                                                                                         01/23/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs December 4, 2018

                  STATE OF TENNESSEE v. MARICO VALES

                 Appeal from the Criminal Court for Shelby County
                   No. 16-01967     J. Robert Carter, Jr., Judge


                            No. W2018-00424-CCA-R3-CD


The Defendant, Marico Vales, was convicted by a Shelby County Criminal Court jury of
first degree felony murder and especially aggravated robbery. See T.C.A. §§ 39-13-202
(2018) (first degree murder); 39-13-403 (2018) (especially aggravated robbery). The trial
court sentenced the Defendant to concurrent terms of life imprisonment and twenty-five
years. On appeal, the Defendant contends that the evidence is insufficient to support his
convictions. We affirm the judgments of the trial court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which ROBERT
W. WEDEMEYER and ROBERT L. HOLLOWAY, JR., JJ., joined.

Harry E. Sayle III (on appeal), Memphis, Tennessee; Stephen C. Bush, District Public
Defender; and Austin Scofield and Carla Taylor (at trial), Assistant District Public
Defenders, for the appellant, Marico Vales.

Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Robert Felkner and
Phillip Harvey, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                       OPINION

        The Defendant’s convictions relate to the June 11, 2015 homicide of Khaled
Khaya, who was fatally shot when working at Zorro Market (the market) in Shelby
County. At the trial, Hasan Wadi testified that he owned the market at the time of the
incident, that he opened the market at 8:00 a.m. on June 11, that he left at 8:30 p.m., and
that the victim worked the remainder of the evening shift. Mr. Wadi said that he and the
victim were friends and that the day of the shooting was the victim’s second day of work.
Mr. Wadi said that he called the market around 10:45 p.m., that the victim did not
answer, that he returned to the market, and that he saw police cars when he arrived.

       Mr. Wadi testified that he provided the police with a surveillance recording that
showed various angles from inside the market around the time of the shooting, and a
portion of the recording was played for the jury.1 In the recording, at approximately 9:53
p.m., a male employee, whom Mr. Wadi identified as the victim, stood behind the cash
register at the front counter assisting an African-American male customer, who wore a
dark-colored shirt and had arm tattoos. The customer was later identified as the
Defendant. The Defendant purchased items and paid with cash. After the victim
provided the Defendant with change, the victim retrieved and provided the Defendant
with a small pad of paper on which the Defendant wrote and returned to the victim. The
two men conversed, the victim made entries on the cash register, and the Defendant
provided a card, which the victim swiped on a machine beside the cash register. The men
conversed again, and the victim swiped the card again. The two men conversed a third
time, and the victim returned the card and provided the Defendant with a small piece of
paper. At approximately 9:56 p.m., the Defendant left the counter. The victim and the
Defendant were separated by glass that contained a small opening.

        Mr. Wadi identified photographs of the market, described the general layout, and
noted “bullet proof glass” separated employees and customers at the front counter. He
identified photographs of the cash register and of the machine used for debit, credit, and
EBT food stamp transactions. A portion of the surveillance recording that showed only
the victim behind the counter was played for the jury. In the recording, the victim, at
approximately 9:59 p.m., left the front counter and entered a door, which Mr. Wadi said
led to the “pizza section” at which employees prepared pizzas after a customer ordered
and paid. A glass window beside the door allowed for slight visibility into the pizza
preparation area. At 10:02 p.m., the victim returned to the front counter and removed
what Mr. Wadi described as latex gloves. Mr. Wadi said that the gloves were worn when
preparing pizzas. He said that the pizza order depicted in the recording was paid for with
an EBT card. Mr. Wadi stated that EBT cards were used regularly at the market, that
each card was associated with an identification number, and that he provided the police
with the number associated with the last EBT transaction for a pizza purchase.

       Mr. Wadi testified that when preparing the pizza, the victim would have placed
toppings on a frozen pizza crust and inserted the pizza into an oven that moved the pizza
on a conveyer belt. He said that after about five minutes, the pizza came out of the oven
baked fully and that it was impossible to burn a pizza using this procedure and oven.



1
  The record reflects that the time stamp on the surveillance recording was approximately twenty minutes
fast. This opinion reflects the adjusted time for accuracy. We note that the recording did not have sound.
                                                   -2-
       A portion of the surveillance recording that showed the victim and customers at
the front counter was played for the jury. In the recording, at approximately 10:24 p.m.,
the victim assisted two African-American men. The Defendant and a man wearing a
light-colored shirt stood at the front counter. The victim left the front counter away from
the camera’s view but returned with what appeared to be scratch-off lottery tickets and
handed them to the Defendant. At approximately 10:26 p.m., the man wearing the light-
colored shirt appeared to be talking on a cell phone. The men bought several additional
items and paid with a plastic card, which the victim swiped on the machine beside the
cash register. The victim placed the items into a bag and provided the man wearing the
light-colored shirt with a receipt at 10:27 p.m. The men left the front counter.

