlie W. Dunn, No. 88-241-III, 1990 WL
40988, at *3 (Tenn. Crim. App. Apr. 11, 1990) (concluding that jury did not have to find
which defendant was the principal offender and which was the aider because the evidence
established that one or both of the appellants committed the crime and the other was
criminally responsible).

        Criminal responsibility was fairly raised by the proof in this case. The evidence
showed that two people approached the victim in the driveway of his parents’ home in
the middle of the night with the intent to rob him. Although the victim identified
Defendant as the gunman, both perpetrators stole and drove away with the victim’s car.
Both perpetrators occupied the victim’s stolen car and fled from the car after a police
chase and refusal to stop. Based on the proof, the trial court’s instruction to the jury on
criminal responsibility was proper, and the evidence was sufficient to support a
conviction under a theory of criminal responsibility. Defendant is not entitled to relief on
this issue.

Sufficiency of the evidence

       Defendant contends that the evidence was insufficient to support his convictions.
Defendant argues that because the victim’s pretrial identification of him at the hospital
was impermissibly suggestive and unreliable, the proof was insufficient to establish his
identity as the perpetrator of the offenses.

       We review Defendant’s claim of insufficient evidence mindful that our standard of
review is whether, after considering the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307,
319 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This
standard applies to findings of guilt based upon direct evidence, circumstantial evidence,
or a combination of direct and circumstantial evidence. State v. Dorantes, 331 S.W.3d
370, 379 (Tenn. 2011).

      When examining the sufficiency of the evidence, this court should neither re-
weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id.
Questions concerning the credibility of the witnesses, the weight and value of the
                                           - 12 -
evidence, as well as all factual issues raised by the evidence are resolved by the trier of
fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must
afford the State the strongest legitimate view of the evidence contained in the record as
well as all reasonable and legitimate inferences which may be drawn from the evidence.
Id.

       Aggravated robbery is “the intentional or knowing theft of property from the
person of another by violence or putting the person in fear” that is “[a]ccomplished with a
deadly weapon or by display of any article used or fashioned to lead the victim to
reasonably believe it to be a deadly weapon[.]” T.C.A. § 39-13-401, -402. Carjacking is
defined as “the intentional or knowing taking of a motor vehicle from the possession of
another by use of: (1) A deadly weapon; (2) or Force or intimidation.” T.C.A. § 39-13-
404(a). “It is an offense to possess a firearm with the intent to go armed during the
commission of or attempt to commit a dangerous felony.” T.C.A. § 39-17-1324(a).

       The identity of the perpetrator “is an essential element of any crime.” State v.
Rice, 184 S.W.3d 646, 662 (Tenn. 2006). The identification of a defendant as the person
who has committed the crime(s) for which he is on trial is a question of fact for the jury’s
determination. State v. Toomes, 191 S.W.3d 122, 129 (Tenn. Crim. App. 2005). The
State bears the burden of proving a defendant’s identity as the perpetrator of the charged
offense. White v. State, 533 S.W.2d 735, 744 (Tenn. Crim. App. 1975). The jury
determines whether the State has met this burden. State v. Phillips, 728 S.W.2d 21, 25
(Tenn. Crim. App. 1986); State v. Vaughn, 29 S.W.3d 33, 40 (Tenn. Crim. App. 1998).
Furthermore, “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.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). The
conviction replaces the presumption of innocence with a presumption of guilt, and the
accused has the burden of illustrating why the evidence is insufficient to support the
verdict returned by the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

        Viewing the evidence in the light most favorable to the State, the proof showed
that Defendant and his co-defendant approached the victim in the driveway of his
parents’ home, pointed a gun at his head, and ordered him to the ground. The victim,
fearful that Defendant would shoot him and harm his parents inside, complied. The
victim testified that the driveway was well-lit and that he got a good look at Defendant
and that Defendant even ordered the victim to stop looking at him. Defendant threatened
to kill the victim and fired a shot into the air as he drove away with the co-defendant in
the victim’s car. Defendant and the co-defendant were apprehended a short distance from
the victim’s wrecked car. The victim gave a description of Defendant to Officer Carter
and later identified Defendant at the hospital. The description the victim gave matched
Defendant’s appearance. The victim also unequivocally identified Defendant at trial.
                                           - 13 -
The evidence is sufficient to sustain Defendant’s convictions. Defendant is not entitled to
relief on this issue.

Length of sentence

       Defendant contends that the trial court abused its discretion by imposing ten-year
concurrent sentences for his aggravated robbery and carjacking convictions. Defendant
argues that his sentence is excessive because he was 16-years-old at the time of the
offenses and his sentence is disproportionately higher than the sentence received by his
co-defendant, Quentin McClain.

       Although the Defendant concedes that the trial court imposed sentences that are
within the appropriate sentencing ranges, he argues that his sentence is excessive and is
not the least severe measure necessary to achieve the purposes for which the sentence
was imposed.

       When a defendant challenges the length of a sentence that falls within the
applicable statutory range and reflects the purposes and principles of sentencing, the
appropriate standard of appellate review is abuse of discretion accompanied by a
presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 706-07 (Tenn. 2012). In
determining what sentence a defendant should receive within a particular range, the trial
court considers the evidence presented at the sentencing hearing, the pre-sentence report,
any sentencing alternatives, the nature of the criminal conduct, statutory mitigating and
enhancement factors, statistical information provided by the administrative office of the
courts, and any statement made by the defendant. T.C.A. § 40-35-210(b)(1)-(7). The
defendant bears the burden of demonstrating the impropriety of a sentence on appeal.
T.C.A. § 40-35-401, Sentencing Comm’n Cmts.

        Defendant does not dispute his status as a Range I, Standard Offender, which
subjected him to a sentencing range of eight to 12 years for each Class B felony
conviction. T.C.A. §40-35-112(a)(2). Defendant received concurrent ten-year sentences
for aggravated robbery and carjacking, both Class B felonies. The trial court stated on
the record its reasons for imposing the sentence. Specifically, the trial court found two
enhancement factors: Defendant had a previous history of criminal convictions in
addition to those necessary to establish the appropriate range, and he was a leader in the
commission of an offense involving two or more criminal actors. See T.C.A. § 40-35-
114(1), (2). Defendant does not dispute the trial court’s application of the two
enhancement factors. Rather, he contends that the trial court abused his discretion
because Defendant was 16-years-old at the time of the offenses, and there was a disparity
between his sentence and the sentence of his co-defendant, McClain, who was 14-years-
old at the time of the offenses.
                                          - 14 -
      The State contends that the proof did not support a mitigation of Defendant’s
sentence because he lacked substantial judgment due to his youth. See T.C.A. § 40-35-
113(6). A defendant’s age is one of many factors to be considered in determining
whether he lacked substantial judgment. State v. Turner, 41 S.W.3d 663, 674 (Tenn.
Crim. App. 2000) (“the defendant’s age, education, maturity, experience, mental capacity
or development, and any other pertinent circumstance tending to demonstrate the
defendant’s ability to appreciate the nature of his conduct” should be considered when
determining the application of mitigating factor (6)).

      There is nothing in the record to suggest that Defendant lacked substantial
judgment or the ability to appreciate the nature of his conduct because of his age. We
conclude that the trial court did not abuse its discretion in imposing Defendant’s
sentences. Defendant is not entitled to relief on this issue.

                                    CONCLUSION

     In consideration of the foregoing and the record as a whole, we affirm the
judgments of the trial court.


                                 ____________________________________________
                                 THOMAS T. WOODALL, PRESIDING JUDGE




                                         - 15 -