        In the recording, the victim assisted various customers and periodically walked
away from the camera’s view in the direction of the pizza preparation area and lottery
ticket dispenser. At approximately 10:31 p.m., the Defendant returned to the front
counter and provided the victim with scratch-off lottery tickets. The victim and the
Defendant walked out of the camera’s view and toward the pizza preparation area and the
lottery ticket dispenser. The Defendant and the victim returned to the front counter, and
the victim provided the Defendant with scratch-off lottery tickets. At approximately
10:32 p.m., the Defendant left the counter. The victim assisted other customers, and at
approximately 10:34 p.m., the Defendant returned to the front counter with scratch-off
lottery tickets. The Defendant provided the victim with the tickets, and both the
Defendant and the victim walked away from the camera’s view toward the pizza
preparation area and the lottery ticket dispenser. The Defendant and the victim returned
to the front counter, the victim provided the Defendant with scratch-off lottery tickets,
and the Defendant scratched the tickets at the counter. The Defendant provided the
tickets to the victim, who walked away from the camera’s view, and the victim provided
the Defendant with additional tickets when the victim returned. The Defendant scratched
the tickets at the counter. At approximately 10:38 p.m., the Defendant walked out of the
camera’s view toward the pizza preparation area, and a shadow moved in the opposite
direction across the camera’s view a couple of seconds later.

       At approximately 10:40 p.m., an African-American man wearing an orange hat,
who was later identified as Antonio Jones, appeared momentarily at the front counter and
walked away from the camera’s view. Mr. Jones returned to the counter, jumped on the
counter, leaned through the opening in the bullet-resistant glass, and reached toward the
cash register. Mr. Jones jumped off the counter into the employee area, fidgeted with the
cash register, which did not open, and moved out of the camera’s view. At 10:41 p.m.,
an African-American man, who was later identified as Christian Hall and wore a dark
shirt and a light-colored cloth around his neck, approached the front counter. Mr. Jones
returned to the cash register, fidgeted with the cash register, jumped across the counter
toward the exit, and both men moved out of the camera’s view.



                                            -3-
       A portion of the surveillance recording that showed the victim behind the front
counter was played for the jury. In the recording, at approximately 10:23 p.m., the man
wearing the light-colored shirt briefly walked to the pizza preparation area, while the
victim remained at the front counter. The victim returned to the pizza preparation area,
and the Defendant walked to the pizza preparation area. The Defendant walked toward
the front counter, and at 10:24 p.m., the victim returned to the front counter. Multiple
times the victim retrieved scratch-off lottery tickets and returned to the front counter. At
10:38 p.m., the victim returned to the pizza preparation area, and the Defendant stood in
the pizza preparation area across from the victim. The Defendant walked away from the
pizza preparation area and out of the camera’s view seconds later. At 10:40 p.m., Mr.
Hall approached the pizza preparation area, extended his arm toward the victim, and
entered the preparation area. Mr. Jones jumped on the front counter and entered the
employee area, took money from the cash register located near the lottery ticket
dispenser, and jumped across the counter and away from the camera’s view.

       Mr. Wadi identified a photograph of the pizza station, which was received as an
exhibit. The photograph depicted the pizza oven and showed that no bullet-resistant glass
separated an employee from a customer. Mr. Wadi said that the market usually stopped
serving pizza around 9:00 or 9:30 p.m. but that an employee would prepare a pizza for a
customer known to the employee after this time. He said that the store closed at 11:00
p.m.

        A portion of the surveillance recording that showed the employee area from an
area closer to the lottery ticket dispenser was played for the jury. In the recording, the
victim walked away from the camera’s view toward the pizza preparation area. At
approximately 10:38 p.m., the Defendant walked from the front counter toward the pizza
preparation area and away from the camera’s view. Seconds later, the Defendant walked
away from the pizza preparation area, past the front counter, and out of the camera’s
view. At 10:40 p.m., Mr. Hall and Mr. Jones walked toward the pizza preparation area
and away from the camera’s view. Mr. Jones ran toward the front counter, jumped on the
counter, and attempted to open the cash register located to the right of the opening in the
bullet-resistant glass. Mr. Jones walked to the second cash register, removed the money,
walked to and fidgeted with the first cash register, and jumped across the counter toward
the exit.

       Mr. Wadi testified that approximately $8,000 was taken from the store.

        On cross-examination, Mr. Wadi testified that it took approximately five to six
minutes to bake a pizza and that the conveyor belt speed and the temperature could not be
adjusted. After examining the summary transaction printout, he clarified that the receipt
was a summary of the day’s credit card transactions, that the receipt did not reflect any
EBT transactions, and that a different machine was used for EBT transactions. He
clarified that he did not call the market on the night of the incident but that he called the

                                            -4-
victim’s cell phone between 10:45 and 11:00 p.m. Mr. Wadi said that he did not usually
call the market after he left but that he wanted to check on the victim, who was a new
employee. Mr. Wadi said that he intended to return to the store to assist the victim at
closing and that he called the victim on his way to the market.

       Mr. Wadi testified that the surveillance recording did not reflect a busy evening at
the market. He said that the victim’s wearing latex gloves in the recording indicated the
victim was preparing a pizza. Mr. Wadi said that he did not perform an audit to
determine the amount of money taken and that $8,000 was an estimate. He said that three
cash registers were inside the market, that one was used for lottery purchases, that
another was used for check cashing and money orders, and that the third was used for all
credit card, EBT, and non-lottery cash purchases. Mr. Wadi said that the money was
taken from the register used for cashing checks and contained the most money.

       Mr. Wadi testified that the victim had previous experience working at a
convenience store and making pizzas, that the victim knew not to send a pizza through
the oven more than once, and that sending a pizza through the oven twice would burn it.
He said surveillance cameras were outside the market but that the cameras belonged to
the owner of the shopping center in which the market was located.

        Tom Pae testified that he managed the shopping center. He said that he provided
sheriff’s deputies with recordings of the parking lots. Mr. Pae identified the recording of
the front parking lot, a portion of which was played for the jury.

       In the recording, at approximately 9:46 p.m., a dark-colored car drove into the
parking lot and parked partially within view of the camera. The car parked in such a
manner that only the passenger-side door and rear of the car were visible. The driver’s
side was not visible. At approximately 9:52 p.m., the Defendant walked from the
building toward the dark-colored car, around the rear of the car, and out of the camera’s
view. Seconds later, the dark-colored car moved slightly, as though someone sat inside
the car, before leaving the parking lot.

       Mr. Pae identified the recording of the rear parking lot, a portion of which was
played for the jury. However, the record does not reflect which portion of the recording
was played. Mr. Pae testified that the recording showed two people behind a dumpster
walking toward the market. Mr. Pae stated that the recording dates and times were
correct.

       Corsenna Newbern testified that the Defendant, whom she referred to as Rico, was
the father of her two children and that on June 11, 2015, he drove her home from work.
She said that the Defendant did not stay at home, that he drove to the market to a buy
pizza, and that he bought pizza at the market frequently. She recalled that she and the
Defendant bought pizza at the market two or three times per week. She said that she and

                                            -5-
the Defendant paid for the pizzas with her EBT food stamp card and that, at about 9:00
p.m., she gave the Defendant her EBT card to purchase the pizza. She said that he
returned home around midnight or 1:00 a.m. without a pizza but that he had
cheeseburgers and fries from Wendy’s for the children.

       Ms. Newbern testified that Mr. Jones, whom she referred to as Montana, and the
Defendant were friends. She said that Mr. Jones lived in the same neighborhood as she
and the Defendant and that the Defendant and Mr. Jones borrowed each other’s cars and
“hung out” daily. She said that Brandon Thompson, who was Mr. Jones’s brother, and
the Defendant were friends. She recalled that the Defendant drove her green Honda on
the night of the incident. She said that she learned later that the Defendant had been at
the market where someone had been shot. She said that although the Defendant told her
the pizza had been burned, the market had never burned a pizza previously.

       Ms. Newbern was shown a portion of the surveillance camera from inside the
market. The customer who wore the dark-colored shirt and had arm tattoos was depicted
in the recording. Ms. Newbern identified the man as the Defendant based upon the
tattoos.

        Ms. Newbern identified a photograph of the Defendant and Mr. Jones and testified
that she did not know when the photograph was taken. She identified a photograph of
Mr. Jones, Mr. Thompson, Mr. Jones’s young son, and a man unknown to Ms. Newbern.
She identified a third photograph of Mr. Jones, Mr. Thompson, Mr. Jones’s young son,
and the unknown man and stated that although the photograph was taken at Chuck E.
Cheese’s, she had never attended a party there with the people in the photograph. Ms.
Newbern said that Mr. Jones and Mr. Thompson attended her son’s birthday party a
couple of days after the June 11 incident. She identified a photograph of Ms. Newbern
and the Defendant’s green Honda and of the Defendant’s silver car and said the
photograph was taken at the Defendant’s mother’s home. She stated that the Defendant
drove the green Honda on the night of the incident and changed his cell phone number
after the incident.

       On cross-examination, Ms. Newbern testified that the Honda was titled in her
name and that she paid for it. She said that, at the time of the incident, she lived with the
Defendant’s mother and that the Defendant “stay[ed] . . . on and off” at his mother’s
home. Ms. Newbern did not know when the photograph of the Defendant and Mr. Jones
at the Defendant’s mother’s home was taken. She said that the Defendant did not return
home with extra money on the night of the incident. She denied that she saw the
Defendant with any money in the days and weeks after the incident and said that the
Defendant made no expensive purchases.

      United States Department of Agriculture Agent Lynn Bracey testified that around
June 18, 2015, Shelby County Sheriff’s Detective Steve Bierbrodt contacted him

                                            -6-
regarding the identity of the owner of an EBT debit card. Agent Bracey stated that the
card used for a June 11, 2015 transaction in the amount of $12.66 belonged to Ms.
Newbern.

       On cross-examination, Agent Bracey testified that EBT transactions were time
stamped and that the “Alert System” contained EBT transaction data, including
information related to each store that accepted EBT cards as a form of payment, each
card number, and the amount of each purchase. He said that the contract between the
State of Tennessee and the third party processor required the time stamp data to be
accurate. Agent Bracey reviewed the total transaction summary receipt from the market
previously identified by Mr. Wadi and testified that the receipt did not reflect any specific
EBT transaction.

       Julius Miller testified that he went to the market on June 11, 2015, although he
could not recall the time. He said that he did not see anyone inside the market when he
approached the front counter to pay for a beverage and that he returned the beverage, left
the store, and called the police because “something didn’t feel right.” He said that a
“young guy” arrived at the market, that they entered the store, and that they saw the
victim was deceased. Mr. Miller said that he saw blood and ran out of the store and that
he called the police and waited for them to arrive.

       Mr. Miller did not recall seeing a green Honda in the parking lot and testified that
nobody drove through the parking lot when he and the man waited for the police to
arrive. He said that he did not see the Defendant at the market and that he did not smell a
burned pizza while inside the market.

       Shelby County Sheriff’s Deputy Richard McKinney testified that dispatch
received a call regarding this incident, that he responded to the scene, and that he saw the
victim lying on the floor between a food preparation table and a freezer. He secured the
scene and contacted a detective.

       Shelby County Sheriff’s Detective Steve Bierbrodt testified that he responded to
the scene and that he reviewed the surveillance recordings. He identified photographs
depicting three cartridge casings, a bullet hole on a wall sign, a trajectory rod going
through the bullet hole on the sign and wall, the victim lying on the floor between the
“pizza area” and the freezer, an open cash register containing only coins, and footprints
inside and outside the market. Detective Bierbrodt identified a photograph of a pizza
order form reflecting the name Rico. Detective Bierbrodt stated that the sign and drywall
were removed in order to obtain the bullet projectile.

       Detective Bierbrodt testified that he reviewed the surveillance recording from
inside the market, that he observed a person returning to the front counter multiple times,
and that the person ordered a pizza and paid for the order with what the detective

                                            -7-
believed was a debit card. He said that he showed the recording to Mr. Wadi, that Mr.
Wadi identified the EBT machine as the machine used to pay for the pizza, and that the
detective obtained the card information from the Department of Agriculture.

       Detective Bierbrodt testified that on June 18, 2015, he spoke with Ms. Newbern,
who stated that she sent the Defendant to the market to purchase a pizza on the night of
the incident. Detective Bierbrodt stated that he interviewed the Defendant, who initially
said that he and Mr. Thompson went to the market to order a pizza but that he did not
“get the pizza” because it had been burned. Detective Bierbrodt said that, upon further
questioning, the Defendant stated that as he left the parking lot, he saw Mr. Hall and Mr.
Jones. The recording of the interview was played for the jury.

       In the recording, the detectives stated that the Defendant requested to speak with
them and asked the Defendant what occurred. The Defendant thought that Mr. Jones and
Mr. Jones’s stepbrother, whom the Defendant later identified as Mr. Hall, “did this.” The
Defendant denied seeing Mr. Hall since the Defendant saw him “run out of the store that
night” but admitted seeing Mr. Jones. The Defendant denied that Mr. Jones spoke about
the robbery or shooting. The Defendant admitted talking on the telephone since the
Defendant’s arrest about “what was going on.” The detective said the surveillance
recording showed that the Defendant “paused” when he “backed out” of the parking lot
and asked the Defendant who he saw. The Defendant said that he saw Mr. Jones and Mr.
Hall, who he referred to as “Champ.” The Defendant denied knowing about the robbery
and shooting and said he was at the market to purchase a pizza. He denied being a
“lookout.” The Defendant said that Mr. Jones lived within walking distance of the
market.

       In the recording, the detective drew a map of the market and the surrounding area.
The detective indicated that the Defendant’s car was parked along the right side of the
building when leaving the market and stated that two men ran out of the building, around
the right of the building, and behind the building. The Defendant identified on the map
the nearby apartment complex at which Mr. Jones lived. The Defendant said that “they”
did not need a car but that Mr. Hall drove a dark blue Lexus. The Defendant said that he
saw Mr. Jones and Mr. Hall when they entered and left the market. The Defendant
denied staying in the parking lot to find out what they were doing and said he was going
to look for marijuana because the victim told him the pizza would be ready in
approximately fifteen minutes.

       In the recording, the Defendant stated that Mr. Jones wore an orange hat at the
time of the incident and that Mr. Jones did not talk to him about the robbery. The
Defendant said that he saw Mr. Jones once after the robbery, that Mr. Jones said he had
$1,000 for an apartment, and that the Defendant never saw any money. The Defendant
said that before his arrest, he had a Cricket Cellular phone and a Trac phone. The
Defendant identified a photograph of Mr. Hall and stated that any guns would have been

                                           -8-
at Mr. Hall’s home. When asked if he saw Mr. Jones and Mr. Hall carrying anything
when they ran out of the market, the Defendant said he saw “a little bag” but could not
determine what was inside.

        In the recording, the Defendant implicated Mr. Jones in two additional robbery-
related homicides. Although the Defendant thought Mr. Jones was the shooter in the
present case, the detective said the surveillance recording showed that Mr. Hall shot the
victim. The detective prepared a photograph lineup and presented it to the Defendant.
The Defendant identified one person whom the Defendant saw enter and leave the market
at the time of the incident. As the detective prepared a second photograph lineup, another
detective asked the Defendant what happened on the night of the shooting. The detective
told the Defendant that the deputies would help the Defendant as long as the Defendant
was honest. The detective stated Mr. Jones told the deputies that Mr. Jones and the
Defendant “were together that night,” and the Defendant denied the allegation and said he
did not have a phone to communicate with Mr. Jones. When asked how Mr. Jones and
Mr. Hall came to be at the market at the same time as the Defendant, the Defendant said
that “they had to have been waiting.” The Defendant stated that he and Mr. Thompson
were in the Defendant’s car on the night of the incident.

        Detective Bierbrodt testified that he obtained a search warrant for the Defendant’s
cell phone and that the photograph lineups referenced in the recording included
photographs of Mr. Hall and Mr. Jones. Detective Bierbrodt said that the Defendant
identified Mr. Jones in one lineup and Mr. Hall in another. Detective Bierbrodt stated
that he interviewed Mr. Hall, Mr. Thompson, and Mr. Jones, whom the detective said
were all brothers and the Defendant’s friends. Detective Bierbrodt stated that Mr.
Thompson and Mr. Jones each consented to a search of their respective cell phones.
Detective Bierbrodt stated that Mr. Hall broke his cell phone when he was taken into
police custody, preventing a search of the phone.

       Detective Bierbrodt identified Mr. Thompson in the surveillance recording
depicting the front parking lot of the market and stated that Mr. Thompson appeared to be
talking on a cell phone and getting out of a vehicle. Detective Bierbrodt reviewed the
photograph previously identified by Ms. Newbern as depicting Mr. Jones, Mr. Jones’
young son, Mr. Thompson, and a man unknown to Ms. Newbern. Detective Bierbrodt
stated that the photograph depicted Mr. Jones, Mr. Thompson, and Mr. Hall and that it
had been taken between March and May 2015. Detective Bierbrodt reviewed the
photograph taken at Chuck E. Cheese’s and stated that it showed Mr. Thompson, Mr.
Jones, and Mr. Hall. Detective Bierbrodt reviewed the photographs showing Ms.
Newbern’s green Honda and the Defendant and Mr. Jones standing on a driveway.
Detective Bierbrodt stated that all of the photographs were obtained from Mr. Jones’s cell
phone. Detective Bierbrodt identified a photograph of what he described as a “large
sum[] of money in small denominations” and stated that the photograph was obtained
from Mr. Jones’s phone and was taken after the robbery.

                                            -9-
       On cross-examination, Detective Bierbrodt testified that the time reflected on the
surveillance recording from inside the market was a few minutes fast and that he noted
the discrepancy in his supplemental police report. He stated that he did not know the
exact time the EBT card was used.

       Detective Bierbrodt testified that the Defendant was cooperative and calm, that he
did not implicate himself in the robbery, and that he did not state he knew where the
firearm and money could have been located. Detective Bierbrodt said that nobody he
interviewed stated the Defendant had a role in the robbery and shooting. Detective
Bierbrodt agreed that the surveillance recording of the front parking lot showed Mr.
Thompson getting out of the passenger side of the green Honda and that Mr. Thompson
told the detective what the Defendant said about the pizza and why the men were at the
market. Detective Bierbrodt agreed that Mr. Thompson reported seeing Mr. Hall and Mr.
Jones running inside the market and that Mr. Thompson, Mr. Hall, and Mr. Jones were
brothers. Detective Bierbrodt did not recall whether Mr. Thompson was inside the
market. Detective Bierbrodt said that neither the proceeds nor the firearm from the
robbery were found inside Ms. Newbern’s green Honda but that fingerprints were found
inside the car, although he was unsure to whom the fingerprints belonged.

       Detective Bierbrodt testified that he saw a pizza being prepared and that it could
have been the pizza the Defendant ordered. Detective Bierbrodt said that he did not find
a burned pizza at the scene, although the Defendant said the victim had reported to the
Defendant that the pizza had been burned. Detective Bierbrodt said the surveillance
recording showed that the victim only made one pizza from the time the Defendant
placed the order until the shooting. Detective Bierbrodt said that he did not interview the
bystanders who called the police but that they were interviewed by a detective. Detective
Bierbrodt said that he did not ask anyone what role the Defendant played in the incident.

       Shelby County Sheriff’s Detective Richard Whitaker testified that he analyzed the
Defendant’s cell phone. The telephone call log showed that the phone was not used to
place calls and did not receive calls between June 9, 2015, and July 14, 2015, and that the
most frequent telephone number called from the Defendant’s phone was the number
Detective Bierbrodt identified as belonging to Mr. Jones and that the second most
frequent contact was labeled “Baby Momma.”

       On cross-examination, Detective Whitaker testified that the Defendant’s cell
phone did not reflect any calls on June 11, 2015, and that the Defendant’s phone was
used to call Mr. Jones’s cell phone nine times between June 7 and June 9. On redirect
examination, Detective Whitaker stated that he did not attempt to retrieve deleted calls
and text messages from the Defendant’s phone. Detective Whitaker said that the gap in
calls could have been the result of the Defendant’s placing no calls or the result of the
Defendant’s erasing the calls. Detective Whitaker stated that his analysis occurred six
months before the trial and that he did not have the technology to determine if calls had

                                           -10-
been deleted. After reviewing his report, he said that the phone was a “minute phone,” or
what was known as “a government phone,” and that he did not know whether the phone
would record calls and text messages if the phone were out of minutes.

        Jason Lind, a radio frequency engineer at AT&T, testified that he analyzed June
11, 2015 cell phone tower data of the tower located “just west” of the market. His report
showed each cell phone line that utilized the tower, including the date and time that a call
was placed. Relative to the telephone number Detective Bierbrodt identified as
belonging to Mr. Jones, Mr. Lind identified a six-second outgoing call at 10:21 p.m. to
the telephone number Detective Bierbrodt identified as belonging to Mr. Thompson. He
identified two additional calls from Mr. Jones’s phone to Mr. Thompson’s phone from
10:23 to 10:24 p.m. and from 10:28 p.m. to 10:37 p.m.

       Dr. Marco Ross, a forensic pathology expert, testified that he performed the
victim’s autopsy and that the victim sustained gunshot wounds behind the right ear and to
the right mid-back. Dr. Ross determined that each wound was fatal, that the bullet
entering behind the right ear perforated the skull and brain, and that the bullet entering
the back traveled through the right lung, diaphragm, liver, heart, and left lung. He
determined that the manner of death was homicide.

      Upon this evidence, the jury convicted the Defendant of first degree felony murder
during the perpetration of a robbery and especially aggravated robbery. This appeal
followed.

       The Defendant contends that the evidence is insufficient to support his convictions
because although he knew the perpetrators, he was not involved in the offenses. The
State responds that the evidence sufficiently established that the Defendant aided the
perpetrators by luring the victim from the area protected by bullet-resistant glass before
the perpetrators arrived.

        In determining the sufficiency of the evidence, the standard of review is “whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979); see State v. Vasques, 221 S.W.3d 514,
521 (Tenn. 2007). The State is “afforded the strongest legitimate view of the evidence
and all reasonable inferences” from that evidence. Vasques, 221 S.W.3d at 521. The
appellate courts do not “reweigh or reevaluate the evidence,” and questions regarding
“the credibility of witnesses [and] the weight and value to be given the evidence . . . are
resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); see
State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).




                                            -11-
        “A crime may be established by direct evidence, circumstantial evidence, or a
combination of the two.” State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998); see State v.
Sutton, 166 S.W.3d 686, 691 (Tenn. 2005). “The standard of review ‘is the same whether
the conviction is based upon direct or circumstantial evidence.’” State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)). A conviction may be based upon circumstantial evidence alone. See Dorantes,
331 S.W.3d at 380-381.

       As relevant to the present case, first degree felony murder is “[a] killing of another
committed in the perpetration of or attempt to perpetrate any . . . robbery[.]” T.C.A. §
39-13-202(a)(2) (2018). Especially aggravated robbery “is the intentional or knowing
theft of property from the person of another by violence or putting the person in fear”
which is “[a]ccomplished with a deadly weapon” and in which “the victim suffers serious
bodily injury.” Id. §§ 39-13-401(a) (2018), -403(a)(1)-(2) (2018).

       “A person is criminally responsible as a party to an offense, if the offense is
committed by the person’s own conduct, by the conduct of another for which the person
is criminally responsible, or by both.” Id. § 39-11-401(a) (2018).              “Criminal
responsibility, while not a separate crime, is an alternative theory under which the State
may establish guilt based upon the conduct of another.” Dorantes, 331 S.W.3d at 386
(quoting State v. Lemacks, 996 S.W.2d 166, 170 (Tenn. 1999)).

       A person is criminally responsible for an offense committed by the conduct
       of another, if:

       ...

       (2) Acting 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[.]

T.C.A. § 39-11-402 (2018). For a defendant to be convicted of a crime under the theory
of criminal responsibility, the “evidence must establish that the defendant in some way
knowingly and voluntarily shared in the criminal intent of the crime and promoted its
commission.” Dorantes, 331 S.W.3d at 386; see State v. Maxey, 898 S.W.2d 756, 757
(Tenn. Crim. App. 1994). A defendant’s “presence and companionship with the
perpetrator of a felony before and after the commission of an offense are circumstances
from which his or her participation in the crime may be inferred.” State v. Watson, 227
S.W.3d 622, 639 (Tenn. 2006). Furthermore, “[n]o particular act need be shown, and the
defendant need not have taken a physical part in the crime[.]” Id.




                                            -12-
       The parties do not dispute that Mr. Jones and Mr. Hall committed first degree
felony murder during the commission of a robbery and especially aggravated robbery.
The record reflects that after entering the market, Mr. Jones jumped on the front counter,
went through the opening in the bullet-resistant glass, entered the employee area, and
removed money from one of the three cash registers and that Mr. Hall shot the victim
when the victim was in the pizza preparation area where bullet-resistant glass did not
separate the victim and Mr. Hall. The Defendant stated during his police interview that
Mr. Jones wore an orange baseball cap and a dark shirt at the time of the incident, which
was consistent with the surveillance recording from inside the market. Likewise, the
Defendant identified Mr. Hall as the person who was with Mr. Jones at the market at the
time of the incident, and the Defendant identified both men in photograph lineups.

       The Defendant’s contention focuses on the evidence supporting his involvement in
the offenses pursuant to a theory of criminal responsibility. The record reflects that the
Defendant, identified by Ms. Newbern in the surveillance recordings, ordered a pizza at
approximately 9:56 p.m. and paid with Ms. Newbern’s EBT card. A pizza order form
found at the market reflected the name Rico, which was the nickname by which Ms.
Newbern referred to the Defendant. The Defendant, who drove Ms. Newbern’s green
Honda, left the store and returned at approximately 10:24 p.m. with Mr. Thompson, who
entered the market and returned to the green Honda at approximately 10:30 p.m.
However, the car did not leave the parking lot. Although the recording did not show the
Defendant leaving the car, the inside surveillance recording showed that the Defendant
returned to the front counter at approximately 10:34 p.m., at which time the Defendant
and the victim interacted relative to scratch-off lottery tickets. The Defendant walked
from the front counter in the direction of the pizza preparation area at 10:38 p.m., and
seconds later he walked away from the camera’s view and was not seen in the recording
again. At approximately 10:40 p.m., Mr. Jones took money from a cash register, and Mr.
Hall shot the victim. The green Honda left the parking lot after the shooting.

        The Defendant admitted that he drove Ms. Newbern’s green Honda on the night
of the shooting and that Mr. Thompson was with him that night. Detective Bierbrodt
identified a portion of the front parking lot surveillance recording that showed Mr.
Thompson, who was wearing a light-colored shirt and was talking on a cell phone when
he got out of the green Honda. Cell phone records showed that the Defendant’s most
frequent contact was Mr. Jones. Although the Defendant’s cell phone did not receive or
place calls to Mr. Jones’s phone on the night of the shooting, cell phone tower data near
the market showed that at 10:21 p.m., Mr. Jones’s phone was used to place a six-second
call to Mr. Thompson’s phone. Mr. Jones’s phone was used to place two additional calls
to Mr. Thompson’s phone at 10:23 p.m. and at 10:28 p.m., lasting approximately one
minute and nine minutes, respectively. The final call ended approximately three minutes
before Mr. Jones and Mr. Hall were seen inside the market, and the surveillance
recordings showed that the Defendant and Mr. Thompson were at the market at the time
of these calls.

                                          -13-
       Although the Defendant told the detectives and Ms. Newbern that the pizza was
burned, the pizza found at the scene in the preparation area was not burned. Detective
Bierbrodt stated that the surveillance recording showed that the victim only prepared one
pizza from when the Defendant placed his order to the time of the shooting, and the order
form found at the scene reflected the name Rico. Likewise, Mr. Wadi testified that a
pizza was placed on the conveyor belt of the oven only once, that it was impossible to
burn a pizza by using this procedure, and that the victim had previous experience
preparing this type of pizza. Ms. Newbern stated that although the Defendant bought
pizza at the market multiple times per week, none of these pizzas had been burned.
Likewise, Mr. Miller, who found the victim after the shooting, did not smell a burned
pizza when he entered the market.

       The Defendant and Mr. Jones were friends, and the men lived in the same
neighborhood, borrowed each other’s cars, and “hung out” daily. Mr. Jones’s brothers,
Mr. Thompson and Mr. Hall, were likewise friends with the Defendant. The detectives
obtained a photograph from Mr. Jones’s cell phone, which had been taken between
March and May 2015 and which depicted Mr. Jones, Mr. Jones’s young son, Mr.
Thompson, and Mr. Hall. The photographs of Ms. Newbern’s green Honda and of the
Defendant and Mr. Jones standing on a driveway were also obtained from Mr. Jones’s
cell phone. Ms. Newbern testified that Mr. Jones and Mr. Thompson attended her son’s
birthday party a couple of days after the shooting, and the Defendant admitted speaking
to Mr. Jones after the shooting.

       We conclude that the evidence is sufficient to support the Defendant’s convictions
for criminal responsibility for the conduct of Mr. Jones and Mr. Hall. The evidence in
the light most favorable to the State supports that the Defendant knowingly and
voluntarily shared in the criminal intent of the crimes and promoted their commission.
The Defendant, along with Mr. Thompson, drove to the market on the night of the
shooting. Mr. Thompson communicated with Mr. Jones, who was with Mr. Hall. The
Defendant was present inside the market two minutes before Mr. Jones and Mr. Hall
entered, and the Defendant’s pizza order required the victim to leave the front counter, at
which the victim and three cash registers were protected by bullet-resistant glass. The
victim stood in the pizza preparation area, which was not protected by the glass, when
Mr. Hall shot the victim and when Mr. Jones jumped on the front counter and removed
money from one of the cash registers. The Defendant saw Mr. Jones and Mr. Hall enter
and leave the market, and the Defendant communicated with Mr. Jones after the shooting.
The Defendant and the men were close friends who “hung out” daily and borrowed each
other’s car. The Defendant admitted speaking to Mr. Jones after the shooting, and Mr.
Thompson and Mr. Jones attended the Defendant’s son’s birthday party days after the
shooting. The jury could have reasonably inferred from the Defendant’s presence and
actions at the market and from his companionship with Mr. Jones and Mr. Hall before
and after the commission of the offenses that the Defendant acted with the intent to assist
in the armed robbery, resulting in the victim’s death. See Dorantes, 331 S.W.3d at 386;

                                           -14-
Maxey, 898 S.W.2d at 757; see also Watson, 227 S.W.3d at 639. The Defendant is not
entitled to relief on this basis.

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


                                     ____________________________________
                                     ROBERT H. MONTGOMERY, JR., JUDGE




                                       -15-
